Groundwater Litigation

From the Cameron Herald on Friday comes “Debate over ‘end lakes’ won’t end anytime soon”, an article about a local groundwater dispute in which ALCOA seeks to fill seven “lakes” necessitated by its mining operations with local groundwater.

Along the way, the article mentions two different groundwater cases pending in the Texas Supreme Court:

• Rolling Plains Groundwater Conservation District v. City of Aspermont, No. 08-0591 (details at DocketDB). The Court has already requested briefing on the merits in that case, and it has attracted support from three amici groundwater districts.

  The Eleventh Court’s decision discussed how sovereign immunity applies to a suit between a city and a local groundwater conservation district. The court held that the city was immune for claims seeking damages or involving past actions but that a declaration could be sought on the question whether the city was bound by the groundwater’s rules going forward.

• Edwards Aquifer Authority and State of Texas v. Burrell Day, No. 08-0964 (details at DocketDB). No petition for review has yet been filed, but both the State of Texas and the Edwards Aquifer Authority have obtained an extension of time to file.

  The Fourth Court’s decision discussed whether water that has emerged from the ground through an artesian well was “ground water” or “state water.” Among other rulings, the Fourth Court applied its recent holding that landowners have a vested property right in their groundwater and, thus, that state regulation of groundwater can be evaluated as a possibly unconstitutional taking.

Willacy County’s Indictment of the Vice President and Other Government Officials Hits a Snag

The Valley Morning Star has an article “Emotional Guerra issues demand” about Willacy County‘s indictments against numerous federal and state officials for the treatment of detainees at a local immigration facility: (( From the article: “Guerra obtained indictments Monday against a host of government officials, including Vice President Dick Cheney, former U.S. Attorney General Alberto Gonzales, state Sen. Eddie Lucio Jr., state district judges and special prosecutors on charges of official oppression and abuse of official capacity.” ))

Willacy County District Attorney Juan Angel Guerra pounded on a courtroom table and fought back tears Friday while demanding state District Judge Manuel Bañales remove himself from the high profile cases resulting from Monday’s grand jury indictments.

Guerra demanded that another judge be appointed and that Bañales rescind his appointment of Alfredo Padilla as special prosecutor in five of the cases.

Bañales delayed the trial and called the Texas Supreme Court, asking it to decide whether he should stay on the case or for the higher court to appoint another judge.

It’s this last part that draws the attention of this blog.

Guerra contends that the local judge is biased, in part, because of how that judge handled an indictment against Guerra:

“When I got indicted, I went to this honorable court and asked to expedite it very quickly — I went to Kingsville — I filed motion after motion after motion to dismiss the indictment or give me a hearing and this court refused,” Guerra said.

“And now, all of a sudden, there is urgency! It’s an emergency! … 18 months you kept me indicted,” Guerra said.

The judge would not give him a fair hearing for his own case, Guerra said, and let the proceedings drag out, ensuring his re-election chances would be ruined.

“After the election, I said please, Judge, dismiss it on a technicality,” Guerra said. “You refused. … You ignored me. You said, ‘I can’t talk to you. I don’t have time for you.’ This is urgent? What is the difference?”

I suspect you could teach an ethics seminar based on this case. As it is, the judge has submitted some paperwork to the Chief Justice and, the article relates, is waiting to be told what to do:

After calling the Texas Supreme Court, Bañales said the hearing will resume at 10:30 a.m. Wednesday and the Supreme Court will decide whether he remains on the case or another judge takes over.

Updated 11/25: The Texas Supreme Court’s role in this case appears done for good, as the Chief Justice has appointed District Judge Michael Peden to decide the disqualification question with a hearing set for December 1, 2008.

Other coverage: New York Times; Texas Lawyer‘s Tex Parte Blog; Brownsville Herald via Michael Moore (Yes, that Michael Moore); Associated Press via the Houston Chronicle.

Some case documents, including the indictments. have been collected by the news department of KGBT 4