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Spillgate failure on Lake Dunlap

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I've had a mostly federal court practice for 30 years and I don't recall seeing an original complaint (or petition in state court) that failed to list the parties by name. After the initial pleadings you often see "et al" to shorten the caption if the parties are voluminous. Or you might say "et al" but then list each party by name in the pleading. Most of the plaintiffs probably don't want it to be public that they are suing. That's chicken shit. First thing I would do is ask who the plaintiff's are by name.

 

Edit: See F. R. Civ. P. 10(a) ("title of the complaint must name all parties"). Not sure if our funky state court rules actually require naming each party. Either way, it's chicken shit. How does the judge know if he has to recuse himself/herself?

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24 minutes ago, HouTex said:

I've had a mostly federal court practice for 30 years and I don't recall seeing an original complaint (or petition in state court) that failed to list the parties by name.

I think they have those down on page 3. On that lawsuit, I think they were letting anyone who's feelings were hurt sign on as a plaintiff and the lawyer was going to do it pro bono as he owns property on one of the lakes.  *goes off to search*

"It would be optimal to have as many plaintiffs from all the lakes as possible on the petition for a Temporary Restraining Order (TRO) to stop GBRA from draining the lakes. Douglas Sutter, a lake resident and attorney, is doing this work pro bono. If you are interested in joining as a plaintiff, please read and consider the attached acknowledgment. Let's see how many new plaintiffs we can add by end of day Tuesday."

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Page 3 lists the individual defendants and it says that the plaintiffs are listed on Exhibit A.  Exhibit A was not included in the document linked in the above post.  Presumably, they included it in the original filed with the court and served on the defendants.

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7 hours ago, relapse98 said:

 

I'm still not sure what the fix is. The dams were built at a time when there was hardly even any farming around the lakes. Then communities built by the lakes assuming (you know what you get when you do that) that they would always be there. GBRA probably should have better worked with the elected officials to let them know the conditions of the dams and see what the state could do and for all we know, they did, that's just never been discussed and in the Sunset review last session, they were kinda quiet on it.
 

Kind of reminds me of the Surfside Beach thing from about 15 years ago.  IIRC, the state agencies applied for every grant in the world trying to help compensate the property owners who lost property to "natural" means. 

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Like I said, I just skimmed them, but I think both petitions are poorly written. I assume this is probably because they're on shaky legal grounds. The court isn't just going to substitute the GBRA's decision for its own. I don't know what standard the court will apply in reviewing the GBRA's decision, but it's hard to argue they acted arbitrarily. Perhaps the GBRA made a technical violation that makes its decision void.

Mainly they're arguing their property is being taken away, and I'll be curious to see how that's handled. They don't have a property right in the water, and when they purchased their properties and established businesses on a lake they knew, or should have known, that they were taking the risk of the dam failing or becoming unsafe. This would've been factored into the prices they paid for their property, which they claim is now being taken away.

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On 9/6/2019 at 9:52 AM, HouTex said:

The McQueeney folks realize that they likely will have to pay for the repairs themselves.  Their engineers estimate the cost per lake-front property owner is in the low five figures.  They'll pay that in a heartbeat to keep their values up and to continue to enjoy their "private" lake.  I have no idea if that's BS or a real number.

Not everyone has money in the low 5 figures to pay on a moments notice. And why pay if not legally obligated. The move here is to let everyone else pay and enjoy the benefits for free.  You know like they’ve all been doing for 50 years.

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15 hours ago, HouTex said:

I've had a mostly federal court practice for 30 years and I don't recall seeing an original complaint (or petition in state court) that failed to list the parties by name. After the initial pleadings you often see "et al" to shorten the caption if the parties are voluminous. Or you might say "et al" but then list each party by name in the pleading. Most of the plaintiffs probably don't want it to be public that they are suing. That's chicken shit. First thing I would do is ask who the plaintiff's are by name.

 

Edit: See F. R. Civ. P. 10(a) ("title of the complaint must name all parties"). Not sure if our funky state court rules actually require naming each party. Either way, it's chicken shit. How does the judge know if he has to recuse himself/herself?

I thought that was bizarre also.

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12 hours ago, Jimbaround said:

What does this mean?  Is the lawsuit going to prevent the draining of the lake?  I'm clearly not a lawyer.

Yup. They want a temporary restraining order or injunction to stop the September 16th drawdown and then the full hearing to permanently stop it.
The problem is - GBRA aint got that money, the state doesn't appear to be coming forward with any money. So the don't drain the lakes. They go on business as usual like before - except I think I read they have deenergized the turbines so they aren't even making the miniscule money from hydropower. So then another gate fails or some shit. Then what?

Hearing started 38 minutes ago. I think we should hear something soon.

