Texas Open Beaches Act

Introduction

The Open Beaches Act (Natural Resources Code, Title 2, Chapter 61) is a Texas law enacted in 1959 that protects public access to the shoreline along 367 miles of the Gulf Coast. Most notably, the Act ensures the public:

"...shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico."

To protect these unalienable rights, the Act prohibits local governments and/or any individual from impeding the public’s access to the protected area. If an obstruction is erected or maintained on the public beach, or if the public’s right of access or use is interfered with in any manner, the Texas Attorney General or General Land Office Commissioner may commence an action against the violator.

Unlike other states with private beaches and restricted public access, the Open Beaches Act is a one-of-a-kind coastal law which codifies the public’s right to use and access the area of beach between the mean low tide mark and the line of vegetation. The Act is a legal recognition of the public’s historical use of this area. Since time immemorial, Texas citizens have enjoyed free and unrestricted access to the Gulf Coast beaches. Although the Act guarantees the public’s beach access rights, it is important to note the Act is merely a reiteration of well-established rights. As the recent Texas Supreme Court opinion in Severance v. Patterson emphasizes, the Open Beaches Act does not create new rights.

Historically, the Open Beaches Act has been interpreted very liberally and most Texas courts afford it great deference when interpreting the public’s access rights. Also, located in an area of high storm activity, the Texas coast is constantly exposed to the risks of erosion due to avulsive events. As a result, Texas courts have long recognized the OBA’s “rolling easement,” an innovative legal concept which allows an easement to “roll” with the changing coastal events. For example, after a storm the line of vegetation may shift seaward or the tidemark may increase or decrease, thus changing the physical boundaries of the public beach. Instead of creating new boundaries which could alter the public’s rights, Texas courts have traditionally allowed the public’s easement to “roll” or move with the coastal changes; this creates a more flexible doctrine to ensure the public’s rights remain intact.

Recently, however, in the case Severance v. Patterson the Texas Supreme Court opposed a half a century of precedent and rejected the OBA’s rolling easement concept. While the holding in Severance is arguably limited to the specific properties at issue on West Galveston Island, the case nonetheless may weaken the Open Beaches Act and the access rights it affords Texas citizens.

Consequently, private property rights and natural events continue to challenge the Act, constantly changing both the public’s and beachfront owners’ rights.

History

The Texas Open Beaches Act was originally passed in 1959, but it has since been altered by case law and subsequent legislation. Major alterations to the Act include:

1958 - Although the traditional state ownership delineation was marked between the line of vegetation and the mean low tide mark, the case Luttes v. State Supreme Court identified the dividing line as between the line of vegetation and the mean high tide water mark.

1959 - In response to the Luttes restrictions, the 56th Legislature of Texas passes the Open Beaches Act to ensure the existence of the public’s access easement between the line of vegetation and the mean low tide water mark.

1964 - The court in Seaway Co. v. Attorney General evaluated the public’s continued use of the beaches and declared, via the Open Beaches Act, an access easement had been historically established on the properties in question by both dedication and prescription.

1991 - Amendment to OBA. The Texas legislature invested the Land Commissioner with the authority to promulgate the Beach/Dune Rules requiring local governments to develop and implement beach and dune access laws.

2003 - HB 1457 is passed, implementing a two year moratorium period during which no action can be taken to remove structures that have shifted onto the public beach from storm events. The two year period is created to allow natural shifts in sea and vegetation boundaries to settle.

2007 - In the first iteration of Severance v. Patterson, Judge Kenneth Hoyt of United States District Court for the Southern District of Texas, Houston Division declared the Open Beaches Act constitutional. The case was since appealed and re-interpreted by the Texas Supreme Court as well as the Fifth Circuit.

2009 - Texas citizens overwhelmingly approve Proposition 9 by over 75%, an amendment (initiated by Rep. Richard Raymond, D-Laredo) to the Texas constitution guaranteeing the public’s right to use and access Texas beaches.

