IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40864
JOHN B. GORDON; ET AL
Plaintiffs
JOHN B. GORDON; MARIE GORDON; K.M. SHIPLEY; T.E. MOOR, III; GLENN
DAVID MOOR; MARIAN CAFFREY CAMPBELL; BILLY BRYANT, et ux; ANN
BRYANT; ROY STEINHAGEN; KIM STEINHAGEN; CHARLES FONTENIER; WANDA
FONTENIER; JAMES D. HEARN; SANDRA HEARN; PATRICK A. GREEN; THERESA
GREEN; RALPH SAUER; MARGARET JO SAUER,
Plaintiffs-Appellants,
versus
STATE OF TEXAS, c/o Honorable Antonio Garza, Secretary of State;
GULF COAST ROD &, Gulf Coast Rod & Reel Club; COUNTY OF GALVESTON;
TEXAS GENERAL LAND OFFICE; TEXAS PARKS & WILDLIFE; GULF COAST ROD,
REEL AND GUN CLUB; WAYNE STUPKA; DAVID DESORMEAUX; FLOYD W.
MORRISON, JR.; JOHN EBERLING, JR.,
Defendants-Appellees.
************************************************************
K.M. SHIPLEY; ET AL
Plaintiffs
K.M. SHIPLEY; T.E. MOOR, III; GLENN DAVID MOOR; MARIAN CAFFREY
CAMPBELL; BILLY BRYANT, et ux; ANN BRYANT,
Plaintiffs-Appellants,
versus
STATE OF TEXAS; GALVESTON COUNTY; GULF COAST ROD, REEL AND GUN
CLUB; TEXAS PARKS & WILDLIFE; GENERAL LAND OFFICE; TEXAS GENERAL
LAND OFFICE,
Defendants-Appellees.
************************************************************
ROY STEINHAGEN; ET AL
Plaintiffs
ROY STEINHAGEN; KIM STEINHAGEN; CHARLES FONTENIER; WANDA FONTENIER,
Plaintiffs-Appellants,
PATRICK A. GREEN; THERESA GREEN; RALPH SAUER; MARGARET JO SAUER,
Intervenor-Plaintiffs-
Appellants
versus
GULF COAST ROD, REEL AND GUN CLUB; TEXAS PARKS & WILDLIFE,
Defendants-Appellees.
************************************************************
JAMES D. HEARN; SANDRA HEARN,
Plaintiffs-Appellants,
versus
GULF COAST ROD, REEL AND GUN CLUB; WAYNE STUPKA; DAVID DESORMEAUX;
ROBERT H. KENT, FLOYD W. MORRISON, Jr.; JOHN EBERLING, Jr.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
August 25, 1998
Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,
Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This case involves several lawsuits brought by beachfront
property owners in Galveston, Texas, against both public and
private defendants. The suits allege that the defendants’ conduct
contributed to the dramatic erosion problems that the plaintiffs
are now experiencing on their properties. The plaintiffs state a
variety of claims seeking both injunctive and monetary relief. The
2
district court dismissed the lawsuits, concluding that they raised
nonjusticiable political questions. We reverse the district
court’s decision and remand for further proceedings.
I.
In the early 1940s, the Gulf Coast Rod, Reel, and Gun Club
obtained about 22 acres of land at Rollover on the Bolivar
Peninsula in Galveston County, Texas. In 1954, the Club granted an
easement over a portion of this land to the Texas Game and Fish
Commission (now the Texas Parks and Wildlife Department) for the
purpose of constructing a fish pass.1 After obtaining a permit
from the United States Army Corps of Engineers, the Commission
dredged a channel on the land and created the fish pass, now known
as the Rollover Fish Pass (or “the Cut”). The Rollover Fish Pass
has continuously operated since 1959. In 1988, the Club leased the
remainder of its land on the peninsula to the County of Galveston
for use as a public park. The lease has been renewed annually, and
the property is presently employed as a park.
Unfortunately, in recent years the Texas Gulf Coast has
suffered from extensive beach erosion. Loss of beachfront land to
1
A fish pass is a channel cut into land permitting the passage
of fish from one body of water to another. This particular fish
pass was intended to promote sport fishing in the area by allowing
the exchange of water between the Gulf of Mexico and East Bay of
the Galveston Bay system.
