Three lawsuits representing a total of approximately 1700 plaintiffs against more than 50 San-Jacinto-River-Basin sand mines have been joined in Multi-District Litigation (MDL). The lawsuits each arose out of flooding during Hurricane Harvey. Particulars of each suit vary slightly, but they all have common elements.
Basis for Lawsuits
At a high level, plaintiffs allege that the sand mines failed to take steps that reduced discharge of sediment, silt and sand. Floodwaters then carried sediment from the mines downstream, they say, where it clogged the river, backed water up, and contributed to flooding of plaintiffs’ homes and businesses.
Sand mines inundated in the floodway of the west fork of the San Jacinto during Hurricane Harvey in 2017
Plaintiffs allege negligence, gross negligence, negligence per se and nuisance. They seek exemplary damages.
First Suit Filed in 2018; Two More Intervene in 2020
Spurlock and Webster filed the Ellisor Lawsuit in 2018. The Potts Firm, and Arnold and Itkin intervened in the Ellisor suit in August of 2019 just before the statute of limitations ran out, but due to some procedural rulings later re-filed separate suits in February of this year.
The Ellisor suit had been in the works for 18 months when the Del Pino and Nelson cases were filed. In law, “intervening” means obtaining the court’s permission to enter into a lawsuit which has already started between other parties and to file a complaint stating the basis for a claim in the existing lawsuit.
However, the other suits had some plaintiffs from jurisdictions other than Harris County. So instead of just consolidating the lawsuits, defendants filed a motion with the Texas Supreme Court requesting multi-district litigation. Defendants and plaintiffs also wrestled over procedural issues such as jurisdiction, venue, dismissal, the judge, and more.
Supreme Court Mandates Multi-District Litigation
As usually happens with multiple suits in different counties, the Supreme Court ordered one judge to oversee all of the cases to ensure rulings were consistent. A “stay order” put everything on hold for months. Webster and Spurlock have not been able to move their case forward until these other issues were worked out.
The Texas Supreme Court appointed former Judge Sylvia Matthews to hear pretrial motions on all the cases.
Judge Matthews has reportedly ordered a status conference with all parties after Labor Day to discuss outstanding issues. If and when the cases go to trial, they go back to the original trial court.
“Now that the stay has been lifted, we’re hoping that we’ll be able to start moving forward with discovery,” said Kim Spurlock, one of the lawyers in the Ellisor case.
New Case Number
The three cases in the Multi-District Litigation have been consolidated under a new Master File for those seeking information about them in the future.
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2018/06/Screen-Shot-2018-06-21-at-10.07.29-AM.png?fit=2496%2C1648&ssl=116482496adminadmin2020-08-17 20:56:322020-11-30 20:26:47Approximately 1,700 Plaintiffs in Three Lawsuits Against Sand Mines Now Joined in Multi-District Litigation
On August 12, Texas Commission on Environmental Quality (TCEQ) Commissioners voted unanimously to initiate a rule-making process that would establish best management practices for commercial sand mining in the San Jacinto River watershed.
Meer feet separate the Hanson Aggregate mine from the San Jacinto West Fork. The integrity of dikes and setbacks from the river have become a major point of contention between the public and miners since Harvey.Photo taken late June.
Joint TACA/Lake Houston Area Request
In June, 2020, both TACA and the Lake Houston Area Grassroots Flood Prevention Initiative presented petitions to have the TCEQ establish best practices. Though the two sides have not agreed on important provisions, such as setbacks from the river and reclamation, the start of the process is a positive step.
After the commission secretary announced the agenda items, Mr. Josh Leftwich of TACA spoke on behalf of the measure. Mr. Leftwich took over as president and CEO of TACA on June 15, from David Perkins. (Mr. Perkins joined Lehigh Hanson, an aggregate company, as the Vice President of Government Affairs.)
No one for the Lake Houston Area spoke on behalf of the proposal.
