The Texas Supreme Court will consider Thursday whether the Texas Open Beaches Act violates the U.S. Constitution’s prohibition against unreasonable seizures.
The case, brought by a Galveston property owner whose house ended up on the public beach after Hurricane Rita, challenges the rolling easement theory adopted by state officials in the face of eroding beaches.
Under state law and a constitutional amendment approved by voters earlier this month, Texas beaches must remain accessible to the public through an easement that exists between the vegetation line and the mean low tide line.
When the tide and vegetation lines move because of erosion or storm damage, the easement moves, state officials maintain. The Open Beaches Act gives the Texas land commissioner the right to remove houses that end up in the easement, and state officials always have interpreted the law to mean they do not have to provide compensation to the owner.
But Carol Severance, who owned four houses on Galveston’s West End, challenged that interpretation of the law after Land Commissioner Jerry Patterson sent her a letter in 2006 telling her that three of her houses might be subject to removal because of storm-related beach erosion.
Questions On Appeal
Represented by the Pacific Legal Foundation, a property rights advocacy group, Severance filed a federal suit against Patterson, Attorney General Greg Abbott and Galveston County Criminal District Attorney Kurt Sistrunk.
In May 2007, U.S. District Judge Kenneth M. Hoyt dismissed Severance’s claim, but on appeal, the Fifth Circuit Court of Appeals sent the case to the Texas Supreme Court for clarification of state law.
Before the court could decide whether Severance’s Fourth Amendment protection from “unreasonable seizure” had been violated, it needed to know whether Texas recognizes a “rolling” public beach easement, whether the easement is derived from common law doctrines or the Open Beaches Act, and to what extent a property owner should be entitled to compensation when the easement migrates onto private land.
‘More At Stake’
Five organizations not party to the suit filed briefs in the case, trying to sway the justices’ ruling.
Three groups sided with Severance, who claims the state should buy her houses if they must be removed. Two organizations, including the Galveston Chamber of Commerce, threw their weight behind the state’s case.
Even if the court decides the easement doesn’t move with the tide line, all of the property on the island is encumbered with the obligation to provide the public access to the beach, no matter where the beach is, because the land was part of a few large tracts when the easement was established, Lynn Blais, a professor at the University of Texas law school, said.
Blais submitted her brief on behalf of the chamber, which also wanted the court to consider the importance of open beaches to the state’s tourism economy.
“There’s a lot more at stake here than the landowner’s desire to kick people off the beach,” she said.
Classic Takings
But for the Texas Landowners Council, a property rights advocacy group, the Severance case is a classic example of the government taking land without providing compensation.
“In this case, the state has said because the hurricane killed some vegetation, it’s now state property,” Jimmy Gaines, council president, said.
Nothing in the Texas Open Beaches Act gives the state the right to seize beach-front property, Gaines said. The state is just taking advantage of people who already got wiped out by a hurricane, he said.
The Texas General Land Office eventually dropped plans to remove any houses that ended up in the public beach easement in 2005. And after Hurricane Ike, Patterson said repeatedly he would not enforce the law unless a house posed a threat to public safety or blocked access to the beach.
The state also provided $10 million toward federal buyouts offered to beach-front property owners earlier this year.
Severance sold all four of her houses, for pre-storm values, in the buyout.
Although some legal experts said Severance no longer has standing in the case because she no longer owns her properties, officials with the state attorney general’s office said it’s too soon to know whether the case might be dismissed.
