Matthew J. Festa, South Texas College of Law
J. David Breemer, principal attorney for the Pacific Legal Foundation
A California woman has drawn a line in the sand, contending that the state should pay her for homes it says she must remove from what is now a public beach.
A divided 5th U.S. Circuit Court of Appeals panel asked the Texas Supreme Court to answer three questions that could settle the dispute.
But the importance of the opinion goes beyond the two beach homes. One legal expert believes the case could lead landowners to run to the courthouse any time a hurricane shifts the shoreline, and a law professor maintains a victory under the plaintiff's novel legal theory could result in more Fourth Amendment unlawful-seizure claims over real property.
After Hurricane Rita hit the Texas coast in September 2005, state officials informed San Diego attorney Carol Severance that two beachfront houses she had bought earlier that year in Galveston were now on the public beach and subject to a removal order at any time.
Severance sued state and local officials, alleging in her October 2006 second amended complaint that they were unlawfully enforcing the Texas Open Beaches Act (OBA) in a manner that deprives her "of valuable real property and homes without rational basis or just compensation." In May 2007, U.S. District Judge Kenneth Hoyt of the Southern District of Texas in Houston granted the defendants' motion to dismiss Severance v. Patterson, et al. Severance then appealed to the 5th U.S. Circuit Court of Appeals.
In a 2-1 decision on April 23, a 5th Circuit panel breathed new life into Severance's claim against the defendants, Texas Land Commissioner Jerry Patterson, Texas Attorney General Greg Abbott and Galveston County District Attorney Kurt Sistrunk. The 5th Circuit panel affirmed the district court's dismissal of Severance's takings claim under the Fifth Amendment of the U.S. Constitution. However, the panel certified three questions to the Texas Supreme Court that address Severance's claim of the "unreasonable seizure" of her private property in violation of the Fourth Amendment:
1. Does Texas recognize a "rolling" easement that gives the public access to and use of beaches on the Gulf of Mexico without proof of "prescription, dedication or customary rights" in the property?
2. If so, does it come from common-law doctrines or the construction of the Texas Open Beaches Act?
3. To what extent, if any, is a landowner entitled to compensation under Texas statutory law or the Texas Constitution when an easement rolls over his or her property, when no easement has been found by dedication, prescription or custom?
A rolling easement's physical scope is tied to some geographic characteristic that may change over time, most often the vegetation on coastal property, writes Matthew J. Festa, an assistant professor at South Texas College of Law who teaches property and land use law. He explains in an e-mail that, "As the vegetation line recedes, the easement 'rolls' inland to allow expanded public beach access over private land."
According to the majority opinion, state court decisions on rolling easements are "utterly inconsistent," and the state Supreme Court has never weighed in.
"[T]he state Supreme Court appears to have avoided ruling on these issues whose resolution is vital to the rights of thousands of Texas beachfront property owners," 5th Circuit Chief Judge Edith Jones wrote for the majority in Severance. Judge Edith Brown Clement joined Jones in the decision.
Shifting Sands
Severance purchased two beachfront properties on West Galveston Island in April 2005. She paid $365,000 for one of the houses and $278,000 for the other house, according to the second amended complaint.
In the majority opinion, Jones provided further background on the case: Each piece of property has a single-family home that Severance has used as rental properties. No easement has ever been established on either piece of property through prescription, implied dedication or continuous right. The parties disagree whether Severance's properties were subject to a rolling easement before she purchased them. As noted in a footnote to the 5th Circuit opinion, the defendants assert that Severance's two properties were on a list published in 1999 that included more than 100 homes "on the public beach easement."
The parties do not dispute that after Severance purchased the properties, erosion caused by Hurricane Rita in 2005 shifted the vegetation line farther landward, causing a large segment of her properties, including the two houses, to be located on the dry beach. A temporary moratorium on removing houses located on the public beach expired on June 7, 2006, and the state's General Land Office informed Severance that it could issue an order at any time to require her to remove the houses. The state offered to pay Severance about $40,000 to assist in removing or relocating the two houses, but she refused the offer. Severance filed the suit in July 2006.
J. David Breemer, Severance's lawyer and the principal attorney for the Pacific Legal Foundation, a nonprofit organization headquartered in Sacramento, Calif., says the implications of the issues go beyond what happened in Severance's suit and Hurricane Rita.
"After Hurricane Ike, everyone on the Gulf Coast is going to have an interest in this suit," he says.
A state Supreme Court decision that spells out whether the rolling easement doctrine applies would affect property owners' rights up and down the Texas coast.
Breemer says Hurricane Ike, which devastated Texas coastal regions in September 2008, moved the vegetation line far landward. Enacted in 1959, the Open Beaches Act requires that the public have free and unrestricted access to the area extending from the waterline to the line of vegetation bordering the Gulf of Mexico. Under the defendants' theory in Severance , Breemer says, much of the beachfront property eroded by Ike is part of the public beach now, even though the public did not have access to or use those beaches in the past.
Tom Kelley, spokesman for the Texas Office of the Attorney General, which represents Patterson and Abbott, declines comment on the 5th Circuit's decision. Barry C. Willey, an attorney in the Galveston County Legal Department, which represents Sistrunk, also declines comment.
Kemah solo Thomas Sheffield, who often represents landowners in eminent-domain cases but who is not involved in Severance, says he finds it interesting that the 5th Circuit majority certified questions about the rolling easement doctrine to the state Supreme Court. Sheffield says Texas law is clear that "the easement rolls" consistent with the common law with regard to titles and boundaries of littoral (shoreline) properties. Those who own littoral property on the Gulf of Mexico lose title to property as the vegetation line moves, he says.
