Sheffield v. Bush
| Decision Date | 23 May 2022 |
| Docket Number | 3:21-cv-122 |
| Parties | Charles SHEFFIELD, et al., Plaintiffs, v. George P. BUSH, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Jan David Breemer, Pacific Legal Foundation, Sacramento, CA, Jeffrey Wilson McCoy, Pacific Legal Foundation, Highlands Ranch, CO, for Plaintiffs Charles Sheffield, Merry C. Porter.
Jan David Breemer, Pacific Legal Foundation, Sacramento, CA, for Plaintiff Pedestrian Beach, LLC.
Shelly Magan Doggett, Jessica Amber Ahmed, Office of the Attorney General of Texas, Austin, TX, for Defendant.
Enacted in 1959, the Texas Open Beaches Act protects access to Texas beaches, particularly where the public has acquired an easement or right of use. Tex. Nat. Res. Code §§ 61.011(a), 61.013(a). In the summer of 2020, after two tropical storms obliterated the natural vegetation line in the Village of Surfside Beach, the Texas General Land Office (GLO) issued an order temporarily deeming the line of vegetation 200 feet inland from the mean low tide line. The plaintiffs, Charles Sheffield and Pedestrian Beach, LLC, homeowners of beachfront property in Surfside Beach, brought this action against the Commissioner of the GLO, George P. Bush, seeking a declaration that the order amounts to an unconstitutional taking, constitutes an unreasonable seizure, and violates due process.
Pending before the court are two motions: the Commissioner's motion to dismiss and the homeowners’ motion for a preliminary injunction to halt the enforcement of the order. See Dkts. 19, 16. After considering the pleadings, arguments, evidence, and relevant case law, the court grants in part and denies in part the Commissioner's motion to dismiss, and denies the homeowners’ motion for preliminary injunction.
For the purposes of Texas coastal property law, the "mean low tide" (MLT) and the "mean high tide" (MHT) mark the average of low-and high-tide marks over a roughly 19-year period. See Luttes v. State , 159 Tex. 500, 324 S.W.2d 167, 174 (1958). The area between the MLT and the MHT is called the "wet beach" because it is under tidal waters for at least some time each day. Severance v. Patterson , 370 S.W.3d 705, 714–15 (Tex. 2012). In Texas, the State owns the wet beach in trust for the public use. Id. at 717–18 (citing Luttes , 324 S.W.2d at 167, 191–92 ).
The area between the MHT and the natural "line of vegetation" (LOV) is called the "dry beach." Id. at 714. The State does not automatically hold title to all the dry beach. Id. at 710. These are often private lands to which the State may obtain access for the public through easements established by "prescription or dedication," or where a right of public use exists "by virtue of continuous right in the public since time immemorial." Id. at 711 (quoting Tex. Nat. Res. Code §§ 61.011(a), 61.013(a) ).
The Open Beaches Act (OBA) "does not create easements for public use along Texas Gulf-front beaches," Severance , 370 S.W.3d at 714, but merely provides the State with a "means of enforcing public rights to use of state-owned beaches and of privately owned beach property where an easement is established in favor of the public." Id. at 710–11. A "public beach"—a term of art within the OBA—is defined as:
any beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use or easement to or over the area by prescription, dedication, presumption, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom.
Tex. Nat. Res. Code § 61.001(8). Thus, the Texas Legislature defines "public beach" by two criteria: physical location and right of use. Severance , 370 S.W.3d at 714. Accordingly, because much of the dry beach was given through land grants in the 1800s to private parties without the State retaining any right of access, the dry beach becomes part of the "public beach" only if a right to public use has been judicially established. Id. at 715.
Tide lines and vegetation lines are not static. They are constantly changed by dynamic natural forces, both gradually and sometimes quite suddenly. In a landmark case issued a decade ago, Severance v. Patterson , the Supreme Court of Texas distinguished between the way in which gradual changes affect public beach easements, and how sudden changes affect them. 370 S.W.3d 705 (Tex. 2012). As tide lines and vegetation lines change over time, the public easements do, too. "They may shrink or expand gradually with the properties they encumber." Id. at 708. The Severance Court noted that the State need not "re-establish easements each time boundaries move due to gradual and imperceptible changes to the coastal landscape." Id.
