Opinion
No. 04-06-00762-CV.
Delivered and Filed: May 9, 2007.
Appealed from the 216th Judicial District Court, Bandera County, Texas, Trial Court No. CVOC-06-209, Honorable Stephen B. Ables, Judge Presiding.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
REVERSED AND RENDERED; TEMPORARY INJUNCTION DISSOLVED
Appellees' motion for rehearing is denied; we withdraw our opinion and judgment dated April 18, 2007 and substitute this opinion and judgment in its place.
This appeal illustrates the often difficult decisions that must be made when the demands of roadway safety are juxtaposed against the aesthetics of natural beauty. A temporary injunction was granted to appellees, Jacquelynn R. Kyle and Intervenors Herb Sarkisian and Kathryn Kyle (collectively referred to as "Kyle"), precluding appellant, Texas Department of Transportation (TxDOT), from removing or damaging pecan and black walnut trees located at the intersection of Highway 16 and Kyle Ranch Road in Bandera County. TxDOT appeals the trial court's order, asserting that the court abused its discretion in denying its plea to the jurisdiction and in granting the temporary injunction because Kyle has no protected property interest in the trees; thus, she has no right to due process and cannot establish a probable right to relief as a prerequisite for the injunction. In addition, TxDOT asserts it is immune from any claim for attorney's fees. Because we conclude the trial court erred in denying TxDOT's plea to the jurisdiction, we reverse the judgment of the trial court, set aside the order granting the temporary injunction, and render judgment dismissing the cause for want of jurisdiction. Factual and Procedural Background
. Because we are dismissing the cause for want of jurisdiction and dissolving the temporary injunction, it is unnecessary to address TxDOT's issue on attorney's fees.
The portion of State Highway 16 (SH 16) at issue is a two-lane, rural highway with 10-foot lanes and no shoulders, situated in Bandera County, Texas, and running between the towns of Medina and Bandera. TxDOT is performing a state and federally-funded construction project to widen SH 16's existing lanes to 12 feet and to add 5-foot shoulders on either side of the road; the project is intended to bring this portion of SH 16 into compliance with current TxDOT guidelines, which require minimum 11-foot lanes with 1-foot shoulders and a 7-foot clear zone. The construction project will be carried out completely on State-owned property.
In late 2005, TxDOT held a Rural Transportation Program meeting open to the public and advertized in local papers to present the construction projects in Bandera County. During the development of the SH 16 project, TxDOT performed an environmental study to identify potential effects of the road works project and recognized several large pecan trees on State property at the intersection of SH 16 and Kyle Ranch Road. Initially, TxDOT anticipated the removal of five trees. TxDOT estimated that these five trees constituted less than one-half acre of overhead coverage within the corridor, and proposed to plant ten trees on the State's land in the vicinity. The trees are located in a scenic pecan grove, which Bandera residents agree is a unique natural formation. The trees extend over the roadway, forming a canopy that shades the drivers below. Tourism is Bandera's primary industry, and the pecan grove is well-known throughout the area.
TxDOT determined the project was a Categorical Exclusion, meaning further environmental study was unnecessary. See 40 C.F.R. § 1508.4 (West 2007) (defining "categorical exclusion" as "a category of actions which do not individually or cumulatively have a significant effect on the human environment"). In February 2006, the Environmental Affairs Division of TxDOT approved the project as a Programmatic Categorical Exclusion, and TxDOT was allowed to move forward with the project development.
In early May 2006, Kyle contacted TxDOT about the project. TxDOT employees subsequently met with Kyle several times. In an attempt to preserve more trees, TxDOT implemented a specially designed guard-fence in front of the trees and re-routed wider shoulders behind the trees for bicyclists. This revamped version of the project requires the removal of only two of the pecan trees. Kyle and the intervenors admit that these two trees are not situated on their property. Furthermore, all parties concede that the entire pecan grove is located on the State right-of-way.
On June 1, 2006, Kyle filed an original petition for injunction seeking to prevent TxDOT from removing the two trees and challenging TxDOT's designation of the project as a Categorical Exclusion. Kyle obtained a temporary restraining order preventing the State from removing any trees from the intersection of SH 16 and Kyle Ranch Road. In response, TxDOT filed a plea to the jurisdiction based on sovereign immunity and also asserted that Kyle had no vested property interest in the trees. Kyle subsequently amended her pleadings, alleging that the trial court had jurisdiction under the Texas and United States Constitutions, the Federal Administrative Procedures Act (APA), the National Environmental Policy Act (NEPA), and the Texas Administrative Code.
