Appeals court considers whether private groups can sue government over beach closures for SpaceX

EDINBURG, Texas (Border Report) — An appeals court in South Texas on Wednesday heard opening arguments brought by environmentalists and an Indigenous tribe that want to sue the state and Cameron County for closing Boca Chica Beach for SpaceX tests.

Texas’ 13th Court of Appeals listened to a total of 40 minutes of oral arguments from lawyers representing the plaintiffs — Save RGV, the Sierra Club and the Carrizo Comecrudo Nation of Texas — and officials with the state, the General Land Office and Cameron County who say they have a right to limit the public’s access to the beach under a change to the Texas Open Beaches Act made by the Texas Legislature in 2013.

Boca Chica Beach is blocks from the SpaceX Starbase launch site in South Texas on the border with Mexico. (Sandra Sanchez/Border Report File Photo)

Marisa Perales, a lawyer representing the plaintiffs, told the three-member panel of justices, “Our Texas Bill of Rights is unique in that it guarantees to the public the unrestricted right for the public to use and access public beaches.”

“But Texas has restricted their rights to access the beach,” she said. “Whenever a private corporation has instructed the county to close off access so it can ensure its space flight endeavors.”

State and county officials told justices that the amendment to the Open Beaches Act included a provision that allows government officials who are on the Gulf of Mexico or have an FAA-approved launch site to close the beach “to protect the public health, safety and welfare.”

“There is no right to just access the beach whenever you want it,” Kathryn Cherry, a lawyer representing the State of Texas, told the justices. “Rights are subject to government regulation.”

Cherry said the regulation was “reasonable and rational” and for the public’s safety.

Cameron County lawyer Jim Allison told Border Report: “The plaintiffs in this case are claiming an unfettered, absolute right to access Boca Chica beach at all times, even during spaceflight activities. Obviously, we cannot allow that any more than we could during a hurricane or tsunami or any other time of public danger. So the county’s role in this is definitely to protect the public’s interest.”

Defendants also said there is no private right of enforcement, meaning government entities cannot be sued.

Chief Justice Dori Contreras repeatedly questioned the defendants and their various lawyers as to how then can the statute be challenged in court if there was no right to sue.

A district court in Brownsville last summer dismissed the lawsuit.

Now it is up to the all-female panel of justices to decide whether these groups have the right to sue. If so, then the case would be sent back to the district court and the merits argued.

“It’s one of a kind and they are denying us access and we feel that is not right,” Save RGV board member Mary Angela Branch told Border Report.

She said she has been going to Boca Chica Beach her entire life. “It was free, open access, 24/7, undeveloped, pristine, beautiful, and it was where you went to fish. It was for livelihood. It was for recreation. It was for stargazing. It was for birding. It was for nature. We have a refuge there. We have a state park there.”

Christopher Basaldu is a member of the Carrizo Comecrudo Nation of Texas. (Sandra Sanchez/Border Report)

Dozens of plaintiff supporters crammed into the small courtroom on Wednesday morning for the hour-long hearing. Most wore pins that read, “Save Boca Chica.”

Christopher Basaldu, a member of the Carrizo Comecrudo tribe, says the beach is part of sacred and ancestral lands.

“The whole area is a sacred area. The area of the mouth of the river, the river itself, where the river meets the Gulf, the beach and the environment around that those are all a sacred area,” Basaldu told Border Report. “Our stories of our sacred histories that we get from our ancestors talk about why that area is so sacred to begin with. On top of that, we’re the original people of the land. So we’ve always been there, you know, our ancestors are buried there.”

He calls the area “Turtle Island,” and it is a place where thousands of endangered sea turtles nest and lay eggs every year just blocks from where SpaceX is conducting test launches at what it calls its South Texas Starbase.

A decision is not expected from the Appeals Court for several weeks.

But Branch said if they lose, then her board will decide whether to appeal to the Texas Supreme Court.

Sandra Sanchez can be reached at SSanchez@BorderReport.com.