Severance v. Patterson

• Decision Date: 02 May 2007
• Docket Number: Civil Action No. H-06-2467.
• Citation: 485 F.Supp.2d 793
• Parties: Carol SEVERANCE, Plaintiff, v. Jerry PATTERSON, et al, Defendants.
• Court: U.S. District Court — Southern District of Texas

485 F.Supp.2d 793

Carol SEVERANCE, Plaintiff, v. Jerry PATTERSON, et al, Defendants.

Civil Action No. H-06-2467.

United States District Court, S.D. Texas, Houston Division.

May 2, 2007.

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Jan David Breemer, Pacific Legal Foundation, Sacramento, CA, for. Plaintiff.

Kenneth C. Cross, Office of the Attorney General, Austin, TX, Barry C. Willey, Galveston County Legal Dept, Galveston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

HOYT, District Judge.

I. INTRODUCTION

Now before the Court are the defendants' motions to dismiss this suit (Does. No. 18 and 35). After considering the voluminous submissions by the parties and the governing law, the Court has decided to DISMISS the plaintiffs suit because she has not presented any ripe claims that would entitle her to the relief she seeks. Specifically, the Court has concluded that none of her claims based on possible future enforcement actions are ripe, and the remaining claims fail as a matter of law.

A. The "Rolling" Beach Easement

Ultimately, this case is about whether the state of Texas can constitutionally recognize and enforce a "rolling" public beach easement. Under Texas law, once the public has established an easement over the "dry beach," the easement expands and contracts with the natural boundaries, of the beach (the mean high tide line and the natural vegetation line). Texas courts have declared that the easement rolls, and that within those dynamic, natural boundaries, the public's easement rights are superior to the property rights of beachfront landowners. The plaintiff, Carol Severance, is an aggrieved landowner who claims that the easement cannot constitutionally roll. In the context of this suit, she argues that the defendants' enforcement of the public's allegedly-superior easement rights violates her constitutional property rights.

B. Parties and Procedural Posture

Severance filed this suit for declaratory and injunctive relief against Texas Land Commissioner Jerry Patterson, Texas Attorney General Greg Abbot, and Galveston County District Attorney Kurt Sistrunk in their official capacities. The suit claims that the Texas Open Beaches Act, Tex. Nat. Res.Code Ann. §§ 61.001-61.254 (Vernon 2006) (the "OBA" or the "act"), and the defendants, through their interpretation and enforcement of the act, violate the plaintiffs rights under the federal Constitution. The plaintiff was permitted to file a Third Amended Complaint (Doc. No. 43), which is the complaint considered in connection with these motions. Though the defendants' motions are directed at particular claims asserted by the plaintiff, many of the issues are common to all the claims. The plaintiff responded to both motions, the defendants replied, and the plaintiff filed sur-replies.

C. Background

Severance, who is a California resident, owns three beachfront properties on Galveston Island, each improved with a single-family home (the "rental properties"): the "Kennedy home," located at 22716 Kennedy Drive; the "Bermuda Beach home," located at 13107 Bermuda Beach Drive; and the "Gulf home," located at 21238 Gulf. Drive. Severance purchased the Gulf home on or about March 1, 2005, and purchased the Kennedy and Bermuda Beach homes on or about April 5, 2005.

The parties agree that, at least when the suit was filed, the Kennedy and Bermuda Beach homes were entirely seaward of the vegetation line, and the Gulf home was partially seaward of the line. This is a somewhat precarious position; under Texas law, the public has established an easement over most of portions of the "dry beach," which is defined as the sandy land between the mean high tide mark and the vegetation line.¹ Because the vegetation line has moved landward, portions of Severance's real properties (including all or portions of the houses) are now on the public beach. Under the OBA, state officials can petition the courts for an order to remove "any improvement, maintenance, obstruction, barrier, or other encroachment on a public beach." § 61.018.

When Severance purchased her rental properties in March and April of 2005, she had reason to know that the location of the vegetation line could pose a problem. The properties' land sale contract disclosed that the vegetation line "`customarily marks the landward boundary of the public [beach] easement,' and that `structures ... that become seaward of the vegetation line as a result of natural processes are subject to a lawsuit by the state of Texas to remove the structures.'" Third Am. Compl. ¶ 38. Previously, in 1999, the Land Commissioner had listed the Kennedy and Bermuda Beach homes as entirely seaward of the vegetation line and referred them to the Attorney General for possible removal, though no litigation was filed at that time.