3
the sea has been particularly troublesome in the area around the
Rollover Fish Pass. According to the plaintiffs, various studies
prepared by government agencies over the past 40 years have
concluded that the Pass contributes substantially to the erosion
problems in its vicinity. Nevertheless, in 1995 the Texas Parks
and Wildlife Department made a variety of structural improvements
to the Fish Pass. The plaintiffs assert that these improvements
dramatically increased the rate of beachfront erosion near the
Pass. They claim that a 1995 report by the Army Corps of Engineers
concluded that the recent severe erosion west of the Pass was
attributable mainly to the 1995 structural improvements made to the
Pass.
Government officials have suggested over the years that
something be done to alleviate the erosion caused by the Fish Pass,
but, as of yet, little action appears to have been taken. Perhaps
frustrated with the slow response of the government to the problem,
various owners of beachfront property filed several different
lawsuits in state court in 1996, raising claims under both Texas
law and the U.S. Constitution. The state cases were as follows:
1. The first suit, the Gordon case, was filed in state
district court in Galveston County. The Gordon
plaintiffs sued the State of Texas, the Club, Galveston
County, the GLO, and the Texas Parks and Wildlife
Department. Galveston County removed the case to federal
district court based on federal question jurisdiction,
but the GLO later opposed removal.
2. A similar case, the Shipley suit, was later filed in the
same state district court against the same defendants.
It was removed and consolidated with the Gordon case.
4
3. The Steinhagen case was filed in state district court in
Jefferson County, Texas, seeking damages and a temporary
injunction against the Club and Texas Parks. Both
defendants removed it to federal district court in
Beaumont, and it was later transferred to Galveston and
consolidated with the Gordon and Shipley cases.
4. Finally, the Hearn case was filed in state district court
in Jefferson County, Texas, seeking relief against the
Club and the Club’s Board of Directors individually. The
Hearn case also was removed and then transferred to
Galveston federal district court.
Thus, eventually the federal district court for the Southern
District of Texas, Galveston Division, came to possess jurisdiction
over all four of the plaintiffs’ cases.
The defendants responded to the plaintiffs’ lawsuits by filing
a variety of motions seeking to dismiss their claims. The State
and Texas Parks moved to dismiss based on Eleventh Amendment
immunity. The General Land Office, GLO, raised Eleventh Amendment
immunity, the political question doctrine, failure to make more
definite allegations in the pleadings, and various state law
defenses. Galveston County filed a Rule 12(b)(6) motion to dismiss
- alternatively for summary judgment, asserting substantive
defenses. The Club filed a motion for summary judgment, also
raising substantive defenses. The Club Board filed no dispositive
motions.
By order dated May 27, 1997, the district court dismissed the
plaintiffs’ cases. The court reasoned that the relief requested by
the plaintiffs would require it to second-guess the decisionmaking
of Congress and various federal agencies. Accordingly, the court
5
held, the cases raised nonjusticiable political questions. The
court also noted in passing that the plaintiffs’ claims would
likely be barred anyway by the Eleventh Amendment, sovereign
immunity, statutes of limitations, and other defenses. The court
then dismissed all of the plaintiffs’ claims with prejudice,
presumably because of the political question doctrine. It also
granted all of the defendants’ dispositive motions, despite its
ruling on justiciability. The plaintiffs timely appealed.
II.
The political question doctrine erects a barrier to
justiciability to those matters which are inappropriate for
judicial determination. See Texas Assoc. of Concerned Taxpayers,
Inc. v. United States, 772 F.2d 163, 165 (5th Cir. 1985), cert.
denied, 476 U.S. 1151 (1986). The foundation of the political
question doctrine is the constitutional principle of separation of
powers among the branches of government. See Occidental, Inc. v.
Certain Cargo of Petroleum, 577 F.2d 1196, 1203 (5th Cir. 1978),
cert. denied, 442 U.S. 928 (1979). The doctrine prohibits courts
from adjudicating those questions whose resolution is committed by
the Constitution to a branch of government other than the
judiciary. See Elrod v. Burns, 427 U.S. 347, 351 (1976). In Baker
v. Carr, 369 U.S. 186 (1962), the Supreme Court laid out the
elements said to typically mark a political question:
6
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a
court’s undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or
an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on one
question.