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Not everyone has money in the low 5 figures to pay on a moments notice. And why pay if not legally obligated. The move here is to let everyone else pay and enjoy the benefits for free.  You know like they’ve all been doing for 50 years.

Not an expert, but if the majority of the property owners vote to form a MUD or something similar, then they would all pay an assessment. The MUD would get a loan and the property owners would pay it back over several (30?) years not all at once.

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4 hours ago, Bookman said:

 

Mainly they're arguing their property is being taken away, and I'll be curious to see how that's handled. They don't have a property right in the water, and when they purchased their properties and established businesses on a lake they knew, or should have known, that they were taking the risk of the dam failing or becoming unsafe. This would've been factored into the prices they paid for their property, which they claim is now being taken away.

I don't know about in this situation, but if you buy a coastal property or a property in a flood plain, there is a state document that you have to sign where you acknowledge the potential risks.  Dam failure is a bit more problematic, because how far upstream does a dam have to be to not be a risk?

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Dam failure is always a risk.

and it’s a risk the property and business owners took here. They’re saying that GBRA owed them a duty to take care of the dam, but I don’t think that’s going to get them there. Without even discussing the merits of that argument, I’d be surprised if there’s not governmental immunity for that claim.

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Lawsuit #1 addresses the immunity, but it also uses things like 'Harris County Flood Control District vs Kerr' where 400 homeowners say their homes were flooded because the county apporoved upstream development. Like - the lake draining literally does not actually affect your property (*), it affects the adjacent property that you don't own. From my readings, the plaintiffs went all emotional in their presentation to the court and now GBRA is doing theirs and is just going through the facts of 90 year old dams, 1/3 of which failed within a 3 year period.

I think they're gonna have a tough time getting their TRO, but who knows.


(*) there are bulkheads etc on Dunlap that are falling in due to not having pressure on them on 1 side after the lake was drained. So land reverting back to being a river.  I guess GBRA could do something where they give everyone an easement to the land underneath the previous lake, so that will shut up the stupid shit about them wanting to sell all the land and have other people build on it (not that anyone could get a mortgage for stuff that close to the river). Then if they did that, the bitching would start about other people walking on the land between their houses and the river, nevermind that people used to camp right off the end of their docks in boats.

Edited by relapse98

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Just now, Bookman said:

I’m not surprised the plaintiffs were emotional. That’s their best argument.

Ack. If that's their best argument, they are fucked.

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I wouldn't be surprised if there was a TRO just based on the extreme economic harm.  A TRO lasts only two weeks unless extended by court order or agreement of the parties, for another two weeks.

Assuming it's not converted to a Temporary Injunction hearing.

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4 minutes ago, Bookman said:

From the news, they appear to be arguing that the reasoning to drain the lakes is a sham and the dams are perfectly safe.

Huh.  I mean....I would think that the court might not find that there's a "substantial likelihood" that such theory is correct....you know, if the parties present, like, evidence and stuff....

 

 

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1 minute ago, TwiceHorn said:

I wouldn't be surprised if there was a TRO just based on the extreme economic harm.  A TRO lasts only two weeks unless extended by court order or agreement of the parties, for another two weeks.

Assuming it's not converted to a Temporary Injunction hearing.

In my experience, even if it's a TRO hearing, if the parties show up and have a full evidentiary hearing, the judge effectively treats it like a TI hearing.

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2 minutes ago, Brisketexan said:

In my experience, even if it's a TRO hearing, if the parties show up and have a full evidentiary hearing, the judge effectively treats it like a TI hearing.

Nonetheless, I think he can say, I'm going to give you 60 or 90 days to try to arrive at a solution here, but I am likely not going to order GRBA not to dewater the lakes on any kind of permanent or indefinite basis.

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Just now, TwiceHorn said:

Nonetheless, I think he can say, I'm going to give you 60 or 90 days to try to arrive at a solution here, but I am likely not going to order GRBA not to dewater the lakes on any kind of permanent or indefinite basis.

Likewise, I think the argument of harm by the homeowners is not strong -- as a "permanent, irreparable" kind of thing -- if the court allows the lakes to dewater, and then after trial, decides that nope, you need to let them fill back up.  And when the balance on the other side is life safety -- I'm betting GBRA can put on a reasonably decent case that every day that the dams are under pressure, they are at risk of catastrophic failure (hey judge, did we show you that video yet?), creating a risk to life and property downstream.

Do I choose your property interest -- which is transitory, and can be remedied after trial....

Or do I choose an ongoing, real-time risk to life and safety, that if it happens, CANNOT be remedied?

We can fill the lakes back up.  We can't resurrect dead people downstream.  That's a strong damned argument.  Will the judge choose to float that risk for some limited period of time?  We'll see.

