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Bandera County Courier is published weekly by Gail S. Joiner, 1210 Hackberry St., Bandera, TX 78003. Subscription price $26 per year in Bandera County, TX; $36 per year for other Texas counties; $40 per year out of Texas. POSTMASTER: send address changes to Bandera County Courier, P.O. Box 1704, Bandera, TX 78003. Periodicals Postage pending in Bandera, Texas.

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Roping off the Lake... by Stephanie Logue BCC Staff Writer Published Sept. 15, 2005 These swimmers at Pop's Place have no idea that they fueled a debate at the Thursday, Sept. 8 Bandera County Commissioners Court meeting: to buoy Medina Lake or not to buoy Medina Lake in the name of safety. If the 1975 resolution is reenacted, two miles of Medina Lake along the river channel from Wharton's Dock and Pop's Place will be a "no wake" zone.    Medina Lake wakes awakened waves of contention recently.     Bandera County Commissioners Court rocked during their Thursday, Sept. 8 meeting after differences of opinion on Medina Lake wakes rolled across the table.     Stating that he had received numerous calls from Wharton's Dock over the summer about fast boats and jet skis endangering swimmers, fishing lines and piers and docks, commissioner Doug King proposed a two-mile-long "no wake zone" for narrow stretches of Medina Lake. He said lakefront property owners are almost being harassed by boaters who, mostly, do not live in Bandera County. Bandera County passed a no wake zone in 1975 and installed buoys at the lake. The 1978 Flood destroyed the markers. King said it would require 16 buoys to mark the slow boating zone. "Someone's going to get hurt. I don't want to live with that if we could have prevented it." King added that erosion from boat wakes was another issue. He said that people who purchase high dollar homes on the lake and pay high dollar taxes deserve protection for their tax dollars.     Bandera County Game Warden Ron Chalmers said he could ticket careless boaters only if the buoys were in place to warn them about their speed.     Commissioner Ron Basinger disagreed. "If you observe it (negligent boat handling) you can write tickets. All the wardens have to do is enforce them (the regulations already in place)."     Chalmers said it was necessary to have either a no wake zone or someone willing to sign a complaint when they felt endangered or that their property was being damaged. "I have to have it marked or I can't write a ticket."     Basinger said it was unfair to allow people to move to the lake and put in a dock then regulate their speed. "You can't take the public use of the water away from them." Basinger said anyone unwilling to share the use of public water should build or buy their own private lake.     His objection was based on the fact that it would take 30 minutes at a no wake speed to get out into the open lake from Wharton's Dock and Pop's Place. "That's taking too much of the lake away. You can barely keep a jet ski upright at that speed. No more people get hurt in the river part than the lake part. Someone is going to drown every year. So do we just close the lake because someone is going to drown?"     Chalmers said the no wake zone would provide a line for enforcement. "We do file on people for negligent operation. But just my opinion won't hold up in court. I have to have something to show."     Basinger warned, "you're fixing to put Pop's Place out of business. People aren't going to launch and drive a boat half-a-mile at idling speed. You're not considering the financial impact on Bandera County."     Chalmers said that a viable option would be to mark places in front of swimming and congested areas. "There are various ways of dealing with this problem."     Lake Medina Conservation Society (LAMCOS) Vice President Bobby Harris said LAMCOS supported the no wake zone. "I had a friend run over in front of Pop's Place. Property issues aside, wave runners at 65 mph leave swimmers defenseless."     Lakeshore resident Marc Marcaurele said people in his area endure the problem of speedy boaters on a daily basis. He said it has caused him to give up fishing. "It's a race way. There is a huge problem with speed -- slamming into walls, running over people, hitting pontoon boats."     Marcaurele told Basinger to think of the no wake zone as a ramp leading to the interstate. "Most of the people who live in Wharton's Dock launch and maintain a safe speed until they get out."     One person at the meeting objected to the no wake zone because every boat has a different wake speed. He said public water needs to be open to the public.     EMS Director Cindy Martin said she has family at Pop's Place. "I think it would be a big economical loss not of be able to ski in front of Pop's Place."     Commissioner Richard Keese said, "if you're going to restrict rights, we need to study this more. Jet skis have as much right as a swimmer or a fisher."     Basinger joked that he had a solution that no one would like: turning Medina Lake into another Choke Canyon by introducing alligators. Someone from the audience quipped, "we already have a shark!"     Harris said the issue was a safety issue and "no laughing matter. How will you feel when this was on the agenda and no action was taken and a mother comes in here blaming you for a dead son or daughter?"     Keese said he was not ready to make a decision.     Basinger said, "you would take two miles away from the people. You can't protect people from people."     County Judge Richard Evans suggested leaving the 1975 resolution in place and putting in new buoys. Chalmers said a current resolution was needed.     Evans proposed postponing action and involving the sheriff's department and Texas Parks and Wildlife (TPW) in the decisionmaking process. "We need to do more homework. We don't want to take anyone's rights away. The right to safety is a right too."     Commissioners King and Basinger were directed to work together with the sheriff's department and TPW. King said Bandera County Attorney Kerry Schneider was willing to front the money for the buoys from leftover funds in her budget.

