I. Introduction

Texas has 367 miles of beach across eighteen counties, including five barrier islands and two major peninsulas.[1] Much of that is protected by national, state, or municipal parks or nature preserves, including sixty-six miles by the Padre Island National Seashore.[2] Texas beaches have the fastest erosion rate in the nation at five to six feet per year.[3] Texas loses 235 acres of land along the coast on average, annually.[4] Whenever the land encroached by the sea happens to be private property, disputes may arise between the owner and the state. Many of the most legally significant of such disputes have happened to occur on West Galveston Island and Surfside Beach.[5]

The Texas Open Beaches Act (OBA) was heralded as one of the most supportive laws of public beach access in the nation.[6] However, in 2012, the Supreme Court of Texas took a hard look at the OBA in Severance v. Patterson and concluded that the statute does not protect public beach access to the extent many expected.[7] Rather than creating a right for the public to access all beaches in Texas, under Severance, the OBA is now only an authorization for the state to enforce public easements that already exist under common law.[8] Furthermore, the public easement can move inland with erosion but cannot migrate when a storm wipes out the beach.[9] This causes a conundrum where one of two things is legally erased—public access to the beach above the high-tide line, or private property.[10]

The U.S. Supreme Court’s decision in Cedar Point makes clear that many state actions under the OBA will violate the Takings Clause of the Fifth Amendment, to the contradiction of most legal literature on the OBA.[11] How this may transpire procedurally and what alternatives may exist is the focus of this Comment. Part II provides a background of the public trust doctrine, the OBA, and Severance. Part III will dive into the application of the takings doctrine by surveying the literature on OBA takings, discussing the dramatic development under Cedar Point, and seeing how the state has avoided takings liability post-Severance. Part IV will explore a few alternative ways to secure public access to beaches, and Part V will conclude.

II. Background

A. Public Trust Doctrine

The public trust doctrine is of ancient common law inherited from Roman law.[12] The Institutes of Justinian declared that “[b]y the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea.”[13] Although the boundary of the seashore under Roman law may have been further landward,[14] under common law—which Texas adopted in 1840[15]—the seashore, for purposes of the public trust, ends at the regular high-tide line.[16] The land below the high-tide line is owned by the state, and the state keeps it in trust for the public’s use.[17] The routinely submerged beach below the high-tide line, subject to the public trust, is commonly known as the “wet beach.”[18]

In contrast to the wet beach, the “dry beach” does not belong to the public trust.[19] The dry beach is all the beach landward of the mean high-tide line, in other words, higher in elevation than the typical daily reach of the sea.[20] Today, it is undisputed that the public trust doctrine’s end is the high-tide line and the public does not have automatic title to the dry beach as it does the wet beach.[21] However, the precise boundary of the beach under public trust was once not so clear, and the OBA was a reaction to the Supreme Court of Texas’s strict imposition of the mean high-tide line as the demarcation of the beach under public trust.[22]

B. The Open Beaches Act

1. Initial Enactment

The Texas Legislature passed the OBA in 1959 to increase and protect public access to beaches.[23] The catalyst for the Act’s passage was the 1958 decision by the Supreme Court of Texas in Luttes v. State.[24] Luttes involved a title dispute over mud flats created by accretion on the shore of the mainland behind Padre Island.[25] The State lost when the court held the new land, having appeared above the high-tide line by natural causes, belonged to the adjacent private landowner even though the land previously belonged to the public trust when it was under water.[26]

Luttes was an afront to the public right to access beaches because it strictly confined the extent of the beach kept under public trust to below the high-tide line, rather than a more flexible, generous standard of the highest reach of the water (driven higher than the high-tide line by waves and wind, in other words, the de facto wet sand, not merely the wet sands of contour lines).[27] The Texas Legislature passed the OBA out of concern that Luttes would erode the public’s right to access beaches because, under Luttes, the beach under public trust now ended definitively at the high-tide line.[28]

2. Provisions of the Open Beaches Act

The OBA provides for state enforcement of public access to public beaches by the General Land Office (GLO).[29] The OBA prohibits construction of anything that would interfere with the public’s right to ingress, egress, or use a “public beach.”[30] It then empowers the GLO Commissioner with the discretion to “order the removal of a structure, improvement, obstruction, barrier, or hazard from a public beach.”[31]

The OBA defines “public beach,” specifically beach over which the GLO has its enforcement powers, as:

[A]ny beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use or easement to or over the area by prescription, dedication, presumption, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom. This definition does not include a beach that is not accessible by a public road or public ferry as provided in Section 61.021 of this code.[32]

On its face, this definition appears not to alter what beach is open to the public beyond what already exists under the common law.[33] The same clause, which conditions public beach access on existing common law mechanisms, repeats throughout the Act.[34] The Act’s dependence on the public’s right to access under the operation of the common law is also supported elsewhere in the statute.[35] For example, Section 61.023 provides that the subchapter “shall not be construed as affecting in any way the title of the owners of land adjacent to any state-owned beach.”[36]

However, there are provisions in the Act that suggest an intent to create or expand the public’s rights on the beach.[37] Section 61.020 declares that a prima facie case for a public easement is established if the state shows that the land in dispute is between the vegetation line and the high-tide line—in other words, all dry beach.[38] It places the burden of proof on the littoral owner to show that he has exercised his right to exclude the public from the dry beach.[39]

Furthermore, a 1985 amendment to the OBA created a requirement for a deed disclosure in littoral property sales, which implied that a public easement already exists.[40] Section 61.025 requires that all sales or conveyances of real property seaward of the Gulf Intercoastal Waterway include a disclosure in the executory contract giving notice to the buyer of the economic risk of losing use of the property to a public beach easement.[41] The mandatory disclosure alerts the buyer that “the public has acquired a right of use or easement to or over the area of any public beach.”[42]

With these internal inconsistencies, the OBA’s exalted purpose of increasing public access to beaches was left on a foundation more shaky than sand. That purpose would prevail for a time but collapse if the court ever read the Act’s definition of “public beach” literally.[43] The courts upheld an interpretation of the OBA favorable to its purpose for about five decades.[44] The OBA, and judicial interpretations thereof, seemed to extend the beach kept under public trust from the wet beach to the dry beach by establishing a public easement that was presumed and resilient. The public easement could move with natural changes of the vegetation line just as the beach kept in public trust moves with changes in the high-tide line.[45]

This favorable interpretation of the OBA was partly manifested in a “rolling” easement theory.[46] The theory said that a public beach easement moves with the vegetation line according to natural changes, regardless of the rate of change and regardless of property lines.[47] This was supported by multiple lower court cases.[48] But, in 2012, the interpretive tides shifted and the OBA was relegated to merely an enforcement mechanism of public access rights existing under common law, with no presumption of public easement on the dry beach.[49]

C. Severance v. Patterson

Carol Severance owned the property at issue in Severance and used the home thereon as a rental home.[50] Ms. Severance’s property on West Galveston Island was not abutting the beach but separated from the beach by another residential lot.[51] In 2005, Hurricane Rita slammed into the Texas coast, causing a sudden destruction of the beach such that the first row of homes were swallowed up by the shore and the vegetation line moved landward onto Severance’s lot.[52] Severance’s home became entirely seaward of the new vegetation line.[53] Prior to the storm, no public easement existed on Severance’s property.[54] However, a public beach easement had existed on the adjacent, seaward property—the property now covered by the surf.[55]

