20th Annual Robert C. Sneed TEXAS LAND TITLE INSTITUTE TEXAS OPEN BEACHES ACT December 2-3, 2010 Hyatt Regency Hill Country Resort & Spa San Antonio Mr. Daryl W. Bailey Looper Reed & McGraw, P.C. 1300 Post Oak Blvd. Suite 2000 Houston, Texas 77056 (713) 986-7125 396008.1 Daryl W. Bailey Trial Lawyer/Director Daryl represents plaintiffs and defendants in trials, appeals, mediation and arbitration. As a trial lawyer, Daryl has successfully obtained favorable judgments for his clients through jury verdicts and bench trials. As a counselor, Daryl has been instrumental in assisting clients in resolving their disputes through mediation-formal and informal. Daryl’s practice in commercial, business and general civil litigation includes real estate, construction and employment litigation. He is particularly accomplished in disputes related to real estate and claims against title insurance companies and their insureds. Through a wide variety of representations of clients, 1300 Post Oak Blvd. Suite 2000 Daryl has gained substantial experience in cases involving multiple parties, Houston, Texas 77056 contracts, fraud, business torts, DTPA, UCC, trade secrets, employer/ T: (713) 986-7000 employee contracts (including non-competes), sexual harassment and F: (713) 986-7100 [email protected] other discrimination claims, landlord/tenant, and lien filings, contractors and subcontractors rights and eminent domain / condemnation. Daryl’s appellate practice includes a case he argued before the Texas Supreme Court which the Texas Lawyer ranked as one of the top 50 cases that had a significant impact on Texas law. PROFESSIONAL ACTIVITIES, MEMBERSHIPS & AFFILIATIONS • State Bar of Texas (Member: Appellate Section; Construction Section; Labor & Employment Law Section; Litigation Section; Real Estate, Trust & Probate Section). • U.S. Court of Appeals (5th Circuit). • U.S. District Court (Southern District of Texas). • Houston Bar Association (Member: Appellate Section; Construction Section; Labor & Employment Law Section; Litigation Section; Real Estate Section). • Texas Land Title Association (Judiciary Committee, Institute Committee). PUBLICATIONS AND SPEECHES • Author, “Storm of Litigation Brews Over Open Beach Exemption”, Houston Chronicle, June 26, 2009, http://www.chron.com/disp/storympl/ editorial/outlook/6499969.html • Author, “Title insurance - Think of it as a horse of a different color”, Volume 36, Number 19, September 16th - 22nd, 2005, Edition of the Houston Business Journal. • Co-Author and Speaker: “Texas Title Examination” Lorman, 2001, 2002. • Co-Author and Speaker: “Title Law in Texas,” N.B.I., 1998. Pursuing Unrivaled Results © 2010 Looper Reed & McGraw, P.C. Daryl W. Bailey REPORTED CASES Trial Lawyer/Director • Moss v. Tennant, 722 S.W.2d 762 (Tex. App. -- Houston [14th Dist.] 1986, 1300 Post Oak Blvd. Suite 2000 writ ref’d n.r.e.) Houston, Texas 77056 • Ojeda De Toca v. Wise, 748 S.W.2d 449 (Tex. 1988) T: (713) 986-7000 • Manhattan Construction v. Hood Lanco, Inc., et al., 762 S.W.2d 617 (Tex. F: (713) 986-7100 App. -- Houston [14th Dist.] 1988, writ denied) [email protected] • Martinka v. Commonwealth Land Title Insurance Company, 836 S.W.2d 773 (Tex. App. -- Houston [1st Dist.] 1992, writ denied) • First National Petroleum Corp. v. Lloyd, 908 S.W.2d 23 (Tex. App. -- Houston [1st Dist.] 1995, no writ) EDUCATION • 1979 - B.A., Michigan State University • 1986 - J.D., South Texas College of Law HONORS • Daryl’s peers have rated his legal abilities from Very High to Preeminent and his general ethics as Very High resulting in an AV rating by Martindale-Hubbell. • Selected as a Super Lawyer by Texas Monthly and Law & Politics magazine, 2006, 2009, 2010 • Listed in Who’s Who in American Law. • Listed in Who’s Who Among Top Executives. Pursuing Unrivaled Results © 2010 Looper Reed & McGraw, P.C. TABLE OF CONTENTS Table of Contents ........................................................................................................ i Texas Open Beaches Act ............................................................................................................ 1 I. Historical View ....................................................................................................................... 1 II. Law in Texas ............................................................................................................................ 2 A. Texas Open Beaches Act .................................................................................. 2 i. Enforcement of the TOBA……………………………………. 4 ii. The TOBA Amendment……………………………………… 4 iii. Constitutional Amendment Adopting the Open Beach Act….. 5 B. Boundary Issues …………………………………………………….. 5 i. The Rolling Easement Doctrine……………………………….…. 