Beach rights lawsuit might be moot fight
Michael A. Smith
The Daily News
06/25/2011
Litigation over three West End houses that recently threw into deep uncertainty the long-held notion that Texas beaches are public might have become moot Friday with the closing of a $335,685 real-estate deal.
California resident Carol Severance, whose lawsuit against the Texas General Land Office has churned through state and federal courts since 2006, sold the last of the contested properties to U.S. taxpayers Friday through a controversial buyout program instituted here after Hurricane Ike in 2008.
In response, Texas Attorney Greg Abbott’s office sent a letter to the Texas Supreme Court arguing the case should be ruled moot because there no longer was a live controversy to be settled and, absent ownership of the property, Severance no longer has legal standing to sue.
The attorney general also argued the supreme court should follow “established practice and vacate the latest opinion” it had issued in the case.
That argument has profound implications for Texans because the court’s latest opinion had deeply undermined the Texas Open Beaches Act.
Neither Severance nor attorney J. David Breemer, of the Pacific Legal Foundation, who had been representing her, could be reached for comment late Friday.
Storm Erosion
The case stems from a program Land Commissioner Jerry Patterson created to assist owners whose houses ended up on the public beach because of storm-driven erosion.
The land office offered to give homeowners $40,000 each to help move their houses or face legal action under the Texas Open Beaches Act, which, at the time, granted the public a rolling easement along the beach.
Severance sued in U.S. District Court to prevent the state from enforcing the Open Beaches Act, claiming it was unconstitutional.
In 2007, U.S. District Judge Kenneth M. Hoyt ruled Texas case law recognizing the rolling public easement did not conflict with the U.S. Constitution and dismissed Severance’s claim.
But on appeal, the 5th Circuit Court of Appeals sent the case to the Texas Supreme Court for clarification of state law.
Before the court could decide whether Severance’s Fourth Amendment protection from unreasonable seizure had been violated, it needed to know whether Texas recognizes the rolling public beach easement, whether the easement is derived from common law doctrines or the Open Beaches Act, and to what extent a property owner should be entitled to compensation when the easement migrates onto private land.
Not State’s Right
In a split decision issued in November, six members of the supreme court held that Texas cannot condemn and take private property that ends up on the public beach as a result of erosion because it gave up that right when it became a U.S. state.
The opinion’s conclusion said: “Land patents from the Republic of Texas in 1840, affirmed by legislation in the new state, conveyed the state’s title in West Galveston Island to private parties and reserved no ownership interests or rights to public use in Galveston’s West Beach.”
Signed by Supreme Court Justice Dale Wainwright, the opinion said: “Although existing public easements ... are dynamic, as natural forces cause the vegetation and the mean high tide lines to move gradually and imperceptibly, these easements do not migrate or roll landward to encumber other parts ... as a result of avulsive events.”
The phrase “avulsive events” is legalese for sudden occurrences, which, in this case, includes severe storms and hurricanes.
In a 21-page dissenting opinion, Justices David Medina and Debra Lehrmann wrote: “The court’s vague distinction between gradual and sudden or slight and dramatic changes to the coastline jeopardizes the public’s right to free and open beaches, recognized over the past 200 years, and threatens to embroil the state in beach-front litigation for the next 200 years.”
If the Supreme court vacates its opinion, and the 5th Circuit renders the case moot, then a rolling public easement still will be the law as far as the Texas Open Beaches Act is concerned, Land Office Spokesman Jim Suydam said.
Upholding Ruling
If the supreme court does not vacate the decision, it still will hold precedential value in any other cases filed on the matter, he said.
