On August 30, 2013, the Texas Supreme Court decided two cases involving the Episcopal Church of the United States. Last week, the U.S. Supreme Court refused to hear the cases, making the results final. (In case you’re wondering, this has nothing to do with oil and gas. The cases are of interest to me as an Episcopalian.) The two cases were basically a fight over ownership of church property. The parties engaged some of the most powerful firms and lawyers in the state, and multiple amicus briefs were filed. And the cases grapple with the right to free exercise of religion guaranteed by the First Amendment of the U.S. Constitution.
There are about 4.5 million Episcopalians in the U.S. — fewer than the number of Baptists, Methodists, Mormons, Lutherans, or Presbyterians. Episcopalians, however, are often some of the elite and most powerful members of society in the U.S. The Episcopal Church in America was founded in 1789 and is a part of the Anglican Communion, which has about 80 million members worldwide. The Church is associated with and has its roots in the Church of England, founded by Henry VIII when Pope Clement VIII refused to approve the annulment of Henry’s marriage to Catherine of Aragon.
The two cases decided by the Texas Supreme Court last year, The Episcopal Diocese of Fort Worth v. The Episcopal Church, and Masterson v. The Diocese of Northwest Texas, have their genesis in the consecration of Gene Robinson by the Diocese of New Hampshire in 2004 — the first openly gay bishop in the Episcopal Church. In response, the Diocese of Fort Worth voted in 2007 and 2008 to withdraw from the Episcopal Church and enter into membership with the Anglican Province of the Southern Cone, a group of Anglican churches in South America. And the Diocese claimed to still own the properties of the churches within the Diocese of Fort Worth. (Three churches in the Diocese did not agree with the Diocese’s action and withdrew from the Diocese; the Diocese transferred property used by those churches to them.)
Meanwhile, in San Angelo, the Episcopal Church of the Good Shepherd voted (53 to 30) to withdraw from the Episcopal Church and the Diocese of Northwest Texas and to form a new church, the Anglican Church of the Good Shepherd. And it claimed to own its church property.
In both cases, the trial court, after hearing the parties’ arguments, ruled in favor of the Episcopal Church, holding that the Fort Worth Diocese and the Church of the Good Shepherd could not keep church property when they left the Episcopal Church. The Texas Supreme Court reversed in both cases, holding that they could.
The Episcopal Church argued that it was a “hierarchical” church, meaning that it is structured with a central organization — the General Convention of the Episcopal Church — at the top, Dioceses — geographic regions headed by a Bishop — below that, and individual churches, or parishes, at the bottom. It argued that all church property is held by each individual parish church in trust for The Episcopal Church, and that any congregation which severed its ties with The Episcopal Church lost its right to manage the Church’s property. The Canons of The Episcopal Church provide that “All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitutions and Canons.” When Good Shepherd Church in San Angelo was formed, it agreed in its petition for formation that its members were “conscientiously attached to the Doctrine, Discipline and Worship of the Protestant Episcopal Church in the United States.”
The majority opinion in the Good Shepherd case agreed that the First Amendment to the U.S. Constitution “severely circumscribes the role that civil courts may play in resolving church property disputes,” and prohibited civil courts from inquiring into matters concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of a church to the standard of morals required of them.” It quoted the U.S. Supreme Court’s prior decision that “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them.”
The majority of the court nevertheless held that title to church property was a matter of state law, not ecclesiastical law, and that, under Texas law, the church properties belong to the individual churches and are not held in trust for the benefit of The Episcopal Church. Two justices dissented.
Disputes within church organizations arise from time to time, resulting in schisms and fights over church properties. Protestant churches divided during the Civil War. Churches have disagreed over ordination of women. Last week, the Anglican Communion voted to allow women to be appointed as bishops.
The relation between church and state also pops up in other ways — for example, the recent dispute over application of provisions of the Affordable Care Act to church-affiliated hospitals. Courts will continue to struggle with these issues as long as the Constitution stands and citizens continue to worship their gods.
The 520,000-acre Waggoner Ranch is for sale for $725 million — about $1,400/acre. It is said to be the largest contiguous ranch in the U.S., and has been owned by the Waggoner family for more than 100 years.
