Rolling Beach Easement Not a Taking

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SandBar 7:1, Regulatory Takings Issue, April, 2008 Rolling Beach Easement Not a Taking Severance v. Patterson, 485 F. Supp. 2d 793 (S.D. Tex. 2007). *Joseph Rosenblum, J.D.* A federal district court in Texas recently rejected a takings challenge to a rolling public beach easement and related enforcement provisions under the Texas Open Beaches Act (TOBA). The court in Severance v. Patterson ruled on two significant claims; first, a takings claim based on the potential removal of three houses located within a “rolling” public beach easement, and, second, an alleged physical occupation claim based on public access to the dry beach. The court dismissed both claims. Background In early autumn of 2005, Carol Severance purchased three houses on Galveston Beach, Texas. Under the TOBA, and related underlying principles of Texas state law, the public has a “free and unrestricted right of ingress and egress”1 to state-owned beaches on the Gulf of Mexico. In cases where the state retains an easement by virtue of continuous use by the public, the public has a right over the dry beach extending from the seaward boundary, marked by the mean high tide line, to the landward boundary delineated by the vegetation line. The Act further creates a presumption that the public has acquired such an easement over the dry beach area, placing the burden on landowners to present evidence to rebut this presumption. TOBA grants the Texas Attorney General the power to enforce the easement and specifically to remove obstructions to the public’s right of access from the beach, including structures such as houses. Severance’s purchase contract for the three houses included a disclosure from the seller that the vegetation line customarily marks the landward boundary of the public beach easement. It further disclosed that structures seaward of the vegetation line may be subject to removal. In the summer of 2006, the state surveyed the vegetation line in the area of Severance’s houses and concluded that two of them were entirely seaward of the vegetation line and half of the third was seaward of the vegetation line. Consequently, according to the state, some of Severance’s properties, including all or portions of the houses, were on the public beach because the vegetation line had moved. The state then contacted Severance and informed her that the Attorney General could seek removal of any portion of the homes that encroached on the public beach. Severance subsequently filed a federal action to stop the state from enforcing the public easement against her. She alleged that at the time of purchase all three of the houses were landward of the vegetation line; only after her purchase did the landward boundary move causing the houses to be located on the dry beach. Her claim was predicated on two related claims both arising under the U.S. Constitution’s Fifth Amendment takings clause. The first claim was based on possible removal of the houses while the second was based on the imposition of an easement allowing public access to the beach area. The court first addressed the takings claim relating to the threat of home removal. Noting that no removal action had been initiated at the time of suit, the court held that the claim was not ripe because it was unclear as to when or if the state would actually remove any of the houses. Only if at some time in the future the state seeks to remove Severance’s houses would she have a ripe constitutional claim. The court then addressed the claim regarding public access to the beach easement which it concluded ultimately came down to whether the state of Texas could constitutionally enforce a beach easement for public access that expands and contracts as the vegetation line moves through natural processes. In addressing the merits of this question, the court noted that the Texas judiciary has repeatedly recognized the validity of such beach easements and has consistently rejected similar constitutional claims to those raised by Severance. Further, TOBA does not provide an additional right, but merely identifies an enforcement mechanism for an easement that already existed at common law. Accordingly, the court concluded that Severance could not show interference with a protected property interest. Rather, her “allegedly-invaded interests in her rental properties are (and always have been) subject to the public’s superior interest in its pre-existing easement.”2 Moreover, while natural changes might shift the boundary of the easement, “this natural movement does not work a constitutional wrong.”3 Background Principles of State Law The court additionally made specific findings that its decision was consistent with the Supreme Court’s landmark takings decision, Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 (1992). In Lucas, the Supreme Court held that an owner suffered a compensable taking when the Coastal Com mission enacted a total ban on all beach construction preventing the owner from building on property that he purchased prior to passage of the legislation. The Court in Lucas also recognized, however, that no taking occurs where government action simply gives effect to “background principles of state law.”4 The Severance court explicitly recognized Texas’ rolling beach easements as a background principle of Texas state law. In Severance, unlike in Lucas, the relevant property law was established long before the purchase of the impacted properties. Further, a rolling beach “easement is one of the ‘background principles’ of Texas littoral property law.”5 Consequently, Severance could not have suffered a takings because “her right to exclude the public never extended seaward of the dynamic, natural boundary of the beach.”6 Conclusion The court ultimately dismissed the suit noting that nothing in the federal constitution prohibits applying the principles of accretion and erosion to establishing property boundaries and holding that Severance’s property interests were subject to the pre-existing beach easement. Endnotes 1. Tex. Nat. Res. Code A7 61.011(a). 2. Severance v. Patterson, 485 F. Supp. 2d 793, 803 (S.D. Tex 2007). 3. Id. at 804. 4. Lucas, 505 U.S. at 1029. 5. Severance, 485 F. Supp. 2d at 804. 6. Id.
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SandBar 7:1, Regulatory Takings Issue, April, 2008

Rolling Beach Easement Not a Taking

Severance v. Patterson, 485 F. Supp. 2d 793 (S.D. Tex. 2007).

