Severance v. Patterson

• Decision Date: 23 April 2009
• Docket Number: No. 07-20409.,07-20409.
• Parties: Carol SEVERANCE, Plaintiff-Appellant, v. Jerry PATTERSON, Commissioner of the Texas General Land Office; Greg Abbott, Attorney General for the State of Texas; Kurt Sistrunk, District Attorney for the County of Galveston, Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

566 F.3d 490

Carol SEVERANCE, Plaintiff-Appellant, v. Jerry PATTERSON, Commissioner of the Texas General Land Office; Greg Abbott, Attorney General for the State of Texas; Kurt Sistrunk, District Attorney for the County of Galveston, Texas, Defendants-Appellees.

No. 07-20409.

United States Court of Appeals, Fifth Circuit.

April 23, 2009.

J. David Breemer (argued), Pacific Legal Foundation, Sacramento, CA, for Severance.

Daniel Luke Geyser (argued), Austin, TX, for Patterson and Abbott.

Kenneth Charles Cross, Asst. Atty. Gen., Office of Atty. Gen, Nat. Resources Div., Austin, TX, for Abbott and Sistrunk.

Barry C. Willey, Galveston, TX, for Sistrunk.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

EDITH H. JONES, Chief Judge:

Carol Severance filed suit against Texas Attorney General Greg Abbott, Commissioner of the Texas General Land Office Jerry Patterson, and Galveston County District Attorney Kurt Sistrunk (the "Officials"), seeking declaratory and injunctive relief to prevent them from enforcing a public easement under the Texas Open Beaches Act, TEX. NAT. RES.CODE ANN. § 61.011(a) et seq. Severance contends that because the beach boundary of her property migrated landward after Hurricane Rita, taking in land not previously encumbered by a public access easement, the enforcement of the easement on her beachfront properties constitutes a seizure in violation of the Fourth Amendment and a taking without just compensation in violation of the Fifth Amendment. The district court dismissed the action, ruling that Severance failed to state a claim for relief because Texas law recognizes a "rolling" beachfront easement; this type of easement predated Severance's purchase of her beachfront properties; the State may enforce the easement as natural changes occur in its location; and no constitutional violation results from an uncompensated change in the easement's location on Severance's property. We affirm dismissal of the takings claim and certify state law issues to the Texas Supreme court in regard to the claim of unreasonable seizure.¹

I.

To clarify the constitutional questions this case presents, a brief sketch of Texas's property law as it relates to the State's coastal areas is necessary. In Luttes v. State, the Texas Supreme Court ruled for the first time that the State owned only the coastal land seaward of the mean high tide, or the "wet beach." 159 Tex. 500, 324 S.W.2d 167, 187 (1958). One year later, the Texas legislature enacted the Open Beaches Act ("OBA"), TEX. NAT. RES.CODE ANN. § 61.011(a). The OBA provides that

if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico [i.e. both the "wet beach" and "dry beach"].

Id.

To enforce the OBA, various state and local officials may seek declaratory or injunctive relief, including orders to remove "any improvement, maintenance, obstruction, barrier, or other encroachment on a public beach...." Id. § 61.018(a). A landowner may not exclude the public from a beach covered by the OBA. Id. § 61.014(b).

Following passage of the OBA, Texas courts have found that the public has acquired easements by prescription or implied dedication or custom on the dry beach along portions of the Texas Gulf Coast. See, e.g., Seaway Co. v. Att'y Gen., 375 S.W.2d 923, 936-37 (Tex.Civ.App.— Houston 1964, writ ref'd n.r.e.); Matcha v. Mattox, 711 S.W.2d 95, 101 (Tex.Civ. App.—Austin 1986, writ denied); Feinman v. State, 717 S.W.2d 106, 113 (Tex. App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.). Although the OBA is silent about the effect of erosion on the boundaries of public beachfront easements, Texas courts have also held that, once an easement is established, its boundaries shift with the vegetation line and the line of mean low tide. Feinman, 717 S.W.2d at 110-11. Under this "rolling easement doctrine," the State is not required to establish a new easement via prescription, dedication or continuous right as the shoreline migrates landward. Id. Migration of the shoreline frequently accompanies hurricanes or tropical storms.²

II.

