1 Attorneys Outline Texas Water Law Cases Before Supreme Court By David Bowser AMARILLO "It's really turned into an interesting fight," says Marvin "Marty" Jones, an Amarillo lawyer with Sprouse Schrader and Smith law firm. The fight revolves around groundwater and who owns it. "There were two cases," Jones says, "on groundwater ownership that were in front of the Texas Supreme Court." One was the City of Del Rio v. the Hamilton Trust. Del Rio bought 15 acres from the trust. The trust retained all the rights to the groundwater, but Del Rio spent half a million dollars to drill a well. When trust officials noticed the well, they filed a lawsuit against Del Rio to stop pumping from the well. The court decided that the City of Del Rio can't pump its well. The Del Rio case was the first to make it to court. "The San Antonio Court of Appeals heard both of these cases," Jones says. "In Del Rio, they wrote a pretty nice opinion on it, and frankly, it said landowners have absolute ownership in groundwater in place under their land." The court said the people on the other side of the argument, and there were a lot of amicus briefs, are confused about the rule of capture. They confused the rule of capture with ownership, according to the judges. "The San Antonio court very specifically outlined why that was not true," Jones says. "The ownership is a separate issue." Jones says he thinks the San Antonio court got it right in the Del Rio case. Del Rio filed a petition for review to the Texas Supreme Court. "The Supreme Court doesn't have to hear them," Jones notes. "If any of the justices are interested," says Chris Jensen, another lawyer with the Sprouse law firm, "they make a notation that they want briefs or they want to grant petition."
2 Typically, Jensen says, the court will request briefing before they grant a petition. "Because the petition for review is only 15 pages," Jensen says, "the respondent doesn't have to respond." But the court can ask for a response or the court can ask for a full briefing. With the former, Jensen says, they get 15 pages. With the latter, Jones chimes in, they get 50 pages. "In Del Rio," Jones says, "they asked for a full briefing." On September 25, the court denied the petition. "They said they don't want to hear it," Jones says. The other thing they could have said is that they grant the petition and would hear the merits of the case. In which case, they may have required more briefs or an oral argument. "But then they would have issued an opinion," Jensen notes, "describing their view of things." "What they did was denied the petition or they could have refused it," Jones says. In other words, Jones says, the court thinks the result is right, but they're not endorsing everything in the case. That leaves the San Antonio Court of Appeals' ruling in place. "That was interesting," Jones comments. "They denied the petition." The Del Rio case for all intents and purposes is dead. "They could file a motion for reconsideration," Jensen says, which is what they did on October 1. "Those are very rarely granted." "One percent of the cases or so get motion for reconsideration," Jones says. "It's a pretty low probability." The other thing that happened was that on September 18, the Texas Attorney General, Greg Abbott, filed an appeal in the Day case, a similar but separate case. "I just thought that was an interesting brief for the things that it said," Jones says.
3 He says the focus is shifting to the Day case. "Unless the Texas Supreme Court takes the unusual step of granting a motion for reconsideration," Jensen adds. "Day's now the game," Jones says. But he's not sure what the Texas Supreme Court is thinking by denying the petition in the Del Rio case. "They could do the same thing in Day," Jones says. Like the Del Rio case, the Day case was heard by the San Antonio Court of Appeals. "The San Antonio court in Day just referred to its opinion in Del Rio," Jones says. The San Antonio court decided that the two cases were similar enough that the same guiding principles of law covered both. "The State of Texas is a party in that case," Jones says. "The Edwards Aquifer Authority dragged them into the case, saying if Mr. Day gets damages against us, then the State of Texas ought to have to pay them." The State of Texas could have just said that's not true, Jones points out. "That's why we have political subdivisions, so you can get sued," Jones says, "but you can't sue us." In fact, at the end of the Texas Attorney General's brief, it says Day can't sue the state. "To me," Jones says, "that's all he had to say." In Jones view, all Abbott had to say was that he respectfully disagreed and that Day couldn't sue the State of Texas. "Or they could have said forget the issue of ownership," Jones says. "Mr. Day didn't do the things he had to do in trial court to show a proper taking." Indeed, Jones says Abbott has made that point in the past. But now, the state appears to be launching a whole new argument instead. "It's kind of like the argument that the Edwards Aquifer Authority is making and those people who filed amicus briefs on the Edwards Aquifer side," Jones says.
4 "They're all saying you can't have a takings claim because Day didn't own the groundwater. You can't have a takings claim unless you have property that can be taken." Jones says that as he reads the Texas Attorney General's brief, Abbott never comes out and says landowners absolutely don't own the groundwater beneath their land. "But he says in a lot of places things like the landowner's interest is not sufficiently concrete to support a takings claim," Jones says. It's the same thing, he opines. "What bothered us," Jones says, "is when he referred to groundwater as a shared resource." Abbott says it's under a commonality of ownership. "What does that mean?" Jones asks. He says he's never seen groundwater referred to as being under a commonality of ownership. "I've never seen anybody say it's a shared resource," Jones says. He says most of the people on the side of the issue Jones is representing are pressing this question. "If it isn't the landowner," Jones asks, "who is it?" Some of the people on the other side will say that nobody owns it. "They say We don't have to discuss that because you don't own it, " Jones says. "The truth is, somebody has to own it. It's real property. The title has to be somewhere." Jones says that if the landowner doesn't own it in place, in the ground, then obviously the state does. "The Attorney General comes as close to saying that as anybody I've read," Jones says, "when he says it's under a commonality of ownership." "In fact, he says dividing up a shared resource in this way is not a compensable taking," Jones says. His position would seem to fly in the face of past court rulings dealing with oil and gas and water law.