6 C. Severance v. Patterson…………………………………………………. 7 i. The Case …………………………………………………………. 7 ii. The Decision…………………………………………………….. 9 iii. The Dissenting Opinion ………………………………………. 10 iv. Consequences………………………………………………….. 12 III. Stop the Beach Renourishment, Inc. v. Florida Dept. of EPA ........................ 13 IV. Conclusion ....................................................................................................... 15 i 396008.1 TEXAS OPEN BEACHES ACT I. Historical View The State of Texas has 367 miles of coastline along the Gulf of Mexico.1 Historically, this coastal area was used for roads, commerce and public recreation. The public's use of Gulf Coast beaches, even driving and parking on them, was based on the assumption they were owned and controlled by the State.2 However, as the Texas coastline continued to develop, it became crucial to more clearly regulate the public access to beaches. Initially, the impetus for regulating Texas beaches was less related to public use or recreation, but, instead, directly related to mineral right ownership.3 Many beachfront property owners wanted to keep the public away from their property in favor of leasing their land for mineral exploration. Under Texas common law, the boundary between private and public beachfront or lakefront property was determined by the natural line of vegetation.4 On public beaches, construction was not allowed and the public had unrestricted access.5 In the seminal case of Luttes vs. State,6 the Texas Supreme Court defined the boundary line separating beachfront private property from state owned beaches along the Gulf.7 Luttes alleged that due to accretion, his boundary line moved and, therefore, he obtained title to certain 1 Matthew Tresaugue & Harvey Rice, Beach Homeowners Win Ruling, Houston Chron., Nov. 5, 2010, available at http://www.chron.com/disp/story.mpl/metropolitan/7281075.html; See also Texas Beaches, http://www.texasbeaches.us/index5.html (last visited Nov. 12, 2010). 2 EDDIE R. FISHER & ANGELA L. SUNLEY, A LINE IN THE SAND: BALANCING THE TEXAS OPEN BEACHES ACT AND COASTAL DEVELOPMENT (2007), http://www.csc.noaa.gov/cz/CZ07_Proceedings/PDFs/Tuesday_ Abstracts/ 2658. Fisher.pdf. 3 Id. 4 Id. 5 Id. 6 Luttes v. State, 324 S.W.2d 167 (Tex. 1958). 7 Severance v. Patterson, 2010 WL 4371438, at *6 (Tex. 2010). 2010 Texas Land Title Institute Page 1 Texas Open Beaches Act 396008.1 mudflats located between the Texas mainland and Padre Island.8 The State disagreed and argued that the mudflats were State property because tidal waters still covered the mudflats, and, therefore, the mudflats were actually part of the seashore.9 According to the State, the relevant boundary line was the highest point reached by tidal waters on any one occasion.10 In deciding the case the Texas Supreme Court created legal precedent, holding that any area located seaward of the “Mean High Tide” (MHT) belonged to the State as part of the public trust, and any land landward of the MHT belonged to the private owner.11 The Court defined MHT as the average of highest daily water computed over the regular tidal cycle of 18.6 years.12 As a result of the Luttes decision, beachfront landowners constructed fences and barriers restricting vehicular and public access to coastal beaches.13 As might have been expected, Texans were unsatisfied.14 In order to end this public discontent and protect public access to the beaches, the State of Texas enacted the Texas Open Beaches Act in 1959.15 II. Law in Texas A. Texas Open Beaches Act Enacted in 1959, the Texas Open Beaches Act (“TOBA”)16 codifies the public’s pre- existing right of free and unrestricted access to public beaches on the Gulf of Mexico.17 The 8 Luttes, 324 S.W.2d at 169. 9 Id. 10 Id. 11 Luttes, 324 S.W.2d at 187. 12 Id. 13 EDDIE R. FISHER & ANGELA L. SUNLEY, A LINE IN THE SAND: BALANCING THE TEXAS OPEN BEACHES ACT AND COASTAL DEVELOPMENT (2007), http://www.csc.noaa.gov/cz/CZ07_Proceedings/PDFs/Tuesday_ Abstracts/ 2658. Fisher.pdf. 14 Id. 15 Id. 16 TEX. NAT. RES. CODE Ch. 61, Acts of the 56th Legislature, 2nd Called Session, 1959, Chapter 19, page 108. (Codified in 1977 as Subchapter B, Chapter 61, Texas Natural Resources Code). 17 Id. §61.011. 2010 Texas Land Title Institute Page 2 Texas Open Beaches Act 396008.1 TOBA establishes an easement in favor of the public to access public beaches by prescription or dedication, or where a right of public use pre-exists.18 The TOBA defines the State’s beach (or public beach) as any beach area, whether publicly or privately owned, inland from the line of the coast’s Mean Low Tide (“MLT”) to the line of natural vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use or easement to or over the area by prescription, dedication, presumption, or has retained a right