Sheffield v. Bush
Case Information
United States District Court Southern District of Texas ENTERED Mаy 24, 2022 In the United States District Court Nathan Ochsner, Clerk for the Southern District of Texas G ALVESTON D IVISION
═══════════
No. 3:21-cv-122
═══════════ C HARLES S HEFFIELD , ET AL ., P LAINTIFFS , v.
G EORGE P. B USH , D EFENDANT . ══════════════════════════════════════════ MEMORANDUM OPINION AND ORDER ══════════════════════════════════════════ J EFFREY V INCENT B ROWN , U NITED S TATES D ISTRICT J UDGE :
Enacted in 1959, the Texas Open Beaches Act protects access to Texas beaches, particularly where the public has acquired an easement or right of use. Tex. Nat. Res. Code §§ 61.011(a), 61.013(a). In the summer of 2020, after two tropical storms obliterated the natural vegetation line in the Village of Surfside Beach, the Texas General Land Office (GLO) issued an order temporarily deeming the line of vegetation 200 feet inland from the mean low tide line. The plaintiffs, Charles Sheffield and Pedestrian Beach, LLC, homeowners of beachfront property in Surfside Beach, brought this action against the Commissioner of the GLO, George P. Bush, seeking a declaration that the order amounts to an unconstitutional taking, constitutes an unreasonable seizure, and violates due process.
Pending before the court are two motions: the Commissioner’s motion to dismiss and the homeowners’ motion for a preliminary injunction to halt the enforcement of the order. See Dkts. 19, 16. After considering the pleаdings, arguments, evidence, and relevant case law, the court grants in part and denies in part the Commissioner’s motion to dismiss, and denies the homeowners’ motion for preliminary injunction.
I. Background
A. Texas Coastal Property Law
For the purposes of Texas coastal property law, the “mean low tide”
(MLT) and the “mean high tide” (MHT) mark the average of low- and high-
tide marks over a roughly 19-year period.
See Luttes v. State
,
The area between the MHT and the natural “line of vegetation” (LOV) is called the “dry beach.” Id. at 714. The State does not automatically hold title to all the dry beach. Id. at 710. These are often private lands to which the State may obtain access for the public through easements established by “prescription or dedication,” or where a right of public use exists “by virtue of continuous right in the public since time immemorial.” Id. at 711 (quoting Tex. Nat. Res. Code §§ 61.011(a), 61.013(a)).
The Open Beaches Act (OBA) “doеs not create easements for public use along Texas Gulf-front beaches,” Severance , 370 S.W3d at 714, but merely provides the State with a “means of enforcing public rights to use of state- owned beaches and of privately owned beach property where an easement is established in favor of the public.” Id. at 710–11. A “public beach”—a term of art within the OBA—is defined as:
any beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use or easement to or over the area by prescription, dedication, presumption, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom.
Tex. Nat. Res. Code § 61.001(8). Thus, the Texas Legislature defines “public beach” by two criteria: physical location and right of use. Severance , 370 S.W.3d at 714. Accordingly, because much of the dry beach was given through land grants in the 1800s to private parties without the State retaining any right of access, the dry beach becomes part of the “public beach” only if a right to public use has been judicially established. Id. at 715.
B. “Rolling Easements”
Tide lines and vegetation lines are not static. They are constantly
changed by dynamic natural forces, both gradually and sometimes quite
suddenly. In a landmark case issued a decade ago,
Severance v. Patterson
,
the Supreme Court of Texas distinguished between the way in which gradual
changes affect public beach easements, and how sudden changes affect them.
The Court held, however, that abrupt changes, such as those caused by
hurricanes and tropical storms, are different. “[W]hen a beachfront
vegetation line is suddenly and dramatically pushed landward by acts of
nature, an existing public easement does not ‘rоll’ inland to other parts of the
parcel or onto a new parcel of land.”
Id.
“[W]hen land and the attached
easement are swallowed by the Gulf of Mexico in an avulsive event, a new
easement must be established by sufficient proof to encumber the newly
created dry beach bordering the ocean.”
Id.
In short, without a judicial
determination that a public easement should encumber a portion of the dry
beach, the fact that the LOV changes does not automatically give the public
a right of access to private land. This requirement, the Court noted, protects
property owners’ right to exclude—“one of the most treasured strands in an
owner’s bundle of property rights.”
Id.
at 709 (quoting
Loretto v.
Teleprompter Manhattan CATV Corp.
,
But once a piece of land is properly designated as a “public beach,” the OBA expressly prohibits efforts to exclude:
No person may display or cause to be displayed on or adjacent to any public beach any sign, marker, or warning, or make or cause to be made any written or oral communication which states that the publiс beach is private property or represent in any other manner that the public does not have the right of access to the public beach as guaranteed by this subchapter.
