Grossman v. City of El Paso

Full title: MAX GROSSMAN, Appellant/Cross-Appellee, v. CITY OF EL PASO…

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Nov 10, 2021

642 S.W.3d 85 (Tex. App. 2021)

Opinion

No. 08-19-00272-CV

11-10-2021

Max GROSSMAN, Appellant/Cross-Appellee, v. CITY OF EL PASO, Appellee/Cross-Appellant.

ATTORNEYS FOR APPELLANT/CROSS-APPELLEE: Lisa Hobbs, Kuhn Hobbs PLLC, 3307 Northland Dr. Ste. 310, Austin, TX 78731-4969, Carlos E. Cardenas, Attorney and Counselor at Law, 717 E. San Antonio, Third Floor - Toltec Building, El Paso, TX 79901. ATTORNEY FOR APPELLEE/CROSS-APPELLANT: Mark N. Osborn, Kemp Smith LLP, 221 N. Kansas, Suite 1700, El Paso, TX 79901.

GINA M. PALAFOX, Justice

ATTORNEYS FOR APPELLANT/CROSS-APPELLEE: Lisa Hobbs, Kuhn Hobbs PLLC, 3307 Northland Dr. Ste. 310, Austin, TX 78731-4969, Carlos E. Cardenas, Attorney and Counselor at Law, 717 E. San Antonio, Third Floor - Toltec Building, El Paso, TX 79901.

ATTORNEY FOR APPELLEE/CROSS-APPELLANT: Mark N. Osborn, Kemp Smith LLP, 221 N. Kansas, Suite 1700, El Paso, TX 79901.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

GINA M. PALAFOX, Justice By enacting the Antiquities Code of Texas (the Code), Chapter 191 of the Texas Natural Resources Act, the Legislature declared it the public policy of the State of Texas, and in its public interest, to locate, protect, and preserve, "all sites, objects, buildings, pre-twentieth century shipwrecks, and locations of historical, archeological, educational, or scientific interest," within the jurisdiction of the State.¹ And, such preservation interest extends to "prehistoric and historical American Indian or aboriginal campsites, dwellings, and habitation sites," or objects related thereto, which are located in, on, or under any land in the State.² To effectuate this policy and state interest, the Code further provides that citizens of Texas may bring an action for injunctive relief to enjoin violations or threatened violations of provisions of the chapter.³

1 See Tex. Nat. Res. Code Ann. §§ 191.001 -.174; see id. § 191.001 (chapter may be cited as the Antiquities Code of Texas); see also id. § 191.002.

2 See id. § 191.002.

3 See id. § 191.173.

This case concerns such an action brought in the context of a plan by the City of El Paso to build a multipurpose facility in a downtown neighborhood, on city-owned land.⁴ Appellant Max Grossman, a Texas resident and associate professor of art and architectural history at the University of Texas-El Paso, alleges the City is violating or threatening to violate provisions of the Code with regard to the archeological survey planned for the downtown project. Based on newly published research drawn from historic letters archived in Spain, Grossman learned of a Mescalero Apache peace camp existing, during the late 1700s, in the same area as the site now planned for the facility. By his live pleading, Grossman asserts the survey—in its current form—fails to properly account for the State's interest in locating, preserving, and protecting the archeological remains and resources of the newly identified peace camp. Seeking temporary injunctive relief to preserve the status quo and prevent a violation (or threatened violation) of the Code, Grossman alleges the City is obligated not to commence the project—including demolition of any currently existing buildings—until a valid archeological survey is completed. Without such relief, Grossman asserts the remains and resources of the historic peace camp will be lost forever. Because the City does not dispute the existence or location of the peace camp, or that the survey currently does not account for its existence, Grossman asserts the trial court abused its discretion in denying his application for a temporary injunction pending trial on the merits.

4 The underlying suit is one of two others brought in recent years over the City's downtown project. First, in Ex parte City of El Paso , 563 S.W.3d 517, 519 (Tex. App.—Austin 2018, pet. denied), the City preemptively filed a bond validation suit under Chapter 1205 of the Texas Government Code. See generally Tex. Gov't Code Ann. §§ 1205.001 -.152 (titled "Public Security Declaratory Judgment Actions," but often referred to as the "Expedited Declaratory Judgments Act" or "EDJA"). Grossman, the appellant herein, appeared personally as an "interested party" in the EDJA suit along with other individuals who generally asserted the authorizing ordinance had limited the function of the facility as one for "performing arts," not for "sports," as was being proposed by the City. Ex parte City of El Paso , 563 S.W.3d at 521. Second, in Grossman v. Wolfe , 578 S.W.3d 250, 253-54 (Tex. App.—Austin 2019, pet. denied), Grossman also filed an ultra vires claim for injunctive relief against the Executive Director of the Texas Historical Commission asserting the Director had issued an archeological permit for the same downtown project without adhering to requirements of the Antiquities Code of Texas. See Tex. Nat. Res. Code Ann. § 191.0525(c) ("If the committee determines that an archeological survey is necessary at the project location, the project may not commence until the archeological survey is completed."). The interplay of this appeal with these two cases is discussed in greater detail herein, where relevant.

Opposing this claim, the City asserts several arguments. First, the City questions the need for any survey revisions arguing the research design and scope of work do recognize the potential for locating Native American artifacts in general. Second, the City argues that the Texas Historical Commission—as the supervising agency over the permit—requested no changes to the survey after Grossman himself informed the agency of the breakthrough discovery. Third, on legal grounds, the City asserts that Grossman's claim is barred by governmental immunity, or res judicata, or both. And, based on prior litigation involving the financing of the project, the City further asserts the claim will be dismissed due to a permanent injunction against the filing of any suits. Lastly, on equitable grounds, the City questions Grossman's motive, claiming he is principally interested in preserving the buildings of the construction footprint, not the potential remains of the historic peace camp.

Following an evidentiary hearing, the trial court denied the City's plea to the jurisdiction and Grossman's application for a temporary injunction. On interlocutory cross-appeal, the parties challenge both of those rulings. Because we conclude the primary objective of the Antiquities Code is to effectuate the State's interest in preserving archeological sites and objects—including historic American Indian campsites or dwellings—we affirm the denial of the plea to the jurisdiction. And because we further find the evidence established a right to preserve the status quo of the subject matter of the suit pending a trial on the merits, we reverse the trial court's order denying Grossman's request for a temporary injunction and remand the cause to the trial court with instructions that it grant the temporary injunction.

I. BACKGROUND

At this time, the parties agree the City's planned project is located on public land and therefore subject to permit requirements set forth by the Antiquities Code of Texas. For context, we begin with a description of the project and the statutory framework governing the permit process. Following that description, we then turn to the factual and procedural background of the parties’ dispute.

A. The Project and its Location

To start, the City of El Paso adopted an ordinance for an election asking voters to authorize the issuance of bonds to finance several proposed projects within the city, including a multipurpose performing arts and entertainment center ("the MPC" or "the arena").⁵ Based on the election held November 6, 2012, voters approved the issuance of bonds to finance the City's proposed projects. The City later identified a downtown site for the MPC and earmarked $180 million for that project. The City planned to construct the facility within an 11.6-acre tract of land roughly covering four city blocks. Those blocks are part of a city neighborhood now known as "Duranguito," but otherwise known in prior years as the "Union Plaza."

5 The ordinance sought voter approval of general obligation bonds in the principal amount of slightly more than $228 million for "quality of life" projects, to include construction and renovation of new and existing facilities, that include certain museums, a Hispanic Cultural Center, a multipurpose performing arts and entertainment facility, and libraries. See Ex parte City of El Paso , 563 S.W.3d at 520.

The area of Duranguito is bounded by Paisano Drive to the south, Santa Fe Street to the east, the convention center to the north, and the Union Depot to the west. It holds historic prominence as an original neighborhood of El Paso, or birthplace of the community. As a First Ward of the city, the Anson Mills Plat of 1859 named the streets of Duranguito for the stagecoach routes frequented by visitors and residents. San Francisco and San Antonio streets reflect East-West travel; while the streets of Santa Fe and Chihuahua account for the North-South route. Currently, the neighborhood is occupied by a mix of buildings—both business and residential—along with parking lots, streets, and alleyways. The City has acquired ownership of all properties needed to accommodate construction of the new project. It plans to demolish existing structures standing within the project's footprint.

B. The Statutory Framework of the Antiquities Code

1. The state's preservation interest

To effectuate the state's declared public policy, the Texas Historical Commission ("the THC") is charged with protecting and preserving the archeological and historical resources of Texas. See TEX. NAT. RES. CODE ANN. §§ 191.051(b)(6) (general powers and duties); 191.003(1) ("Committee" defined as the "Texas Historical Commission"); 191.051(a) and (b) (the THC serves as "the legal custodian of all items described in this chapter that have been recovered and retained by the State of Texas"). Subchapter C of the Code details the powers and duties of the THC. See generally id. §§ 191.051 -.059. Among prescribed duties, the THC determines the site and designation of state archeological landmarks; enters into contracts providing for discovery operations and scientific investigations; and considers requests for, and issues permits for, survey and discovery, excavation, restoration, demolition or study of sites and landmarks. See id. § 191.051(b)(2), (3) and (4) ; see also id. §§ 191.003(2) (defining "Landmark"); 191.053 (contract provisions); 191.054 (permit provisions); 191.052 (providing the THC may promulgate rules and otherwise require permit conditions).

