Sheffield v. Bush

May 24, 2022

In the United States District Court

Nathan Ochsner, Clerk

for the Southern District of Texas

GALVESTON DIVISION

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No. 3:21-cv-122

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CHARLES SHEFFIELD, ET AL., PLAINTIFFS,

v.

GEORGE P. BUSH, DEFENDANT.

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MEMORANDUM OPINION AND ORDER

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JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:

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

pleadings, 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, 324 S.W.2d 167,

174 (Tex. 1958). The area between the MLT and the MHT is called the “wet

beach” because it is under tidal waters for at least some time each day.

Severance v. Patterson, 370 S.W.3d 705, 714–15 (Tex. 2012). In Texas, the

State owns the wet beach in trust for the public use. Id. at 717–18 (citing

Luttes, 324 S.W.2d at 167, 191–92).

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) “does 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.

370 S.W.3d 705 (Tex. 2012). As tide lines and vegetation lines change over

time, the public easements do, too. “They may shrink or expand gradually

with the properties they encumber.” Id. at 708. The Severance Court noted

that the State need not “re-establish easements each time boundaries move

due to gradual and imperceptible changes to the coastal landscape.” Id.

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 ‘roll’ 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., 458 U.S. 419, 435–36 (1982)).

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 public

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

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).

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 easement.” 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 notes 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 requires. 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, 465 U.S. 89, 98 (1984). And as

a sovereign entity, a state may not be sued without its consent. Id. (quoting

Emps. of Dep’t of Pub. Health & Welfare, Mo. v. Dep’t of Pub. Health &

Welfare, Mo., 411 U.S. 279, 280 (1973)). Seeing through any pretext, this

principle correspondingly applies in suits against state officials when “the

state is the real, substantial party in interest.” Id. (quoting Ford Motor Co. v.

Dep’t of Treasury of Ind., 323 U.S. 459, 464 (1945)). The Supreme Court has

recognized, however, an important exception to this general rule: “a suit

challenging the constitutionality of a state official’s action is not one against

2 The homeowners also raised an additional claim that § 61.019 of the Texas

Natural Resources Code violates the Fifth Amendment, Texas law, and the Due

Course of Law provision of the Texas Constitution. They have since abandoned this

claim.

the State.” Id.; see Ex Parte Young, 209 U.S. 123 (1908). Ex Parte Young

stands for the proposition that an unconstitutional statute is “void” and

therefore does not “impart to [the official] any immunity from responsibility

to the supreme authority of the United States.” Young, 209 U.S. at 160.

Because a state cannot authorize a void action, the officer is “stripped of his

official or representative character and [is] subjected to the consequences of

his official conduct.” Id.

Of course, limits have been placed on suits brought under Ex Parte

Young, such as prohibiting retroactive relief, Pennhurst, 465 U.S. at 102–03

(citing Edelman v. Jordan, 415 U.S. 651, 666–67 (1974)), and barring

jurisdiction in cases that allege a state official has violated state law,

Pennhurst, 465 U.S.at 106 (“[I]t is difficult to think of a greater intrusion on

state sovereignty than when a federal court instructs state officials on how to

conform their conduct to state law.”).

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,

954 F.3d 729, 736 (5th Cir. 2020) (citing NiGen Biotec, L.L.C. v. Paxton, 804

F.3d 389, 394 (5th Cir. 2015)). Further, an Ex Parte Young action must seek

only equitable relief—relief that is “declaratory or injunctive in nature and

prospective in effect.” Id. (quoting Aguilar v. Tex. Dep’t of Crim. Just., 160

F.3d 1052, 1054 (5th Cir. 1998)).

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 ongoing 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, 645 F.2d 404, 413 (5th Cir. 1981).

“However, in cases where the basis of the federal jurisdiction is also an

element of the plaintiff’s federal cause of action, the United States Supreme

Court has set forth a strict standard for dismissal for lack of subject matter

jurisdiction.” Clark v. Tarrant Cnty., Tex., 798 F.2d 736, 741 (5th Cir. 1986).