Here's what else is in this section of the Courier:

Roping off the Lake...	Published Sept. 15, 2005
LAMCOS reports on May 7 cleanup	Published Sept. 1, 2005
Judge's decision on BMA-WPOA suit limited in scope... Not final for 30 days	Judge set to make final decision on BMA-WPOA agreement April 25
New info shores up lakefront property owners against BMA	WPOA Fires Back
Courier's response:	Could 1912 testimony blow BMA out of water?
BMA-WPOA agreement a 'done deal' as of March 1	BMA approves mediation with WPOA
Who owns the lake?	Medina dam stability assessment made public

LaMCoS reports on May 7 cleanup Published Sept. 1, 2005    The Lake Medina Conservation Society (LAMCOS) published an article by Bob Brischetto in its just-released newsletter giving results of the May 7 Medina River cleanup.     Brischetto said that the fifth annual cleanup, sponsored by LAMCOS, drew 135 people, ages 7 to 77, from 33 towns. Participants traveled 50 miles of river in canoes and kayaks to haul trash and debris from the river. Peter and Marianne Bonenberger, of Bear Springs Blossom Nature Conservation Group, recycled more than a ton of steel and 130 pounds of aluminum cans.     Johnny Boyle provided a large barbecue trailer for the event. Participants, a third of whom were from the Bandera County area, were treated to a barbecue brisket and chicken meal cooked by LAMCOS vice president Bobby Harris.     The Medina River Protection Fund was launched the night before the event with a wild hog barbecue at the Estrellita Stone Ranch, home of Larry and Marnette Stone. The Medina River Protection Fund is an endowment with the Bandera Regional Community Foundation. Tax-deductible contributions to the fund may be made to BRCF for the Medina River Protection Fund, P.O. Box 417, Lakehillls, 78063 or online at www.medinariver.net.

Judge's decision on BMA-WPOA suit limited in scope... Not final for 30 days by Stephanie Logue BCC Staff Published April 28, 2005    Drama touched the canvas of the usually somber Bandera County Courtroom on Monday, April 25 when visiting Judge Murray Jordan called for the consent agenda in the Bexar-Medina-Atascosa Water Improvement District No. 1 and Waterfront Property Owners Association Settlement Agreement. Most of the more than 40 individuals who opposed the settlement agreement quietly rose to their feet and approached the bench when Jordan called for representatives of WPOA.     BMA attorney Ed Hecker objected to the silent demonstration against the agreement.     Murray responded, "I have read letters from interested property owners. At first blush, it doesn't look like their interests have been addressed."     WPOA attorney Steve Rogers replied that 403 WPOA members, representing approximately 250 properties, had joined the agreement. He told Murray that WPOA believes that the only ownership right BMA has to the disputed 12 feet of property is a flooding easement but that "my clients would like clarity on their ownership so they don't have to keep fighting this battle."     BMA attorney Hecker told the judge that different landowners had retained different rights and that 28 deeds were involved in the property dispute resulting in "piecemeal" ownership. He said the consent agenda would make a uniform decision.     Murray asked how many lakefront property owners were not participating and received a prompt answer from the crowd: "only seven percent are participating."     Murray allowed some of the 40 attending the hearing to voice their concerns. Gary Fillinger said that the WPOA board had not represented the majority of its members.     Ray Wharton said he had 234 acres of land below the 1084 contour line that he paid taxes on and that BMA would continue suing lakefront property owners who had not signed the agreement, starting first with those that lacked funds for a legal battle.     Karen Ripley said the WPOA board had done the exact opposite of what it had promised. She said she felt the settlement agreement would set a precedent allowing BMA to fight lakefront property owners who had not signed the agreement.     Jordan told her, "This is not a precedent -- this judgment will not affect your property -- it's on record. It only affects these people."     Laurie Dowlearn said property owners had gone together to get a declaratory judgment and that her deed stated that BMA had a mere flooding easement.     Jordan told Dowlearn that the settlement agreement would not affect her. "Whatever rights you had are not being changed. What rights you have are not being decided today. It is on record that this does not affect anyone else's property. We have a record that a lot of people are opposed. This won't solve everyone's property."     Jordan accepted the consent agenda.     When asked on Tuesday, April 26 why he was not in court on Monday, April 25 to sit on the bench for a decision on the BMA-WPOA settlement agreement that came out of the mediation he had ordered, 216th Judicial District Judge Steve Ables said that he had been in Austin testifying about pending legislation.     When asked if the settlement agreement would mean that the approximate 1,500-lakefront property owners that did not join the agreement would be coming before his court for the next 15-20 years to settle the lakefront property ownership dispute between landowners and BMA (BMA has a 12-foot flood easement around the lake), Ables said, "I hope not." Then he added, "I really can't comment on this because it's not final for 30 days." Ables said that lakefront property owners who feel they were not represented in the settlement agreement could file suit against the consent agreement.