2012 - The Texas Supreme Court in the latest Severance v. Patterson case invalidates “rolling easements,” thereby greatly endangering the OBA and its countless previous beneficial interpretations.

Seminal Cases

• Moody v. White, 593 S.W. 2d 372 (1979) - public easement (both prescription and dedication) demonstrated by over 200 pages of testimony; the public easement “rolls” just as the boundaries of navigable rivers; rolling easement concept overruled by Severance v. Patterson

• Villa Nova Resort, Inc. v. State, 711 S.W. 2d 120 (1986) - assertion of a public easement is not an affirmative defense; public easement was demonstrated by both prescription and dedication

• Matcha v. Mattox, 711 S.W. 2d 95 (1986) - public easement was established by custom, not by the Open Beaches Act; thus, there was not governmental taking of property; the public easement shifts with natural coastal movement, but this was overruled by Severance v. Patterson

• Feinman v. State, 717 S.W. 2d 106 (1986) - Open Beaches Act interpreted in favor of the state; the court held a rolling public easement exists (by dedication) that shifts with storm events; the rolling easement concept was overruled by Severance v. Patterson

• Arrington v. Mattox, 767 S.W. 2d 957 (1989) - the court held the public acquires its easements through prescription, dedication, or custom, not through the language of the Open Beaches Act; once the public easement is established, it rolls with natural movement on the beach; the OBA is a means to enforce these rights, it does not authorize the attorney general to arbitrarily seize private property; if the state proves an public easement, it is unlikely to be considered a taking requiring just compensation

• Hirtz v. Texas, 773 F. Supp. 6 (1991) (Fifth Circuit) - the rolling easement concept does not offend the Takings Clause (this decision was later vacated by 974 F. 2d 663 (1992) due to an Eleventh Amendment issue)

• Mikeska v. City of Galveston, 328 F.Supp. 2d 671 (2004) (Fifth Circuit) - the City of Galveston’s action denying utilities and building permits to beachfront owners whose properties shifted onto the public beach was rationally related to the city’s duty to maintain public beach access

• This decision was overturned by 451 F. 3d 376 (2006) in which the court held that although the city has the authority to deny construction permits, the city did not meet its burden to prove it possessed a rational reason to refuse to reconnect the utilities- the city did not prove that denying the permits was rationally related to protecting beach access; the city must always abide by its constitutional obligations

• Brannan v. State, 365 S.W. 3d 1 (2010) - the court found a rolling public easement existed through implied dedication; the court also held the rolling easement is not a taking because the concept inhered in the background of Texas property law; historical dedication created the easement, not the government, so there is no taking; the easement shifted due to natural movement, not any action by the government; the government was merely enforcing the easement rather than creating it

Coastal Preservation

The OBA is seminal in coastal preservation efforts. Not only does it protect the public’s use and access of Texas’s beaches, but it also helps maintain a precious natural resource. Equipped with the safeguard of the Open Beaches Act, Texas coastal law is unique among states with piecemeal legislation or inadequate beach land protection. The strength of the OBA has recently been diminished, however, with the latest Severance v. Patterson case. It remains to be determined how much the Severance decision will adversely impact the public’s rights, although it is clear the holding has had immediate results; the GLO’s Land Commissioner Jerry Patterson recently cancelled a $43 million re-nourishment project. Under the holding in Severance, the land in question on West Galveston Island is no longer publically owned; the court held the land is private property. Consequently, since public money cannot be used to improve private land, Patterson had to cancel the re-nourishment project. In the context of global warming, it is highly unlikely metrological events will cease to erode and destroy the Texas coastline. Maintaining the public’s access rights and unobstructed beaches will thus require a state-wide effort to reconcile private versus public ownership issues to ensure an irreplaceable natural resource is not denigrated and the public’s rights are not infringed.

2013 Update

The Texas Legislature recently passed H.B. 3459, which the governor signed into law June 14, 2013. The new law amends the Texas Open Beaches Act, which means it will have an effect on public beach access. See this Coastal Blog post for an analysis on this amendment.