Friday, December 7, 2012

Who Would Have Thought It? NYT Op-Ed Article Highlights Texas' Progressive Open Beach Law

By Jessica R. Alexander, J.D., M.L.S., Reference Librarian

Questions about public beaches, Super Storm Sandy, and the Texas Open Beach Act were brought into focus in the December 4,  New York Times Op-Ed Page article by Andrew W. Kharl entitled, "The People's Beach."  He compared the lack of laws promoting public beach access along the eastern seaboard and other areas with Texas' more progressive policy. The policy is embodied in Texas property law, specifically the Texas Open Beaches Act. (TOBA)

Kharl quotes Ralph Yarborough, a famous Senator from Texas who said in 1957, "In recent years, fences and barricades have blocked the public right to have access to our seas. We are becoming a landlocked people, fenced away from our own beautiful shores, unable to exercise the ancient right to enjoy our precious beaches." He argues that neither the federal government or other states have been as progressive as Texas regarding public access to beaches. Developers and wealthy individual landowners have blocked access to the public and have also lead to environmental degradation.

 The most important Texas Supreme Court case to date interpreting the TOBA is Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012).The interplay of  the awesome power of coastal storms like Hurricane Rita with Texas legal history (the Republic and the state) makes this complicated case rather compelling. The opinion goes into detail on events such as avulsive movement of the shoreline, mean low tide, rolling easements and the public rights to land under the sea.  South Texas College of Law Associate Professor, Matthew Festa is an expert on the Texas Open Beaches Act (OBA). He filed an amicus brief in which his position prevailed in the Court. Professor Festa argued,
"An easement is an interest in land for which the elements must be established with respect to particular properties. Under the plain language of the statute, and notwithstanding the merits of any argument about rolling easements, the TOBA cannot impose public access without first proving the elements of an easement by dedication, prescription, or customary rights for each property. Asserting such property rights without establishing an easement would require compensation under U.S. and Texas constitutional law."

Agreeing with Professor Festa, the Court decided that: "...Texas does not recognize a “rolling” easement. Easements for public use of private dry beach property change size and shape along with the gradual and imperceptible erosion or accretion  in the coastal landscape. But, avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property. This holding shall not be applied to use the avulsion doctrine to upset the long-standing boundary between public and private ownership at the mean high tide line. The division between public and private ownership remains at the mean high tide line in the wake of naturally occurring changes, and even when boundaries seem to change suddenly."

More writings on this subject by Professor Festa can be found at the Land Use Prof Blog. Search the blog for his postings on Severance.

Here are links to the relevant constitutional (Texas), statutory and legislative history materials related to the issues:

Texas Constitution Art. 1, Section 33

Texas Natural Resources Code Chapter 61

Tex. Legis. Beach Study Comm., 57th Leg., R.S., The Beaches and Islands of Texas (1961), available at

Tex. Leg. Interim Beach Study Comm., 65th Leg., R. S., Footprints on the Sands of Time (1969), available at