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KFDM News learns of lawsuit filed to stop closure of Rollover Pass
BOLIVER PENINSULA - From Gulf Coast Rod, Reel and Gun Club and Gilchrist Community Association
Gulf Coast Rod, Reel and Gun Club and Gilchrist Community Association File Suit Against Jerry Patterson, Commissioner of the Texas General Land Office, and Corps of Engineers Over Permit To Allow the Closure of Rollover Pass on the Bolivar Peninsula
The Gulf Coast Rod, Reel and Gun Club and the Gilchrist Community Association filed suit in federal court in Galveston today against Texas Land Commissioner Jerry Patterson and the Corps of Engineers over various actions related to attempts to close Rollover Pass, a popular recreational fishing venue on the Bolivar Peninsula of Galveston County.
Among the allegations contained in the litigation are the following:
1. The GLO has no ownership or other right to the property within which Rollover Pass is situated and has no legal right to take any action on property that it does not own. Notwithstanding that absence of any ownership or other property right, the GLO applied for and received a permit from the Corps to close Rollover Pass, dated August 10, 2012.
2. The GLO made false representations in order to obtain a Corps of Engineers permit. As part of its application, federal law (33 CFR 325.1(d)(8)) required GLO to confirm that the agency "possesses or will possess" a property ownership right to close and fill Rollover Pass, but GLO had - and to this day has - no such right.
3. In seeking to obtain a permit by this false assertion of ownership, the GLO violated fundamental due process rights of the property owner in violation of the 5th and 14th Amendment of the United States Constitution.
4. Moreover, even if the GLO could have obtained the requisite authority, this lawsuit alleges that the Corps violated the National Environmental Policy Act (NEPA), the Clean Water Act, and Section 504 of the Rehabilitation Act of 1973 in its decision to issue a permit allowing the closure of Rollover Pass.
5. As NEPA and Clean Water Act violations, this lawsuit alleges that the Corps failed to fully analyze cumulative impacts of the closure of Rollover Pass relative to change in salinity and loss of marine fishery productivity that will result in East Bay from the increased freshwater inflows from the Needmore Diversion and the closure of Rollover Pass.
6. As additional NEPA and Clean Water Act violations, this lawsuit alleges that the Corps failed to correctly do three analyses required by law: an analysis of alternatives, including consideration of groins and jetties; a public interest review; and a full analysis of the socio-economic impacts that closure of Rollover Pass would cause to users of Rollover Pass, many of whom travel from far away to fish at this fine venue.
7. Under the Rehabilitation Act, this lawsuit alleges that the Corps' decision to grant the requested permit unlawfully discriminates against persons with disabilities, particularly those with mobility impairments who use wheelchairs or scooters - including members of the Gilchrist Community Association, because it would allow destruction of this unique, high quality, accessible fishing venue without any commitment to create a comparable, accessible, place for public fishing, so people with mobility impairments will not have equal access to fish.
8. This lawsuit also alleges that, if it somehow were to implement the existing permit without sufficient accessible replacement facilities, the GLO would discriminate against persons with disabilities in violation of the Americans With Disabilities Act, as well as Section 504 of the Rehabilitation Act, in its actions to close Rollover Pass.
9. This lawsuit also alleges that effects of the Severance decision in transforming public beaches into private beaches was not fully evaluated or even discussed relative to the public interest asserted by the Corps in deciding to issue this permit. In particular, the concern is that Rollover Pass is being closed to protect a relatively few beach private landowners while harming the interests of thousands of fishermen and women using this public facility. It also alleges that the alternative of a rock groin or jetty could achieve the sediment control benefits of pass closure.
10. This lawsuit seeks declaratory and, if needed, injunctive relief to prevent use of this permit from the Corps of Engineers to allow GLO to close Rollover Pass.