**This article is not a substitute for the advice of an attorney.**

Courts of Appeals in Texas and New Mexico have denied motions in cases previously discussed on this blog.  Here is a summary of what has happened in the last couple of weeks.

Bragg v. Edwards Aquifer Authority

In August, the San Antonio Court of Appeals issued what has been deemed by many to be a landmark water rights decision in Bragg v. Edwards Aquifer Authority.  As previously explained in detail, the court found that the by denying the Plaintiffs’ request for permits to utilize groundwater to irrigate two pecan orchards, the Edwards Aquifer Authority’s action constituted a regulatory taking that required just compensation to be paid to the Braggs.  The Court remanded the case to the trial court in order to calculate the proper damages to which the Braggs are entitled.

On September 26, 2013, the Edwards Aquifer Authority filed a Motion for Rehearing on the court’s decision.  This morning, the San Antonio Court of Appeals denied this Motion.

In doing so, it withdrew its prior opinion and replaced it with a revised opinion.  [Read revised opinion here.]  The revised opinion changed a couple of sentences describing arguments made by the parties regarding the financial impact of irrigation costs on the Braggs, but did not change the substance of the court’s decision.  It is expected that the Edwards Aquifer Authority will now appeal the Court of Appeals’ decision that a taking occurred to the Texas Supreme Court.

Photo via Jennifer Blackburn Photography, Lubbock, TX

Davis v. Devon

As previously discussed on this blog, the Davis v. Devon litigation in New Mexico is a class action lawsuit brought by royalty and overriding royalty owners in the San Juan Basin of New Mexico against Devon Energy Corporation alleging that Devon took improper deductions from their royalty checks over a class period of over 20 years.

In September, a Santa Fe trial judge ruled that the Marketable Condition Rule does apply in New Mexico, and that the rule requires an oil producer, such as Devon, to bear the costs of placing gas into marketable condition, that being the condition acceptable to be bought and sold in a commercial marketplace, unless these costs were expressly addressed by the parties in the mineral lease.  At that point, Devon filed a Motion for Interlocutory Appeal with the New Mexico Court of Appeals, seeking a determination of whether New Mexico does, in fact, recognize the Marketable Condition Rule.

On October 30, 2013, the New Mexico Court of Appeals denied Devon’s Motion and remanded the case back to the trial court.  It is expected that Devon will appeal the denial of its Motion to the New Mexico Supreme Court.

Photo via Olivia Mitchell, Albuquerque, NM