By Lynn Ashby 29 November 2010
Do you like to visit Texas’ beaches? Lie in the sun till you burn to a medium-well crisp, get sand in your eyes and seaweed between your toes? Fish, surf and watch the oil slicks float by? Of course you do, but be quick about it, because those sandy dunes will soon belong only to Californians who can afford them. The rest of us can look at beachy postcards.
What happened, in case you’ve too busy patting down airline passengers to keep up with news, is that the Texas Supreme Court has overturned more than 150 years of law and tradition by ruling that beachfront owners can own the beach, too. That means the landlords can fence off the dunes, and if you insist on your right go there, you can be arrested for trespassing.
The court’s ruling stemmed from a case brought, not by a local owner, but by the California-based Pacific Legal Foundation on behalf of Carol Severance, of San Diego. She owned four income properties on the Galveston beach – a beach which was washed away by recent hurricanes. As any Texan knows, beach erosion is a constant problem and when the sand before an ocean-front house washes away, said house is left stranded out on the beach, which is public property.
The waterfront owners have been given a choice of moving the house back from the beach, if they owned that land, tearing down the house or having a really big insurance fire. Some owners have fought the state, and Land Commissioner Jerry Patterson, a former Marine who packs heat, once told me he spent 10 to 15 percent of his time, and that of his staff, on beach owners’ legal fights.
The owners always lost — until now. In a ruling with convoluted logic, the judges said that the Republic of Texas recognized the Spanish land grants which gave property to owners of land on western Galveston Island. But the judges ruled when Texas entered the Union by the Annexation Treaty in 1845, the state never specifically claimed the right to control that part of the beach from the vegetation line to the normal high tide. The court also made a distinction between gradual erosion and instant storm erosion, which is a new one.
Texans have always used our beaches as public property, just like our rivers. We own them and the state has always backed us. The Legislature formally established that right in the Texas Open Beaches Act, and last year we made it part of the Texas Constitution. But five states — Massachusetts, Delaware, Maine, Pennsylvania, and Virginia – allow private ownership of beaches to the low water mark. To be fair, Massachusetts’ beach laws are contained under Colonial Ordinances of 1641-1647.
Now we must consider several possibilities as we pack up our pails and shovels. The Texas Supreme Court’s decision might be taken to the federal courts where the ruling could be overturned. Or another giant oil spill might float ashore on Stewart Beach, so your sun tan oil would come in 30 or 40 weight. Don’t laugh. Texas has a zillion offshore oil rigs, and we can safely assume that Halliburton, BP & Associates are busily dodging safety and pollution rules. When the next black monster bubbles ashore, you couldn’t give away that beach-front property and any court ruling would be moot.
Then we have a variation of the old joke about the gullible: “I’ll sell you some beach-front property in Lubbock.” A new scientific study says glaciers and ice sheets in Greenland and Antarctica are melting far faster than earlier predicted. Previous studies said the melting would add seven inches of sea water in several thousand years. Now the predictions are that the sea level is likely to rise perhaps three feet — FEET, not inches — by 2100. The researchers blame global warming caused by greenhouse gases.
Chicken Littles. What do world renowned climatologists know about the climate? Indeed, other scientists in that field strongly disagree with the predicted three-feet tidal increase. These other scientists put the high tide at SIX feet. But if the scaremongers are right, the result is obvious and non-arguable: All of Galveston Island will be under water and so will Texas’ coast.
This won’t happen, of course, until months if not years from now. But we have a more immediate situation which falls into the category of: Be careful what you wish for. Promptly after the court’s ruling, Land Commish Patterson ordered a halt to a $40 million beach replacement project on Galveston’s west end. Patterson said the court’s decision makes it impossible for workers to begin pumping sand onto eroded beaches because state law prohibits the spending of public money to benefit private property. Oops. “This is really just a bizarre result,” said Galveston Mayor Joe Jaworski. “It’s a blow to Galveston, undoubtedly.”
Years ago, my in-laws owned a beautiful old Victorian beach house on Bolivar. Hurricane Carla washed away the house, and the beach, in 1961. Part of the deck was found in a Louisiana bayou. The in-laws built a new house behind where the old one had stood, which was then out in the water. That one was demolished by Ike, aka the Bolivar Twist. But the homeowners knew the rules: keep backing up and re-building. Public beaches are just that.
Between storms and wrecked houses, my family and I would visit the beach, especially in winter. That’s the best time – no tourists, no dune buggies with drunken college students, just the wind and rain and gray skies. The worst the weather, the better. After a brisk walk at dusk on the beach, covered with seas shells undiscovered by summer’s hunters, I’d return to a nice fire, platters of hot seafood, soft music, brandy and a good book about the Galveston Storm.
So if you love Texas’ beaches as I do, get there before the barbed wire and high tide. Lubbock or leave it.
Ashby is sans sand at firstname.lastname@example.org