The Texas Supreme Court has dramatically rolled back the scope of the public trust doctrine as it applies to Texas beaches in a 5-3 ruling by the all-Republican court. This means that the public’s right to enjoy shorefront on the Gulf of Mexico will be sharply curtailed in the years ahead -- a major victory for private property fundamentalists. Judicial activism, anyone?
The court’s decision focused on the public's access rights to beaches when hurricanes or storms have eroded a public strip of beach. Should the public be prohibited from using the "new beach" that might now be situated on privately owned land? Or should there be a “rolling easement” that recognizes public access no matter how natural forces remake the actual shoreline?
For decades, the Texas state public trust doctrine gave a rolling easement that assured public access to beaches. That access right did not inhere in a particular strip of land, but in a general right of access. Now, the court ruled, reversing decades of established law, if a storm washes away the public beach, “the land encumbered by the easement is lost to the public trust, along with the easement attached to that land.” As reported by the Texas Observer, “the court dismissed the 180-year-old custom of public enjoyment of Texas beaches as ‘unsupported by historic jurisprudence’ and ‘a limitation on private property rights’.”
State attorney general Greg Abbott noted: “With the stroke of a pen, a divided court has effectively eliminated the public's rights on the dry beach….The majority could only cite—nothing. Not a single case, rule, precedent, principle, empirical study, scientific review, or anything else.” Even the Galveston Chamber of Commerce joined the attorney general in seeking to uphold the historic understanding of the public trust doctrine.