Stratta v. Roe

• Citation: 961 F.3d 340
• Decision Date: 29 May 2020
• Docket Number: No. 18-50994,18-50994
• Parties: David STRATTA; Anthony Fazzino, Plaintiffs - Appellants v. Jan A. ROE, in her individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Billy L. Harris, in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Bryan F. Russ, Jr., in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Jayson Barfknecht, in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Mark J. Carrabba, in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Gordon Peter Brien, in his official capacity as director of the Brazos Valley Groundwater Conservation District; Stephen C. Cast, in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Brazos Valley Groundwater Conservation District, Defendants - Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

961 F.3d 340

David STRATTA; Anthony Fazzino, Plaintiffs - Appellants

v.Jan A. ROE, in her individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Billy L. Harris, in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Bryan F. Russ, Jr., in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Jayson Barfknecht, in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Mark J. Carrabba, in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Gordon Peter Brien, in his official capacity as director of the Brazos Valley Groundwater Conservation District; Stephen C. Cast, in his individual and official capacity as director of the Brazos Valley Groundwater Conservation District; Brazos Valley Groundwater Conservation District, Defendants - Appellees

No. 18-50994

United States Court of Appeals, Fifth Circuit.

FILED May 29, 2020

Marvin Winston Jones, Cullom Brantley Jones, Sprouse Shrader Smith, P.L.L.C., Amarillo, TX, for Plaintiffs - Appellants.

Jose Eduardo de la Fuente, Esq., Michael Allan Gershon, James F. Parker, III, Lloyd Gosselink Rochelle & Townsend, P.C., Austin, TX, for Defendants - Appellees.

Joshua Daniel Katz, Bickerstaff, Heath, Delgado & Acosta, L.L.P., Austin, TX, for Amicus Curiae Texas Farm Bureau.

Jim Mathews, Mathews & Freeland, L.L.P., Benjamin Mathews, Austin, TX, for Amicus Curiae City of Bryan, Texas.

James D. Bradbury, Fort Worth, TX, for Amicus Curiae Texas and Southwestern Cattle Raisers Association.

Leonard H. Dougal, Jackson Walker, L.L.P., Austin, TX, Mark L. Walters, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Amicus Curiae Wellborn Special Utility District.

Paul M. Terrill, III, Esq., Terrill & Waldrop, Austin, TX, for Amicus Curiae Texas Association of Groundwater Owners and Producers.

Before JONES, SMITH, and HAYNES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

A pair of landowners sued the Brazos Valley Groundwater Conservation District ("BVGCD") and its Board of Directors. The BVGCD is a Texas political subdivision whose mission is to manage water resources within its two-county jurisdiction. One of them contends the BVGCD has allowed the City of Bryan to drain groundwater from under his property without compensation, violating the Constitution's Equal Protection and Takings clauses. The other, a Board Member of BVGCD, alleges that the Board deprived him of First Amendment rights by preventing him from speaking at a public meeting. The district court dismissed their claims on the grounds of Eleventh Amendment immunity, ripeness, Burford abstention, and qualified immunity. Because the district court erred on all grounds except the dismissal of the First Amendment claim, we AFFIRM IN PART, REVERSE IN PART, and REMAND.¹

BACKGROUND

Appellants Anthony Fazzino and David Stratta are landowners with property within the territorial boundaries of the BVGCD. Stratta is also a member of the BVGCD Board of Directors. Fazzino owns 26.65 acres of real property in Brazos County Texas. Under Texas law, Fazzino also owns the groundwater beneath his land, including the groundwater located in the Simsboro aquifer. The City of Bryan, Texas, owns a 2.7-acre tract that is less than 3,000 feet distant from Fazzino's property.

BVGCD is a Groundwater Conservation District ("GCD") created under Section 59, Article XVI of the Texas Constitution and Chapter 36 of the Texas Water Code ("TWC") for the purpose of managing groundwater resources. TEX. WATER CODE §§ 36.0015, 36.011. GCDs are statutorily tasked with developing groundwater management plans that regulate the production and conservation of water, govern its use, study the quantity of water flowing into and out of the aquifers within their territory, and minimize waste. Currently, nearly one hundred GCDs cover over 60 percent of the state's land and encompass approximately 72 percent of major and minor aquifers. The territorial boundaries of 60 GCDs coincide with a single county or less, while the remaining GCDs cover more than one county. BVGCD's boundaries are coextensive with Robertson and Brazos Counties.

