On Tuesday, April 19, 2011 starting at 9:00 a.m. Central Time, the Texas Supreme Court will hear oral arguments in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010), the case in which the court held 6-2 that Texas does not recognize a "rolling" public beachfront access easement, without proof of prescription. Thus, the public does not gain an easement over private property upon sudden changes in the shoreline. In March, the court agreed to rehear the case. [Disclosure: my colleagues at Pacific Legal Foundation represent the property owner.]
St. Mary's law school will be live streaming the arguments here.
Texas is one of those states (like Hawaii) that under common law now treats the vegetation line as the public-private boundary on beaches. (Technically, in Hawaii it isn't the veg line, but rather the upper reaches of the high wash of the waves, as evidenced by the vegetation or debris line -- but close enough.) The case started when Hurricane Rita suddenly and dramatically pushed the vegetation line landward, placing Ms. Severance's home seaward of the new vegetation line. After a survey, the Texas General Land Office notified her that her home was now on public land, and offered her $40,000 in relocation expenses, but nothing in compensation for her home. She went to federal district court, which dismissed. The Fifth Circuit reversed, but certified three questions (see slip op. at 20) to the Texas courts, asking whether Texas law recognizes a "rolling" easement that migrates "solely according to naturally caused changes in the location of the vegetation line without proof of prescription."
Sidebar: the Fifth Circuit dissent, as we noted here, was one of the most objectionable things we had read in recent memory since it was premised on the idea that an out-of-stater should not try to vindicate her federal constituional rights in a Texas federal court. Hold your nose when you read the dissent, and ask youself whether Judge Wiener would come to the same conclusion in a case involving a California citizen who was seeking to vindicate her First Amendment rights in the Southern District of Texas and was represented by the ACLU and not PLF. Southern Fried Justice, indeed.
More about the case here (the Texas Supreme Court's decision on certified questions from the Fifth Circuit), and here (the Fifth Circuit's earlier opinion holding that the owner's claim for an illegal Fourth Amendment seizure was not subject to Williamson County ripeness).
The property owner's brief presents these issues:
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 Open Beaches Act (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 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?
Here are the merits and amicus briefs in the case:
Here's the complete docket report for the case, with all merits and amicus briefs, amicus letters, and other pleadings.