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2 minutes ago, Brisketexan said:

Likewise, I think the argument of harm by the homeowners is not strong -- as a "permanent, irreparable" kind of thing -- if the court allows the lakes to dewater, and then after trial, decides that nope, you need to let them fill back up.  And when the balance on the other side is life safety -- I'm betting GBRA can put on a reasonably decent case that every day that the dams are under pressure, they are at risk of catastrophic failure (hey judge, did we show you that video yet?), creating a risk to life and property downstream.

Do I choose your property interest -- which is transitory, and can be remedied after trial....

Or do I choose an ongoing, real-time risk to life and safety, that if it happens, CANNOT be remedied?

We can fill the lakes back up.  We can't resurrect dead people downstream.  That's a strong damned argument.  Will the judge choose to float that risk for some limited period of time?  We'll see.

There goes my argument 

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Just now, Neonmoon said:

There goes my argument 

Well, I mean, if you have some good voodoo rituals to introduce into evidence, far be it from me to stand in your way.

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Judge grants the temporary restraining order, that delays plan to drain lakes

Quote

The judge ruled in granting that temporary restraining order, and the next court hearing is scheduled for Monday at 10 AM. This temporary restraining order on draining the lakes will only last until the court hearing is over and the judge makes a final decision.

 

 

And I think they were also trying to get an injunction, which would have paused it all until the case(s) ran their course, right?

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17 minutes ago, Brisketexan said:

Will the judge choose to float that risk for some limited period of time?

There's already people floating Dunlap. ;)
I hear the rapids about a mile downstream of the interstate are a problem and that the wind sometimes works against you since the channel is kinda wide and shallow.

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A 5-day TRO....that's pretty short.  That's the equivalent of "meh, no harm if I restrain you for a few days, till I can have a full evidentiary TI hearing."  But that's short.  Really short.

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19 hours ago, Brisketexan said:

In my experience, even if it's a TRO hearing, if the parties show up and have a full evidentiary hearing, the judge effectively treats it like a TI hearing.

And it's often forgotten (see me above), but unless it's ex parte, on affidavits only, it's not really a TRO, its a TI.

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55 minutes ago, Johnny Sack said:

What kind of injury/death risk and property damage are we talking about if the McQueeny dam fails?

Honestly, unless someone was directly below the dam (or on top of it as GBRA has documented), probably not much.
Lake McQueeney folks didn't get too much when Dunlap failed, the boat dock at The Bandit had some water issues but I don't remember anyone else having problems. That's assuming it fails in the same way as Dunlap, if something else changes - like all 3 gates failing at once - then it might be different.

Edit: Or if people are on the banks/in the river at the Dam Camp which is immediately below McQueeney Dam, those people might be f'ed. Go from ~200 CFS to 10,000 CFS instantly = not a great outcome.

Edited by relapse98

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19 hours ago, Bookman said:

From the news, they appear to be arguing that the reasoning to drain the lakes is a sham and the dams are perfectly safe.

The Flat Earther defense. 

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Why not drain them now for safety and then let these whiny bitches form a MUD to strengthen the dams then fill them back up?

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21 hours ago, Brisketexan said:

A 5-day TRO....that's pretty short.  That's the equivalent of "meh, no harm if I restrain you for a few days, till I can have a full evidentiary TI hearing."  But that's short.  Really short.

A "5-day" TRO ending on September 16, to restrict them from doing what they weren't scheduled to begin doing until September 16. It appears, at most, to be a 10-hour TRO, and that's only if they had planned to begin releasing at 12am Monday.

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32 minutes ago, SquishMitten said:

A "5-day" TRO ending on September 16, to restrict them from doing what they weren't scheduled to begin doing until September 16. It appears, at most, to be a 10-hour TRO, and that's only if they had planned to begin releasing at 12am Monday.

"until the court hearing is over and the judge makes a final decision"

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So a fun detail here that's being overlooked by most of you.  GBRA retained the water rights (where they make their money) because of the hydro dams.  At some point they decided to transfer the water rights, free of charge, to their water supply side.  These water rights are worth 10s of millions.  GBRA keeps making the argument that it isn't fair for their water side to subsidize the hydro side, but in reality the hydro side subsidized the water side by transferring rights.  One way to pay for this is for GBRA to transfer back the water rights to the hydro side, and then for the hydro side to sell the rights back to the water supply side.  This would raise most of the funds needed to repair the dams.

Combine that with the different lakes forming MUDs, GBRA could then transfer the dams ownership to the MUDs and the MUDs could tax the home owners for the on going maintenance of the dam and setting aside reserves to pay for future replacement.

