Texans living along the Gulf Coast greeted with displeasure a recent ruling by a sharply divided Texas Supreme Court which compromises their right to open beaches. The case is named Severance v. Patterson, ___ S.W.3d ___ (Tex. 2012).
The facts in Severance stemmed from Hurricane Rita’s changes to the Texas coastline. Land “avulsed,” leaving the beachfront further inland.
The underlying lawsuit was pending in federal court. But a federal appeals court sent a “certified question” to the Texas Supreme Court seeking a statement of whether, under Texas law, public access to the beach “rolled” inward along with the coastline. The Supreme Court, which has discretion to accept a certified question, took the case. It originally issued its ruling in November 2010. Afterwards, it granted a motion for rehearing. While that was pending, the landowner sold the property. Nevertheless, the Supreme Court determined to rule again on the case after the federal appeals court indicated that the matter was not rendered moot.
Texas passed the Open Beaches Act 1959. Owners of beachfront property are on notice that the coastline may change. Moreover, in 2009 Texas voters approved a state constitutional amendment protecting the right to “‘state owned beach[es]'” (though the Court said that the amendment was irrelevant for the case).
Despite this, the Supreme Court ruled that the state’s easement for access to the beach did not “roll” to “encumber . . . new parcels as a result of avulsive events.” “Beachfront property lines retract or extend as previously dry lands become submerged or submerged lands become dry. Accordingly, public easements that burden these properties along the sea are also dynamic. . . . However, when a beachfront vegetation line is suddenly and dramatically pushed landward by acts of nature, an existing public easement on the public beach does not ‘roll’ inland to other parts of the parcel or onto a new parcel of land. Instead, when land and the attached easement are swallowed by the Gulf of Mexico in an avulsive event, a new easement must be established by sufficient proof to encumber the newly created dry beach bordering the ocean.”
The Court’s ruling is harmful to Texans who want to use their beaches, and threatens to create a “patchwork” system of beach access. It also hurts the City of Galveston’s efforts to recover from storm damage. The Court’s opinion was delivered by Justice Wainwright, in which Justices Hecht, Green, Johnson, and Willett joined. Justices Medina, Guzman, and Lehrmann dissented.