Severance vs. Patterson

A California lawyer, in a case now pending before the Texas Supreme Court, has launched a direct attack on the Texas Open Beaches Act. The case threatens the public's right to use and enjoy Texas beaches, a public easement that has existed since "time immemorial" (see Open Beaches Act, sections 61.001, 61.013, and 61.025 of the Texas Natural Resources Code).

Numerous Texas intermediate courts of appeals have protected the public's right of beach access, but the Texas Supreme Court has never directly addressed the issue. That Court has now agreed to respond to three questions presented to it by the United States Court of Appeals for the Fifth Circuit (New Orleans), all of which challenge the constitutionality of the Open Beaches Act. The issues presented are critical to the rights of all Texans and all visitors who enjoy Texas beaches. The issues are especially crucial to the local economies of coastal counties and cities.

In 2005, Carol Severance, a California lawyer, invested in two beach houses fronting a Galveston area beach. By 2006 (after Hurricane Rita), the natural processes of coastal erosion had placed the houses on the public beach. The Texas General Land Office (GLO) required removal of the structures and offered to pay to remove them.

In response to the GLO's demand, Severance recruited The Pacific Legal Foundation, a landowner-rights group in California, to file a lawsuit for her in the federal district court in Houston. That court dismissed her case.

She appealed and the 5th Circuit affirmed the decision that the Open Beaches Act's protection of public beaches was not a "taking" that required compensation under the Fifth Amendment to the U.S. Constitution. However, as previously mentioned, the federal appeals court certified questions asking whether the public easement caused an unreasonable "seizure" under the Fourth Amendment. The court specifically stated that it was not asking the Texas Supreme Court to limit its consideration of the federal court's questions. It is therefore expected that the California advocacy group will seek the broadest possible restrictions on public beaches in Texas.

The case presents important issues of whether private landowners can prevent the public's right of access when coastal erosion and rising sea levels cause structures to become located on the public beach. The Texas Supreme Court's responses to these questions could result in the complete evisceration of the Open Beaches Act.

On behalf of the public, local governments must protect the public's right to use and enjoy our coastal heritage. Supreme Court procedures allow interested parties to file amicus briefs as "friends of the court" to advocate the interest of citizens in important issues such as this. The Court accepted the issues on May 12, 2009. On behalf of the Surfrider Foundation and this chapter, The Texas Upper Coast Chapter of Surfriders will be filing an amicus brief in support of the fifty year-old Texas Open Beaches Act.

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Judge Jacques Loeb Wiener entered a vigourous dissent to the 5th Circuit's decision to open further legal proceedings on a case with no merit and highly suspect motives. His dissenting opinion is a must-read for anyone concerned about Severance vs.Patterson:

"The real alignment between Severance and the Pacific Legal Foundation is not discernible from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (‘OBA’) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets."

See also:

Open Beaches Act Faces Legal Challenge
By Leigh Jones
The Galveston Daily News
Published July 12, 2009