2. Requirements imposed on historically significant archeological sites

To effectuate THC supervision of protected state resources, the Code and rules adopted by the THC impose requirements on parties regarding certain projects. See id. §§ 191.0525-191.058; see also 13 TEX. ADMIN. CODE §§ 26.7(d)(1)-(4) (THC review of construction plans), 26.13-.18 (archeological permits). Before breaking ground at a project on public land , the person primarily responsible for the project or the person's agent must notify the THC. See TEX. NAT. RES. CODE ANN. § 191.0525(a). As relevant here, projects for a municipality require advance review "only if the project affects a cumulative area larger than five acres or disturbs a cumulative area of more than 5,000 cubic yards, whichever measure is triggered first, or if the project is inside a designated historic district or recorded archeological site." Id. § 191.0525(d).

Upon receiving notice of such a project, except in circumstances not applicable here, section 191.0525 provides that the THC shall promptly determine: (1) whether a historically significant archeological site is likely to be present at the project location; (2) whether additional action, if any, is needed to protect the site; and (3) whether an archeological survey is necessary. Id. § 191.0525(a)(1)-(3). When the THC determines a survey is necessary, section 191.0525 further provides, "the project may not commence until the archeological survey is completed." Id. § 191.0525(b).

If the THC determines that a survey is in the best interest of the State of Texas, the agency is empowered to issue a permit to other state agencies, political subdivisions, or certain qualified persons or entities to accomplish the required investigation. See id. § 191.054(a). The permit shall provide for "the survey and discovery, excavation, demolition, or restoration of, or the conduct of scientific or educational studies at, in, or on landmarks, or for the discovery of eligible landmarks on public land ...." See id. § 191.054(a); see also 13 TEX. ADMIN. CODE § 26.3(3). As relevant here, the term "political subdivision," is defined as "a local governmental entity created and operating under the laws of this state, including a city, county, school district, or special district created under Article III, Section 52(b)(1) or (2), or Article XVI, Section 59, of the Texas Constitution." See TEX. NAT. RES. CODE ANN. § 191.003(4). Supporting these requirements, the Code imposes obligations on those persons, firms, or corporations who conduct salvage or recovery operations on such projects. See id. § 191.131(a) (contract requirements); see also id. § 191.131(b) (permit requirements). Notably, no person, firm, or corporation may "conduct the operation in violation of the provisions of the permit." See id. § 191.131(b).

The Code further commands, "[t]he permit shall: (1) be on a form approved by the attorney general; (2) specify the location, nature of the activity, and the time period covered by the permit; and (3) provide for the termination of any right in the investigator or permittee under the permit on the violation of any of the terms of the permit." See id. § 191.054(c). Moreover, section 191.055 provides that all scientific investigations or recovery operations conducted under a permit or contract, must be carried out:

(1) under the general supervision of [the THC];

(2) in accordance with reasonable rules adopted by [the THC]; and

(3) in such manner that the maximum amount of historic, scientific, archeological, and educational information may be recovered and preserved in addition to the physical recovery of items.

See id. § 191.055.

3. The permit process

Because a substantial portion of the testimony and argument at the temporary injunction hearing related to the parties’ interpretation of what is required with regard to an application for an archeological permit, and what the City actually did in compliance thereto, we also set forth the pertinent rules of the THC with regard to permit requirements.

As required by the Code, the THC adopted rules in regard to the administration and enforcement of Code provisions. See TEX. NAT. RES. CODE ANN. § 191.055(2) ; see also 13 TEX. ADMIN. CODE §§ 26.1 - 26.28. Pursuant to administrative rules, archeological investigations or project work are overseen by the THC through the permitting process. See 13 TEX. ADMIN. CODE § 26.2(5) (citing TEX. NAT. RES. CODE ANN. §§ 191.054 and .055); see also id. § 26.7(a) (citing TEX. NAT. RES. CODE ANN. § 191.002 ). Upon submission of a completed application, the staff of the THC must respond within 30 days by notifying the applicant whether the permit application is complete and accepted for filing or by specifying that additional information is required for the review. 13 TEX. ADMIN. CODE § 26.14(a)(1). If no response is timely received from the THC, the permit is deemed granted by operation of the rules. See id. § 26.14(a)(4).

Upon substantive review of an application, the THC may issue a permit, issue a permit with special conditions, request additional information for review, request a revised scope of work or research design, or deny the permit application. Id. § 26.14(a). The Code provides a permit will contain "all special requirements governing that particular investigation[,]" and it must also be signed by the director of the Archeology Division of the THC, or his or her designated representative. Id. § 26.14(c). The investigation may begin upon receipt of notification of the assignment of a permit number. Id. § 26.14(a)(1). Thereafter, "[p]roposed changes in the terms and conditions of the permit must be approved by [the THC]." Id. § 26.14(i).

The steps for acquiring a THC permit for archeology are detailed in subchapter C of the administrative rules. See 13 TEX. ADMIN. CODE §§ 26.10 - 26.18. To begin, section 26.13 sets forth the requirements implicated whenever a state agency or political subdivision applies for a permit. See id. § 26.13(b). Section 26.13 requires that "[i]nvestigations undertaken on publicly owned cultural resources or to locate or discover such resources must be oriented toward solving a particular research problem, [preparing] ... a site for public interpretation, or for the purpose of salvaging information and specimens from a site threatened with immediate destruction." See id. § 26.13(a). To that aim, the permit application requires "a statement of the purpose of the investigation[,] ... an outline of the proposed work and research design[,] ... and ... evidence of adequate funds, personnel, equipment, and facilities to properly complete the proposed investigation." See id. § 26.13(c)(1)-(7). Research designs prepared prior to a field study are recognized as being "essential to the success of scientific objectives, resource management decision-making, and project management." See id. § 26.13(d).

Several points should be considered in formulating a research design. Id. First, that research designs "present the essential objectives of a project or study and the means by which those objectives will be attained." Id. § 26.13(d)(1). Second, that a research design provides "a logical basis for detailed project planning and assessment of resource significance." Id. § 26.13(d)(2). Third, that a research design may contain a wide range of theoretical and methodological approaches. Id. § 26.13(d)(3). A research design may address general research objectives or take a more focused orientation. Id. In either event, the following criteria must be met:

(A) Care should be taken to link the research design to existing topical and geographical bodies of data.

(B) The nature of the resources under investigation should be considered.

(C) The need to address a wide range of cultural and scientific resources should be considered.

(D) Applied research that addresses cultural resource management and impact-related issues should be recognized as necessary and incorporated into research designs whenever possible.

(E) The skills of the investigative personnel must be appropriate to the project goals and specifications in the research design. In many cases it may be desirable to include provisions for consultants with special expertise.

Id. § 26.13(d)(3)(A)-(E).

As a final point, research designs should not be conceived as rigid, unchanging plans. Id. § 26.13(d)(4). Instead, the rule states, "as circumstances warrant, the investigator is not relieved of responsibility to recognize other research." Id. Accordingly, section 26.13 provides that, "[a] conscious effort should be made to modify research designs to exploit new information efficiently." Id. In doing so, the section further states, "[t]he crucial objectives in the modification process are: (A) demonstrated progress in solving stated problems; and (B) subsequent modification of a research design on the basis of explicit, rational decisions intended to attain stated goals." Id.

Demonstrating the THC's ongoing supervision of permit obligations, section 26.18(a) provides, "[i]f the permittee, project sponsor, principal investigator or other professional personnel, or investigative firm or other professional firm fails to comply with any of the rules of the commission or any of the terms of the specific permit involved, or fails to properly conduct or complete the project, or fails to act in the best interest of the state, or fails to meet terms and conditions of defaulted permits, the commission may cancel the permit and notify the permittee of such cancellation ...." Id. § 26.18(a). And permit cancellation may occur even while the on-site work is being performed. If a permit is cancelled, the permittee, principal investigator, and other professional persons shall cease work immediately, remove all personnel and equipment, and vacate the site within 24 hours. Id. Thereafter, a cancelled permit may be reinstated by the THC if good cause is shown within 30 days. Id.

Emphasizing the importance of the Code's requirements, section 26.18(b) further mandates that, "[a] principal investigator and investigative firm or other professional firm shall not proceed with an investigation without applying for and receiving an appropriate permit by the commission, or without having been officially authorized by the commission to proceed prior to issuance of an emergency permit. Id. § 26.18(b). Moreover, project sponsors and permittees shall not encourage investigations on public lands in the State of Texas without a properly issued permit. Id. § 26.18(c). "Such investigations proceeding with the knowledge of the project sponsor and/or permittee constitute a violation of the Antiquities Code of Texas." Id.

C. Factual and Procedural Background

1. The lawsuits filed in El Paso and Travis County

In July 2017, Grossman filed the underlying suit in the 384th District Court of El Paso County against the City of El Paso with regard to its plan to build an arena in the Duranguito-Union Plaza neighborhood of the city. The original petition alleged the City had violated mandatory provisions of the Antiquities Code based on the City not having given advance notice to the THC of the City's planned project on public land. See TEX. NAT. RES. CODE ANN. § 191.0525. Among claims for relief, Grossman sought a permanent injunction ordering the City to properly notify the THC of the project and to take any and all other actions in compliance with section 191.0525 of the Code.

Grossman's suit asserted, "[m]any of the buildings the City has or will cause to be demolished as part of its arena project have historical and architectural significance." Relying on a 1998 survey, the suit claimed the Union Plaza area encompassed "part of the original Ponce de Leon ranch (El Paso's first community)," containing historic sites and buildings which would be impacted by construction during redevelopment. Along with the petition, affidavits were included indicating the City had been informed in December 2016 of its obligation to notify the THC, but it had not yet done so. Grossman also asserted the City planned to acquire—and thereafter demolish—many historic buildings of the established neighborhood.

