Tx Land Comissioner blasts TX Supreme Court decision weakening Open Beaches Act

[Winehole23]

Voters should replace the five members of the Texas Supreme Court (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Supreme+Court%22) who issued an opinion weakening the state Open Beaches Act, Land Commissioner Jerry Patterson (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Jerry+Patterson%22) said Monday.

"We now have private beaches in Texas where the public can be excluded," Patterson said. "I think folks should remember this when it's time to vote."


Officials are trying to make sense of the Supreme Court opinion issued Friday in a case involving a beachfront house on West Galveston Island. The opinion in Severance vs. Patterson essentially says the Open Beaches Act doesn't apply if a beach is eroded by a storm.
Although the opinion applies to Galveston Island, officials say it could affect access to other beaches as well. The court issued a similar opinion last year, but agreed to reconsider after a public outcry and pressure from numerous state and county officials.


In an 5-3 decision, Justice Dale Wainwright (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Justice+Dale+Wainwright%22) wrote that the Open Beaches Act "does not create easements for public use along Texas Gulf-front beaches." Public access exists only where established by long-term use, the opinion said.


Public access continues as gradual erosion moves the beach landward, but it ends if the beach is eroded by an "evulsive" event, such as a storm, according to the opinion. Justices Nathan L. Hecht (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Justices+Nathan+L.+Hecht%22), Paul W. (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Paul+W.%22) Green, Phil Johnson (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Phil+Johnson%22) and Don R. Willett (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Don+R.+Willett%22) joined Wainwright.


Justices Eva Guzman, Debra Lehrmann (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Debra+Lehrmann%22) and David Medina (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22David+Medina%22) wrote separate dissenting opinions, all saying that the majority was wrong to make a distinction between gradual and sudden erosion. "The court's decision is likely to exacerbate the degradation of Texas beaches," Lehrmann wrote.


Chief Justice Wallace B. Jefferson did not vote.


'Absurd and irrational'

Patterson's call to toss the five justices out of office was repeated by a former Galveston legislator who had a hand in crafting the Open Beaches Act adopted in 1959.


"The bottom line is for the people of Texas to throw out the Supreme Court of Texas, " said A.R. "Babe" Schwartz (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22A.R.+%22Babe%22+Schwartz%22), a legislator from 1955 to 1981. "The majority on this court has acted in the most absurd and irrational way in this case that one can imagine."


Patterson said the decision would allow beachfront property owners on Galveston Island to erect fences to keep people off the beach.


"In essence, the Texas coast is likely to become a patchwork of areas where the Open Beaches Act applies and areas over which an easement cannot be proven, and thus no public access to sandy shores is available," said Margaret Peloso (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Margaret+Peloso%22), an attorney with the Vincent & Elkins law firm who has been following the case.
Hurts public access
Harris County Attorney Vince Ryan (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22Vince+Ryan%22), who urged the court to reconsider its original decision, said the ruling will affect the use of beaches by the people of Harris County.


"It's a challenge to a tradition that's been here since the settling of the state of Texas to the concept that all beaches are open to the public," Ryan said. "It does encourage private property owners to be very aggressive in limiting public access."


Patterson said the decision means that the General Land Office (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fhouston-texas&search=1&inlineLink=1&query=%22General+Land+Office%22) will no longer be able to put new sand on West Galveston Island beaches or clean debris after a storm.


"Our court is an activist court and wants to be seen as pro-property rights, but they actually hurt property owners," Patterson said.
http://www.chron.com/default/article/Official-wants-judges-ousted-for-beach-ruling-3453970.php

[admiralsnackbar]

I'm guessing we can expect TX politicos to be allocating less of their budgets to works projects like counter-erosive infrastructure upgrades. Independent of this ruling, of course.

[FromWayDowntown]

The notion that the Supreme Court of Texas "has acted in the most absurd and irrational way" on any number of issues is hardly a new criticism of the Court in its most recent incarnations.

[boutons_deux]

UCA gets the SCOTX that it pays for.

[CosmicCowboy]

The notion that the Supreme Court of Texas "has acted in the most absurd and irrational way" on any number of issues is hardly a new criticism of the Court in its most recent incarnations.

Yeah, that looks like a bad ruling. Having a beach front house with rational people forces one to accept the whole "act of god" thing. The price paid for it typically figures that in. Allowing eroded property lines to extend to the surf line is stupid.

