Maverick County Citizens win first legal battle against controversial Dos Republicas coal mine
By: Jose G. Landa, Copyright 2014, Eagle Pass Business Journal, Inc.
Just as the Bible relates the David v. Goliath battle, Maverick County citizens’ battle against the foreigned-own Dos Republicas Coal Partnership giant bid to open a controversial open surface coal mine on the banks of Elm Creek in northern Maverick County took a drastic turn of events as 293rd Judicial District Court Judge Cynthia Muñiz denied Dos Republicas Coal Partnership’s writ of mandamus petition against Maverick County Judge David R. Saucedo, Maverick County Commissioners Court and Maverick County after a court hearing on Thursday, October 9th, 2014, in Eagle Pass, Texas, ruling that County Judge David R. Saucedo did not abuse his discretion as the County FEMA Floodplain Administrator when he denied Dos Republicas’ application to construct an open surface coal mine and coal wastewater sedimentation ponds within the FEMA floodplain zone on April 3, 2014
“I believe that he (Saucedo) did not abuse his discretion. I therefore am denying the writ of mandamus petition,” ruled Judge Muniz.
During the four hours long Court hearing, Maverick County General Counsel Poncho Nevarez and Dos Republicas legal counsel Bill Cobb argued and presented their client’s case regarding the legality of the denial of the Floodplain permit by County Judge Saucedo to Judge Muniz.
Dos Republicas’ Bill Cobb argued that Dos Republicas had met all the requirements of the Floodplain permit while Judge Saucedo abused his discretion denying the permit without stating his reasons for denying it.
Maverick County’s counsel Nevarez rebutted Dos Republicas’ arguments stating Judge Saucedo’s denial of the Floodplain permit did not say they had not met all the requirements, but rather Judge Saucedo had taken into consideration all of the factors listed in the Maverick County Floodplain Ordinance. Nevarez pointed out that the Floodplain Ordinance does not require that each factor have to be considered equally but rather Judge Saucedo took them all into consideration with some factors possibly weighing more than others, such as public safety and health of Maverick Countians.
Bill Cobb presented Engineer Paul Padilla from Fort Worth, Texas and a study done by him to support his argument that Dos Republicas had satisfied all the requirements of the Floodplain Oridnance. Padilla testified that he was hired to “dust off” a previous 2011 study done by Dos Republicas concerning the floodplain permit and issues. Cobb argued that Judge Saucedo abused his discretion denying the Floodplain permit because Dos Republicas met all the floodplain ordinance requirements, according to Padilla’s testimony. “The administrator abused his discretion when he failed to do so and then grant the permit,” said Cobb.
Judge Muniz swore-in Padilla as a witness. Padilla stated he was hired in May 2014 to review the 2011 Dos Republicas application and documents to ensure its compliance with the Maverick County Floodplain Ordinance requirements.
Cobb asked Padilla if according to the plans set out in the process of the coal mining wastewater sedimentation ponds would there be an increase of contaminants?” Padilla surprisingly answered “ I can’t answer that.”
Cobb redirected his question asking Padilla if he felt there would be less sediment and Padilla answered, “yes.” Nevarez then intervened and asked less sediment right and Padilla again said “yes.” But Padilla qualified his answer stating that it would be less sediment “To tributaries of the Elm Creek, not Elm Creek itself.” Elm Creek waters discharge directly into the Rio Grande River, just about a mile upstream from both the Eagle Pass and Piedras Negras, Coahuila, Mexico municipal water treatment plants.
Padilla then went into further details of his study and findings and also mentioned that the lifespan of this mine would be seven (7) years and then the land would be reclaimed. Dos Republicas has previously given different number of years that the Eagle Pass Mine will be operational, ranging from 8 to 18 years.
Cobb asked Padilla if it was fair to say that in seven (7) years when the coal mining was completed, would the county’s plans for the area be met and if that was also a factor in the granting of the permit, which Padilla answered “yes.”
Cobb asked Padilla to draw out a plan of the proposed coal mining wastewater sedimentation pond as an example for Judge Muniz to see what was planned and what would be done within the floodplain permitted area.
Padilla stated “The sediment load is monitored by Dos Republicas and then when it reaches a certain level, it is taken out. The water is not clean. I wouldn’t want to drink it. But it doesn’t have the sediment.” So, How can Maverick Countians be asked to drink the Rio Grande River water with the Dos Republicas coal mine wastewater in it if Dos Republicas own expert engineer, Paul Padilla, said that “the water is not clean. I wouldn’t want to drink it.”
“It wouldn’t be drinkable, but it won’t have the sediment,” added attorney Cobb trying to minimize Padilla’s shocking testimony.
Judge Muniz asked Padilla about the different levels of rain that these ponds would be able to hold in case of high rain levels during a span of short time. Padilla did state that 11.9 inches of rain fall in a 24 hour span was defined as and exceeding the 100 year storm floodplain level, meaning that any rains over 11.9 inches within a 24 hour period would cause the Dos Republicas coal wastewater sedimentation ponds discharging their toxic and hazardous waste into Elm Creek and the Rio Grande River.
Nevarez then cross-examined Padilla, asking him how much he was charging Dos Republicas and how much he had charged them up to date since he was initially hired.
Padilla at first was hesitant in answering, even stating that he did not know to this point how much had already charged Dos Republicas for his services.
Nevarez then gave him an example of figures and Padilla then stated that it was between $20,000 to $30,000.