After the storm, the state attempted to exercise its authority under the OBA, and Severance sued.[56] The state declared a public beach easement on her property and that a portion of her home interfered with the public’s right to use the dry beach.[57] Severance sued GLO Commissioner Jerry Patterson and Attorney General Greg Abbott, among other state officials, in federal district court for violating her rights under the U.S. Constitution.[58] She argued the enforcement of a presumptive public beach easement constituted a Fourth Amendment unreasonable seizure and a Fifth and Fourteenth Amendment taking.[59] The district court dismissed her claims, holding that a preexisting easement can “roll” onto previously unencumbered property when natural causes shift the beach.[60]

On appeal, the Fifth Circuit certified questions to the Supreme Court of Texas regarding Patterson’s theory that a public beach easement can “roll.”[61] The Fifth Circuit asked whether, under Texas law, a public beach easement could “roll” onto a previously unencumbered property without proof of prescription, dedication, or customary rights on that property.[62]

The Supreme Court of Texas held, first, that the state must prove the existence of a public easement under the common law because one did not exist by customary right since time immemorial on West Galveston Island.[63] In reaching this holding, the court made the existence of a customary right to beach access the threshold issue and limited the inquiry to the local stretch of beach, rather, than the entire Texas coast.[64] If the court had found that a customary right of public access to the dry beach existed on West Galveston Island, it would have held that Severance had no right to exclude the public from the dry beach.[65] Instead, the court found that any customary right to public access on the dry beach that may have existed since time immemorial was extinguished when the Republic of Texas granted the entire West Galveston beach to two families without reserving access rights for the public.[66]

Having found no customary right retained in the dry beach,[67] the next inquiry under the OBA was whether the public had acquired an easement by prescription, dedication, or presumption.[68] Because it was undisputed that Severance’s lot was never burdened by a public beach easement, the last issue was whether a public easement prescribed on an adjacent, seaward lot could “roll” to Severance’s lot when the burdened lot was entirely consumed by the ocean due to a storm.[69]

Finally, the court held that an existing public beach easement on an adjacent tract, while it could migrate gradually with erosion and accretion, could not “roll” onto previously unencumbered property with an avulsive event.[70] An issue of first impression for the Supreme Court of Texas, it disapproved of four Texas appellate court decisions that recognized a “rolling” easement theory without basing it on Texas legal authority.[71] In declining to recognize a “rolling” easement theory, the court relied on the longstanding distinction in common law between erosion, which is a gradual change and does shift property lines, and avulsion, which is “sudden and perceptible” and does not alter property lines.[72] Policy implications of erosion and avulsion also swayed the court. While erosion, the court reasoned, is too common a phenomenon to warrant the relitigating of property lines and predictable enough to provide landowners with fair notice, avulsion is so sudden and drastic that the court could not fairly recognize the continuous public use required to establish an easement on new beach carved by a storm.[73] Although the court did not reach the takings question, its dicta indicated that to recognize a “rolling” easement here would expose the state to massive takings liability.[74]

Severance has been met with its fair share of criticism.[75] This Comment does not seek to expand on the credible policy arguments against the holdings in Severance or the history of whether public use of Texas beaches is a customary right, nor weigh in on the court’s textualist interpretation of the OBA. This case has been the law for thirteen years.[76] Assuming Severance continues to stand, this Comment addresses a big question left unanswered by Severance—whether a taking would actually occur.

III. A Physical Taking

Why does it matter? What are the consequences to the State of Texas if the law regarding the OBA goes unchanged and Texas suffers a major storm? One of the costliest problems would be the massive takings liability the state will be exposed to or else face a temporary loss of public easements on dry beaches.[77] Scholarly work has underestimated the probability of takings violations occurring by exercise of the OBA.[78] And recent developments in the takings doctrine in federal court will further restrict the OBA and may even lead to a challenge to the validity of the statute itself.[79] Lastly, post-Severance, the State has avoided takings liability only by procedural effect.[80]

A. Literature on OBA Takings

The legal literature on the OBA takings question, both before and after Severance, has doubted the viability of a takings claim for state actions under the OBA.[81] Mark Holmes explored the issue in 2003.[82] After giving a thorough summary of each prescription, dedication, and custom, he answered whether the removal of a beach house under the OBA would constitute a taking.[83] Holmes concluded, first, that a regulatory takings analysis applied rather than physical because the government is not physically invading or appropriating the land.[84] But, he said a categorical or total regulatory taking could occur under Lucas because the forced removal of a house or prohibition on building could be a regulation which “denies all economically beneficial or productive use of land.”[85]

Holmes then relied on two exceptions to categorical takings—when the private land owner does not actually own the right being deprived or when the use deprived violates state nuisance law—to conclude that removal of a beach house under the OBA would not be a categorical taking.[86] He argued that owners of properties conveyed after October 8, 1986, had waived their right to exclude the public from their property when they signed the deed disclosure mandated by section 61.025 of the OBA.[87] And, he argued, because access to the beach is a right held in common by the public as recognized by the OBA, a house obstructing public access to the beach was a public nuisance. He concluded that the removal of such a house does not constitute a categorical taking.[88]

Likewise, Laurencia Fasoyiro in 2007 defended the OBA as a reasonable regulation.[89] After presuming without discussion that an OBA removal action would not constitute a physical taking, she analyzed it under the regulatory taking factors of Penn Central and asked whether the OBA’s land use regulation went “too far.”[90] Like Holmes, Fasoyiro expected the deed disclosure to nullify the concern that the OBA interferes with investment-backed expectations.[91] She also argued that the OBA was a reasonable exercise of the state’s police power to abate nuisances and protect public health.[92]

Even after Severance, law journal articles were doubtful of the salience of takings claims under the OBA. Gwynne Hunter wrote a case note on Severance in 2013, echoing the dissent in Severance by criticizing the majority for not recognizing rolling easements.[93] Notwithstanding Severance’s holding that the State could not declare a public easement on previously unencumbered property after an avulsion,[94] Hunter expected the state to prevail under a Penn Central balancing test because the state’s interest in preserving the public trust extends to rolling easements, an interest that outweighs private property interests.[95]

As we have seen, most legal commentary expects that a state action under the OBA to remove or prohibit construction of a house after a storm would not be a compensable taking.[96] This is because the framework of a regulatory taking, as opposed to a physical taking, is expected to be applied.[97] And as a regulatory taking issue, a Penn Central balancing test would apply.[98] Under such a test, legal scholars expect the following three factors to tip the scales in favor of the state: the Section 61.025 mandatory deed disclosure’s negation of any owner’s investment-backed expectations, the state’s reasonable exercise of the police power to abate nuisances, and the state’s interest in preserving the public trust.[99] However, as the following section demonstrates, case law has diverged from the predictions of these legal scholars.

B. Federal Takings Developments Will Restrict State Action Under the OBA

Prior to Severance, Texas courts held against takings violations for actions under the OBA.[100] Since Severance, courts have not reached a holding on the takings issue because the state has avoided takings liability by tempering its actions under the OBA, by abandoning enforcement of a public easement after litigation begins, or by relying on physical changes to the beach over time that render claims moot.[101] Yet, in dicta there is an underlying assumption that the state is susceptible to takings violations by exercise of the OBA.[102] More significantly, a recent federal case, Cedar Point Nursery v. Hassid,[103] should settle the question of what action under the OBA amounts to a taking.[104]

The U.S. Supreme Court held that “[w]henever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place.”[105] Cedar Point involved a strawberry farm’s claim that a California labor regulation violated the Fifth Amendment Takings Clause.[106] The regulation allowed a limited number of union organizers, after filing notice to the Labor Relations Board and informing the employer, the right to access the farm’s private property and speak with farm workers for up to 120 days a year, three hours a day.[107] Union organizers with bullhorns entered the farm’s trim shed where hundreds were working and caused a protest.[108] Emphasizing the right to exclude as one of the most fundamental property rights, the Court distinguished between a regulation that restrains an owner’s use of their property and a regulation that “appropriates for the enjoyment of third parties the owners’ right to exclude,” the latter of which “cannot be balanced away.”[109]

The line of cases the Court relied on for support fits its holding squarely in the context of public easements on private beaches.[110] The cases relied on involved easements, and the Court said that even if the invasion is restricted to the terms of an easement, it still requires just compensation.[111] In particular, the Court pointed to Nollan v. California Coastal Commission for the proposition that declaring a public easement across private property to increase beach access would undoubtedly constitute a taking.[112]

If government-sanctioned visits by union organizers in Cedar Point constituted physical takings,[113] then declaration of a public beach easement by statute on previously unencumbered land logically would be. The union organizers were required to file notice with the Labor Relations Board and inform the employer before entering,[114] whereas no such requirement exists for a public easement.[115] Unlike in Cedar Point, a public easement would not be limited to three hours a day or 120 days a year.[116] The compromised right to exclude would belong not to a large farming business but to a single-family residence. And the resulting harm could be not the disruption of operations but the demolition of a house.

