Open Beaches Constitutional Amendment Challenge to Closing Beaches for SpaceX Launches Can Go Forward

From yesterday's decision in SaveRGV, Sierra Club & Carrizo/Comecrudo Nation of Texas v. Texas General Land Office, decided yesterday by the Texas Court of Appeals (Corpus Christi-Edinburg), in an opinion by Justice Clarissa Silva, joined by Chief Justice Dori Contreras and Justice Nora Longoria:

The Texas Constitution provides that "[t]he public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public." This provision, commonly referred to as the Open Beaches Amendment, permits the legislature to "enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments" but "does not create a private right of enforcement." In 2013, the legislature enacted Texas Natural Resources Code § 61.132, which permits the commissioners in a county bordering the Gulf of Mexico or its tidewater to temporarily close a beach in reasonable proximity to a space flight launch site or access points to the beach in the county on launch dates.

According to SaveRGV's first amended petition, following the passage of § 61.132, appellees have allowed the closure of Boca Chica Beach in Cameron County for up to 450 hours per year to allow Space Exploration Technologies Corporation (SpaceX) to conduct activities related to space flight launches. Such closures prompted SaveRGV to file a suit seeking declaratory judgment that § 61.132 violates the Open Beaches Amendment and is thus unconstitutional….

The court rejected various procedural challenges, and remanded to the trial court to consider the merits. The court noted that it wasn't deciding what substantive test should be applied under the Open Beaches Amendment to evaluate beach closures. I look forward to seeing how open beaches jurisprudence evolves in the Texas courts—not a constitutional inquiry that you hear about every day.