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2015-10-01

BCRAGD suit against BMA begins in district court

By Carolyn B. Edwards BCC Staff Writer

After almost two hours of hearing evidence and statements from Bandera County River Authority and Groundwater District (BCRAGD) and the Bexar Medina Atascosa Counties WCID, District Court Judge Rex Emerson called a stop to a hearing held Friday, Sept. 25, at the Bandera Justice Center. "You've given the court hundreds of documents," said Emerson. "I'll have to take this under advisement."
BCRAGD filed a lawsuit against BMA in October 2013, "to seek a Declaration of Rights of BMA against the Rights of the District [BCRAGD] within Bandera County as both a Water Control Improvement District and a Groundwater District."
BCRAGD General Manager David Mauk asserts that Texas law prohibits two water districts from having overlapping jurisdictions. The lawsuit is an attempt by the river authority to clarify that legal point as it applies to property in Bandera County.
BMA has been laying claim to all of Medina Lake's lakefront property below the 1084' elevation almost since its inception in December 1924, alleging that the water district has "record legal title to the lakefront below Elevation 1084." The WCID, which has irrigation rights to the water in Medina Lake, bases its claim on a warranty deed executed in 1917 from Joseph F. Spettle et al to The Medina Valley Irrigation Company (MICO), the company that built the dam. The deed designated the top of the dam at that time at 1,084 feet above sea level. Recent surveys have established that the actual height of the dam is 1,076 feet.
BMA-WCID has twice blocked attempts by the BCRAGD to change its election date by placing amendments on the change of election bills in the Texas Legislature. The amendments included wording that would have legislatively acknowledged BMA-WCID's alleged rights to property in Bandera County below the 1084 line.
In the first instance, BCRAGD opted to drop the bill. In the second instance, behind the scenes work by Bandera County's state representative Harvey Hilderbran and lobbyist Greg Ellis eliminated the amendment. However the election change bill was the victim of last minute legislative session maneuvering and failed to pass. The election change bill finally passed, with no amendments, during the 2015 session of the State Legislature.
In 2013, the BMA-WCID board voted to finance a study to determine if "illegal" wells are pumping water out of the steadily shrinking Medina Lake pool, and if upstream dams are reducing "the historic recharge of the basin to the lake."
In a Courier interview in the June 20, 2013 issue, BMA business manager Ed Berger asserted that BMA has historically had legal control of lakefront property below the 1084 line. He cited as an example an agreement between BMA and its Waterfront Property Owners Association reached in 2007, in which the WPOA members acquired a perpetual easement to their lakefront property. WPOA members pay BMA one dollar per linear foot of lakefront per year for that easement, Berger said Friday.
Berger said over 440 people have signed that agreement. According to testimony Berger gave at last week's hearing, that represents about 180 properties in Bandera County.
However, not everyone agrees that BMA has a clear title to all the property below the 1084 line. The Lake Medina Conservation Society (LAMCOS) is an organization founded at least in part to support lakefront property owners who disagree with BMA's position of entitlement.
BMA continues to make its claims to the land below the 1084 line in Bandera County despite the fact that the Texas Court of Civil Appeals ruled in 1981 that BMA has no jurisdiction in Bandera County.
In Case No. 16520, BMA v Wallace, the court also ruled that the warranty deed upon which BMA asserts its ownership, executed in 1917 from Joseph F. Spettle et al to The Medina Valley Irrigation Company, had an insufficient description of the disputed tract of land to be enforceable.
The main point of discussion during last week's hearing in the case centered on the jurisdiction issue. BCRAGD's attorney Greg Ellis said, "If BCRAGD doesn't have jurisdiction in that area [of property owned by BMA in Bandera County], we need to know that, so we can stop holding elections in that area or providing services there."
Attorneys for BMA contended that the court could not make decisions regarding hypothetical situations and that BCRAGD had no proof that BMA had ever actually encroached on the river authority's jurisdiction in Bandera County.
One of the most interesting parts of the hearing was when an attorney from BMA sat in the witness box playing the role of Mauk as the other attorney read questions from a long deposition taken from Mauk some time ago. The presentation was highly edited and the avatar did a poor job imitating the fast talking BCRAGD general manager.
In addition to staffers and board members from BCRAGD, a number of supporters of the conservation of Medina Lake by better management filled the courtroom Friday.