[Winehole23]

For generations to come, law school lectures on the topic of judicial activism will surely begin with the Texas Supreme Court (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Supreme+Court%22)'s recent opinion negating the state's long-standing Open Beaches Act.


It's hard to imagine a court ruling that exemplifies legislating from the bench more perfectly than the court's recent assault on the long-standing tradition of public access to the Texas coast.


Consider this: Both procedurally and factually, no reason existed for the court to even get involved. No case was pending before it. Instead, a federal appeals court had simply presented the court with a question about state law.


The court could have remained silent. After all, the federal case involved the beach house of a California woman who was fully compensated after Hurricane Rita altered the Texas coastline and put her house square in the public easement. The home itself no longer exists.


And yet so eager was this court to make a statement for the hallowed principle of private property rights that, like an uninvited party guest, it crashed the proceedings with an opinion so preposterous that Republicans and Democrats (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Democrats%22) alike are calling for the electoral defeat of the five judges who joined in the opinion: Judges Nathan Hecht (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Nathan+Hecht%22), Don Willett (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Don+Willett%22) (both of whom are up for re-election this year), Dale Wainwright (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Dale+Wainwright%22), Paul W. Green (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Paul+W.+Green%22) and Phil Johnson (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Phil+Johnson%22).


The federal court case arose over a couple of Galveston Island homes on West Beach owned by California divorce attorney Carol Severance (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Carol+Severance%22), who knew full well that time and Mother Nature alter the Texas coast dramatically.


Political statement

Sure enough, Hurricane Rita redrew the coastline and slapped Severance's homes so close to the shoreline they stood smack in the middle of what Texas beachgoers have always considered public property.


But not only did Severance want to cash in on taxpayer-funded disaster aid, she wanted to use the courts to make a political statement. Our Texas Supreme Court obliged.


How off-the-mark is the opinion? It has bonded together the most unusual of political bedfellows: Our gun-toting, libertarian-leaning Republican land commissioner, Jerry Patterson (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Jerry+Patterson%22), and one of the most liberal, yellow-dog Democrats ever to serve in the Texas Legislature, former Sen. Babe Schwartz (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Babe+Schwartz%22). Republican Attorney General Greg Abbott (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Greg+Abbott%22) said the court's premise was built on nothing more solid than, well, shifting sands. It's supported by "nothing," Abbott said. "Not a single case, rule, precedent, principle, empirical study, scientific review or anything else."


'Pockmarked' beach

An outraged Schwartz said the opinion "ignores common law dating to the Justinian Code, including the Bible, where Peter dried his nets on the shore."
If it is allowed to stand, Schwartz said, private property owners will be allowed to create fences, embankments and other barriers and "create a pockmarked beachfront like no other."


Republican Judge David Medina (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22David+Medina%22) clearly agreed with Schwartz, noting in a dissenting opinion that the majority "ignores the implied easement arising from the public's continuous use of the beach for nearly 200 years. ... The right to exclude the public from the dry beach was never in the landowner's bundle of sticks when she purchased the property."


Another dissent, written by Judge Debra Lehrmann (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Debra+Lehrmann%22), questioned whether the majority actually harmed property rights - of those homeowners just behind the lucky few with a beachfront location. Noted Medina: "It seems likely the court's decision restricting beach access will decrease the rental value of nonbeach-front properties and thus their property value."


No beach rejuvenation

Already, the decision has been disastrous for Galveston. Patterson halted a $40 million beach re-nourishment project since tax money can't exactly be spent hauling sand to private beaches. Whether tax money can be spent cleaning up after the next natural disaster remains to be seen.


So is the win for property rights a Pyrrhic victory for those who worship at the altar of private property rights? "It's a pretty shallow religion," Galveston City Council member Elizabeth Beeton (http://www.chron.com/?controllerName=search&action=search&channel=news%2Fkilday-hart&search=1&inlineLink=1&query=%22Elizabeth+Beeton%22) observed. Claiming the beach for yourself because your home sits there "is very much about short-term enjoyment of what should be public."


The Texas Supreme Court has given us a needless opinion in which no one wins. The public, certainly, has lost. Without the state re-nourishing the beaches, West Galveston property owners have also lost. They will find their homes swallowed by the Gulf sooner than they ever dreamed, and their enjoyment of a private beach will be fleeting.
http://www.chron.com/news/kilday-hart/article/Hart-Open-beaches-ruling-may-sink-high-court-3482518.php