Thursday, August 4, 2011
I was on the road for about a month with very little internet access (more on that to come). Fortunately, my land use students keep me up to date on things. Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness. I asked him to write it up for our readers, and here's what he has to say:
For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed. The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward. Needless to say, this has caused a stir in the courts and among legal scholars. During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, here, here, and here.
On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront. Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory. To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups. The court granted rehearing in Severance and heard arguments four months ago, in April.
The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot. The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit. Both parties submitted briefs on the issue of mootness. See State’s brief on mootness; Severance’s brief on mootness. Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness. The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided.
Is This The End?
Find out after the jump!
Unfortunately, the situation looks rather bleak at this point for Severance’s claims; issues of standing are often resolved unfavorably to the petitioning party in litigation of this nature. Interestingly enough, the Texas Supreme Court’s decision on Friday makes no mention of their opinion on the mootness issue. As the Texas Supreme Court Blog points out, this was a wise decision as it could have put the Fifth Circuit in a rather precarious position should the Fifth Circuit disagree with the Texas Supreme Court on the mootness issue. Thus, the decision was correctly left to the federal court.
How will the Fifth Circuit rule? In the April of 2009 Fifth Circuit opinion, the issue of Carol Severance’s standing to bring suit was an issue resolved by the court in favor of Severance; however, those issues were of ripeness and an argument that Severance had no distinct injury because the harm had occurred prior to her purchase of the property. The current standing issues are much more unique and potentially detrimental to the claims in Severance. In fact, looking at Severance’s arguments in her brief to the Texas Supreme Court on mootness, the plaintiffs have a rather large uphill battle ahead of them:
“[T]he certified questions should not be held moot by this Court because the case has not been declared moot by the Fifth Circuit and the Officials have failed to show there is no concrete conflict between the parties. Severance continues to suffer actual or threatened harm from the rolling easement policy.”
This is an issue that the Texas Supreme Court ruled on directly by abating the case. Further, this was perhaps the best argument Severance had to make on the issue. Severance also made arguments regarding other exceptions to the mootness doctrine such as the “Collateral Consequences” Doctrine from the state’s past refusal to let her rebuild and rent her homes, as well as the argument that Severance’s injuries are “capable of repetition yet evading review.” She will have to put together a much more compelling reason than that cited in her brief to persuade the Fifth Circuit I suspect. Perhaps, the State’s brief says it best:
“If this is the best Severance can offer—and surely it is, since she has known about the closing for months—then this case should be swiftly returned to the Fifth Circuit for dismissal as moot.”
It is no secret that financial expenses from this litigation were a cause of Severance’s sale of the properties, as described in the State’s brief; however, a very contentious debate in land use law may have been put to rest last Friday. This truly was a rare debate in constitutional litigation and land use policy, one which similar facts may not resurface for several years. If Severance’s claims are moot, the question now becomes: whose claims are not moot?
Thanks again to Sonny Eckhart for providing his timely analysis of this latest development in an important case.