961 F.3d 340
5th Cir.2020Background
- Brazos Valley Groundwater Conservation District (BVGCD) adopted rules (Dec. 2004) classifying wells (Existing, New, Historic Use) and limiting production via spacing/acreage formula (Rule 7.1).
- City of Bryan drilled Well No. 18 on a 2.7-acre tract after the rules; BVGCD permitted it to produce 3,000 GPM (far above the 192 GPM cap for a New Well on 2.7 acres).
- Fazzino owns 26.65 acres near Well No. 18, claims City’s pumping will deplete groundwater beneath his land and that BVGCD misclassified Well No. 18 to exempt it from New Well limits.
- Stratta, a BVGCD board member, was prevented from requesting at a public meeting that the Board place the Well No. 18 status on a future agenda; he sued alleging First Amendment violation.
- District court dismissed the suits (Eleventh Amendment immunity, ripeness/Williamson, Burford abstention, and qualified immunity). The Fifth Circuit affirmed in part (Stratta) and reversed/remanded in part (Fazzino & BVGCD).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eleventh Amendment (immunity of BVGCD) | BVGCD is a local political subdivision accountable locally, so not an arm of the state | BVGCD is a state-created entity and thus an arm of the state entitled to sovereign immunity | Reversed — BVGCD is not an arm of the state under Clark factors (funding, local autonomy, scope); immunity rejected |
| Takings ripeness (Williamson requirement) | Fazzino’s takings claim is ripe in federal court; state-litigation requirement is no longer binding | Claim unripe under Williamson County because no final decision/state compensation sought | Reversed — Knick disavows Williamson County; federal takings claim is ripe |
| Burford abstention | Federal court should adjudicate §1983 constitutional claims; case does not threaten coherent state regulatory scheme | Abstention required because groundwater regulation raises unsettled state-law and complex policy issues | Reversed — Burford abstention inappropriate: federal interest and settled state law (Day) permit adjudication; abuse of discretion to abstain |
| First Amendment — Stratta (board member) | Stratta (signed in as a “member of the public”) may ask during public comment that Board place item on future agenda | TOMA limits: a board member is not a “member of the public”; notice rules bar non-agenda deliberation | Affirmed — Stratta, as a director, was governed by TOMA; §551.042 did not permit him to bypass notice requirement; First Amendment claim dismissed |
Key Cases Cited
- Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (federal takings claim ripe upon taking; Williamson County state-litigation rule overruled)
- Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012) (Texas law: landowner owns groundwater in place and takings doctrine applies)
- Clark v. Tarrant County, 798 F.2d 736 (5th Cir. 1986) (multi-factor test for arm-of-state Eleventh Amendment analysis)
- Vogt v. Bd. of Comm’rs, 294 F.3d 684 (5th Cir. 2002) (Eleventh Amendment arm-of-state factors and emphasis on funding)
- Burford v. Sun Oil Co., 319 U.S. 315 (1943) (Burford abstention doctrine for complex state regulatory schemes)
- Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (class-of-one equal protection standard)
- Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012) (TOMA restrictions characterized as permissible time/place/manner regulation)