Go Ahead and Eat Those Poppy Seed Muffins

I thought it was relatively clear that your employer could require you to take a drug test in order to qualify for employment.  I was wrong.  In a case out of the 9th Circuit, Lanier v. City of Woodburn, the Court held that a City cannot have such a requirement.

Ms. Lanier applied for a job as a "page" at the public library in Woodburn (no pun intended).  Apparently, a page at the library retrieves books from the book drop, and then returns the books to the shelves.  The City of Woodburn had declared itself to be a "drug-free workplace", and required all applicants to submit to a drug and alcohol screen, and successfully pass the screening.

The City had adopted its "drug-free" policy in response to incident with affected employees in the past, and for the library because it attracted a lot of youth for its services.  Regardless, the Court found no special need for sober employees at the library and banned the regulation for the City.

Why do THEY work so hard to look foolish?

Here's your government at work.

The Clayton Sam Colt Hamilton Trust owns a 3,200 acre ranch in Val Verde County.  It is near the City of Del Rio, Texas.  As you might expect, there's not any water on the ranch, but it lies just above the Edwards-Trinity Aquifer, and can pump water from the Aquifer.

In 1997, the Trust sold 15 acres to the City of Del Rio, and the tract is wholly surrounded by ranch land.  The Deed says: 

GRANTOR reserves unto Grantor, its successors, heirs and assigns forever all water rights associated with said tract, however, Grantor may not use any portion of the surface of said tract for exploring, drilling or producing any such water.

So, the City bought the property without any water rights at all.  But, three years after buying the tract, the City started drilled a water well on the tract.  When the Trust manager objected, the City said "too bad", and replied to the inevitable lawsuit by saying that it had the right to drill for water.  The City claimed that you can't own (and can't reserve) water until it is pumped out of the ground.   According to the City in the case, "only through the most strained interpretation of the Trust's reservation of 'water rights' may the Court reach the conclusion that there is an accompanying prohibition on the City's pumping rights."  So, the City claimed that there is such a thing as "pumping rights" that are distinct from the thing you are pumping. As the Court noted in its opinion - the City cited no authority for this assertion. 

The Texas Supreme Court had consistently, and for over 100 years, held that you can separate water rights from the land that is being sold, and that you can therefore reserve the water rights when you sell the surface estate.

Thank you, San Antonio Court of Appeals, for the lesson in obviousness so clearly underappreciated by the City of Del Rio.

Late, but Deserved Congratulation

I have neglected my blog due to a long-deserved vacation, and the work that piled up while I was gone.  On the vacation front, I went to the Florida Keys, and fished for Eagle Rays.  Our captain was quite expert at guiding us in this venture, and I was quite successful.  I returned to learn that a lady had died doing the same thing in almost precisely the same area of the Keys.

But, before I left, I collected an article about a case at the Texas Supreme Court that hasn't been mentioned on any Baylor Law blog that I could find.  In El Paso Hospital District v. Texas Health & Human Services, the Court invalidated an agency rule about the submission of Medicaid claims.   The Agency had not followed the rulemaking requirements of the Texas Administrative Procedures Act, according to the opinion.  But, the judgment of the Court did not enjoin enforcement of the rule.

After the initial unanimous opinion, your Professor - Ron Beal - wrote a letter to the Court as an amicus curaie  noting that the opinion did not say that the Agency tried to follow the rule-making process in good faith.  Instead, the Court found the rule to be a nullity, and therefore, the Agency was not entitled to "cure" the rule - the Court should render judgment enjoining enforcement of the Rule.  The Court followed Professor Beal's advice on that issue and on several other issues that he mentioned in his letter.

Good Job - Professor Beal.