Coalition wins Boca Chica closure appeal – Port Isabel-South Padre Press


By CATHERINE DONNELLY
Special to the PRESS

Texas Highway 4 is a little strip of winding road that seems to lead to nowhere in particular but, after passing miles of prickly pear, yucca, agave cactus, and then some space rockets, it delivers travelers to a public beach.

Boca Chica is an out of the way slice of unspoiled shoreline that is otherwise easily accessible and used regularly by locals and tourists. That is, unless the only road that goes there is closed.

The Texas Open Beaches Act, codified in 1959, guarantees the public’s right to free and unrestricted access to the state’s public beaches, according to Texas.gov.

According to Save RGV, a non-profit organization focused on advocacy for environmental justice, Texans voted for the state constitution to be amended in 2009 to acknowledge the constitutional right to beach access. The indigenous Carrizo Comecrudo Tribe of Texas, Save RGV and the Sierra Club, joint plaintiffs in the current road closure court case, claim that any statute that allows county commissioners to regularly close the highway or beaches violates the amendment, rendering it unconstitutional.

After SpaceX CEO Elon Musk lobbied for it, the Texas Legislature wrote a law in 2013 for the only company doing space launches on the gulf in Texas, according to the plaintiffs. The coalition is challenging part of the 2013 Texas Natural Resources Code that allows commissioners “to temporarily close a beach in reasonable proximity to a space flight launch site or access points to the beach,” according to court documents.

“There’s no dispute that the beach access next to SpaceX is closed at least several hundred hours a year,” the group’s attorney Marissa Perales explained. “So, the trial will involve presenting the court with legal arguments proving that the law is not consistent with our constitutional rights.”

In 2022, Judge Gloria Rincones of the 445th District Court ruled that the plaintiffs had no standing to bring a lawsuit against Cameron County, the Texas General Land Office (GLO), Texas Land Commissioner Dawn Buckingham and Texas Attorney General Ken Paxton. Two weeks ago, Texas 13th Court of Appeals Justice Clarissa Silva dismissed this ruling noting that Cameron County offered no explanation for its claim.

By reversing the 2022 decision, the appeals court verdict lets the original lawsuit proceed. The groups’ appellate win narrowly precedes an expected Starship test and possible launch involving more closures. Cameron County and the state can still appeal the case to the Texas Supreme Court and have at least a month to decide if it will do so.

“We are pleased with the Court of Appeals decision. It is well-reasoned and explains why the district court should have exercised its jurisdiction and resolved the issues raised by our lawsuit, instead of dismissing it,” said Perales. “When our Texas constitutional rights are at stake, the court must step in and protect those rights. The Court of Appeals agreed.”

The groups didn’t bring a private action to enforce their right to access the beach via an injunction to prohibit the SpaceX’s flight launches, but instead, “appellants challenge the constitutionality of the statutes, rule, memorandum of agreement, and order,” Silva wrote in her ruling.

According to the State’s Natural Resources Code, Sec. 61.011 states: “the public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico.”

It further demands that the commissioner of the GLO “shall strictly and vigorously enforce the prohibition against encroachments on and interferences with the public beach easement.”

This statute prohibits any entity to create an obstruction that interferes with the free and unrestricted right of the public to enter or leave any public beach. It further states that no one may engage in construction adjacent to a public beach in a manner that is likely to adversely affect “public access to and use of the public beach.”

“Every week, the County and the Texas GLO continue to sell out our community by abruptly closing the beach so a billionaire can launch deadly rockets near homes and wildlife,” Emma Guevara, an organizer for the Brownsville chapter of the Sierra Club, said in a 2022 announcement of the appeal.

Cameron County and the GLO originally entered into an agreement with SpaceX allowing beach closures for up to 12 Falcon rocket launches a year. SpaceX has subsequently increased its rocket size and the frequency of the closures without apparent repercussion, according to multiple sources.

Cameron County has the sole authority to close Highway 4 and Boca Chica Beach for SpaceX activities. According to a “60 Minutes” report, The U.S. Fish and Wildlife Service registered that Cameron County had regularly surpassed its agreed to maximum number of closure hours between 2019 and 2021.

SpaceX activities have ramped up and expanded since then with exponentially bigger rockets and more frequent testing and flights as they work toward weekly launches and large payloads, according to their website. The percussion from recent launches was reportedly felt strongly as far as Harlingen and beyond, causing public outcry from concerned citizens.

“The community has been concerned for quite a while and all of our concerns keep coming true,” said Guevara. “There weren’t supposed to be rockets. Then there were rockets, but they weren’t supposed to explode. Then they kept exploding. SpaceX said they would be good neighbors. We have yet to see that one come true.”

“Those in power egregiously restricted our access to Boca Chica and poisoned this one-of-a-kind biodiverse ecosystem,” said Mary Angela Branch, a Port Isabel resident and Save RGV member. “It’s a true crime against us and the environment.”

Guevara added that more work is ahead, referring to the land exchange Texas Parks and Wildlife is brokering with SpaceX, giving SpaceX land in Boca Chica State Park in exchange for 477 acres (like the area of more than 400 football fields) adjacent to the Laguna Atascosa National Wildlife Refuge.

“Boca Chica is an important part of our community and I have family members that don’t even try going there anymore,” added Guevara. “At least Texas parks and wildlife moved their land swap proposal meeting to March after there were more than 1,000 public comments in opposition to it.”

A third Starship launch attempt is expected soon according to SpaceX social media announcements, though it’s been documented that previous launches caused debris to scatter to surrounding land and water as well as communities like Port Isabel. Fires on state park land have also been reported. SpaceX currently awaits authorization from the Federal Aviation Administration for the third launch of its 400-foot-tall Starship.

Citizens can get text notifications of SpaceX related beach closures by texting “BEACH” to 866-513-3475. However, the closures often fluctuate due to the vagaries of flight testing due to permits, weather and rocket readiness.

In a press release, Cameron County Judge Eddie Treviño, Jr., had announced closures of Boca Chica Beach and State Highway 4 for this past Monday. SpaceX had established a “safety zone perimeter” that included two temporary checkpoints on Highway 4. Those proving residency could pass through the “soft checkpoint.” Access beyond the “hard checkpoint” to the beach was not permitted.

Trevino’s office refers citizens to visit the closest County beaches that are an hour away on South Padre Island. Questions or concerns are referred to www.cameroncountytx.gov/spacex/.

The Texas General Land Office has not responded to a request for comment before press time.





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