On June 26, 2006, a hearing was held on TxDOT's plea to the jurisdiction and Kyle's request for a temporary injunction. In total, eleven witnesses testified at the injunction hearing. Several witnesses testified that the removal of the two trees would have adverse effects on the surrounding vegetation. Norris Warner, an arborist, testified that the removal of the two trees could lead to the eventual destruction of the entire pecan grove because soil compaction caused by the construction will limit oxygen that is beneficial to the surrounding trees. Texas Forest Service employee Mark Peterson stated that the highway construction will have adverse effects on the trees in the pecan grove, which could occur one to twelve years after the initial construction.
Other witnesses testified that there was no need for a safety improvement project because the area was already safe. Intervenor Kathryn Kyle testified that she travels on SH 16 when going to and from her family-owned ranch located five miles from the pecan grove and has never had any trouble traveling on that stretch of road. Charlie Seale, a former highway patrolman, testified that in his opinion, widening the highway would not make the area safer, but would increase vehicle speed and cause more accidents. Similarly, two Bandera insurance agents testified that the area was not unsafe.
Jacquelynn Kyle testified that although the trees are not located on her property, they are near the 6,000-acre ranch that her husband's family owns and that the pecan grove, also referred to as the "pecan bottom," is peaceful and beautiful. Robert Aycock, intervenor Herb Sarkisian's ranch manager, testified that he lives in close proximity to the pecan grove, which he described as "irreplaceable." Aycock testified that Sarkisian owns 642 acres of land in Bandera County, including property on both sides of SH 16 where the pecan grove is located. Aycock stated that if the grove was tampered with or damaged, the grove would be negatively impacted and "it would just take away not only the beauty but aesthetics, and it would destroy the — what economic value that it might have towards the county." Aycock agreed that the two trees at issue are located on the State right-of-way.
Elvia Gonzalez, TxDOT Environmental Affairs Division, was called as an adverse witness, and testified that the project was approved as a Programmatic Categorical Exclusion by the Federal Highway Administration because there was no significant impact on any natural, cultural, recreational, historic, or other resource, and there was no significant environmental impact on the area.
Two witnesses testified on behalf of TxDOT. Michael Coward, an engineer, testified that the Texas legislature had sold $600 million in safety bonds to TxDOT to "look at narrow two-lane roadways that have a history of run-off-the-road accidents and look to see what we could do to make those roadways safer." Coward's district surveyed roads in Kerr and Bandera counties and determined that enough accidents had occurred on SH 16 to qualify it for state money. Coward testified that the project originally proposed to remove seven to nine trees, but TxDOT had worked toward a solution that meets minimum safety standards while saving as many trees as possible. Mark Marek, director of TxDOT Design Division, testified that the narrowness of SH 16 causes road distress. He stated that the average daily traffic count on this stretch of SH 16 varies from 600 to 1200, which requires a minimum lane width of 11 feet, a minimum shoulder width of one foot, and a horizontal clearance of 7 feet, as stated in TxDOT's Roadway Design Manual.
At the conclusion of the hearing, the trial court stated that it would grant the temporary injunction. The next day, TxDOT filed a Notice of Removal in federal district court. Ultimately, the federal district court determined that the cause should be remanded back to the state court. See Kyle v. Tex. ex rel. Tex. Dep't of Transp., No. SA-06-CV-0566-RF, 2006 WL 3691204, at *3 (W.D. Tex. Oct. 31, 2006) ("NEPA does not provide a private right of action for individuals seeking to enforce Environmental Impact Statement Procedural requirements;" "review under the APA is . . . available only against federal agencies"). Following remand, the trial court entered an order denying TxDOT's plea to the jurisdiction and granting the temporary injunction, temporarily enjoining TxDOT from "[d]estroying, removing, cutting down and/or in any other way damaging the pecan and black walnut trees located along State Highway 16 at the intersection of Kyle Ranch Road, between Bandera, Texas and Medina, Texas, and/or any such trees within one-half ("mile from said intersection." Bond was continued at $1000 and the case was set for jury trial. This accelerated appeal followed. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(4), (8) (Vernon Supp. 2006). Plea to the Jurisdiction TxDOT filed a plea to the jurisdiction arguing that the trial court lacked subject matter jurisdiction to adjudicate this matter. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam) (subject matter jurisdiction may be challenged by a plea to the jurisdiction). Whether a court has subject matter jurisdiction is a question of law which we review de novo. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Likewise, we review the trial court's ruling on a plea to the jurisdiction based on governmental immunity from suit de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
Specifically, TxDOT argues that the trial court lacked subject matter jurisdiction because Kyle's pleadings do not waive the State's sovereign immunity. Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the State or certain governmental units have been sued unless the State consents to the suit. Miranda, 133 S.W.3d at 224; Jones, 8 S.W.3d at 638. However, no waiver of sovereign immunity is necessary before one may sue the State for the taking of a vested property right without due course of law. Tex. State Employees Union/CWA Local 6184 A.F.L.C.I.O. v. Tex. Workforce Comm'n, 16 S.W.3d 61, 66 (Tex.App.-Austin 2000, no pet.), disapproved on other grounds, Miranda, 133 S.W.3d at 224 n. 4; see also City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) ("suits for equitable remedies for violation of constitutional rights are not prohibited"); Tex. Tech Univ. Health Sciences Ctr. v. Rao, 105 S.W.3d 763, 767 (Tex.App.-Amarillo 2003, pet. dism'd) (although aggrieved person may not sue State for damages absent waiver of sovereign immunity, a claim for equitable relief may be asserted against governmental entities for violations of the Texas Bill of Rights).
