Dos Republicas Coal Partnership sues Maverick County, County Judge, and Commissioners Court
By: Jose G. Landa, Copyright 2014, Eagle Pass Business Journal, Inc.
Dos Republicas Coal Partnership has filed two lawsuits against Maverick County, including County Judge David Saucedo as Floodplain Administrator and County Judge of the Maverick County Commissioners Court, and the Maverick County Commissioners Court, in state district court in Eagle Pass, Maverick County, Texas, on March 25, 2014 regarding its controversial open surface coal mine known as “Eagle Pass Mine” alleging that Maverick County Judge David Saucedo had failed to act and grant its November 2011 Application for a floodplain development permit with the Floodplain Administrator and its September 4, 2013 Supplement constituting an illegal, unreasonable, arbitrary, and an abuse of discretion. Subsequently after Dos Republicas Coal Partnership filed the lawsuits, Maverick County Judge David Saucedo denied Dos Republicas’ November 2011 Application for a floodplain development permit and its September 4, 2013 Supplement on April 3, 2014. An Amended Petition was filed by Dos Republicas Coal Partnership in both cases on May 2, 2014, alleging that County Judge David Saucedo’s denial of its application for a floodplain development permit on April 3, 2014 constitutes an illegal, unreasonable, arbitrary, and abuse of discretion.
Dos Republicas’ amended petition alleges that on January 15, 2009, by order of the Railroad Commission of Texas, a coal mining permit was transferred from Dos Republicas Resources Company (DRRC) to Dos Republicas Coal Partnership (DRCP) and that portions of the permitted mine site property lies within the Federal Emergency Management Agency (FEMA)-designated floodplain boundaries of Elm Creek and two of Elm Creek’s tributaries.
Maverick County Commissioners Court under former County Judge Rocky Escobedo approved on August 12, 1996 a resolution adopting a National Flood Insurance Program Ordinance. According to Maverick County’s Flood Ordinance, the County Judge is the Floodplain Administrator.
In 1998, DRRC submitted an initial floodplain development permit application for the coal mining property to the then Maverick County Floodplain Administrator, County Judge Rocky Escobedo, and the floodplain permit was granted that same year (1998).
Dos Republicas Coal Partnership amended petition alleges that in November 2011, DRCP submitted a new floodplain development permit application for the coal mine property “due to mine plan changes on the portions of the Property contained within the floodplain. Subsequently, on January 26, 2013, the Railroad Commission of Texas granted Dos Republicas Coal Partnership its application for renewal/revision/expansion of the original Eagle Pass Mine Permit 42-A, issuing a new Permit 42-B expanding its permitted coal mining operations. Since Maverick County had not acted upon its November 2011 application for a floodplain permit and Dos Republicas Coal Partnership learned that FEMA had issued a new floodplain map for Elm Creek in 2011, Dos Republicas Coal Partnership filed a Supplement on September 4, 2013 to its November 2011 Application for a floodplain permit with Maverick County.
On April 3, 2014, County Judge David Saucedo as the Maverick County Floodplain Administrator denied Dos Republicas Coal Partnership’s November 2011 Application for a floodplain development permit and its September 4, 2013 Supplement. Dos Republicas Coal Partnership alleges that County Judge David Saucedo as the Floodplain Administrator of Maverick County did not notify DRCP until April 29, 2014 of the floodplain permit denial. Dos Republicas Coal Partnership alleges that the April 3, 2014 floodplain permit denial is “two sentences and fails to provide any reasoning or analysis of the required factors or any basis in law or fact for the denial….the decision to deny the Supplement and 2011 Application was illegal, unreasonable, arbitrary, and abuse of discretion.”
Dos Republicas Coal Partnership alleges that County Judge David Saucedo’s denial of its November 2011 Application for a floodplain development permit and its September 3, 2013 Supplement violates its legal rights, seeking a declaratory judgment that County Judge David Saucedo as Floodplain Administrator, as County Judge of the Maverick County Commissioners, acted illegally, unreasonably, arbitrarily, and abused its discretion in denying its November 2011 and September 4, 2013 Supplement application; that the Floodplain Administrator must approve its November 2011 and September 2013 Supplement application as complying with Maverick County’s Floodplain Ordinance; and that the Maverick County Floodplain Administrator (County Judge Saucedo) must approve its floodplain development permit application.
Dos Republicas Coal Partnership alleges as causes of action that the denial of its floodplain development permit application is an “Inverse Condemnation” as a per se taking by damaging or destroying all of DRCP’s economically viable uses of the coal mining property for a public use without adequate compensation and without advancing a legitimate government interest, or, in the alternative, constitutes a taking by unreasonably interfering with its right to use and enjoy the coal mining property depriving DRCP of its “reasonable investment-backed expectations, including its use and enjoyment of the Property and its investments in the mining operations for the Property, and has negatively impacted the economic value of Plaintiff’s property and…effectively prohibiting Plaintiff from conducting profitable mining operations on the Property without just compensation and without advancing a legitimate government interest,” seeking adequate compensation for the unlawful taking of Plaintiff’s property.
Dos Republicas Coal Partnership also seeks a writ of mandamus to grant its floodplain development permit application, attorneys’ fees, court costs, pre-judgment interest, post-judgment interest and expenses against the Defendants.
Maverick County Judge David Saucedo as the Floodplain Administrator and County Judge of the Maverick County Commissioners Court and the Maverick County Commissioners Court have filed an answer denying Dos Republicas Coal Partnership claims in both lawsuits on April 28th and May 12, 2014, respectively, through Maverick County General Counsel Poncho Nevarez of the Nevarez Law Group.
It is well-known that over 60 percent of the Dos Republicas Coal Partnership’s Eagle Pass Mine permit granted by the controversial Railroad Commission of Texas lies within the FEMA Floodplain according to a presentation to the Eagle Pass City Council by Eagle Pass Public Works Director Hector Chavez and Eagle Pass Water Works System General Manager Jorge Barrera.
Recent severe floods in Maverick County such as the June 14-15, 2013 incident which received 18 or more inches within a 24 hour period and the July 5-6, 2010 incident caused the Elm Creek to jump its banks and cause severe flooding within the community as well as the Rio Grande River, where the City of Eagle Pass potable water pump is located downstream about one or so miles from where the Elm Creek discharges into the Rio Grande River, posing serious public health issues to citizens in both Eagle Pass, Texas and Piedras Negras, Coahuila, Mexico as well as downstream water users on the Texas-Mexico border.