Rebecca Vialva, executive director of the TCEQ Water Quality Division explained that both sides of this debate submitted separate but similar petitions in June. They requested the agency to establish a rule making process with stakeholder involvement to ensure adequate environmental protection. Ms. Vialva explained that her Water Quality Division supported that.
Vic McWherter, from the Commission’s Office of Public Interest Counsel, also supported the idea.
No one asked questions.
Rule-Making Process Not Same as Adopting Specific Rules
Before taking a vote, Jon Niermann, Chairman of the Commission, explained that initiating a rule-making process was not the same as adopting specific rules. It does not commit to any specific rules or outcomes. It simply starts a public dialog.
All three commissioners, Jon Niermann, Emily Lindley, and Bobby Janecka, voted to start the process.
Model for Rest of State?
Both Mr. Janecka and Mr. Niermann expressed wishes that Best Management Practices for the San Jacinto Watershed could become a model for the rest of the state.
Lake Houston Leaders Urge Public to Engage
Dave Feille and Bill McCabe, leaders of the Lake Houston Area Grass Roots Flood Prevention Initiative, sent out an email this morning. In it, they called the TCEQ decision “a major step forward.” However, they were quick to add, “Not surprisingly, the Petitions differed in some key areas and these will be addressed and consolidated in the rule-making stage of the process.”
“We would encourage all stakeholders to become involved in the rule-making process by following the progress of our Petition at: https://www.tceq.texas.gov/rules/participate.html,” said Feille and McCabe.
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2019/12/Liberty-Breach-12.3.19.jpg?fit=1200%2C913&ssl=19131200adminadmin2020-08-16 19:33:422020-08-16 19:53:37TCEQ Commissioners Vote to Start Rule-Making Process for Sand Mining Best Practices in San Jacinto Watershed
In June, the Lake Conroe Association (LCA) filed a 102-page complaint to the Texas Commission on Environmental Quality (TCEQ) through Austin attorneys about the San Jacinto River Authority’s (SJRA) policy of seasonally lowering Lake Conroe. The SJRA’s purpose for the lowering: to lower flood risk for downstream residents.
Also, the policy threatens the area’s water supply.
“In summary,” says the complaint, “SJRA and Houston are only authorized to divert or release and use water from Lake Conroe for municipal, industrial, mining, and agricultural purposes. Any other use of surface water from Lake Conroe is not authorized by the Amended Certificate, and thus, is a violation of the Amended Certificate and state law.”
The complaint fails to mention flood control in that last list (prominently mentioned in the SJRA’s enabling legislation). To follow the LCA’s arguments to their logical extreme, SJRA would not have been allowed to release water during Harvey. Every home on Lake Conroe would have flooded.
“TCEQ does not have jurisdiction over future water supply strategies or State and Regional Water Planning.”
“Both SJRA and the City have adopted Water Conservation Plans that comply with TCEQ’s Chapter 288 rules.”
“Therefore, these diversions, which are in compliance with the terms of the Certificate and the Conservation Plan, are not a waste of water under the law.”
The law firm acknowledged in its supplemental complaint that the lowering would only amount to 2.75 inches. However, the firm also claimed the water would be needed in a drought. Then it showed a Texas Water Development Board Drought Map as evidence. But map showed that no drought near the San Jacinto watershed.
In the End, Mother Nature, Not SJRA, Lowers Lake This Year
After all of that, evaporation alone took Lake Conroe down to the SJRA’s seasonal lowering target of 200 feet. It took Mother Nature an extra week to get there, but…
SJRA RELEASED NO WATER from Lake Conroe to achieve its August target level.
SJRA still has not released any water since the early spring.