Tex. Nat. Res. Code § 61.014(b).
After Severance , the Texas Legislature added § 61.0171 to the OBA. [1] It permits the Commissioner to, by order, “suspend action on conducting a line of vegetation determination for a period of up to three years from the date the order is issued if the Commissioner determines that the line of vegetation was obliterated as a result of a meteorological event.” Id. § 61.0171(a). “For the duration of the order, the public beach shall extend to a line 200 feet inland from the line of mean low tide as established by a licensed state land surveyor.” Id. An order issued under this section is “filed for record by the land office in the real property records of the county in which the area of the beach subject to the order is located.” Id. § 61.0171(b). “Following expiration of an order . . . the Commissioner shall make a determination regarding the line of vegetation,” and this line “shall constitute the landward boundary of the area subject to public еasement.” Id. § 61.0171(f), (h).
C. The 2021 Temporary Order
The plaintiffs Charles Sheffield and Pedestrian Beach, LLC (collectively, the “homeowners”) own four beachfront parcels in the Village of Surfside Beach. Both Sheffield and Pedestrian Beach operate the properties as vacation-rental homes.
In the summer of 2020, Hurricane Laura and Tropical Storm Beta devastated the coastline in the Surfside Beach area. See Dkt. 16-4 at 1. In response to these events, on March 29, 2021, the Commissioner issued an order under § 61.0171 entitled, “Temporary Order Suspending Determination of the Line of Vegetation and Suspending Enforcement of Certain Encroachments on the Public Beach” (the “Order”). Id. The Order provides that for a period of two years, the “area from the MLT to 200 feet landward shall be the minimum public beach easement.” Id. at 2. It also suspends, for a period of three years, the removal of houses that may now be seaward of the new line of vegetation. Id. The Order states that designating this temporary LOV was necessary because the storms “obliterated” the natural LOV. Id. at 1. The Order nоtes that without an identifiable vegetation line, certain permits, such as for beachfront construction, cannot be issued. Id.
The homeowners filed this action after the Order issued, alleging causes of action under the Fifth Amendment’s Takings Clause, the Fourth Amendment’s Seizure Clause, and the Fourteenth Amendment’s Due Process Clause. See generally Dkt. 1. Specifically, the homeowners argue that the Order appropriates a public-beach easement comprising all the land from the MLT line to 200 feet inland without first seeking a judicial determination that such an easement exists as Severance require s. Id. ¶ 53.
In their amended complaint, the homeowners seek a declaratory judgment under Ex Parte Young that (1) the Order effects an unconstitutional taking of private property facially and as-applied to the homeowners; (2) the Order effects an unreasonable seizure on its face and as-applied to the homeowners’ land by imposing a public beach on their private land without prior compliance with Severance ’s command that the State first obtain a judicial determination of an easement; (3) the Order deprives the homeowners of real-property interests without notice or a hearing and, thus, without due process of law; and (4) the Order’s placement of the public beach at a 200-foot line is arbitrary and irrational, and thus violates “substantive due process.” [2] Dkt. 12 at 26–27. The homeowners seek a preliminary and permanent injunction enjoining the enforcement of the Order. Id.
II. Applicability of Ex Parte Young
The Eleventh Amendment affirms the fundamental principle that
“sovereign immunity limits the grant of judicial authority in Article III.”
Pennhurst State Sch. & Hosp. v. Halderman
,
Of course, limits have been placed on suits brought under
Ex Parte Young
, such as prohibiting retroactive relief,
Pennhurst
,
Three basic elements make up an
Ex Parte Young
lawsuit. “The suit
must: (1) be brought against state officers who are acting in their official
capacities; (2) seek prospective relief to redress ongoing conduct; and (3)
allege a violation of federal, not state, law.”
Williams ex rel. J.E. v. Reeves
,
The homeowners bring this lawsuit (1) against Bush in his official capacity as Commissioner of the GLO, (2) seeking only declaratory and injunctive relief to redress allegations of ongоing conduct, and (3) address purported violations of the homeowners’ Fourth, Fifth, and Fourteenth Amendment rights. Accordingly, the suit complies with the minimum elemental requirements of Ex Parte Young .
III. Motion to Dismiss
The Commissioner moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 19. The court addresses each in turn.
A. 12(b)(1)
1. Fourth Amendment, Fifth Amendment, and
“Substantive Due Process” Claims
Rule 12(b)(1) authorizes dismissal of an action for lack of subject-
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Because it “spring[s] from the
nature and limits of the judicial power of the United States and is inflexible
and without exception,” subject-matter jurisdiction is a “threshold” matter.
Steel Co. v. Citizens for a Better Env’t
, 523 U.S. 83, 94–95 (1998). “In
general, where subject matter jurisdiction is being challenged, the trial court
is free to weigh the evidence and resolve factual disputes in order to satisfy
itself that it has the power to hear the case.”
