Tuesday, June 2, 2009

Texas Beaches and Property Rights, Part 1

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.

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