Spaceships on the Beach

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By Professor Victoria Sutton

May 11, 2025

Guest Opinion. On Saturday, May 3, 2025, the citizens of Cameron County officially voted to name their city “Starbase” in an overwhelming victory of 212-6 votes. So the company town of SpaceX is an official city in Texas, now. Next, the city hoped to control its beach.

Since 2022, Space X has operated space operations from their Boca Chica, Texas location, having worked through the environmental impact process for operating a few launches a year. Now they want to increase that number from 5 to 25 per year and have the ability to close the beach.

SpaceX’s environmental process at Boca Chica

SpaceX started with an environmental impact statement from 2022 that assessed a limited number of launches. This year, they have initiated a new environmental assessment seeking to increase those launches to 25 per year. The FAA sought public input during August and September of 2024. However, these hearings were delayed when TCEQ and EPA issued violations to SpaceX for violations of the Clean Water Act and its permitting system (TPDES) and the unauthorized discharge of industrial wastewater from the facility. The wastewater is a by-product of the process of energy released during Starship launches. Apparently, SpaceX did not have any industrial wastewater permit. Not surprisingly, the permit system is based on categories of industries, and the spaceship industry likely may not have anticipated the need for a TPDES permit, but engineers have to work with lawyers to prevent that sort of thing from happening. In a separate incident, SpaceX was fined for releasing oxygen into a wetland.

SpaceX also must apply for an FAA experimental permit for its proposed super heavy launch operation at Kennedy Space Center in Florida. No beach is closed in Florida.

In early 2025, the FAA sought to protect Boca Chica Beach as an FAA designated area, that would control public access to the beach, taking away Cameron County’s complete control of access to the beach they have now.

The Texas Legislature considered a bill to allow any municipality to close beaches for periods for space launch activities. On Monday, April 28, the committee narrowly voted down SB2188, which they had agreed to sub in for Lopez’s House version of the bill.

On Wednesday, April 30, all 15 members of the Texas House Committee on State Affairs took Senate Bill 2188 up for reconsideration — after initially rejecting it.

Two days later, May 1, 2025, the bill was revived by moving forward its companion bill H.B. 4660. Under these bills, Cameron County would continue to control beach and road closures on weekends; while Starbase would control closures on weekdays, Monday through Thursday. Cameron County has opposed the legislation.

Open Beaches Act and the Texas Constitution

In October 2021, the group, Save RGV (Save Rio Grande Valley) filed suit to prevent any closure of the Boca Chica Beach. According to Save RVG they argue that free access of a public beach is provided for in the Texas Open Beaches Act:

The Beach is a part of the Lower Rio Grande Valley National Wildlife Refuge, and is thus protected by both state and federal authorities. The Refuge provides the public with a number of free wildlife-dependent recreation, such as fishing, wildlife observation, photography, environmental education and interpretation. It falls within the Open Beaches Act’s definition of a public beach, Tex. Nat. Res. Code § 61.001(8), and within the definition of “public beach” found in Article I, Section 33 of the Texas Constitution. Tex. Const. art. I, § 33(a).

Therefore, the argument is that it is also in violation of the Texas Constitution. The heart of this argument is Article I, Section 33, of the Texas Constitution, which provides for the public’s unrestricted [emphasis added] right to use and a right of ingress to and egress from a public beach. This right is dedicated as a permanent easement in favor of the public. So they argue, closing the beach for space flight activities is in violation of the Texas Constitution and its guarantee of unrestricted public access.

The State can enact laws for beach access, but as read by the plaintiffs, it should be to “protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.”

In 2013, the Texas Legislature amended the Open Beaches Act to allow closure of the beach for space launches. It is this statute that the plaintiffs are seeking to invalidate as unconstitutional.

The First People on the Land

The Carrizo/Comecrudo Nation of Texas, which holds the land of Boca Chica sacred, joined the litigation the following May in 2022.

According to one of the co-plaintiffs, Sierra Club, Juan Mancias, chairman of the Carrizo Comecrudo Tribe of Texas said, “This is sacred land and the land of our ancestors. We had villages here, to come together here for our life ways and to fish and to live. Our ancestors are buried in these lands. Our umbilical cords are planted in these lands. No one has the right to deny us access to our sacred sites, which include the beach and the mouth of the river. Excessive beach closures impede and deter our people from giving offerings and prayers and visiting our sacred sites. These closures need to stop.

There is no official state recognition process for Tribes in the state of Texas, and only federal recognized tribes in the state are afforded federal trust protection of their lands. So, the Carrizo/Comecrudo Nation of Texas has the same status as any other interest group. The Nation’s interest does go to the question of standing, allowing them to join the litigation as a plaintiff.

Leveraging land has always been an effective strategy for federal recognition. The Catawba Nation; the Isleta Pueblo del Sur are just two recent examples of land claim settlements that led to federal recognition. But without a valid land claim showing previous deeds or land taken by states or individuals from Tribes after 1790, there cannot be an effective land claim. There appears to be none here.

Final thoughts

If the final decision turns on whether the Texas Constitution is violated by beach and road closures during space activities, it is likely that SpaceX will prevail. Absolute rights or prohibitions are more likely to be found valid when they have exceptions that go to public safety. The First Amendment of the U.S. Constitution notably has exceptions, like the “fighting words” doctrine that permits free speech up to the point where it causes physical harm through fighting.

A Texas Constitutional right would likely be to read to have a public safety exception. For example, the public safety reason to close a beach that may have become dangerous to the public due to toxic algal blooms would be a government responsibility and an obvious exception to the “Open Beaches Act” to close the beach during the term of such danger, that was passed to implement the Texas Constitutional right to beach access.

Consequently, the public still has access to the beach. The question is who gets to say when the beach is closed, and whether that is the Mayor of Starbase or Cameron County officials to make that decision, seems to be the remaining legal issue that will ultimately be decided by the Texas Legislature.

Procedurally, this is how American style democracy is supposed to work. Substantively, Constitutional rights are never absolute, and so it is likely that the open beaches provision will find its exception in the coming months.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.