Montez v. Dep’t of Navy
, 392
F.3d 147, 149 (5th Cir. 2004) (citation omitted). In reviewing a motion under
12(b)(1), a court may consider “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.”
Williamson v. Tucker
,
“There is no clear test for when the ‘intertwined with the merits’
exception applies.”
In re S. Recycling, L.L.C.
, 982 F.3d 374, 380 (5th Cir.
2020). Courts are counseled to “look instead to the
extent
to which the
jurisdictional question is intertwined with the merits, considering such
factors as whether the statutory source of jurisdiction differs from the source
of the federal claim and whether judicial economy favors early resolution of
the jurisdictional issue.”
Id.
Another consideration is where “the
jurisdictional issue can be extricated from the merits.”
Id.
(quoting
Williamson
,
If the district court determines that the basis of federal jurisdiction is
in fact “intertwined with the plaintiff’s federal cause of action,” and neither
Bell
exception applies, “the court should assume jurisdiction over the case
and decide the case on the merits” through a Rule 12(b)(6) or Rule 56 motion.
Clark
,
Here, the court finds that the jurisdictional question is intertwined with the merits of the homeowners’ Fourth Amendment, Fifth Amendment, and “substantive due process” claims. The homeowners contend that the Commissioner has violated their constitutional rights under color of state law in violation of 42 U.S.C. § 1983. And they have invoked federal-questiоn jurisdiction pursuant to 28 U.S.C. § 1331. The Fifth Circuit stated that such a case “is a classic example of a case in which the federal cause of action and federal jurisdiction are interdependent.” Eubanks v. McCotter , 802 F.2d 790, 793 (5th Cir. 1986).
Here, jurisdiction and the merits are intertwined because resolution of the homeowners’ claims hinges on whether the Order amounts to a violation of the homeowners’ constitutional rights. The homeowners contend that the Order appropriates an easement, resulting in a Fifth Amendment taking, a Fourth Amendment seizure, and violations of their Fourteenth Amendment “substantive due-process” rights. The Commissioner disagrees, arguing that the homeowners have suffered no legally cognizable injury. Dkt. 19 at 11 (arguing that the Order “does not invade a legally protected interest because it does not establish a public right to access”). The Order, the Commissioner contends, does not “attempt to create or enforce an easement . . . and it would not be possible for an order like this to do so.” Id. at 12.
If the homeowners’ factual assertions are true, they have stated viable
сonstitutional claims and the court has subject-matter jurisdiction. If the
homeowners’ assertions are not true, the homeowners’ constitutional claims
fail, leaving no basis for federal jurisdiction. Consequently, the court is “faced
with a situation where ‘the challenge to the court’s jurisdiction is also a
challenge to the existence of a cause of action’—in other words, where factual
issues determinative of jurisdiction are intertwined with or identical to
factual issues determinative of the merits.”
Worldwide Parking, Inc. v. New
Orleans City
,
The court finds that disposition of the jurisdictional issue would
require ruling on the merits of the homeowners’ constitutional claims.
See,
e.g.
,
United States
v. One
1998 Mercury Sable Vin:
1MEMF5OU4WA621967
,
2. “Procedural Due Process” Claim
The homeowners’ “procedural due process” claim requires a distinct
jurisdictional inquiry because that alleged injury is not that the Order
appropriated an easement, but that the Order deprived the homeowners of
notice and a hearing before imposing repair and construction restrictions on
their properties.
See
Dkt. 30 at 28. Under Fifth Circuit precedent, a
“procedural due process” claim that is brought concurrently with a takings
claim should be analyzed according to “general ripeness principles.”
Bowlby
v. City of Aberdeen, Miss.
, 681 F.3d 215, 223 (5th Cir. 2012) (quoting
Rosedale Missionary Baptist Church v. New Orleans City
,
The Fifth Circuit has distinguished between “procedural due process”
claims that involve allegations of deprivations “ancillary” to or “arising from”
a takings claim from those claims “whose main thrust . . . is nоt a claim for
a taking.”
Bowlby
,
Bowlby involved a city’s revocation of a businesswoman’s permits to operate a “Sno Cone” hut on the edge of town. Id. at 218. The Fifth Circuit held that the plaintiff had pleaded a “separately cognizable” claim when she complained that process was due before the city could revoke her permits and that the resulting revocation destroyed her business. Id. at 225. This injury, the court held, challenged the permitting decision “‘in isolation, as a single decision with its own consequences, rather than as one in a series of . . . actions resulting in a taking.’” Id. (quoting Hidden Oaks , 138 F.3d at 1045 n.6). Similarly, the homeowners allege that the Order deprived them of notice before imposing “repair and construction restrictions on properties in the 200[-]foot easement area.” This, the homeowners argue, harms their “rights in the use, value, repair, [and] exclusivity and marketability of their properties.” Dkt. 30 at 28–29. The court thus finds that the homeowners’ “procedural due process” claim pleads an injury distinct from an uncompensated taking.
