This was originally posted as a series on Live Oaks in June 2009. Comments have not been migrated.
This November, Texans will have an opportunity to express their support for property rights. An amendment to the Texas Constitution is on the ballot, and while the outcome is not likely to have any significant short-term impact, Texans can make a significant statement. Last week, legislators approved a ballot measure that will make public access to Texas beaches a part of the state Constitution.
Such access is currently guaranteed under the Texas Open Beaches Act (TOBA), which defines the area between the permanent vegetation line and the water as “public property”. As a result, when storms and erosion move the vegetation line, private home owners can suddenly find themselves living on “public property” and they are forced to vacate their homes.
Supporters of TOBA claim that the public has a “right” to beach access. But they fail to explain the source of this alleged right, or why that “right” supersedes the rights of those who rightfully own the property. The web site for a group called the Texas Open Beach Advocates (TOBA II) tries to make an argument based on common law:
The late Bob Eckerdt saw what development, and the power of development money, could do to undermine the ability of the average citizen to enjoy this most basic and traditional right to some of the best of God’s creation. He wrote the Texas Open Beaches Act. This was not a new law, but only served to codify what was already common law. In other words, the beaches were highways that the public used since “time immemorial.” Nobody could block off the beaches or hinder access to them the same way landowners could not block access to a cattle trail, or other highway that the public had always used for trade, commerce, and transportation.
This might seem to be a reasonable argument. On the surface, it doesn’t seem to differ from John Locke’s identification of the source of property rights in The Second Treatise on Government:
Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left in it, he hath mixed his labour with, and joined it to something that is his own, and thereby makes it his property.
Mixing one’s labor with material objects, according to Locke, gives that object value. An apple on an unowned tree is of no value until it is picked, and the individual who picks that apple gives it value by his labor. That apple becomes the picker’s by virtue of his labor. The same holds true of any unowned property. The mineral resources of Mars, for example, are sitting there waiting for anyone who can use them. The individual who can figure out how to get those minerals owns them by virtue of his efforts.
Superficially, this is the argument put forth by TOBA II–“the public” has long made use of Texas beaches, and therefore, “the public” owns those beaches. But this argument fails on two counts.
First, there is no such entity as “the public”. “The public”, in this context, consists of all Texans. To say that all Texans own the beaches is to say that nobody owns the beaches.
Second, use alone is insufficient to claim ownership. Using a beach adds no value to it–a day of frolicking in the sand does not bring additional value to that beach. (Indeed, a consistent environmentalist would argue that the value of the beach has been degraded by man’s use of it.) If use alone were a sufficient claim to ownership, then I could claim ownership of the golf course I play, or the store I patronize, or even the Internet.
The owners of beachfront property are the victims of a gross injustice. Texans can take a step towards rectifying that situation by rejecting the amendment.
Part 2
Following Hurricane Ike the Texas Land Commission announced that many beachfront homes were now sitting on “public property”. The owners of those homes would be forced to cede their property to the state.
When the home owners complained about this injustice, defenders of the Texas Open Beaches Act (TOBA) responded that the home owners had been warned about this possibility. In other words, since the home owners have been warned that an injustice might occur, they have no reason to complain when that injustice does in fact transpire.
Defenders of TOBA also argue that tax dollars are used to provide infrastructure–such as roads, water, and sanitation–for the beachfront properties. Therefore, the argument goes, if “the public” must pay for such things, “the public” has a right to beach access.
This amounts to nothing more than using one violation of property rights to justify another violation of property rights. That is, since tax payers are compelled to finance infrastructure, it is justified to force beachfront property owners to cede their property to the state. There is no rational justification for this gross injustice.
The owners of beachfront property are as much a part of “the public” as anyone else. Yet, they are forced to play the role of sacrificial victims simply because of the consequences of a storm. They have not violated the rights of anyone, and yet they are now declared criminals.
The long term solution is to privatize the roads, water, and other infrastructure. If individuals wish to build along the ocean, they have a right to do so. They do not have a right to force others to pay for roads, sanitation, or repairing their homes. The state government should limit itself to its proper function–protecting individual rights. This applies to taxpayers as well as beachfront property owners.
Some may argue that because the shoreline has shifted, and some beachfront property is now underwater, that land should now revert to the state. But this ignores a principle in common law–riparian rights. According to Wikipedia:
Riparian rights (or simply riparian rights) is a system of allocating water among those who possess land about its source. It has its origins in English common law. Riparian rights exist in many countries with a common law heritage, such as Canada, Australia, and states in the eastern United States. Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it.
Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon “reasonable use” as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.
While “reasonable use” is a vague term, it is generally taken that a riparian owner may not interfere with the right of other riparian owners to use their property. For example, one owner may not construct a dock that extends onto the property of another owner.
More importantly in the present context, it is often recognized that the owner of land adjacent to a waterway also owns the land under the water to the middle of the waterway. For example, the Michigan Supreme Court has recognized this principle as applying to both rivers and lakes (with the exception of the Great Lakes).
In general, this is an appropriate and just principle. However, I would argue that extending riparian rights to the middle of a large body of water (such as the Great Lakes or the oceans) is not proper. The owner of the adjacent property has no legitimate claim to the land miles from shore, unless he has taken action to enhance the value of that property. Exactly where the line should be drawn is not the issue here–the principle of recognizing and protecting property rights is.