Lake Conroe dashboard as of 4pm Saturday, August 15, 2020. Source: SJRA.net.
https://i0.wp.com/reduceflooding.com/wp-content/uploads/2020/02/20200220-RJR_8690.jpg?fit=800%2C1200&ssl=11200800adminadmin2020-08-15 16:37:462020-08-15 17:11:16Lake Conroe Association Complains to TCEQ about Seasonal Lake Lowering
Approximately 1,700 Plaintiffs in Three Lawsuits Against Sand Mines Now Joined in Multi-District Litigation
Three lawsuits representing a total of approximately 1700 plaintiffs against more than 50 San-Jacinto-River-Basin sand mines have been joined in Multi-District Litigation (MDL). The lawsuits each arose out of flooding during Hurricane Harvey. Particulars of each suit vary slightly, but they all have common elements.
Basis for Lawsuits
At a high level, plaintiffs allege that the sand mines failed to take steps that reduced discharge of sediment, silt and sand. Floodwaters then carried sediment from the mines downstream, they say, where it clogged the river, backed water up, and contributed to flooding of plaintiffs’ homes and businesses.
The three lawsuits include:
Plaintiffs allege negligence, gross negligence, negligence per se and nuisance. They seek exemplary damages.
First Suit Filed in 2018; Two More Intervene in 2020
Spurlock and Webster filed the Ellisor Lawsuit in 2018. The Potts Firm, and Arnold and Itkin intervened in the Ellisor suit in August of 2019 just before the statute of limitations ran out, but due to some procedural rulings later re-filed separate suits in February of this year.
The Ellisor suit had been in the works for 18 months when the Del Pino and Nelson cases were filed. In law, “intervening” means obtaining the court’s permission to enter into a lawsuit which has already started between other parties and to file a complaint stating the basis for a claim in the existing lawsuit.
However, the other suits had some plaintiffs from jurisdictions other than Harris County. So instead of just consolidating the lawsuits, defendants filed a motion with the Texas Supreme Court requesting multi-district litigation. Defendants and plaintiffs also wrestled over procedural issues such as jurisdiction, venue, dismissal, the judge, and more.
Supreme Court Mandates Multi-District Litigation
The Texas Supreme Court appointed former Judge Sylvia Matthews to hear pretrial motions on all the cases.
Judge Matthews has reportedly ordered a status conference with all parties after Labor Day to discuss outstanding issues. If and when the cases go to trial, they go back to the original trial court.
“Now that the stay has been lifted, we’re hoping that we’ll be able to start moving forward with discovery,” said Kim Spurlock, one of the lawyers in the Ellisor case.
New Case Number
The three cases in the Multi-District Litigation have been consolidated under a new Master File for those seeking information about them in the future.
See: Harvey Sand Litigation, Harris County 281st District Court, MDL 19-0500, Cause No. 2020-48333.
Posted by Bob Rehak on 8/17/2020
1084 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
TCEQ Commissioners Vote to Start Rule-Making Process for Sand Mining Best Practices in San Jacinto Watershed
On August 12, Texas Commission on Environmental Quality (TCEQ) Commissioners voted unanimously to initiate a rule-making process that would establish best management practices for commercial sand mining in the San Jacinto River watershed.
Joint TACA/Lake Houston Area Request
In June, 2020, both TACA and the Lake Houston Area Grassroots Flood Prevention Initiative presented petitions to have the TCEQ establish best practices. Though the two sides have not agreed on important provisions, such as setbacks from the river and reclamation, the start of the process is a positive step.
Seven Minutes of Deliberation
You can watch the discussion among the commissioners on YouTube. Items 29 and 30 on the agenda (the two petitions) start at approximately 17 minutes into the meeting. Discussion lasts about 7 minutes.
After the commission secretary announced the agenda items, Mr. Josh Leftwich of TACA spoke on behalf of the measure. Mr. Leftwich took over as president and CEO of TACA on June 15, from David Perkins. (Mr. Perkins joined Lehigh Hanson, an aggregate company, as the Vice President of Government Affairs.)
No one for the Lake Houston Area spoke on behalf of the proposal.