Turning now to general ripeness principles, the court further finds that
the issue is fit and ready for a judicial determination. The homeowners allege
an injury separate from any potential taking, and the determination of
whether a taking occurred would not affect the issue of whether the Order
imposes repair and construction restrictions on the properties without due
process.
See Archbold-Garrett v. New Orleans City
,
B. 12(b)(6)
Review of whether a complaint fails to state a claim under Rule
12(b)(6) involves a different set of considerations than a Rule 12(b)(1)
mоtion. A 12(b)(6) motion should be granted only if the complaint fails to
allege “enough facts to state a claim to relief that is plausible on its face.”
Bell
Atlantic Corp. v. Twombly
,
To survive a 12(b)(6) motion, “a complaint ‘does not need detailed
factual allegations,’ but must provide the plaintiff's grounds for entitlement
to relief—including factual allegations that when assumed to be true ‘raise a
right to relief above the speculative level.’”
Cuvillier v. Taylor,
1. Fifth Amendment Taking
The Takings Clause of the Fifth Amendment prohibits uncompensated
takings of private property. U.S. Const. amend. V. The “paradigmatic”
example of a taking requiring just compensation is “direct government
appropriation or physical invasion of private property.”
Lingle v. Chevron
U.S.A. Inc.
,
In
Cedar Point
, a California regulation granted union organizers a
“right to take access” to an agricultural employer’s property to solicit support
for unionization.
Id.
at 2069 (citing Cal. Code Regs., tit. 8, § 20900(e)(1)(C)
(2020)). The employers were required to allow union organizers onto their
property for up to three hours per day, 120 days per year.
Id.
The Court held
that the “access regulation appropriates a right to invade the growers’
property and therefore constitutes a
per se
physical taking.”
Id.
at 2072.
While government action stemming from regulations have often been
classified as “regulatory takings” requiring analysis under
Penn Central
Transportation Cо. v. City of New York
, 438 U.S. 104 (1978), the
Cedar
Point
Court held that “government action that physically appropriates
property is no less a physical taking because it arises from a regulation.” 141
S. Ct. at 2072. The essential question is not whether the governmental action
“comes garbed as a regulation (or statute, or ordinance, or miscellaneous
decree)” but “whether the government has physically taken property for itself
or someone else—by whatever means—or has instead restricted a property
owner’s ability to use his own property.”
Id.
(citing
Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Reg’l Planning Agency
,
The homeowners have sufficiently alleged a per se taking under Cedar Point. Through both facial and as-applied challenges to the constitutionality of the Order, the homeowners charge the Order authorizes “ongoing public use and occupation of every area of private beach land to which it applies” and also “eviscerates [their] right to exclude unwanted members of the general public from private land.” Dkt. 12 ¶¶ 92–94. Specifically, the homeowners contend that by declaring that “[t]he area frоm MLT to 200 feet landward shall be the minimum public beach easement,” the Order “converts every area of private dry beach lands at Surfside Beach to which the Order applies into public property for at least two years.” Id. ¶ 89. This, the homeowners maintain, is an appropriation of a public easement without compensation in violation of the Fifth Amendment. Dkt. 12 ¶¶ 86–98.
The Commissioner argues, however, that to amount to a
per se
taking
“the state agency must attempt to take possession of the property or
otherwise physically occupy or appropriate the property.” Dkt. 19 at 17. But
nothing in
Cedar Point
requires that a state agency physically occupy the real
estate. On the contrary,
Cedar Point
requires only that the “regulation
appropriates a right to physically invade” private property by members of the
public.
Cedar Point
,
The Commissioner also insists the homeowners have not lost their
right to exclude members of the public from their private properties, arguing
that any “public beach and related signage restrictions are limited to and
recognized in areas only where the rights [to access] had already been
acquired.” Dkt. 19 at 18. At best, the Commissioner argues, the Order is an
“administrative determination of [the homeowners’] lots’ physical position
on the beach in relation to the temporary LOV.”
Id.
But this argument fails
to acknowledge the plain language of both the Order and the “FAQ” page the
GLO provided to the homeowners when the Order went into effect. Among
other things, the FAQ states “[t]he establishment of the LOV at 200 feet from
mean low tide line will mean that a limited number of homes are now
partially or wholly located on the public beach.” Dkt. 12-3 at 2. Read in
conjunction with the OBA, the homeowners argue the Order “negates the
owners’ right to exclude” by preventing signage or barriers on the “public
beach.” Dkt. 30 at 25;
see
Tex. Nat. Res. Code §§ 61.0171(a); 61.018(a)
(allowing enforcement of the OBA to “remove or prevent any improvement,
maintenance, obstruction, barrier, or other encroachment on a public beach,
or to prohibit any unlawful restraint on the public’s right of access to and use
of a public beach or other activity”). Taking the homeowners’ allegations as
true, the court finds that they have sufficiently pleaded a plausible claim that
the Order “appropriates for the enjoyment of third parties the owners’ right
to exclude.”