Id. at 217.
In deciding that the plaintiffs had asked it to answer
“political questions,” the district court analyzed separately their
demands for injunctive and monetary relief. The court first noted
that the request for injunctive relief would require it to wade
deeply into policy decisions best left to those government agencies
charged with overseeing the Gulf Coast. In a flourish reminiscent
of Judge John R. Brown, it also expressed a concern about its
ability to manage such relief: “While the Court presides over a
District by the sea, it is not endowed with the powers of Poseidon.
It cannot control the tides, nor can it, on its own accord, order
a major geologic change in the coastline of the state of Texas.
The Court does not have the inclination, the capabilities, nor the
power to discover, develop, and implement procedures for filling in
Rollover Fish Pass.”
Turning to the damages sought by the plaintiffs, the court
acknowledged that money damages are less prone to political
question problems, for typically they are judicially manageable and
7
are not intrusive into the business of the other branches of
government. The court noted, however, that in this particular case
the plaintiffs’ damages claims were “inextricably intertwined with
their request for injunctive relief.” Because the plaintiffs’
claims for injunctive relief were nonjusticiable, reasoned the
district court, so too were their claims for damages. Moreover,
the district court argued that the plaintiffs’ questionable claims
for actual damages, calculated based upon the passage of time,
highlighted the political nature of their requested relief.2
We are not persuaded that the plaintiffs’ claims for
injunctive relief and damages are barred by the political question
doctrine; at least it is not determinable at this early stage in
the litigation. It is true that requests for injunctive relief can
be particularly susceptible to justiciability problems, for they
have the potential to force one branch of government -- the
judiciary -- to intrude into the decisionmaking properly the domain
of another branch -- the executive. See Koohi v. United States,
976 F.2d 1328, 1332 (9th Cir. 1992) (“[B]ecause the framing of
injunctive relief may require the courts to engage in the type of
operational decision-making beyond their competence and
constitutionally committed to other branches, such suits are far
2
As the district court stated: “Plaintiffs also seek actual
damages in the amount of $730 million, which in their estimation,
equals one dollar a day for every day of geological time that it
took to create Bolivar Peninsula. (Literal Biblical interpretation
would, of course, limit damages to $6.00).”
8
more likely to implicate political questions.”), cert. denied, 508
U.S. 960 (1993). Despite the murky limits of the doctrine and its
overlap with other concepts, such as standing, it is fair to say
that, Guaranty Clause cases aside, the potential for a clash
between a federal court and other branches of the federal
government is fundamental to the existence of a political question;
a simple conflict between a federal court and state agencies does
not implicate the doctrine. See Baker, 369 U.S. at 210 (“[I]t is
the relationship between the judiciary and the coordinate branches
of the Federal Government, and not the federal judiciary’s
relationship to the States, which gives rise to the ‘political
question.’”). Here, the plaintiffs have requested no action be
taken by any unit of the federal government. Rather, their claims
are directed solely at the conduct of state agencies or private
entities,3 and not their republican form.
3
The Gordons’ request for a preliminary injunction, for
example, states:
Plaintiffs request this Court to issue an immediate emergency
injunction to:
1. Close the Rollover Fish Pass . . . .
2. Closure to be of sufficient wall material and height to
withstand waves and tides.
3. Closure to contain gates in the wall, so as to open for
outgoing tides and high north winds, to prevent flooding
on the north side of the fish pass.
4. Both defendants to provide 24 hour a day emergency
personnel to monitor the closure and continuing
thereafter, subject to further order of this court.
5. Defendants to replace dunes, earth and beach on both
sides of the [fish pass] for a distance of approximately
2 miles on the west and 1 mile on the east.
6. Defendants to stabilize the beach areas on both east and
west sides of the [fish pass], to prevent further
9
The district court, however, reasoned that the plaintiffs’
claims necessarily challenge federal policy. The court noted that
the original dredging of the Fish Pass was done pursuant to a
permit issued by the Army Corps of Engineers, and in later years
the Corps has refused to provide funding to correct the erosion
problem in the Rollover area (at the same time that it had approved
other dredging projects in the vicinity of the Pass). Thus,
concluded the court, it could not order state agencies to correct
the erosion problem caused by the Fish Pass without intruding into
existing federal policy. Furthermore, the court argued that the
erosion problem could not possibly be remedied effectively without
the significant intervention of the federal government, both in
terms of manpower and financial assistance.
