Public Beaches
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.
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."
Public beach cases divide state judiciaries. Nothing created greater controversy in the Michigan Supreme Court opinions than where one could walk in the "water." This has a state law underpinning, yet property rights under the navigable water rules.
