Lay off the moon rocks people. SpaceX recently announced plans to construct a launch pad near Boca Chica Beach. This decision has brought national attention to Brownsville, TX. However, no one seems to be worried about what it means to us avid beach-goers. In light of all the excitement, it appears that five pressing legal questions remain omitted from public discussion—lets launch in.
1. Is Boca Chica Beach a public beach as defined by Texas Law?
Yes. The Open Beaches Act (OBA) defines a public beach by both its location and our right to use it. A public beach exists along the Gulf of Mexico and extends on the shore from the line of mean low tide to the line of vegetation. Additionally, a public beach is one in which the public acquired the right of use by virtue of continuous right in the public since time immemorial. Boca Chica Beach is in Texas and along the Gulf of Mexico. Boca Chica Beach also has a rich history of public use stretching back to a time before Texas was apart of the US. Therefore, Boca Chica Beach is a public beach as defined by Texas Law.
2. What right do we have in accessing a public beach?
The OBA declares the State’s public policy to be a “free and unrestricted right of ingress and egress” to Texas public beaches. A brief search of the case law shows that the State of Texas will even go as far as to force destruction of houses build within the line of mean low tide to the line of vegetation.
3. Will the proposed SpaceX launch pad affect our right to access Boca Chica Beach?
Yes. When Texas House Bill 2623 passed into law in 2013, The General Land Office Commissioner obtained the authority to close public beaches for “Space Flight Activities” WARNING: use of legal term by government.
4. What “Space Flight Activities” can restrict public access to Boca Chica Beach?
The law gives “Space Flight Activities” an expansive legal definition. Under current Texas law, space flight activities consist of activities and training in any phase of preparing for and undertaking space flight. All of the following can lead to closure of Boca Chica Beach:
- the research, development, testing, or manufacture of a launch vehicle, reentry vehicle, or spacecraft
- the preparation of a launch vehicle, reentry vehicle, payload, spacecraft, crew, or space flight participant for launch, space flight, and reentry;
- the conduct of the launch;
- conduct occurring between the launch and reentry;
- the preparation of a launch vehicle, reentry vehicle, payload, spacecraft, crew, or space flight participant for reentry;
- the conduct of reentry and descent;
- the conduct of the landing; and
- the conduct of post landing recovery of a launch vehicle, reentry vehicle, payload, spacecraft, crew or space flight participant.
5. When is it not allowed to close down Boca Chica Beach?
There is no short answer here. At first glance, the current law prohibits beach closure on the following list of days:
- the Saturday or Sunday preceding Memorial Day;
- Memorial Day;
- July 4;
- Labor Day; or
- a Saturday or Sunday that is after Memorial Day but before Labor Day.
However, the law allows for beach closure even on the above list of days if the Cameron County Commissioners Court obtains prior approval from the General Land Office. To make matters worse, the current law allows for the Cameron County Commissioners Court to enter into a Memorandum of Agreement with the General Land Office that governs Boca Chica Beach closure. In the current Memorandum of Agreement, the Cameron County Commissioners Court has left out Saturday and Sunday between Memorial Day and Labor Day. Therefore, under current Texas law, it is fair to suggest that Boca Chica Beach can be closed down at any time.
According to Congressman Rene Olivera, “We have balanced the people’s access to their beach at times of peak usage and we have shown a world class company that Cameron County and Brownsville are doing everything in our power to bring them to South Texas.” Is this a balance of interest or an unconstitutional encroachment on the public’s right to access a public beach in Texas? Is it fair to sacrifice the rights of many on earth for the few who make it to space on a commercial flight? Time will tell. What is certain is that the future has arrived.