“Where the factual findings regarding subject matter jurisdiction are

intertwined with the merits,” federal courts apply the standard as set out in

Bell v. Hood, 327 U.S. 678 (1946). Id. at 742. The Bell standard prohibits

district courts from dismissing for lack of subject-matter jurisdiction unless

one of two exceptions applies—the alleged claim “appears to be immaterial

and made solely for the purpose of obtaining jurisdiction or where such a

claim is wholly insubstantial and frivolous.” Id. at 741 (quoting Bell, 327 U.S.

at 681–82). The rationale is twofold: “Judicial economy is best promoted

when the existence of a federal right is directly reached and, where no claim

is found to exist, the claim is dismissed on the merits.” Williamson, 645 F.2d

at 415. Moreover, this method provides “a greater level of protection to the

plaintiff who in truth is facing a challenge to the validity of his claim” and

whose allegations will be taken as true under a Rule 12(b)(6) motion instead.

Id. at 415–16.

“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, 645 F.2d at 416 n.10).

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, 798 F.2d at 742 (citing Williamson, 645 F.2d at 415); see Montez, 392

F.3d at 150.

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-question

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

constitutional 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, 123 F. App’x 606, 608 (5th Cir. 2005) (quoting Williamson,

645 F.2d at 415).

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, 122 F. App’x 760, 763 (5th Cir. 2004). Thus, the

only question remaining is whether the homeowners’ claims “clearly

appear[] to be immaterial and made solely for the purpose of obtaining

jurisdiction” or if such claims are “wholly insubstantial and frivolous.” Bell,

327 U.S. at 682–83. The Fifth Circuit has said this standard “is met only

where the plaintiff’s claim ‘has no plausible foundation’ or ‘is clearly

foreclosed by a prior Supreme Court decision.’” Williamson, 645 F.2d at 416

(citation omitted). This case does not fall within either of those exceptions.

Accordingly, the court denies the Commissioner’s request to dismiss the

homeowners’ Fourth Amendment, Fifth Amendment, and

“substantive due process” claims under Rule 12(b)(1).

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, 641 F.3d 86, 90

(5th Cir. 2011)). Courts use a two-prong approach, considering “(1) the

fitness of the issue for judicial decision and (2) the hardship to the parties of

withholding court consideration.” Bowlby, 681 F.3d at 224 (quoting

Rosedale Church, 641 F.3d at 91).

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 not a claim for

a taking.” Bowlby, 681 F.3d at 223–24 (quoting Hidden Oaks Ltd. v. City of

Austin, 138 F.3d 1036, 1045 n.6 (5th Cir. 1998)). “The ripeness of the former

depends on the ripeness of the ‘ancillary’ takings claim, while the ripeness of

the latter is a separate matter from the ripeness of any attendant takings

claim.” Bowlby, 681 F.3d at 224.

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, 893 F.3d 318, 323 (5th

Cir. 2018). Further, the homeowners have credibly alleged that withholding

consideration of their “procedural due process” claim could cause them

further hardship as the OBA provides no recourse that would allow them to

repair their homes as they see fit in light of the restrictions imposed.

Accordingly, the court finds the homeowners’ “procedural due process”

claim is ripe.

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)

motion. 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, 550 U.S. 544, 570 (2007). In analyzing a 12(b)(6)

motion, the court accepts all well-pleaded facts as true, viewing them in the

light most favorable to the nonmoving party. Martin K. Eby Constr. Co. v.

Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). The court’s

review is limited to the allegations in the complaint and to those documents

attached to a motion to dismiss to the extent that those documents are

referred to in the complaint and are central to the claims. Causey v. Sewell

Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).

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, 503 F.3d 397,

401 (5th Cir. 2007) (footnote omitted) (quoting Twombly, 550 U.S. at 555).

“Conversely, ‘when the allegations in a complaint, however true, could not

raise a claim of entitlement to relief, this basic deficiency should . . . be

exposed at the point of minimum expenditure of time and money by the

parties and the court.’” Id. (quoting Twombly, 550 U.S. at 558).

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., 544 U.S. 528, 537 (2005). Recently, the Supreme Court formally

embraced another type of per se taking: when an “access regulation

appropriates a right to invade” one’s property. Cedar Point Nursery v.

Hassid, 141 S. Ct. 2063, 2072 (2021).

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 Co. 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, 535 U.S. 302,

321–23 (2002)).

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 from 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, 141 S. Ct. at 2074.

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, 141 S. Ct. at 2072.

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.” 141 S. Ct. at 2076.