Nevarez then asked Padilla about his statement of sediment and contaminants and if the sediment in question could potentially have contaminants. Padilla stuck to his initial answer.
Nevarez continued to question Padilla. “The Judge asked you about rain levels and the sediment ponds capability of holding rain falls,” Nevarez asked Padilla.
“What if we got 17 inches of rain in 24 hours or 6 inches in 10 hours?” asked Nevarez.
“Did you know that we received almost 17 inches of rain in June of 2013?” asked Nevarez.
“Did you do any studies of that rainfall in the past years?” asked Nevarez.
“No,” answered Padilla. The Court audience gasped upon hearing Padilla’s answer and went silent. During the last two years, in 2013 and 2014, Maverick County has had floods on Elm Creek and its floodplain causing the water to be discharged into the Rio Grande River. Had these coal mining wastewater sedimentation ponds had coal mining waste during these rains, they would have washed into Elm Creek and Rio Grande, straight into Eagle Pass’ municipal water treatment plant.
Nevarez then asked Padilla about what type of sediments and contaminants would go into these sedimentation ponds within the floodplain zone.
“I wouldn’t want sulfur in my water.” said Padilla. Nevarez asked Padilla if he would consider sulfur a contaminant, and Padilla answered” yes.”
Nevarez then asked Padilla if he had taken into consideration contaminants flowing out of the Dos Republicas coal mine wastewater sedimentation ponds in case of flood overflow? Padilla said he hadn’t taken it into consideration.
Nevarez pointed out to the Court that Padilla, as an expert, did not take any of the issues into consideration.
“Does FEMA know that you (Dos Republicas) engineered the floodplain away through your plans?” asked Nevarez. Incredibly, “No.” answered Padilla.
Nevarez argued to Judge Muniz that County Judge Saucedo as the Floodplain Administrator did look and considered all factors and that he had used certain factors to deny the permit.
Nevarez then asked Padilla if he could show him where on the floodplain ordinance did it state that the Floodplain Administrator had to list the factors for denying the permit. Padilla, correctly answered, that he could not.
Nevarez drilled his point home by asking Padilla once again if he could show the Court where it required the Floodplain Administrator to list reasons for denying a permit as Padilla had testified at the beginning of the hearing. Again, Padilla said that he could not.
Cobb then proceeded to present a document to the Court from a different expert stating that coal residue flowing through the waterways will not pose a threat as it is diluted.
Nevarez objected to the presentation of the document as it was never produced by Dos Republicas before until the Court hearing for the first time and that he had not had time to review it before its presentation. Judge Muniz agreed with Nevarez’s objection, sustaining Nevarez’s objection prohibiting Dos Republicas from introducing new expert studies not previously produced.
Both parties presented testimony regarding a variety of issues including water quality studies and responsibilities of the floodplain administrator.
Dos Republicas attorney Bill Cobb surprisingly pulled a stunt by putting one or two pieces of coal samples in a glass of water and proceeded to drink it in front of Judge Muniz in a desperate attempt to demonstrate that coal in one’s water is not toxic or hazardous.
Nevarez quickly jumped to his feet and objected to Cobb’s courtroom trick stating that Cobb’s actions was a mockery and insult to the Court and citizens of Maverick County.
During arguments, Nevarez stated that “Nowhere in the ordinance does it state that he has to list factors of denial. Nothing in the ordinance says that there is a specific time to review the application,” referring to Judge Saucedo decision to deny Dos Republicas floodplain zone construction permit.
“We even admitted to that the requirements for the application process were met but that doesn’t equal an approval,” argued Nevarez.
Cobb rebutted by arguing that Judge Saucedo’s decision was based on irrelevant factors.
Nevarez argued that because the Floodplain Administrator had considered one factor more than another did not mean that he had not followed the order of ordinance. “The abuse of discretion is not relevant in his decision,” argued Nevarez. “The judge was asked if he had considered all factors and he said yes,” said Nevarez.
Nevarez highlighted to the Court that Dos Republicas had other adminstrative relief available to them such as an appeal of Judge Saucedo’s permit denial to an Appeal Committee or Board, but rather chose to file two lawsuits in state district court in Maverick County, including the one in Judge Muniz’s Court. “Is that abuse of discretion, I don’t think so,” argued Nevarez. Nevarez argued that Dos Republicas chose not to appeal and proceeded to file this lawsuit seeking a writ of mandamus. Nevarez acknowledged that Maverick County does not yet have an Appeal Committee because it has never had this issue come up before, but if the issue presents itself an Appeal Committee would be appointed to hear any appeal.
After carefully listening to all the experts, evidence presented, the law, and the arguments of counsel, Judge Muniz held that County Judge David R. Saucedo had not abused his discretion when he denied Dos Republicas application to construct the coal mine wastewater sedimentation ponds within the FEMA 100 year floodplain as the Floodplain Administrator pursuant to the Maverick County Floodplain Ordinance.
This legal victory by Maverick County against Dos Republicas Coal Partnership is important because it is the first time that Maverick County and its citizens have successfully defeated the Mexican energy giant company in the David v. Goliath battle being waged on the United States-Mexico border during the past 23 years. This legal victory demonstrates that Maverick County and its citizens (David) also have legal rights and professional legal counsel to represent and defend them against Goliath. It is expected that Dos Republicas will more than likely appeal Judge Muniz’s decision to the Fourth Court of Appeals in San Antonio, Texas. The biblical David v. Goliath battle continues, one day at a time.