Within the suit's factual background, Grossman revealed he had entered an appearance in a pending suit filed by the City. In May 2017, the City filed a bond validation suit in the 250th District Court of Travis County, Texas, Cause No. D-1-GN-17-001888, pursuant to Chapter 1205 of the Government Code. See Ex parte City of El Paso , 563 S.W.3d 517, 519-20 (Tex. App.—Austin 2018, pet. denied). Concerned with possible opposition to plans, the City sought to validate the general obligation bonds that were planned to finance the construction of several projects including the proposed MPC or downtown arena. Along with other interested parties, Grossman appeared in the Travis County suit asserting the city's ordinance had authorized a facility for "performing arts," not for "sports," as was then contemplated by the City. Id. at 521. The other parties who appeared in the suit presented arguments asserting the City could only use bond funds to improve an existing facility, not to build new structures; that the failure to specify the downtown location of the arena on the voting ballot was fraudulent; and, that the downtown facility could host only "cultural and performing arts," not sports. Id. Of note, the pendency of the bond validation suit impacted the relief Grossman sought in the El Paso suit as the Travis County court had already issued a temporary injunction prohibiting the City from demolishing any structures within the proposed footprint of the City's downtown project.

Following a bench trial, the Travis County district court announced it would find in favor of the City regarding the validity and legality of the bond expenditures, but it had concluded that the expenditure of funds on a sports arena was not allowed under the terms of the ordinance. Id. Before rendition of a final judgment, Grossman had by then filed his El Paso suit. Id. The City asked the Travis County district court to enjoin further prosecution of the El Paso lawsuit pursuant to TEX. GOV'T CODE ANN. § 1205.061 (authorizing injunction), or under its equitable power to issue an anti-suit injunction. Id. at 521-22. The Travis County district court denied the City's request to permanently enjoin the El Paso suit. Id. at 522. Thereafter, the City appealed to the Third Court of Appeals in Austin.⁶ Id. at 528.

6 On appeal, the Austin Court of Appeals found the grammatically correct reading of the city's ordinance authorized it "to build a facility that is suitable for multiple performing arts and entertainment purposes, including sports." Ex parte City of El Paso , 563 S.W.3d at 525. Thereafter, Grossman and one other party who had intervened in the bond validation suit filed petitions for review with the Supreme Court of Texas. Petition for Review, Ex parte City of El Paso , No. 19-0022 (denied Jan. 17, 2020); Petition for Review #2, Ex parte City of El Paso , No. 19-0022 (denied Jan. 17, 2020). After both petitions were denied, Grossman and the other party parties filed motions for rehearing, which were denied in June 2020.

Meanwhile, in the El Paso suit, the City filed a plea to the jurisdiction in September 2017. The City argued the Uniform Declaratory Judgment Act did not contain a waiver of governmental immunity, and the Antiquities Code only provided a limited waiver that did not authorize declaratory relief. After the trial court denied the jurisdictional plea, the City filed an interlocutory appeal. See City of El Paso v. Grossman , No. 02-17-00384-CV, 2018 WL 4140461, at *1 (Tex. App.—Fort Worth Aug. 30, 2018, no pet.) (mem. op.). Although the appeal was initially filed with this Court, the Supreme Court of Texas subsequently transferred the case to the Second Court of Appeals in Fort Worth. See id. , at *2.

While the appeals remained pending, the City, through its agent Moore Archeological Consulting, Inc. ("Moore Consulting"), provided notice to the THC of the planned arena project on May 23, 2018. Douglas Mangum, a principal investigator of Moore Consulting, sent a letter informing the THC it had been hired to undertake an archeological examination on behalf of the City for a proposed project in downtown El Paso. The letter described the City had planned to build a "Multipurpose Performing Arts and Entertainment Center" at the project site. Mangum acknowledged the scale of the project exceeded the threshold requirements for THC notification. Mangum further disclosed that "most of the extant structures present within the project footprint area will be demolished." He also indicated, "it is anticipated that ground-disturbing excavations will take place down to archeologically significant depths."

Additionally, Mangum acknowledged the tract of land of the proposed project had previously been evaluated by a THC reviewer in August 2000. He described, "[a]t that time, it was noted that an archaeological survey would be required in the event that any constructions were planned that would exceed three feet in depth." He further represented that qualified staff members of his firm were then performing "in-depth archival research of the history of the project area and its immediate surroundings, including the extant buildings and their use/occupation over time." Mangum asserted, "[w]e believe that there is demonstrated potential for historic and even prehistoric cultural resources within the tract wherever prior deep impacts have not already disturbed or destroyed them." Upon receipt of a response from the THC, the letter disclosed that Mangum's firm planned to develop a research design and permit application for a subsurface survey of the tract. Mangum assured, "[t]his research design will be deeply informed by the results of the archival investigations."

By letter dated June 27, 2018, the THC confirmed the proposed project was subject to the Antiquities Code of Texas given the project was being conducted "on behalf of the City of El Paso, a political subdivision of the State, and on land that is owned or will be acquired by the City ...." Accordingly, the THC requested that Mangum submit a permit application and research design for THC review.

2. The City applies for, and receives, an archeological permit

On August 8, 2018, the City of El Paso, as land owner, and Douglas Mangum, as principal investigator employed by Moore Consulting, submitted an Antiquities Permit Application on the THC's required form. The application attached a document titled, "Scope of Work and Research Design for Archeological Investigations in Support of the Proposed El Paso Multipurpose Performing Arts Center, El Paso County, Texas" (the Survey), dated August 7, 2018.⁷

7 The original Scope of Work and Research Design was dated July 11, 2018. But, on submission to the THC, the document was dated August 7, 2018. Later, it was revised and dated September 27, 2018.

The Survey proposed the project area be investigated in phases, the first two of which are pertinent here. The first phase would involve a remote sensing survey conducted using ground penetrating radar ("GPR"). The Survey specifically recommended that open spaces (e.g., streets, vacant lots, parking lots, walkways) be examined using such GPR. The proposal further described, "[a]s buildings currently extant within the project area are demolished down to the current ground surface, the footprints of these spaces, too, will be surveyed by GPR until 100% of [the Arena] footprint has been examined." The results of this GPR would then be evaluated to determine a focused strategy for conducting the second phase—a mechanical survey of the project area. This mechanical survey would include shallow surface scraping, excavation of exploratory trenches in strategic locations, and sifting of extracted fill using 1/4-inch screens.

The Survey's research design identified source materials relied on in support of the description of archeological evidence of human occupation of the project area. The document identifies the project area as the "Trans-Pecos region." Extending into the Republic of Mexico, the Historic period of that area is described as beginning in 1659, "with the establishment of Mission de Nuestra Señora de Guadalupe at El Paso del Norte (now Ciudad Juárez), immediately on the south side of the Rio Grande." The Survey asserts this Juárez mission served as an important waypoint on the road from Mexico City to Santa Fe. It further notes, "review of several period maps of the region shows no Hispanic settlements north of the river, on the site of modern El Paso, until the Mexican national period." It further provides, however, "[s]everal Apache groups were also present in the El Paso area during the Historic period including the Mescalero, Natagé, and Gila bands (Newcomb 1961; Sonnichsen 1968)." Identifying the origin of modern-day El Paso, the Survey claims:

In 1827, Juan Maria Ponce de Leon, a wealthy resident of Paso del Norte, received a grant of land north of the Rio Grande which would eventually form the nucleus of modern downtown El Paso, including the project area (Bowden 1969; Metz 1999; Strickland 1963; Timmons 1990). Ponce built an adobe house and other outbuildings, began an acequia system, planted vineyards and orchards, and raised livestock north of the river.

Following the submission of the permit application, the City awaited a response from the THC. With regard to the pending litigation, the City's submission directly impacted the interlocutory appeal pending in the Fort Worth Court of Appeals. On August 30, 2018, the court issued a two-part ruling. City of El Paso , 2018 WL 4140461, at *1. First, the court held, "the portion of Grossman's original petition requesting a declaratory judgment that the City be required to properly notify THC [was] moot ...." Id. , at *3. Second, it also held the remainder of Grossman's claim for declaratory judgment "appear[ ] merely to be unripe for our review." Id. In other words, the court decided the trial court was best suited to determine any pending claim. Based on these rulings, the court dismissed the City's interlocutory appeal and released the temporary injunction that had been issued pending the appeal. Id.

With jurisdiction returned to the trial court, the City subsequently filed, on September 27, 2018, a motion to dissolve temporary agreed order and to deny Grossman's request for temporary injunction. A week later, the City also filed a second plea to the jurisdiction with respect to Grossman's declaratory judgment cause of action. As part of his response, Grossman opposed the jurisdictional plea and further asserted there remained a need for temporary orders. He urged that, "Duranguito must be left undisturbed until the survey has been completed and approved by the THC and any safeguards required by the THC in the Permit are implemented." Before the trial court ruled on the request for temporary relief, however, the circumstances changed.

On October 15, 2018, the THC issued permit number 8525 (the "Permit"), authorizing an "Intensive Survey," on a potential or designated landmark, or other public land, in downtown El Paso. On the face of the Permit, it listed the public land as being owned or controlled by the City of El Paso, which it thereafter referred to as the "Permittee." Moreover, Douglas Mangum and Moore Archeological Consulting, Inc., were named as the Principal Investigator and Investigative Firm, respectively. The Permit reflects it was effective for a period of 10 years, expiring on October 15, 2028. Upon completion of the final permit report, it further provided that the "artifacts, field notes, and other data will be placed in a permanent curatorial repository at: Centennial Museum, UT of El Paso." The Permit described the Scope of Work consisted of "Remote Sensing and Mechanical Survey of Project Area (See Application scope of work and research design for additional details)[.]" Following a list of terms and conditions that must be followed, the Permit was signed by the Executive Director of the THC and the Archeology Division Director.