In support of its position, TxDOT cites Texas State Auditor's Office v. Mora-Nichols, in which the Austin court of appeals noted that Bouillion did not hold that the seeking of equitable relief provides by itself an independent exception to sovereign immunity. See Tex. State Auditor's Office v. Mora-Nichols, No. 03-03-00113-CV, 2003 WL 22453830, at *6 (Tex.App.-Austin Oct. 30, 2003, no pet.) (citing Bouillion, 896 S.W.2d at 149). Furthermore, TxDOT argues that even though Kyle is seeking equitable relief, her pleadings or evidence must still support her due process claim. See Miranda, 133 S.W.3d at 227 (when a plea to the jurisdiction challenges the existence of jurisdictional facts, reviewing court considers relevant evidence in addition to plaintiff's pleadings to determine whether trial court has subject matter jurisdiction). We agree, and therefore we must examine whether Kyle has asserted a viable due process claim based on a vested property interest.
. In Mora-Nichols, the claimant was also seeking actual damages, damages for mental anguish, and exemplary damages against the individual defendants. See 2003 WL 22453830, at *3 ("the mere fact that plaintiff couched her tort causes of action in terms of a suit seeking declaratory relief does not change the basic character of her lawsuit as one in which damages are being sought").
Kyle alleged a due process violation under the United States Constitution and under Article I, section 19, of the Texas Constitution. See U.S. Const. amend. XIV, § 1 ("nor shall any State deprive any person of life, liberty, or property, without due process of law"); Tex. Const. art. I, § 19 ("[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land"). The term "due course" is indistinguishable from the federal term "due process." See Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995). A due process claim requires this court to determine (1) whether the claimant has a liberty or property interest that is entitled to procedural due process protection; and (2) if so, what process is due. Id.
. Although the plaintiff and intervenors all filed amended pleadings on November 6, 2006, the only pleadings we may consider are the pleadings before the trial court when it granted the temporary injunction on November 1, 2006, which are: Jacquelynn Kyle's Fourth Amended Original Petition for Declaratory Relief and For Injunction filed on June 23, 2006; Herb Sarkisian's Third Amended Petition in Intervention filed on June 23, 2006; and Kathryn Kyle's Petition for Intervention filed on June 23, 2006. All such pleadings asserted jurisdiction under the United States and Texas Constitutions, plus the APA, NEPA, and the Texas Administrative Code. We decline to address Kyle's arguments that her due process rights were violated under the APA and NEPA. See Resident Council of Allen Parkway Vill. v. U.S. Dep't of Hous. Urban Dev., 980 F.2d 1043, 1055 (5th Cir. 1993) (the APA is "a route through which private plaintiffs can obtain federal court review of the decision of federal agencies") (quoting Vieux Carre Prop. Owners, Residents Assocs., Inc. v. Brown, 875 F.2d 453, 456 (5th Cir. 1989)); Noe v. Metro. Atlanta Rapid Transit Auth., 644 F.2d 434, 439 (5th Cir. 1981) (holding that no private right of action exists under NEPA). Additionally, we do not address TxDOT's issue that Kyle has no right to judicial review of an administrative order because that claim was not pled in the pleadings before the trial court on November 1, 2006.
Kyle argues that she has a property interest entitled to due process protection in the "aesthetic, recreational[,] and environmental well[-]being" of the two trees and in the potential destruction of the entire pecan grove. In support, Kyle cites several federal cases. See Sierra Club v. Morton, 405 U.S. 727 (1972); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996). In Lucero, an environmental organization ("the Committee") challenged the Forest Service's decision to allow summer use of a ski area in a national forest. Lucero, 102 F.3d at 446-47. The Committee alleged that the Forest Service failed to follow the National Environmental Policy Act's procedures when it approved summertime use of the ski area. Id. at 447. An intervenor representing the ski area filed a motion to dismiss on the ground that the Committee lacked standing. Id. The Tenth Circuit considered the affidavits of two Committee members who lived twelve to fifteen miles downstream from the ski area and complained that summertime use of the ski area would result in increased river water consumption, increased sewage and pollution, and would disturb the recreational and aesthetic value of the land in and around the ski area. Id. at 450. Based on these affidavits, the court held that the Committee had standing to challenge the Forest Service's actions because it had "established a present and continuing interest in the land and water sufficient for Article III's injury in fact requirement." Id. at 451 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 563-64 (1992)). The Committee had also established a causal connection between the injury and the conduct complained of, and had proved it was likely that the injury would be redressed by a favorable decision. Lucero, 102 F.3d at 447.