Ownership of the Waggoner Ranch has been in litigation for more than 20 years. The suit was originally filed in 1991 by Electra Waggoner Biggs, one of the heirs, who died in 2001. Electra was a sculptor; her sculpture of Will Rogers on his horse Soap Suds is on the Texas Tech University campus.
The colorful history of the Waggoner family was documented in an article by Gary Cartwright in Texas Monthly in 2004. It’s a great read.
The ranch has its own website, www,waggonerranch.com. The ranch is located in six counties — Archer, Foard, Knox, Baylor, Wichita and Wilbarger. Here is a map of its boundaries. Of course it has oil, which has held the ranch together, but according to Cartwright the ranch has no groundwater.
Recently my son was watching the movie “Holes,” a great adventure movie based on a book by the same name written by Louis Sacher in 1988. Sacher also wrote the screenplay for the movie, which came out in 2003. In the story, Stanley Yelnats IV, a teenager, is sent to Camp Green Lake, a juvenile detention camp, for stealing a pair of sneakers. Green Lake was a dried-up lakebed in Texas where the camp detainees were forced by the evil warden (played by Sigourney Weaver) to dig holes looking for a buried treasure. It’s a great growing-up story.
The movie reminded me that Green Lake is a real place in Texas that has its own fascinating legal history.
Green Lake is the largest natural fresh-water lake in Texas. Located in Calhoun County near the coast, it covers an acre of about 10,000 acres.
Historically, the lake was filled by overflow from the Guadalupe River, and the lake sometimes dried up during times of drought. Its average depth when full is about 4 feet.
Before the Civil War the area was settled by ranchers and cotton farmers and grants were made of the surrounding land. A small settlement, Green Lake, was established near the lake.
Sometime before 1917, the landowners surrounding Green Lake sued the State of Texas contending that their surrounding grants extended to the center of the lake, and that the State did not own title to the bed of the lake.
In 1917, the Austin Court of Appeals held that the bed of the lake belonged to the State. Welder v. State, 196 S.W. 868 (1917). “Under the law as it now exists in this state, Green Lake cannot be sold …, but is under the jurisdiction of the game, fish, and oyster commissioner….”
In 1913, while Welder v. State was pending, Elmer Yates made application to the Texas General Land Office to buy the bed of Green Lake. In 1918, after the Welder case was decided, the Land Commissioner, James Robison, sold the bed of the lake to Yates. His decision was apparently based on evidence presented by Yates that the lake wasn’t really a lake.
In the 1940’s, Price Daniel, then Texas’ Attorney General (and later Governor and Supreme Court Justice), sued the successors to Yates to recover the State’s title to the bed of Green Lake, arguing that the Land Commissioner had no authority to sell it in 1918. In Texas at the time, the Land Commissioner had authority to sell state land only if it was dedicated to the Public School Fund; Daniel argued that under Texas law the beds of lakes and rivers are not Public School Lands and not subject to sale. In State v. Bryan, 210 S.W.2d 455 (1948), the Austin Court of Appeals upheld the sale. Its decision was based on a statute that provided that, if a sale was made by the state “under color of law,” it could not be challenged unless suit was brought within one year from the date of the sale. The court concluded that the Land Commissioner’s sale was “under color of law” because there was evidence considered by the commissioner that the lake was in fact dry most of the time. Yates submitted evidence that the bed of the lake was “bone dry” in 1895 and again in 1900, and that between 1900 and 1912 it was sometimes flooded and sometimes dry, and was “completely dry” between 1917 and 1918. “There certainly was a fact question at least as to whether the area was the bed of a navigable [lake], a non-navigable lake, or merely overflow land. Even under the factual situation detailed in the Welder opinion, the conclusion therefrom that the lake was navigable was, to say the least, questionable.”
So two courts ruled on the legal status of the lake, one holding that it was a lake and the other that it was not. Here’s a photo of Green Lake today from Google Earth:
But wait, there’s more.
In 1988, the Texas Supreme Court decided the case of Indianola Company v. Texas Water Commission, 749 S.W.2d 771 (Tex. 1988). In that case, the then owner of the lands that were the bed of the area called Green Lake (that wasn’t really a lake) sued to determine who owns the water in the lake. In Texas, the State owns all waters in lakes and rivers, but “storm water, floodwater, and rainwater of a depression” can be captured and owned by private landowners. “We agree that Green lake is a ‘lake’, and thus public water under Tex. Water Code section 11.021,” declared the court.
