PLF Victory! Texas Supreme Court strikes down the state’s “rolling easement” land grab—again

March 30, 2012 | By TIMOTHY SANDEFUR

Today, the Texas Supreme Court issued its long-awaited final ruling on the legality of that state’s policy of “rolling easements”—i.e., transforming private land into a public beach whenever a storm denudes it of vegetation and makes it into dry sand.

PLF challenged this policy on behalf of Carol Severance, who owned parcels along the Galveston Island coastline. When Hurricane Rita caused the vegetation line to move landward of her property, Texas officials declared that her property was now on the “public beach,” in violation of state law—thus subjecting her to potential fines and removal of her property. We argued that this policy took away her land and entitled her to just compensation under the Constitution.

Today, the court declared that “when a beachfront vegetation line is suddenly and dramatically pushed landward by acts of nature, an existing public easement on the public beach does not ‘roll’ inland to other parts of the parcel or onto a new parcel of land.”

Instead, if the state wants that property, it must pay for it, or prove that the public occupied and used that land long enough to create a real easement. In reaching this conclusion, the court emphasized that private property rights are “fundamental, natural, inherent, inalienable and not derived from the legislature and as pre-existing even constitutions.” In accordance with these principles, it rejected the state’s claim that private land becomes public when it becomes sandy because vegetation disappears.

Carol Severance’s case has surmounted numerous hurdles to get to this point. Originally filed in the federal court, the case made it to the state’s highest court only after the Fifth Circuit Court of Appeals decided that the policy was likely illegal, but that the final judgment should be left to state judges. The case was then briefed and argued in the Texas Supreme Court. On November 5, 2010, the Texas Supreme Court issued a decision holding that Texas law does not recognize the “rolling easement” policy. But the state, with support from many amici who claimed that the original decision would prevent sand re-nourishment projects along the Texas coast, urged the court to re-hear the case. It granted rehearing last March, and a second oral argument was held a month later.

In the meantime, Severance was barred from repairing her homes after Hurricane Ike, because they were still seaward of the vegetation line, which according to the state meant that the homes were now on the public beach. The financial burden of paying mortgages on two homes that were rendered useless because of this “rolling easement” policy eventually becomes too much for Severance to bear, and in early summer, 2011, she had to sell the homes. This prompted the state to argue that the case was moot, so briefing ensued on this issue in both the Texas Supreme Court and Fifth Circuit Court of Appeals. In September, 2012, the Fifth Circuit held that the case was not moot, which left it again to the Texas Supreme Court to decide whether the “rolling easement” policy was legal.

Today, the court answered: an emphatic “no.” The rolling easement policy is not a legitimate part of Texas law. Relying on Texas’ common law of easements (which requires proof that the public has used private land for a sustained period), the Court rejected the idea that these long-standing rules don’t apply on the coastline.

The case is highly controversial in some quarters, and has become a test of the strength of property rights under the most politically-charged conditions. Fortunately, the justices confirmed that property rights do not buckle, at least in Texas, just because they are costly to uphold and potentially unpopular to defend.

Now the case returns to the federal Court of Appeals, which will render a final ruling on the constitutionality of Texas officials’ treatment of Severance and her property.