Days after permit issuance, Grossman's attorney sent a letter to the THC. Stating he had received an unsigned copy of the permit, Grossman's attorney noted he had reviewed the underlying application, the scope of work and the research design prepared for the City's proposed project, and he wanted to point out that part of the scope of work, if performed, would violate Section 191.0525(a)(3) of the Antiquities Code. Specifically, he pointed to provisions indicating that buildings within the project area would be demolished, to ground surface, while the open spaces were examined with remote sensing technology. After quoting from the statutory provision prohibiting the commencement of a project until after completion of an archeological survey, the letter asserted, "[d]emolishing the buildings on the [project] site is tantamount to commencing construction of the project." In closing, the letter requested the THC to immediately withdraw approval of the part of the scope of work that called for demolition of buildings on the site until completion of the archeological survey.

On October 25, 2018, Grossman and the City entered into a Rule 11 Agreement in connection with the El Paso lawsuit. Grossman agreed to amend his pleading to remove a declaratory judgment action against the City and proceed solely pursuant to the claim under Chapter 191 of the Antiquities Code. In exchange, the City agreed it would not begin, or otherwise permit others to begin, actual demolition of any building in the project's footprint prior to a hearing on Grossman's application for a temporary injunction.

As agreed, Grossman soon filed an amended petition asserting the project could not commence until the archeological survey was completed pursuant to Antiquities Code Section 191.0525(b). See TEX. NAT. RES. CODE ANN. § 191.0525(b) ("If the [THC] determines that an archeological survey is necessary at the project location, the project may not commence until the archeological survey is completed."). The factual background of the amended petition described that many of the buildings in the project footprint have historical and architectural significance. Although Grossman acknowledged the City had since complied with notice provisions of the Antiquities Code, as well as having since obtained a permit from the THC, he further alleged the City's obligations were not fully satisfied. The amended petition sought an order requiring the City to amend the scope of work attached to its permit application to remove any proposal to demolish buildings before the survey was completed.

3. The suit filed against the Executive Director of the THC

With the filing of the amended petition, Grossman also revealed he had since filed suit in Travis County against Mark Wolfe, the Executive Director of the THC (the "Wolfe suit").⁸ In that suit, Grossman alleged the permit issued to the City was not valid because (1) Wolfe acted ultra vires by issuing the permit himself without the Commission's approval, and (2) the permit violated the Code by allowing the City to demolish the existing buildings before the archeological survey was completed. See Grossman v. Wolfe , 578 S.W.3d 250, 254 (Tex. App.—Austin 2019, pet. denied) ; see also TEX. NAT. RES. CODE ANN. § 191.0525(c) ("the project may not commence until the archeological survey is completed"). Grossman requested the district court declare the permit void and issue an injunction prohibiting the City from conducting the survey as authorized by Director Wolfe. Wolfe , 578 S.W.3d at 254.

8 See Grossman v. Wolfe , 578 S.W.3d 250, 253 (Tex. App.—Austin 2019, pet. denied).

The City soon intervened in the suit against Director Wolfe, asserting a general denial and joining Wolfe in urging that Grossman's ultra vires claims were barred by sovereign immunity. Id. at 255. After sustaining the jurisdictional plea, the trial court dismissed Grossman's claim against Wolfe. Id. Grossman appealed that decision to the Third Court of Appeals, which issued a decision on June 21, 2019.

On appeal, the court held that Grossman had failed to assert an ultra vires claim against Wolfe. Id. The decision also addressed Grossman's contention that Section 191.173 of the Code waived Wolfe's immunity. Id. at 257 (citing TEX. NAT. RES. CODE ANN. § 191.173(a) ) ("[a] citizen of the State of Texas may bring an action in any court of competent jurisdiction for restraining orders and injunctive relief to restrain and enjoin violations or threatened violations of this chapter ...."). Ultimately, the court rejected Grossman's waiver argument—which was asserted against Wolfe as Executive Director of the THC—holding instead that section 191.173 does not contain such a waiver of sovereign immunity. Wolfe , 578 S.W.3d at 261. Following the adverse ruling, Grossman filed a petition for review in the Supreme Court of Texas.⁹

9 Petition for Review, Ex parte City of El Paso , No. 19-0022 (denied Jan. 17, 2020).

Meanwhile, in the underlying suit pending in the El Paso district court, the trial court signed an agreed order staying the case until the earlier of: (1) a final decision by the Supreme Court of Texas in Ex parte City of El Paso , Cause No. 19-0022, or (2) a final decision by the Third Court of Appels in Grossman v. Wolfe , Cause No. 03-19-00002-CV. Consistent with the stay order, the THC informed the City, by letter dated June 24, 2019, that the archeological permit for the project was suspended until further notice.

4. Newly discovered research during the interim stay

While appeals remained pending, Grossman directed his attorney to send correspondence to the THC and to the City about newly discovered research that impacted the arena project. As directed, Grossman's counsel, Francis S. Ainsa, Jr., sent a letter dated September 3, 2019. The letter opened with the following line:

Please consider this letter to be a formal request to the Texas Historical Commission (THC) to require the City of El Paso to revise the document entitled Research Design for the City of El Paso Multipurpose Arts and Entertainment Center, dated July 10, 2018, and all amendments or supplements thereto that were prepared by its archeological consultant Moore Archeological Consulting, Inc.

The Ainsa letter based the request for a revised scope of work on research newly revealed in a book authored by Mark Santiago, which was published in October 2018. Santiago titled the book, A BAD PEACE AND A GOOD WAR—SPAIN AND THE MESCALERO APACHE UPRISING 1795-1799. The letter further described that Santiago's book was "widely regarded as seminal because it is based on newly discovered Spanish Colonial documents that were newly found in various archives." Attorney Ainsa further asserted the source documents of the research reveal "completely new information that has radically revised our knowledge of the history of the relations between the Spanish and the Mescalero Apaches at the El Paso Rio Grande border."

Specifically, the letter described the connection between the newly discovered research and the arena project permit, as follows:

Mr. Santiago's book is enormously significant for the history of El Paso because it has established for the first time that there was a large Mescalero Apache peace camp on the north bank of the Rio Grande, directly opposite Paso del Norte (now called Ciudad Juárez). Experts that have been consulted by my client have opined that the area that we informally refer to as Duranguito, which is the subject of the Permit and the Research Design, was located within the Peace Establishment (a/k/a Peace Camp), since at the time it lay on the north bank of the Rio Grande at the closest point to Paso del Norte. Apaches were encamped at this Peace Camp intermittently between 1778 and 1825. Between 1790 and 1794 they occupied the site continuously and reached a peak population of more than 500.

Additionally, the letter informed the THC that certain experts had unanimously affirmed that Moore Consulting's research design was invalid, or insufficient, not only because it failed to account for the peace establishment discovered by Santiago's work, but also, because it did not contain a scope of work designed to uncover, study, and retrieve artifacts from the peace establishment era. The letter requested the existing permit remain suspended until a completely new research design and scope of work could be developed. Enclosed with the letter, attorney Ainsa included declarations from six persons identified as "experts" who unanimously affirm that the research design prepared by Moore Consulting is invalid or insufficient because it neither accounts for the Peace Establishment in Duranguito, nor does the related scope of work attempt to uncover, study, and retrieve any artifacts from the Peace Establishment era nor preserve the area for future study. The six declarants included Matthew Babcock, Ph.D., David Romo, Ph.D., Mark Cioc-Ortega, Ph.D., Harry W. Clark, David Carmichael, Ph.D., and Mark Santiago. Neither the THC nor the City responded to Ainsa's letter.

Instead, on October 7, 2019, the THC notified the City that the archeological permit had been reinstated following the denial of the petition for review by the Supreme Court of Texas in Grossman v. Wolfe , No. 19-0521 (Tex. Aug. 9, 2019). And, on a second point, the letter informed the City of "a recent publication by Mark Santiago titled A BAD PEACE AND A GOOD WAR—SPAIN AND THE MESCALERO APACHE UPRISING 1795-1799." The letter further described the book as reporting on "recently discovered and translated Spanish Colonial documents that reveal new information on Spanish and Mescalero Apache relations, including a description of a Mescalero Apache peace establishment along the northern banks of the Rio Grande." The letter further noted, "[s]ome experts believe the area referred to as Duranguito may be located within this establishment." The THC recommended that the City familiarize itself with Santiago's work and consider the potential for encountering cultural deposits associated with the peace camp during the investigations.

5. The amended El Paso suit

The same date of the THC letter, Grossman again amended his petition of this underlying suit. The amended petition asserted, "the Project should not proceed until a completely new Research Design can be developed that properly accounts for the existence of the Peace Establishment in Duranguito and contains an acceptable Scope of Work that is designed to uncover, study, and retrieve artifacts from the Peace Establishment era and preserve this area for future study." Grossman's amended petition requested, before trial on the merits, that the trial court grant a temporary order enjoining the City from performing the archeological survey approved by the permit, until the research design and scope of work are modified to account for the Peace Establishment in Duranguito.

Thereafter, on October 21, 2019, the trial court conducted a two-day evidentiary hearing on the application for temporary injunction, as well as hearing argument on the City's plea to the jurisdiction. In addition to Grossman and Mangum, the principal investigator of Moore Consulting, the court also heard from three other witnesses having expertise in archeology, anthropology, and borderland history. Grossman and his witnesses gave opinions regarding what they perceived to be deficiencies in the research performed by Moore Consulting and the methods it proposed for conducting the archeological survey, including criticism of demolishing the buildings before completion of the survey, the proposed depth of excavation, and the use of 1/4-inch screens.

After taking the matter under advisement, the trial court denied both the application for a temporary injunction and the plea to the jurisdiction. Afterward, both parties appealed. We consolidated both appeals into the case presently before us. We also granted a motion for emergency relief staying commencement of the project—including any demolition of buildings within the project footprint—until the Court had the opportunity to fully review the appeal.

