A fairly short one from the U.S. Court of Appeals for the Fifth Circuit.
In Sheffield v. Buckingham, No. 22-40350 (July 31, 2023), the court affirmed the district court's declining to issue a preliminary injunction enjoining State of Texas officials from enforcing the Open Beaches Act.
The presumptive public/private boundary on beaches in Texas is the mean high tide line, although the public may obtain an easement to access the beach landward of the MHTL through prescription or dedication. But as the Texas Supreme Court held, abrupt shifts in the topography of a beach caused by hurricanes and tropical storms does not automatically "roll" the line landward under the state's Open Beaches Act.
After the Texas court issued that ruling, the legislature amended the statute to permit the State to "suspend action on conducting a line of vegetation determination for a period of up to three years from the date the order is issued if the Commissioner determines that the line of vegetation was obliterated as a result of a meteorological event." Slip op. at 2.
Well, that happened and after Hurricane Laura and Tropical storm Beta hit the area, the state ordered determination of the vege line suspended for two years. This had the effect of the public/private line being 200 feet inland of where it was prior to the storms.
Owners who own that 200 feet filed a takings lawsuit in federal court against the State, alleging that that "the public can now stand, sit, and otherwise station themselves on" the plaintiffs' private beaches. Because this is a federal court action against state officials, the only remedy sought was prospective injunctive relief: an order prohibiting the officials from enforcing the Act.
The district court declined to enter a preliminary injunction, and the property owners appealed to the Fifth Circuit. On the same day the owners filed their Opening Brief, the State rescinded the order suspending the vege line determination, concluding the beach was stabilized, and thus the suspension no longer needed.
You know what happened next: the state argued to the Fifth Circuit that the appeal was moot. We no longer doing anything that the court can enjoin, Your Honors!
But come on man, we know that the process isn't so easily manipulable. A party cannot automatically moot a case by voluntarily ceasing to do the very thing the plaintiff claims is illegal, and then perhaps starting right back up once the lawsuit is gone. The Fifth Circuit rejected the owners' arguments that this one is capable of repetition, concluding that the temporary order is unlikely to recur and any future harms are speculative.
Yes, as littoral property owners, their properties could be subject to a similar action in the future. "But this is not unique to these Owners. All properties near the beachfront in Texas could theoretically be subject to similar actions." Slip op. at 6. Thus, this is a generalized grievance, not a specific harm.
Nor was the State suspending the suspension "litigation posturing" according to the Fifth Circuit. Yes, the State affirmatively rescinded the order a few months before it was set to automatically expire, but the court took the State at its word that the reason for the rescission was not to moot the appeal, but because it had served its purpose. The court was willing to presume this, in the absence of contrary evidence:
It would make little sense to have Texas leave the temporary order in place beyond its usefulness and purpose—laid out explicitly in the order—simply so a court could find that the case is moot. In effect, this order ended by its own terms when Texas determined that it achieved its written purpose.The presumption of truth to Texas’ statements that the temporary order served its usefulness—and did not end because of litigation posturing—is warranted. This is because “[g]overnment officials ‘in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties.’”
Slip op. at 7 (citations omitted).
Not only did the Fifth Circuit decline to reverse the turning down of the PI, it dismissed the case as moot.
Why can't the owner seek just compensation for the (alleged) temporary taking? You know the answer to that question.
Sheffield v. Buckingham, No. 22-40350 (5th Cir. July 31, 2023)