Last November, in A House on the Beach, Literally, I wrote about the Texas Supreme Court decision in Severance v. Patterson, 09-0387, 2010 WL 4371438 (Tex. 2010), reh’g granted (Mar. 11, 2011), in which the Texas Supreme Court held that public beach rights could not “roll” up over private property rights when a hurricane or other force changes the vegetation line on a Texas public beach. Normally, a decision by a state court’s highest tribunal ends the dispute, however, this case was procedurally different from a traditional state court action. In Severance, the plaintiff sued Texas state officials in federal court. When the federal court had questions regarding the correct interpretation of Texas law, it certified those questions to the Texas Supreme Court. The Supreme Court then provided answers to the federal court so it could resolve the federal lawsuit. After providing its decision to the federal court, the Texas Supreme Court granted a rehearing on the merits of its decision, which could potentially change it.
The factual background is that the plaintiff’s rental house adjoined a public beach. The vegetation line divided her private property from the public beach. When Hurricane Ike moved the vegetation line inland, the state would not permit the plaintiff to repair or rebuild her property because it was now located on a “public beach.” Even though the plaintiff could not repair or rebuild her property, she still had to pay the mortgage. Faced with financial difficulty from paying a mortgage on a property that she could not repair and re-rent, the plaintiff sold the property to the Federal Emergency Management Hazard Mitigation program. Selling on the eve of the expiration of that program, the plaintiff alleged that she would have to sell or default on her mortgage and face foreclosure.
Since the plaintiff sold the property that is the subject of her federal lawsuit, the defendants now claim the case is moot and that the Texas Supreme Court’s decision should be vacated. The plaintiff disagrees, contending there is still an issue under the collateral consequences doctrine and “capable of repetition, yet evading review” doctrine. The Texas Supreme Court has decided it will not decide if the federal case is moot, but will reconsider its earlier decision upon such a finding from the federal court. The federal court granted the defendants’ motion to file supplemental briefs on the issue of whether the case is moot. Just last week, the court denied a motion to file an amicus brief. Almost a full year after the Texas Supreme Court held that public beach rights could not roll up over private property rights when a hurricane or other force moves the vegetation line, the decision is in jeopardy of being vacated if the case is determined to be moot because the property was sold. I will continue to monitor this case and report here on the final resolution.