II. ISSUES ON CROSS-APPEAL

In a single issue, Grossman contends the trial court abused its discretion by denying his request for a temporary injunction, which he brought based on his claim of violations or threatened violations of the Antiquities Code of Texas. Grossman asserts the denial of injunctive relief essentially gives the green light to the City to proceed with its project on public land with no protection in place for safeguarding the resources and remains of the Mescalero Apache Indian Tribe that are undisputedly located within the area of the project.

On cross-appeal, the City also presents a single issue contending the trial court erred by denying its plea to the jurisdiction. The City contends the trial court should have dismissed Grossman's suit because his claims are barred by governmental immunity.

As a threshold issue, we turn first to the City's Plea to the Jurisdiction.

III. THE PLEA TO THE JURISDICTION

The City asserts the trial court erred when it denied its plea to the jurisdiction. Specifically, the City argues that Grossman's claims are barred by governmental immunity.

A. Standard of Review

Whether a court has subject matter jurisdiction is a question of law and is, therefore, subject to de novo review. City of Houston v. Rhule , 417 S.W.3d 440, 442 (Tex. 2013) ; Tex. Dep't of Transp. v. A.P.I. Pipe & Supply , LLC , 397 S.W.3d 162, 166 (Tex. 2013). When a plea to the jurisdiction challenges the pleadings, the reviewing court determines whether the plaintiff has alleged facts affirmatively demonstrating the court's jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ; Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). The court construes the pleadings liberally in favor of the plaintiff. Miranda , 133 S.W.3d at 226.

B. Governmental Immunity

"Sovereign immunity protects the state and its various divisions, such as agencies and boards, from suit and liability, whereas governmental immunity provides similar protection to the political subdivisions of the state, such as counties, cities, and school districts." Harris Cty. v. Annab , 547 S.W.3d 609, 612 (Tex. 2018) (quoting Travis Cent. Appraisal Dist. v. Norman , 342 S.W.3d 54, 57-58 (Tex. 2011) ). Unless waived, governmental immunity defeats the trial court's subject matter jurisdiction. See City of Houston v. Houston Mun. Employees’ Pension Sys. , 549 S.W.3d 566, 575 (Tex. 2018) ; Reata Constr. Corp. v. City of Dallas , 197 S.W.3d 371, 374 (Tex. 2006). Waiver of such immunity may be accomplished by the Legislature, but only if the waiver is "clear and unambiguous." See Annab , 547 S.W.3d at 613 ; Oncor Elec. Delivery Co. v. Dallas Area Rapid Transit , 369 S.W.3d 845, 849 (Tex. 2012) ; TEX. GOV'T CODE ANN. § 311.034.

As the Supreme Court of Texas has instructed, the clear and unambiguous requirement, "is not an end in itself, but merely a method to guarantee that courts adhere to legislative intent." Kerrville State Hosp. v. Fernandez , 28 S.W.3d 1, 3 (Tex. 2000). The Supreme Court cautioned that, "the doctrine should not be applied mechanically to defeat the true purpose of the law." Id. The Court reaffirmed that it had explained several years prior that legislative intent remained the primary objective in deciding whether immunity has been waived:

The rule requiring a waiver of governmental immunity to be clear and unambiguous cannot be applied so rigidly that the almost certain intent of the Legislature is disregarded. Legislative intent remains the polestar of statutory construction. We will not read statutory language to be pointless if it is reasonably susceptible of another construction. If a statute leaves no reasonable doubt of its purpose, we will not require perfect clarity, even in determining whether governmental immunity has been waived.

Id. (quoting City of LaPorte v. Barfield , 898 S.W.2d 288, 292 (Tex. 1995) (citations omitted)). Thus, "[t]he polestar of statutory construction is legislative intent, which we determine from the enacted language." In re Tex. Educ. Agency , 619 S.W.3d 679, 687 (Tex. 2021). C. Application

In opposing the City's argument, Grossman responds, first, that the City has already conceded in an earlier plea to the jurisdiction that the Antiquities Code includes a limited waiver of immunity.¹⁰ Regardless, even if conceded, we must still recognize that governmental immunity implicates subject matter jurisdiction. Engelman Irrigation Dist. v. Shields Brothers, Inc. , 514 S.W.3d 746, 751 (Tex. 2017) ; Rusk State Hosp. v. Black , 392 S.W.3d 88, 91 (Tex. 2012). And, for courts, such jurisdiction "cannot be conferred by consent, waiver, or estoppel at any time." Bustamante v. Miranda & Maldonado, P.C. , 569 S.W.3d 852, 863 (Tex. App.—El Paso 2019, no pet.). Accordingly, we first hold that the City did not earlier concede that the trial court lacked jurisdiction nor did it waive its right to assert governmental immunity as a basis for a lack of jurisdiction.

10 Even so, the City argued in that prior plea that it retained its governmental immunity.

Turning to the merits of the issue, Grossman contends the Legislature waived the City's governmental immunity by enacting Section 191.173 of the Antiquities Code. See TEX. NAT. RES. CODE ANN. § 191.173. That provision states, in pertinent part, that "[a] citizen of the State of Texas may bring an action in any court of competent jurisdiction for restraining orders and injunctive relief to restrain and enjoin violations or threatened violations of this chapter ...." TEX. NAT. RES. CODE ANN. § 191.173(a). In plain terms, this language clearly confers standing on any Texas citizen, including Grossman, to bring an action regardless of whether he can show himself individually aggrieved by the violation or threatened violation. See Wolfe , 578 S.W.3d at 257-58. The question remains, though, whether this language evinces an intent by the Legislature to waive the City's governmental immunity. In other words, while the statute clearly provides that Grossman himself may sue on the basis of the state's public interest, we must further determine whether it provides that a suit for injunctive relief may be brought against a political subdivision such as the City of El Paso.

On cross-appeal, the City asserts that Grossman wants the courts to intercede and force the THC to issue a different permit. The Third Court of Appeals held in Wolfe that "the Antiquities Code does not waive the [THC's] sovereign immunity." Wolfe , 578 S.W.3d at 261. For that holding it relied on its previous decision in Bacon v. Texas Historical Commission , 411 S.W.3d 161 (Tex. App.—Austin 2013, no pet.). The statute at issue in Bacon provided, in language nearly identical to section 191.173, that "any resident of this state may file suit in district court to restrain and enjoin a violation or threatened violation of this chapter or Chapter 191, Natural Resources Code ...." TEX. GOV'T CODE ANN. § 442.012(a). The court rejected Bacon's contention that this language waived the THC's immunity because it "mentions nothing about immunity or governmental defendants" and "[a]s such, it is not a clear and unambiguous waiver of sovereign immunity." Bacon , 411 S.W.3d at 177. Being distinct from Wolfe , however, Grossman's pleading at issue here does not challenge any decisions of the THC. Rather, he asserts a claim solely against the City, not the THC; and such claim is based on the City's actions only, that is, that it plans to break ground at a project on local, public land of a size qualifying for THC review and supervision. See TEX. NAT. RES. CODE ANN. § 191.0525(a) and (d).

Instead of the decision of Wolfe , we are guided here by recent instructions of the Supreme Court of Texas in Hillman v. Nueces Cty , 579 S.W.3d 354, 360 (Tex. 2019). For "deciding whether a statute clearly and unambiguously waives governmental immunity," Hillman instructs courts to:

(1) consider whether the statutory provisions, even if not a model of clarity, waive immunity without doubt;

(2) resolve any ambiguity as to waiver ... in favor of retaining immunity;

(3) generally[,] find waiver if the Legislature requires that the [governmental] entity be joined in a lawsuit even though the entity would otherwise be immune from suit;

(4) consider whether the legislature provided an objective limitation on the governmental entity's potential liability; and

(5) consider whether the statutory provisions would serve any purpose absent a waiver of immunity.

Id. (internal quotation marks omitted).

Applying this analysis to section 191.173, it is apparent that neither factor one nor factor three demonstrates a clear and unambiguous waiver of governmental immunity. The statute makes no mention of immunity or of governmental defendants per se and does not necessarily require that a governmental entity be joined in a lawsuit. See TEX. NAT. RES. CODE ANN. § 191.173 ; see also Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 698 (Tex. 2003) (statute authorizing patient to file suit but not expressly authorizing suit against the State did not waive sovereign immunity).

Factor four, however, does weigh in favor of recognizing a waiver of immunity. Section 191.173 of the Code provides an objective limitation on potential liability by authorizing only restraining orders and injunctive relief. See TEX. NAT. RES. CODE ANN. § 191.173. The Supreme Court has recognized that "the modern justification for immunity [is] protecting the public fisc." City of El Paso v. Heinrich , 284 S.W.3d 366, 375-76 (Tex. 2009) (citing Tooke v. City of Mexia , 197 S.W.3d 325, 331-32 (Tex. 2006) ); see TEX. GOV'T CODE ANN. § 311.034 (reciting "legislature's interest in managing state fiscal matters" as underlying sovereign immunity). Because section 191.173 does not authorize a suit for damages, but rather, only permits injunctive relief, a finding that it contains a waiver of governmental immunity does not run contrary to the Legislature's interest in protecting the public's financial resources. See Taylor , 106 S.W.3d at 701. To that extent, there is no potential governmental liability at risk.

Thus, we turn next to the fifth factor—whether the statute would serve any purpose absent a waiver of immunity. See Hillman , 579 S.W.3d at 360. Grossman contends that "[t]he mandates, requirements and duties imposed by the Antiquities Code relate primarily to restrictions placed on public land projects." Consequently, he urges, the Code "undoubtedly contemplates suits against governmental entities" and, therefore, waives governmental immunity.

