Important Texas Supreme Court Opinion Protecting Beachfront Property Rights

The Texas Supreme Court recently issued an important opinion protecting the property rights of beachfront property owners. Matt Festa of Land Use Prof Blog has a helpful post discussing the case, and providing numerous relevant links:

The Texas Supreme Court issued its opinion today in Severance v. Patterson, a case that the Fifth Circuit certified on questions of interpreting state property law and the Texas Open Beaches Act (provisions which last year became part of the Texas Constitution). The plaintiff owned beachfront property that ended up forward of the vegetation line after the damage wrought by Hurricane Rita in 2005. The state informed her that her houses were now on the public easement and that the houses could be subject to a removal order. The plaintiff claimed both a Fifth Amendment taking and, unusually, a Fourth Amendment unreasonable seizure. The Fifth Circuit held the takings claim unripe but certified three questions to the Texas Supreme Court ….

The Court held (6-2) that the Act does not establish a rolling easement, at least to the extent that the state asserted–essentially siding with the plaintiff…

Now the case heads back to the Fifth Circuit, and we are left with a very significant ruling interpreting the Open Beaches Act. Many will criticize the opinion, which could make it much more difficult, practically and/or financially, for the state to establish public beach easements. The opinion also seems to leave undecided where to draw the line between merely “gradual” changes in the high tide line and more “dramatic” changes due to avulsion. It will be seen as a big win for the Pacific Legal Foundation, which represented the plaintiff, and by other libertarian and property rights advocates. The opinion cites Stop the Beach as well as a host of other famous land use cases, and will be of interest to those working on coastal land use and property rights generally.

The facts of this case are in some ways similar to those of Stop the Beach Renourishment v. Florida DEP, recently decided in a split opinion by the federal Supreme Court. Both involved state efforts to claim property as a result of shifts in the waterline caused by hurricanes. Although the Texas Supreme Court did not reach the constitutional issues, it is an important decision nonetheless, given the size of Texas’ coastline and the vast amount of valuable property there.