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A Solution to Restore Galveston Beaches!
by John Dreiss
04 March 2012
Much of the current debate regarding Galveston’s “Erosion Response Plan” is a joke unless it includes beach re-nourishment. The fact is that our Island is disintegrating largely due to “man-made erosion” caused by the Houston ship channel (HSC).
A silly argument exists promoting class warfare nonsense that “only those nasty greedy beach front property owners benefit from beach re-nourishment”.
This is a divisive and destructive view that harms every person on our Island as it promotes the loss of tax revenue and supports the loss of countless thousands of acres of Galveston “land”, private and public.
Jerry Patterson pouts over the loss of his beach tyranny due to a Texas Supreme Court ruling and punishes all Galvestonians by withholding a long overdue beach re-nourishment project vital to our Island. It’s time to play hardball if our Island is to survive.
The cause of much of Galveston’s erosion is simple; prior to the dredging and jetties needed for the HSC to function, millions of cubic yards of sand and sediment flowed around the east tip of Galveston annually, migrating down the shoreline to Galveston’s west tip.
This provided an equilibrium that maintained the size of Galveston Island.
Galveston Island likely was growing until the jetties were built and the massive dredging diverted Galveston’s “future” 15 miles off shore to the bottom of the gulf or filled massive levies with what was to be Galveston land.
Amazingly, the solution is as simple as the problem; man-made erosion can be corrected with the man-made reconstruction of our beaches.
Who pays for this? The HSC generates 20 to 30 billion dollars in revenue a year, the tiniest fraction of this revenue would repair the damage the HSC has caused/causes to our Island.
I believe Galveston’s cause of action is spelled out in the Dissenting Opinion (DO) of the recent Supreme Court of Texas case which ruled against the GLO and in favor private property owners (Case No. 09-0387 Google it and read it)
The dissenting Justice’s arguments are based upon the assumption that Galveston’s erosion is due exclusively to “acts of god” stating “it is not state action that subjects beachfront property to this rolling easement but rather a force majeure.”
The hinge pin of the dissenting justice’s argument is based upon the assumption that all of Galveston’s erosion is due to “natural causes.”
Once the possibility of government-created erosion enters the debate, the dissenting Justices argument reverses 180 degrees and presents a convincing argument that the State is indeed participating in the “taking” of Galveston public and private property without “just compensation.”
The dissenting justices argue that the State of Texas is exempt from laws that protect an individual from uncompensated “Government taking” and “nuisance” laws because they claim “the government” has no part in, or liability in the destruction of the property in question.
OK, now this is important; read carefully the laws the Justice argues our government is exempt from. Quoted from DO; “The Texas Constitution guarantees that “no person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” TEX. CONST. art. 1 & 17. Texas landowners may assert an inverse condemnation claim “when the government physically appropriates or invades the property, or when it unreasonably interferes with the landowner’s right to use and enjoy the property.”
Also quoted from DO; “Texas Nuisance Law states; “This area of the law imposes a general limitation on landowners. Property owners may not use their property in a way that unreasonably interferes with the property rights of others.”
The DO further quotes; “When the owner of real property has been called upon to sacrifice all economically beneficial use in the name of the common good, this is, to leave his property economically idle, he has suffered a taking.”
If the “government is the property owner or responsible for the maintenance and regulation of the Ship Channel” and the Ship Channel has diverted sediment thereby causing erosion in a manner that “unreasonably interferes with the property rights of others”. According to Texas law, the Fed/State should be held liable for damages.
The dissenting Justices go on to claim there is no “regulatory taking” in this case as defined and points to “two exceptions” they say exempts the State from liability.
In the first, the Justices argue that “For property purchased after October 1986 landowners were expressly warned” of the state’s “rolling easement”. They continue; “the landowner cannot receive compensation” due to the State’s notice of a rolling easement in their Title.
But again, if the State has contributed to the erosion that damages this property and has not disclosed this fact in their notice; shouldn’t that make the notice “null and void”?
As their “warning” does not “disclose” the Government’s role in damaging the landowner’s property, this doesn’t constitute “consent of the landowner” as the landowner cannot consent to a fact not disclosed. This notice does not absolve the government from a liability they do not disclose.
The second exception to the State’s nuisance law is dependent upon their assumption that the property damage is exclusively “Due to natural process” when in fact the Justices should have instead considered the “collateral damage of a government action.”
The DO cites “Atlas Chem. Indus. Inc. v. Anderson” demonstrating that combined with a natural disaster; this natural event does not exempt the Chemical Company from the pollutants spread by the disaster. The DO quotes “Finding that heavy rains causing previously discharged pollutants from upstream manufacturing plant to spread more broadly across downstream land to be a nuisance.”
Here, the justices ignore the HSC, which not only causes downstream damage by diverting Galveston Bay’s sediment away from Galveston Island; the ship channel also creates substantial pollutants which contaminate the sediment preventing it from being suitable for renourishment materials.
“Atlas Chem. Indus. Inc. v. Anderson” stands to support a case that Galveston could make against the Federal and State governments.
Galveston should sue the State and Federal governments in regard to the continuing erosion Galveston Island suffers as a result of the Houston Ship Channel. All Galvestonians suffer from the loss of real estate, tax base, infrastructure and tourism which is directly connected to the ship channel’s diversion of the sand which has for eons, naturally replenished the substance of our Island.
If the GLO was doing their job, they would advocate adding a small fee on the billons in revenue generated by the ship channel in order to fund (compensate) the repair of the damage the HSC causes to Galveston.
Otherwise, according to Texas law, Galveston and/or its property owners should sue for the just compensation needed to repair the damage done.
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