Cedar Point
,
Next, the Commissioner argues that the homeowners’ pleadings still
fail to sufficiently allege a taking because property rights are established
under state law, not federal law. Dkt. 19 at 19. Though the court agrees that
the property rights at stake arise under state law, that fact gets the
Commissioner nowhere; the homeowners seek to protect their state-law-
derived property rights, not obtain new rights through a federal claim.
Indeed, the
Cedar Point
Court addressed this exact argument, holding the
government “cannot absolve itself of takings liability by appropriating
the . . . right to exclude in a form that is a slight mismatch from state
easement law.”
Nevertheless, the GLO argues that the homeowners’ Fifth Amendment
claim fails because the proper remedy for a taking is compensation—not
equitable relief. Dkt. 19 at 19. For support, the GLO relies on both
Ruckelshaus v. Monsanto Co.
, 467 U.S. 986, 1016 (1984), and
Knick v.
Township of Scott
,
Finally, the court notes that the Commissioner points to no
background restrictions on the homeowners’ property which would
authorize any alleged physical invasion or foreclose a finding of a physical
taking.
See Cedar Point
,
Accordingly, the court finds the homeowners have pleaded sufficient facts to allege a plausible claim for a Fifth Amendment taking. The Commissioner is not entitled to dismissal of this claim.
2. Fourth Amendment Seizure
The Fourth Amendment provides that the “right of the people to be
secure in their persons, housеs, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. A
“seizure” of property occurs when “there is some meaningful interference
with an individual’s possessory interests in that property.”
United States v.
Jacobsen
,
In
Severance v. Patterson
, the Fifth Circuit upheld a Fourth
Amendment seizure claim when a homeowner asserted an “appropriation of
an easement over beachfront land not previously so encumbered,” which was
“unreasonable because the interference is unjustified by state law or, if
justified, then uncompensated.” 566 F.3d at 502 (citing
Presley v. City of
Charlottesville
,
The Commissioner argues that
Severance
is distinguishable because
there, unlike here, imminent removal of the plaintiff’s home provided the
factual basis for a colorable Fourth Amendment seizure claim. But the
Severance
Court did not discuss the imminence of the home’s removal when
conducting its 12(b)(6) analysis.
See Severance
,
Because the alleged “appropriation of an easement” has been held enough to constitute a “meaningful interference” under the Fourth Amendment, the homeowners have pleaded sufficient facts to constitute a plausible claim for relief. The Commissioner is not entitled to dismissal of this claim.
3. “Procedural Due Process”
The Fourteenth Amendment of the U.S. Constitution prohibits a state
from depriving a person “of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1. “Procedural due process” guarantees are
invoked when a state actor deprives an individual of a protected life, liberty,
or property interest.
Baldwin v. Daniels
,
The Commissioner argues that the homeowners have failed to allege a
sufficient deprivation of property because the Order does not appropriate an
easement. But the homeowners allege a distinct injury for their “procedural
due process” claim: their inability to make certain repairs on their property.
See Archold-Garrett
,
Notwithstanding the foregoing, the Commissioner argues that the
homeowners “had notice that the LOV could be set at 200 feet from mean
low tide . . . sinсe 2013” when § 61.0171(a) was enacted. Dkt. 19 at 21. But
this constructive-notice argument fails. In
Small Engine Shop, Inc. v. Cascio
,
878 F.2d 883 (5th Cir. 1989), the Fifth Circuit considered whether the
enactment of a statute could satisfy the Due Process Clause’s guarantee of an
opportunity to be heard. Ultimately, the Court held that while property
owners are presumed to have “knowledge of relevant statutory provisions
affecting the control or disposition of their property,”
Texaco, Inc. v. Short
,
4. “Substantive Due Process” The homeowners’ “substantive due process” claim “challenges the establishment of the 200[-]foot line as the ‘public beach’ boundary.” Dkt. 30 at 29. They argue that setting the public-beach boundary at 200 feet is arbitrary and that authorizing an easement on private land 200 feet from the MLT is “arbitrary and illegitimate because it is occurring without prior proof of the existence of a common[-]law public easement.” Id.
To prevail on a “substantive due process” claim, plaintiffs “must first
establish that [they] held a constitutionally protected property right to which
the Fourteenth Amendment’s due process protection applies.”
Simi Inv. Co.,
Inc. v. Harris Cnty., Tex.