The City, on the other hand, argues that the Code contains provisions that apply to private persons or entities. It cites, for example, section 191.131, which provides that "[n]o person, firm, or corporation may conduct a salvage or recovery operation without first obtaining a contract." TEX. NAT. RES. CODE ANN. § 191.131(a). That prohibition would apply to a private person or entity and would subject that private person or entity to suit under section 191.173. See id. ; see also TEX. NAT. RES. CODE ANN. §§ 191.132, 191.133. The City concludes that, because some Code provisions can be enforced against private persons or entities, section 191.173 may be given meaning even if governmental immunity is retained.

While some provisions of the Code may apply to conduct by private actors or to private lands, we agree with Grossman that the primary objective of the Code is to effectuate the State's public policy and its interest in locating, protecting, and preserving certain historic, archeological, educational or scientific sites and objects found on public land and subject to the control of governmental entities. Indeed, the following provisions expressly apply only to public properties: section 191.0525 ("Before breaking ground at a project location on state or local public land ..."); section 191.054 ("The [THC] may issue a permit ... for the survey and discovery, excavation, demolition, or restoration of, or the conduct of scientific or educational studies at, in, or on landmarks, or for the discovery of eligible landmarks on public land ..."); section 191.091 (shipwrecks and buried treasure "located in, on, or under the surface of land belonging to the State of Texas ..."); section 191.092 (buildings, artifacts, etc. "located in, on, or under the surface of any land belonging to the State of Texas or to any county, city, or political subdivision of the state ..."); section 191.093 (identifying landmarks as "the sole property of the State of Texas ..."); section 191.098 ("A state agency may not alter, renovate, or demolish a building possessed by the state ...").

Because the Code predominantly applies to public properties, it is apparent that the actors primarily contemplated by the Code are either governmental entities themselves or those acting on such entities’ behalf. In the absence of a waiver of governmental immunity, the provisions noted above all lack meaning because they would otherwise be incapable of any enforcement other than by request for injunctive relief. Cf. Barfield , 898 S.W.2d at 296-97 ("the Legislature must have intended by the Anti-Retaliation Law to waive immunity for wrongful discharge for cities which did not waive immunity voluntarily").

Through enactment of the Code, the Legislature created a statutory framework designed to ensure the discovery and preservation of cultural, educational, scientific, or historic assets in accordance with the public policy and public interest of the State. See TEX. NAT. RES. CODE ANN. § 191.002. The Legislature further emphasized the public's interest in achieving the stated policy goal by authorizing any Texas citizen to bring suit to require compliance with the statutory framework. See id. § 191.173. Exempting governmental entities who are owners of public land from the imposition of injunctive relief—based on established violations or threatened violations of the Code—would directly undermine the efficacy of the statute to the detriment of its declared goal of locating, protecting, and preserving the archeologically significant objects and treasures found in, on, or under land within the State's jurisdiction. And subjecting governmental entities to suits for injunctive relief does not impinge on the legislative interest in protecting public resources—the justification for conferring immunity—because such suit does not seek monetary damages. See id. ; see also Heinrich , 284 S.W.3d at 375-76 (protecting public fisc is modern justification for immunity).

By its plain language, the Code expressly declares it is the public policy and in the public interest of the State to locate, protect, and preserve "all sites, objects, buildings, pre-twentieth century shipwrecks, and locations of historical, archeological, educational, or scientific interest," located in, on, or under any of the land in the State of Texas. See TEX. NAT. RES. CODE ANN. § 191.002. Given that policy, the Code imposes notice requirements on a "project locat[ed] on state or local public land," and on "the person primarily responsible for the project or the person's agent...." See id. § 191.0525(a). Municipal projects of a cumulative area larger than five acres or disturbing a cumulative area of more than 5,000 cubic yards, whichever measure is triggered first, or if the project is inside a designated historic district or recorded archeological site, are included in the advance review requirements. See id. § 191.0525(d). If a historically significant archeological site is likely to be present at the project location, the THC may require additional action to protect the site as well as an archeological survey. See id. § 191.0525(a)(1), (2) and (3). These provisions unambiguously apply to governmental actors who are involved with qualifying projects on public land. And Texas citizens are empowered to file suit on behalf of the State's interest, for restraining orders and injunctive relief, to ensure compliance with the chapter, or for the return of items taken in violation of chapter provisions. See id. § 191.173(a). To say that a court lacks jurisdiction over a municipality's project on public land would nullify and ignore the plain language of the Code and the legislative intent evidenced by the language. That we cannot do.

Accordingly, we overrule the City's sole issue.

IV. THE TEMPORARY INJUNCTION

Grossman contends the trial court abused its discretion in refusing to enter a temporary injunction—prohibiting commencement of the project—to preserve the status quo pending trial on the merits.

A. Standard of Review and Rules of Construction

At a temporary injunction hearing, the only issue before the trial court is whether the applicant is entitled to preservation of the status quo pending a trial on the merits. Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002) ; Walling v. Metcalfe , 863 S.W.2d 56, 58 (Tex. 1993) ; Pharaoh Oil & Gas, Inc. v. Ranchero Esperanza, Ltd. , 343 S.W.3d 875, 880 (Tex. App.—El Paso 2011, no pet.). The status quo is defined as the "last, actual, peaceable, non-contested status that preceded the pending controversy." See State v. Sw. Bell Tel. Co. , 526 S.W.2d 526, 528 (Tex. 1975). Of note, the continuation of illegal conduct cannot be justified as preservation of the status quo. In re Newton , 146 S.W.3d 648, 651 (Tex. 2004) ; Houston Compressed Steel Corp. v. State , 456 S.W.2d 768, 773 (Tex. App.—Houston [1st Dist.] 1970, no writ) ("In an injunction case wherein the very acts sought to be enjoined are acts which prima facie constitute the violation of expressed law, the status quo to be preserved could never be a condition of affairs where the respondent would be permitted to continue the acts constituting that violation.").

The decision to grant or deny a temporary injunction lies in the sound discretion of the trial court. Butnaru , 84 S.W.3d at 204 ; Cook v. Tom Brown Ministries , 385 S.W.3d 592, 599 (Tex. App.—El Paso 2012, pet. denied). We reverse the trial court's order granting or denying injunctive relief only if an abuse of discretion is shown. Butnaru , 84 S.W.3d at 204. We may neither substitute our judgment for that of the trial court nor resolve the merits of the underlying case. Davis v. Huey , 571 S.W.2d 859, 861 (Tex. 1978). Instead, we view the evidence in the light most favorable to the trial court's order, indulging every reasonable inference in its favor, and determine whether the order is so arbitrary as to exceed the bounds of reasonable discretion. Cook , 385 S.W.3d at 600. An abuse of discretion does not exist if the court simply bases its decision on conflicting evidence. Davis , 571 S.W.2d at 862.

Our review is much less deferential, however, when it pertains to the resolution of legal issues. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992). A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. Accordingly, "[w]here the facts definitively indicate that a party is in violation of the law, a trial court no longer possesses discretion but must enjoin the violation." Cook , 385 S.W.3d at 600 ; San Miguel v. City of Windcrest , 40 S.W.3d 104, 107 (Tex. App.—San Antonio 2000, no pet.) ; Priest v. Texas Animal Health Com'n , 780 S.W.2d 874, 876 (Tex. App.—Dallas 1989, no writ). Said differently, a court abuses its discretion if there is a clear failure to analyze or apply the law correctly. Walker , 827 S.W.2d at 840 ; In re Dillard Dept. Stores , 153 S.W.3d 145, 148 (Tex. App.—El Paso 2004, orig. proceeding).

B. Temporary Injunction Requirements

To obtain a temporary injunction, the applicant generally must plead and prove three elements: "(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim." Butnaru , 84 S.W.3d at 204 ; Danbill Partners, L.P. v. Sandoval , 621 S.W.3d 738, 745 (Tex. App.—El Paso 2020, no pet.). With regard to the first two elements, the required showing may be accomplished by "plead[ing] a cause of action and present[ing] some evidence that tends to sustain it." City of El Paso v. Caples Land Co. , 408 S.W.3d 26, 38 (Tex. App.—El Paso 2013, pet. denied) ; see also Fuentes v. Union de Pasteurizadores de Juarez Sociedad Anonima de Capital Variable , 527 S.W.3d 492, 499 (Tex. App.—El Paso 2017, no pet.). As for the third element, an irreparable injury is shown if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru , 84 S.W.3d at 204.

As much as these elements are required when an applicant pursues common law equitable relief, the requirements differ when injunctive relief is based on a statutory violation. Butnaru , 84 S.W.3d at 210 ; Republic Ins. Co. v. O'Donnell Motor Co. , 289 S.W. 1064, 1066 (Tex. App.—Dallas 1926, no writ). "When, as here, an applicant relies upon a statutory source for injunctive relief, the statute's express language supersedes the common law injunctive relief elements such as imminent harm or irreparable injury and lack of an adequate remedy at law." Cook , 385 S.W.3d at 599 ; Marauder Corp. v. Beall , 301 S.W.3d 817, 820 (Tex. App.—Dallas 2009, no pet.) ; Avila v. State , 252 S.W.3d 632, 648 (Tex. App.—Tyler 2008, no pet.) ; David Jason West and Pydia, Inc. v. State , 212 S.W.3d 513, 519 (Tex. App.—Austin 2006, no pet.).