. Kyle states that "[a]ppellees' present and continuing interest in the land (represented by the pecan grove) securing their aesthetic, recreational and environmental well being, hereinafter referred to as Appellees' Property Interest, has been recognized by the United States Supreme Court."
In Morton, the Sierra Club sought judicial review to prevent the development of a ski resort on a natural game refuge and forest. Morton, 405 U.S. at 727. To provide access and power for this resort, the State of California proposed building a highway and a high-voltage power line through a portion of Sequoia National Park. Id. at 729. The Sierra Club brought claims that aspects of this development violated federal law regarding the preservation of national parks and wildlife, and alleged it had "a special interest in the conservation and sound maintenance of the national parks, game refuges, and forests of the country." Id. at 730. Although the Court in Morton acknowledged that aesthetics and environmental well-being may be entitled to constitutional protection, the Court focused on whether the Sierra Club had standing to assert a claim. Id. at 734-35. The Court found that the Sierra Club lacked standing because it did not assert individualized harm to itself or its members, and thus did not resolve whether aesthetics and environmental well-being are actually constitutionally-protected property interests. Id. at 741.
In Roth, an untenured assistant professor was not rehired by a university upon the conclusion of a one-year contract for employment, nor was he given reasons or a hearing to discuss the university's decision. Roth, 408 U.S. at 566-69. The Supreme Court granted certiorari to determine whether the professor had a constitutional right to know the reasons and have a hearing regarding the university's refusal to rehire him. Id. at 569. The Court acknowledged that the property protections afforded by the Fourteenth Amendment are broad, extending "well beyond actual ownership of real estate, chattels, or money," but are not infinite. Id. at 570-72. In order for a person to have a property interest in a benefit, he must have more than an abstract need, desire or unilateral expectation of it. Id. at 577. Instead, he must have a legitimate claim to that benefit. Id. Additionally, the Court recognized that the Constitution does not create property interests; rather, property interests stem from independent sources, such as state law. Id. The Court in Roth found that although the professor had an abstract interest in being rehired, he was not entitled to a hearing because his property interest was insufficient. Id. at 578.
These cases do not support Kyle's contention of a vested property interest. Both Morton and Lucero involved the issue of whether the plaintiff had standing to assert a NEPA claim under the APA. Morton, 405 U.S. at 731-32; Lucero, 102 F.3d at 447. The cases did not decide whether the plaintiffs had a protected property interest in the land at issue. Roth acknowledged that the "range of interests protected by procedural due process is not infinite," 408 U.S. at 570, and held that the plaintiff had not established that he was deprived of property protected by the due process clause. Under this authority, we cannot conclude that Kyle has established a property interest subject to due process protection.
Kyle also asserts that her right to due process was violated when TxDOT failed to follow its own rules and regulations as contained in Title 43 of the Texas Administrative Code. Kyle claims that rules requiring TxDOT to publicize and hold a public hearing regarding the highway project establish her "entitlement to participate, as [a] member of the public and adjoining landowner, in the public involvement portion of the state highway project." Such an argument, however, still requires Kyle to prove a protected property interest. "The right to notice and a hearing is not a property interest; notice and a hearing are the process used to protect a property interest, not the interest itself." See Elm Creek Owners Ass'n v. H.O.K. Investments, Inc., 12 S.W.3d 495, 498 (Tex.App.-San Antonio 1999, no pet.) (quoting Grounds v. Tolar I.S.D., 856 S.W.2d 417, 425 (Tex. 1993) (Hecht, J., dissenting)). Because Kyle does not have a property interest, her claim that TxDOT violated state rules and regulations does not amount to a violation of due process, and thus does not waive TxDOT's assertion of sovereign immunity.
Because Kyle failed to prove a vested property interest, her state and federal due process claims fail. Therefore, the trial court erred in denying TxDOT's plea to the jurisdiction and in granting the temporary injunction. See Miranda, 133 S.W.3d at 232. Absent a waiver of sovereign immunity or a property interest subject to due process, neither of which exists here, the trial court did not have subject matter jurisdiction. See id. at 224; Tex. State Employees Union, 16 S.W.3d at 66.
Conclusion
The trial court erred in denying TxDOT's plea to the jurisdiction and in granting the temporary injunction because Kyle did not establish a waiver of sovereign immunity or a vested property interest. Accordingly, we reverse the judgment of the trial court, set aside the order granting a temporary injunction against TxDOT, and render judgment dismissing the cause for want of jurisdiction.