The Texas Supreme Court has dramatically rolled back the scope of the public trust doctrine as it applies to Texas beaches in a 5-3 ruling by the all-Republican court. This means that the public’s right to enjoy shorefront on the Gulf of Mexico will be sharply curtailed in the years ahead -- a major victory for private property fundamentalists. Judicial activism, anyone?
The court’s decision focused on the public's access rights to beaches when hurricanes or storms have eroded a public strip of beach. Should the public be prohibited from using the "new beach" that might now be situated on privately owned land? Or should there be a “rolling easement” that recognizes public access no matter how natural forces remake the actual shoreline?
For decades, the Texas state public trust doctrine gave a rolling easement that assured public access to beaches. That access right did not inhere in a particular strip of land, but in a general right of access. Now, the court
ruled, reversing decades of established law, if a storm washes away the public beach, “the land encumbered by the easement is lost to the public trust, along with the easement attached to that land.” As reported by the Texas Observer, “the court dismissed the 180-year-old custom of public enjoyment of Texas beaches as ‘unsupported by historic jurisprudence’ and ‘a limitation on private property rights’.”
State attorney general Greg Abbott noted: “With the stroke of a pen, a divided court has effectively eliminated the public's rights on the dry beach….The majority could only cite—nothing. Not a single case, rule, precedent, principle, empirical study, scientific review, or anything else.” Even the Galveston Chamber of Commerce joined the attorney general in seeking to uphold the historic understanding of the public trust doctrine.
The case had its origins when a California divorce attorney, Carol Severance, sued to thwart public access to her Galveston beachfront properties following Hurricane Rita in 2005. She was represented by the Pacific Legal Institute, a conservative property-rights litigation outfit that was apparently eager to win a new precedent rolling back the public trust doctrine.
The public can take a vindictive satisfaction that public funds will no longer be able to clear up beach debris or restore the beaches following major storms. The State of Texas spent $43 million on such activities after Hurricanes Ike and Dolly. It's unclear how private owners of beachfront properties will react to this news, but that's one government "giving" that I'm sure they will want to continue.
And when climate change starts to raise the level of the oceans, and the tide starts to engulf people's “private” property, you can be sure that private property holders to come screaming to the government for help as Reporter Forrest Wilder notes:
One Coastal geologist Jim Gibeaut, of Texas A&M-Corpus Christi’s Harte Research Institute, has estimated that the Houston-Galveston area will see between 2.3 feet and 4.9 feet of sea-level rise over this century. In Galveston, 78 percent of households would be displaced at 2.3 feet and 93 percent under the 4.9 feet scenario. "This would eliminate Galveston as a viable community on the Texas coast," wrote Richard A. Davis Jr. in Sea-Level Change in the Gulf of Mexico, a book published last year.
Someday, our private property-rights extremists will have to plant that "Don't Tread on Me" flag on the bottom of the sea.
Photo by Ed Schipul via Flickr, used under a Creative Commons Attribution-ShareAlike license.
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