Here, Grossman filed suit alleging the City was violating or threatening to violate Section 191.002 of the Antiquities Code of Texas. See TEX. NAT. RES. CODE ANN. § 191.002. As stated earlier, the Antiquities Code expressly provides that a citizen of the state may bring an action for injunctive relief, in any court of competent jurisdiction, to enjoin violations or threatened violations of the chapter. See id. § 191.173(a). The City does not contest Grossman's status as a Texas citizen. Because his application for a temporary injunction is based on an alleged statutory violation—and not on a request for common law equitable relief—we first hold that no evidence of imminent harm, irreparable injury, or an absence of an adequate remedy at law is necessary to support entitlement to injunctive relief. See Cook , 385 S.W.3d at 599 ; Marauder Corp. , 301 S.W.3d at 820. Rather, the express language of the Antiquities Code controls whether the request for injunctive relief is warranted under the circumstances. With regard to the first element—that is, whether Grossman has a cause of action against the City for a violation or threatened violation of the Antiquities Code—the City relies solely on the assertion that the Code lacks a waiver of governmental immunity. Having overruled that argument in affirming the denial of the City's plea to the jurisdiction, there is no further need to address the first element. Consequently, only the second element required of a temporary injunction remains at issue. We address that element next.

C. Whether Grossman presented evidence tending to show a probable right to the relief sought

Grossman contends he produced evidence of a valid claim under the Antiquities Code based on the City's failure to prepare a scope of work designed to properly protect and preserve remains of the Mescalero Apache Tribe likely to be buried in the subsurface of the City's proposed arena project. He asserts the evidence established, without conflict, a probable right to the relief sought pending a trial on the merits.

With multiple arguments, the City opposes Grossman's claim that he met his evidentiary burden to show a probable right to the relief sought. First, the City argues its survey recognizes the potential for the discovery of Native American artifacts, in general, and, to that extent, it adequately provides for the location, protection, and preservation of a newly discovered Mescalero Apache peace camp without need for revision. Second, the City argues the THC, after being informed of the research confirming the peace camp, reinstated the original permit without requiring any changes. The City argues that response establishes the trial court did not abuse its discretion in denying relief. Third, the City contends Grossman challenged the sufficiency of the survey in Wolfe v. Grossman . Having lost that suit, the City claims this suit is barred by res judicata. Alternatively, if res judicata does not apply, the City otherwise urges the reasoning of Wolfe should still prevail against Grossman's specific claim asserting that demolition cannot begin until completion of the survey. Finally, based on the permanent injunction rendered in Ex parte City of El Paso , the bond validation suit, the City asserts this suit will be dismissed before Grossman's claims can be determined by a trial on the merits.

We begin with the City's argument based on res judicata. Within that discussion we also address related arguments wherein the City relies on judgments rendered in other lawsuits which address the same arena project. We address these arguments first because, if successful, these arguments potentially give the greatest relief to the City, that is, precluding Grossman's claim in its entirety.

1. Does res judicata or other such claim apply to Grossman's suit?

The City presents two arguments based on res judicata or issue preclusion. First, the City argues here, as it did below, that Grossman already challenged the sufficiency of the archeological permit in his suit filed against the Executive Director of the THC, Mark Wolfe, and he lost. See Grossman v. Wolfe , 578 S.W.3d 250, 254 (Tex. App.—Austin 2019, pet. denied). The City points out that it intervened in the Wolfe suit and participated throughout that litigation. On that basis, the City argues Grossman's claim, which similarly questions the survey underlying the issued permit, is thus barred by res judicata. And if not barring the claim in its entirety, the City further argues that Grossman's more specific claim asserting the City cannot demolish buildings in the footprint prior to completion of the archeological survey is otherwise precluded. The City contends Grossman sought the same relief in Wolfe , but his claim was rejected. See Wolfe , 578 S.W.3d at 261. Given the procedural posture of this case, we reject both arguments.

"Res judicata," a Latin term, means "the matter has been adjudged; a thing judicially determined; or a matter settled by judgment." Abbott Labs. v. Gravis , 470 S.W.2d 639, 642 (Tex. 1971). This doctrine prevents a party from relitigating claims or causes of action that have been finally adjudicated, including related matters that should have been litigated in prior suits. In re M.K.R , 216 S.W.3d 58, 62 (Tex. App.—Fort Worth 2007, no pet.). The application of res judicata expedites justice by putting an end to litigation, while preserving the sanctity of judgments. Id. Operating as a bar against a later suit, res judicata requires proof of the following elements: "(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action." Amstadt v. U.S. Brass Corp. , 919 S.W.2d 644, 652 (Tex. 1996).

Both res judicata and collateral estoppel are recognized as affirmative defenses. See TEX. R. CIV. P. 94. Operating as pleas in bar, these defenses should ordinarily be raised through a motion for summary judgment or proven at trial. Interest of A.S.M. , No. 08-19-00212-CV, ––– S.W.3d ––––, ––––, 2021 WL 3260625, at *3 (Tex. App.—El Paso July 30, 2021, no pet.) ; see also In re D.K.M. , 242 S.W.3d 863, 865 (Tex. App.—Austin 2007, no pet.) ; In re K.B.S. , 172 S.W.3d 152, 153 (Tex. App.—Beaumont 2005, pet. denied). By challenging a party's right to recover, a plea in bar reaches the merits of a case. Magellan Terminal Holdings, L.P. v. Vargas , No. 13-19-00354-CV, 2021 WL 79351, at *3 (Tex. App.—Corpus Christi–Edinburg Jan. 7, 2021, no pet.) (mem. op.).

Given the interlocutory posture of the appeal, we are only permitted to review whether Grossman established a right to preserve the status quo of the subject matter of the suit pending a trial on the merits. Butnaru , 84 S.W.3d at 204 ; see also DeVilbiss v. West , 600 S.W.2d 767, 768 (Tex. 1980) (per curiam). "It is well settled that a trial court is not authorized to determine the merits of the plea in bar in a hearing on an application for a temporary injunction." DeVilbiss , 600 S.W.2d at 768 ; see also Vargas , 2021 WL 79351, at *3 (finding trial court did not err in granting a temporary injunction without considering whether the suit was barred by collateral estoppel). Moreover, "a judgment in one suit will not operate as res judicata to a subsequent suit on the same question between the same parties where, in the interval, facts have changed or new facts have occurred that may alter the parties’ legal rights or relations." TRO-X, L.P. v. Eagle Oil & Gas Co. , 608 S.W.3d 1, 12 (Tex. App.—Dallas 2018) (mem. op.), aff'd , 619 S.W.3d 699 (Tex. 2021).

Here, Grossman argues the new research bringing to light the existence of the Mescalero Apache peace camp was not published until October 2018. Due to the timing of that discovery, the basis of this suit differs in substance from earlier claims pursued in other suits, and the underlying claim of this suit has not yet been litigated in any other jurisdiction. Grossman points out the City wrongly tries to recast his claim as one challenging the adequacy of the issued permit whereas his suit focuses more narrowly on the actions of the City with regard to the new discovery. We agree the suit is based on obligations imposed on solely on permittees, not on questions raised about the decisions of the THC. And Grossman argues there is no privity between the City and the THC with regard to those obligations.

Without need to decide the factual dispute about the similarity of the claims, or whether privity was otherwise established, we reject the City's argument that res judicata applies due to the procedural limits of the case. Because a plea in bar reaches the merits of a case, neither a trial court nor this Court may consider such a defense when ruling on a temporary injunction request. See Butnaru , 84 S.W.3d at 204 ; DeVilbiss , 600 S.W.2d at 768 ; Magellan Terminal Holdings , 2021 WL 79351, at *3 ; cf. Fuentes , 527 S.W.3d at 499 (declining to address limitations defense in appeal from temporary injunction). The scope of our permitted review is limited only to the question of whether Grossman is entitled to preserve the status quo pending trial on the merits. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (providing for interlocutory review of an order refusing an application for a temporary injunction). We decline to address the City's res judicata argument, and all other claims based on prior litigation, given these attacks all challenge the merits of the case and exceed our jurisdictional limit.¹¹

11 In like measure, we also decline to address the City's argument asserting that Grossman's lawsuit "will be dismissed" before his claims can be determined by a trial on the merits. For this argument, the City relies on the judgment rendered in Ex parte City of El Paso , 563 S.W.3d at 528-29. As Grossman points out, and we agree, the City's motion to dismiss was not before the trial court and does not provide a proper basis for affirming the trial court's order. As we stated in Fuentes , "[a] party may not use an appeal of a temporary injunction ruling to get an advance ruling on the merits." 527 S.W.3d at 498 (quoting Babu v. Zeeck , 478 S.W.3d 852, 855 (Tex. App.—Eastland 2015, no pet.) ). Given our limited jurisdiction, we decline to reach this argument until the trial court has an opportunity to consider it and issue a final judgment.

2. Did Grossman establish a probable right to relief?

We turn next to address whether Grossman established a probable right to a temporary injunction pending a trial on the merits, which is the only element at issue. Grossman argues the evidence tends to show he has a valid claim under the Code for the City's failure to properly provide for a scope of work that accounts for a newly discovered peace camp in the footprint of the project. Narrowly, he argues the City is violating the Code by failing to adequately account or prepare for the likely presence of archeological resources and remains of the peace camp in the scope of work of the survey. He points out the City does not contest that it had no knowledge of the peace camp at the time it submitted its application for a permit to the THC, and having since learned of its existence, it has no plans to revise the scope of work to account for the new discovery. Grossman contends he met his evidentiary burden to support a temporary injunction against commencement of the scope of work, and project generally, for the purpose of maintaining the status quo, until a trial on the merits.

As noted earlier, the Antiquities Code and adopted rules of the THC impose requirements on a permitee, and principal investigator, with regard to obtaining a permit for an archeological survey planned for a project on public land. See TEX. NAT. RES. CODE ANN . § 191.055 (providing that all scientific investigations must be carried out under the general supervision of the THC and in accordance with the rules adopted by the THC). Recall the investigation is performed to effectuate the State's interest in preserving the maximum amount of historic, scientific, archeological, and educational information that may be recovered. See id. ; see also § 191.002. Moreover, THC rules impose substantive requirements on the permittee's application to show the proposed investigation will proceed with a stated purpose, based on a proposed work plan, which in turn is based on research, and includes evidence of adequate funds, personnel, equipment, and facilities. See 13 TEX. ADMIN. CODE § 26.13(c)(1)-(7). This rule requires the permittee to identify the project scope, objective, budget, and work team on which it will rely "to properly complete the proposed investigation." Id. But, more specifically, the proposed investigation must be "oriented toward solving a particular research problem, [to prepare] ... a site for public interpretation, or for the purpose of salvaging information and specimens from a site threatened with immediate destruction." See id. § 26.13(a).

