CAUSE NO. ______
KEVIN SKONNORD, KEITH C. § IN THE DISTRICT COURT STRIMPLE, CLARK P. WELDON, § RAYMOND THOMAS, GRANT § MCFARLAND, ROBERT L. WORTH, JR., § PETER BADGER, ROBERT SIMS, § JOHN EWALD and JIM C. DANIELL § § Plaintiffs § _____TH JUDICIAL DISTRICT § V. § § GUADALUPE-BLANCO RIVER § AUTHORITY § § Defendant § GUADALUPE COUNTY, TEXAS
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME, KEVIN SKONNORD, KEITH C. STRIMPLE, CLARK P. WELDON,
RAYMOND THOMAS, GRANT MCFARLAND, ROBERT L. WORTH, JR., PETER
BADGER, ROBERT SIMS, JOHN EWALD and JIM C. DANIELL (collectively, “Plaintiffs”)
and file this Plaintiffs’ Original Petition and Application for Injunctive Relief complaining of
GUADALUPE-BLANCO RIVER AUTHORITY (“Defendant”) and for causes of action and in
support thereof respectfully show unto the Court the following:
I. DISCOVERY CONTROL PLAN
1. Plaintiffs intend to conduct discovery under Level 3 pursuant to Rule 190.4 of the
Texas Rules of Civil Procedure.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 1 OF 29
II. STATEMENT REGARDING CLAIM FOR RELIEF
2. In accordance with TEX. R. CIV. P. 47(c), Plaintiffs state that they seek temporary
and permanent injunctive relief. Alternatively, or additionally, Plaintiff’s state that they
collectively seek monetary relief over $1,000,000.00 in this case. In accordance with TEX. R.
CIV. P. 47(b), Plaintiffs state that the damages sought in this case are within the jurisdictional limits of this Court.
III. PARTIES
3. Plaintiff, Kevin Skonnord, is and at all relevant times has been a citizen and resident of the State of Texas and owner of real property in Guadalupe County at 447 Lake
Placid Dr., Seguin, TX 78155.
4. Plaintiff, Keith C. Strimple, is and at all relevant times has been a citizen and resident of the State of Texas and owner of real property in Guadalupe County at 274 Riverview
Rd., McQueeney, TX 78123.
5. Plaintiff, Clark P. Weldon, is and at all relevant times has been a citizen and resident of the State of Texas and owner of real property in Guadalupe County at 168 Lee St.,
Seguin, TX 78155.
6. Plaintiff, Raymond Thomas, is and at all relevant times has been a citizen and resident of the State of Texas and owner of real property in Guadalupe County at 2094 W.
Kingsbury St., Seguin, TX 78155.
7. Plaintiff, Grant McFarland, is and at all relevant times has been a citizen and resident of the State of Texas and owner of real property in Guadalupe County at 258 Riverview
Rd., McQueeney, TX 78123.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 2 OF 29
8. Plaintiff, Robert L. Worth, Jr., is and at all relevant times has been a citizen and
resident of the State of Texas and owner of real property in Guadalupe County at 3370 State
Hwy 46, Seguin, TX 78155.
9. Plaintiff, Peter Badger, is and at all relevant times has been a citizen and resident
of the State of Texas and owner of real property in Guadalupe County at 636 Woodlake Dr.,
McQueeney, TX 78123.
10. Plaintiff, Robert Sims, is and at all relevant times has been a citizen and resident
of the State of Texas and owner of real property in Guadalupe County at 1781 Terminal Loop
Rd., McQueeney, TX 78123.
11. Plaintiff, John Ewald, is and at all relevant times has been a citizen and resident of
the State of Texas and owner of real property in Guadalupe County at 2322 Laguna Rio, Seguin,
TX 78155.
12. Plaintiff, Jim C. Daniell, is and at all relevant times has been a citizen and resident
of the State of Texas and owner of real property in Guadalupe County at 198 Daniel Aly,
McQueeney, TX 78123.
13. Defendant, Guadalupe-Blanco River Authority (“GBRA and “Defendant”) is a
conservation and reclamation district, governmental agency, and political subdivision of the
State of Texas created by special act of the Texas Legislature in 1933 as the Guadalupe River
Authority under Article XVI, Section 59, of the Texas Constitution and reauthorized by special
act of the Texas Legislature as the Guadalupe-Blanco River Authority and codified in Article
8280-106 V.T.C.S. Pursuant to Section 49.066(c) of the Texas Water Code, the GBRA may be
served with process by serving its General Manager, Kevin Patteson, at 933 East Court Street,
Seguin, Texas 78155.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 3 OF 29
14. Each Plaintiff is and has been at all relevant times either an owner or the owner of
the real property located at the address following his or her name in the above paragraphs. All
the referenced real property and the personal property located thereon (collectively, “Plaintiffs’
Property”) is located on the waterfront of either Lake McQueeney or Lake Placid, which such
lakes are each part of the Guadalupe River basin and within the jurisdiction of the GBRA.
IV. JURISDICTION
15. This Court has personal jurisdiction over the GBRA. The GBRA is a state agency
created by the Texas Legislature in 1933 as the Guadalupe River Authority and reauthorized in
1935 as the GBRA. Per its website, “[t]he mission of GBRA is to support responsible watershed protection and stewardship, provide quality operational service, and a commitment to promote conservation and educational opportunities in order to enhance quality of life for those [the
GBRA] serve[s]” in the Guadalupe River basin.1 The GBRA’s jurisdiction covers and it
operates in “its ten-county statutory district, which begins near the headwaters of the Guadalupe
and Blanco Rivers, ends at San Antonio Bay, and includes Kendall, Comal, Hays, Caldwell,
Guadalupe, Gonzales, DeWitt, Victoria, Calhoun and Refugio counties.”2 The GBRA’s principal place of business, general offices, and headquarters are all located in Texas. The claims asserted against the GBRA set forth herein also arise out of or relate to the GBRA’s operations in Texas. As such, this Court has general and specific jurisdiction.