Cedar Point should settle the question of whether Texas commits an unlawful taking if it declares an easement on previously unencumbered property after a storm. Because an avulsive event does not carry a legally established public easement inland with the dry beach, to regulate the newly formed dry beach as if it was burdened by a public easement would be a per se physical taking.[117] Even if the regulation is reasonable, for the public good, and does not interfere with investment-backed expectations, that is irrelevant to the state’s constitutional obligation to pay just compensation.

C. The Nature of Takings Claims on the Beach May Mitigate the State’s Risk of Takings Liability

Although the GLO’s actions under the OBA to enforce a public easement—or outright state ownership—where none previously existed will be a per se physical taking under the Fifth Amendment of the U.S. Constitution,[118] there remain some procedural and practical circumstances that work in the state’s favor. This section will discuss the two post-Severance Texas cases in which an OBA taking was alleged as well as one federal case. As will be shown, the courts operated with a presumption, though without holding, that the state could be liable for a taking. However, in both cases, the state avoided takings liability. How they did so could be relevant for the future, even in light of Cedar Point.

The first Texas case after Severance where an OBA taking was alleged was Porretto v. Texas General Land Office.[119] The GLO leased to the City of Galveston land seaward of the high-tide line to renourish the beach by dumping sand.[120] The Porretto family owned land above the high-tide line and seaward of the Galveston sea wall.[121] In the lease, the GLO represented that the public beach extended to the highest annual high-tide line, which after a survey they determined to be at the sea wall.[122] When the city raised concerns to the GLO that some of the beach in the lease may belong to private citizens, a GLO staff attorney assured the city that the state did not recognize any private claim to land seaward of the sea wall.[123] Soon after, a GLO senior deputy commissioner wrote an op-ed in the Galveston County Daily News stating that any attempt to assert private ownership of land seaward of the sea wall “will be opposed by the state.”[124] Yet, the GLO Commissioner responded by letter to the Porrettos, who were trying to sell their property, saying the state did not claim title to any land above the mean high-tide line.[125] When the Porrettos were unable to sell due to buyers’ doubts about private ownership, the Porrettos sued the GLO to quiet title and for just compensation for lost property value.[126]

The court, though granting the Porrettos’ title claim, ruled against their takings claim because the State’s vacillating misrepresentations of state ownership did not constitute an action giving rise to a takings claim.[127] Even the State’s choice to litigate a claim of ownership over the Porrettos’ land, thereby clouding their title, which may have prevented them from finding a buyer, was not a compensable action because the State eventually abandoned the claim.[128]

The next, and only other, Texas case to apply Severance reached the Texas Court of Appeals for the First District in 2019.[129] The storm giving rise to the dispute occurred in 1998.[130] After a long procedural history, years of erosion, Hurricane Ike’s landfall in 2008, and properties changing hands or being destroyed, the claims in this case became moot.[131] While the case was dismissed for mootness and the takings issue was not reached, the appellate court recognized that Severance would forbid the state from removing the house, had it not been removed by the waves first.[132] The court was reluctant to recognize the rule under Severance—two out of three justices filed concurring opinions criticizing Severance’s avulsion-erosion distinction[133]—yet the court’s dicta was clear that Severance implies that state removal of a house after an avulsive event would constitute a taking.[134] Because the house was removed by natural forces, the state avoided takings liability.[135]

One case in federal district court has already applied Cedar Point to find that the plaintiff sufficiently pleaded a Fifth Amendment takings claim against the GLO for their temporary order under the OBA.[136] After tropical storms in 2020 altered the shoreline at Surfside Beach, the GLO issued an order, pursuant to section 61.0171 of the OBA, suspending its determination of the new line of vegetation and instating a temporary line of vegetation at 200 feet from the mean low-tide line.[137] The order stated that the temporary line of vegetation marked “the minimum public beach easement.”[138] Owners of four vacation-rental homes sued for injunctive relief, arguing that declaring a public beach easement without a judgment violated Severance and constituted a taking.[139] The district court found that the owners had sufficiently plead a takings claim under Cedar Point but denied injunctive relief because the owners failed to show irreparable harm.[140]

On appeal, just before filing their appellee brief, the state rescinded the line of vegetation order well before its expiration date.[141] Because of this, the Fifth Circuit dismissed the claim as moot.[142] The court reasoned that because their claim challenged a specific order of the commissioner and not the legality of the Act itself, their claim became moot when the commissioner rescinded the order.[143] The court found the order unlikely to recur, reasoning that the same beach was unlikely to be hit by another storm, and any harm to property values was not persistent because all beachfront properties in Texas could be hit by a storm and subjected to such an order.[144]

The questionable reasoning of the Fifth Circuit gave the GLO Commissioner a narrow pass in this case.[145] But the court contradicted itself. It claimed the risk of the state taking property by reissuance of the order is both not likely enough to reoccur for these plaintiffs to merit an injunction, while at the same time so likely to occur for any beachfront owner in Texas that all property values are negatively affected by the potential of the order.[146] This is another example of how difficult it is for plaintiffs—procedurally—to win a takings claim against the state in this context, even when the courts recognize that, under Severance and Cedar Point, the law is substantively on the side of the property owner.[147]

After the next major hurricane hits Texas, the state may be forced to choose between risking costly takings liability and losing extensive public beach easements where they have been swallowed by the sea. The state may mitigate its exposure to liability by avoiding actions that require just compensation as in Porretto, letting erosion run its course to remove the property naturally as in Pedestrian Beach, or taking only temporary action and rescinding its orders during litigation as in Sheffield. However, doing so may be difficult on a large scale after a hurricane, and keeping property rights pending will serve neither the public nor the environment.

IV. Policy Implications

A. Introduction

This part briefly introduces a few policy implications of the law as it stands with the OBA and Severance.[148] The belief that Texans have a presumed right to access all beaches, including the dry beach, has not dissipated with Severance.[149] Even as the legislature has attempted to amend the OBA to bring it into compliance with Severance,[150] many—including three former GLO commissioners—decried the amendments and, in the process, disregarded the law as it is under Severance.[151] This confusion as to the meaning of the OBA could be preventing the progress public beach access proponents seek. These amendments are simply necessary corrections to the OBA to make it comply with Severance and to avoid inconsistencies within the Act itself. Rather than opining on the law in Severance, there must be more effective means of ensuring that future generations of Texans have access to the dry beach abutting private property. To reverse Severance would be an uphill battle against common law precedent and contrary to the current direction of takings jurisprudence.