The Court held, however, that abrupt changes, such as those caused by hurricanes and tropical storms, are different. "[W]hen a beachfront vegetation line is suddenly and dramatically pushed landward by acts of nature, an existing public easement does not ‘roll’ inland to other parts of the parcel or onto a new parcel of land." Id. "[W]hen land and the attached easement are swallowed by the Gulf of Mexico in an avulsive event, a new easement must be established by sufficient proof to encumber the newly created dry beach bordering the ocean." Id. In short, without a judicial determination that a public easement should encumber a portion of the dry beach, the fact that the LOV changes does not automatically give the public a right of access to private land. This requirement, the Court noted, protects property owners’ right to exclude—"one of the most treasured strands in an owner's bundle of property rights." Id. at 709 (quoting Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 435–36, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) ).
But once a piece of land is properly designated as a "public beach," the OBA expressly prohibits efforts to exclude:
No person may display or cause to be displayed on or adjacent to any public beach any sign, marker, or warning, or make or cause to be made any written or oral communication which states that the public beach is private property or represent in any other manner that the public does not have the right of access to the public beach as guaranteed by this subchapter.
Tex. Nat. Res. Code § 61.014(b).
After Severance , the Texas Legislature added § 61.0171 to the OBA.1 It permits the Commissioner to, by order, "suspend action on conducting a line of vegetation determination for a period of up to three years from the date the order is issued if the Commissioner determines that the line of vegetation was obliterated as a result of a meteorological event." Id. § 61.0171(a). "For the duration of the order, the public beach shall extend to a line 200 feet inland from the line of mean low tide as established by a licensed state land surveyor." Id. An order issued under this section is "filed for record by the land office in the real property records of the county in which the area of the beach subject to the order is located." Id. § 61.0171(b). "Following expiration of an order ... the Commissioner shall make a determination regarding the line of vegetation," and this line "shall constitute the landward boundary of the area subject to public easement." Id. § 61.0171(f), (h).
The plaintiffs Charles Sheffield and Pedestrian Beach, LLC (collectively, the "homeowners") own four beachfront parcels in the Village of Surfside Beach. Both Sheffield and Pedestrian Beach operate the properties as vacation-rental homes.
In the summer of 2020, Hurricane Laura and Tropical Storm Beta devastated the coastline in the Surfside Beach area. See Dkt. 16-4 at 1. In response to these events, on March 29, 2021, the Commissioner issued an order under § 61.0171 entitled, "Temporary Order Suspending Determination of the Line of Vegetation and Suspending Enforcement of Certain Encroachments on the Public Beach" (the "Order"). Id. The Order provides that for a period of two years, the "area from the MLT to 200 feet landward shall be the minimum public beach easement." Id. at 2. It also suspends, for a period of three years, the removal of houses that may now be seaward of the new line of vegetation. Id. The Order states that designating this temporary LOV was necessary because the storms "obliterated" the natural LOV. Id. at 1. The Order notes that without an identifiable vegetation line, certain permits, such as for beachfront construction, cannot be issued. Id.
The homeowners filed this action after the Order issued, alleging causes of action under the Fifth Amendment's Takings Clause, the Fourth Amendment's Seizure Clause, and the Fourteenth Amendment's Due Process Clause. See generally Dkt. 1. Specifically, the homeowners argue that the Order appropriates a public-beach easement comprising all the land from the MLT line to 200 feet inland without first seeking a judicial determination that such an easement exists as Severance requires. Id. ¶ 53.
In their amended complaint, the homeowners seek a declaratory judgment under Ex Parte Young that (1) the Order effects an unconstitutional taking of private property facially and as-applied to the homeowners; (2) the Order effects an unreasonable seizure on its face and as-applied to the homeowners’ land by imposing a public beach on their private land without prior compliance with Severance ’s command that the State first obtain a judicial determination of an easement; (3) the Order deprives the homeowners of real-property interests without notice or a hearing and, thus, without due process of law; and (4) the Order's placement of the public beach at a 200-foot line is arbitrary and irrational, and thus violates "substantive due process."2 Dkt. 12 at 26–27. The...
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