16. This Court also has subject-matter jurisdiction over the GBRA and the constitutional claims asserted against the GBRA herein. The constitutional claims asserted by
Plaintiffs against the GBRA are claims for inverse condemnation and the unconstitutional
“taking” of Plaintiffs’ Property in violation of Article I, Section 17 of the Texas Constitution.
1 https://gbra.org/about/default.aspx 2 Id.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 4 OF 29
Therefore, the doctrine of sovereign immunity does not apply here and does not deprive the
Court of subject matter jurisdiction over all the constitutional claims asserted and set forth herein. See Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016)
(“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”) (citing Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598
(Tex. 2001) (Article 1, Section 17 of the Texas Constitution waives immunity from suit for an inverse condemnation claim)). Accordingly, the GBRA has no immunity from suit or liability in connection with the constitutional claims asserted against it herein.
17. Likewise, because the alternative or additional statutory claims asserted against the GBRA are expressly authorized by Section 2007 of the Texas Government Code, the GBRA also has no immunity from suit or liability in connection with the statutory claims asserted against it herein. TEX. GOV’T CODE § 2007.004(a) (“Sovereign immunity to suit and liability is waived and abolished to the extent created by [Chapter 2007 of the Texas Government Code].”).
18. The claims asserted by Plaintiffs herein are asserted under the Texas Constitution
and Texas statutory law. Plaintiffs do not assert any claim under the United States Constitution or Federal statutory law. Plaintiffs’ claim are purely Texas law claims.
V. VENUE
19. Venue is proper in Guadalupe County, Texas pursuant to Section 15.002 of the
Texas Civil Practices & Remedies Code because Guadalupe County, Texas is the county in
which a substantial part of the events, acts or omissions giving rise to the claims asserted
occurred. Plaintiffs’ Property is located and present in Guadalupe County, Texas.
20. Venue is also proper in Guadalupe County, Texas pursuant to Section 15.011 of
the Texas Civil Practices & Remedies Code because the claims and causes of action set forth
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 5 OF 29 herein seek, among other things, recovery of damages to real property located in Guadalupe
County, Texas. Plaintiffs’ Property is located and present in Guadalupe County, Texas.
21. Venue with respect to Plaintiffs’ statutory claims under Section 2007 of the Texas
Government Code also is proper in Guadalupe County, Texas because the real property at issue is located in Guadalupe County, Texas. See TEX. GOV’T CODE § 2007.021(a).
VI. STATEMENT OF FACTS
A. THE PURPOSE AND POWERS OF THE GBRA INCLUDES THE AUTHORIZATION TO MAINTAIN ITS OWN DAMS.
22. The GBRA is a conservation and reclamation district, governmental agency, and political subdivision of the State of Texas created by special act of the Texas Legislature in 1933 as the Guadalupe River Authority under Article XVI, Section 59, of the Texas Constitution and reauthorized by special act of the Texas Legislature as the Guadalupe-Blanco River Authority and codified in Article 8280-106 V.T.C.S. Article XVI, Section 59(a), (b) and (c):
(a) The conservation and development of all of the natural resources of this State, and development of parks and recreational facilities, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semiarid and other lands needing irrigation, the reclamation and drainage of its overflowed lands, and other lands needing drainage, the conservation and development of its forests, water and hydro-electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.
(b) There may be created within the State of Texas, or the State may be divided into, such number of conservation and reclamation districts as may be determined to be essential to the accomplishment of the purposes of this amendment to the constitution, which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 6 OF 29
and functions concerning the subject matter of this amendment as may be conferred by law.
(c) The Legislature shall authorize all such indebtedness as may be necessary to provide all improvements and the maintenance thereof requisite to the achievement of the purposes of this amendment. All such indebtedness may be evidenced by bonds of such conservation and reclamation districts, to be issued under such regulations as may be prescribed by law. The Legislature shall also authorize the levy and collection within such districts of all such taxes, equitably distributed, as may be necessary for the payment of the interest and the creation of a sinking fund for the payment of such bonds and for the maintenance of such districts and improvements. Such indebtedness shall be a lien upon the property assessed for the payment thereof. The Legislature shall not authorize the issuance of any bonds or provide for any indebtedness against any reclamation district unless such proposition shall first be submitted to the qualified voters of such district and the proposition adopted.
23. Portions of Chapter 51 of the Texas Water Code are among the laws passed by
Texas Legislature and applicable to the GBRA. The functions of the GBRA include, without limitation, the control, storage, preservation, conservation and development of water and hydroelectric power. TEX. WATER CODE § 51.121(b)(1), (3).
24. Pursuant to and in accordance with its constitutional and statutory authority, the stated mission of the GBRA “is to support responsible watershed protection and stewardship, provide quality operational service, and a commitment to promote conservation and educational opportunities in order to enhance quality of life for those [the GBRA] serve[s]” in the Guadalupe
River basin.3 The GBRA’s jurisdiction covers and it operates in “its ten-county statutory district, which begins near the headwaters of the Guadalupe and Blanco Rivers, ends at San Antonio Bay, and includes Kendall, Comal, Hays, Caldwell, Guadalupe, Gonzales, DeWitt, Victoria, Calhoun and Refugio counties.”4
3 https://gbra.org/about/default.aspx 4 https://www.gbra.org/maps/basin.aspx
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25. The GBRA owns and operates the Guadalupe Valley Hydroelectric System
(“GVHS”). GVHS consists of six dams/levees put into service between 1928-1932, including
dams located on Lake Placid, Lake McQueeney, Lake Gonzales and Meadow Lake (collectively,
the “Lakes”). The GBRA sells the electricity it generates from the Lakes to the Guadalupe
Valley Electric Cooperative. In addition to hydroelectric generation, crews from the GBRA
provide around the clock operations of spill gates at the dams to pass floodwaters through the
system.
