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.

Comments

[Dr. Ed 2]

If Space X is going to profit from this exclusive use of public land, Space X ought to have to PAY FOR IT!!!

There is a lot of empty land in Texas, away from the coast, where they could launch stuff without bothering people. So yes, they should pay....

[Krayt]

So close Space X down so they leave the state! What? Why are hundreds of highly paid employees beating the shit out of you now?

Of course, the correct answer is leave the beach open, and if you get pasted by an errant launch or some chemical thing, sucks to be you.

[Rev. Arthur L. Kirkland]

That's the perspective of a disaffected right-wing contrarian with a strong faux libertarian streak.

[BillyG]

There is a lot of empty land in Texas, away from the coast, where they could launch stuff without bothering people.

No, they can't. Anything under the flight path of a rocket is at risk during launch. That's why launches in the US quickly go over water. East Coast, West Coast, Gulf. Once it's over water if it explodes it's debris is unlikely to hurt anyone.

So yes, they should pay….

Works for me.

[Bill Falcon]

You can't launch over land...it has to be on the coast for safety purposes. Unless you want to have a launch site in the middle of central asia with no habitations for hundreds of miles.

[Dan Schiavetta]

Space X has proven that there are some things government does better than private enterprise.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes -- waste money like Mercury-Gemini-Apollo.

Waste money and kill people like the Space Shuttle.

Waste money like the International Space Station, which was so useless that NASA's official policy was to de-orbit it once completed because it had no customers and was too expensive to maintain. In fact, it could have had a lo of tourists, but that was too impure for NASA and they did everything they could to avoid taking tourists' money.

And then there's the current boondoggle, the SLS Space Launch System, which is billions over budget and a decade late, even though it's reusing Space Shuttle leftover engines, and it's going to cost $4B (BILLION) per 100% expendable launch which can only happen once a year, while SpaceX's Starship is claimed to be 100% reusable and only cost $2M (MILLION) for multiple launches every year.

The only thing your comparison proves is that the government is better at wasting money and killing people.

[Sarcastr0]

Not everything people, or the government created by the people, needs an RoI. What a grey and boring world that utilitarian dystopia would be.

Apollo at it’s height was funded at 0.35 percent of GDP. Not the federal budget, GDP. So cheap like Apollo with todays GDP Is 81.6 billion. Pretty good budget, I’d say.

I don’t know the development woes of SLS, maybe it’s not worth it.

But commercial space is leaning hard on development experience and engineering personnel from by the US space program. And it still seems riskier than makes sense but for federal subsidies. And federal insurance subsidies.

Markets are not always to be worshiped for all endeavors; it gets pretty silly.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Your pathetic excuses do nothing to justify the comment that

Space X has proven that there are some things government does better than private enterprise.

Perhaps you should stick to your usual insults. You don't do very well with facts or reading comprehension. Nothing you have said makes the government look better than SpaceX.

[Stephen Lathrop]

What percent of GDP would it cost to fix ideological hyper-rationalism?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It would free up 40% of GDP. You of course already know that.

[Sarcastr0]

1, SpaceX, could not exist without space having been a public enterprise.

2. SpaceX, due to federal subsidies, is hard to call a private enterprise.
Among other things, no one in the private market would insure them with their risks.

I do like 'you should stick to your usual insults' followed by a string of empty insults.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Do you also think roads, dams, and airports would not exist without the government leading the way?

Do you also think government created the air traffic control system?

Do you also think government was what kept the radio frequency spectrum from being a chaotic mess of stations broadcasting over each other?

You statists are so blinded by your adolation of government power that you can't see anything except in terms of government power.

Private companies were forbidden from competing with NASA, just as they were forbidden from competing with the Post Office. Why would almighty all-knowing government have to ban competition if there was none, or if it was worse than the government "service"?

Idiots, the lot of you, just plain government-besotted idiots.

[Stephen Lathrop]

Idiots, the lot of you, just plain government-besotted idiots.

Looks like the ultra-rationalist problem is getting fixed in real time, while we comment.

[Sarcastr0]

The fact that you went with attacking my motives and not my points says a lot about where you come into this conversation.

How's this for an insult: if your worldview is so fragile that the idea that markets are not the bestest at everything ever, you're a child.

Markets do a lot; they don't do everything. Space travel is one of those non-market things, at least right now.

Close to the end of your comment, you attempt address my points. With a counterfactual. So already nonsense.
And one easily exploded by going back to the sheer amount of resources that went to the Apollo program - way more than private industry at the time could have brought to bear.

Note I'm not putting out anything that's projection or assertion, I'm noting facts. Your super pissed about facts.

[Dilan Esper]

I agree with Gil Scott Heron on the Apollo program.

https://www.youtube.com/watch?v=goh2x_G0ct4

[Brett Bellmore]

You mean, like suppressing the advance of technology and the economy by targeting successful entrepreneurs for bureaucratic warfare?

Because I can't think of anything off hand that NASA is doing better than SpaceX, unless you mean sending some of the taxpayers' money their way so it doesn't get wasted by the ULA.