Judge set to make final decision on BMA-WPOA agreement April 25 By Stephanie Logue BCC Staff Story ran April 21, 2005    216th Judicial District Judge Stephen Ables is scheduled to make a decision on the acceptance or rejection of the settlement agreement between BMA and WPOA on Monday, April 25 at 9 a.m.     Bexar-Medina -Atascosa Water Improvement District No. 1 (BMA) General Manager Ed Berger and Director Bill Hope both said that BMA is satisfied with the agreement. Hope called it "a good compromise."     Waterfront Property Owner Association Attorney Stephan Rogers sent a letter to Ables stating that the settlement agreement, which resulted after Ables ordered the two sides in a lawsuit over lakefront property ownership around Medina Lake into mediation, had received "very positive response."     Not all WPOA members support the agreement. The court case on file at the Bandera County Courthouse contains 12 letters to Ables urging him not to accept the settlement agreement and not a single letter in favor of it, except for the Feb. 21 letter from Rogers.     A few excerpts from the 12 letters include the following: "the membership agreement was not brought before the WPOA General Membership. At the meeting, 85 percent of WPOA members raised their hands to indicate that they were against the agreement...BMA has called it a 'precedent setting agreement';" "1,500 waterfront property owners, many on fixed incomes, can't afford the agreement including the annual fee to BMA;" "I feel I've been misrepresented by the WPOA board;" "It seems to me the settlement agreement is 100 percent in favor of BMA;" "We are left with an agreement with which we totally disagree;" "we have lived on Medina Lake for 25 years and pay taxes to the 1072 level and can't afford the agreement -- it is not good for me or Bandera (County)" and "The majority of these owners are against this agreement but do not have a voice in this matter... 1,500 lakefront property owners are without a voice."

New info shores up lakefront property owners against BMA By Stephanie Logue Story ran March 31, 2005    After giving the Waterfront Property Owners Association (WPOA) one week to respond to the Thursday, March 17 edition of The Bandera County Courier's front page story, "Could 1912 testimony blow BMA out of the water?" the Courier is running its scheduled March 24 story basically unchanged.     WPOA board members Linda Bachmeier and Pat Pizzini professed to have deeds and documents that were transacted after the original condemnation suit and changed the recorded ownership of the original deeds. They both agreed to provide these documents to the Courier to prove their claims. As of deadline for this edition, they have failed to produce the promised evidence to refute this story.     WPOA board member Pat Pizzini said that disgruntled WPOA members have received answers from their board about the proposed settlement agreement, "just not the answers they wanted." She said that money needed for the expected court case against BMA -- $150,000 to $200,000 -- was "drying up" and that the settlement agreement was the best and most affordable solution. She criticized the following information, which we intended to run on March 24, not on its content, but rather on her interpretation of the content.     Bandera County Veterans Affairs Officer Bobby Jones dived into in a detailed study of the proposed settlement agreement between the Bexar- Medina-Atascosa Water Improvement District No. 1 (BMA) and the Waterfront Property Owners Association (WPOA) when he discovered the financial impact on veterans who planeed to join the settlement agreement.     Jones researched court testimony in the 1912-1917-condemnation case that gave BMA's predecessor, the Medina Valley Irrigation Company (MICO), a flood easement up to the 1084 contour line of Medina Lake. His research pointed him upstairs in the Bandera County Courthouse to shelves of legal books where he discovered "Vernon's Civil Statutes," Article 3270 on how to construe property rights within flood easements: "the right secured -- shall not be so construed as to include the fee simple estate in lands, either public or private -- Irrigation company merely acquires easement in land necessary to carry out purposes for which the land is condemned -- Condemnation of property for a public use divests its owner of no right further than is necessary for the purpose for which condemnation was authorized."     Not all Medina Lake lakefront property was acquired through condemnation. Under the Spettle deed (which includes Thousand Trails), property owners sold their property to MICO but retained to themselves and their heirs and assigns forever the right to build on the edges of the reservoir at their own peril and risk. Most Bandera County property owners who sold their land to MICO retained some rights.     For property, like the Pebble Beach subdivisions that were acquired under condemnation, Texas condemnation law states: "the landowner should be able to use the surface area within the easement in any way that will not interfere with the condemnor's activities." Since MICO agreed to the rights the owners retained in the Spettle deed, it would appear that having structures along the shores of Medina Lake does not impede the irrigation's flooding easement as long as it is not held legally responsible for water damage to those structures. Jones researched Gulf Coast Irrigation Company versus Gary (cited in Medina Lake's condemnation proceedings) and found the following: "Irrigation company merely acquires easement in land necessary to carry out purposes for which land is condemned. In condemnation proceeding -- company does not take fee simple title to land condemned, but merely takes easement that carries no greater dominion by company than is proper and needful to carry out purposes for which land is taken, anything beyond this constituting taking of property for private use."     