26. Article 8280-106 V.T.C.S. authorizes the GBRA to exercise the following powers:
• Construct, extend, improve, maintain and reconstruct any and all facilities of any kind, including, without limitation, the dams on the Lakes; and
• Pay all expenses necessary for the operation and maintenance and replacements and additions to its properties and facilities, including the dams on the Lakes.
27. Although the GBRA has previously characterized the overall condition of its infrastructure and capital assets as “generally good,”5 the dams are nearing 100 years old and the
GBRA has been aware for decades of the aging materials and antiquated design of the dams.
Nonetheless, the GBRA knowingly and intentionally failed to implement repair and replacement
plans for each of the dams to avoid dam failure.
B. 2016 SPILL GATE FAILURE AT LAKE WOOD DAM.
28. In 2016, a spill gate at the Lake Wood Dam failed. After the failure, GBRA
engaged the consulting firm, Freese and Nichols, Inc. (“FNI”), to investigate the cause of the
failure and provide recommendations to the GBRA. FNI observed failed gate segments and
5 See Exhibit E, p. 13.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 8 OF 29
recommended replacement of all locking bars and tie bars to preclude loss of another gate
anywhere throughout the GBRA system.
29. A report from FNI dated June 8, 2018 stated that FNI was working with the
GBRA “as a partner to get the most additional life out of the existing gates whereas the
recommendations [by FNI to the GBRA] are to replace the gates.”6 However, instead of
implementing a plan to replace the gates, the GBRA pursued repairs intended to serve only as a
“temporary” fix. Towards the end of 2017 and through 2018, FNI performed visual inspections of certain dam gates on the Lakes, including gates at TP-4 (Lake Placid) and Lake McQueeney
Dams. Each of these visits was followed by a memorandum from FNI to the GBRA specifically identifying recommended repairs to the gates.7 None of these reports advised that a failure of these dams was imminent.
C. SUNSET ADVISORY COMMISSION REPORT – SEPTEMBER 2018.
30. In 2015, the 84th Legislature placed the GBRA and all other river authorities in the State of Texas under review by the Sunset Advisory Commission (the “Sunset
Commission”). The Sunset Commission is required to evaluate river authorities’ governance,
management, operational structure, and compliance with legislative requirements.
31. The Sunset Commission reviewed the GBRA and issued its report in September
2018 (the “Sunset Commission Report”).8 The Sunset Commission’s findings include the
following:
• The GBRA has not implemented a comprehensive asset management process to ensure timely repair and replacement of its significant utility assets [including the spill gates in the dams located on the Lakes], leading to failed infrastructure and potential service disruptions;
6 Exhibit C. 7 True and correct copies of FNI Memorandum dated December 12, 2017, March 21, 2018, June 8, 2018, and August 13, 2018 are attached hereto as Exhibit A, Exhibit B, Exhibit C, and Exhibit D, respectively. 8 A true and correct copy of the Sunset Commission Report is attached hereto as Exhibit E.
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• The GBRA’s communication strategies are not well-coordinated with asset management and operations, which may limit sensitive and timely messaging regarding asset needs to local communities;
• GBRA’s procurement and contracting systems lack clear central oversight and coordination to ensure consistent, efficient operations;
• GBRA’s approach to certain procurement and contract management activities does not conform to typical best practices;
• GBRA has provided significant funding ($4 million since 2001) to three nonprofits without defining clear expectations for its investments; and
• GBRA has not fully evaluated the continued need for its partnership with these nonprofits.9
32. The Sunset Commission specifically addressed the failure of one of the spill gates at Lake Wood and reported that “most of the other gates in the [GVHS] system need significant maintenance.”10
33. The Sunset Commission also reported on the “major impacts” infrastructure can
have on local communities. Although the only financial stakeholder in the GVHS is Guadalupe
Valley Electric Cooperative (GBRA’s electric customer), the Sunset Commission reports that the
lakes affect many aspects of the lives of lake residents, including, in the case of Lake Wood dam
failure, quality of life and tax values on formerly lake front property. The Sunset Report states
that “the residents of Lake Wood have been very vocal about the effects of the broken spill gate
on their community and have raised questions about why GBRA did not have repair and
replacement plans in place before the dam reached this critical breaking point.”11
9 See Exhibit E. 10 Id., p. 13. 11 Id., p. 15.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 10 OF 29
D. GBRA AUTHORIZES MILLIONS IN EXPENDITURES TO NON-PROFITS AND THE CONSTRUCTION OF A NEW OFFICE BUILDING IN LIEU OF FUNDING THE REPAIR AND REPLACEMENT OF THE DAMS.
34. The Sunset Report states that the GBRA “budgeted $3.7 million for studies to
determine options for repair or replacement of the gates and to make repairs at four of the
dams.”12 However, by comparison, the GBRA spent over $21 million on salaries, benefits, administration and other expenses, including board expenses, in fiscal year 2017.13 In addition,
since 2001, the GBRA contributed more than $4 million to non-profit groups in the form of
salaries, benefits, rent and operating expenses without defining any clear expectations for its investments.14
35. On May 8, 2018, Kevin Patteson, General Manager and CEO of the GBRA,
provided a short, two-page response to the Sunset Commission’s findings and recommendations,
but did not specifically reference the GVHS or provide any details whatsoever identifying any
repair or replacement plans the GBRA intended to pursue to remedy the problems identified in
the Sunset Report regarding the aging materials and design of the dams on the Lakes or to
otherwise avoid another dam failure.15 Meanwhile, based upon a presentation made by Mr.