[Dan Schiavetta]

Space X in the 2020’s is less successful than NASA was in the 1960’s at the same tasks. Even with the benefit of 60 years of technological development. Remember — NASA engineers were using slide rules.

[Michael P]

SpaceX is doing worse? How many astronauts has SpaceX burned to death on the launch pad? How many communication satellites did NASA launch in the 1960s?

[Absaroka]

Cost per kilogram to orbit, inflation adjusted to year 2000:

1980, Space Shuttle (NASA): $85k
1995, Space Shuttle (NASA): $27k
2006, Falcon 1 (SpaceX): $10k
2016, Atlas V (Nasa): $6k
2017, Falcon 9 (SpaceX): $2k
2020, Falcon Heavy, (SpaceX): $1K

Here's a graphic renditiongoing back to Apollo. SpaceX's vehicles are in the dotted area. And note that that is graphed on a log scale.

Whatever you think NASA may be better/faster/cheaper at, it isn't putting payloads in orbit.

(and this isn't to denigrate NASA - NASA in its prime was one of the greatest engineering efforts of all time; it's just breathtaking what they did. They were headed into Terra Incognita, they were launching people which makes SpaceX's launch-fix-launch tempo problematic, etc. NASA was heroic exploration, while SpaceX is boringly moving freight. Which doesn't make SpaceX's accomplishment any less noteworthy or useful.)

[Sarcastr0]

Yeah, it would be nuts if there had been no development in launch tech since the 1960s.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Then look into the SLS and explain why NASA is reusing 40 year old expendable engine technology while SpaceX is reusing engines.

ETA or explain why the government is pushing obsolete tech for its subsidized rural internet while SpaceX and Starlink are creating cheaper faster satellite internet.

[Sarcastr0]

You think it's an attack on the government that it's using well-tested off the shelf tech?

You're overdetermined as fuck.

[Absaroka]

The question is who has been advancing that tech. Pioneering reusable motors, boosters, those kinds of things...

I kinda don't get the debate. Is it that people don't like Musk because of Twitter or something?

I don't like Musk the person much either, but saying SpaceX isn't leading launch tech by a big margin is just weird.

[Sarcastr0]

Yeah, I'm not against SpaceX at all. It's R&D is legit.

I just think calling it an example of the triumph of private industry over government is wrong for multiple reasons.

There are certainly examples of private industry being superior to government efforts. There would be more, but the US is pretty good at not trying to out-develop the market (e.g. drug development)

Telecommunications is a clutch, though somewhat impure, example of private over government, even for government purposes. The DoD had their own 5G standards and tech, and the US thus didn't see the requirement to socialize those standards with phone companies since that wasn't the use case.
Enter Huawei, which quickly dominated the space, and then leveraged the innovative engine of the private sector to quickly develop standards and tech that were superior to the government version.

[Absaroka]

"I just think calling it an example of the triumph of private industry over government is wrong for multiple reasons."

Sure. NASA then and SpaceX were/are both innovative, but they aren't really playing the same game. But I bet Apollo engineers would feel right at home at SpaceX and vice versa.

There is fair criticism of NASA then and NASA now, although my outsider's sense is that you'd have to look at NASA piece by piece - some seem to be doing better than others.

And, in fairness, you can say 'Hey, NASA should have just canceled all their big rocket stuff 5 years ago and gone 100% SpaceX', but that would have had, and has, its risks as well. Whether SpaceX will continue as it has isn't a given, and markets are rarely worse off with competition. It also wouldn't surprise me if canceling BigSpace contracts would have been acceptable in congress, lobbying being what it is.

[Sarcastr0]

Oh yeah, I took a space policy course that was 3/4 criticism of NASA that hit home, IMO. (The prof later became Trump's space advisor; that's what you get when you go to school in DC).
Basically, NASA kept chasing that Apollo dragon until like Dan Goldin in 1992.
They kept pushing for big, costly, flashy, tentpole programs.
Space Shuttle, Constellation, Space Station Freedom. But the Space Race was won; we didn't have the nationalistic-competitive drive to make that kind of outlay. So the Space Shuttle's development cost gets cut and cut until it's operations cost and risks rendered it's initial purpose defunct. Same with the other two.
NASA is doing better, and actually innovated a cost-time estimate system for the Webb telescope that is the gold standard for non-defense big infrastructure programs today.

But that's where I left the biz; I have no idea what has happened since about 2016. But I do know you don't shake that kind of culture immediately. Especially with how aged NASA's engineering population was - old dogs/new tricks and all that.

Anyhow, point is NASA is absolutely not above reproach, especially nowadays. But that can be true, while it is also true that manned space is not a place that lends itself as an example of free market triumphs quite yet. Not if you want to stick to the facts.

Unmanned space, i.e. communications satellites...now that's a better story. But SpaceX is sexier.

[Stephen Lathrop]

Absaroka, I do have questions about SpaceX technical leadership. One way they get economy is by modular increments—adding clustered smaller rocket engines. Their heavy lifter relies on 27 of them. That suggests a statistically more-likely risk of engine failure—sort of like the reason very few giant wooden hotels are left unburned today—they were once commonplace, but a hundred guest rooms in a wooden structure . . .

