Fifth Circuit: Fourth Amendment Seizure Of Beachfront Land Claim Not Subject To Williamson County Ripeness

A very interesting decision from the U.S. Court of Appeals for the Fifth Circuit in Severance v. Patterson, No. 07-20409 (Apr. 23, 2009). 

While much of the commentary about the case (see, e.g., here, here, and here) has focused on the dissenting opinion's ad hominem on the plaintiff's and her attorneys' motivations and the majority opinion's slap-down of the dissent (see footnote 1), for now we will stick to what the opinion held on the merits which is as interesting, if not more so. (We will add our thoughts about what the weird dissent said about public interest legal cases in a separate post.)

The case involved constitutional challenges to a Texas statute known as the Open Beaches Act, which imposes an easement for public access over certain beachfront land. After Ms. Severance purchased two beachfront parcels in Galveston, in 2005 Hurricane Rita caused the vegetation line to move landward, which subject large portions of her properties, including two homes, to the public access easement. The Commissioner of the Texas General Land Office informed her these homes were subject to removal and offered $40,000 in relocation assistance.

Severance filed suit in federal district court under two theories: the enforcement of the easement was a taking under the Fifth Amendment, and an illegal seizure under the Fourth. Fifth Amendment takings claims in this type of situation are nothing new, but a search-and-seizure claim? Whoa, isn't that the province of criminal law practitioners, not property rights mavens? Read on.

Fifth Amendment Takings Claim Not Ripe

The district court predictably tossed the Fifth Amendment claim out of federal court. Ms. Severance had not pursued just compensation in Texas state courts, and the court held her claim was not ripe under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).  That case established two requirements for a regulatory taking claim to be ripe in federal court: the government must have reached a final decision applying the regulation to the property at issue, and the plaintiff must have sought -- and been denied -- just compensation through available state procedures. Only the second test requirement was at issue.

On appeal, the court rejected Severance's assertion that the state litigation requirement was not applicable to a physical -- as opposed to purely regulatory -- taking. The court relied on circuit precedent to hold that Williamson County is applicable to a physical invasion as well as a regulatory taking. See slip op. at 8-9 (citing Urban Developers LLC v. City of Jackson, 468 F.3d 281 (5th Cir. 2006)). 

The Fifth Circuit also rejected Severance's argument that Williamson County does not apply when only declaratory or injunctive relief is sought. Slip op. at 9. The court recognized that the Williamson County rules, coupled with the rules of preclusion, prevent property owners from having their federal claims heard in federal court, and that in San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323 (2005), four Justices agreed Williamson County produces absurd results and denies federal court review of federal constitutional rights. But these Justices did not carry the day, and the Fifth Circuit noted that "the majority of the Supreme Court in San Remo were unconcerned by this result, observ ing that '[i]t is hardly a radical notion to recognize that, as a practical matter, a significant number of plaintiff will necessarily litigate their federal takings claims in state courts.'" Slip op. at 10 (quoting San Remo, 545 U.S. at 346). Until the Supreme Court overrules Williamson County, the Fifth Circuit -- and the rest of us -- are stuck with it.

Fourth Amendment Seizure Claim

The court reversed the district court's dismissal of the Fourth Amendment claim. The Fifth Circuit held that Williamson County's ripeness requirements are not applicable to a Fourth Amendment seizure claim. The court rejected the government's claim that the seizure claim was "subsumed" within the takings claim, because the Fourth Amendment applies to both civil and criminal seizures, and that a government act can violate more than one constitutional prohibition. Slip op. at 16. The court set out the elements of a civil seizure claim: "(a) a meaningful intereference with [the owner's] possessory interests in her property, which is (b) unreasonable because the intereference is unjustified by state law or, if justificed, then uncompensated." Slip op. at 17-18 (citing Presley v. City of Charlottesville, 464 F.3d 480, 487-88 (4th Cir. 2006)).

On the latter point, the Fifth Circuit held that Texas law was not clear.   Consequently, the court certified three questions 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 OBA?

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 custom?

Slip op. at 20.

After slinging mud at the plaintiff and Pacific Legal Foundation [disclosure: I do work for Pacific Legal Foundation in Hawaii], the dissent argued that the plaintiff lacked standing because she had no property interest in the land, and that the seizure was not unreasonable.