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Open Beaches Act: A Texas legal tradition worth defending

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Contact: jim suydam
EDITORIAL — December 07, 2010

J. David Breemer, the California attorney who worked - pro bono, he reminds us - to end public access to West Galveston beaches, isn't feeling very appreciated.

It seems some Texans who enjoy fishing, surfing or just splashing in the waves at one of the state's premiere beaches don't understand how much he has helped them. Even some beachfront property owners don't seem to appreciate Breemer's efforts, now that they will miss out on $40 million to rebuild the beaches that once had public access. 

Breemer, a property rights advocate, has done more to hurt the private property owners in West Galveston than anything he's accused government "bullies" of doing. And that's an irony not lost on the folks in Galveston. 

They know today's General Land Office has done more to preserve public beaches - and the private properties that depend on those beaches - than anyone.  As Commissioner, I've fought for millions in state funding to build shoreline protection structures and renourish eroded beaches. Without this infusion of state funding - through the Legislature and the Land Office's Coastal Erosion Planning and Response Act Program - there won't be private land left to own in Galveston in the long run. 

I almost felt bad for Breemer as I read his recent op-ed explaining how helpful he's been. 

Texans, you see, can be such a hard-headed lot. Most of us ignorantly thought passing the Texas Open Beaches Act in 1959, and voting overwhelmingly to enshrine this right in the state's Constitution in 2009, would keep the beaches open. With this public access came opportunities for public money. 

The General Land Office didn't create the Open Beaches Act; the Legislature, elected by the people of Texas did. And those Texans ratified that same law into the Constitution just last year. Enforcing the Open Beaches Act is my responsibility to the people of Texas as their elected Land Commissioner. Contrary to Breemer's assertion, the Open Beaches Act is not an "illegal rolling scheme" but still the law of the land. That law is now under question in West Galveston.  

Breemer's assertion that the state is taking away coastal property simply because a storm blows the grass away is insulting to the intelligence of Texans. The state isn't taking away anyone's property on the coast. Mother Nature is. Believe me, there is no profit in it for me, an elected official, to litigate against my constituents. 

In fact, since I've taken office, I've only once initiated litigation to remove someone's house from the beach. Even in the case of Breemer's client, San Diego resident Carol Severance, I simply sent her a letter letting her know that her rental property might be in violation of the Open Beaches Act and subject to removal. Then I offered her up to $50,000 in state funding to help move it off the beach. 

I've found that working with property owners has moved more houses off the beach than suing them. Since taking office in 2003, I've offered up to $50,000 in state funding to help pay private property owners to move their houses, and 16 have taken me up on the offer. 

West Galveston Island property owners, it should be noted, never opposed the idea of a rolling public easement when sand was getting put on the beach or sand socks were being placed. Breemer , sitting in his Sacramento office, had another view. 

Things get complicated quick in Breemer's legal mumbo-jumbo. But Texans know this simple fact: The beach is where it is. That's why the rolling public easement is at the heart of the Open Beaches Act.  

Decades of case law in the Texas courts affirm the rolling beach easement. The Legislature has updated and amended the law and approved how the Land Office administers it. The Open Beaches Act isn't an illegal scheme - it is a legal tradition in Texas. 

The Open Beaches Act isn't dead. Breemer's brag that the "law won" for his side is deceptive. The Texas Supreme Court affirmed that submerged lands, between mean low tide and the mean high water mark, are owned by the State. Breemer lost that argument. The Supreme Court opined that a rolling beach easement does exist in Texas common law. Breemer lost that argument too, which answers, in part, two of the three questions the Fifth Circuit had for the Supreme Court. 

The only thing I'm certain about after reading this most recent Supreme Court opinion is that this litigation will go on for a long while.  

But now thanks to Breemer's big win on behalf of his San Diego-based client, a lot of West Galveston Island property will - sooner rather than later - wash into the Gulf of Mexico.

 JERRY PATTERSON was elected Commissioner of the Texas General Land Office in 2002 and again in 2006 and 2010. A former Marine and Vietnam Veteran, Patterson is the author of Senate Bill 60, the Concealed Handgun Law.


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