 

Also, the risk factor is very low.  There was an expert witness yesterday that testified that a failure of a single gate will actually relieve pressure on the other gates and a multiple gate failure is incredibly unlikely even in the state the gates are right now.  In addition to that, when Dunlap gate failed the lake levels only rose about 6" downstream.  It was no worse than a moderate rain event.  Also, after the failure GBRA didn't sound the alarms on the dams because the event caused such a minor impact downstream.

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Also another detail in the testimonies yesterday was that GBRA started planning on replacement of the dams in 2013.  They never actually acted on these plans even though outwardly they communicated that they were.  There was a plan, as testified by a former GBRA employee, to just let the dams eventually fail, dewater the lakes and then exit management of the dams.  

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From a broad legal perspective, there does seem to be a massive governmental abdication of responsibility by GBRA.

Granted, that abdication resulted in people enjoying the lakes tax-free, but it seems like GBRA should have done a better job of alerting people to potential danger and lack of funds to resolve it.  But then they would have had to spend money on something other than hookers and gin.

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Do the people on these lakes have bad state reps? Their reps have failed them in terms of seeking funds to maintain/upgrade the dams in the past, and now protecting them from destruction. Serves as a good lesson about electing the right people and contributing to their campaign.

seems very rare that a state agency runs into a problem and their resolution is to effectively calls it quits. Perhaps the state was looking for a reason to kill this group for a long time.

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14 hours ago, JesusSweatDuck said:

So a fun detail here that's being overlooked by most of you.  GBRA retained the water rights (where they make their money) because of the hydro dams.  At some point they decided to transfer the water rights, free of charge, to their water supply side.  These water rights are worth 10s of millions.  GBRA keeps making the argument that it isn't fair for their water side to subsidize the hydro side, but in reality the hydro side subsidized the water side by transferring rights.  One way to pay for this is for GBRA to transfer back the water rights to the hydro side, and then for the hydro side to sell the rights back to the water supply side.  This would raise most of the funds needed to repair the dams.

Combine that with the different lakes forming MUDs, GBRA could then transfer the dams ownership to the MUDs and the MUDs could tax the home owners for the on going maintenance of the dam and setting aside reserves to pay for future replacement.

 

How is this relevant to the legal issues involved?

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9 hours ago, TwiceHorn said:

From a broad legal perspective, there does seem to be a massive governmental abdication of responsibility by GBRA.

Granted, that abdication resulted in people enjoying the lakes tax-free, but it seems like GBRA should have done a better job of alerting people to potential danger and lack of funds to resolve it.  But then they would have had to spend money on something other than hookers and gin.

Yes, and it's interesting. I'm not sure how GBRA could have gifted any water rights to a separate entity, but it's been awhile since I practiced any local government law. I think I read that GBRA had been losing money for years since operating the dams wasn't profitable.

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1 hour ago, Bookman said:

How is this relevant to the legal issues involved?

Not directly related, but most property owners are not upset about dewatering only. If there were some viable plan in place I would imagine the reaction would be very different

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3 hours ago, Nice Guy Eddie said:

Do the people on these lakes have bad state reps? Their reps have failed them in terms of seeking funds to maintain/upgrade the dams in the past, and now protecting them from destruction. Serves as a good lesson about electing the right people and contributing to their campaign.

seems very rare that a state agency runs into a problem and their resolution is to effectively calls it quits. Perhaps the state was looking for a reason to kill this group for a long time.

Well, I think the lege delegates authority to an entity like GBRA to avoid having to deal with dam, revenue, and funding issues.  GBRA apparently not only failed to mention its financial problems to affected parties, but also to the lege.

I'm always happy to blame legislators when they fuck up, but I'm not sure that's fair in this case.

It seems like GBRA was created with an idea that hydro power would fund its operations and that never came to pass.  GBRA scrounged just enough money to pay itself and then went kerplooie seemingly without a peep.

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56 minutes ago, Bookman said:

Yes, and it's interesting. I'm not sure how GBRA could have gifted any water rights to a separate entity, but it's been awhile since I practiced any local government law. I think I read that GBRA had been losing money for years since operating the dams wasn't profitable.

I don't know if it is a separate legal entity, but the funds are there for the repairs but they're in the water supply side. GBRA's argument for not using those funds is that it would not be fair to their water customers and GBRA would likely be sued by their water customers if those funds were used for dam repair.

What I was trying to point out is that the dams subsidized the water supply side because the water rights to this surface water would not be there without the dams.  The argument GBRA is using is flawed.

This isn't about public safety, several local officials have proposed multiple ways to protect the public without dewatering. GBRA wants to either get local funds to build a different type of dam (hydraulic), or exit the management of the dam business. This is nothing but a power play by GBRA

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