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:

  1. 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?

  2. If Texas recognizes such an easement, is it
    derived from common law doctrines or from a
    construction of the [Open Beaches Act]?

  3. 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

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 “╦ťquixotic,’ or as an inevitable failure.”

More coverage: How Appealing and also Volokh Conspiracy.