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Fifth Circuit sends open beaches lawsuit back to district court

Unfortunately, the headline makes it sound like better news than it is.

A federal appeals court Monday ruled that the Texas Open Beaches Act is unconstitutional in the case of a Galveston Island property, a ruling that puts the fate of Texas public beaches in doubt.

The 5th U.S. Circuit Court of Appeals sent the case back to Houston federal district court for retrial, but said that few issues were left to be decided.

“What issues must now be determined, aside from attorneys’ fees accruing to the appellant, is unclear,” the three-judge panel said in a three-paragraph opinion.

Chief Circuit Judge Edith Jones and Circuit Judge Edith Clement relied on an April advisory opinion by the Texas Supreme Court that essentially said the Open Beaches Act does not apply on West Galveston Island if the beach is rapidly eroded by storms, known as avulsion, rather than slowly eroded.

I was a little confused when I first read this, but after exchanging emails with the General Land Office, I got straightened out. A succinct explanation is in this 2010 Chron story about the original Supreme Court ruling.

[Plaintiff Carol] Severance initially filed suit in federal district court, which dismissed the case. The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court’s dismissal but sent some questions to the Texas Supreme Court for answers, prompting Friday’s ruling.

And then the Supreme Court ruling prompted the Fifth Court to finish its task, which came back to them after the Supremes affirmed their ruling in April. As the Tuesday story says, there’s not much left for the district court to sort out, but there are sure to be more lawsuits filed by other beachfront property owners. One possible outcome of that, as former Land Commissioner Garry Mauro wrote in the Trib is that this could lead the Supreme Court to limit the scope of its ruling to lots on Galveston’s West Beach. Before that happens, voters will have a chance to take Commissioner Patterson’s advice and give a verdict of their own on the judges who voted against open beaches. Assuming he doesn’t get booted off the ballot, Justice Nathan Hecht faces Democrat Michele Petty in November. Remember that race when it’s time to vote.

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