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:

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:

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.

  • Stan Raines

    I’m not clear here. Is there an ennumerated right in the Texas constitution to beach access or is the right established only by the statute?

    • Hey Stan! Nice to hear from you. Great question. The constitutional right to beach access is enumerated in Article 1 Section 33 of the Texas Constitution. Here is Section 33.

      Sec. 33. ACCESS AND USE OF PUBLIC BEACHES. (a) In this section, “public beach” means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.

      (b) The 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.

      (c) The legislature may 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.

      (d) This section does not create a private right of enforcement.

      The Texas Open Beaches Act serves to protect this right by authorizing the General Land Office (GLO) to regulate matters concerning the beach.

      Thanks for commenting!

      Michael Gonzalez

      • Stan Raines

        Thanks, Michael. I appreciate your knowledge. One of these days I’m going to have to take a look at that document, the Texas Constitution. I’m intimidated by its reputation as a doozey, I suppose. Oh, and inertia.

  • Michael Gonzalez

    Hey Stan! Nice to hear from you. The constitutional right to beach access is enumerated in Article 1 Section 33 of the Texas Constitution. Here is Section 33.

    Sec. 33. ACCESS AND USE OF PUBLIC BEACHES. (a) In this section, “public beach” means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.

    (b) The 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.

    (c) The legislature may 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.

    (d) This section does not create a private right of enforcement.

    The Texas Open Beaches Act serves to protect this right by authorizing the General Land Office (GLO) to regulate matters concerning the beach.

    Thanks for commenting,

    Michael Gonzalez

  • Hey Stan! Nice to hear from you. Great question. The constitutional right to beach access is enumerated in Article 1 Section 33 of the Texas Constitution. Here is Section 33.

    Sec. 33. ACCESS AND USE OF PUBLIC BEACHES. (a) In this section, “public beach” means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.

    (b) The 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.

    (c) The legislature may 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.

    (d) This section does not create a private right of enforcement.

    The Texas Open Beaches Act serves to protect this right by authorizing the General Land Office (GLO) to regulate matters concerning the beach.

    Thanks for commenting,

    Michael Gonzalez

  • jane Gonzalez

    It sounds like Boca Chica could be closed more often than it is open. Are there any safeguards, or minimum number of days that Boca Chica must be open?

  • ellegood

    I was just pointed to this interesting blog post. I didn’t address the beach closure limitations in my paper on other challenges SpaceX will face as it pursues the development of its spaceport at Boca Chica. I thought the paper might interest you and your readers… http://bit.ly/1EgmO1A

  • Gary Warburton

    Would access a little to the north be possible if an appropriate branch road off hyway 4 were built so beach go`ers had an alternate beach access during launches.