I
personally would like the open beaches act to stay in force.
However, it does constitute an unconstitutional taking. The
state, as most states and countries, owns the submerged land below mean
high tide, and this is how most of the original Spanish, Mexican and
Texas (after independence) land grants were constituted. The
property owner owns the land above MHT, including the dry beach between
the vegetation line and MHT. Interestingly, Mrs. Severance called
me several years ago to see if I would consult as an expert for her
lawsuit. I declined, saying that she didn't have a chance.
Hmmmmm.
Well, there is another factor of significance
here. Nearly all of the shoreline retreat and beach erosion in
Texas is due to man-made changes in the shoreline and the rivers that
were done by the State and the Federal government. These include:
1.
Long jetties such as at Port Aransas and Galveston which permanently
trap millions of cubic yards of sand which would otherwise be moving
along the shoreline and nourishing the beaches (over 30 million cubic
yards or 5 million dump trucks at the east jetty Galveston alone).
2.
Inlets which sweep sand into the bays which would have continued along
the beaches (about 15 million cubic yards (about 3 million dump trucks)
at Rollover Pass, so far).
3. Altering river mouths (moving the Brazos River 7 miles to the
west starved the beaches of Surfside.
4.
Building reservoirs on every available spot on our rivers has trapped
the sand which was moving to the coast from the Rio Grande, Colorado,
Brazos and Sabine Rivers. In addition, the flood control by those
reservoirs reduces peak flows further reducing sand transport to the
coast. The Brazos river transports only 1/4 of the sand to the
coast that it did before the major reservoirs and the Rio Grand
transports almost none and sometimes has a dry bar across its
mouth. In 1992, the mouth of the Colorado River was diverted into
Matagorda Bay, starving Matagorda Peninsula of the sand that it used to
dump into the surf.
5. Water extraction for industry has caused subsidence of several
feet at Surfside and more in some other places.
We
would not be having significant shoreline retreat and would probably
have accretion and shoreline advance, if these changes had not been
made. Geologic evidence indicates that most of the Texas Gulf
beaches were accreting before 1900 when these changes began.
If
the State or the Feds build a reservoir which will flood the land, then
they must purchase that land from the owner who is to be flooded.
The beach erosion was not anticipated when the above changes were made,
and the correlation was not even recognized till 10 or 20 years
ago. So, in addition to the 4th amendment reasons, I personally
believe that the State should purchase the property necessary to
maintain a public beach, since the State caused the shoreline erosion,
even though this was not anticipated.
The long jetties for
ports, moving rivers to benefit ports, reservoirs for water supply and
flood control benefit all Texans. Maybe all Texans should pick up
the tab for the shoreline retreat caused by these projects.
This will no doubt ultimately be decided by the higher courts under the
U.S. Constitution's fourth amendment. I assume that you can tell
that I am VERY much in favor of open beaches, but not so much in the
coastal land owner bearing the cost, since the erosion is primarly due
to changes in the coast and rivers made long ago by the State and
Federal Governments.
I am not an
attorney, however, from the reading that I have done and what I have
learned from the attorneys for whom I have worked, I do think that
there is a huge difference between the rolling easement of the OBA and
the tidal or water level boundary of MHT and MHHT. Those
boundaries are mentioned in the original grants as a call for the
shoreline and clarified by Luttes and by the Kenedy foundation vs.
the state. Further, calls for the shoreline the boundary between
lands owned by the state or the crown go back thousands of years to the
Romans and to early British common law. On the other hand the OBA
only goes back a few decades and imposes a new rolling easement (a
boundary of sorts) on the upland owner, even though it was never
present in the original granting documents. At least, since they
may not have been examined in that light, I suspect that an
easement was very unlikely to be present in the original
grants as no one would have cared about it in the 1800s.
So yes, the MHT or
MHHT boundary does indeed move as the shoreline retreats or advances,
but it is not necessarily so with regard to the OBA and the easement
between the vegetation line and MHT.
It certainly is a
good idea to have large setbacks on newly platted property such as the
350 ft. setback of Nueces County. However, I think that
pre-existing setbacks for pre-existing plats should probably be
honored, at least, if there is construction on them.
I don't think that
it is unreasonable at all for the State to purchase the land, just as
they have in the past for reservoirs, etc. because the beaches (and the
structures that cause the erosion) benefit all Texans.
I doubt that the OBA
will survive a trip to our highest courts, so perhaps we should plan to
provide other means to keep open beaches.