Pursuant to its authority under TWC Chapter 36, BVGCD promulgates rules governing the production of groundwater from the Simsboro formation. On December 2, 2004, new rules ("Rules") took effect to regulate landowners’ production of groundwater by establishing three categories of wells: 1) Existing Wells; 2) New Wells; and 3) Wells with Historic Use. The rules regulate "groundwater pumpage," i.e., how much water may be withdrawn from a well, through spacing requirements and production limitations.

The spacing and production requirements are designed to "minimize as far as practicable the drawdown of the water table and the reduction of artesian pressure, to control subsidence, to prevent interference between wells, to prevent degradation of water quality, and to prevent waste." RULES OF THE BRAZOS VALLEY GROUNDWATER CONSERVATION DISTRICT , Rule 6.1(a) (published Dec. 1, 2004).² As water is drawn from a well, it creates a "cone of depression" impact; when more water is withdrawn there is a larger cone of depression. Rule 7.1 established maximum allowable production regulations for New Wells according to a formula that calculates the "total number of contiguous acres required to be assigned to the well site."³ The definition of "contiguous acreage" requires that the land be "owned or legally controlled ... by the well owner or operator," and that the land "shall bear a reasonable reflection of the cone of depression impact near the pumped well, as based on the best available science" and BVGCD's formula. Id . at Rule 1.1(6). The formula thus requires 649 contiguous acres surrounding a New Well producing 3,000 gallons per minute ("GPM"), which equates to a circle around the well with a radius of 3,003 feet.

Historic Use wells are generally limited to producing the maximum amount of groundwater an owner can prove was beneficially used before the effective date of the new Rules. Rules 1.1(16), 8.3(g). In contrast to the other categories, the Rules define "Existing Wells" as those wells "for which drilling or significant development of the well commenced before the effective date of these Rules." Id . at Rules 1.1(12). But the Rules do not establish clear production limits for Existing Wells that have no established Historic Use.

On December 8, 2004, six days after the Rules took effect, the City of Bryan began drilling Well No. 18 on its 2.7-acre tract of land and completed the well ten months later. In June 2006, the City applied for a permit to operate Well No. 18 at a production rate of 3,000 GPM. BVGCD conditionally granted a permit authorizing production of 4,838 acre-feet annually at a rate of 3,000 GPM. Subsequently, with no change in the amount of City land surrounding the well or the Rules’ formula, the City received an identical conditional permit in April 2013.

The basis for these permits under the Rules and constitutional law is hotly disputed. Because no groundwater was pumped from the well before the Rules were promulgated on December 2, 2004, it could not be classified as a Historic Use Well. BVGCD granted the conditional permits under a classification of Well No. 18 as an Existing Well, although its only "existence" before the date of the Rules must have been in the form of "significant development," at least on paper. Appellants assert, not unreasonably, that Well No. 18 is a New Well; consequently, the Rule 7.1 formula would have capped the maximum allowable production on the City's 2.7-acre tract at 192 GPM. Not only did the City's well far exceed the Rules’ limitation on acreage-based groundwater production for a New Well, but Fazzino's property lies within 3,003 feet of Well No. 18 and therefore within its anticipated cone of depression. The City's well may threaten to dissipate Fazzino's groundwater.

Fazzino filed a complaint with BVGCD in January 2017, asserting that Well No. 18 was not a Historic Use or Existing Well and therefore must adhere to the production limitations imposed on New Wells. He asked BVGCD to initiate proceedings to reduce Well No. 18's authorized production. After the State Office of Administrative Hearings ("SOAH") found that Fazzino was not permitted to assert such a complaint, Fazzino applied for a permit to produce 3,000 GPM from a New Well on his 26-acre property in order to "offset" the production from Well No. 18. Twice, the District advised Fazzino that his application was administratively incomplete without proof that he owned or controlled sufficient acreage—649 acres—to support production of 3,000 GPM. Fazzino acknowledged this deficiency, but he renewed the permit request to offset production from Well No. 18, and requested a variance BVGCD's spacing and production rules. Shortly afterward, BVGCD informed Fazzino both that his application had lapsed due to his failure to provide documentation of land ownership, and that BVGCD did not grant variances.⁴ The Rules provide no mechanism to obtain Board action on an administratively incomplete permit.

Stratta is a member of the Board of Directors who became concerned by what he considered unequal application of the District's Rules. He requested that the agenda for the Board's March 8, 2018 meeting include discussion of whether Well No. 18 was a New Well or an Existing Well. The President of the Board told Stratta that no such discussion would take place because it might affect pending litigation. Another board member, Russ, echoed the President's view that Well No. 18 should not be discussed. Stratta attended the March 8 meeting, but he signed in as a member of the public and submitted a "Registration Form" in his capacity as a Brazos County landowner who wished to make a...