High court abates rehearing of Open Beaches case

Steve Korris Aug. 2, 2011, 4:24am

AUSTIN – As the Supreme Court of Texas struggled for a second time to draw a line between private property and public beach on Galveston Island, money from Washington relieved them of the decision.

On July 29, the Justices abated their rehearing of an opinion they issued last November, requiring the state to pay for an easement for public access to beach that was shifted by Hurricane Rita.

"While rehearing was pending, appellant Carol Severance sold the property at issue to the city of Galveston in a Federal Emergency Management buyout program for homes damaged by Hurricane Ike," the Justices wrote.

The city of Galveston paid about $1.5 million for three properties that cost Severance $1.1 million.

Texas Land Commissioner Jerry Patterson wanted the Justices to wipe out last year's decision by declaring the case moot, but the Justices didn't want to make that call.

They sent the case back to U. S. Fifth Circuit appellate judges in New Orleans, who had asked them to settle the question of access under the Texas Open Beaches Act of 1959.

"The determination whether the federal lawsuit is moot must be made by the Fifth Circuit," the Justices wrote.

They abated their reconsideration pending action at the Fifth Circuit.

Severance, a Californian, bought three properties on Galveston's West Beach in 2005.

Hurricane Rita made landfall on the upper Texas coast in September 2005. The storm eroded the beaches, pushing the vegetation line toward land.

State officials told her parts of her properties were now on a public easement because the easement rolled with the vegetation line. They told her the homes interfered with public use of the dry beach.

She sued Patterson, Attorney General Greg Abbott and Galveston County District Attorney Kurt Sistrunk in federal court to block "forcible removal" of the homes.

Her lawyer, David Breemer of Sacramento, Calif., wrote that "if removal is permissible, enjoin the defendants from removing the homes without just compensation."

Severance alleged unreasonable seizure and violation of due process.

U. S. District Judge Kenneth Hoyt of Houston dismissed the suit in 2007, finding removal of the homes far from certain.

"She can raise any of her federal claims as a defense to an enforcement action, if one is ever filed," he wrote.

On appeal, Fifth Circuit judges agreed that her claim wasn't ripe but certified questions about her case to the Supreme Court of Texas.

There, six Justices ruled that they wouldn't require new easements for gradual and imperceptible changes, but would require them after sudden and dramatic acts of nature.

Justice Dale Wainwright wrote, "These public easements may gradually change size and shape as the respective Gulf front properties they burden imperceptibly change, but they do not 'roll' onto previously unencumbered private beachfront property when avulsive events cause dramatic changes in the coastline."

"On one hand, the public has an important interest in the enjoyment of Texas's public beaches," Wainwright wrote. "But on the other hand, the right to exclude others from privately owned realty is among the most valuable and fundamental of rights possessed by private property owners."

He wrote that the state owns all "wet beach" -- the area from mean low tide to mean high tide -- but that dry beaches are often privately owned. Where dry beach is privately owned, it is part of the public beach if a right to public use has been established on it.

In 1840, the Republic of Texas granted Levi Jones and Edward Hall title to West Beach. Then in 1852, the State of Texas relinquished forever all title to lots possessed and occupied by those who bought them under the Jones and Hall grant.

He wrote, "We have never held the dry beach to be encompassed in the public trust."

Justices Nathan Hecht, Paul Green, Phil Johnson, Don Willett and Eva Guzman agreed.

Justices David Medina and Debra Lehrmann dissented, writing that the Court jeopardized the public's right to free and open beaches.

Medina wrote that a vague distinction between gradual and sudden changes threatened to embroil the state in litigation for the next 200 years.

"Easements that allow the public access to the beach must roll with the changing coastline in order to protect the public's right of use," he wrote.

He wrote that since 1986, purchasers of property were expressly warned that an existing public easement restricted their right to develop, maintain or repair structures.

"The right to exclude the public from the dry beach was never in the landowner's bundle of sticks when she purchased the property," Medina wrote. "The state owes no compensation for a property right that the landowner does not actually possess."

Chief Justice Wallace Jefferson did not participate.

By the time the Justices reached a decision, Severance had sold two of three properties.

Abbott and Sistrunk moved for rehearing, and the city of Houston supported them as friend of the court.

"Each year Houston collects sales taxes, hotel occupancy taxes, and airport landing fees paid directly or indirectly by visitors whose destination is Galveston's beach, less than 30 minutes from Houston's corporate boundary," Assistant City Attorney Lynette Fons wrote.

This April, the Justices heard oral arguments.

In June, Breemer notified the Fifth Circuit that Severance had also sold the third property.

Abbott asked the Supreme Court to declare the case moot, but Breemer argued that the Fifth Circuit should decide.

Breemer wrote, "She is confident the case has not been rendered moot."

For Abbott, Assistant Solicitor General Arthur D'Andrea responded as if it didn't matter who decided.

"Supplemental briefing will plainly reveal to both courts that this lawsuit is moot," D'Andrea wrote.

"It is difficult to understand what Severance hopes to gain by delaying the inevitable," he wrote.

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