5th Circuit gives okay to continue beach vegetation line suit

By Steve Korris | Oct 18, 2011

NEW ORLEANS – Carol Severance can continue to challenge a decision that Hurricane Rita turned her Galveston Island properties into public beaches, even though she sold the properties, U. S. Fifth Circuit appellate judges ruled on Sept. 28.

They denied a motion from Texas Land Commissioner Jerry Patterson to declare her case moot and to withdraw questions they previously certified to the Supreme Court of Texas.

Patterson and Attorney General Greg Abbott argued that they wouldn't enforce the law against her, but Fifth District judges didn't accept that assurance.

"It is the statutory threat of penalties, not the intention of state officers, that determines the vitality of the controversy," they wrote.

Now the Fifth District must wait for the Supreme Court of Texas to decide whether Rita moved the line that separates private property from public beach.

The Justices, who abated their review of the case in July, reinstated it on Oct. 7

Severance, a California resident, bought homes on West Beach in 2005.

Rita soon struck, pushing the vegetation line landward.

Officials told her parts of her properties were on a public easement that had rolled with the vegetation line.

She sued at federal court in Houston to block forcible removal of the homes, alleging unreasonable seizure and violation of due process.

District Judge Kenneth Hoyt dismissed the suit in 2007, finding she could raise federal claims if the state ever filed an enforcement action.

She appealed, and the Fifth District asked the Supreme Court of Texas for guidance.

Last year, six Justices ruled that the state had to pay Severance for an easement.

Justice Dale Wainwright wrote that the Court wouldn't require new easements for gradual changes but would require them after sudden and dramatic acts of nature.

He wrote that the right to exclude others from private property is among the most valuable and fundamental rights possessed by property owners.

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

Dissenters David Medina and Debra Lehrmann warned that the majority jeopardized the public's right to free and open beaches.

Medina wrote that easements must roll with a changing coastline.

Chief Justice Wallace Jefferson didn't participate.

Abbott moved for rehearing, and the Justices granted it.

They heard oral arguments in April and took it under advisement.

Severance had sold two properties to the city of Galveston by then, through a Federal Emergency Management Agency program, and she sold another in June.

Abbott asked the Justices to declare the case moot, and they decided that the Fifth Circuit should make the call.

Abbott's assistant solicitor general, Arthur D'Andrea, told Fifth Circuit judges that Severance "faces no collateral consequences such as fines or civil penalties."

For Severance, David Breemer of Sacramento wrote that a rolling easement rendered the homes economically useless.

"After several years of holding on to these properties in the hope this suit would free them from rolling easement restrictions, the financial pressure of paying the mortgages on the useless properties became too much," he wrote.

He wrote that Hurricane Ike damaged the homes in 2008, and Severance couldn't repair them due to the rolling easement.

He wrote that she remained at risk of substantial fines and penalties for the period she maintained her homes on the alleged rolling easement.

D'Andrea answered, "We reiterate that the Open Beaches Act does not authorize penalties, of any sort, to be sought against someone who does not own a structure on the public beach."

Fifth District judges interpreted the law as Severance did.

They wrote, "Carol Severance remains exposed to potential liability for alleged violations of the Texas Open Beaches Act during the period that her two beach houses, the original subjects of this lawsuit, were located seaward of the vegetation line."

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