Thus far, I have found no opinion determining legal title to the treasure that Stanley Yelnats IV found in the bed of the lake. For that, you’ll have to watch the movie.
In the later chapters of The Quest, Daniel Yergin summarizes the history of the internal combustion engine. He begins by recounting a meeting of Henry Ford and Thomas Edison at a convention in August 1896, at which they sat together. Ford had just built his first gasoline-powered “quadricycle.” He sketched out his design to Edison. Edison told him that the problem with electric-powered vehicles is that they “must keep near a power station.” Edison told Ford to stick with the internal combustion engine.
The internal combustion engine was invented by Nikolaus Otto. His “Otto cycle” engine, developed in 1876, is still recognizable in our engines today: valves, a crankshaft, spark plugs, and a single cylinder. Otto teamed with Karl Benz to produce automobiles, and Gottlieb Daimler was in close competition. (In the twentieth century, the two companies merged, though Benz and Daimler never met each other.) By the 1890’s Daimler was distributing his cars in America.
Germany competed with France — with the French engineers Armand Peugeot and Louis Renault — for supremacy in the development of the automobile. Britain was initially left behind because its railway industry, fearing competition, got Parliament to pass the Red Flag Acts that limited “road locomotives” to four miles an hour in the country and two miles an hour in cities — as well as requiring a man carrying a red flag to walk in front of road vehicles hauling multiple wagons.
At the turn of the last century, the internal combustion engine was well behind other technologies, including steam and electricity, in the auto industry. In 1900, most of the 2,370 cars in New Yor City, Boston and Chicago were either seam cars like the Stanley Steamer or electrics. But electrics faced the problem of battery life — just as they do today. Edison worked on improving batteries, but in 1908 Ford introduced his first Motel T, priced at only $825. A few years later Ford introduced the assembly line, and the rest, as they say, is history. By 1910, the race between electric and gasoline was over.
The automobile also saved the oil industry. Until Americans fell in love with their car, gasoline was mostly a byproduct of the refining process, which produced kerosene for lighting. Just when electricity was spelling the end of the kerosene lamp, the automobile saved the day, opening a new market for the oil industry. The first gas staion, or “station for autoists,” opend in St. Louis in 1907. By the end of the 1920’s, there were hundres of thousands of gas stations. Americans were hitting the roads.
The internal combustion engine has dominated the transportation industry because, as Yergin says, “it turned out that gasoline was a very effective energy packet when poured into an internal combustion engine.” Ten gallons of the stuff could carry 2,000 pounds 100 or even 200 miles.
To understand the power of gasoline, a little basic chemistry is necessary. (A very little – as a lawyer, I’m skating close to the edge here.)
Gasoline is composed of different mixtures of hydrocarbons. Hydrocarbons are molecules that contain carbon and hydrogen atoms. The simplist hydrocarbon molecule is methane (the natural gas you burn in your stove), which contains one carbon and four hydrogen molecules – CH4. Ethane, also a gas, contains two carbon atoms and six hydrogen atoms – C2H6. Propane contains three carbon atoms and eight hydrogen atoms– C3H8. Butane contains four carbon atoms and ten hydrogen atoms – C4H10. Methane, ethane, propane and butane are all gases at atmospheric pressures. But as the hydrocarbon chain becomes longer, it is easier to compress these gases into a liquid. Butane and Propane are sold by the gallon, under pressure. Methane requires much higher pressures to condense into a liquid, making it technologically more difficult to use it as a transportation fuel.
Pentanes, hexanes, heptanes and octanes are hydrocarbons with five, six, seven and eight carbon atoms. These hydrocarbons tend to be liquid at atmospheric temperatures and pressures. They make up the components of gasoline.
When hydrocarbons ignite, the chemical reaction produces carbon dioxide, water, and energy. The formula for combustion of methane is CH4 + 2 O2 → CO2 + 2 H2O . A methane molecule reacts with two oxygen molecules to produce a molecule of carbon dioxide and two molecules of water. In the process, energy is released. The same basic chemistry results from the burning of gasoline in the internal combustion engine.