I assume you know that the latest heavy lifter from SpaceX is neither designed nor intended for human crews. I wonder if that also implies non-comparable cost statistics.

Not saying there is anything wrong with picking out a viable business niche and optimizing for it, of course.

[Absaroka]

"That suggests a statistically more-likely risk of engine failure"

Generally speaking, that kind of facile analysis has no place in engineering.

I don't have the knowledge to opine one way or another. I will note that one of their launches lost some engines and the flight proceeded normally (for a while at least, if I'm recalling right it was aborted for some reason other than losing some of the engines). Redundancy is one way to make systems reliable, even if the individual components aren't. Losing *an* engine can be better than losing *the* engine. From what very little I know of rocket engines, it might be easier to make small ones reliable. IIRC the sheer scale of the Saturn V engines led to difficulties - the larger the combustion chamber, the more havoc resonance can cause, or something like that. But not really my field; I just observe the results, and Falcon launches are becoming boringly routine.

[Stephen Lathrop]

Absaroka, your reply seems to ignore one of the historically likely modes of rocket engine failure, the one involving explosions. Redundancy achieved by orderly shut-down may be dandy, but if the price to get it is redundant multiplication of explosions, not so much. And of course, if such explosions are relatively infrequent, they might multiply that particular hazard several-fold, and still not show up in a short series of tests.

What about the point touching on non-comparable statistics for rockets not intended to launch human crews?

[Absaroka]

"the one involving explosions"

Right, like the long history of explosions in the development of the F-1 (that's the Saturn V engine) related to harmonics in the large combustion chamber. But despite the difficulties posed by the large size, they eventually figured it out, and in what - less than 20? - Apollo launches they didn't have any engine failures - with five engines per launch, that's 100 engine launches with no failures.

SpaceX has launched Falcons 304 times to date. The 1st flight was a partial failure - it successfully reached the space station but failed on the second part of its mission, and the 9th, which blew up shortly after launch, like the Space Shuttle. That is 295 successful launches in a row. Many/most of those are reusing engines and boosters, BTW - one booster has flown 20 times so far - as many times as there were Saturn V launches. Lessee - 295*9 = 2655 successful engine launches (actually more than that, Falcon Heavy has more than 9 engines).

From this data, you deduce that having 9 engines must make Falcon less reliable than Saturn V with 5 engines. That is classic Lathrop - deduce a private reality out of thin air and stick with those deductions despite the evidence.

"rockets not intended to launch human crews?"

You are aware that that NASA is launching astronauts on top of Falcons? Since it is the most reliable rocket ever, why would you want them launched on less reliable platforms?

[Stephen Lathrop]

Generally speaking, that kind of facile analysis has no place in engineering.

Absaroka, just speaking generally, in college I had a roommate who went by, "Eric Random." He was a terrific poker player. One thing he did was scout the graduate studies bulletin boards for folks in engineering and the hard sciences—folks likely to say belittling stuff like your quote above. Random loved their confidence in un-facile analysis. He wrapped that confidence around their necks at the poker table, cleaned them out again and again, and then went back to post another bulletin board come-on for a nice soft game with undergraduate arts majors.

[Absaroka]

I don't play poker, because I haven't studied it and profess no expertise at it. Stick to what you know is my motto. That's something you might consider.

[Stephen Lathrop]

Bellmore, I had not thought you ranked government contractors so highly among, "successful entrepreneurs." How is Musk's entrepreneurial management of ex-Twitter coming along? Why has Tesla warned investors of a tough year ahead for 2024?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Government is doing better?

It's amazing how much money guns and jails can waste.

[tkamenick]

Not a single comment yet on the actual legal question.

I think it's an interesting one. It seems unlikely that temporary closures would violate the clause. Are the beaches ever closed for other reasons? Are they closed every night like most parks? Can portions of them be booked for private events?

[Absaroka]

"It seems unlikely that temporary closures would violate the clause."

I'd like to hear more about that as well. We use easements to access our property, and other people have easements across us. As a practical matter, if a road is going to remain passable there will be maintenance closures and so on.

That of course benefits the easement holder as well, but what if Eric holds an easement across Larry's land, and Larry wants to temporarily close the road to install a culvert, while Eric says 'I don't need a culvert, I have a jeep'. Or Larry wants to close it temporarily because a crane is lifting things across it to build Larry's house, or whatever. The notion that an easement holder's rights are absolute enough they can veto any closure at all seems pretty odd.

(as a matter of politics, I think this kind of absolutism by the Sierra Club will prove to be a strategic mistake. People like rural internet, and if SpaceX pulls off the cell-phones-from-anywhere project they are working on that will be wildly popular as well. I think the population at large will prefer closing a beach 5% of the year to forgoing orbital traffic. And that is before the national security flag gets waved.)

[Stephen Lathrop]

The law being what it is, if some policy consideration leads to beach closures to benefit SpaceX, does that erode protections for the rest of the beaches, for an assortment of allegedly analogous reasons?

[Dilan Esper]

Listen to this man! Keep the beaches open!

https://www.youtube.com/watch?v=fGoekw7e-3U