# Sheffield v. Bush

> District Court, S.D. Texas · May 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10675432

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** May 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675432

## How later opinions describe it (automated extraction)

- holding abstention unwarranted when “the state concerns that are implicated are not overriding in light of the remedy sought”
- stating that equitable relief was unavailable in Ruckelshaus because “monetary relief was under the Tucker Act”
- 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”
- holding that a suit seeking prospective equitable relief to determine whether the State may constitutionally impose an easement was not barred by sovereign immunity
- declining to abstain just because an “action arises under state law and requires an inquiry into unsettled state-law issues”

## Opinion text

May 24, 2022
In the United States District Court
Nathan Ochsner, Clerk
for the Southern District of Texas
GALVESTON DIVISION
═══════════
No. 3:21-cv-122
═══════════

CHARLES SHEFFIELD, ET AL., PLAINTIFFS,

v.

GEORGE P. BUSH, DEFENDANT.

══════════════════════════════════════════
MEMORANDUM OPINION AND ORDER
══════════════════════════════════════════

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675432. Public record. Not legal advice.