Competing technologies attempting to break into the transportation fuel economy — electric, hybrid, hydrogen, biofuels, natural gas — all have difficulty matching the efficiency and convenience of the internal combustion engine, because of the high energy content and convenience of gasoline. Despite huge investments and incentives by the auto industry and governments, no clear alternative to gasoline has yet emerged. But Yergin believes that gasoline’s dominance may soon wane:
One way or the other, oil’s almost total domination over transportation will either be whittled away or more drastically reduced. …
[O]ne near certainty is that the transportation system of today will evolve significantly over the coming decades. Energy efficiency and lower emissions will continue to be major preoccupations. If issues of cost and complexity and scale can be conquered, the battery will begin to push aside oil as the motive force for some of the world’s automotive transportation. But the internal combustion engine is unlikely to be shunted aside easily. The new contest may, for some time, be less decisive than when Henry Ford used his Model T to engineer victory for the internal combustion engine against the electric car.
But the race has certainly begun. The outcome will do much to define our energy world in the decades ahead in terms of where we get our energy, how we use it, and who the winners will be. But it is much too soon for anyone to take a victory lap.
I recently came across a study just published by a group of sociology professors testing our ability to make decisions based on facts. It takes a little explanation, but it is worth looking at. The question they asked: Why does public conflict over societal risks persist in the face of compellng and widely accessible scientific evidence? To find out, the professors asked 1,111 participants a series of questions designed to gauge their political views, and then they were asked to solve a word math problem. Half of the participants were given the following problem:
The correct answer? Patients who used the skin cream were more likely to get worse than those who didn’t. Roughly 1 in 3 patients who used the skin cream got worse, but roughly 1 in 5 of those who didn’t use the skin cream got worse. Solving the problem requires skill in “numeracy”, basically the ability to solve math problems. (For the study, the data were reversed for half of the participants and presented so that they suggested that the skin cream did work.) 59% of those in the study got the answer wrong. The more “numerate” the study participants were, the more likely they were to get the problem right. That was true whether the participants were liberal Democrats or conservative Republicans.
The other half of the participants were given a different problem: they were asked to determine the effectivenes of laws “banning private citizens from carrying concealed handguns in public.” Participants were given data about cities that had or had not passed concealed carry bans, and where crime in these cities had or had not decreased. The numbers used in this problem were exactly the same as those in the skin-rash problem. The results are shown below:
Even though the numbers in both problems were exactly the same, the answers of participants were quite different. This time, the political leanings of the participants had a significant impact on their responses. Liberal Democrats did much better on the gun problem when the right answer was that crime decreases with gun control; conservative Republicans did much better when the right answer was that crime does not decrease with gun control. Here are the results shown graphically:
In other words, more knowledge (numeracy) does not increase people’s ability to reason when it comes to politically charged issues like gun control. People let their biases get in the way.
Here are two good articles on the problem of rational decision-making, commenting on the study:
So what does this have to do with oil and gas? It reminds me of the debate over hydraulic fracturing. It appears that the more those in favor of fracing are presented with facts showing its dangers, the more they deny those facts and argue it is safe; and the more those opposed to fracing are presented with facts showing its benefits, the more they argue in opposition. The same could be said of global warming, the Affordable Care Act, the presence of weapons of mass destruction in Iraq, abortion rights, gay marriage, evolution, etc.
Leon Festinger, a famous Stanford University psychologist, said that “A man with a conviction is a hard man to change. Tell him you disagree and he turns away. Show him facts or figures and he questions your sources. Appeal to logic and he fails to see your point.” Changing one’s point of view on difficult politically charged issues is difficult.
A group called “Ark Encounter” is raising money to construct a replica of Noah’s Ark in Williamstown, Kentucky, using the exact dimensions and directions found in Genesis. It will be more than 500 feet in length, three stories high, and built with planks, beams and pegs. When asked how they were going to get the more than 2 million species of animals now on the planet in the ark, they say that, in Noah’s time, there were only some 2,000 types of animals, and that all animals today descend from those original animals. Fitting myth to reality is no problem for believers. Changing their minds about the facts is more of a problem.