Patteson regarding the purported need for new office space, the GBRA board unanimously
approved plans for the GBRA to enter into negotiations with an architect to build a new $6
million office complex in New Braunfels.
E. MAY 14, 2019 LAKE DUNLAP DAM FAILURE AND GBRA REPRESENTATIONS TO THE PUBLIC.
36. On May 14, 2019 (3 years after the Lake Wood spill gate failure), spillway gate
No. 2 at Lake Dunlap Dam failed.
12 Exhibit E, p. 13. 13 Id., p. 10. 14 Id., p. 23. 15 Exhibit F.
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37. In a May 16, 2019 press release, Mr. Patteson, stated that the “GBRA is committed to finding a solution to replace the spill gates at all of our aging dams.”16
38. On July 17, 2019, the GBRA issued a press release stating that it was “continuing
discussions on how to mitigate safety risks to recreationalists downstream of its four remaining
hydroelectric lakes,” but noted that “one option to significantly lower lakes McQueeney, Placid,
Meadow, and Gonzales by up to 12 feet was discussed at the GBRA board of directors meeting
Wednesday, July 17, 2019, in Seguin.”17 The press release indicated that no decision had been
made and advised that “[a]mple public notice will be provided in advance prior to any changes to
lake level elevations.”18
F. GBRA COMMISSIONS THE VISUAL INSPECTION OF A SINGLE HINGE FROM THE LAKE DUNLAP DAM
39. GBRA engaged Black & Veatch (“B&V”) to “develop and implement a plan to
evaluate the condition of the upstream hinges at Lake Dunlap Dam.”19 U.S. Underwater
Services, LLC was contracted to inspect failed Gate No. 2 and retrieve a single hinge assembly
from Gate No. 1 which had not failed.
40. B&V provided the GBRA with B&V’s Dunlap Spillgate Hinge Inspection
Report.” dated August 13, 2019 (the “B&V Report”).20 B&V provided the GBRA with its
limited opinion that “if the inspected hinge assembly is representative of the condition of the
hinges on the other gates then the hinge assemblies are no longer adequate for continued service
and thus the remaining gates at all other dams in the system are no longer adequate for continued
16 Exhibit G. 17 Exhibit H. 18 Id. 19 Exhibit I. 20 A true and correct copy of the Black & Veatch “Dunalp Spillgate Hinge Inspection Report” dated August 13, 2019 is attached hereto as Exhibit I.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 12 OF 29 service.”21 However, the B&V Report is not peer-reviewed and B&V states that its opinions “are based on visual inspection of only one hinge assembly [from a spill gate that did not fail].”22
41. In addition, the B&V Report does not state that failure of any of the remaining spill gates is imminent. Furthermore, B&V does not conclude, determine or opine that a drawdown of the Lakes is the only available option for minimizing the risks associated with the aging dams. In fact, the GBRA selected B&V in November 2017 for design and engineering services to replace the spill gates at all dams in the GVHS.
G. GBRA USES THE B&V REPORT TO UNILATERALLY SHIFT THE FINANCIAL CONSEQUENCES OF THE GBRA’S INACTION TO PROPERTY OWNERS.
42. On August 15, 2019 (2 days after the date of the B&V Report), the GBRA announced its decision to abandon all other efforts and attempts to mitigate potential safety risks and instead engage in a systematic drawdown of the Lakes beginning on September 16, 2019.
Alluding to the B&V Report, the GBRA falsely represented in its press release that “[t]hird-party engineering assessments have determined a drawdown is the only available option for minimizing the risks associated with the aging dams.”23 No such conclusion was reached by
B&V in its August 13 report.24
43. Charlie Hickman, GBRA executive manager of engineering, publicly outlined the
GBRA’s purported dilemma concerning the GBRA’s continued maintenance and operation of the dams but did not mention any threat of imminent dam failure. Instead, Mr. Hickman claimed that the revenue generated from the hydro-electric power from the Lakes “isn’t enough to make
21 Id. (emphasis added). 22 Id. (emphasis added). 23 Exhibit J. 24 See Exhibit I.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 13 OF 29
for a sustainable business model.”25 As Mr. Hickman publicly stated: “The future of these lakes
is recreation. Right now it’s just not profitable.”26
44. The GBRA admitted in a self-evaluation report submitted to the Sunset
Commission in September 2017 that that there are numerous stakeholders, including property
owners like Plaintiffs, who have an interest or are affected by lake levels.27 The GBRA further
acknowledged the potential adverse effect on property values and tax revenues.28
45. More significantly, GBRA’s executive manager of engineering, Charlie Hickman,
admitted that the GBRA has the “capability” and “mechanisms to go out and get below-market
interest rates to secure the financing for this project [to overhaul the dams].”29
46. Nevertheless, the GBRA unilaterally alleviated itself of the obligation and
expense of repairing or replacing the dams, and knowingly and intentionally shifted the burden
to Plaintiffs and other property owners to bear the consequences of the GBRA’s decades long
failure and refusal to implement repair and replacement plans for the dams.