While Severance and Cedar Point continue to be the law and the state is exposed to takings liability with the OBA, interest groups and the state should not rely on the OBA for protection of public access to beaches after a major storm radically alters the shoreline. Indeed, even before Severance, the Texas Legislature abdicated its responsibility to enforce public easements in the wake of Hurricane Ike, which decimated East Galveston Island and the Bolivar Peninsula in 2008.[152] While the Galveston Sea Wall abated the issue of beach movement in Galveston, on the Bolivar Peninsula thousands of homes were destroyed, and many other homes, or the remains of homes, were stranded on the beach when the storm jolted the beach inland.[153] The following year, the legislature passed an amendment to the OBA prohibiting the state from ordering the removal of any house on Bolivar Peninsula that found itself seaward of the line of vegetation “as a result of a meteorological event that occurred before January 1, 2009.”[154] And owners of such houses were allowed to rebuild.[155] The bill was reportedly championed by a state representative who owned a home on the peninsula.[156]

If such was the reality of public beach enforcement before Severance, why should the public trust the state to enforce the OBA after Severance as the risk of takings liability has become clear?[157] Proponents of open beaches need to rely on avenues other than the OBA. More effective avenues are likely those under common law prescription and nuisance claims. This part first explores some possibilities of common law actions that would create public easements and addresses nuisance claims.[158] Finally, this part raises the issue of physical reinforcement of the beach as a policy solution.[159]

B. Vigilant Enforcement: Establishing Public Easements and Enforcing Nuisance Law

If the public wishes to ensure access to a beach in a particular area where there is no right in custom since time immemorial, such as West Galveston Island, it should pursue a judgment declaring it so, either by dedication or prescription.[160] The dedication route is unlikely. Dedication would of course be available if a city or community induces beachfront property owners to agree to dedicate public easements on the dry beach.[161] But zoning regulations that condition building permits on dedicating a public easement would likely violate the Takings Clause, as they did in Nollan.[162]

More broadly, it has not been settled that the Section 61.025 mandatory deed disclosure cannot be deemed a public easement dedication by beachfront owners.[163] The Severance majority was of the opinion that the deed disclosure does not function as a property owner’s waiver of the right to just compensation.[164] However, Cedar Point explicitly allows “the government [to] require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.”[165] The Court gave the example of health and safety inspections.[166] Perhaps Section 61.025 deed disclosures could be amended to provide public officials access to inspect structures below the vegetation line for environmental safety and public health and safety. Especially when the government is funding a beach renourishment project that is benefiting the owner, this access could be seen as related to the benefits received by the owner. It may, at least, provide a foot in the door to public easement by dedication.

Prescription may provide a more promising route to establishing public easements. A prescription claim to establish a public easement is essentially creating an easement by adverse possession.[167] These claims are tied to the statute of limitations for trespass.[168] The challenge for the public is that time must pass after an avulsive event washes out an easement for the public to prove a new easement by prescription.[169] One policy approach could be to shorten the statute of limitation for trespass on beach property only. This would allow the public to quickly establish an easement by prescription on the dry beach, as long as the public is, in fact, using the beach at that location. The policy reasons justifying this change could be that dry beaches are essentially connected with the wet beach that is under public trust and that dry beach is not as suitable for construction as it is for public recreation.

As for nuisance law, Severance and Cedar Point both explicitly left open the authority of states to regulate nuisances without violating the Takings Clause.[170] A nuisance in this context would most likely arise when a storm has stranded a damaged house on a beach and the dilapidated house has exposed wires and is breaking apart, causing hazardous materials and objects to be washed onto the public beach. More funding for enforcement of existing law by the state could lead to the removal of houses from the dry beach, even when such a house is not on a public easement.

C. Beach Renourishment and Reinforcement

An entirely different policy solution could be to stabilize the physical dynamics that cause the conflict between private property rights and public beach access in the first place. This could be achieved through increased government-funded beach renourishment. Texas law clearly holds that dry beach formed by artificial accretions belongs to the state.[171] So, if a renourishment project on the wet beach, which is all kept in trust for the public,[172] creates more dry beach by raising the ground and expanding the beach, the new dry beach would be owned by the state, which could grant a public easement thereon.[173]

The dynamics could change significantly in this regard around Galveston with the construction of the Ike Dike, a potential $57 billion dollar project designed to protect Galveston Island, Bolivar Peninsula, and the Houston Ship Channel from storm surges.[174] Part of the plan includes reinforcing the beach along the entire length of Galveston Island and Bolivar Peninsula.[175] If the final plan includes renourishing the beach or reinforcing sand dunes seaward of private property, then both erosion and avulsion could be mitigated in this region, eliminating the need for the re-establishment of new public easements altogether.[176] This could be one additional benefit of completing the Ike Dike.[177]

V. Conclusion

Whether and when the next large storm hits Texas or if the Ike Dike will be completed remains unclear. However, what is clear is that the state risks takings liability if it imposes a public easement on a private property owner’s dry beach after an avulsive event.[178] Cedar Point clearly holds that a regulation causing an invasion of a property owner’s right to exclude constitutes a per se physical taking.[179] And because the dry beach, under Texas law, is not part of the public trust, the public does not have a presumed right to access.[180] Demanding a reversal of Severance based on the belief that the OBA was intended to make all beaches public would be imprudent. Public beach proponents should, instead, focus on the enforcement of public nuisance law and more rapid reinforcement and renourishment of key stretches of the coast.

Stan M. Stanulonis

  1. Hamman Hall of Texas Coastal Ecology, Hous. Museum Nat. Sci., https://www.hmns.org/wp-content/uploads/2024/07/Accessibillity-Texas-Coastal-Ecology-Large-Print-Labels.pdf [https://perma.cc/PVN9-HUEU] (last visited Feb. 20, 2025); U.S. Army Corps of Eng’rs, Coastal Texas Protection and Restoration Feasibility Study Final Report 7 (2021) https://www.swg.usace.army.mil/Portals/26/Coastal TX Protection and Restoration FINAL Feasibility Report_20210827.pdf [https://perma.cc/RET6-7SK3].

  2. See, e.g., Padre Island National Seashore Texas, Nat’l Park Serv., https://www.nps.gov/pais/index.htm (last visited Jan. 28, 2025) [https://perma.cc/358Y-MWCX].

  3. Michael Hofrichter, Texas’s Open Beaches Act: Proposed Reforms Due to Coastal Erosion, 4 Env’t & Energy L. & Pol’y J. 147, 148 (2009).

  4. Erosion Data, Beachapedia, https://beachapedia.org/State_of_the_Beach/State_Reports/TX/Beach_Erosion [https://perma.cc/5D9U-KLL9] (last updated Sept. 2, 2015, 9:56 AM).

  5. See infra Sections II.C., III.C.

  6. Severance v. Patterson, 370 S.W.3d 705, 733 (Tex. 2012) (Medina, J., dissenting) (“[Texas has] the most comprehensive public beach access laws in the nation. Since its enactment in 1959, the Texas Open Beaches Act (‘OBA’) has provided an enforcement mechanism for the public’s common law right to access and to use Texas beaches.”).

  7. See infra Section II.C.

  8. See infra Section II.C.

  9. See infra notes 69–70 and accompanying text.

  10. See infra Section II.C.

  11. See infra Sections III.A–B.

  12. See The Institutes of Justinian with English Introduction, Translation, and Notes, 1–2, 90–91 (Thomas Collett Sandars ed., trans., 6th ed. 1878).

  13. Id. (“No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings, which are not, like the sea, subject only to the law of nations.”); see also State v. Balli, 190 S.W.2d 71, 100 (Tex. 1944) (recognizing the same principle in Texas common law).

  14. See The Institutes of Justinian, supra note 12, at 91 (“The sea-shore extends as far as the greatest winter flood runs up.”). This definition enlarges the public beach because it includes the area where the tide may reach in a storm, rather than daily high tides. Id.

