Most landowners simply cannot continue a protracted legal fight to defend their private property rights, especially against the government – even a powerful state government agency. Through an amazing turn of events, the Grahams have. All Texans will have them to thank when the next developer comes knocking to bully them into submission.
By Terri Hall l April 17, 2017
Two cattle ranchers in the Texas Hill Country can breathe a sigh of relief – at least for now. Terrell and Pat Graham have been in a three year court battle with the Texas Commission on Environmental Quality (TCEQ) to defend their property rights and they finally won.
The developers of Johnson Ranch, DHJB, picked a fight with the Graham family when it decided to amend its wastewater permit with TCEQ to dump their treated sewage onto the Grahams’ property. The Grahams naturally said ‘No way!’ So they challenged the amended permit in court and won. It took three years and much of their life savings to do it, but their win is more than a victory for their family. It’s a win for property rights for all Texans and it sets an important precedent to help those who are victims of unscrupulous developers.
To understand just how big a win this is, a little history is in order. As part of the Grahams’ challenge of the developer’s actions, they had to undergo a contested case hearing before an impartial administrative law judge. As part of that process, they made their case against TCEQ granting the developer’s permit as it would permanently and adversely effect the use and enjoyment of their property. The judge agreed and ruled in favor of the Grahams. But it wasn’t much of a victory because the TCEQ voted to approve the permit anyway. So, the Grahams had to appeal the TCEQ’s decision in court – all on their own time and dime. Now they won that case, too, and the court ruled the TCEQ denied the Graham’s due process and used improper procedure in granting the developer its amended wastewater permit.
So, what procedures didn’t they follow?
The TCEQ allowed the developer to introduce new evidence after the case was heard and the Grahams weren’t allowed to respond or rebut any of it or to cross examine the witness who introduced new evidence that contradicted the record. The Texas Supreme Court has ruled that an agency which delegates the fact finding of a case to an independent party, in this case the administrative law judge, cannot ignore the findings of that judge if they disagree nor can they substitute their own findings of fact. Yet, that’s precisely what the TCEQ did in the Graham’s case.
The Grahams enjoyed more good news as the Johnson Ranch Municipal Utility District (JRMUD), that was once controlled by and used by the developer to seek the Grahams property using eminent domain, dropped all litigation against the Grahams and agreed to pay a substantial part of the legal fees they incurred. So the last and final front of the Grahams three year nightmare revolves around the wastewater permit TCEQ granted the developer.
Now the question is, what will the TCEQ and the developer do? The TCEQ could finally do the right thing and deny DHJB the amended permit or they may appeal the decision to the Texas Supreme Court. Even if the TCEQ does the right thing, the developer could still appeal the decision on its own. So, the Grahams aren’t out of the woods yet. But the momentum and the facts are certainly in their favor. The TCEQ’s own standards for treated sewage are not proven to be safe for children or cattle. Neither the developer nor TCEQ has shown that the effluent will be safe for children or cattle and on that basis alone, the permit should ultimately be denied.
There are many other facts about this case that weigh heavily in favor of the Grahams, but DHJB has gone out of its way to spend millions on destroying the Grahams and trying to bleed them dry financially with unnecessary legal costs in order to get them to give up the fight. But if there’s one thing the Grahams are very good at, it’s fighting back. The developer didn’t count on that. DHJB could have dropped this vendetta long ago by simply discharging its own treated sewage onto its own property rather than trying to overbuild its tract and dump treated sewage onto its neighbor’s instead. Most landowners simply cannot continue a protracted legal fight to defend their private property rights, especially against the government – even a powerful state government agency. Through an amazing turn of events, the Grahams have. All Texans will have them to thank when the next developer comes knocking to bully them into submission.
Terri Hall is the founder of Texans Uniting for Reform and Freedom (TURF), which defends against eminent domain abuse and promotes non-toll transportation solutions. She’s a home school mother of ten turned citizen activist. Ms. Hall is also a contributor to SFPPR News & Analysis of the Conservative-Online-Journalism Center at the Washington-based Selous Foundation for Public Policy Research.