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; BI LLY BRYANT, et ux; ANN

BRYANT; ROY STEINHAGEN; KI M 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 TEXA S, 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 GEN ERAL

LAND OFFICE,

Defendants-Appellees.

************************************************************

ROY STEINHAGEN; ET AL

Plaintiffs2

ROY STEINHAGEN; KIM STEINHAGEN; CHARLES FONTENIER; WANDA FONTENIER,

Plaintiffs-Appellants,

PATRICK A. GREEN; THERESA GREEN; RALPH SAUER; MARGARET JO SAUER,

Intervenor-PlaintiffsAppellants

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

proper ty owners in Galveston, Texas, against both public and

private defendants. The suits allege that the defendants’ conduct

contributed to the dramatic erosion pr oblems that the plaintiffs

are now experiencing on their properties. The plaintiffs state a

variety of claims seeking both injunctive and monetary relief. The1 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

t he exchange of water between the Gulf of Mexico and East Bay of

the Galveston Bay system.

3 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 to4

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 incr eased 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. T he first suit, the G ordon case, was filed in state

d istrict court in Galveston County. The G ord o n

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 ag ainst the same defendants.

It was removed and consolidated with the Gordon case.5

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, ev entually 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 see king 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 allegat ions 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 court6

held, the cases raised nonjusticiable political questions. The

court also no ted in passing that the plaintiffs’ claims would

likely be b arred anyway by the Eleventh Amendment, sovereign

immunity, statutes of limitations, and other defenses. The court

then dismissed all of the plaintiffs’ claim s 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 questi on 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 (5t h Cir. 1985), c ert.

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 Constitutio n to a branch of government other than the

judiciary. S ee Elrod v. Burns

, 427 U.S. 347, 351 (1976). In B aker

v. Carr

, 369 U.S. 186 (1962), the Supreme Court laid out the

elements said to typically mark a political question:7

Prominent on the surface of any case held to involve a

political question is found a textually demonstrable

constitutional commitment of th e issue to a coordinate

political department; or a lack of judicially discoverable and

manageable standards for resolving it; or the impossibility of

deciding w ithout 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 conce rn 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 th e damages sought by the plaintiffs, the court

acknowled ged that money damages are less prone to political

question problems, for typically they are judicially manageable and2 As the district cour t stated: “Plaintiffs also seek actual

damages in the amount of $730 million, which in their estimation,

equal s 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 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 injunctiv e relief.” Because the plaintiffs’

claims fo r 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 ju sticiability 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 execut ive. 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

constit utionally committed to other branches, such suits are far3 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 defenda nts to provide 24 hour a day emergency

personnel to monitor the closure and continuing

thereafter, subject to further order of this court.

5. Defenda nts 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 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 branch es of the f ederal

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 no t 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.erosion.

7. Defen dants 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 ov er the

beach.

9. Def endants 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 T he 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 feder al government, both in

terms of manpower and financial assistance.

We disagree that the plaintiffs’ claims for injunctive relief

would require the distr ict 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, prior11

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 Cu t 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 w ill 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 da mages might but typically do not require courts to12

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 manage able. . . . [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 justi ciability

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 c an sue the federal

government on a takings theory for the flooding and erosion of

their land caused by government projects. S ee 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 we ll as that which inevitably washes away as a result of that

flooding.”). There is nothing inherent in erosion claims making13

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 beachf ront property owners who claimed that a federal

harbor project had caused coastal erosion. The A pplegate 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

substantiv e defect in their case; it has nothing to do with the

political question doctrine

. C f. Masayesva on Behalf of Hopi

Indian Tribe v. Hale

, 118 F.3d 1371, 1378 (9th Cir. 1997)14

(concluding that difficult calculation of damages in case

c oncerning 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 t o 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 mig ht 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, h owever, 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.4 Although the plaintiffs opposed dismissal on Eleventh

Amendment grounds before th e 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. S ee Wisconsin Dept. of Corrections v.

Schacht

, 118 S. Ct. 2047 (1988). Considering the S chacht case,

along with the Court’s analysis of the nature of Eleventh Amendment

immunity in Idaho v. Couer d’Alene Tribe

, 1 17 S. Ct. 2028, 2033

(1997) (distinguishing Eleventh Amendment immunity from defects in

15 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 we re nonjusticiable

u nder the political question doctrine. Having concluded that it

lacked the power to adjudicate the plai ntiffs’ claims, logically

the district court could not then proceed to address the merits of

the other defenses ra ised 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 purportin g 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 deficienc ies. Most notably,

their claims for money damages against entities of the State of

Texas must confront the Eleventh Amendment. 4 Rather than disposesubject matter jurisdiction), we decline to adopt the plaintiffs’

position.

16 of this case in a piecemeal fashion

-- with our court resolving the

Eleventh Amendment issues and the district court add ressing 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. C f. 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-que stion grounds and REMAND for further

proceedings.