, 236 F.3d 240, 249–50 (citing
Spuler v. Pickar
,
958 F.2d 103, 106 (5th Cir. 1992)). And in a case concerning Texas real
property, the nature of the property interest must be determined by Texas
law.
Simi
,
The court next must determine whether the requirements of the Order are “rationally related to a legitimate governmental interest.” Simi , 236 F.3d at 251 (citation omitted). “The question is only whether a rational relationship exists between the [policy] and a conceivable legitimate objective. If the question is at least debatable, there is no substantive due process violation.” Id. (citation omitted). The court finds that the homeowners have failed to overcome this burden. The factual allegations do not show that the official conduct in this case is so arbitrary that it lacks any rational relationship to the State’s goals of promoting public access to public beaches. The homeowners’ “substantive due process” claim is dismissed.
C. Abstention Once a federal court determines that jurisdiction has been conferred over a matter, it generally cannot abstain from exercising that jurisdiction. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans , 491 U.S. 350, 358 (1989) (“ NOPSI ”). However, in “extraordinary and narrow” circumstances, a district court “may decline to exercise or postpone the exercise of its jurisdiction.” Allegheny Cnty. v. Frank Mashuda Co. , 360 U.S. 185, 188–89 (1959). Such circumstances include instances where “difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided” ( Pullman abstention), [4] or when the court wants to protect complex state administrative processes from undue federal interference ( Burford abstention). [5] The Commissioner asks the court to abstain from the merits of the case under both the Pullman and Burford doctrines. Neither applies.
1.
Pullman
Abstention
Pullman
abstention is a judicially created doctrine which delays the
exercise of federal jurisdiction “to clarify ambiguous state law issues when
resolution of such issues might eliminate or substantially modify a federal
constitutional question.”
Stephens v. Bowie Cnty., Tex.,
The Fifth Circuit has held that a federal court may abstain under the Pullman doctrine if one of the following three factors is present: (1) the disposition of a question of state law can eliminate or narrow the scope of the federal constitutiоnal issue; (2) the state-law question presents difficult, obscure, or unclear issues of state law; or (3) a federal decision could later conflict with subsequent state-court resolutions concerning the same regulatory program or scheme, seeding more confusion. Stephens , 724 F.2d at 436.
More recently, the Fifth Circuit has used a slightly different two-
pronged approach. In
Nationwide Mutual Insurance Co. v. Unauthorized
Practice of Law Committee
, the court ruled that
Pullman
abstention is
appropriate in cases involving “(1) a federal constitutional challenge to state
action and (2) an unclear issue of state law that, if resolved, would make it
unnecessary for [the court] to rule on the federal constitutional question.”
283 F.3d 650, 653 (5th Cir. 2002). The common thread running through
both approaches is whether “there is an issue of uncertain state law that is
fairly subject to an interpretation” by a state court.
Moore v. Hosemann
, 591
F.3d 741, 745 (5th Cir. 2009) (quoting
Baran v. Port of Beaumont
Navigation Dist.
,
Applying the Nationwide test, the first prong is met here becausе the homeowners challenge the Commissioner’s official action on federal constitutional grounds. See, e.g. , Moore , 591 F.3d at 745 (challenge to Mississippi Secretary of State’s conduct constituted official action).
The second prong is where the Commissioner runs into problems. The government states that Severance “unsettled state law by overturning prior court decisions” that allowed rolling easements. Dkt. 19 at 27. Because § 61.0171 was enacted the year after Severance was decided, the Commissioner argues that how the new provision interplays with Severance , the Texas Constitution, the rest of the OBA, and the Texas Dune Protection Act [6] “must be resolved before considering the federal claims in this case.” Id. The court disagrees.
First, as the court knows of no ongoing, parallel state action on any similar issue, the federalism concerns that compel Pullman abstention are missing. See 17A C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL P RACTICE & P ROCEDURE § 4242 (3d ed. 2020) (“Pullman-type abstention is based in large part on considerations of federalism, and the desire to preserve harmonious federal-state relations.”); see, e.g. , Moore v. Tangipahoa Parish Sch. Bd. , 507 Fed. App’x 389, 395 (5th Cir. 2013) ( Pullman abstention appropriate where a parallel state-court action challenged the validity оf the same program under the Louisiana constitution); Parm v. Shumate , 73 Fed. App’x 78 (5th Cir. 2003) (upholding district court’s decision to abstain pending resolution of state-law litigation).
The claims alleged here rest “wholly on rights guaranteed by the federal
Constitution.”
Tex. Entm’t Ass’n, Inc. v. Hegar
,
Moreover, for the notion that “unsettled questions of the application of
the
Severance
opinion . . . must be resolved before considering the federal
claims in this case,” Dkt. 19 at 27, the Commissioner relies on a single case
from an intermediate Texas appeals court that was dismissed for a lack of
subject-matter jurisdiction.
