Maverick County Commissioners Court approve appeal of 13th Court of Appeals Dos Republicas Coal Partnership Decision
By: Jose G. Landa, Eagle Pass Business Journal, Inc., Copyright 2015
Maverick County Commissioners Court approved to authorize its legal counsel to appeal the 13th Texas Court of Appeals decision concerning Dos Republicas Coal Partnership’s application for a flood zone construction permit from Maverick County at their meeting on Tuesday, November 2, 2015, on a split 3 to 1 vote.
During the meeting, Maverick County Judge David R. Saucedo read agenda item No.1 of the closed session portion of the agenda and Commissioners Court proceeded to go into close quarters to consult with legal counsel Woody Wilson on the matter.
Once back in open session, Judge Saucedo opened up agenda item No.1 and asked commissioners court if they had a motion to consider and/or discuss.
Commissioner Precinct 1 Jerry Morales stated that he had a motion concerning agenda item No.1 Morales stated: “ I move that we authorize legal counsel to continue exploring all legal options for appeal to the next level.” This would be the Texas Supreme Court in Austin, Texas.
Judge Saucedo asked if there was a second to Morales’s motion.
Commissioner Precinct 2 Rosy Cantu seconded the motion.
Judge Saucedo asked if there was any further discussion, which there was none. Commissioners Court approved it on a 3 to 1 vote with Judge Saucedo, Morales, and Cantu in favor while Commissioner Roberto Ruiz voted against. Ruiz has favored the Dos Republicas coal mine since the 1990s. Commissioner Jose Luis Rosales was not present at the meeting.
On October 8, 2015 the 13th Texas Court of Appeals issued a decision on the Dos Republicas Coal Partnership vs. David Saucedo , as Floodplain Administrator and County Judge of the Maverick County Commissioners Court, and Maverick County Commissioners Court, Cause No. 13-14-00725-CV, in which the Court of Appeals reversed and remanded 293rd Judicial District Judge Cynthia Muniz’s denial of Dos Republicas’ petition for writ of mandamus to compel Maverick County Judge David R. Saucedo, as Floodplain Administrator, to grant their floodplain development permit application.
The Court of Appeals found one point valid in that Judge Muniz erred when she concluded that Judge Saucedo did not abuse his discretion when he considered floodwater quality as a basis for his decision to deny Dos Republicas’ development permit.
In 1992, Dos Republicas Resources Co. (DRRC) applied for a surface coal mining permit for a 2,700 acre coal mine in Eagle Pass, Texas, which the Railroad Commission of Texas (TRRC) granted in 1994 and issued on April 11, 2000. Parts of the coal mine lay with the FEMA floodplain boundaries of Elm Creek and two of its tributaries. In 1998, DRRC filed an floodplain development permit application to the Maverick County Floodplain Administrator, which approved the permit. However, in January 2009, DRRC transferred its coal mining permit to Dos Republicas Coal Partnership (DRCP/Dos Republicas).
In November 2009 Dos Republicas filed a petition to “renew, revise, and expand” its existing 2,700 acre coal mining permit to cover 6,346 acre area and provide approximately 2,569 acres for mining during the “seven year life of the mine.” The new permit application to “renew, revise, and expand” the coal mining permit to 6,346 acres included the construction and development of an office and shop facilities, a railroad loop, a coal load-out area, and diversions and detention ponds, including an additional 1,821 acres. In November 2011, Dos Republicas applied for a new floodplain permit from Judge Saucedo.
Nine months after Dos Republicas filed its new application with Judge Sauceddo, FEMA revised its floodplain designations and issued a new floodplain map of Elm Creek and its two tributaries. On September 4, 2013, Dos Republicas filed a supplemental floodplain development permit applications to address FEMA’s floodplain revisions. On January 29, 2013, the Railroad Commission of Texas granted Dos Republicas an open surface coal mining permit.
Since Judge Saucedo had not ruled on Dos Republicas’ supplemental floodplain permit application, Dos Republicas filed a petition for writ of mandamus on March 25, 2015 in the 293rd Judicial District Court of Maverick County seeking to compel Judge Saucedo to act on its application. About two weeks later,, Judge Saucedo issued an order denying Dos Republicas’ permit application. Dos Republicas amended its petition for writ of mandamus, seeking to compel Judge Saucedo to issue the floodplain development permit. On October 9, 2014, after a full evidentiary hearing, Judge Cynthia Muniz denied Dos Republicas’ petition for writ of mandamus. Dos Republicas filed an appeal.
The Court of Appeals ruled that because Judge Saucedo had considered the effect of Dos Republicas’ open surface coal mining sediment ponds might have on floodwater quality and potential downstream contamination, a factor not listed in Maverick County’s Floodplain Ordinance, was an abuse of discretion because the Texas Commission on Environmental Quality (TCEQ) is the appropriate authority with jurisdiction and control over water quality in the State of Texas and TCEQ had previously granted Dos Republicas a Texas Pollutant Discharge Elimination System (TPDES) permit to discharge storm waters and mine seepage, Judge Saucedo did not have authority to base his decision to deny Dos Republicas’ permit application on floodwater quality since TCEQ had already issued the requisite permits regulating the same.
The Court of Appeals added that TCEQ retains the responsibility for permitting and controlling floodwater quality and potential water contamination, and no provision of Maverick County’s Floodplain Ordinance can limit or repeal the authority given to TCEQ by the Texas Legislature.
The Court of Appeals held that “because Judge Saucedo considered floodwater quality, an irrelevant factor not contained with the Ordinance, we determine that the trial court erred when it concluded that Judge Saucedo did not abuse his discretion in considering floodwater quality. We sustain subsection (c) of Dos Republicas’ second issue.”
The Court of Appeals concluded that “we reverse the order of the trial court denying Dos Republicas’ petition for writ of mandamus on the ground that the trial court erred when it found that Judge Saucedo, as Floodplain Administrator of Maverick County, did not abuse his discretion by considering an irrelevant factor in denying Dos Republicas’ permit application. We remand to the trial court for further proceedings in accordance with this opinion.”
The 13th Court of Appeals opinion was written by Justice Nelda V. Rodriguez.
The case was returned to Judge Cynthia Muniz’s court for further proceedings in accordance with the Court of Appeals opinion.
