Gage lawsuit continues, with more filings expected next week

Photo courtesy of Steve Davies via Flickr

BREWSTER COUNTY — A legal fight is still going between Brewster County Judge Eleazar Cano and J.P. Bryan, the owner of the Gage Hotel in Marathon. Bryan last year sued Brewster County officials — and later Cano specifically — arguing his constitutional rights were violated when the county temporarily shuttered hotels as a precaution against the coronavirus pandemic.

In a filing last month, David B. Fannin, the U.S. magistrate judge overseeing the case, issued his preliminary findings on the lawsuit. He recommended courts throw out aspects of Bryan’s case while allowing other claims to proceed.

Neither side was fully satisfied with the opinion — and in a joint court filing days later, lawyers for both Cano and Bryan asked for more time to file objections. Fannin agreed, setting a new filing deadline for next Friday, January 15.

The lawsuit by Bryan, a Houston-based oilman, dates back to the start of the coronavirus crisis. He first sued county officials in April, arguing he was owed up to around $100,000 in damages after mandatory health orders closed the Gage.

Bryan’s lawsuit made several constitutional claims, arguing his due process rights were violated because hotels (but not other types of businesses like shops) had been forced to close. He also argued that there was no “factual or legal basis” for the closures, because Governor Greg Abbott’s emergency orders had not closed hotels and because Brewster County at the time had no coronavirus cases.

The lawsuit took aim at Dr. Ekta Escovar, then the local health authority for Brewster County, arguing that the doctor had “expressed her personal fears” about coronavirus “without scientific support” and “should not be regarded as an expert.” Facing backlash from local residents over coronavirus guidance, Dr. Escovar resigned her position as health authority in September. Brewster County has not had a county health authority since.

In May, Governor Abbott, who was also facing backlash from business interests, banned local officials from issuing health orders that were stricter than his own, overturning temporary bans on hotels and short-term rentals. Coronavirus cases soon spiked in Brewster County, going from zero in mid-June to well over 100 by July 1. At press time, more than 800 Brewster County residents have fallen ill with coronavirus. At least eight county residents have died.

In his opinion, Judge Fannin was skeptical of claims made by Bryan’s lawyers that Brewster County officials hadn’t adequately identified a disaster when they issued emergency orders. Fannin noted there was an ongoing pandemic and argued that Cano had “complied” with state laws in his efforts to prevent “significant loss of life.” Fannin agreed with Cano that those aspects of the lawsuit should be dismissed.

Fannin was, however, more sympathetic to claims that Cano violated Bryan’s constitutional rights when he ordered Bryan’s hotel to close. He said Cano had made no arguments to show he wasn’t discriminating against business owners with his emergency rules, and therefore that Bryan may have had his equal-protection rights violated as “a member of a protected class — business owners.”

He argued that Cano’s orders had “deprived” Bryan “of the right to conduct business” and that Brewster County’s shuttering of the Gage could reasonably be construed as a “‘seizure’ of property,” possibly violating Bryan’s Fourth and Fourteenth Amendment rights. Fannin recommended that those claims be allowed to proceed in court.

That ruling came out on December 16 — and with the holiday season fast approaching then, lawyers for both Bryan and Cano asked for more time to dispute Judge Fannin’s opinion. Bryan’s lawyers cited Christmas and New Year’s and said they “would like to be able to meet with family and friends to the extent possible and allowable under a [sic] local and state orders.”

Cano’s lawyer, J. Eric Magee, also cited the holiday and said he wanted more time to argue that Bryan’s constitutional rights were not in fact violated. Judge Fannin agreed to push that filing deadline back to next week. With health workers in the Big Bend already receiving coronavirus vaccines, the pandemic may well end before the lawsuit.