  15. Luttes v. State, 324 S.W.2d 167, 169 (Tex. 1958).

  16. United States v. Pacheco, 69 U.S. (2 Wall.) 587, 590 (1864) (“By the common law, the shore of the sea, and, of course, of arms of the sea, is the land between ordinary high and low-water mark, the land over which the daily tides ebb and flow.”); Shively v. Bowlby, 152 U.S. 1, 11 (1894).

  17. Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 435 (1892).

  18. Rusty Adams, Tidal Highs & Laws: Coastal Property Rights (Tex. A&M Univ. Tex. Real Est. Rsch. Ctr.), Nov. 02, 2022, at 2–3, https://trerc.tamu.edu/article/tidal-highs-and-laws-2365/# [https://perma.cc/Z6ND-CJNX].

  19. Severance v. Patterson, 370 S.W.3d 705, 734 (Tex. 2012) (Medina, J., dissenting) (agreeing with majority that “[w]e have never held the dry beach to be encompassed in the public trust”).

  20. Adams, supra note 18, at 2; see also Luttes, 324 S.W.2d at 181, 191–92.

  21. Severance, 370 S.W.3d at 734 (Medina, J., dissenting).

  22. See infra Section II.B.1.

  23. Tex. Nat. Res. Code Ann. § 61.011(a) (West 2011); see also Hofrichter, supra note 3, at 147–48, 150.

  24. Brannan v. State, 365 S.W.3d 1, 20 (Tex. App.—Houston [1st Dist.] 2010), rev’d, 390 S.W.3d 301 (Tex. 2013).

  25. Luttes, 324 S.W.2d at 168.

  26. See id. at 189–90.

  27. Id. at 191–92.

  28. Reagan Schwartz et al., Report of the Interim Beach Study Comm., Footprints on the Sands of Time: An Evaluation of the Texas Seashore, S. Con. Res. 60-46, 60th Sess., at 22 (Tex. 1969).

  29. Tex. Nat. Res. Code Ann. §§ 61.001, 61.0183(a) (West 2011).

  30. Id. § 61.013(a).

  31. Id. § 61.0183(a).

  32. Id. § 61.001.

  33. Richard J. Elliot, The Texas Open Beaches Act: Public Rights to Beach Access, 28 Baylor L. Rev. 383, 392 (1976) (“In terms of pure substantive law, the Open Beaches Act probably creates no rights in the public which did not previously exist under the common law.”).

  34. See, e.g., Nat. Res. § 61.011(a) (stating in the Act’s opening policy statement that “if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.” (emphasis added)); id. § 61.013(c); id. § 61.014(a) (“[I]f the public has acquired a right of use or easement to or over the area by prescription, dedication, or has retained a right by virtue of continuous right in the public.” (emphasis added)).

  35. Id. § 61.024.

  36. Id. § 61.023.

  37. See, e.g., id. §§ 61.020, 61.025(a), (e).

  38. Id. § 61.020.

  39. Reagan Schwartz et. al., Report of the Interim Beach Study Comm., Footprints on the Sands of Time: An Evaluation of the Texas Seashore, S. Con. Res. 60-46, 60th Sess., at 18 (Tex. 1969).

  40. Nat. Res. § 61.025.

  41. Id. § 61.025(a).

  42. Id. (emphasis added). The statement in full is:

    If the property is in close proximity to a beach fronting the Gulf of Mexico, the purchaser is hereby advised that the public has acquired a right of use or easement to or over the area of any public beach by prescription, dedication, or presumption, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom.

    Id. The mandatory deed disclosure also includes the following notice: “OWNERS OF STRUCTURES ERECTED SEAWARD OF THE VEGETATION LINE (OR OTHER APPLICABLE EASEMENT BOUNDARY) OR THAT BECOME SEAWARD OF THE VEGETATION LINE AS A RESULT OF PROCESSES SUCH AS SHORELINE EROSION ARE SUBJECT TO A LAWSUIT BY THE STATE OF TEXAS TO REMOVE THE STRUCTURES.” Id.

  43. See infra Section II.C.

  44. See Patricia Pattison & Donald Sanders, The Dynamic Boundaries of Oceanfront Property, 40 Real Est. L.J. 5, 20 (2011); see also Mark D. Holmes, What About My Beach House? A Look at the Takings Issue as Applied to the Texas Open Beaches Act, 40 Hous. L. Rev. 119, 122–23 (2003); Laurencia Fasoyiro, Does the Open Beaches Act Seek to “Take” Private Property for Public Use Without Just Compensation?, 9 Tex. Tech Admin. L.J. 115, 128–29 (2007).

  45. Holmes, supra note 44, at 135.

  46. See infra notes 70–71 and accompanying text.

  47. See Brannan v. State, 365 S.W.3d 1, 17 (Tex. App.—Houston [1st Dist.] 2010), rev’d, 390 S.W.3d 301 (Tex. 2013).

  48. See, e.g., Feinman v. State, 717 S.W.2d 106, 110–11 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.); Arrington v. Tex. Gen. Land Office, 38 S.W.3d 764, 766 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Matcha v. Mattox ex rel. People of Tex., 711 S.W.2d 95, 100 (Tex. App.—Austin 1986, writ ref’d n.r.e.).

  49. Severance v. Patterson, 370 S.W.3d 705, 710–11 (Tex. 2012). Texas voters passed section 33 of the Texas constitution on November 3, 2009, when it appeared the Severance decision was imminent. H.R.J. Res. 102, 81st Leg., Reg. Sess. (Tex. 2009); see also HJR 102, 81st election details, Legis. Reference Libr. of Tex., https://lrl.texas.gov/legis/billsearch/amendmentdetails.cfm?legSession=81-0&billtypeDetail=HJR&billNumberDetail=102&billSuffixDetail=&amendmentID=647 [https://perma.cc/H8TP-L5NF] (last visited Mar. 28, 2025). The amendment declares an unrestricted right of the public “to use and a right of ingress to and egress from a public beach.” Tex. Const. art. I, § 33. Leading up to the election, the Houston Chronicle wrote that “[t]here is no such thing as private beach in Texas.” According to the article, the amendment was necessary to entrench the OBA in the Texas constitution to protect the public right to beach access from political majorities that could amend the OBA. Matthew Tresaugue, Texas Voters Will Decide on Beach Access, Hous. Chron. (Oct. 24, 2009), https://www.chron.com/news/houston-texas/article/Texas-voters-will-decide-on-beach-access-1725600.php [https://perma.cc/CDB6-F48Y]. If Section 33 was meant to enshrine the OBA as understood counter to Severance, could Severance be unconstitutional?

  50. Severance, 370 S.W.3d at 711.

  51. See id. at 711–12.

  52. Id. at 711, 715.

  53. Id. at 712.

  54. Id.

  55. The easement was established in county court in 1975. Id. at 711–12.

  56. Id. at 712.

  57. Id.

  58. Id. at 707, 712.

  59. Id. at 712. Severance also claimed a substantive due process violation but did not appeal its dismissal. Id.

  60. Id.

  61. Id. The Fifth Circuit dismissed the takings claim as unripe but considered the unreasonable seizure claim. Id. In the meantime, Carol Severance sold her home to the City of Galveston under a FEMA funded program, but the Fifth Circuit determined the case still presented a live controversy because of the civil penalties at stake under the OBA enforcement. Id.

  62. Id. at 708. Two additional certified questions were contingent on an affirmative answer to the rolling easement question: (1) where is the rolling easement theory derived, and (2) is the landowner entitled to just compensation when their right to use is limited by a rolling easement. Id.