H. GBRA’S MEDIA CAMPAIGN TO MANUFACTURE AN “IMMINENT” EMERGENCY TO DEFEND THE DRAWDOWN OF THE LAKES.
47. In response to public outcry and claims by property owners, including Plaintiffs,
of an unconstitutional “taking” by the GBRA of their private property, the GBRA hired outside
legal counsel and directed funds and other resources to engage in an aggressive media campaign
which mischaracterized findings from engineering assessments and falsely castigated Plaintiffs
and other property owners as placing their constitutional property rights above the need for
25 Dalondo Moultrie, GBRA Says It Sees a Future for its Lakes, NEW BRAUNFELS HERLAD-ZEITUNG (Sept. 1, 2019), http://herald-zeitung.com/community_alert/article_8cd79a1e-cc3a-11e9-9eca-1b2bee77906b.html. 26 Id. 27 See Exhibit K, p. 28. 28 Id. 29 Dalondo Moultrie, GBRA Says It Sees a Future for its Lakes, NEW BRAUNFELS HERLAD-ZEITUNG (Sept. 1, 2019), http://herald-zeitung.com/community_alert/article_8cd79a1e-cc3a-11e9-9eca-1b2bee77906b.html.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 14 OF 29
public safety. GBRA General Manager and CEO, Kevin Patteson, even implies in his opinion article published in the San Antonio Express on August 29, 2019 that Plaintiffs and other community members that oppose the drawdown are not being “good neighbor[s].”30
48. In its July 17, 2019 press release, the GBRA initially characterized the significant
lowering of the Lakes as an “option” discussed by the board of directors to “mitigate safety risks
for recreationalists downstream of its four remaining hydroelectric lakes.”31 Approximately one
month later (after public outcry), the GBRA redesigned its messaging in a press release
published on its website in August 2019 so that the “option” for lowering the Lakes to mitigate safety risks for recreationalists downstream had now evolved into a “necessary” and
“unavoidable” decision in order “to ensure the safety of the surrounding communities.”32
49. Furthermore, the GBRA stated in its August 2019 press release that “assessment
by nationally recognized engineering firm Black & Veatch has indicated the original structural
steel components at each of the dams are compromised.”33 However, this is a
mischaracterization of the actual conclusion of B&V. After its visual inspection of one hinge
assembly from one gate at Lake Dunlap that did not fail, B&V only speculated that “if the [one]
inspected hinge is representative of the condition of the hinges on the gates, then the hinge
assemblies are no longer adequate for continued service and thus the remaining gates at all other
dams in the system are no longer adequate for continued service.”34
50. Inspections done by other GBRA retained experts (FNI) reveal that the
hypothetical “if” set forth in the B&V Report is unlikely. As noted above, FNI performed a
30 Kevin Patteson, Why GBRA Must Dewater These Lakes, SAN ANTONIO EXPRESS NEWS (Aug. 29, 2019), https://www.expressnews.com/opinion/commentary/article/Why-GBRA-must-dewater-these-lakes-14394319.php. 31 Exhibit H. 32 Exhibit J. 33 Id. 34 Exhibit I (emphasis added).
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 15 OF 29 visual inspection of Spillgate No. 2 at TP-4 (Lake Placid) Dam and reported to the GBRA on
December 12, 2017 that “very little corrosion or section loss was identified at this gate” and recommended certain repairs to the GBRA based on FNI’s inspection and finite element model
(FEM) structural analysis.35
51. Moreover, the GBRA stated in its August 2019 press release that “[t]hird party engineering assessments have determined a drawdown is the only available option for minimizing the risks associated with the aging dams.”36 This statement is patently false.
Neither the B&V nor any of the FNI reports include any such conclusions or statements. In fact, in a GBRA press release issued only three months prior, GBRA “recogniz[ed] the value of [the
Lakes] to the community” and was “committed to finding a solution to replace the spillgates at all of [the] aging dams.”37 GBRA also noted that after the spill gate failure at Lake Wood,
GBRA began working with engineers to replace all aging spill gates with a more modern system of hydraulic crest gates.38
52. GBRA Manager and CEO, Kevin Patteson, also stated in his opinion piece in the
San Antonio Express News that the evaluations of B&V and FNI “clearly indicate the imminence of another failure if the [GBRA] allow[s] these dams to remain in operation.”39 Again, this is a mischaracterization of the limited purpose and scope of the esoteric opinions the GBRA engaged
Black & Veatch and FNI to provide. Nearly 3 years lapsed between the dam failure at Lake
Wood and subsequent dam failure at Lake Dunlap and neither the B&V Report nor any of the
FNI reports explicitly state that a future dam failure is “imminent.”
35 Exhibit A. 36 Exhibit J. 37 Exhibit G. 38 Id. 39 See Patteson, supra note 30.
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53. Finally, B&V’s own analysis in the months leading up to the GBRA’s declaration
to drawdown the Lakes reflects assumptions based on worst-case scenarios. Modeling analysis
performed by B&V regarding a theoretical gate failure at the McQueeney Dam is premised on
the assumptions of a “simultaneous failure of all 3 gates at McQueeney…” and no time to lower
the gates at Lake Placid before the flood wave reaches the Lake Placid spillway. Even under
these circumstance, B&V only opined that the simultaneous occurrence of such events may result
in flood damage to property and possibly a few homes along the shore of Lake Placid.
54. The drawdown of the Lakes constitutes unreasonable conduct and is not
reasonably taken to fulfill any obligation mandated by state law. The GBRA does not have a
reasonable, good faith belief that the drawdown is necessary to prevent a grave and immediate
threat to life or property. The drawdown is not necessary to respond to a real and substantial
threat to public health and safety, is not designated to significantly advance a health and safety
purpose and imposes a greater burden than necessary to achieve any health and safety purpose.
I. LESS RESTRICTIVE ALTERNATIVES AND MAINTAINING THE “STATUS QUO.”
55. A drawdown of the Lakes is not the only available option for ensuring public
safety and, therefore, all available less restrictive measures should be identified and exhausted
before Plaintiffs are irreparably deprived of their constitutional rights.