Thus, even if the land owned by beachfront property owners is submerged by storms or erosion, riparian rights recognize ownership of that land. Use of that land may be more difficult and expensive, but that fact is not a legitimate concern of the state. The state’s only proper role in this issue is to identify, define, and protect the rights of property owners.
Part 3
Those who defend the Texas Open Beaches Act (TOBA) offer several arguments to justify controlling or seizing private property. I have addressed the most common in the previous two days. The last argument I will address is nothing more than blatant paternalism.
When beachfront property owners questioned the justice of TOBA in the aftermath of Hurricane Ike, the author of TOBA–A.R. “Babe” Schwartz–told the Dallas Morning News:
We’re talking about damn fools that have built houses on the edge of the sea for as long as man could remember and against every advice anyone has given.
Jim Blackburn, an environmental attorney and coastal expert based in Houston, echoed this sentiment:
We have to protect people from themselves and certainly from developers.
Both “Babe” and Blackburn believe that individuals should be prohibited from acting on their own judgment. Neither likes the decisions that others make, and they believe that they are justified to use force to prevent individuals from acting on those decisions.
If one accepts this premise, then every human activity is subject to government regulation and control. For example, sex can lead to unwanted pregnancies, which is certainly not good for those involved. Would “Babe” and Blackburn suggest that the government regulate sex to protect individuals from themselves?
The fact is, each individual has a moral right to act according to his own judgment, so long as he respects the mutual rights of others. He cannot compel others to act contrary to their judgment, just as they cannot compel him to act contrary to his.
But nannies like “Babe” and Blackburn do not like this. They provide any number of arguments to justify their position–such as public spending on infrastructure. But underlying their arguments is one motivation–power. They seek the power to control the lives of other individuals. They do not believe that individuals have a right to their own lives, liberty, property, or pursuit of happiness.
Morally, “Babe” and Blackburn believe that individuals should place the “public good” before their own interests and desires. More fundamentally, they believe that individuals should acquiesce to the judgment of others. They believe that the individual must be subservient to the group–both physically and intellectually. They believe that those who do not do so “voluntarily” may properly be forced to do so.
This November Texans will have an opportunity to reject these ideas when they vote to make TOBA a part of the state Constitution. Texans will have an opportunity to reject the idea that their lives belong to the state. It will be a small step, but it will be an important step.
Part 4
In a story filled with special deals, hypocrisy, and political intrigue, the Chronicle reports that Texas legislators have approved an exemption to the Texas Open Beaches Act (TOBA)–for one of their own. State Rep. Wayne Christian received an exemption to TOBA that will allow him to rebuild his home on Bolivar Peninsula.
The Texas Constitution prohibits bills that target a specific area of the state. Lawmakers sidestep this prohibition through a process called “bracketing”–they define the area without specifically naming it. The exemption, which was attached as an amendment to another bill, was carefully worded to apply only to Bolivar:
The amendment “brackets” Bolivar by saying that it applies to houses on a peninsula in a county with more than 250,000 population and less than 251,000 population. The only area fitting that description is Bolivar.
The sponsor of the amendment, Rep. Mike “Tuffy” Hamilton, R-Mauriceville, defended his actions:
Yes it does benefit (Christian), and I know it does, but I did it 99 percent for the benefit of my constituents.
Christian also denied any wrong doing:
If I were to pass a law that affected only Wayne Christian, that would be a conflict.
This is not an unethical, deceptive method of doing anything. This is the way it’s been ever since government was invented.
Contrary to what Christian thinks, such legislation is unethical. Many property owners on Galveston Island are in the same situation as Christian, yet the legislation provides them no relief. Instead, the state will use force to seize their property while Christian and his neighbors can rebuild. If it is proper for property owners on Bolivar to rebuild (which it is), it is equally proper for property owners on Galveston to rebuild.
Texas Land Commissioner Jerry Patterson, who is responsible for enforcing TOBA, has asked Gov. Rick Perry to veto the bill when it reaches his desk. Patterson has stated that he will not enforce the bill it is signed, and legislators will have to impeach him.
“I don’t think building houses on the beach, with the waters of the Gulf beneath them, is a good idea or good public policy,” Patterson said.
As I have previously argued, this isn’t a decision for Patterson, or any other lawmaker to decide. This is a decision properly left to the property owners. And Patterson isn’t content with legislators making arbitrary decisions–he wants to get in on the action too by unilaterally deciding which laws he will enforce and which he won’t enforce.
Patterson’s position would be admirable if he was refusing to enforce an unjust law. However, the exemption, while clearly reeking of political favoritism, does grant some measure of justice. It will provide some recognition of property rights to Bolivar property owners. While the rights of property owners on Galveston remain threatened, Patterson wishes to extend that threat to Bolivar.
Government’s purpose is the protection of individual rights, including property rights. If Christian, Hamilton, and other legislators believe that Bolivar property owners have a right to rebuild on their property, then so do the property owners on Galveston. This is bad legislation, not so much because it grants an exemption, but because it doesn’t go far enough.