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, 139 S. Ct. 2162 (2019). But neither Ruckelshaus nor Knick

prohibits a litigant from bringing a claim for equitable relief under Ex Parte

Young for violations of the Fifth Amendment Takings Clause against a state

agency when monetary relief is unavailable in federal court.3 Instead, the

court finds instructive cases where litigants properly brought takings actions

under Ex Parte Young and sought prospective, equitable relief in federal

court. See, e.g., Severance v. Patterson, 56 F.3d 490, 495 (5th Cir. 2009)

(holding that a suit seeking prospective equitable relief to determine whether

the State may constitutionally impose an easement was not barred by

sovereign immunity); Plaisance v. Louisiana, Civ. Action No. 21-00121-BAJ-

EWD, 2021 WL 2046699, at *1, *3 (M.D. La. May 21, 2021) (permitting a

takings action against state official for prospective relief); Miss. Surplus

Lines Ass’n v. Mississippi, 384 F. Supp. 2d 982, 986–87 (S.D. Miss. 2005)

(same).

Finally, the court notes that the Commissioner points to no

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, 139 S. Ct. at 2173 (stating that equitable relief was

unavailable in Ruckelshaus because “monetary relief was under the Tucker Act”).

Similarly, in Knick, the court faced a takings claim against a municipality not

protected by sovereign immunity and thus subject to claims for monetary damages

in federal court. Knick, 139 S. Ct. at 2168–69. When monetary damages are

available, the Knick Court opined, in what is arguably obiter dictum, “injunctive

relief will be foreclosed.” Id. at 2179.

background restrictions on the homeowners’ property which would

authorize any alleged physical invasion or foreclose a finding of a physical

taking. See Cedar Point, 141 S. Ct. at 2079.

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, houses, 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, 466 U.S. 109, 113 (1984).

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, 464 F.3d 480, 487–88 (5th Cir. 2006)). As the homeowners

here have pleaded nearly identical facts, see Dkt 12 ¶¶ 108–14, the court finds

their pleadings are sufficient to state a claim for relief that is plausible on its

face.

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, 566 F.3d at 501–02. Instead,

the court held the allegations of an “appropriation of an easement” were

sufficient because the consequence of such an easement was the plaintiff’s

inability to repair her damaged home or exclude the public from her

property. Id.

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, 250 F.3d 943, 946 (5th Cir. 2001).

The government must provide reasonable notice to an individual of its

intention to deprive him of such an interest, Mullane v. Cen. Hanover Bank

& Trust Co., 339 U.S. 306, 313–15 (1950), and afford that individual a

meaningful opportunity to be heard, Matthews v. Eldridge, 424 U.S. 319,

333 (1976). To prevail on a “procedural due process” claim, plaintiffs must

show “(1) they possess a property interest that is protected by the due process

clause, and (2) that the defendant’s procedures are constitutionally

inadequate.” Ridgely v. FEMA, 512 F.3d 727, 734 (5th Cir. 2008).

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, 893 F.3d at 323 (holding that economic injuries from

homeowner’s “constrained ability to redevelop the property” was a separate

cognizable injury). And because a “procedural due process” claim is distinct

from the takings claim, it is irrelevant that under takings precedent pre-

deprivation notice is not required under the Fifth Amendment’s Just

Compensation Clause. See Dkt. 19 at 21 (citing Williamson County, 473 U.S.

at 195 n.14).

Notwithstanding the foregoing, the Commissioner argues that the

homeowners “had notice that the LOV could be set at 200 feet from mean

low tide . . . since 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,

454 U.S. 516, 517 (1982), it did not follow that the burdens imposed on the

government under Mullane are entirely shifted to the property owners every

time a statute is enacted. Small Engine, 878 F.2d at 889–90. “Facts matter,

and factual matrices differ.” Id. at 890. Here, the Commissioner provides no

reason for the court to presume the burden of notice was entirely shifted to

the homeowners after 2013 when § 61.0171 was enacted. This is especially

concerning where the statute makes no mention of a homeowners’ inability

to make certain repairs during the period covered by a resultant temporary

order. See Tex. Nat. Res. Code § 61.0171 et seq. Without more, the court is

not prepared to hold that the statute itself provided the homeowners

constitutionally sufficient notice before any alleged deprivation. Accordingly,

the Commissioner is not entitled to a dismissal of the homeowners’

“procedural due process” claim.

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, 958 F.2d at 106 (citing Spuler, 958 F.2d at 106). This first issue is

resolved in the homeowners’ favor. See Severance, 370 S.W.3d at 713 (“[T]he

right to exclude others from privately owned realty is among the most

valuable and fundamental of rights possessed by private property owners.”).

