The Texas Supreme Court ruled the courts, not the Texas Commission on Environmental Quality (TCEQ), have the authority to adjudicate conflicting claims to ownership of surface water rights.
The decision in the case of Pape Partners Ltd. v. DRR Family Properties reverses the judgment of Texas’ 10th Court of Appeals and sends the case back to the trial court for further proceedings. The appeals court ruled that TCEQ has the exclusive jurisdiction to determine surface water rights, reconfirming the long-standing principle that parties must exhaust their administrative remedies before filing suit in district court.
Background
Lola Robinson owned two pieces of property in McLennan County: a farm and an adjacent 250-acre tract. In 1986, she obtained two water rights permits from TCEQ to irrigate from the Brazos River. In 1997, the TCEQ replaced the two 1986 permits with a single amended permit to water the farm and the adjacent tract of land.
The adjacent property changed hands several times until DRR Family Properties conveyed the land in 2012. In 2014, Glenn R. Pape and Kenneth W. Pape purchased the 1,086-acre farm from Robinson, which included the irrigation water rights recognized by Texas in certificates of adjudication.
The Papes submitted the ownership documentation to TCEQ to change the ownership of the water rights to their name. TCEQ notified all potentially interested landowners, including DRR, that they might own an interest in the water rights. TCEQ concluded that DRR held a portion of the water rights and reduced the amount the Papes could irrigate by 265 acres.
The Papes filed suit, seeking a declaration that they were the sole owners based on the 1997 permit. The trial court ruled the Papes did not exhaust their administrative remedies and granted DRR’s motion to dismiss the Papes’ claims.
The Papes filed an appeal arguing the court erred in granting DRR’s motion to dismiss. Lawyers for the Papes argued that property ownership is the sole jurisdiction of the courts and not TCEQ. Interpreting the Texas Water Code, the court ruled that while “the statute does not expressly grant exclusive jurisdiction over water rights to the TCEQ, the regulatory scheme behind surface water permits is pervasive and indicative of the Legislature’s intent that jurisdiction over the adjudication of surface water permits is ceded to the TCEQ.”
The appeals court concurred with the trial court, and the Papes filed a petition for review with the Texas Supreme Court. Amicus briefs were filed by the TCEQ, Texas and Southwestern Cattle Raisers Association (TSCRA), Texas Farm Bureau and Texas Water Conservation Association.
Ruling
Chief Justice Nathan L. Hecht wrote in the opinion, a “district court has subject-matter jurisdiction to resolve disputes unless the Legislature divests it of that jurisdiction.” By contrast, there is no such presumption that administrative agencies like the TCEQ have the jurisdiction to resolve disputes. Instead, such jurisdiction for an agency exists only when the Legislature grants such powers in clear and express statutory language.
DRR had argued the statutory language of the Water Code gives TCEQ general jurisdiction over “water rights adjudication” and enforcement of water rights. The court found that TCEQ’s jurisdiction over “water rights adjudication” was specific to the Water Rights Adjudication Act.
“Nothing in that act gives TCEQ authority to decide conflicting claims to water rights acquired with the title to land.”
TCEQ wrote in the amicus curiae brief its rights do not extend to “adjudicating private disputes simply because they involve water rights.” TCEQ asked the court to clarify, as the Water Code specifies the issuance of certificates of adjudication is an “administrative record-keeping function” and does not extend to property ownership.
TSCRA applauded the Texas Supreme Court’s decision, stating that property owners can continue to rely on the courts to determine ownership of water rights.
“Access to water is an essential part of raising cattle, both to sustain the livestock themselves and the pastures they graze upon, making water ownership one of our most important property rights,” said Arthur Uhl, TSCRA president. “I am very pleased with today’s decision because it gives Texas cattle producers the clarity and consistency they need when disputes arise.” — Charles Wallace, WLJ editor
