Texas Open Beaches Act (TOBA) and the Severance Decision

Texas Coastal Geology

Richard L. Watson, Ph.D.

P.O. Box 1040 Port Aransas, TX 78373
361-749-4152 send email


Resume of Richard L. Watson, Consulting Geologist

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On January 25, 2013, the Supreme Court of Texas sent the Brannan case back to the lower court because it appears that the Severance decision below may apply to Texas Beaches not included in the Texas Supreme Court Severance decision which effectively voids the Open Beaches Act.

Click here to read the Brannan Decision.

A new supreme court decision changes the application of the Open Beaches Act.  

Read the following links in addition to the papers on Coastal Law!
The Texas Supreme Court has revisited Severance and published its opinion on March 30, 2012.  It has reached the same conclusion that there is no basis in Texas law or history supporting a rolling public easement on the dry beach between the vegetation line and the state/private boundary of Mean High Tide for Common Law grants (after 1836 under Texas law.  This probably will result in the same determination for Civil Law grants (Spanish and Mexican) for the dry beach between the vegetation line and Mean Higher High Tide.  This result pretty much guts the open beaches act and public access to the dry beach after erosion, sea level rise, or subsidence moves the shoreline inland.  Original Texas Supreme Court decisions on the Severance case and validity of a rolling easement under the Open Beaches Act.
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.

The following two papers are superb presentations on Texas Coastal Boundary law and its history.


Shoreline Boundaries Part I:  Legal Principles  -- Shannon H. Ratliff

Ratliff Law Firm P.L.L.C.


Shoreline Boundaries:

Current Controversies Involving Erosion and Subsidence"

Shannon H. Ratliff, Esq. and Richard A. Fordyce, Esq.

The Ratliff Law Firm


The Severance decision and the causes of beach erosion and shoreline retreat in Texas

Severance upheld by U.S. Fifth Circuit Court of Appeals

Here is the U.S. Fifth Circuit Court of Appeals Decision

Majority opinion delivered March 30, 2012

Justice Willett Concurrence, March 30, 2012

Justice Guzman Dissent, March 30, 20112

Justice Lehrmann Dissent, March 30, 2012

Justice Medina Dissent, March 30, 2012

Original Texas Supreme Court decisions on the Severance case and validity of a rolling easement under the Open Beaches Act, November 5, 2010.

Texas Supreme Court, Nov. 5, 2010  Rolling Easements of Open Beaches Act do not exist!

Dissenting Opinion, Texas Supreme Court, Nov. 5, 2010  Rolling Easements of Open Beaches Act do not exist!

Public Access to Texas Beaches has been Severely Weakened by Texas Supreme Court's Severence Decision by Richard McLaughlin (Harte Institute)

See Also:  Rolling Easements as a Response to Sea Level Rise in Coastal Texas:  Current Status of the Law after Severence V. Patterson; Journal of  Land Use and Environmental Law, V 26, #2, Florida State University College of Law, 2011.

 Coastal Law and the Geology of a Changing Shoreline, March 2006, updated to include section on poor beach and dune management practices

Coastal Law and the Geology of a Changing Shoreline, March 2005 (see above paper, March, 2006 for latest version)

The Civil Law Littoral Boundary in “Non-Tidal” Areas of the Texas Coastal Waters:
Mean Daily Higher High Water Level (MDHHWL)
An Analysis for Texas Land Surveyors

William N. Lothrop, RPLS, P.O. Box 255
Sarita, Texas  78385
(361) 294-5246

Supreme Court of Texas Coastal Boundary Decision Kenedy Memorial Foundation v State of Texas sets boundary in non-tidal waters at Mean Daily Higher High Water Level