  63. Id. at 721.

  64. See id. Note that this part of the Severance holding is limited to West Galveston Island only because the land grants the court used to negate the customary right were local. Id. A court may find a customary right of public access to the dry beach since time immemorial exists on other portions of Texas beaches. See id.

  65. See id. at 715–17.

  66. Id. at 716–17.

  67. Id. at 721.

  68. Id. at 713, 721; see Tex. Nat. Res. Code Ann. § 61.001(8) (West 2011).

  69. Severance, 370 S.W.3d at 711, 715.

  70. Id. at 724–25. Note that “roll” is a term of art that really means “leap” or “spring.” The court’s discomfort with the word “roll” is shown at the beginning and ending of the case where it supplements “roll” with “spring.” See, e.g., id. at 709, 731–32; id. at 733 (Willett, J., concurring). The distinction between erosion, which does shift an easement, and avulsion, which cannot, is not simply one of degree. The key distinction the court repeatedly makes is the effect an avulsion causes to an existing easement. See id. at 723–25. In an avulsion, the existing easement is entirely swallowed up by the wet sand and the surf such that to recognize it again would be not merely shifting a portion of it inland but placing the entire width of the easement anew on land where the owner had an undisputed right to exclude just the day prior. See id.

  71. Id. at 730–32.

  72. Id. at 722.

  73. Id. at 724.

  74. Id. at 712–13, 731.

  75. See, e.g., id. at 733–34 (Medina, J., dissenting) (“Texas beaches have always been open to the public. The public has used Texas beaches for transportation, commerce, and recreation continuously for nearly 200 years.”); Pedestrian Beach, LLC v. State, No. 01-17-00870-CV, 2019 WL 6204838, at *11 (Tex. App.—Houston [1st Dist.] Nov. 21, 2019, no pet.) (Keyes, J., concurring) (“Severance upended at least 150 years of settled law regarding the existence and establishment of public beaches, as pointed out by the dissents in that case.”); Id. at *16 (Goodman, J., concurring) (“Whether avulsion or erosion changes the shoreline is academic: Texas beaches are steadily shrinking at an alarming rate. . . . At that rate, courts cannot fully adjudicate claims before they become moot, leaving beach-use rights uncertain for both landowners and beachgoers.”); Gwynne Hunter, Severance v. Patterson: How Do Property Rights Move When the Dynamic Sea Meets the Static Shore?, 40 Ecology L.Q. 271, 289 (2013) (arguing that Severance was wrongly decided).

  76. See Severance, 370 S.W.3d 705 (decided in 2012).

  77. Id. at 731. The loss of public easements on dry beach would be temporary because new easements can be created on the newly formed dry beach by prescription, dedication, or presumption under common law. Tex. Nat. Res. Code Ann. § 61.001(8) (West 2011). However, could avulsive events alter the beach so frequently that their rate eclipses the requisite time for new easements to be proved?

  78. See infra Section III.A.

  79. See infra Section III.B.

  80. See infra Section III.C.

  81. See, e.g., Holmes, supra note 44, at 124 (arguing that when the attorney general enforces the OBA by removing a house, a taking would not occur); Fasoyiro, supra note 44, at 129; Hunter, supra note 75, at 286.

  82. Holmes, supra note 44, at 141–43.

  83. Id. at 125–32, 141–45.

  84. Id. at 138–39. Holmes based this premise on the presumption that “[a]ny property located between the vegetation line and the water is public domain and belongs to the public,” id. at 138, a presumption keeping with the belief that the OBA extended the public trust to the vegetation line. See supra Section II.B.

  85. Holmes, supra note 44, at 139–40 (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992)). Lucas was a Supreme Court case involving a South Carolina statute, which prohibited development on private land that was too close to the beach. See Lucas, 505 U.S. at 1007–08.

  86. Holmes, supra note 44, at 140–43.

  87. Id. at 141–42, 141 n.201; see also supra Section II.B.2 (discussing Section 61.025).

  88. Holmes, supra note 44, at 143–44.

  89. Fasoyiro, supra note 44, at 129.

  90. See id. at 120–22.

  91. Id. at 122.

  92. Id. at 123–25.

  93. Hunter, supra note 75, at 279–81 (arguing that the line between avulsion and erosion is blurry, rather than distinct). The “rolling” easement theory struck down by Severance was really about avulsion. Severance v. Patterson, 370 S.W.3d 705, 723–25 (Tex. 2012). The court still recognizes easements that travel with erosion; it just does not call them “rolling.” Id.

  94. See supra Section II.C. Hunter also predicted that the Severance holding would be limited to West Galveston Island. Hunter, supra note 75, at 295. While it is true the court’s determination that there was no right stemming from custom since time immemorial was only in regard to West Galveston Island, Severance, 370 S.W.3d at 714–17, the court did not say that in its holding that the State cannot create a public easement on dry beach where there is no right established in prescription, dedication, or custom is limited to any part of the Texas coast. See id. at 732.

  95. Hunter, supra note 75, at 282–83, 288.

  96. See supra Section III.A.

  97. See supra text accompanying notes 84, 90, 95.

  98. See supra text accompanying notes 90, 95.

  99. See supra text accompanying notes 85–92, 95.

  100. See, e.g., Arrington v. Tex. Gen. Land Off., 38 S.W.3d 764, 765–66 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding trial court properly denied damages based on claim that property was taken under OBA); Moody v. White, 593 S.W.2d 372, 379–80 (Tex. App.—Corpus Christi 1979, no pet.) (following Seaway in holding OBA is not a taking of property without compensation because public acquired right to use beach and right was not taken by State); Seaway Co. v. Att’y Gen., 375 S.W.2d 923, 930 (Tex. App.—Houston 1964, writ ref’d n.r.e.) (holding OBA does not take rights from owner of land because rights to easement that are being enforced are acquired by reason of dedication, prescription, or continuous right); Matcha v. Mattox ex rel. People of Tex., 711 S.W.2d 95, 100 (Tex. App.—Austin 1986, writ ref’d n.r.e.) (overruling takings claim because “the public acquired the complained-of-easement not by virtue of the Open Beaches Act, but instead through prescription, dedication, and custom”); Brannan v. State, 365 S.W.3d 1, 25 (Tex. App.—Houston [1st Dist.] 2010), rev’d, 390 S.W.3d 301 (Tex. 2013). Brannan was contemporary to Severance but, unlike Severance, involved a takings claim that went to the Texas Supreme Court. Brannan, 390 S.W.3d at 302. The Texas Court of Appeals for the First District had affirmed a denial of the takings claim, but the Texas Supreme Court vacated and remanded for further proceedings in light of Severance. Brannan, 365 S.W.3d at 27; Brannan, 390 S.W.3d at 302. The court of appeals then remanded the takings claim to the trial court. Brannan v. State, No. 01-08-00179-CV, 2014 WL 1778276, at *1–2 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

  101. See infra Section III.C.

  102. See, e.g., Porretto v. Tex. Gen. Land Off., 448 S.W.3d 393, 402 (Tex. 2014); Pedestrian Beach, LLC v. State, No. 01-17-00870-CV, 2019 WL 6204838, at *10 (Tex. App.—Houston [1st Dist.] Nov. 21, 2019, no pet.). These cases are directly examined below in Section III.C for the topic of procedural avoidance of takings issues.

  103. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021).