See Pedestrian Beach, LLC v. State
, No. 01-17-
00870-CV,
In sum, without a clear explanation of the difficult or unsettled question of state law that must be resolved, the court finds that the strictures of the Pullman doctrine are unsatisfied and declines to abstain.
2.
Burford
Abstention
Federal courts have a “virtually unflagging obligation” to exercise their
jurisdiction.
Colo. River Water Conservation Dist. v. United States
, 424 U.S.
800, 817 (1976). “District courts may only abstain in the rare instances when
hearing a case within [its] equity jurisdiction would ‘be prejudicial to the
public interest.’”
Grace Ranch, L.L.C. v. BP Am. Prod. Co.
,
The Fifth Circuit employs a five-factor test to determine whether Burford abstention is warranted:
(1) whether the cause of action arises under federal or state law; (2) whether the case requires inquiry into unsettled issues of state law or into local facts; (3) the importance of the state interest involved; (4) the state’s need for a coherent policy in that area; and (5) the presence of a special state forum for judicial review.
Wilson v. Valley Elec. Membership Corp.
,
The first factor clearly weighs against abstention; all the homeowners’ claims are federal constitutional claims.
The second factor also weighs against abstention. As explained above,
even though no court has yet had occasion to construe § 61.0171, it is not a
given that this case raises any unsettled issues of state law. And the mere fact
that a case requires a federal court to speak on a state statute is not enough
to compel abstention.
See Moore v. State Farm Fire & Cas. Co.
, 556 F.3d
264, 272 (5th Cir. 2009) (declining to abstain just because an “action arises
under state law and requires an inquiry into unsettled state-law issues”);
Grace Ranch
,
The third factor favors the Commissioner because Texas undoubtedly
has a strong interest in the use and preservation of its beaches. But this faсtor
weighs heavily in favor of abstention only “when the state interests at stake
are ‘paramount.’”
Grace Ranch
,
The fourth factor, the state’s need for a coherent policy in the area at
issue, would also seemingly favor the Commissioner. Texas has an entire
statutory scheme, the OBA, dedicated to access to public beaches.
See
Tex.
Nat. Res. Code § 61.011
et seq
. But the Commissioner has not sufficiently
explained how the narrow relief the homeowners seek in this case would
upend that scheme.
See Grace Ranch
,
Finally, the fifth factor leans against abstention. As “there is no special
state forum for judicial review,”
Romano v. Greenstein
,
In sum, the court finds that as this case does not present one of “the
rare instances” calling for
Burford
abstention,
Grace Ranch
,
IV. Motion for a Preliminary Injunction
“Generally, a movant must satisfy each of four traditional criteria in
order to be entitled to a preliminary injunction: (1) irreparable injury[,] (2)
substantial likelihood of success on the merits, (3) a favorable balance of
hardships, and (4) no adverse effect on the public interest.”
Black Fire
Fighters Ass’n of Dallas v. City of Dallas
,
The homeowners insist that simply because they have shown a
constitutional violation, they have established irreparable harm.
See
Dkt. 16
at 29. But the court is not yet convinced that such a violation has been shown.
Moreover, as the Commissioner points out, Dkt. 31 at 24, the cases on which
the homeowners rely for this idea are both based on
Elrod v. Burns
, 427 U.S.
347 (1976), in which the Court held that the “loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.”
Id.
at 373. The Commissioner adds that the Fifth Circuit
has yet to apply
Elrod
“outside of a First Amendment context.” Dkt. 31 at 24.
The court finds that the homeowners’ allegation that their constitutional
rights have been violated is not enough, taken alone, to establish an
irreparable injury.
See Lambert v. Bd. of Comm’rs of Orleans Levee Dist.
,
No. 05-5931,
To merit injunctive relief, a party must show a
likelihood
of irreparable
harm.
Cf. Winter v. Natural Res. Def. Council, Inc.
,
First, the court notes that the Fifth Circuit has not spoken on whether
a threat to privacy constitutes an “irreparable injury” for purposes of a
preliminary injunction.
See Dennis Melancon
, 703 F.3d at 280 n.15
(declining to address whether the violation of the plaintiffs’ right to privacy
could form the basis of a claim of irreparable injury). And even if an invasion
of their privacy could form the basis of an irreparable injury, the
homeowners have not shown that their fears are more than mere
speculation.
See Emerson
,
The homeowners also fear that members of the public will encroach
onto their private property now that it is deemed part of the public beach.
But the fear of an army of trespassers is hypothetical at this point. “There
must be a
likelihood
that irreparable harm will occur. Speculative injury is
not sufficient; there must be more than unfounded fear on the part of the
applicant.”