Joseph Rosenblum, J.D.
A federal district court in Texas recently rejected a takings challenge to a rolling public beach easement and related enforcement provisions under the Texas Open Beaches Act (TOBA). The court in Severance v. Patterson ruled on two significant claims; first, a takings claim based on the potential removal of three houses located within a “rolling” public beach easement, and, second, an alleged physical occupation claim based on public access to the dry beach. The court dismissed both claims.

Background
In early autumn of 2005, Carol Severance purchased three houses on Galveston Beach, Texas. Under the TOBA, and related underlying principles of Texas state law, the public has a “free and unrestricted right of ingress and egress”1 to state-owned beaches on the Gulf of Mexico. In cases where the state retains an easement by virtue of continuous use by the public, the public has a right over the dry beach extending from the seaward boundary, marked by the mean high tide line, to the landward boundary delineated by the vegetation line. The Act further creates a presumption that the public has acquired such an easement over the dry beach area, placing the burden on landowners to present evidence to rebut this presumption. TOBA grants the Texas Attorney General the power to enforce the easement and specifically to remove obstructions to the public’s right of access from the beach, including structures such as houses.
      Severance’s purchase contract for the three houses included a disclosure from the seller that the vegetation line customarily marks the landward boundary of the public beach easement. It further disclosed that structures seaward of the vegetation line may be subject to removal.
      In the summer of 2006, the state surveyed the vegetation line in the area of Severance’s houses and concluded that two of them were entirely seaward of the vegetation line and half of the third was seaward of the vegetation line. Consequently, according to the state, some of Severance’s properties, including all or portions of the houses, were on the public beach because the vegetation line had moved. The state then contacted Severance and informed her that the Attorney General could seek removal of any portion of the homes that encroached on the public beach.
   Severance subsequently filed a federal action to stop the state from enforcing the public easement against her. She alleged that at the time of purchase all three of the houses were landward of the vegetation line; only after her purchase did the landward boundary move causing the houses to be located on the dry beach. Her claim was predicated on two related claims both arising under the U.S. Constitution’s Fifth Amendment takings clause. The first claim was based on possible removal of the houses while the second was based on the imposition of an easement allowing public access to the beach area.
      The court first addressed the takings claim relating to the threat of home removal. Noting that no removal action had been initiated at the time of suit, the court held that the claim was not ripe because it was unclear as to when or if the state would actually remove any of the houses. Only if at some time in the future the state seeks to remove Severance’s houses would she have a ripe constitutional claim.
      The court then addressed the claim regarding public access to the beach easement which it concluded ultimately came down to whether the state of Texas could constitutionally enforce a beach easement for public access that expands and contracts as the vegetation line moves through natural processes. In addressing the merits of this question, the court noted that the Texas judiciary has repeatedly recognized the validity of such beach easements and has consistently rejected similar constitutional claims to those raised by Severance. Further, TOBA does not provide an additional right, but merely identifies an enforcement mechanism for an easement that already existed at common law.
    Accordingly, the court concluded that Severance could not show interference with a protected property interest. Rather, her “allegedly-invaded interests in her rental properties are (and always have been) subject to the public’s superior interest in its pre-existing easement.”2 Moreover, while natural changes might shift the boundary of the easement, “this natural movement does not work a constitutional wrong.”3

Background Principles of State Law
The court additionally made specific findings that its decision was consistent with the Supreme Court’s landmark takings decision, Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 (1992). In Lucas, the Supreme Court held that an owner suffered a compensable taking when the Coastal Com mission enacted a total ban on all beach construction preventing the owner from building on property that he purchased prior to passage of the legislation. The Court in Lucas also recognized, however, that no taking occurs where government action simply gives effect to “background principles of state law.”4
The Severance court explicitly recognized Texas’ rolling beach easements as a background principle of Texas state law. In Severance, unlike in Lucas, the relevant property law was established long before the purchase of the impacted properties. Further, a rolling beach “easement is one of the ‘background principles’ of Texas littoral property law.”5 Consequently, Severance could not have suffered a takings because “her right to exclude the public never extended seaward of the dynamic, natural boundary of the beach.”6

Conclusion
The court ultimately dismissed the suit noting that nothing in the federal constitution prohibits applying the principles of accretion and erosion to establishing property boundaries and holding that Severance’s property interests were subject to the pre-existing beach easement.

Endnotes
1. Tex. Nat. Res. Code A7 61.011(a).
2. Severance v. Patterson, 485 F. Supp. 2d 793, 803 (S.D. Tex 2007).
3. Id. at 804.
4. Lucas, 505 U.S. at 1029.
5. Severance, 485 F. Supp. 2d at 804.
6. Id.