On February 20th of this year, approximately 1,000 plaintiffs filed a 118-page lawsuit against 55 sand mining companies in the San Jacinto River Basin. Plaintiffs allege that the miners harmed them by decreasing the capacity and depth of Lake Houston and its tributaries by wrongfully discharging and negligently allowing the release of materials into waterways. That reduction of capacity, they say, contributed to flooding their homes and businesses.

Background

To support their claims (¶613), plaintiffs cite violations of Texas Commission on Environmental Quality (TCEQ) regulations and the U.S. Clean Water Act. They claim:

• Excessive, unauthorized discharge of silt into waterways
• Failure to:
  • Obtain stormwater discharge permits
  • Prevent unauthorized discharges
  • Minimize generation of dust and off-site tracking

Past and Present Activities Cited

Some defendants, they say, operated above permit limits and others operated without any permits at all (¶614).

Plaintiffs say (¶615) that defendants have operated immediately adjacent to various waterways and in the flood plain, clearcutting all vegetation, and digging pits within feet of the riverbanks. Thus, there are no real barriers between mines and the rivers, they claim. Further, they allege that defendants have no plans in place for protection and preservation of their pits and loose sand during flood events, which occur frequently.

Then Came Harvey

Hurricane Harvey, they say, inundated mines and “thousands of acres of sand washed downstream, clogging the rivers and lakes, resulting in flood waters moving outside the banks and outside the flood plain, causing hundreds of millions of dollars in damages.”

Alleged Violations of Water Code

The defendants had a duty to implement procedures to reduce the discharge of sediment into waterways, but did not, according to the plaintiffs. Thus, the proximate cause of plaintiffs’ injuries involved negligence and negligence per se. Defendants allegedly breached their duties under sections 11.086, 26.039, and 26.121 of the Texas Water Code, thus causing flooding and damage to plaintiffs’ property.

To prove negligence, personal injury plaintiffs must show that the defendants’ conduct fell below the applicable standard of care and that their actions were the actual and proximate cause of harm. 

In cases of negligence per se, defendants’ actions are assumed to be unreasonable if the conduct violates an applicable rule, regulation, or statute. That’s why lawyers cite the Texas Water Code, plus TCEQ and EPA regulations.

• 11.086 of the Texas Water Code provides that no person impound the natural flow of surface waters, or permit impounding to continue, in a manner that damages property of another by the overflow of the water diverted or impounded.
• 26.039 specifies that mine operators must notify the TCEQ of accidental discharges or spills that cause or may cause pollution as soon as possible.
• 26.121 prohibits discharge of pollutants. Both the EPA and TCEQ consider sediment a pollutant.

Specific Omissions

Specific omissions, say the plaintiffs, include failing to:

• Locate sand mines outside of floodways
• Increase the width of dikes
• Decrease the slope of dikes
• Control erosion with vegetation
• Replant areas not actively being mined
• Protect stockpiles from flooding
• Mine only above the deepest part of the river

Nuisance Claim

The plaintiffs also allege nuisance. Under Texas law, nuisance refers to a type of legal injustice involving interference with the use and enjoyment of property. Specifically, plaintiffs say that the defendants’ negligent conduct caused paintiffs’ flooding, thus depriving them of the use of their homes.

Complaint against Forestar by Barrington Residents

On page 108, a subset of plaintiffs (those who live in the Barrington), lodge a complaint against Forestar (USA) Real Estate Group Inc. They allege that Forestar developed, marketed and sold homes in the subdivision without any standards for determining the elevation of a house relative to flood risk.

“Despite having actual knowledge of the possibility of flooding in the Barrington Subdivision, Forestar did not advise homebuyers to purchase flood insurance,” says the complaint (¶640). “Nor did Forestar advise the residents of the Barrington Subdivision of its location on a floodplain, or that their elevations were changed due to lots being filled with dirt” when residents purchased homes.

Nevertheless, the complaint continues (¶643), homes were built at an “unreasonably low” elevation, given their location near the West Fork San Jacinto. “Forestar knew, or should have known, that houses needed to be built at an elevation adequate to prevent and/or reduce the likelihood of flooding.”

Damages Alleged

Plaintiffs allege damages that include:

• Cost of repairs to real property
• Cost of replacing personal property
• Lost of use of real and personal property
• Diminution of market value
• Loss of income, business income, profits and business equipment
• Loss of good will and reputation
• Consequential costs, such as loss of time from work and alternate living expenses
• Mental anguish
• Pre- and post-judgement interest
• Court costs

Conscious Indifference and Gross Negligence

¶658 asserts that the conduct of all defendants (sand mines and Forestar) qualifies as gross negligence under Texas law. The plaintiffs say that the defendants acts of omission involved an extreme degree of risk, considering the probability and magnitude of harm to others. Plus, “Defendants had actual subjective awareness of the risk involved in the above described acts or omissions, but nevertheless proceeded with conscious indifference to the rights, safety and welfare of plaintiffs and others.”

Where Case Stands

129th District Court Judge Michael Gomez signed a docket control order on 2/28/2020 that calls for:

• All parties in the suit to be added and served with notice by 8/19/2020
• Close of pleadings and start of mediation on 12/16/2020
• End of discovery on 1/15/2021
• All motions and pleas heard by 1/15/2021
• Trial, if necessary, on 2/15/2021

To date, there have been several motions to transfer venue, dismiss the case, and change the judge.

Only Triple PG Sand Development, LLC has filed an answer to the plaintiffs’ claims; the company filed a general denial.

In a separate case, the Attorney General of Texas is suing Triple PG for failing to prevent and repair breaches in dikes that resulted in repeated unauthorized discharges of process wastewater and sediment into Caney Creek. Caney Creek joins the East Fork San Jacinto just downstream from Triple PG. Triple PG currently operates under an injunction that bars it from dredging.

Editorial Opinion

If successful, this case may force sand mines to operate more responsibly, now and in the future. For instance, it might force them to move farther back from rivers and out of floodways. Having taken thousands of photos of leaking sand mines from the air since Harvey, in my opinion, that might benefit everyone, not just the plaintiffs.

To read the entire lawsuit, click here.

Posted by Bob Rehak on August 2, 2020

1069 Days after 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.