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Sierra Club v. Andrews County

Court of Appeals of Texas, Eighth District, El Paso

December 6, 2013

SIERRA CLUB, Appellant,
v.
ANDREWS COUNTY, Texas, Andrews Industrial Foundation, and Andrews Chamber of Commerce, Appellees.

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[Copyrighted Material Omitted]

Page 713

Marisa Perales, Lowerre Frederick Perales Allmon & Rockwell, Austin, for appellant.

John L. Pool, Timothy J. Mason, Andrews, for appellees.

Timothy J. Mason, for Andrews County.

Before McCLURE, C. J., RIVERA, and RODRIGUEZ, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice.

Sierra Club appeals the denial of its motion to dismiss the claims asserted against it by Andrews Industrial Foundation, Andrews Chamber of Commerce, and Andrews County, Texas (Appellees). In a single issue, Sierra Club contends that Appellees' claims for declaratory judgment and tortious interference with a contract should have been dismissed pursuant to the Texas Citizens' Participations Act (Act). Concluding that Sierra Club is correct, we reverse and render, in part, and reverse and remand, in part.

FACTUAL AND PROCEDURAL BACKGROUND

This case is related to the on-going legal battle over the disposal of radioactive material in West Texas.[1] It began in 2004 when Waste Control Specialists, LLC (WCS) applied to the Texas Commission on Environmental Quality (TCEQ) for a license to construct and operate a facility in Andrews County, Texas for the disposal of low-level radioactive waste.[2] Sierra

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Club requested a contested case hearing before TCEQ on this application. TCEQ denied Sierra Club's request and approved the application in January 2009. Sierra Club sought judicial review of that decision by filing several suits in Travis County, Texas that were consolidated into one cause.

In May 2009, the citizens of Andrews County voted to issue $75 million in bonds related to the development and construction of the disposal facility. Andrews County utilized the bond funds to purchase land and assets associated with the facility that it then leased to WCS in December 2010. The facility began receiving low-level radioactive waste in late April 2012 when it received permission to do so from TCEQ. Approximately three weeks later, on May 14, 2012, a Travis County district court ruled that TCEQ had erred by denying Sierra Club's hearing request regarding WCS's application, reversed TCEQ's decision, and remanded the matter to TCEQ to allow Sierra Club to participate in a contested-case hearing.[3] Ten days later, Sierra Club filed a new suit against the TCEQ in Travis County challenging the Commission's decision authorizing WCS to begin accepting low-level radioactive waste.[4]

While that lawsuit was pending, Andrews County sued Sierra Club in late June 2012 in the state district court of Andrews County. The County— later joined by Andrews Industrial Foundation and Andrews Chamber of Commerce— brought a claim for tortious interference with the lease agreement between it and WSC and sought declaratory judgments regarding the validity of certain provisions of the lease and the applicability of a venue provision in the Texas Water Code. The County asserted that Sierra Club's repeated threats to seek injunctive relief prohibiting the shipment of waste to the disposal facility and to file other suits in Travis County established the bases for its claims.

Sierra moved for dismissal of Appellees' claims pursuant to the Act, sanctions, and attorney's fees and costs. After Appellees responded, the trial court heard the motion to dismiss and took it under advisement. Because the trial court did not rule on the motion within thirty days after the hearing, the motion was denied by operation of law.[5]

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See TEX.CIV.PRAC. & REM.CODE ANN. ยง 27.008(a)(West Supp.2013) (" If a court does not rule on a motion to dismiss under Section 27.003 [not later than the 30th day following the date of the hearing on the motion], the motion is considered to have been denied by operation of law and the moving party may appeal." ).

DISMISSAL UNDER THE ACT

In a single issue, Sierra Club contends that the trial court failed to comply with the Act in denying ...


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