Opinion
No. 81-1618.
May 31, 1983.
Britton White, Jr., Paul D. Phillips, Denver, Colo., Brown, Maroney, Rose, Baker Barber, Scott P. Kidd, Austin, Tex., for defendants-appellants.
Jerry Harris, City Atty., Terry Irion, Asst. City Atty., Austin, Tex., for plaintiffs-appellees.
Small, Craig Werkenthin, James Alsup, C.C. Small, Jr., Austin, Tex., for Lower Colorado River Authority.
Appeal from the United States District Court for the Western District of Texas; Lucius Desha Bunton, III, Judge.
Before RUBIN, RANDALL and JOLLY, Circuit Judges.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC [2] (March 28, 1983, 701 F.2d 420)
No member of this panel nor judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, the Suggestion for Rehearing En Banc is DENIED.
The panel has carefully considered the Petition for Rehearing. No new light has been shed on this case by the substantive arguments. As to the point made that the panel opinion cites to the interrogatories in its factual recitation and in support of its decision, we recognize that the interrogatories were not entered into the record. The case was tried on the stipulation of facts. The differences between the stipulation and the interrogatories are not significant in the context with which we are here concerned. The stipulated facts amply support the conclusion that the determination made by the Montana Department of State Lands was based on a lengthy, extensive investigation and was not a mere ministerial action by MDSL.
The Petition for Rehearing is, therefore, also DENIED.