56. Accordingly, in addition to the other relief requested herein, Plaintiffs request an injunction to maintain the “status quo” (including, without limitation, continued enforcement and implementation of additional measures restricting access on and around the dams and Lakes)
pending further independent third-party assessments regarding future operation, repair and
replacement of the dams, as well as collaboration between the GBRA, Plaintiffs, and lake
associations regarding enactment and funding for the same.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 17 OF 29
VII. CAUSES OF ACTION
A. CAUSE OF ACTION NO. 1: INVERSE CONDEMNATION AND UNCONSTITUTIONAL TAKING OF PLAINTIFFS’ REAL AND PERSONAL PROPERTY IN VIOLATION OF ARTICLE I, SECTION 17 OF THE TEXAS CONSTITUTION.
57. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate those allegations by reference below as if fully set forth verbatim.
58. The GBRA’s intentional, knowing, affirmative and conscious acts, conduct and decision described herein to draw down the Lakes constitute the inverse condemnation and unconstitutional taking (permanent and temporary) of Plaintiffs’ Property in violation of Article
I, Section 17 of the Texas Constitution.
59. Article I, Section 17 of the Texas Constitution provides as follow:
“No person’s property shall be taken, damaged, or destroyed, for or applied to public use without adequate compensation being made, unless by the consent of such person…”
60. A “takings” claim consists of three elements: (1) an intentional act by the government under its lawful authority; (2) resulting in a taking, damaging or destroying of property (3) for public use. Tex. Parks & Wildlife Dep’t v. Sawyer, 354 S.W.3d 384, 390–91.
(Tex. 2011). All three elements are present here.
61. Plaintiffs have legally protectable private interests in Plaintiffs’ Property. The
GBRA is now intentionally depriving Plaintiffs of Plaintiffs’ Property knowing that it will decrease property values, for which the GBRA is offering no compensation and will result in permanent and irrevocable damage to Plaintiffs’ real property rights. As such, the GBRA’s conduct detailed above constitutes a temporary and permanent unconstitutional taking.
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B. CAUSE OF ACTION NO. 2: STATUTORY TAKING UNDER SECTION 2007 OF THE TEXAS GOVERNMENT CODE.
62. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate
those allegations by reference below as if fully set forth verbatim.
63. Pleading further, and/or in the alternative, the GBRA’s intentional, knowing,
affirmative and conscious acts, conduct and decision described herein to draw down the Lakes
also constitute a statutory taking under Section 2007 of the Texas Government Code – The
Private Real Property Rights Preservation Act (the “Act”).
64. Section 2007.002 of the Texas Government Code defines a “statutory taking” as follows:
(A) a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or Section 17 or 19, Article I, Texas Constitution; or
(B) a governmental action that:
(i) affects an owner's private real property that is the subject of the governmental action, in whole or in part or temporarily or permanently, in a manner that restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action; and
(ii) is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect.
65. In addition to constituting constitutional takings, the GBRA’s intentional, knowing, affirmative and conscious acts, conduct and decision described herein to draw down the Lakes and thereby inversely condemn and take Plaintiffs’ Property also constitute a statutory taking under Section 2007.002(A) of the Texas Government Code.
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66. The GBRA intentionally failed for years to implement repair and replacement
plans for the dams. The GBRA’s planned conduct materially restricts and limits Plaintiffs’ real property rights. Furthermore, the GBRA’s planned governmental actions and the results of those
actions as described throughout this pleading are a producing cause of and will result in a
diminution of at least 25 percent of the market value of Plaintiffs’ Property because of the
physical effects, restrictions, limitations and stigma associated with the drawdown of the Lakes.
As such, the GBRA’s conduct detailed above constitutes a statutory taking.
C. CAUSE OF ACTION NO. 3: REQUEST FOR DECLARATORY JUDGMENT THAT GBRA’S FAILURE TO PERFORM TAKINGS IMPACT ASSESSMENT INVALIDATES GOVERNMENT ACTION TO DRAWDOWN THE LAKES.
67. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate
those allegations by reference below as if fully set forth verbatim.
68. Plaintiffs bring this action for declaratory judgment under Section 2007.044 of the
Texas Government Code.
69. Under Section 2007.043 of the Texas Government Code, a governmental entity
shall prepare a written takings impact assessment (“TIA”) of a proposed governmental action
which includes adopting or issuing an ordinance, rule, regulatory requirement, resolution, policy,
guideline, or similar measure. TEX. GOV’T CODE ANN. § 2007.043(a) The TIA must:
(1) describe the specific purpose of the proposed action and identify:
(A) whether and how the proposed action substantially advances its stated purpose; and (B) the burdens imposed on private real property and the benefits to society resulting from the proposed use of private real property;
(2) determine whether engaging in the proposed governmental action will constitute a taking; and
(3) describe reasonable alternative actions that could accomplish the specified purpose and compare, evaluate, and explain:
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(A) how an alternative action would further the specified purpose; and (B) whether an alternative action would constitute a taking.
TEX. GOV’T CODE ANN. § 2007.043(b).
70. The TIA must also comply with the evaluation guidelines developed by the Texas
Attorney General. Id. at § 2007.043(a). The Attorney General’s Guidelines provide, in part, that the information and analysis included in the TIA must be accurate, concise, and of high quality.
Moreover, the Attorney General’s Guidelines emphasize that “the public is entitled to more than mere pro forma analyses by the governmental entities covered by the Act.40 TIAs shall serve as the means of assessing the impact on private property, rather than justifying decisions already made.”41
71. The TIA must be prepared before the governmental entity provides the public notice required under Section 2007.042. See TEX. GOV’T CODE ANN. § 2007.043. At a minimum, the public notice described in Section 2007.042 must include a reasonably specific summary of the TIA that was prepared and the name of the official of the political subdivision from whom a copy of the full assessment may be obtained. Id.
72. A governmental action that requires a TIA is void if a TIA is not prepared. TEX.
GOV’T CODE ANN. § 2007.044. A private real property owner affected by the action “may bring suit for a declaration of the invalidity of the governmental action.” Id.