  104. Federal takings jurisprudence is authoritative whether the claim is brought under federal law or state law. See, e.g., Jim Olive Photography v. Univ. of Hous. Sys., 624 S.W.3d 764, 771 (Tex. 2021) (“Although our state takings provision is worded differently, we have described it as ‘comparable’ to the Fifth Amendment’s Just Compensation Clause. . . . And, Texas ‘case law on takings under the Texas Constitution is consistent with federal jurisprudence[]’. . . . Indeed, the parties draw no distinction between the two clauses and primarily rely on federal case law.” (quoting Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 (Tex. 2012)); Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004) (“[I]n applying the Texas constitutional provision in this case, we should look to federal jurisprudence for guidance, as we have in the past . . . .”). If anything, Texas’s Takings Clause is more protective than the federal equivalent. Jim Olive Photography, 624 S.W.3d at 780 (Busby, J., concurring) (citing Steele v. City of Houston, 603 S.W.2d 786, 789–91 (Tex. 1980) supporting that Texas’s takings protection is broader because it requires compensation not only when private property is taken but also when damaged, destroyed for public use, or applied to public use).

  105. Cedar Point, 141 S. Ct. at 2072.

  106. Id. at 2069.

  107. Id.

  108. Id. at 2069–70.

  109. Id. at 2072, 2077. That the right to invade was only temporary was immaterial to the Court; duration will only inform damages. Id. at 2074.

  110. See id. at 2074 (“The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation.” (emphasis added)).

  111. Id. at 2073.

  112. Id. at 2073–74. The facts of Nollan involved a building permit conditioned on a public easement, which the Court found to be a regulatory taking through a balancing test. Nollan v. Calif. Coastal Comm’n, 483 U.S. 825, 828, 837 (1987). But the Court in Nollan reasoned that the outright declaration of a public easement would be a taking without the need to balance interests. See id. at 831 (“Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking.”).

  113. See supra text accompanying notes 105–09.

  114. See supra text accompanying note 107.

  115. See Tex. Nat. Res. Code Ann. § 61.011(a) (West 2011).

  116. See id.

  117. See supra Section II.C.

  118. See supra Section III.B.

  119. Porretto v. Tex. Gen. Land Off., 448 S.W.3d 393, 402 (Tex. 2014). All facts of the case occurred before Severance, but the Supreme Court of Texas’s final decision was rendered in 2014. Id. at 393, 396.

  120. Id. at 396–97.

  121. Id.

  122. Id. Note the incorrectness of this representation. The state’s ownership of submerged lands for the public trust extends to the mean high-tide line, not the highest point the tide can reach in a year. See supra notes 19–22 and accompanying text.

  123. Porretto, 448 S.W.3d at 397.

  124. Id.

  125. Id. at 398. The State requested that the city change its record of ownership for certain seaward tracts, including the Porrettos’, to the State. The city did but kept accepting property taxes from the Porrettos. Id. The city changed its record of ownership back to the Porrettos in 2004. Id.

  126. Id.

  127. Id. at 402 (“And we find troubling the defendants’ continued assertion of claims it later abandoned, having been made aware of the Porrettos’ contention that those claims were impeding the sale of the Porrettos’ property. But as we have said, mere claims do not rise to the level of action requiring compensation under the Constitution. We conclude that the Porrettos are not entitled to prevail on their taking claim.”).

  128. Id. at 401.

  129. Pedestrian Beach, LLC v. State, No. 01-17-00870-CV, 2019 WL 6204838, at *1 (Tex. App.—Houston [1st Dist.] Nov. 21, 2019, no pet.).

  130. Id.

  131. Id. at *3–4; Hurricane Ike – September 2008, Nat’l Weather Serv., https://www.weather.gov/hgx/projects_ike08 [https://perma.cc/JEX8-NK4F] (last visited Feb. 5, 2025).

  132. Pedestrian Beach, 2019 WL 6204838, at *4.

  133. Id. at *11–12, *16.

  134. See id. at *10–11.

  135. Id. Pedestrian Beach highlights the impracticality of the law under Severance. See id. at *16 (Goodman, J., concurring) (“This case exemplifies the folly of holding the State responsible for pinning down an easement allowing public access to Texas beaches in the manner dictated by the majority opinion in Severance.”). Though Severance does give property owners protection in substance against state removal actions after a storm, it may actually do little for them other than keep their rights unclear for years until erosion removes their house anyway. Id. The line of vegetation and the high-tide line will not halt their movement while the litigation proceeds. Id. By the time a case reaches a trial, it will be difficult to distinguish property line shifts caused by avulsion from those caused by erosion. Id. Or by the time a case is appealed, as in Pedestrian Beach, the claims may be moot for lack of a house. See id. at *2 (majority opinion). Both the owner and the public lose in this situation—the owner because she loses the ability to fortify the house for lack of certainty that it would not be removed, and the public because the abandoned house will likely pose a hazard to the beach and pollute the environment as it slowly breaks into the sea. See id. at *16 (Goodman, J., concurring).

  136. Sheffield v. Bush, 604 F. Supp. 3d 586, 601–03 (S.D. Tex. 2022), appeal dismissed as moot sub nom. Sheffield v. Buckingham, No. 22-40350, 2023 WL 4864794 (5th Cir. July 31, 2023).

  137. Id. at 596–97. The order was titled “Temporary Order Suspending Determination of the Line of Vegetation and Suspending Enforcement of Certain Encroachments on the Public Beach.” Id. at 597.

  138. Id. While no house below the line of vegetation would be removed during the temporary order, permits to build would not be issued for such property. See id.

  139. Id. at 596–97.

  140. Id. at 602–03, 610–11.

  141. Buckingham, 2023 WL 4864794, at *2 (5th Cir. July 31, 2023); see Brief for Appellees at 34, Sheffield v. Buckingham, No. 22-40350, 2023 WL 4864794 (5th Cir. July 31, 2023).

  142. Buckingham, 2023 WL 4864794, at *2–3. Judge Ho dissented, writing, “I have real doubts as to whether the government’s actions mooting this case were sincere. . . . The majority would presume the Commissioner’s good faith. I understand and wish I could agree with my distinguished colleagues. But the circumstances give me pause.” Id. at *4 (Ho, J. dissenting).

  143. Id. at *2 (majority opinion).

  144. Id. at *2–3.

  145. Id.

  146. See id.

  147. See supra Section II.C., III.B. Buckingham does leave unanswered what would happen if the plaintiffs challenged section 61.0171 of the OBA on its face as a violation of the Fifth Amendment, rather than suing to enjoin the commissioner. See Buckingham, 2023 WL 4864794, at *2. Watch for a case that alleges this from the beginning.

  148. Further research is necessary.

  149. See supra text accompanying note 138; see also supra text accompanying notes 123–24 (statements by public officials in Porretto).

  150. S.B. 434, 88th Leg., Prior Sess. Legis. (Tex. 2023). Senate Bill 434 (SB 434) sought to amend Section 61.020. Id.; see supra text accompanying notes 38–39. All that SB 434 would have done was correctly assign the burden of proof—in a dispute to establish a public easement on private dry beach—to the state, which would have aligned this section with the law as interpreted in Severance. Id.; see also supra text accompanying note 63. Without SB 434, the Natural Resources Code presumes that dry beach belongs to the public, stating that “a showing that the area in question is located in the area from mean low tide to the line of vegetation is prima facie evidence that” the owner does not own the right to exclude and there exists a common law right of easement in favor of the public. S. B. 434, 88th Leg., Prior Sess. Legis. (Tex. 2023). This is a relic of the passage of the OBA when the dry sands were presumed to be under a public easement. See supra text accompanying notes 30–33.

