Texas Supreme Court tries to play King Canute

Legend has it that King Canute of Denmark demonstrated his limitations to his courtiers by sitting at the edge of the sea and commanding the tide to stop. When the water inevitably continued to rise and dampened his feet, he contrasted his limited powers with the unlimited powers of God.

In an opinion announced this week, the Texas Supreme Court has asserted its power to stop nature and the oceans from redrawing property lines. The Court held that while hurricanes may change the physical location of beaches that will not change the location of the public portion of the beaches as they existed prior to the hurricane. Of course, those public portions may well be underwater permanently as a result of the storms. The upshot of this ruling is that the State of Texas will not be able to enforce its Open Beaches Act which had been used to reestablish public access in the wake of hurricanes even if it meant requiring landowners to demolish structures that were encroaching on the water’s edge post-storm.

West Galveston beachfront after Hurricane Ike

This was the rehearing of the Court’s initial decision which sparked an outcry from state officials and environmental groups alike. The result was the same though the three dissenting judges voiced strong objections.

The Court gives the State two options: (i) reacquire the public beach access easement by paying the landowner or (ii) relinquish public beach access in the affected area. Given the cost of purchasing such easements and the dynamic nature of beachfront ecosystems, over time this ruling is likely to dramatically restrict the ability of Texas residents to access the oceanfront.

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