We disagree that the plaintiffs’ claims for injunctive relief
would require the district court to abrogate any significant
federal policies. Although in the 1950s the Army Corps of
Engineers issued a permit allowing the dredging of the Cut, the
dredging was the State’s undertaking, and the Cut was located on
land subject to an easement owned by the State. Thus, prior
erosion.
7. Defendants to remove all concrete on both sides of the
[fish pass] for a distance of two miles.
8. Remove all obstructions on the beach area preventing or
interfering with the public’s right to pass over the
beach.
9. Defendants to test, monitor, sanitize the beaches and
beach front tributaries for evidence of bacteria, fecal
material, asbestos, and products harmful to plaintiffs
and the public.
10
federal involvement in the Cut has been, at best, secondary.
Moreover, it is not clear that acting to halt the alleged erosion
caused by the Fish Pass would necessarily conflict with the current
policy of the federal government. In fact, the Corps has issued
several memoranda in recent years concluding that the Fish Pass is
causing severe erosion and recommending that some remedial action
be taken to fix the problem.
Similarly, we are not convinced that the plaintiffs could not
obtain effective injunctive relief without hauling federal agencies
before the district court. The plaintiffs’ pleadings essentially
request the State to fill in the Cut and provide some additional
beachfront restoration in its immediate vicinity. The plaintiffs’
claims for injunctive relief, as they now stand, would require
little federal involvement, apart perhaps from the issuance of a
permit by the Army Corps of Engineers. It may be that as this
litigation develops it will become apparent that nothing can be
done to correct the erosion problem absent massive federal
intervention. At that point, nonjusticiability might come clear.
On their face, however, the pleadings do not now create a conflict
with the federal government, and we refuse to speculate that one
will arise in the future.
Similarly, the plaintiffs’ claims for monetary relief are
justiciable. Indeed, as compared to injunctive relief, requests
for monetary damages are less likely to raise political questions.
Monetary damages might but typically do not require courts to
11
dictate policy to federal agencies, nor do they constitute a form
of relief that is not judicially manageable. See Koohi, 976 F.2d
at 1332 (“A key element in our conclusion that the plaintiffs’
action is justiciable is the fact that the plaintiffs seek only
damages for their injuries. Damage actions are particularly
judicially manageable. . . . [T]he granting of [monetary] relief
will not draw the federal courts into conflict with the executive
branch.”).
The district court, however, held that the plaintiffs’ request
for monetary relief, like their request for injunctive relief, was
barred by the political question doctrine. The court reasoned that
the plaintiffs’ claims for damages were “inextricably intertwined
with their request for injunctive relief,” so the justiciability
barriers to injunctive relief foreclosed monetary relief as well.
Yet even if the federal government were an indispensable party to
the case, as the district court argued, that fact would not
necessarily bar the plaintiffs’ claims for damages. The plaintiffs
assert, among other things, takings claims. As the Supreme Court
has explicitly acknowledged, citizens can sue the federal
government on a takings theory for the flooding and erosion of
their land caused by government projects. See United States v.
Dickinson, 331 U.S. 745, 750 (1947) (“When [the government] takes
property by flooding, it takes the land which it permanently floods
as well as that which inevitably washes away as a result of that
flooding.”). There is nothing inherent in erosion claims making
12
them difficult to manage judicially; the district court need only
determine the existence of liability and, if necessary, the extent
of damages. In Applegate v. United States, 35 Fed. Cl. 406 (Fed.
Cl. 1996), for example, the United States Court of Federal Claims
permitted a takings suit to go forward against the United States
brought by beachfront property owners who claimed that a federal
harbor project had caused coastal erosion. The Applegate court did
not so much as mention the political question doctrine. See also
Owen v. United States, 851 F.2d 1404 (Fed. Cir. 1988) (similar
takings case).