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., 724 F.2d 434, 435

(5th Cir. 1984). “By abstaining in such cases, federal courts will avoid both

unnecessary adjudication of federal questions and ‘needless friction with

state policies. . . .’” Midkiff, 467 U.S. at 236 (quoting Pullman, 312 U.S. at

500).

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 constitutional issue; (2) the state-law question presents difficult,

4 Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984) (citing R.R. Comm’n

of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941)).

5 Burford v. Sun Oil Co., 319 U.S. 315 (1943).

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., 57 F.3d 436, 442 (5th Cir. 1995)). Notably, “Pullman does

not command district courts to abstain simply to permit state review of an

unambiguous statute that has previously never been interpreted by a state

court.” Lipscomb v. Columbus Mun. Separate Sch. Dist., 145 F.3d 238, 243

(5th Cir. 1998) (citing Houston v. Hill, 482 U.S. 451, 469 (1987)).

Applying the Nationwide test, the first prong is met here because 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

Act6 “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 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE & PROCEDURE § 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

6 Tex. Nat. Res. Code §§ 63.001 et seq.

challenged the validity of 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, 10 F.4th 495, 508 (5th Cir.

2021). While the Commissioner raises alarm at the prospect of Severance

implicating other sources of state law, “that fact in and of itself does not bring

this case within the limited scope of Pullman abstention.” Id.

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, 2019 WL 6204838, at *11 (Tex. App.—Houston [1st Dist.] Nov.

21, 2019, no pet.). The supposed “unsettled questions” that so concern the

Commissioner come up only in two opinions by concurring justices who

clearly believe Severance was wrongly decided. See id. at *11-16 (Keyes, J.,

concurring); see also id. at *16 (Goodman, J., concurring). But whether

Severance was correctly decided or not, it has been Texas law for ten years.

The only court that can change that is the Court that decided it, and so far it

has shown no inclination to do so.

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., 989 F.3d 301, 313

(5th Cir. 2021) (quoting Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943)).

Abstention under the Burford doctrine “allows federal courts to avoid

entanglement with state efforts to implement important policy programs.”

Id. In Grace Ranch, the Fifth Circuit recently reiterated the rare nature of

Burford abstentions: “The power to abstain under Burford charges courts

with a careful balancing of state and federal interests, but one that ‘only

rarely favors abstention.’” Id. (quoting Quackenbush, 517 U.S. at 728)).

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., 8 F.3d 311, 314 (5th Cir. 1993). A

district court’s decision to abstain is reviewed for abuse of discretion, but

whether the requirements of a particular abstention doctrine are met is

reviewed de novo. Grace Ranch, 989 F.3d at 313.

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, 989 F.3d at 315 (“We frequently decide unsettled questions of

state law . . . . Indeed, the certification procedure arose in response to our

court being too quick to abstain.”).

The third factor favors the Commissioner because Texas undoubtedly

has a strong interest in the use and preservation of its beaches. But this factor

weighs heavily in favor of abstention only “when the state interests at stake

are ‘paramount.’” Grace Ranch, 989 F.3d at 316 (quoting Quakenbush, 517

U.S. at 728). Such is the case when a “state administrative scheme guards an

‘over-all plan of regulation . . . of vital interest to the general public’ from

federal interference.” Id. Abstention has also been found proper when

“countervailing federal policies undermine the primacy of the state’s

interests,” or “when the state interests involved are not threatened by the

limited relief sought.” Id. (internal citations omitted).

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, 989 F.3d at 318 (“Whatever the result

of Grace Ranch’s case, the Commissioner will remain free to enforce the same

law for other land in the state.”); Stratta v. Roe, 961 F.3d 340, 358 (5th Cir.

2020) (holding abstention unwarranted when “the state concerns that are

implicated are not overriding in light of the remedy sought”).

Finally, the fifth factor leans against abstention. As “there is no special

state forum for judicial review,” Romano v. Greenstein, 721 F.3d 373, 280

(5th Cir. 2013), this case does not feature the type of “‘complex state

administrative processes’ that Burford abstention aims to ‘protect[] . . . from

undue federal interference.’” Grace Ranch, 989 F.3d at 317 (quoting NOPSI,

491 U.S. at 362).

In sum, the court finds that as this case does not present one of “the

rare instances” calling for Burford abstention, Grace Ranch, 989 F.3d at 313,

it again declines to abstain.

