Providing beach access in Texas: The implications of Severance v. Patterson on the Texas Open Beaches Act
Abstract
The cornerstone of public beach access in the state of Texas is the Texas Open Beaches Act (OBA). Enacted in 1959, it guarantees the public the right to access the public beaches of the state. The OBA also relies upon a dynamic public access easement that shifts along with the line of vegetation, often known as a “rolling easement”. A 2010 challenge to the OBA involving a dispute between government action and private property rights, Severance v. Patterson, resulted in a Texas Supreme Court decision that limits the application of the rolling easement to the Gulf of Mexico coastline and potentially impacts the state’s ability to consistently manage beach access for the public.
A review of the legal and regulatory framework of public beach access in Texas provides a background for an analysis of beach access provision in three states that have been identified as potential alternatives for applying the rolling easement in Texas to the entire Gulf of Mexico coastline under common or constitutional law. The development and application of these methods in each state was reviewed, and the application of these methods to the regulatory framework in Texas was assessed for their potential to serve as a valid state defense against Fifth Amendment takings claims from private property owners.
The analysis of the alternative beach access methods shows that none of these methods will be successful at applying the rolling easement to the entire Gulf of Mexico coastline under the OBA, but would rather serve as tools for providing beach access to individual parcels affected by the Severance v. Patterson decision. When combined with proactive public policy designed to mitigate development in hazard prone areas, these methods could close some of the gaps in beach access provision that were opened by the Severance v. Patterson decision.