There are, to be sure, enormous problems with the plaintiffs’
enormous monetary claims. For example, the plaintiffs seek
$730,000,000 in actual damages, or $1 for every day of geological
time it took to create the Bolivar Peninsula. Obviously,
$730,000,000 has little connection to the actual property damages
that may have been suffered by the plaintiffs, and the district
court focused on this fact in concluding that their monetary claims
were not judicially manageable. Yet if the plaintiffs have
misstated or overinflated their damages, the problem is with their
pleadings. The district court could grant leave to amend to state
more appropriate damages, or it could dismiss for failure to do so.
Regardless, the defect in the plaintiffs’ claim for damages is a
substantive defect in their case; it has nothing to do with the
political question doctrine. Cf. Masayesva on Behalf of Hopi
Indian Tribe v. Hale, 118 F.3d 1371, 1378 (9th Cir. 1997)
13
(concluding that difficult calculation of damages in case
concerning dispute between two Native American nations did not
constitute a political question), cert. denied, 118 S. Ct. 1048
(1998).
We hold that the district court erred when it dismissed the
plaintiffs’ claims as nonjusticiable political questions. Neither
the plaintiffs’ requests for injunctive nor monetary relief raise
issues that cannot properly be resolved by a federal court.
III.
In addition to invoking the political question doctrine,
various of the defendants also claimed Eleventh Amendment and
sovereign immunity, raised the statute of limitations, and sought
summary judgment on the merits. In its opinion, the district court
discussed at length how the case before it was a nonjusticiable
political question, but it also noted in passing that the
plaintiffs’ claims might also be susceptible to these other
defenses. The district court then dismissed the plaintiffs’ claims
with prejudice, presumably on political-question grounds. In the
same breath, however, it granted all of the defendants’ other
dispositive motions.
The defendants now assert that even if we reverse the district
court’s dismissal based on justiciability, we may still uphold its
dismissals based on immunity, limitations, and the other grounds.
14
We do not interpret the district court’s opinion, however, to be a
formal disposition of the plaintiffs’ cases on these other bases.
The court held that the plaintiffs’ claims were nonjusticiable
under the political question doctrine. Having concluded that it
lacked the power to adjudicate the plaintiffs’ claims, logically
the district court could not then proceed to address the merits of
the other defenses raised by the defendants. Indeed, the
discussion of those other defenses in the district court’s opinion
is cursory at best. Thus, although the court’s order contained
language purporting to grant all of the defendants’ dispositive
motions, we refuse to give the order that effect.
We will remand to the district court to give it the
opportunity to consider in full the defendants’ invocation of these
various other defenses. On their face, the plaintiffs’ claims do
appear to suffer from some serious deficiencies. Most notably,
their claims for money damages against entities of the State of
Texas must confront the Eleventh Amendment.4 Rather than dispose
4
Although the plaintiffs opposed dismissal on Eleventh
Amendment grounds before the district court, they now support a
remand to state court on that basis. The plaintiffs argue that the
Eleventh Amendment destroys this court’s subject matter
jurisdiction, requiring a remand of their entire cases to state
court. They argue that we must decide the Eleventh Amendment issue
even before we reach any justiciability questions, and they cite in
support of their position our decision in McCay v. Boyd Constr.
Co., 769 F.2d 1084 (1985). The Supreme Court, however, recently
rejected our McCay rule. See Wisconsin Dept. of Corrections v.
Schacht, 118 S. Ct. 2047 (1988). Considering the Schacht case,
along with the Court’s analysis of the nature of Eleventh Amendment
immunity in Idaho v. Couer d’Alene Tribe, 117 S. Ct. 2028, 2033
(1997) (distinguishing Eleventh Amendment immunity from defects in
15
of this case in a piecemeal fashion -- with our court resolving the
Eleventh Amendment issues and the district court addressing all
other matters -- we think the most efficient course of action is
for the district court to consider all of the relevant defenses at
once. Cf. Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211, 225 (5th
Cir. 1998) (en banc) (noting possible defect in subject matter
jurisdiction but remanding to the district court “for its
determination in the first instance”).
IV.
We REVERSE the district court’s dismissal of the plaintiffs’
claims on political-question grounds and REMAND for further
proceedings.
subject matter jurisdiction), we decline to adopt the plaintiffs’
position.
16
Gordon v. State of Texas
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-08-25
Citations: 153 F.3d 190
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