Carol Severance, a California resident, purchased two beachfront properties along Bermuda Beach Drive and Kennedy Drive on West Galveston Island in April 2005. Each parcel was improved with a single-family home that Severance has used as rental properties. No easement has ever been established on either parcel via prescription, implied dedication, or continuous right. However, in 1975, the State obtained a judgment in another case that an easement existed on a strip of beach seaward of Severance's land.

The parties disagree as to whether any part of Severance's properties was subject to a rolling easement before Severance purchased the properties.³ It is undisputed that after the purchase erosion caused by Hurricane Rita in September 2005 shifted the vegetation line farther landward, causing a large segment of Severance's properties, including both homes, to be located on the dry beach. On June 7, 2006, a temporary moratorium on the removal of houses located on the public beach expired, and the Commissioner informed Severance that her houses were subject to a removal order at any time. The State offered Severance approximately $40,000 assistance to relocate or remove the two houses. She refused the offer.

Severance promptly filed this suit for declaratory and injunctive relief against the Officials. She alleged that enforcement of the rolling easement pursuant to the OBA would effect an illegal seizure under the Fourth Amendment and an impermissible taking without just compensation under the Fifth Amendment. She also alleged that the enforcement would violate her substantive due process rights. The State moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), arguing that her constitutional challenges were barred on jurisdictional grounds, including sovereign immunity and ripeness, and were in any event meritless.

After determining that the Officials were not immune from suit, the district court drew a distinction between Severance's challenges to (a) the Officials' ability to bring a future action to have her homes removed under the OBA and (b) the imposition of the rolling easement in general, which prevents Severance from excluding others on the dry beach portion of her properties. The district court dismissed both challenges, finding the house removal claims not ripe and the rolling easement claims "arguably ripe" but deficient on the merits. As was noted at the outset, the district court held that Severance could not assert a claim for violation of state or constitutional law arising from the State's enforcement of a rolling public beachfront access easement on her properties.

Severance timely filed this appeal. She has abandoned her substantive due process challenge, and does not contest the dismissal of her house removal claims.⁴ On appeal, she asserts that, as applied to her properties, the migration of the rolling easement without a finding of prescription, dedication or custom, and without compensation effects an unconstitutional taking and seizure.

III.

Before reaching Severance's arguments on the merits, we must consider the Officials' contention that her suit is barred on jurisdictional grounds. The Officials maintain that sovereign immunity precludes the suit, that Severance lacks standing to pursue her claims, and that her claims are unripe. We review the issue of Eleventh Amendment immunity, like other jurisdictional issues, de novo. United States ex rel. Barron v. Deloitte & Touche, 381 F.3d 438, 439 (5th Cir.2004).

A. Sovereign Immunity

The Officials contend that Eleventh Amendment sovereign immunity bars Severance's suit. The district court disagreed, holding that the suit fit within Ex Parte Young, which allows suits against state officials for prospective relief. See 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

The Officials do not dispute that Severance is seeking prospective equitable relief. Rather, relying on the Supreme Court's decision in Coeur d'Alene and this court's decision in Mauro, they argue that the Ex Parte Young exception is inapplicable. See Idaho v. Coeur d'Alene, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997); John G. & Marie Stella Kenedy Mem'l Found. v. Mauro, 21 F.3d 667 (5th Cir.1994). In Coeur d'Alene, the Supreme Court held that an Indian Tribe's suit was barred by the Eleventh Amendment because the Tribe's claims were the "functional equivalent of quiet title in that substantially all benefits of ownership and control would shift from the State to the Tribe" should the Tribe prevail. 521 U.S. at 282, 117 S.Ct. at 2040. The Court held that "[u]nder these particular and special circumstances," the Ex Parte Young exception to Eleventh Amendment sovereign immunity did not apply. Id. at 287, 117 S.Ct. at 2042-43. Mauro likewise arose from a quiet title action in which the parties disputed ownership of the property. 21 F.3d at 671-72.

In contrast to Coeur d'Alene and Mauro, Severance's suit is not the functional equivalent of a quiet-title action: Title to the properties at issue rests with Severance, not the State. The Officials do not claim title, nor could they under the OBA. See TEX. NAT. RES.CODE ANN. § 61.023 (OBA "shall not be construed as affecting in any way the title of the owners of land adjacent to any state-owned beach bordering on the seaward shore of the Gulf of Mexico"). The issue is whether the State may constitutionally impose an easement, or an encumbrance, on her fee simple estate. Thus, the "particular and special circumstances" of ...