State Representative Harold Dutton, Jr. has introduced a bill in the Texas Legislature to amend Texas’ Open Beaches Act. What does this have to do with oil and gas, you may ask? Read on.
Last year, the Texas Supreme Court decided a case interpreting the Open Beaches Act, Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012). The case arose because of Hurricane Rita. Carol Severance owned two beachfront houses on Galveston Island, as rental properties. Because of Hurricane Rita, erosion shifted the beach vegetation line farther landward, causing both homes to be located on the dry beach facing the Gulf of Mexico. As a result, under the Open Beaches Act, the Commissioner of the General Land Office informed Severance that she would have to remove the houses and offered her $40,000 assistance to relocate or demolish them. Severance then sued the Commissioner in US District Court claiming that the Commissioner’s action constituted a taking of her property without compensation under the Fifth Amendment of the US Constitution. Her case was dismissed, and she appealed to the 5th Circuit Court of Appeals. That court, after analyzing the case, concluded that Texas law was unclear on the matter, and it submitted “certified questions” to the Texas Supreme Court.
To understand the significance of Severance v. Patterson, it is necessary to go back a ways, to the Texas Supreme Court case of Luttes v. State, 324 S.W.2d 167 (1958). In that case, Mr. Luttes was claiming to own about 3,400 acres of “mud flats” lying on the edge of the Laguna Madre in Cameron County. The State of Texas holds title to all submerged lands along the coast, including lands within the Laguna Madre, the long, shallow lagoon that runs between the mainland and Padre Island along much of the Texas Gulf Coast. Mr. Luttes contended that these mud flats were part of his “dry land”, and not “submerged land” belonging to the State.
The original grant within which Mr. Luttes’ land lay was, like much of the land along the Texas Gulf Coast, originally granted by the King of Spain when Texas was a Spanish possession. When Texas gained its independence, it recognized the validity of land grants previously made by Spain and Mexico within its territory. Issues regarding title to original grants in Texas are decided based on the law in effect at the time the grants were made – in Mr. Luttes’ case, the law of Spain. So, in deciding Mr. Luttes’ case, the Court had to determine how the boundary between land and the sea should be determined under Spanish law in effect at the time of the original grant. The case was the first time the Texas Supreme Court had addressed this question.
The Spanish law addressing this question, as recognized by the Court, is known as Las Siete Partidas, or “The Seven Parts,” compiled in the 13th century. Spanish law declared the shore of the sea to be public property, available for all to use. A part of that law says: “and all that place is called shore of the sea insomuch as it is covered by the water of the latter, however most it grows in all the year, be it in time of winter or of summer.” Because of its Spanish heritage, Texas has long considered its beaches public property — unlike many states whose antecedent law is the common law adopted from England, which holds that the dry beach above the ordinary reach of the tide is private land.
The Court in Luttes decided to adopt a “scientific” approach to mark the boundary between the sea and the land, borrowing from a US Supreme Court case decided in 1935 that addressed the question of the location of the shore boundary in California. The Court held that the boundary was “the line of mean higher high tide,” determined by the average of the reach of the tide each day during a seven-year tidal cycle.
The Luttes decision caused a huge controversy when it was decided, because it meant that the “dry beach,” the area between the “wet beach” and the line of vegetation — what the public understood to be its public beach — was in fact private property. If the public wanted to use the beach, it would have to wade in the water. As a result, the Legislature passed the Open Beaches Act. That Act declares that the public has an easement over the dry beach for its public use. And, since it was well known that beaches often erode, leaving homes and other structures originally built behind the line of vegation out on the beach, the Act created a mechanism for requiring removal of those structures. Private owners are never happy when this occurs, and there have been numerous cases involving the application of the act since it was passed, but until last year it was generally believed that the Open Beaches Act had solved the problem created by Luttes, at least as far as the public’s use of the beaches was concerned. That is, until Severance v. Patterson.
But what, you ask, does this have to do with oil and gas? Be patient.
So, in Severance v. Patterson, the 5th Circuit Court of Appeals asked the Texas Supreme Court three questions. The first question was
“Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied?”