In June of 2004, pursuant to the OBA, the Land Commissioner entered a two-year moratorium order temporarily suspending any removal actions against a list of 116 coastal properties, including the Kennedy, Bermuda Beach, and Gulf homes. See Press Release, Tex. Gen. Land Office, Patterson Takes Action to Enforce Texas Open Beaches Act (June 8, 2004)²; see also § 61.0185 (authorizing moratorium orders). While this moratorium order was in place, Severance purchased the rental properties. She claims that at the time she purchased the Bermuda Beach home, the vegetation line had moved entirely seaward of the house.

In May and June of 2006, state officials conducted a survey of the vegetation line. They determined that the Kennedy and Bermuda Beach homes were 100% seaward of the vegetation line, and the Gulf home was approximately 50% seaward of the line. The General Land Office contacted Severance and informed her that the moratorium would be lifted and that state officials could file enforcement actions seeking removal of any portion of the homes that encroached on the public beach "at any time." The GLO also offered financial assistance for removing the homes. On June 7, 2006, the moratorium order expired and the Land Commissioner announced his "Plan for Texas Open Beaches," which stated that the GLO would continue to use litigation, as necessary, to remove encroachments on the public beach.

Severance filed this federal action in July of 2006 seeking declaratory and injunctive relief preventing the Defendants from enforcing the public easement against her rental properties. She claims that defendants' have violated, and will continue to violate, her rights under the Fourth, Fifth, and Fourteenth Amendments to the federal Constitution. Specifically, she alleges (1) regulatory and (2) "physical invasion" takings for public use without just compensation; (3) violation of substantive due process; and (4) an unreasonable seizure of her property. The defendants have moved to dismiss all these claims. First, they argue that this Court lacks (or should not exercise) jurisdiction because of sovereign immunity and ripeness. Second, they argue that the plaintiff has not stated a claim upon which relief can be granted.

While this action was pending, the Land Commissioner announced or clarified his OBA enforcement policy. Under the policy,

The GLO will give first priority for removal lawsuits against the owners of structures that (1) significantly restrict or impair the public's access to or use of the beaches, (2) pose an imminent public health and safety hazard, or (3) are located on state-owned submerged land. The GLO will give low priority to initiating removal lawsuits for other existing structures on the public beach that are not involved in litigation with the State. If the GLO determines that a house or structure meets one of the three criteria for enforcement under this policy, the GLO's intent is to work with the property owner to resolve the situation by exploring options, such as relocation assistance, where practicable.

Tex. Gen. Land Office, Texas Open Beaches Enforcement Policy, http://www.glo. state.tx.us/coastal/beachdune/openbeaches. html (Sept. 18, 2006).

II. LEGAL STANDARD

If an actual, justiciable case or controversy exists and the case falls within this Court's jurisdiction, then the Court may enter both declaratory and injunctive relief under the Declaratory Judgment Act. 28 U.S.C. §§ 2201-02 (2000). However, Severance must establish jurisdiction and present a justiciable case. § 2201 (requiring "a case of actual controversy within [the court's] jurisdiction"). Further, the Declaratory Judgment Act vests broad discretion in the district courts, including the discretion to dismiss the case at an early stage. "If a district court, in the sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to proceed to the merits before staying or dismissing the action." Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995).

Sovereign immunity and ripeness are issues of law that implicate this Court's subject matter jurisdiction. See Fed. R.Civ.P. 12(b)(1); see also Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir.2005) (state sovereign immunity); Urban Developers, LLC v. City of Jackson, 468 F.3d 281, 292 (5th Cir.2006) (ripeness). A district court may resolve jurisdictional questions based on the pleadings alone, the pleadings plus the undisputed facts, or the pleadings, undisputed facts, and the disputed facts as resolved by the Court. See Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 n. 17 (5th Cir.2005); Robinson v. TCl/US West Commc'ns, Inc., 117 F.3d 900, 904 (5th Cir.1997).

A complaint fails to state a claim "only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief." Carroll v. Fort James Corp., 470 F.3d 1171, 1173 (5th Cir.2006) (internal quotation omitted); see also Fed.R.Civ.P. 12(b)(6). Typically, the 12(b)(6) inquiry looks only at the...