Emerson
,
Finally, the court addresses whether the Order itself constitutes
irreparable injury. The homeowners rely on
Opulent Life Church v. City of
Holly Springs, Mississippi
, for the proposition that “‘[t]he deprivation of an
interest in real property constitutes irreparable harm.’” 697 F.3d 279, 297
(5th Cir. 2012) (quoting
Third Church of Christ, Scientist, of N.Y.C. v. City
of New York
,
In Opulent Life , a case brought under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), a religious congregation sought to enjoin the enforcement of a municipal zoning ordinance that applied only to churches. 697 F.3d at 281–82. Opulent Life Church had leased a building, on the courthouse square in Holly Springs, Mississippi, for its growing congregation. Id. at 282–83. By its terms, the lease would not take effect until the church obtained the proper land-use and building- renovation permits from Holly Springs. Id. at 283. But the city refused to grant the permits because Opulent Life had failed to meet the church-specific zoning requirements. Id.
In holding that “‘[t]he deprivation of an interest in real property constitutes irreparable harm,’” id. at 297, the Fifth Circuit did two things. First, it specifically noted that the deprivation was the loss of the lease, id. at 297, which would leave the church with no adequate space to worship and carry out its community-service programs, id. at 282. In other words, the deprivation of an interest in real property that the church would suffer would be a complete deprivation—it would be completely unable to make use of the real property at issue.
The second thing the Fifth Circuit did is quote directly from another
RLUIPA case in which another church faced a similar fate. In
Third Church
of Christ, Scientist, of New York City v. City of New York
, a religious
congregation with declining membership and an aged building in desperate
need of repair signed a lease with a catering company to use portions of the
church building when not in use by the сongregation.
In both
Opulent Life
and
Third Church of Christ, Scientist
,
[7]
churches
suing under the RLUIPA were threatened with a complete deprivation of
their ability to use, or even occupy, the pieces of real property on which their
places of worship stood. In both cases, the deprivation would leave the
churches unable to operate at all. The homeowners in this case have alleged
no such complete deprivation. Instead, as set forth above, they fear they will
be unable to either exclude the public from their property or to make repairs
and improvements. But the homeowners have pointed to no cases showing
that such partial “deprivations” amount to irreparable harm. Moreover, the
Commissioner has represented that “the GLO does not prohibit ‘no
trespassing’ or ‘private property’ signs on homes or private walkovers.” Dkt.
31 at 19–20. And the Commissioner further notes that the homeowners’
repairs and improvements are purely hypothetical—they have submitted no
applications for repair or construction permits.
Id.
at 20. The court finds that
North LLC v. City of Powell
,
such speculative incursions on property rights do not amount to irreparable harm.
“The purpose of a preliminary injunction is always to prevent
irreparable injury so as to preserve the court’s ability to render a meaningful
decision on the merits.”
Canal Auth. of Fla. v. Callaway
,
*** In sum, the court denies in part and grants in part the Commissioner’s motion to dismiss. Dkt. 19. The homeowners’ Fifth Amendment, Fourth Amendment, and “procedural due process” claims survive. But their “substantive due process” claim is dismissed. The court further denies the homeowners’ motion for preliminary injunction. Dkt. 16.
Signed on Galveston Island this 2 4th day of May, 2022. ___________________________ J EFFREY V INCENT B ROWN U NITED S TATES D ISTRICT J UDGE
Notes
[1] Act of June 14, 2013, 83rd Leg., R.S., ch. 1086, § 61.0171, sec. 5, 2013 Tex. Gen. Laws 2589, 2591 (codified at Tex. Nat. Res. Code § 61.0171).
[2] The homeowners also raised an additional claim that § 61.019 of the Texas Natural Resоurces Code violates the Fifth Amendment, Texas law, and the Due Course of Law provision of the Texas Constitution. They have since abandoned this claim.
[3] The
Ruckelshaus
Court held “[e]quitable relief is not available to enjoin an
alleged taking of private property for a public use, duly authorized by law, when a
suit for compensation can be brought against the sovereign subsequent to the
taking.” 467 U.S. at 1016. As
Ruckelshaus
dealt with provisions of the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136
et seq
., administered by
the Environmental Protection Agency and for which damages were available under
the Tucker Act, 28 U.S.C. § 1491, equitable relief was therefore foreclosed in federal
court.
Id.
at 1019;
accord Knick,
[4]
Haw. Hous. Auth. v. Midkiff
,
[5]
Burford v. Sun Oil Co.
,
[6] Tex. Nat. Res. Code §§ 63.001 et seq .
[7] The homeowners cite two more cases for the idea that the loss of an interest in real property is an irreparable injury: Park Village Apartment Tenants Ass’n v. Mortimer Howard Trust , 636 F.3d 1150, 1159 (9th Cir. 2011), and Golf Village