As with the Spettle deed, the deeds to the Wharton's Dock area did not result from the condemnation proceedings. The deed to Lakeshore North, from the Steinle deed, states that the part of land not covered by water may be "used by the grantors and their heirs and assigns with the distinct understanding that the grantors and their heirs or assigns will hold the grantee harmless for any or all damage resulting from the use of said land."     The Lakeshore South deed, the Wright deed, gives the grantors and their heirs, succors or assigns the right to have access to water for livestock and cultivating crops down to the middle of the river.     Land in Pebble Beach Subdivision was obtained in condemnation proceedings. Also land down the east side of Elm Cove to Haby's Cove to the Medina Lake Dam and around to Sawmill Cove. Texas stature generally limits condemnation to no greater interests than an easement according to the revised September 1995 Technical Report 394, "Real Estate Center Understanding the Condemnation Process in Texas."     An easement is defined as a right to "make a limited use of a portion of the land for a special purpose. The landowner is not divested of title, only a particular use."     Under the BMA-WPOA agreement, BMA would be given a title to lakefront property in exchange for granting the landowners a perpetual easement to the water. The property owners would in addition pay a $1 per linear foot annual fee to BMA for their lakefront property.     The law also states that the assignment of rights must comply strictly with the original easement agreement and may not increase its burden. The condemnation hearing set up an irrigation district. BMA has since engaged in commercial water sales to San Antonio through the Bexar Metropolitan Water District. To further complicate the issue, BMA's certificate of adjudication, dating back to August 1981 (MICO's dated back to Nov. 16, 1910), authorized them to impound 237,874 acre-feet of water, which according to The Texas Water Development Board's Volumetric Survey of Medina Lake is up to the 1069 contour line of Medina Lake -- not up to either the 1072 or 1084 line.     Under Technical Report 422, "Easements in Texas," the law states that the only duty an easement imposes on the landowner is that he or she may not interfere with the use and enjoyment of the dominant estate's easement across the land.     The WPOA website states: "BMA already has deeds to virtually every foot of waterfront property from the dam to Red Bluff Creek."     That is a difficult statement to believe given the legal disposition of property ownership under Texas condemnation law. A map of property obtained by condemnation colors in most of Medina Lake's "dragon's head" in an unbroken line of property that -- under Texas law -- grants BMA merely a flooding easement. The Medina Valley Irrigation Company's attorney assured the judge during condemnation proceedings: "We don't want to buy the land, we want to buy the right to use the land, the easement."     The Bandera County Courier took a hit after the March 17 article, "Could 1912 testimony blow BMA out of the water?" WPOA President David Bowman posted arguments on the WPOA website. He said it was safer to take the BMA settlement agreement than to gamble on a court decision. He said that even if BMA has only an easement to flood, that is still an ownership interest in the property. "Limiting BMA's interest to a flooding easement does not make BMA go away. The settlement agreement permanently resolves the conflicts between BMA's ownership rights, whatever they may be, and the rights of private waterfront property owners. BMA will never again be able to challenge the ownership rights of WPOA members who have joined the settlement agreement."     Bowman called the article an insult to hardworking WPOA members who spent hundreds of hours researching and working on the agreement. He said that more than 400 WPOA members had joined the settlement agreement, more than two-and-one- half times the minimum number required to make the agreement non-revocable by BMA. The Courier was given no list to verify this statement. One former WPOA member said that if the 400 number stemmed from couples rather than properties, that number could represent only 200 properties, a mere 50 over BMA's requirement of 150. Additionally, 200 would be slightly more than 10 percent of the estimated 1,000 lakefront property owners that claim some or all of their holdings below the 1084.     The Courier was criticized for allowing a "protected source" to "mistake facts and make unjustified accusations." Both facts and accusations appear true, based on our research.     Bowman objected to the protected source's statement that the WPOA board avoided meeting with its members after signing the BMA deal. Although multiple open meetings were held, many WPOA members said that they felt that the board made no effort to adequately describe the basis of their decision to accept the settlement agreement. Pizzini said that she felt board members had explained adequately, but that the explanation was not what the disgruntled WPOA members wanted to hear.     Bowman refuted the accusation that members' requests for bylaws were not granted and that those members received "revised bylaws" only under pressure. The Courier has an email confirming that at least one WPOA member was forced to obtain the services of an attorney to receive a copy of the bylaws, and then received "revised" rather than the original bylaws.     The Courier has obtained letters, emails and received personal testimony from both former and present WPOA members to verify all of the statements contained in both this article and the original one that was withheld for one week out of fairness to WPOA board members and the settlement agreement that they negotiated.     As WPOA board members have stated all along: to join or not to join the BMA-WPOA settlement agreement is a decision that each individual must make. The Courier's job is to present both sides of the issue so that each individual can make an informed decision.

WPOA Fires Back Story ran March 24, 2005    After The Bandera County Courier announced the discovery of the 1912 testimony in its March 17 edition, Waterfront Property Owners Association (WPOA) president David Bowman, through attorney Steve Rogers, fired back the following reply.     "The recent article by your reporter and a "protected source" about the settlement between the Waterfront Property Owners Association (WPOA) and BMA is an editorial or letter to the editor masquerading as a news story. No one with the WPOA was contacted or otherwise given an opportunity to address the claims made in the article. The article is filled with inaccurate and misleading statements, and packaging it as a news story does a disservice to your readership. It is your right, of course, to allow your newspaper to be used as a forum for particular viewpoints and opinions, however misinformed they may be. However, passing off such opinions as news harkens back to the bad old days of yellow journalism. Drawn by R.F. Outcault in early 1896 for a colored comic strip published by Joseph Pulitzer in the New York World, The "Yellow Kid" became a symbol for yellow journalism. In addition to being portrayed in collectibles such as key chains and collector cards, "The Yellow Kid" appeard on stage and even had a magazine named after him for a short time.     Five points about the substance of the article: First, the operative legal documents -- the condemnation judgments and deeds under which BMA's predecessor MVICO acquired rights in the Contour Zone (lands around Medina Lake below Elevation 1084) -- do not state that BMAonly has an easement to flood. Oral testimony offered to vary or contradict the text of an instrument is only admissible if the instrument is ambiguous. It would have been a gamble to litigate the issues of whether the various judgments and deeds are ambiguous, and if so, what the parties really intended almost a century ago. Fortunately, it was not necessary to take this gamble because the Settlement Agreement confirms that participating waterfront property owners have the right to use, enjoy and control their land down to the water.     Second, even if BMA only has an "easement to flood," that is still an ownership interest in the property -- "Protected Source" mistakenly assumes that an easement is something less than an ownership interest. Limiting BMA's interest to a flooding easement does not make BMA go away. The Settlement Agreement permanently resolves the conflicts between BMA's ownership rights, whatever they may be, and the rights of private waterfront property owners. BMA will never again be able to challenge the ownership rights of WPOA members who have joined the Settlement Agreement.     Third, the article is an insult to the many hardworking members of the WPOA who spent hundreds of hours researching the rights of landowners around the lake, then hundreds more in tough negotiations with BMA, then hundreds more in public meetings, neighborhood workshops, and innumerable phone calls and oneon- one discussions answering questions about the Settlement Agreement. Chances are the mysterious "Protected Source" had numerous opportunities to attend meetings and ask questions (he or she could have even gotten a copy of the "newly discovered" 1912 testimony if he or she had asked us for it). In any event, the fact that "Protected Source" fails to grasp the benefits of the Settlement Agreement is not a reason for yet another meeting.     Fourth, more than 400 WPOA members have joined the Settlement Agreement, over 2 1/2 times the minimum number required to make the agreement non-revocable by BMA. These members have assured themselves the benefits of the Settlement Agreement for themselves and their heirs. This overwhelming level of participation confirms the belief of the WPOA board that many members would choose to confirm and expand their property rights by joining the Settlement Agreement.     Fifth and finally, readers should question why the article fails to name "Protected Source" or any of the other allegedly disgruntled persons quoted in the article. The obvious reason is, anonymity gives license to misstate the facts and make unjustified accusations. The WPOA is proud of what is has accomplished for its members, and will continue to work for their benefit.     David Bowman, President     Waterfront Property Owners Association

Courier's response: Story ran March 24, 2005    The Bandera County Courier has provided WPOA with a copy of the story we planned to run this week along with one week to show us additional documentation proving that our proposed story is flawed. We realize the enormity of this issue and err on the side of caution. We do not want to be responsible for a lakefront property owner making the wrong decision based on faulty reporting.     To respond to Bowman's five points: Both case law in "Vernon Civil Statues" and "Technical Report 422, Easements in Texas" state that irrigation districts receive easements from condemnation suits, not title to the land.     As for BMA's ownership interest, property owners with easements on their properties are permitted to use those properties to their full advantage as long as that use does not interfere with the easement. Since some property owners who sold their land to BMA kept the "right to build on the edge of the reservoir at their own peril and risk," one must assume that use of lakefront property by a property owner does not impede BMA's flood easement.     As for "Protected Source's" claim that questions were not answered about the settlement agreement, The Courier has copies of emails and names of other individuals who have leveled the same criticism of WPOA board members.     The fourth point Bowman made is that more than 400 members had joined the agreement while only a small percentage of WPOA members are dissatisfied. The Courier been denied a copy of the membership list to verify this.     A newspaper retains the right to protect a source. Thus the "Protected Source." Bobby Jones provided information for next week's story.     Yellow Journalism     In the late 1890s, rival newspaper owners Joseph Pulitzer of the New York World and William Randolph Hearst of the Journal engaged in heated rivalry between their respective newspapers. In an effort to sell more newspapers than his competitor, each publisher engaged in questionable journalism practices which came to be known as "yellow journalism."     Rivalry in the newspaper business usually results in a more informed public with editors and reporters becoming more innovative and compiling more extensive research to "scoop" the opposition. These legendary magnets, however, engaged in various degrees of sensationalism, even to the point of copying stories directly from the competitor's pages. The most blatant example -- an article describing the death of Colonel Reflipe W. Thenuz originally printed in the Journal. The following day the World published the same item adding dateline information to make the article appear authentic. Of course Hearst had planted the original article compiling the name to resemble the phrase "we pilfer the news."     A book could be written describing all of the intricacies of the battles between Pulitzer and Hearst; however, for our purposes we only need to look at the qualities associated with the birth of yellow journalism. The purpose was to sell more newspapers, which in today's market is hardly a profitable endeavor. But the overall effect of the practice was heralded as the trumpet of the people.     I certainly don't mind being the voice of the people and since my newspaper is only six months old, I am not convinced that being put into the same company with Joseph Pulitzer and William Randolph Hearst is an altogether bad thing.     Gail Joiner, Publisher

Could 1912 testimony blow BMA out of water? By Stephanie Logue and protected source Story ran March 17, 2005    One week after Waterfront Property Owner Association (WPOA) members Tom and Kris Fett told Bandera County Commissioners that the agreement reached between WPOA and the Bexar-Medina-Atascosa Water Improvement District No. 1 (BMA) was "set in stone," a discovery from the National Archives in Ft. Worth may blow the deal out of the water. BMA has no ownership rights to much of the land below the 1084 contour line -- BMA was granted only a flood easement by the court.     Testimony from the 1912-1917 condemnation suit, by which BMA's predecessor, Medina Valley Irrigation Company claimed land for Medina Lake, has been discovered. Both BMA and WPOA have sent individuals to the national archives in an attempt to find the missing paperwork and settle the dispute of who owns the 12-foot flood easement between the 1072 (full level of Medina Lake at the spillway) and the 1084 (flood stage at the top of the dam) contour level of the lake. Those attempts were unsuccessful and controversy over the ownership question has continued for 93 years. BMA has recently pushed for ownership of the flood easement, as evidenced in the BMA-WPOA agreement that would have lakefront property owners exchange deeds to their property to BMA in exchange for a perpetual easement. BMA, according to the newly discovered evidence, has no right to much of the property -- since it merely owns a flooding easement.     Testimony from the 1912-1917-condemnation suit had been filed under the wrong case number.     A past-WPOA member said, "There is a growing bad response to the BMA deal that negotiators for the WPOA agreed to last fall. Relations between the WPOA board and many of its members deteriorated after the WPOA board failed to call a membership meeting to first report on the proposed settlement agreement before signing with BMA to deed over properties around Medina Lake's contour zone.     "Recently, a significant piece of old testimony from the condemnation hearings from 1912- 1917 has been located in the Fort Worth National Archives. The evidence supports the fact that BMA holds merely an easement in many areas around Medina Lake including Pebble Beach. The record shows that land down the east side of Elm Cove, around Haby's Cove to the dam and around to Sawmill Cove was condemned by BMA's predecessor, the Medina Valley Irrigation Company. This Company specifically condemned these areas only for the right to submerge the land (not full title). In the testimony, the lawyer for Medina Valley Irrigation Company said, 'we don't want to buy the land, we want to buy the right to use the land, the easement -- we want to use the land for reservoir purposes.'     This right was passed down to BMA as an easement to flood, not a right to hustle Medina Lake residents.     "BMA is on shaky ground today because Medina Valley Irrigation won these condemnations by stating that they only wanted the land for reservoir purposes, not for other uses.     "When the WPOA board began avoiding meeting with its members after signing the BMA deal, many declined to re-join the association. The split within the WPOA worsened when the board refused to provide requested copies of the association's by-laws, the membership list and the financial records showing how dues and legal contributions have been spent for the BMA deal.     "Under pressure, the WPOA board's attorney, Stephan Rogers, released a copy of the "Revised By-Laws" (raising questions about what the original by-laws say) but Rogers and the board are still withholding the past and current membership list, along with accounting documentation. This is frustrating to WPOA members who donated thousands of dollars believing it would go toward seeking final judgment against the BMA and protect their properties. They were never told that the negotiators and lawyers were changing the game.     "The WPOA board has repeatedly been asked to reconsider their actions and hold a general membership meeting to discuss questions about the way their negotiated settlement was conducted as well as its impact on other lakefront property owners who have chosen not to participate. The WPOA Board's stated excuse is that this deal will not set a legal and political precedent for BMA to continue harassing other residents at Medina Lake is nonsense.     "Concerned lakefront property owners and residents in the area are upset by WPOA's lack of communication or knowledge of BMA's exact interests in the shoreline. While the BMA does have deeds to some locations, they do not own a large part of the Medina Lake shoreline.     "If you are located on any of the above-mentioned 1912-1917 condemned areas, consider why you would want to deal with the unreliable BMA when all they own is an easement. Does BMA even have the right to grant you an easement since they are not the owners of the property in these areas? And if your property is platted to the 1072 (as it is in Pebble Beach), are you willing to sign your deed over to BMA and have to pay them rent plus the costs associated with the deed transfer?"

BMA-WPOA agreement a 'done deal' as of March 1 Story ran March 10, 2005    The agreement reached by the Bear-Medina-Atascosa Water Improvement District No. 1 (BMA) and the Waterfront Property Owners Association (WPOA) after months of mediation has exceeded the 150 participating members required by the BMA board to guarantee its support by the BMA board. WPOA had been given a March 1 deadline to obtain at least 150 members who agreed to accept the settlement.     WPOA President David Bowman said that 216th Judicial District Judge Steve Ables, who ordered the mediation, will now be asked for a consent judgment. The group representing the Waterfront Property Owners Association throughout the mediation process with Bear-Medina-Atascosa Water Improvement District No. 1 smiled as they enter into negotiations. Now, at long last, the agreement they reached has been finalized.    The judgment will be entered with the court, thus finalizing the agreement. "The only condition that BMA made was that if we had less than 150 people they could pull out. We're still verifying the members that have joined, but we have way in access of the 150."     Bowman added that a group of disgruntled WPOA members had organized and had been holding meetings to fight the acceptance of the membership agreement between BMAand WPOA. "But the judge is the one who ordered the mediation, so I can't see much chance that the court would not accept the agreement. It's pretty much a done deal."     The agreement will give a perpetual easement to lakefront property to lakefront property owners who have entered the agreement. In exchange for that easement, the property owners will give BMA the title to that land and will pay an annual fee of $1 per linear foot of lakefront property.     Those opposing the agreement have asked: why do we need to pay BMA an annual fee for land we own and why do they want the titles to our land if they already own it?

Who owns the lake? BMA-WPOA agreement skis over that question Story ran Dec. 9, 2004.    Mediation between the Bexar-Medina-Atascosa Counties Water Improvement District No. 1 (BMA) and the Waterfront Property Owners Association (WPOA) hammered out a settlement agreement between the Natalia-based water district and Medina Lake lakefront property owners but may have actually settled nothing.     The disputed question: who owns the 12-foot flood easement around Medina Lake in Bandera County between the 1072 (full lake level) and the 1084 (flood stage) contour remains in dispute. Neither BMA nor WPOA signed on a dotted line agreeing that either side owns the land.     Additionally, if fewer than 150 people join the settlement agreement, BMA can abandon it.     WPOA President David Bowman says the deal was the best possible solution to the dispute, one that benefits the vast majority of people who lack funds to wage an all-out legal battle against BMA. WPOA member Tom Fett agrees. "I'm proud of the way everyone worked for the good of the lake. It helps the little guy the most. It doesn't give away any rights. We put a lot of effort into that." Fett said WPOA member Linda Bachmeier worked particularly hard on the mediation effort. He described the question of lakefront ownership as "a bundle of sticks. BMA has certain rights. Waterfront property owners have certain rights. Some people have ironclad deeds. BMA will probably never come after those people and they may not want to enter into the agreement."     After the July 2002 Flood, BMA sent letters to Wharton's Dock homeowners telling them that if their house flooded they were probably below the 1084 contour line and needed to move. Citizens coalesced into two separate groups, one on the Wharton's Dock side of the lake and one on the Pebble Beach side, to fight BMA's claims. They merged into the Waterfront Property Owners Association and hired San Antonio attorney Steve Rogers. 216th Judge Steve Ables ordered the two sides into mediation, which began in September.     WPOA board members approved the settlement on Wednesday, Dec. 1 by a 4-2 vote. Details of the agreement will be presented on Wednesday, Dec. 8 at Hill Country Elementary School at 7 p.m. and at the Lakehills United Methodist Church on Saturday, Dec. 11 at 10 a.m.     Briefly, BMA gives a perpetual easement to participating WPOA members. BMA will convey a perpetual easement without warranty to lakefront property owners who decide to participate. Irrevocable rights will include the right to enjoy and build on the member's contour land and lakefront, but not to install new buildings or improvements.     BMA gives no warranty of title and does not guarantee ownership. BMA is not responsible for disputes between landowners over boundaries, nor is it liable for flood damage.     If fewer than 150 lakefront property owners participate, the BMA board may rescind its approval. WPOA's attorney will prepare perpetual easements and deeds without warranty for members. The BMA board will review and approve and execute these deeds. These deeds will give members the right to have trespassers removed from their land.     Lakefront property owners will pay BMA an annual fee of $1 per linear foot for lake frontage. Fees are due by April 15 and BMA will charge a 5 percent penalty for late payments. Those with septic systems below the 1084 elevation must have those systems inspected.     Nothing in the agreement is construed as an admission by WPOA that BMA has the power to regulate water quality, land use or other matters outside its territorial boundaries. Past court decisions have already found that BMA does not have extra-territorial jurisdiction.     Bowman explains, "we can do anything except build and no one has to remove anything that is already built. We have the full use of lakefront property. It will solve a lot of questions. Lakefront property owners will have recorded documents. Anyone in Pebble Beach or Wharton's Dock would be silly not to jump on it. Those in Avalon may not want to join.     "We haven't made BMA happy and we haven't sold out property owners. It's up to them to join or not join. This will provide people the opportunity to stay on their land. I'm proud of the work we've done." Realistically, there are cost factors involved in further court action. Judge Ables put us in mediation without ruling on anything. We've held fundraisers, but are just at the beginning of a lawsuit and costs have already exceeded what we expected or raised."     To find out more details about the settlement, join the Saturday, Dec. 11 meeting at the Lakehills United Church, beginning at 10 a.m.

Medina dam stability assessment made public by Carol Smith Story ran Dec. 9, 2004.    The Medina Dam Stability Assessment performed at the specific request of the Texas Commission on Environmental Quality (TCEQ) after the July 2002 flood has been made public. Open meetings have been held in Castroville, San Antonio and Bandera by engineers for URS, the national engineering firm who conducted the assessment.     Officials from TCEQ, the San Antonio River Authority (SARA), and the Bexar-Medina-Atascosa Water Control and Improvement District No. 1 (BMA) were also in attendance.     The study began in February of 2003 and included not only a stability assessment of the Medina Dam, but also a Regional Flood Protection Planning Study. The Texas Water Development Board (TWDB) provided funding for this portion of the study, along with BMA, SARA, Medina County, and the cities of Castroville and La Coste. BMA and SARA funded the stability of the dam portion, with the entire study costing $300,000.     All dams in Texas must meet their individual performance criteria for a Probable Maximum Flood (PMF) which is determined in part, by the probable maximum precipitation as established by the National Weather Service. TCEQ requires that Medina Dam be able to withstand a PMF of overtopping the dam by 11 feet. According to URS, while the main section of the dam itself meets this criteria, the two abutment (or adjoining) sections roughly 70 feet high, do not. Therefore, based on this assessment, since the abutments don't meet the PMF standard, the entire dam does not meet TCEQ criteria.     Of the 7,490 dams which are monitored by TCEQ, Medina Dam is one of the 868 which are classified as "High Hazard." Classification of dams whether low, significant or high hazard are dependent on the loss of human life which would be expected if the dam should fail. High Hazard dams such as the Medina would also incur extensive damage to agricultural, industrial and commercial facilities, public utilities, highways and railroads. According to Warren Samuelson, Dam Safety Engineer with TCEQ, "Medina Dam would be considered a High Hazard even once the repairs have been made."     According to the URS model, a PMF event would cause Medina Dam to overturn and the toe of the abutments to become susceptible to erosion. Five piezometers have been installed to monitor changes in pressure within the dam's foundation. The URS Medina Dam model did show that the entire dam could withstand a flood event 4.7 feet above the peak level of the July 2002 flood, which would be 3.2 feet of water over the top of the dam.     A group of engineers from TCEQ, the Corp of Engineers and Freese and Nichols (a private company) inspected the dam together during the July 2002 flood, which has become the maximum flood event for Medina Lake to date. In the TCEQ Lake Medina Dam Safety Inspection Report for July 5 and July 6, 2002, the first recommendation is that "that the dam would undergo catastrophic failure if flood flows overtop the dam or if the right abutment is breached." Their report also states that "future rises should be monitored so that at least a four-hour advance evacuation warning be given to the public prior to the reservoir reaching the top of the dam.O Samuelson further stated that "the recommendations that we made in July 2002 have not been withdrawn."     The other portion of the URS study concentrates on flood protection and planning for the areas located below the Medina Dam. The National Weather Service forecast model for the entire Medina River Watershed will be updated and revised, which will result in improved flood warning for residents. Flood inundation maps were developed, requiring revisions in flood warnings and emergency evacuation procedures. Revisions in governmental, as well as community, emergency response requirements will also be needed. URS also recommends that sirens be used as a part of a regional flood warning network for municipalities in the Medina River corridor.

BMA approves mediation with WPOA Story ran Dec. 2, 2004.    Waterfront Property Owners Association President David Bowman announced Wednesday, Nov. 24, that the Bexar-Medina-Atascosa Water Improvement District No. 1 (BMA) voted to approve the parties' proposed settlement agreement following nearly three months of mediation.    At dispute is a 12-foot flood easement around Medina Lake between the 1072 (full lake level) and the 1084 (flood stage) contour line. WPOA members and attorney Steve Rogers invested three months of mediation talks with BMA board members at a Kerrville attorney's office.    At dispute is a 12-foot flood easement around Medina Lake between the 1072 (full lake level) and the 1084 (flood stage) contour line. Lakefront property owners have built improvements on the property and paid taxes on the land to Bandera County for years.    After the July 2002 Flood, BMA claimed that land and ordered Lakeshore Drive lakefront property owners whose homes had sustained flood damage to move.    Lakefront property owners organized to fight BMA's claims and hired San Antonio attorney Steve Rogers to represent them. In September, 216th Judicial District Judge Stephen Ables ordered the two sides to mediate in an attempt to reach a settlement. Rogers said Wednesday "the BMA board has approved this.    The WPOA still needs to approve it. I'm just the attorney. I can't speak for the board. But I think those who were in mediation are positive about it. Everyone has worked hard. As with any mediation in a lawsuit, there are things we like and things we don't like."    Actual details about the settlement agreement will not be released to the public until after the WPOA agrees to accept or reject it. Bowman said, "if the settlement agreement is approved by WPOA, it will be a historic and innovative resolution of disputes that have arisen concerning the ownership of waterfront property around Medina Lake. The agreement will remove uncertainty from the titles of waterfront property owners who choose to participate in the settlement, create a system for private control of and responsibility for lakefront land and provide measures to help maintain the excellent quality of the water in Medina Lake."    Bowman said that the parties, including a number of individual WPOA members, have spent hours in negotiations crafting an agreement that they hope will become a new model of cooperation between Medina Lake landowners and BMA.    "Under the settlement, all WPOA members who wish to participate in the agreement must be identified by March 2, 2005. If the settlement is approved, WPOA will hold general membership meetings early in December to discus the terms of the settlement, answer questions and explain how members can participate in the settlement."