Save RGV, a nonprofit conservation group in the Rio Grande Valley, again teamed with cultural heritage organization Carrizo Comecrudo National of Texas Inc. and the California-based Sierra Club to appeal a state court's ruling in favor of Cameron County, the Texas General Land Office and the state attorney general.
Marisa Perales, an Austin lawyer representing the appellants, presented about 40 minutes of oral arguments Wednesday before the 13th Court of Appeals in Edinburg, west of Brownsville. In her written appeal, Perales said the trial court erred in declining to accept jurisdiction in a matter involving the constitutionality of a state law.
The state Legislature in 1959 passed the Texas Open Beaches Act to grant the public a right to free and unrestricted access to state-owned beaches along the Gulf Coast and to allow the General Land Office to have the county attorney, district attorney or the attorney general enforce the act if it's violated, according to court filings. Then, in 2009, state voters elevated the law when they adopted an amendment to the Texas Constitution, according to court filings.
After lobbying by SpaceX and its CEO, Elon Musk, the state Legislature in 2013 passed House Bill 2623, which amended the act to allow closures of public beaches "for space flight activities," according to court filings. The state and county relied on the new provision of the act to close Boca Chica Beach for about 450 hours per year to allow for SpaceX to conduct tests and launches.
Reached by phone, Perales on Thursday said, "There's really just one issue and that's whether the amendment to the statute in the Open Beaches Act is consistent with or inconsistent with the Texas Constitution." The constitution, she added, "protects the public's right to access public beaches."
Perales estimated that the three appeals judges could reach a decision in several months.
The original lawsuit, filed in October 2021, alleged that state and county officials' repeated closure of Boca Chica Beach for rocket tests and launches violates the plaintiffs' constitutionally guaranteed right to access public beaches.
A state district court in Cameron County dismissed the case in July 2022, siding with arguments by the county government, the state Land Office and attorney general that the groups lacked standing for their lawsuit and that there is no private right of enforcement — essentially that beach access can only be regulated by officials.
"I do believe the district court misinterpreted the statute," Save RGV member Vicky Guerra said Thursday, noting that the groups filed an appeal in January. "That the district court decided there is no private right of enforcement means we can't sue. That's a ridiculous outcome."
History of closures
The case reflects an ongoing battle involving SpaceX and Musk, supporters and critics amid the company's race to develop its nearly 400-foot-tall rocket next to the beach in South Texas. Boca Chica Beach is about 20 miles east of Brownsville and has long been a favorite destination for swimming and fishing.
Nearby cities like South Padre Island and Brownsville have expressed enthusiastic support for SpaceX's presence there and its goals to use Starship to carry Starlink communication satellites to orbit, return NASA astronauts to the moon and someday send humans to Mars.
In Brownsville, elected officials have touted SpaceX as an economic engine employing about 1,700 workers at its Starbase facility and accounting for hundreds of millions of dollars in annual economic impact across the region.
But environmental and Indigenous groups argue that the rocket business has limited access to sacred and recreational areas and continues to cause damage to the beach and wildlife there.
Preparing for court, Guerra last week recalled how she visited Boca Chica Beach with her parents and grandparents.
"It's a very unique area," she said in a phone interview, considering the endangered piping plovers in the area and surrounding wetlands and wildlife refuge. "SpaceX moved in and ruined everything. It's very, very painful to see what's happened."
The legal fight over beach closures isn't new.
The appeal noted that Cameron County has been issuing orders for nearly a decade to temporarily close Boca Chica Beach and State Highway 4, the only road that reaches the 8-mile stretch of sandy public shores as SpaceX conducted tests and rocket launches in the area.
In attempts to attract SpaceX and Musk to Texas, lawmakers in 2013 passed House Bill 2623 to allow the temporary closures of Boca Chica Beach for up to 12 rocket launches a year, the appeal said. Former state Rep. Rene Oliveira, D-Brownsville, authored the bill, after the Hawthorne, Calif.-based company and its billionaire leader lobbied lawmakers about building a commercial spaceport there.
Later that year, the Cameron County Commissioners amended its Dune Protection and Beach Access Plan to allow for the closure of the beach and access points for space flight activities, according to the appeal.
The General Land Office approved the amended plan and entered into a memorandum of agreement with the county to allow for the closures of the beach and highway before SpaceX had arrived on-site and eventually obtained approval from the Federal Aviation Administration to start its space flight activities, the appeal said.
SpaceX proposed the Starbase launch site in Boca Chica in 2014 "after extensive evaluation, which included consideration of technological, economic, and other constraints such as available trajectories, latitude, and the ability to meet public safety requirements," the company said in separate court filings. Later that year, after FAA approval, SpaceX began developing the Starship spacecraft and Super Heavy booster as a reusable rocket that "stands to revolutionize space travel by substantially reducing the cost of accessing space while substantially increasing the mass and size of payloads that can be delivered to space," it said.
As SpaceX began ramping up efforts to develop its Starship program, Cameron County commissioners in March 2019 authorized Cameron County Judge Eddie Treviño Jr. "to execute any and all necessary or appropriate notices or orders of temporary closures" of Boca Chica Beach and State Highway 4, according to the appeal.
In 2021, Treviño signed orders that closed the beach for more than 500 hours over 100 separate days, the appeal said. The U.S. Fish and Wildlife Service estimated that State Highway 4 was closed for more than 1,000 hours in both 2019 and 2020, or about 42 days total per year.
Federal lawsuit
The appeal comes as SpaceX continues to push to launch another Starship following its first flight on April 20.
The rocket that was ignited in April cleared the launch pad but ended in a self-induced fiery explosion above the Gulf of Mexico and scattered debris as far as 6 miles across the area. The launch sparked wildfire, spread debris over hundreds of acres of company-owned and state park land, and propelled "pulverized concrete" more than 6 miles, Fish and Wildlife said.
In early May, Save RGV and the Carrizo Comecrudo National of Texas Inc. filed a federal lawsuit challenging the FAA's review and approval of the company's plans and called on the federal agency to conduct an environmental impact statement, which could keep the rocket program grounded for years.
The regionally based groups filed the lawsuit with the Center for Biological Diversity, the American Bird Conservancy and the Surfrider Foundation. SpaceX joined FAA in the lawsuit as a co-defendant.
In the past five months, SpaceX has made repairs to the site and conducted tests on its engines and new water deluge system, and it is awaiting approval from federal agencies to obtain a modified launch license needed for a second liftoff.
The FAA last week said it may grant SpaceX the license in October. But it also said that it requested a consultation with Fish and Wildlife under the Endangered Species Act.
The Fish and Wildlife Service said in email that it's considering the company's use of its new water deluge system under the launch pad, a process that could take 135 days or even longer.
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