May 21, 2012

5th Circuit confirms Texas beach seizure victory

By J. David Breemer Senior Attorney

Six years ago PLF filed its complaint in federal court in Severance v. Patterson, a case challenging Texas’ policy of instantly converting private beachfront land into public property when storms move the vegetation line inland, and turn private parcels into “dry beaches.” In 2009, the 5th circuit ruled that Texas’  “dry sand becomes public land” policy likely violated the 4th Amendment to the Constitution as an unreasonable seizure of property. But it sent the case to the Texas Supreme Court, asking it whether Texas’ “rolling beach easement” policy was really part of Texas law or just a clever (and illegal) theory for taking private land for free. In March of this year, the Texas Supreme Court ruled that Texas does not recognize a “rolling easement” and that the State had to pay for private dry beach land or prove in court that a prescriptive easement existed there if it wants that private land to suddenly be open for use by the public.  This sent the case back to the 5th circuit for it to make a final decision on the constitutionality of Texas’ enforcement of an uncompensated public easement on Carol Severance’s land.

Today, the 5th Circuit issued a short published opinion holding that the Texas Supreme Court’s decision confirmed that Severance has a valid claim against the state for unreasonably and unconstitutionally seizing her land simply because it was denuded of vegetation.  One judge, Judge Weiner, continues to dissent. Although his grounds are not stated in today’s decision, he has previously objected to Severance’s case as a gratuitous PLF “libertarian crusade.” Today, the mission to defend Severance’s constitutional property rights ends in the 5th circuit and ends well. After a long battle with powerful state forces, she has vindicated her property rights and the private rights of all who own beachfront land.  Now, her case returns to the district court for final resolution.

Congratulations, Carol and PLF!

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