Beach Access, Legal
June 29 2012

5th Circuit Denies Amicus Brief in Beach Access Case

by Angela Howe

In a  curt and unreasoned statement, the Fifth Circuit Court of Appeals denied the application of Harris County, Texas, to file an amicus brief in support of rehearing of the Severance v. Patterson case.  This recent case denied the State of Texas General Land Office's interpretation of the Texas Open Beaches Act to include the concept of a rolling easement applied to West Galveston beaches after avulsive events such as hurricanes.


The State of Texas submitted a well-reasoned Petition for Rehearing to the 5th Circuit concerning the recent Severance v. Patterson decision.  The State is acting to convince the federal appellate court that it should take a deeper look at the important and precedent-setting case of Severance v. Patterson.  This case merits the full analysis and attention of the appellate court due to the ramifications on the interpretation of the Texas Open Beaches Act, and the very odd expansion of the takings doctrine.  This Court devised a new interpretation of the 4th Amendment, which is almost exclusively used in criminal cases to prevent search and seizure, to apply to seizure of private property when a 5th amendment takings case is not available.  This new interpretation of a key component to the U.S. Bill of Rights surely deserves more attention than the brief opinion issued by the 5th Circuit.  The opinion also essentially ignores the reality of sea level rise and changing, dynamic shorelines that we will be facing more and more in the future.