  151. David Dewhurst et al., Opinion: Keep Texas Beaches Open, Hous. Chron. (Mar. 3, 2023, 1:56 PM), https://www.houstonchronicle.com/opinion/outlook/article/keep-texas-beaches-open-opinion-17811643.php?utm_medium=referral&utm_source=twitter.com&utm_campaign=sftwitter [https://perma.cc/HQ8T-43VX] (claiming that SB 434 would take the “authority . . . to define the boundaries of the public beach” away from the GLO and give it to private property owners). See also The Editorial Board, Editorial: Lawmakers, Don’t Mess with Texas Beach Access, Hous. Chron. (Mar. 14, 2023), https://www.houstonchronicle.com/opinion/editorials/article/dont-mess-with-texas-beaches-17833634.php [https://perma.cc/4C5T]; KENS 5: Your San Antonio News Source, How Senate Bill 434 Could Impact Texas Beachgoers, YouTube (Feb. 10, 2023) https://www.youtube.com/watch?v=ykw_isoWaxk [https://perma.cc/C6CW-DHGF] (“The Texas Open Beaches Act ensures the public has free and an unrestricted access to beaches along the Gulf Coast,, but portions of that act are now being threatened. . . . Senate Bill 434 . . . would make it easier for owners of beachfront properties to claim the land as theirs.”).

  152. Hurricane Ike – September 2008, supra note 131.

  153. Fed. Emergency Mgmt. Agency, Hurricane Ike Impact Report 16–17, 44 (Dec. 2008), https://www.fema.gov/pdf/hazard/hurricane/2008/ike/impact_report.pdf [https://perma.cc/4DBN-D872].

  154. H.B. 770, 81st Leg., Reg. Sess. (Tex. 2009).

  155. Id. § 1(a-1) (“A [state official] may not file a suit . . . if: (1) the line of vegetation establishing the boundary of the public beach moved as a result of a meteorological event that occurred before January 1, 2009; (2) the house was located landward of the natural line of vegetation before the meteorological event; (3) a portion of the house continues to be located landward of the line of vegetation; and (4) the house is located on a peninsula in a county with a population of more than 250,000 and less than 251,000 that borders the Gulf of Mexico.”). The bill was clearly intended for Bolivar Peninsula because Galveston County, where Bolivar Peninsula sits, was the only county in the 2000 Census with a population between 250,000 and 251,000. See Texas Counties: Population from the 2000 Census, Tex. Ass’n of Cntys., https://txcip.org/tac/census/morecountyinfo.php?MORE=1021 [https://perma.cc/W6UY-HFC4] (last visited Feb. 2, 2025).

  156. On the Beach: Bill Undermines Open Beaches, Chron., (June 5, 2009), https://www.chron.com/opinion/editorials/article/on-the-beach-bill-undermines-open-beaches-1739895.php [https://perma.cc/8SHE-7PQH].

  157. An additional legislative action that discredits the legislature’s commitment to protecting public access to the beach includes its granting to SpaceX the right to exclude the public from the beach, both the wet and the dry beach, near its launch site. Legislative Notebook: Closure of Beach for Launches Signed into Law, Hous. Chron., https://www.houstonchronicle.com/news/houston-texas/houston/article/legislative-notebook-closure-of-beach-for-4547681.php [https://perma.cc/2EQ8-9MYV] (May 24, 2013, 9:15 PM). The legislature amended the OBA in 2013 to allow the commissioner to close the public beach in the proximity of a “launch site.” H.B. 2623, 83rd Leg., Prior Sess. Legis. (Tex. 2013); Tex. Nat. Res. Code Ann. § 61.132 (West 2011). The Thirteenth Court of Appeals of Texas in Corpus Christi–Edinburg recently held that the Sierra Club and other plaintiffs have standing to bring their suit alleging that this carve-out for spaceflight launches violates the OBA and section 33 of the Texas constitution. SaveRGV v. Tex. Gen. Land Off., No. 13-22-00358-CV, 2024 WL 385656, at *1,*4–7 (Tex. App.—Corpus Christi–Edinburg Feb. 1, 2024, pet. filed); see also Brandon Lingle, Environmental, Native Groups Win Appeal in Suit Regarding SpaceX Beach Closures, San Antonio Express News (last updated Feb. 2, 2024, 6:45 PM), https://www.expressnews.com/business/article/save-rgv-appeal-win-spacex-beach-closures-18642787.php [https://perma.cc/8PGC-VYWX].

  158. See infra Section IV.B.

  159. See infra Section IV.C.

  160. See supra Section II.C.

  161. See IV Aloysius A. Leopold, Texas Practice Series, Land Titles and Title Examination 260–63 (3d ed. 2005).

  162. See supra note 112.

  163. See supra text accompanying notes 40–42.

  164. Severance v. Patterson, 370 S.W.3d 705, 726 (Tex. 2012) (“[P]utting a property owner on notice that the State may attempt to take her property for public use at some undetermined point in the future does not relieve the State from the legal requirement of proving or purchasing an easement nor from the constitutional requirement of compensation if a taking occurs.”).

  165. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2079 (2021) (“The inquiry, we later explained, is whether the permit condition bears an ‘essential nexus’ and ‘rough proportionality’ to the impact of the proposed use of the property.”).

  166. Id.

  167. See Holmes, supra note 44, at 128–29.

  168. Id.

  169. Villa Nova Resort, Inc. v. State, 711 S.W.2d. 120, 127 (Tex App.—Corpus Christi–Edinburg 1986, no writ) (noting that prescription is based on adverse possession).

  170. Severance v. Patterson, 370 S.W.3d 705, 725 (Tex. 2012); Cedar Point, 141 S. Ct. at 2088.

  171. Porretto v. Tex. Gen. Land Off., 448 S.W.3d 393, 400 (Tex. 2014) (“Finally, it is clear that the ownership of shorelands is not changed by artificially adding sand, which the City of Galveston did in its renourishment project. The State does not gain the dry beach by dumping sand on it, nor does it lose what was before the wet beach, even if the renourishment pushes the [mean high-tide] line farther seaward, which is usually the purpose of renourishment.”); Lorino v. Crawford Packing Co., 175 S.W.2d 410, 414 (Tex. 1943) (“Accretions along the shores of the Gulf of Mexico and bays which have been added by artificial means do not belong to the upland owners, but remain the property of the State.”). This is the law even though the inverse is true for natural accretions. When more dry beach forms naturally, the littoral property owner gets the land as if it is his own property expanding. See Luttes v. State, 324 S.W.2d 167, 189 (Tex. 1958).

  172. See supra Section II.A.

  173. See Porretto, 448 S.W.3d at 400; Lorino, 175 S.W.2d at 414.

  174. Erin Douglas & Emily Foxhall, Texas “Ike Dike” Coastal Barrier Project Could Cost $57 Billion with Inflation, Army Corps Says, Tex. Trib. (Sept. 28, 2023, 5:00 PM), https://www.texastribune.org/2023/09/28/texas-ike-dike-coastal-barrier-army-corps/ [https://perma.cc/9UPK-QYHL].

  175. Adam Zuvanich, Ike Dike Work Closer to Starting After $550 Million Appropriation from Texas Legislature, Hous. Pub. Media (June 22, 2023, 4:59 PM), https://www.houstonpublicmedia.org/articles/news/energy-environment/2023/06/22/455014/ike-dike-texas-legislature-550-million-appropriation/ [https://perma.cc/SW57-FBB6].

  176. For some of the proposed plans for the land barrier, see S.N. Jonkman et al., Coastal Spine System – Interim Design Report 19–24 (2015), available at https://www.tamug.edu/ikedike/images_and_documents/20150620_Coastal_spine_system-interim_design_report_v06.pdf [https://perma.cc/9P5R-D2ZN].

  177. However, consider the legal ramifications if the plan chosen is one that has the barrier elevating the highway, landward of beachfront houses, leaving these properties vulnerable to the storm surge with nowhere for the water to go. See id at 19–21.

  178. See supra Sections II.C., III.B.

  179. See supra Section III.B.

  180. See supra Section II.A.