In other words, does the public’s easement along the beach move whenever the vegetation line changes, whether by gradual erosion or sudden changes caused by storm events? The Court’s answer: No. In the Court’s majority opinion the court, clothing its opinion in the language of “private property rights,” held that “[a]lthough existing public easements in the dry beach of Galveston’s West Beach are dynamic, as natural forces cause the vegetation and the mean high tide lines to move gradually and imperceptibly, these easements do not spring or roll landward to encumber other parts of the parcel or new parcels as a result of avulsive events.” In other words, if an owner’s house becomes stranded on the beach because of an “avulsive” event — a storm — the public has no easement over the newly created beach and cannot force the owner to remove the house. Three justices dissented from the majority opinion, arguing that:
Texas beaches have always been open to the public. The public has used Texas beaches for transportation, commerce, and recreation continuously for nearly 200 years. The Texas shoreline is an expansive yet diminishing public resource, and we have the most comprehensive public beach access laws in the nation. Since its enactment in 1959, the Texas Open Beaches Act (“OBA”) has provided an enforcement mechanism for the public’s common law right to access and to use Texas beaches. The OBA enforces a reasoned balance between private property rights and the public’s right to free and unrestricted use of the beach. Today, the Court’s holding disturbs this balance and jeopardizes the public’s right to free and open beaches.
Because of continued erosion along the Texas shore and gradually rising water levels, it is feared that the public’s right to use Texas beaches will continue to be eroded — a direct result of the Texas Supreme Court’s rulings in Luttes and Severance.
Representative Dutton’s House Bill 325 is an attempt to overturn Severance by declaring that the “public beach” is “any beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico, as the line of vegetation may shift over time as a result of avulsive events or other forces of nature.” It is not clear whether his bill has any chance of passage, or whether, if passed, the Court would be willing to recognize the public beach as the bill re-defines it.
So, what does all of this have to do with oil and gas?
The boundary between the sea and the land marks not only the line between the State’s ownership of the seabed and private upland, but also the line of the State’s ownership of minerals under submerged land. Texas owns title to minerals under the Gulf of Mexico extending three marine leagues from the shore. But a large portion of Texas’ submerged lands lie within the Laguna Madre, which stretches from Brownsville to Matagorda Bay.
Laguna Madre is in most places very shallow, two feet or less in depth. Wind-driven tides cause huge areas of the laguna to be sometimes dry, sometimes inundated. The Intracoastal Waterway, constructed by the US Army Corps of Engineers in the 1930’s, runs the length of the laguna and allows for navigation.
There is one area of the laguna, called the “land cut,” located in Kenedy County, which is often totally exposed, from the mainland to Padre Island. It serves to separate the northern and southern segments of the Laguna Madre. In some seasons of the year it is covered with water – in other seasons it is dry mud flats. Below is an image from Google Earth of the land cut. The entire area encompasses about 35,000 acres of land.
Beginning in about 1996, our firm represented the Texas General Land Office in a dispute with the John G. and Marie Stella Kenedy Memorial Foundation over title to the land cut. The Kenedy Foundation owns the lands to the west of the land cut, given to the Foundation by Sarita Kenedy East. The Ranch encompasses some 235,000 acres, one of the largest ranches in Texas. The Foundation argued that the land cut, under the rules for location of the shore boundary established by the Texas Supreme Court in Luttes, was dry land and part of the original Spanish and Mexican grants making up the Kenedy Ranch. The State argued that the land cut – sometimes dry, sometimes inundated – was part of the bed of the Laguna Madre, owned by the State. The fight, of course, was not over the land, a vast mud flat wasteland, but over the mineral rights to 35,000 acres along the Texas Gulf Coast.
After a jury trial, the trial court entered judgment holding that the State owned the disputed land. That judgment was upheld by the Austin Court of Appeals. In December 2000, the Texas Supreme Court affirmed. But the Kenedy Foundation asked the Court to reconsider, and in 2001 the Court agreed to rehear the case. During the interim, several supreme court seats on the court changed hands. Finally, on August 29, 2002, the Court withdrew its prior opinion and issued an opinion reversing the courts below and holding that the entire disputed area belongs to the Foundation. Three justices dissented.
As a result of the Kenedy case the map of the Kenedy Ranch as now shown on its website now looks like this:
In effect, the Court ruled that the “shore” of the Laguna Madre adjacent to the Kenedy Ranch lies along the edge of the Intracoastal Waterway, a man-made channel.