"The majority opinion would encourage serial litigation," Sheffield says. "People would have to come to the courthouse every time the vegetation line moves."
As noted in the 5th Circuit majority opinion, the defendants argued Severance's Fifth Amendment takings claim and Fourth Amendment seizure claim are premature. The majority found that the takings claim is premature in the 5th Circuit because she did not first seek compensation in state courts as required by the U.S. Supreme Court in 1985's Williamson County Regional Planning Commission v. Hamilton Bank. But the majority found Severance has a right to assert her takings claim once it becomes ripe.
"Given the uncertainty and ambiguity of Texas law concerning rolling easements and the takings consequences thereof, the Texas Supreme Court might award relief under the facts Severance has alleged," Jones wrote.
The 5th Circuit panel majority found Severance's Fourth Amendment seizure claim is ripe, not merely "arguably ripe," as the district court held. According to the majority opinion, Severance's seizure claim meets the relevant factors the U.S. Supreme Court set out in 1967's Abbott Laboratories v. Gardner, because:
• the issues are purely legal;
• the defendants have adopted a final agency position that the landward movement of the vegetation line burdens Severance's property with a public access easement;
• the controversy has a direct and immediate impact on Severance because she cannot lawfully keep the public off her land; and
• resolving the issue would facilitate OBA enforcement and eliminate uncertainty about the constitutionality of the rolling easement doctrine for numerous Texas landowners.
But the majority found it impossible to reach "a clearcut resolution" of Severance's and the state's respective property rights until the Texas Supreme Court addresses whether state law recognizes the rolling easement doctrine.
Festa says the state Supreme Court needs to resolve the question of whether a rolling easement exists and when it exists.
"I'm sure that would be an issue to many landowners along the Gulf Coast," says Festa.
Festa says the decision in Severance is unusual in that the 5th Circuit affirmed the trial court's dismissal of the Fifth Amendment takings claim but allowed the Fourth Amendment seizure claim to continue.
"It's far more common to see property rights litigated through the Fifth Amendment, whereas the Fourth Amendment, I think, is far more common in criminal law," he says. "I don't know of very many cases that even bring a property rights claim under Fourth Amendment unreasonable seizure doctrine."
A favorable ruling on a Fourth Amendment claim in a high-profile case such as Severance might lead to more property litigation being brought under the Fourth Amendment, Festa says.
But overall, Festa says, he views the results for Severance in this case as "a mixed bag for property rights" because of the procedural hurdles the 5th Circuit identified with regard to the takings claim. As the 5th Circuit majority noted, Williamson County requires a plaintiff seeking compensation for a Fifth Amendment takings claim to go to state courtfirst. But if a plaintiff goes to state court and loses, then a federal court might not be able to hear the takings claim based on res judicata ,Festa says. "So it's kind of a Catch-22 for property rights."
Tilting at Windmills?
Judge Jacques Wiener Jr., the third member of the 5th Circuit panel, has a different view of the property rights issues. Wiener wrote in his dissenting opinion that the majority incorrectly held that Severance has standing to assert her takings claim if it becomes ripe.
"At bottom, there is but one easement, albeit one whose boundaries could shift and have shifted. Thus, if there ever was a taking, there was but one — and it occurred long before Severance acquired title to the properties," Wiener wrote.
As noted in the dissent, shifts in the vegetation line do not create new easements but instead "they expand the size and reach of that one dynamic easement."
Wiener also wrote in his dissenting opinion that Severance lacks standing to bring her Fourth Amendment seizure claim. According to the dissent, the U.S. Supreme Court's 1984 decision in United States v. Jacobsen defined a "seizure" for purposes of a Fourth Amendment claim as a "meaningful interference with an individual's possessory interests in his property." The owner of the properties at the time the public's easement attached held the "right to exclude" the public from the dry beach portions of the property, but Severance has never had that right, Wiener wrote.
In his dissent, Wiener also took issue with what he perceives are the objectives of Severance and the Pacific Legal Foundation (PLF) in bringing the suit, which he calls a "quixotic adventure."
Wiener wrote that the real object of Severance and the PLF's "Cervantian tilting at Texas' Open Beaches Act is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but to eviscerate the OBA." The majority's reversal of the district court "has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade," he wrote.
In a written statement, the PLF responds, "We do not regard our mission as 'quixotic,' or as an inevitable failure. On the contrary, at a time when the right of individuals to keep and enjoy the fruits of their labor is under attack like never before in this country, Pacific Legal Foundation is proud to stand as one of the leading champions of this fundamental constitutional right."
On its Web site, PLF says it is "the oldest and most successful public interest legal organization that fights for limited government, property rights, individual rights and a balanced approach to environmental protection."
Festa says the identity of the parties and their attorneys and any allegedly larger political motives are not supposed to matter as much as the facts and law of the case.
"If there is a Fourth or Fifth Amendment right implicated here, I don't think it should matter whether the plaintiff has hired a lawyer that is part of a public policy movement to change the law," he says.
In a footnote to the majority's opinion, Jones wrote that the judges of the 5th Circuit endeavor not to decide appeals based on who the litigants and their lawyers are or any belief about their motives. Noted Jones, "Whether that rule is observed in light of Part I of the dissent, however, the reader must determine."
