Open beaches debate back at TX Supreme Court

AUSTIN (AP) - The Texas Supreme Court on Tuesday began reconsidering its controversial decision that redefined the state's Open Beaches Act and sparked heated backlash from critics who said it endangered public access to Texas beaches.

The high court heard arguments that sought to resolve a November 2010 ruling that cast doubt on the law, which guarantees public access to beaches up to the vegetation line. The ruling sided with a landowner who was told to tear down her house after erosion from Hurricane Rita left it on a sandy coast.

Assistant Solicitor General Daniel Geyser argued that the court wrongly ruled that if a natural disaster erodes the shoreline and moves a piece of private property onto a beach, that portion of the beach becomes private property.

Geyser said the line that determines public access moves with the vegetation line, which is generally where the open beach meets grassland or other vegetation. Geyser, echoing complaints from beach-access advocacy groups and some municipalities, said the court's decision went against decades of court precedence.

"This court has never thrown out a rule so durable over time," Geyser told the justices. "The tradition of the public using the dry beach has prevailed uninterrupted until this past November."

The lawsuit arose after Hurricane Rita's winds and rain pounded the Texas shoreline in 2005, eroding the sand and leaving Carol Severance's home on a sandy beach along Galveston Island's West Beach. The state ordered her to demolish her home, saying her land was now considered a public beach. Instead, Severance took the state to court.

The high court ruled that the land on the beach could be considered private property, as it was when Texas was a republic. Critics said the decision disregarded decades of precedent allowing Texans access to beaches.

Severance's attorney, J. David Breemer, argued Tuesday that the tradition of public beach access lacks a legal foundation. He also maintained that people couldn't be divested of their private property rights — an argument that some justices were concerned about, too.

"There's a difference between God taking your property and the state taking your property," Justice Dale Wainwright noted during Tuesday's hearing.

Justices took the arguments under consideration. It's unclear when they will issue a ruling.

Land Commissioner Jerry Patterson, backed by outraged advocacy groups and some municipalities, filed a motion for a rehearing. Patterson said the public easement, or the public's right to access certain property, moves with the water instead of staying static.

"Severance argues that it is defined by a specific geographic plot," he said after the hearing. "But that defies imagination."

Patterson and other supporters of public access emphasized that the dynamics of a beach dictate that it moves — and so should the line of public access.

"What we've got is activist judges trying to create a new law that is contrary to the laws of nature," said Ellis Pickett, spokesman for the Texas Upper Coast Chapter of the Surfrider Foundation . "A beach is going to be as wide as the waves and wind and sand require it."

During the hearing, Breemer argued that the public easement can migrate gradually but not jump to a place where public use has never existed before.

"The state cannot say there is use of the beach where there has never been use before. That's a different creature," Breemer said. "You can't move the easement from point A to point C. The Open Beaches Act wasn't meant to say that."

Geyser, whose office represents the state before the Supreme Court, argued that the court would be "pulling the rug from under dry beach access" by upholding its November decision.

"Severance continues to fight for a right she never had, leading the court to eviscerate a fundamental public right," he said.

Patterson, who was present at the hearing, said he was satisfied that the court re-heard arguments and seemed to be more knowledgeable than before.

But public access advocates are still convinced that if the court doesn't change its ruling, the public's right to beaches will be gutted.

"If the court continues to rule in this direction, it will be the end of public beaches in Texas," Pickett said. "They are taking the beaches away from the people."