I’m sure that the Court in 1958, when it decided Luttes, had no idea that it was giving away thousands of acres of submerged land in the Laguna Madre, or allowing the public’s access to beaches to disappear. Nevertheless, this has been the result. With the introduction of House Bill 325, the fight over the coastal lands and beaches along the Texas shore continues.
A footnote: The author of the Luttes opinion was Justice St. John Garwood. He was the father of Will Garwood, at one time a member of our firm and later a judge on the 5th Circuit Court of Appeals. St. John Garwood was of counsel to our firm after he left the court, and he was still coming to the office when I joined our firm in 1978. Justice Garwood’s most notable opinion during his time on the court was Luttes. His wife, Ellen Clayton Garwood, was a member of the prominent Clayton family of Houston and was known for having donated $2.5 million to conservative groups backing the Nicaraguan contras during Ronald Reagan’s presidency. She testified in support of Lt. Col. Oliver North in the contra hearings before Congress. Her father was William L. Clayton, who served as Under Secretary of State in the Truman administration.
I love graphs. The Energy Information Administration, the guys that crunch numbers on all things energy-related, have come up with a new way to let us graph-lovers play with their data. The new interface is in its beta testing version, and you can play with it here. The site allows you to create your own graphs by selecting the data you want to depict. This allows you to compare two or more sets of data in graphic form. Here are some examples:
Try it for yourself. It’s fun, and you may learn something in the process.
The Texas Supreme Court Historical Society has published an article by David A. Furlow on the life of John Hemphill, the first Chief Justice of the Supreme Court of the State of Texas. John Hemphill was a remarkable character, one of the pioneering men and women who settled in Texas during its birth as a nation and then a state.
John Hemphill was born in 1803 in South Carolina to a Presbyterian minister and his wife; went to Jefferson College (now Washington and Jefferson College) in Washington, Pennsylvania; began his legal studies “reading the law” in Columbia, South Carolina in 1829; practiced law in Sumter, South Carolina; served in the U.S. Army in the Seminole War of 1836 in Florida; and moved to Texas in 1838, at the age of 35, two years after
Texas won its independence from Mexico. He set up his law practice in Washington-on-the-Brazos.
In 1840, President Mirabeau B. Lamar appointed Hemphill to the Texas Supreme Court. He also served as a judge of the Fourth Judicial District. On December 5, 1840, he won election to replace Thomas J. Rusk as Chief Justice of the Supreme Court. In 1846, when Texas joined the Union, Governor J. Pinckney Henderson appointed Hemphill the first Chief Justice of the new Texas Supreme Court, where he served until November 1858. He resigned from the Court to take Sam Houston’s place as United States Senator, when Houston resigned because he refused to support Texas’ withdrawal from the Union. After Texas joined the Confederacy, Hemphill served in the Provisional Confederate Congress, and he died of pneumonia in Richmond, Virginia, in January 1862.
On March 19, 1840, Hemphill presided over an unusual and historic meeting between Comanches and Texas representatives seeking to make peace with the Chomanche tribes, held in San Antonio. The meeting did not go well. The Comanches brought with them a sixteen-year-old-girl, Matilda Lockhart, who had been abducted by the Comanches in 1838. Mary Ann Maverick (a member of the Maverick family that gave their name to unbranded cattle)
was there and described Matilda: “Her head, arms and face were full of bruises and sores, and her nose [was] actually burnt off to the bone–all the fleshy end gone, and a great scab formed on the end of the bone. …. She told a piteous tale of how dreadfully the Indians had
beaten her, and how they would wake her from her sleep by sticking a chunk of fire to her flesh, especially to her nose.” Matilda’s treatment did not endear the Comanches to the Texans present. Matilda, who understood the Comanche language, told the Texans that the Comanches held another fifteen Texas hostages, whom the Comanches intended to
ransom one by one to the Texans for the highest price they could get. The result was a fight, later named the Council House Fight, in which several of the Comanches were killed. Hemphill, attacked by one
of the chiefs, pulled a “long knife from under his judicial robes and slew his antagonist.” True frontier justice. The result of this failed attempt at peace-making was a long-running war between Texans and Comanches that was not finally concluded until after the Civil War.
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