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, 905 F.2d 63, 65 (5th Cir. 1990) (per

curiam). “A preliminary injunction is an extraordinary remedy that should

not be granted unless the party seeking it has clearly carried the burden of

persuasion on all four requirements.” Dennis Melancon, Inc. v. City of New

Orleans, 703 F.3d 262, 268 (5th Cir. 2012) (quotation marks and citation

omitted). None of these elements may be presumed; each must be

established separately. Plains Cotton Coop. Ass'n of Lubbock, Tex. v.

Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1261 (5th Cir. 1987).

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, 2006 WL 8456316, at *7 (E.D. La. Mar. 22, 2006) (“A number

of courts have expressly declined to find that the irreparable[-]harm

requirement for injunctive relief is automatically satisfied by a plaintiff’s

allegation that his constitutional rights have been violated.”)

The homeowners also urge the court to issue a preliminary injunction

because their “privacy is at serious risk because the Order authorizes

members of the public to use the land on which their homes sit.” Dkt. 16 at

29. They argue that without an injunction, they are “at risk of being sued or

otherwise held liable for any injuries to members of the public [who] attempt

to enter and use their developed land for purposes of access a ‘public beach.’”

Id. at 30. And the Order also bars the homeowners from making certain

repairs and improvements that “may be essential to their continued rental

use and to [protect] from storms.” Id. Finally, the homeowners argue that

the Order “creat[es] an official encumbrance on title that will continue to

burden their rights” if an injunction does not issue. Dkt. 16 at 37–38. None

of these reasons convince the court that the homeowners are at risk of

suffering irreparable harm.

To merit injunctive relief, a party must show a likelihood of irreparable

harm. Cf. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 21–22 (2008)

(noting that a preliminary injunction may not issue on only the possibility of

irreparable harm, but instead requires that “irreparable injury is likely in the

absence of an injunction”). Such a showing requires more than mere

speculation. See United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001)

(“[A] preliminary injunction will not be issued simply to prevent the

possibility of some remote future injury. A presently existing actual threat

must be shown.”).

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, 270 F.3d at 262.

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, 270 F.3d at 262 (quoting 9 WRIGHT, MILLER & KANE,

FEDERAL PRACTICE & PROCEDURE: CIVIL 2D § 2948.1 at 153–56). For the same

reason, the homeowners’ fear of being held legally liable for any lawsuits

arising from injuries on their property is too speculative. And the

homeowners’ allegations that their inability to make certain improvements

on or repairs to their properties may cause a reduction in rental income or

protection from storms do not amount to a “clear showing” that such a series

of events will happen at all. Winter, 555 U.S. at 22; Dkt. 16 at 30.

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, 617 F. Supp. 2d 201, 215 (S.D.N.Y. 2008), aff’d, 626 F.3d 667

(2d Cir. 2010)). But that case and this one are not on all fours.

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 congregation. 617 F. Supp. 2d at 203–

04. At first the city permitted this use, but later revoked the permission. Id.

at 204–05. The church sued and sought injunctive relief against the city. Id.

at 208. And in finding that there was “no question” the church faced

irreparable harm, the court noted that the church would have to sell its

building, which it had occupied for more than eighty years, absent an

injunction against the city. Id. at 215. Again, the threatened deprivation of an

interest in real property was a complete deprivation.

In both Opulent Life and Third Church of Christ, Scientist,7 churches

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

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, 333 F. Supp. 3d 769, 781 (S.D. Ohio 2018). But like

the plaintiffs in Opulent Life and Third Church of Christ, Scientist, the plaintiffs in

Park Village feared a complete deprivation of their ability to occupy their real

property—they faced eviction. 636 F.3d at 1159. And the plaintiff in Golf Village

sought to enjoin a continuing trespass by the defendants—a trespass that

threatened to include the clearing of trees, the filling of wetlands, the digging of

trenches, and the conversion of private roads into public streets. 333 F. Supp. 3d

at 781. The homeowners face nothing of that sort here. Moreover, the court in Golf

Village noted that courts are less willing to recognize the deprivation of an interest

in real property as irreparable harm when the property is commercial real estate

or investment property rather than the plaintiff’s residence. Id. at 780–81. As

noted above, the homeowners in this case do not live in the properties at issue;

rather, they use them as vacation rentals.

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, 489 F.2d 567, 576

(5th Cir. 1974). Because the homeowners have failed to meet their burden of

showing irreparable harm, their motion for a preliminary injunction is

denied.

***

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 24th day of May, 2022.

___________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE