Friday, January 25, 2013

Latest on Beach Access in Texas: Brannan Vacated and Remanded in Light of Severance

In 2010, in the matter of Brannan v. State of Texas, a Texas appellate court rejected a takings challenge to the State’s Open Beaches Act (OBA), a longstanding statute that affords the public a mechanism to enforce collective rights to access beaches as acquired by dedication, prescription, or custom. Today, the Texas Supreme Court vacated that decision and remanded to the appellate court for further consideration in light of its 2012 holding on rehearing in Severance v. Patterson.

In Brannan, the State, in accord with the OBA, ordered a number of Gulf-front homes removed after erosion and storm events combined to move the first line of vegetation landward of where those homes were located. Fourteen landowners challenged this action as a taking. The appellate court dismissed the landowners’ claims because the beach had been historically dedicated to the public use, and the existence of the homes impeded the public’s access to it.

Today, without hearing oral argument, the Texas Supreme Court vacated that decision and remanded to the appellate court in a vague, two-page per curiam order. While there was no concurring or dissenting opinion, three members of the court did not participate in the decision. The order, available here, reads in pertinent part:

The court of appeals rejected petitioners’ [takings] claims, and petitioners sought review in this Court.

While their petition has been pending, we have issued our opinion in Severance v. Patterson, 370 S.W.3d 705, 725 (Tex. 2012), concluding that “avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.” We now conclude that this case should be remanded to the court of appeals for further consideration in light of Severance.


It is not readily evident that this order forecloses any of the State’s arguments surrounding mootness, avulsion, and waiver moving forward.

On the first, the appellate decision in Brannan ultimately applied only to three claimants, for the other eleven claimants’ homes were destroyed by natural tidal surges prior to the court’s ruling; moreover, since 2009, all of the land at issue in the case has lain seaward of the high tide line and thus is subject to the public trust.

On the second, it is not clear that the shoreline in this area migrated landward as the result of an avulsive event. If the shoreline —and, thus, the public easement— migrated landward as the result of imperceptible erosion, Severance says that the easement does "roll" under Texas common law (such that the claimants would have no property right capable of being taken).

On the third, the State has alleged that the landowners waived their Severance claim. Though a remand “for further consideration in light of Severance” could be interpreted to say that the landowners have not waived their Severance claim, it seems that the Court might have mentioned waiver in its order (which it pondered for nine months after issuing Severance) if it actually was deciding the waiver question.

Stay tuned to the Environmental Law Professor’s Blog for updates on Brannan as this beach access dispute heads back to the court of appeals.

-Tim Mulvaney (

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