Rebecca Vialva, executive director of the TCEQ Water Quality Division explained that both sides of this debate submitted separate but similar petitions in June. They requested the agency to establish a rule making process with stakeholder involvement to ensure adequate environmental protection. Ms. Vialva explained that her Water Quality Division supported that.
Vic McWherter, from the Commission’s Office of Public Interest Counsel, also supported the idea.
No one asked questions.
Rule-Making Process Not Same as Adopting Specific Rules
Before taking a vote, Jon Niermann, Chairman of the Commission, explained that initiating a rule-making process was not the same as adopting specific rules. It does not commit to any specific rules or outcomes. It simply starts a public dialog.
All three commissioners, Jon Niermann, Emily Lindley, and Bobby Janecka, voted to start the process.
Model for Rest of State?
Both Mr. Janecka and Mr. Niermann expressed wishes that Best Management Practices for the San Jacinto Watershed could become a model for the rest of the state.
Lake Houston Leaders Urge Public to Engage
Dave Feille and Bill McCabe, leaders of the Lake Houston Area Grass Roots Flood Prevention Initiative, sent out an email this morning. In it, they called the TCEQ decision “a major step forward.” However, they were quick to add, “Not surprisingly, the Petitions differed in some key areas and these will be addressed and consolidated in the rule-making stage of the process.”
“We would encourage all stakeholders to become involved in the rule-making process by following the progress of our Petition at: https://www.tceq.texas.gov/rules/participate.html,” said Feille and McCabe.
Efforts to establish best practices for sand mining died in committee in the state legislature last year. Let’s hope this has a better outcome.
Posted by Bob Rehak on 8/16/2020
1083 Days since Hurricane Harvey
The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.
Lake Conroe Association Complains to TCEQ about Seasonal Lake Lowering
In June, the Lake Conroe Association (LCA) filed a 102-page complaint to the Texas Commission on Environmental Quality (TCEQ) through Austin attorneys about the San Jacinto River Authority’s (SJRA) policy of seasonally lowering Lake Conroe. The SJRA’s purpose for the lowering: to lower flood risk for downstream residents.
To download the complete complaint by Birch, Becker & Moorman LLP, click here. Warning: 20-meg file size.
Complaint Based on Three Arguments
The attorneys make three arguments.
“In summary,” says the complaint, “SJRA and Houston are only authorized to divert or release and use water from Lake Conroe for municipal, industrial, mining, and agricultural purposes. Any other use of surface water from Lake Conroe is not authorized by the Amended Certificate, and thus, is a violation of the Amended Certificate and state law.”
TCEQ Response to Complaints
On July 29, the TCEQ replied to the complaint. Toby Baker, TCEQ’s Executive Director, says that:
LCA Lodges Supplemental Complaint
Just the day before, on July 28, 2020, the same law firm filed a 4-page supplemental complaint to halt the fall lowering. The second complaint and the TCEQ’s response to the first complaint may have crossed in the mail.
The law firm acknowledged in its supplemental complaint that the lowering would only amount to 2.75 inches. However, the firm also claimed the water would be needed in a drought. Then it showed a Texas Water Development Board Drought Map as evidence. But map showed that no drought near the San Jacinto watershed.
TCEQ Finds City and SJRA in Compliance
Mr. Baker of the TCEQ replied to the supplemental complaint on August 6. He concluded, “After review, the TCEQ determined that the San Jacinto River Authority and the City of Houston are in compliance with the terms and conditions of Certificate of Adjudication 10-4963.”
In the End, Mother Nature, Not SJRA, Lowers Lake This Year
After all of that, evaporation alone took Lake Conroe down to the SJRA’s seasonal lowering target of 200 feet. It took Mother Nature an extra week to get there, but…
SJRA still has not released any water since the early spring.
LCA Pleads for More Money to Keep Fighting
Now the Lake Conroe Association is pleading with residents for donations to replenish its war chest. It will be interesting to see what they plan next.
Posted by Bob Rehak on August 15, 2020
1082 Days since Hurricane Harvey