The Fifth Circuit has been hearing a challenge to the constitutionality of the Texas Open Beaches Act (Wikipedia or Statutes).
Yesterday, a panel of the Fifth Circuit, divided 2-1 (with Chief Judge Jones and Judge Clement in the majority), certified three questions in the case to the Texas Supreme Court:
- Does Texas recognize a “rolling” public beachfront
access easement, i.e., an easement in favor of the public
that allows access to and use of the beaches on the Gulf
of Mexico, the boundary of which easement migrates
solely according to naturally caused changes in the
location of the vegetation line, without proof of
prescription, dedication or customary rights in the
property so occupied? -
If Texas recognizes such an easement, is it
derived from common law doctrines or from a
construction of the [Open Beaches Act]? -
To what extent, if any, would a landowner be
entitled to receive compensation (other than the
amount already offered for removal of the houses)
under Texas’s law or Constitution for the limitations on
use of her property effected by the landward migration
of a rolling easement onto property on which no public
easement has been found by dedication, prescription, or
custom?
Judge Wiener’s dissent (same PDF, at page 22) suggests that the case should have been dismissed for lack of Article III standing by the plaintiff (Severance):
And it matters not whether Ms. Severances role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) 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.
The case will now proceed to a new round of briefing on these questions, once the Texas Supreme Court accepts the case under Texas Rule of Appellate Procedure 58.6.
For those wondering, this will become the Texas Supreme Court’s only active certified-question case. The one most recently resolved by the Court was Financial Industries Corp. v. XL Specialty Insurance Co., No. 07-1059 (DB).
Update: The Pacific Legal Foundation has issued a public statement (PDF) taking issue with Judge Wiener’s “crusade” metaphor: “We do not regard our mission as “˜quixotic,’ or as an inevitable failure.”
More coverage: How Appealing and also Volokh Conspiracy.
5 responses so far ↓
1 LawClerk1 // Apr 24, 2009 at 12:12 pm
Seems to me that Judge Weiner just doesn’t like the law firm. But what that has to do with the case is beyond me. The way I understand the facts from the majority, this lady had a house that fronted the beach. Then a Hurricane came along and extended the beach so that her house was on it! And Texas came along and told her to tear it down. I don’t know what that is, but lack of standing isn’t it.
2 Don Cruse // Apr 24, 2009 at 12:34 pm
Alanis Morrissette would call that irony.
For a very technical procedural issue, standing seems to inspire remarkably strong feelings. It’s a perfect storm — a deep and fundamental question about the role of courts, judges, and citizens in our democracy that is answered with a fuzzy doctrinal analysis that leaves lots of room for disagreement.
3 Carol Severance // Apr 24, 2009 at 3:24 pm
I am the plaintiff in Severance v. Patterson. Neither PLF or me are “Californians’ Cervantian tilting at Texas Open Beaches Act (“OBA”)” as Judge Wiener has chosen so eloquently to describe our efforts.
The reference to some imaginary enemy that we are fighting couldn’t be further from the truth.
Imagine purchasing beachfront property in fee simple as a hard-earned investment, only to receive letters from some “imaginary” official that they are now on the public beach simply because a storm made the plants grow on the landward side of your homes. The letters say state officials may remove your home at any time. And the officials read state law to say, that because the vegetation moved, you have no right to exclude trespassers from your doorstep and no right to build or repair because a public easement supposedly now controls the land. There is no compensation or even a mechanism to seek it.
There is nothing imaginary about this scenario — it was all very real to me — because that’s what happened.
Before receiving those letters from officials at the Texas General Land Office, I had never heard of PLF. I knew I had to do something to protect my property rights. After researching other cases in Galveston, I contacted PLF. They did not contact me. I am grateful that they exist and agreed to help as litigating this type of case against the government’s tax payer funded attorneys for years is far too expensive for any one person.
4 On the docket: Texas Open Beaches Act; mold coverage; pleading a taking // Nov 19, 2009 at 6:31 am
[…] One of the cases is Severance v. Patterson, a certified question from a Fifth Circuit case attacking the constitutionality of the Texas Open Beaches Act. I blogged about the Fifth Circuit’s action (including its unusually scalding dissent from a certified question) here. […]
5 SCOTX asks the Fifth Circuit to move first in resolving the mootness of the Texas open-beaches case [Jul. 29, 2011] // Jul 29, 2011 at 10:20 am
[…] open beaches by the moving shoreline. The lawsuit was brought in federal court. The Fifth Circuit certified a question about Texas law to the Texas Supreme Court. Last November, the Texas Supreme Court announced a complex decision […]