5 "The rule of capture is not a rule of ownership," Jones says. "The Attorney General and all the folks on the other side in every one of the briefs they've filed tried to confuse the two concepts." The opposing side says the rule of capture is the basis for a claim to ownership, but it can't be true. "That's not our basis for the claim of ownership," Jones says. "We see those as two different ideas." He admits that they are related, but the rule of capture says that if one neighbor puts down an oil well, the other neighbor can't sue him. "It's just a rule that says he's not liable," Jones says. "It's not a rule of ownership. It's a rule of tort liability. "Property ownership has nothing to do with that," Jones says. "Property ownership stems from that old concept that if I own the surface, I own everything to the center of the earth." He says that if a person understands that concept, he doesn't have to talk about the rule of capture. "In fact, the East case in 1904 doesn't even use the expression, 'rule of capture,'" Jones says. The concept of the rule of capture didn't come into being until about 1912 in an oil and gas case. The East case, a groundwater case, says a landowner has absolute ownership of everything from the soil down. "Then along comes an oil and gas case and they rely on East and say, By the way, you can't be liable for draining your neighbor, " Jones says. That s called the rule of capture. "It's a terrible expression for it," Jones says. "They should have just said you can't be liable." But they started calling it rule of capture, and people started confusing it with ownership, Jones says. "The AG confuses it," he notes. Jones says he doesn't think the Texas Attorney General's office is stupid.
6 "I think they're just trying to make an argument," Jones says. "They know there's a lot of Texas case law that goes the other direction." The East case was based on an English case. The English case, in turn, was based on Roman law and a case from 45 B.C. "It's not a new deal," Jones says of the precedent in Texas water law. "It's an old concept." Yet, according to the Texas Attorney General's brief filed in the Day case, the attorney general joined sides with those who say that groundwater in place under the land doesn't belong to the landowner. The landowner's interest in groundwater, under that way of thinking, is not sufficiently concrete to support a takings claim. "Oil and gas and groundwater are subject to the rule of capture," Jones insists. But the Attorney General expressed the opinion in his brief that the landowner does not have absolute ownership of subterranean material until it is produced at the surface. Groundwater and oil and gas are a subterranean material, Jones points out. But the Attorney General says hydrocarbons are not subject to absolute ownership until they are removed from the ground. "He doesn't have to say this," Jones says. "This is gratuitous. It's just thrown in." The Attorney General says it stands to reason that there could be no compensable taking in oil and gas regulation. "This is a groundwater case!" Jones says. He accuses the Attorney General's office of muddying the water. "If the Texas Supreme Court were to say, Oh, yeah, Edwards Aquifer Authority, oh, yeah, General Abbott, you're right, " Jones says, "that would turn oil and gas law on its head." He points out that in the Texas Panhandle, the City of Amarillo has spent millions and millions of dollars on groundwater in place. The Canadian River Municipal Water Authority has spent about $100 million on groundwater in place.
7 "This would turn that on its head," Jones says. "The title companies would throw up." "The taxpayers have spent and will continue to spend money on rights already purchased," Jensen says. Under the law as it stands today, if there is a well on your land and you're a mineral owner, the landowner pays a property tax. "If you don't own what's there before it's pumped out," Jones says, "then that tax goes away." Jones wonders that if you don't own what's been pumped out, would all the taxes that have been paid come back to the landowner? "You kind of have to wonder about that," Jones says. It seems to Jones, he says, that the Attorney General went way out of his way to talk about an issue that he didn't need to talk about. "He needed to talk about the ownership of groundwater," Jones says, "but he sure didn't need to talk about hydrocarbons." To be fair, Jones says the Attorney General's office does make a reference to the fact that there could be a compensable claim under some circumstances because there is some property ownership. But most of the argument, Jones points out, is that the landowner doesn't own it. The Texas Supreme Court has asked for full briefs on the case. "But they did the same thing in Del Rio," Jones reminds. For now, it's a matter of sitting and waiting. "The court might just deny it like they did Del Rio," Jones notes. At that point, the Day case will go back to the trial court for trial on the takings claim. The Texas Supreme Court can't grant a petition to hear the case unless they first ask for a response. They could ask for a response this month or deny the petition.
8 "If they ask for a response," says Jensen, "then they could ask for a full briefing or grant the petition." The different sides in the case the state, the Days and the Edwards Aquifer filed their briefs in mid-september. There have been some amicus briefs filed, that is, friends of the court. More are expected. Jones and his law firm represent people who have an interest in the case. "If they grant the petition," Jones says, "we will file a brief."
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