73. The GBRA’s decision to begin a systematic drawdown of the Guadalupe Valley
Lakes (starting September 16, 2019) is a “government action” as described in Section 2007.003.
In violation of Section 2007.043, Texas Government Code, no TIA was prepared or provided to
40 “Private Real Property Rights Preservation Act Guidelines,” State of Texas, Office of the Attorney General, Internet Website, September 4, 2019. https://www2.texasattorneygeneral.gov/agency/private-real-property-rights- preservation-act-guidelines 41 Id.
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Plaintiffs in connection with the above-described action before or after the decision was made
and announced by way of a GBRA press release.42 As such, the GBRA’s decision to begin the
drawdown of the Guadalupe Valley Lakes is void under the Act as a matter of law. TEX. GOV’T
CODE ANN. § 2007.044
74. Plaintiffs hereby request a declaration by the Court finding that GBRA’s decision
to begin a systematic drawdown of the Guadalupe Valley Lakes (starting September 16, 2019) to
be void for the failure of the GBRA to comply with Chapter 2007 of the Texas Government
Code, together with Plaintiffs' reasonable and necessary attorneys' fees and court costs as prescribed by Sections 2007.026 and 2007.044(c) of the Texas Government Code.
VIII. APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION
75. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate
those allegations by reference below as if fully set forth verbatim.
76. The purpose of a temporary injunction is to preserve the status quo pending trial
on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The “status quo” is
the “last, actual, peaceable, non-contested status which preceded the pending controversy. In re
Newton, 146 S.W.3d 648, 651 (Tex. 2004). Certainly, the GBRA’s decision to wait to
commence the drawdown of the Lakes until after the Labor Day holiday (a time when an
increased amount of people are present on the Lakes and exposed to risk) diminishes the
purported immediacy of the GBRA’s alleged need to drawdown the Lakes to protect public safety in lieu of maintaining the current “status quo.”
77. Whether to grant a temporary injunction rests in the trial court’s sound discretion;
however, to obtain a temporary injunction, an applicant must plead and prove: (1) a cause of
42 See Exhibit J.
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action against the defendants; (2) a probable right to the relief sought; and (3) a probable,
imminent and irreparable injury in the interim. Buntaru, 84 S.W.3d at 204.
78. The GBRA has acknowledged Plaintiffs’ vested interest in the levels of the Lakes
and the adverse impact of a drawdown. The Sunset Commission likewise reported that lower
lake levels adversely affect quality of life and tax values on formerly lake front property.
Plaintiffs’ Property will be lost, damaged and destroyed by the GBRA’s intentional decision to
drawdown the Lakes up to 12 feet due to the location of the Plaintiffs’ Property on the waterfront
and the GBRA does not intend to compensate Plaintiffs. Therefore, Plaintiffs can prove the causes of action against the GBRA set forth herein and a probable right to recovery.
79. Violation of a constitutionally guaranteed right inflicts irreparable injury warranting injunctive relief. Operation Rescue-National v. Planned Parenthood of Hous. & Se.
Tex., Inc., 937 S.W.2d 60, 77 (Tex. App.—Houston [14th Dist.] 1996), aff'd as modified, 975
S.W.2d 546 (Tex. 1998). An injunction lies before taking where it is attempted without compensation. City of Hous. v. McCarthy, 464 S.W.2d 381, 387 (Tex. Civ. App.—Houston [1st.
Dist.] 1971, writ ref’d n.r.e.).
80. “In Texas, the potential loss of rights in real property is a probable, imminent, and
irreparable injury that qualifies a party for a temporary injunction.” Rus–Ann Dev., Inc. v. ECGC,
Inc., 222 S.W.3d 921, 927 (Tex. App.—Tyler 2007, no pet.). An applicant seeking to prevent
irreparable injury to real or personal property does not have to prove there is no adequate remedy
at law. TEX. CIV. PRAC. & REM. CODE § 65.011(5).
81. Once the drawdown begins on September 16, 2019, Plaintiffs will be deprived of
their constitutional property rights without any reasonable expectation of compensation from the
GBRA. In fact, the GBRA’s financial reports indicate that the GBRA lacks the financial
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resources to adequately compensate Plaintiffs for the GBRA’s intentional taking of Plaintiffs’
Property.43 See Tex. Indus. Gas v. Phoenix Metallurgical Corp. 828 S.W.2d 529, 533
(Tex.App.—Houston [1st. Dist.] 1992, no writ).
82. A temporary injunction against the enforcement and implementation of the
drawdown will preserve the status quo and will not impose an undue burden on Plaintiffs and the
GBRA and is authorized by the language of the Private Real Property Rights Preservation Act,
Section 2007.001, et seq. of the Texas Government Code.
83. Plaintiffs respectfully ask the Court to issue a temporary and, following a full trial or other hearing on the merits, permanent injunction against the GBRA enjoining the GBRA from drawing down the Lakes.
IX. NO SOVERIGN IMMUNITY
84. Plaintiffs re-allege the facts set out in the preceding paragraphs and incorporate
those allegations by reference below as if fully set forth verbatim.
85. Because the constitutional claims asserted against the GBRA are claims for
inverse condemnation and the unconstitutional “taking” of Plaintiffs’ real and personal property
in violation of Article I, Section 17 of the Texas Constitution, the doctrine of sovereign
immunity does not apply here and does not deprive this Court of subject matter jurisdiction over
all of the claims asserted and set forth herein. See, e.g., Harris Cty. Flood Control Dist. v. Kerr,
499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from
liability for compensation under the takings clause.”); Ahmed v. Metro. Transit Auth., 257
S.W.3d 29, 32 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Article I, section 17 of the
Texas Constitution waives immunity from suit and liability in inverse condemnation cases and
43 See Exhibit E; see also GBRA, Comprehensive Annual Financial Report (Seguin: Guadalupe-Blanco River Authority, 2017), 21; https://www.gbra.org/documents/publications/annualreports/2017.pdf.
PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 24 OF 29
authorizes compensation for such constitutional taking.”). Thus, the GBRA has no immunity
from suit or liability in connection with the constitutional claims asserted against it herein.
86. Similarly, because the alternative or additional statutory claims asserted against
the SJRA are expressly authorized by Section 2007 of the Texas Government Code, the GBRA
also has no immunity from suit or liability in connection with the statutory claims asserted
against it herein. See Hidalgo Cty. v. Dyer, 358 S.W.3d 698, 705 (Tex. App.—Corpus Christi-
Edinburg 2011, no pet.) (Section 2007.004(a) of the Texas Government Code “waives sovereign immunity from suit and liability to the extent it creates liability.”).
X. DAMAGES AND INVALIDATION OF THE DRAWDOWN
87. Plaintiffs re-allege the facts set out in the preceding paragraphs and incorporate
those allegations by reference below as if fully set forth verbatim.
88. By virtue of the foregoing intentional, knowing, affirmative and conscious acts,
conduct and decisions set forth herein, Plaintiffs alternatively, or additionally, to their requests
for injunctive and declaratory relief, seek recovery of adequate compensation and fair value for
their property “taken” in violation of Article I, Section 17 of the Texas Constitution and in
violation of those sections of Chapter 2007 of the Texas Government Code referenced above,
and the invalidation and rescission of the drawdown, including the following:
• Cost of replacement or fair market value for Plaintiffs’ real property lost, damaged, destroyed or “taken” by the intentional, knowing, affirmative and conscious acts, conduct and decisions set forth herein;
• Cost of replacement or fair market value for Plaintiffs’ personal property lost, damaged, destroyed or “taken” by the intentional, knowing, affirmative and conscious acts, conduct and decisions set forth herein;
• Cost of repair for Plaintiffs’ real property lost, damaged, destroyed or “taken” by the intentional, knowing, affirmative and conscious acts, conduct and decisions set forth herein;
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• Cost of repair for Plaintiffs’ personal property lost, damaged, destroyed or “taken” by the intentional, knowing, affirmative and conscious acts, conduct and decisions set forth herein;
• Loss of use of Plaintiffs’ real property lost, damaged, destroyed or “taken” by the intentional, knowing, affirmative and conscious acts, conduct and decisions set forth herein;
• Loss of use of Plaintiffs’ personal property lost, damaged, destroyed or “taken” by the intentional, knowing, affirmative and conscious acts, conduct and decisions set forth herein;
• Diminution in value of Plaintiffs’ real property lost, damaged, destroyed or “taken” by the intentional, knowing, affirmative and conscious acts, conduct and decisions set forth herein;
• Diminution in value of Plaintiffs’ personal property lost, damaged, destroyed or “taken” by the intentional, knowing, affirmative and conscious acts, conduct and decisions set forth herein;
• Loss of income;
• Consequential costs incurred, such as cost of alternative accommodations;
• Invalidation and rescission of the GBRA’s drawdown;
• Reasonable and necessary attorneys’ fees and court costs pursuant to Section 2007.026(a) and Section 2007.44(c) of the Texas Government Code;
• Pre-judgment interest;
• Post-judgment interest; and
• Costs of court.
XI. CONDITIONS PRECEDENT
89. All conditions precedent to Plaintiffs’ right to recover and to the GBRA’s liability have been performed or have occurred and/or have been waived by the GBRA.
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XII. PRODUCTION OF DOCUMENTS
90. Plaintiffs hereby place the GBRA on notice that Plaintiffs intend to use any document produced by the GBRA for any pretrial proceeding or at trial.
XIII. JURY DEMAND
91. Plaintiffs request and demand a trial by jury under Article I, Section 15 of the
Texas Constitution and tender the appropriate fee with this Original Petition.
XIV. REQUEST FOR DISCLOSURE
92. Plaintiffs request that the GBRA disclose the information and materials described in Rule 194.2 of the Texas Rules of Civil Procedure.
XV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs, KEVIN SKONNORD, KEITH
C. STRIMPLE, CLARK P. WELDON, RAYMOND THOMAS, GRANT MCFARLAND,
ROBERT L. WORTH, JR., PETER BADGER, ROBERT SIMS, JOHN EWALD and JIM C.
DANIELL, respectfully request and pray that Defendant, Guadalupe-Blanco River Authority, be cited to answer and appear herein and ask that the Court:
• Grant a temporary order enjoining the GBRA, during the pendency of a full trial or other hearing on the merits, from drawing down the Lakes;
• After a full trial or other hearing on the merits, grant a permanent order enjoining the GBRA from drawing down the Lakes;
• A declaration that the GBRA’s decision to begin a systematic drawdown of the Guadalupe Valley Lakes (starting September 16, 2019) is invalid and that GBRA must rescind its action;
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• Grant judgment against Defendant for the relief requested herein and for adequate compensation and damages to Plaintiffs and invalidation and rescission of the drawdown of the Lakes as set forth above; and
• Grant Plaintiffs such other and further relief to which they may show themselves justly entitled.
Respectfully submitted,
McCombs Plaza, Suite 500 755 E. Mulberry Avenue San Antonio, Texas 78212 Telephone No.: (210) 822-6666 Telecopier No.: (210) 822-1151
By: /s/Ricardo G. Cedillo RICARDO G. CEDILLO Texas State Bar No. 04043600 [email protected] LESLIE J. STREIBER, III. Texas State Bar No. 19398000 BRIAN L. LEWIS Texas State Bar No. 24060166 [email protected] BRANDY C. PEERY Texas State Bar No. 24057666 [email protected]
ATTORNEYS FOR PLAINTIFFS
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