A panel discussion at Texas Wesleyan School of Law on March 25, 2011, examined the Texas Supreme Court case of Severance v. Patterson and the property law questions the case brings into focus. The event was co-hosted by the Environmental Law Society and the Federalist Society at the law school.
A divided Texas Supreme Court declared in November 2010 in Severance v. Patterson that state law does not recognize an independent public beachfront easement that allows access to and use of all beaches along the Gulf of Mexico. Recently, the court took the rare step of agreeing to rehear the case, with oral arguments scheduled for April 19, 2011.
Timothy Mulvaney, associate professor of law at Texas Wesleyan School of Law, served as the moderator for the discussion. The panelists represented views from all sides of the case: J. David Breemer, lead counsel for plaintiff Carol Severance and principal attorney at the Pacific Legal Foundation, and Ellis Pickett, former chairman of the Texas Upper Coast Chapter of the Surfrider Foundation, who filed an amicus brief in support of defendant Jerry Patterson, Texas land commissioner, were often at odds during the discussion as each argued passionately about the legal and ethical issues involved in the case.
“I want to start out by talking about what this dispute is not about,” Breemer said. “This is not about whether public beach access is good or if we should have public beaches. ... Everybody wants that, including myself. But, it is about how we’re going to do that in Texas and everywhere else.”
Pickett took issue with the plaintiff’s purchase of the property.
“This is not about public access, it’s about public safety, it’s about best management of the coast,” he said. “Do we have a rolling easement? Does the beach roll? Heck yes! Is there avulsion and is there erosion? Heck yes! Shouldn’t you realize, as you’re buying property on an eroding coast and it washes away, it’s not my fault, it’s not the government’s fault, you purchased property.”
Matthew Festa, associate professor of law at South Texas College of Law, filed an amicus brief in support of the plaintiff and provided a somewhat academic view of the issue during the panel discussion. In wrapping up the discussion, he offered a big-picture view of the case.
“That’s what property and land use law are about: it’s this clash between individual rights, which are enshrined in the Constitution, and the public good, which is the police power objective of what the state does,” Festa said.
“It’s a complex case … [that] illuminates, as Justice Holmes said, [the question of] when can an individual member of the public be asked to bear the burden of the public good? It’s not whether we have beaches or not, but who bears the burden of it? Should it be the taxpayers, should it be the individual?”
“That really is what property law is all about and, to me, what makes it exciting … It’s real, and it matters.”
After the panel discussion, the participants answered several questions from the audience, which included many property law students.
“This diverse panel proved a wonderful opportunity for both the students of Texas Wesleyan and members of the public to engage with some of the key participants in the litigation,” Moderator and Associate Professor Timothy Mulvaney said.
“The event already has generated student discussion about hosting a follow-up, expanded panel on the topic after the Texas Supreme Court re-hears the case and issues its opinion.”
The Texas Wesleyan Law Review will publish articles authored by the panelists on the topic of Severance v. Patterson in a 2011-2012 volume.