AMICUS (FRIEND OF THE COURT) REPRESENTATION
Cause No. 09-0387
Carol SEVERANCE, Plaintiff 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
ON CERTIFIED QUESTIONS FROM THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH FEDERAL CIRCUIT
Acceptance of Certified Questions: 52 Tex.Sup.Ct.J. 746, May 12, 2009
U.S. Fifth Circuit Opinion: 2009 WL 1089440, April 23, 2009
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 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 consider the constitutional questions and the Open Beaches Act. The issues presented are critical to the rights of all Texans and visitors to enjoy Texas beaches, and crucial to the economies of coastal counties and cities.
In 2005 Carol Severance, a California resident, invested in two beach houses fronting a Galveston area beach. By 2006 the natural processes of coastal erosion had placed the houses on the public beach. The GLO required removal of the structures, and offered to pay for the price of removing them. 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 federal Appeals Court 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, the federal appeals court certified to the Texas Supreme Court the question of whether the public easement caused an unreasonable "seizure" under the Fourth Amendment. The court specifically stated that it did not ask the Texas Supreme Court to be limited to consideration of the federal court's specific 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 questions asked, which the Texas Supreme Court has agreed to answer, 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 an Amicus Brief as "friend of the court" to advocate the interest of citizens in important issues such as this. The Court accepted the issues on May 12, 2009. The brief of Severance is due June 15. Response briefs will be due soon after. The time to act is now.
Pacific Legal Foundation, Sacramento, CA, filed an amicus brief for Severance in the Fifth Circuit. The Appeals Court, noted nationally for its conservatism, allowed the Foundation's attorney to argue the case in New Orleans. The foundation is a non-profit advocacy group devoted to individual rights and individual property rights as opposed to the interests of the public as a whole. For instance, it has filed suit against the Sacramento, CA, municipal utility district for alleged minority hiring preferences. www.adversity.net/Sacramento_Setasides/smud_plf_0.htm
It is expected that the Foundation will continue its advocacy by filing a brief in the Texas Supreme Court.
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.