Friday, July 10, at 11 a.m., the San Jacinto River Authority Board of Directors will meet in a closed session to discuss pending Harvey litigation with their lawyers and consultants.

Special Meeting with No Action on Agenda Items

A meeting notice put out by the SJRA says they will hold the “special” meeting via telephone conference call due to COVID. The notice also said:

There are no items on the agenda for action by said Board of Directors. Accordingly, there will not be an opportunity to provide public comments during the meeting. 

The notice provided a phone number for LISTENING PURPOSES ONLY. 

(936) 588-7199, Conference ID is 660572

AGENDA

1. CALL TO ORDER (OPEN SESSION)
2. CLOSED SESSION – The Board of Directors will adjourn to Closed Session for consultations with the Authority’s attorneys, pursuant to Texas Government Code, Section 551.071, regarding pending litigation related to Hurricane Harvey. No action will be taken during or following Closed Session.
3. RECONVENE IN OPEN SESSION – The Board of Directors will reconvene in Open Session.
4. ADJOURN

The publication of the phone number meets a technical requirement for public agencies to conduct public board meetings. But it sounds as if they will immediately go into executive session and adjourn the meeting as soon as they come out.

This made me curious about the status of pending litigation.

Cases Slowed Due to Covid

SJRA is fighting several different cases. According to one lawyer following them, the Medina case appears to be the most active. Attorneys in that case just filed an agreed motion to modify the scheduling order. That sets the SJRA’s “plea to the jurisdiction” hearing in November, 2020.

In Texas, a “plea to the jurisdiction” challenges the trial court’s subject matter jurisdiction to hear the case. Two SJRA pleas argue that the court should dismiss the case, not that venue should change.

For the full text of the pleas, click on these links:

• SJRA’s original plea (29 pages) dated 7/31/2019
• SJRA’s supplemental plea (42 pages) dated 3/28/2020

3 Firms, 9 Lawyers Defending SJRA

The second plea introduces more arguments and develops them more fully. Three firms and nine lawyers signed the supplemental plea. (And the SJRA complains about legal costs!)

They argue that plaintiffs failed to demonstrate a valid claim to which SJRA is not immune.

“Indeed, the evidence conclusively demonstrates,” they argue in their conclusion, “that no constitutional taking occurred. The Court should therefore grant SJRA’s Plea to the Jurisdiction and dismiss Plaintiffs’ claims with prejudice.” [Emphasis added.]

(Aside: No constitutional taking? Did they just agree with plaintiffs’ arguments? Plaintiffs allege UNconstitutional taking. Curious wording there!)

Pillars of SJRA’s Argument

To support the dismissal plea, the SJRA argues, in part, that:

• “SJRA’s engineers established a Gate Operations Policy intended to reduce flows in the river.”
• The River Authority followed its Gate Operations Policy.
• The Policy reduced downstream flows during Hurricane Harvey.
• Other sources – over which SJRA has no control – converge with the West Fork San Jacinto River and contributed to flooding.
• Very little, if any, of the floodwaters that inundated Plaintiffs’ properties passed through the Lake Conroe Dam.
• Plaintiffs cannot prove that flooding on individual properties was caused by SJRA actions.
• SJRA did not intentionally take any action certain to flood any plaintiff’s property.
• The plaintiffs cannot even show the first element of a “takings” claim – that SJRA’s acts caused damage to their property.

If the judge does NOT dismiss the case, and if COVID allows, the trial will proceed in 2021.

Pleas NOT Good Bedtime Reading

If you flooded during Harvey and want a good night’s sleep, don’t read these documents before bedtime. Here’s just one of the claims that had my brain in turmoil at 3 a.m.

“Texas law makes clear that a dam operator does not commit a taking when it does not release water from the dam in such a way that it increases the flow into the river or negatively changes the character of the flows in the river.”

SJRA Supplemental Plea

The SJRA’s own documents show that it released almost exactly one-third of the water coming down the West Fork between Humble and Kingwood during Harvey. The volume they released at the peak – all by itself – would have been the ninth largest flood in West Fork history … and the sixth largest since Lake Conroe was built almost 50 years ago.

“Very little, if any, of the floodwaters that inundated Plaintiffs’ properties passed through the Lake Conroe Dam.” Really? How can these lawyers refer to their claims as indisputable on page after page?

Hmmmm. I guess that’s why they make a $1000/hour.

Posted by Bob Rehak on 7/10/2020

1046 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.