Ruling stands in case against EAA

Texas Supreme Court's decision not to hear case comes as surprise for many

SAN ANTONIO – In a surprise move, the Texas Supreme Court has allowed an important groundwater ruling to stand. The case, Bragg vs. the Edwards Aquifer Authority, has been working its way through the courts since 2006.

"The Braggs are pecan farmers in Medina County who went through the process of applying for a permit," said Roland Ruiz, general manager of the EAA.

The Braggs have long grown and sold pecans in Medina County, and applied for an EAA permit when the water district was first established by the state.

They asked for 228.5 acre-feet for their Home Place Orchard and 193.12 acre-feet for their D'Hanis Orchard. 

Based on rules set forth by the Texas Legislature, the EAA granted a permit of 120.2 acre-feet for the Home Place Orchard, and denied a permit for the other site. 

The Braggs then sued the EAA, claiming that this was "taking" of private property.

After years of litigation, an appellate court awarded damages of close to $700,000 to be paid by the EAA.

Appeals sent the case all the way to the Texas Supreme Court, who on May 2, opted not to hear it and let the appellate ruling stand. Compensations may still change upon further litigation. 

The fact that the Texas Supreme Court opted not to have a hand in the matter, left many in the world of water surprised. It may have been an opportunity for clear-cut, statewide rules on groundwater to be established. For now, the future of groundwater remains in flux.

"I personally was very surprised that the [Texas] Supreme Court declined to hear issues, on the issues that were raised, both by the Braggs and the EAA" said professor of law at St. Mary's University and water law expert, Amy Hardberger.

"The [Texas] Supreme Court had an opportunity to, had they taken up the case, to start to address some of these questions," said Ruiz.

As for it what it means going forward, Hardberger believes the EAA could face more litigation.

"If I was the EAA, I would want to be trying to figure out how many more Bragg-type plaintiffs could come forward and what is that going to cost me," said Hardberger. 

It is an issue that could eventually be passed down to ratepayers. The EAA, however, said for now, nothing will change and day-to-day operations will not be affected.

"I think it's premature, and probably pretty dangerous to take the Bragg case and make a broad distribution of that across the state," said Ruiz.

As for the Braggs themselves, their attorney, Paul Terrill released this statement:

The case is significant because it is the first case in Texas in which a groundwater conservation district has been held liable in court for taking private property.

The EAA denied the Braggs permit applications and that caused the Braggs to not have the water necessary to irrigate their pecan orchards. 

The Braggs are very gratified that the courts have now confirmed that the EAA's actions resulted in a taking of their property and the EAA must pay just compensation for that taking.

It is a great victory for the Braggs and long overdue. Before the EAA was created, the Braggs spent millions of dollars and countless hours as a husband and wife team planting and growing their pecan orchards to make a living.

The EAA took their property and livelihood away from them when it denied their permit applications.

The Constitution requires that the government pay landowners when it takes their property, but for over a decade, the EAA has thumbed its nose at the Braggs and claimed it never took their property.  

It has been a long, hard slog for the Braggs to reach this point, but they are thankful that the struggle was vindicated by the courts.

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