September 28, 2011

Fifth Circuit holds Severance v. Patterson "rolling beach easement" case is not moot

By Fifth Circuit holds Severance v. Patterson "rolling beach easement" case is not moot

Author: J. David Breemer

Today, the Fifth Circuit Court of Appeals issued a short order denying Texas State Officials' motion to hold the Severance v. Patterson rolling beach easement case moot.  The Court thus declined to rescind the questions it had previously sent to the Texas Supreme Court about the legality of the Officials' policy of rolling a public beach onto private land after storms take away the vegetation.

The case, filed in 2006, challenges the Officials' policy, allegedly arising under the Texas Open Beaches Act, under which Officials claim that the inland migration of the beach vegetation line also moves public's beach inland.

Under this policy, when a storm denudes beach front private property of vegetation, the Officials consider the land to be converted into a public beach all the way to the new vegetation line. In other words any new dry sandy areas become public. The Officials' theory is that the inland migration of the vegetation line "rolls" a public access easement onto all areas seaward of the new vegetation line- including property that has always been in private ownership. Any private homes that become seaward of the vegetation line are considered illegal encroachments on the "public beach."   The Officials further disavow any need to compensate a property owner who is suddenly subject to a public beach easement or to prove that an easement pre-existed on the land or the owner's title.

When Severance appealed her case to the Fifth Circuit, she held two properties subject to the policy. In 2008, Hurricane Ike came ashore and damaged both.  This triggered Texas "rolling easement" regulations that forbid owners of damaged beach homes from making repairs or rebuilding if those homes sit on dry sandy land; i.e; are seaward of the vegetation line.  Severance therefore could not repair her homes and she could not rent or use them. This left Severance without any economically viable use of two properties on which she continued to pay the mortgage.  

Nevertheless, Severance held onto the properties in the suit for almost three additional years in the hope that her suit would free her from the rolling easement policy and from no-repair rules.

During this time, the 5th Circuit certified three questions to the Texas Supreme Court, all of which essentially asked that Court to decide if the rolling easement policy was lawful and constitutional under Texas law.  The Texas Supreme Court initially ruled that it was not, but then granted rehearing in March, 2011.

As the case dragged on, the financial hardship to Severance of paying on two homes the State would not allow her to use increased.  In June of this year, Carol was forced to sell the last parcel in the suit through a FEMA beach hazard mitigation buy out program that expired in June. She sold her property on the last day for participation in that program.

She could not sell anywhere else due to the state of the homes and the rolling easement rules preventing their repair.

This sale prompted Texas Officials and various supporters to claim the case was moot. The Texas Supreme Court then abated its certified questions proceedings so the parties could take up the mootness issue with the 5th Circuit. Supplemental briefing ensued there.  Severance pointed the Court to provisions of the Open Beaches Act that threaten fines for anyone who violates the Act, for instance, by owning a home allegedly on the public beach.  

Today, the 5th Circuit rejected the Officials' claim that the case is moot and held that the the issues are still alive because "under Texas law, Carol Severance remains exposed to potential liability for alleged violations of the Texas Open Beaches Act during the period that her two beach houses, the original subjects of this lawsuit, were located seaward of the vegetation line."

Now the case returns, once again to the Texas Supreme Court.   Let's hope the Justices continue to see the injustice (and illegality) of allowing State Officials' to transform lawfully developed private land into a public beach merely because a storm has made the land sandy rather than vegetated.

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