The research design and scope of work (i.e., the investigation) is ordinarily prepared by the principal investigator, or investigative firm, on behalf of the permittee, or project sponsor. Id. § 26.18(a). We note that section 26.18 mandates that an investigative firm "shall not proceed with an investigation without applying for and receiving an appropriate permit by the [THC], or without having been officially authorized by the [THC] to proceed prior to issuance of an emergency permit." Id. § 26.18(b) (emphasis added). And subpart (c) further provides that permittees shall not encourage investigative firms to perform investigations on public land in the State of Texas "without a properly issued permit." Id. § 26.18(c). This section further declares that an investigation proceeding without "a properly issued permit" and with the knowledge of the permittee, "constitute a violation of the Antiquities Code of Texas." Id.

Pursuant to the permittee's obligation not to encourage an investigative firm to perform investigations without a "properly issued permit," or "an appropriate permit," we determine the answer to this dispute lies squarely within the meaning of those particular terms. Yet, no definition is provided by the pertinent rules. See id. § 26.18(b) and (c). In such circumstance, we interpret an administrative rule using the same principles we apply when construing statutes. Patients Med. Ctr. v. Facility Ins. Corp. , 623 S.W.3d 336, 341 (Tex. 2021). It is well established, of course, that statutory interpretation raises a question of law reviewed de novo. Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n , 518 S.W.3d 318, 325 (Tex. 2017).

In doing so, the Supreme Court instructs that we must "strive to give effect to the promulgating agency's intent, ‘which is generally reflected in the rules’ plain language.’ " Patients Med. Ctr. , 623 S.W.3d at 341. Like statutes, administrative rules, should be analyzed as a cohesive, contextual whole. Id. In construing a rule's language, we presume the adopting agency chose the language with care, purposefully choosing each word, while purposefully omitting words not chosen. Cf. In re Commitment of Bluitt , 605 S.W.3d 199, 203 (Tex. 2020) (applying statutory construction principles). These principles all hold true even when considering an agency decision construing statutory language. Cadena Comercial USA Corp. , 518 S.W.3d at 325 ("An agency's interpretation of a statute it enforces is entitled to ‘serious consideration,’ so long as the construction is reasonable and does not conflict with the statute's language.").

Applying statutory construction principles, then, we employ the plain and common meaning of the words and phrases at issue. TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011). The term "properly," an adverb, means "strictly accurate: correct." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 996 (11th ed. 2014). While the term "appropriate," an adjective, means "especially suitable or compatible: fitting." Id. at 61. And each term is construed together, in context to the rules as a whole, accepting that lawmakers chose their words carefully, both in what is included and what is not. Cf. Sommers for Alabama & Dunlavy, Ltd. v. Sandcastle Homes, Inc. , 521 S.W.3d 749, 754 (Tex. 2017).

We are further guided in this instance by an analogous decision of the Supreme Court of Texas originating from this Court. In El Paso Educ. Initiative, Inc. v. Amex Properties, LLC , 602 S.W.3d 521, 532 (Tex. 2020), the Supreme Court construed the term "properly executed" as applied to a lease agreement signed by the superintendent of a publicly funded charter school. Responding to a suit for breach of contract, the school disputed it had waived its immunity protection given the manner in which the superintendent had signed the agreement. At issue in the case, Chapter 271 of the Local Government Code provided for a waiver of immunity for contracts that are "properly executed on behalf of the local governmental entity[.]" Id. at 531 (citing TEX. LOC. GOV'T CODE ANN. § 271.151(2)(A) ). The school argued the lease agreement, though signed, could not be enforced as a binding contract because it had not been properly formed pursuant to requirements of the Education Code which governed the school's operations. Id. Specifically, the school asserted the lease was not "properly executed," given the school's governing board had never approved it nor otherwise delegated its authority. Id.

The Supreme Court noted the term "properly executed," remained undefined by the Local Government Code. Id. Giving the term its plain and common meaning, the Court read the statute "to give effect to every word." Id. at 531-32. Doing so, it found the term "proper" to mean "[a]ppropriate, suitable, right, fit, or correct; according to the rules. " Id. at 532. Construing the words together, and in context to the statute as a whole, the Supreme Court held the term "properly executed contract" lead to "the inexorable conclusion that not all executed contracts qualify for [a statutory] waiver." Id. Finding the Education Code had imposed formalities on the school which were undisputedly not followed, the Court held the lease agreement had not been properly formed. Id. The Court noted, "[i]t is not enough, then, that an open-enrollment charter school's representative signs a contract." Id. Rather, in construing all words together without disregarding terms, the Court found that "properly executed," demanded that contracts with a charter school must be formed in the manner the Legislature authorized for the waiver to apply. Id.

Applying required principles and guided by our higher court's interpretation of an analogous term, we hold that a permit is "properly issued" when it is issued in accord with the manner authorized by the Legislature. See id. Accordingly, a "properly issued permit," is one that follows the prescribed requirements of the Antiquities Code and the adopted rules of the THC. See TEX. NAT. RES. CODE ANN. § 191.055 (providing that "[a]ll ... operations conducted under ... permits ... must be carried out: (1) under the general supervision of [the THC]; (2) in accordance with reasonable rules adopted by [the THC]); and (3) in such manner that the maximum amount of historic, scientific, archeological, and educational information may be recovered and preserved in addition to the physical recovery of items."). See TEX. NAT. RES. CODE ANN. § 191.055 ; see also 13 TEX. ADMIN. CODE § 26.18 (requiring an "appropriate permit" and "a properly issued permit").

As the rules further provide, an appropriate permit or a properly issued permit is one that is not necessarily fixed or permanent in its original form. Indeed, because new information may come to light, the rules of the THC address that scenario and obligate an investigator not to conceive of the research design as a "rigid, unchanging plan[ ]." 13 TEX. ADMIN. CODE § 26.13(d)(4). Research designs are recognized as being "essential to the success of scientific objectives, resource management decision-making, and project management." See id. § 26.13(d). Section 26.13 further provides, "as circumstances warrant, the investigator is not relieved of responsibility to recognize other research." Id. Importantly, investigators are advised that "[a] conscious effort should be made to modify research designs to exploit new information efficiently." Id. In doing so, "[t]he crucial objectives in the modification process are: (A) demonstrated progress in solving stated problems; and (B) subsequent modification of a research design on the basis of explicit, rational decisions intended to attain stated goals." Id. Nonetheless, coordination with the THC is also required when changes are warranted. Section 26.14 provides, "[w]hen a permit is issued, it will contain all special requirements governing that particular investigation[.]" Id. § 26.14(c). Accordingly, "[p]roposed changes in the terms and conditions of the permit must be approved by [the THC]." Id. § 26.14(i).

Applying this framework, we look to the record to determine whether Grossman established evidence tending to show a probable right to relief—based on a violation or threatened violation of the Code—for the purpose of preserving the status quo pending a trial on the merits.

3. The supporting evidence

At the temporary injunction hearing, the trial court heard from three historians, and two archeologists, all testifying as expert witnesses. Additionally, the court admitted into evidence several exhibits from both parties. Relevant to the claim at issue, the witnesses testified about the selected site of the project, the neighborhood of Duranguito, and the planned investigation. Neither party raised objections to the qualifications of any of the expert witnesses or preserved objections against the documentary record.

a) The neighborhood of Duranguito

As an associate professor of art and architectural history, Grossman testified about the area of Duranguito relative to the cultural history of the state. As he described, Duranguito was situated on the closest point out in the north bank of the river relative to the Mission of Paso del Norte, near an important crossing point into the Spanish/Mexican territory. At one point, the area bordered the Rio Grande on its northern bank. In the middle 1700s through the 1820s, however, the bed of the river shifted to where it now sits south of Paisano Drive.

Testifying about the historic settlement of the El Paso area, Grossman described that textbooks of local history generally mark the date of 1827 as the city's origin. Specifically, he described that "a wealthy investor in Mexico—Juan Maria Ponce de León—crossed the river in 1827 with a Mexican land grant in hand and established his ranch right there on the eastern border of Duranguito." Yet, that date, he further claimed, may be subject to change due to newly published research of architectural significance.

In October 2018, author Mark Santiago revealed new information, previously unknown. Santiago's research alters the understanding of the area as a settled community. The book titled, A BAD PEACE AND A GOOD WAR—SPAIN AND THE MESCALERO APACHE UPRISING 1795-1799, reveals a critical chapter in the history of the state in that it describes a Native American peace camp existing in the same area of what is now known as Duranguito.

To show the before and after comparison, Grossman first described the state of the historic record before the release of Santiago's book:

[S]cholars had revealed that the Spanish established what were essentially the first reservations of the Americas; that is, all along the northern frontier of the Viceroyalty of New Spain, the Spanish authorities established Apache peace camps, or reservations. And generally[,] these were established in front of presidios, or fortified communities, oftentimes right on the edge of the Rio Grande opposite a fortress. That was the case of Paso del Norte and, downstream, San Elizario and further downstream, Presidio del Norte, for example.

Although the existence of these peace camps was known generally since at least the 1960s, Grossman clarified that specific knowledge of a particular peace camp—in the area of downtown El Paso—was not as clearly established until release of Santiago's book.

As recounted by Grossman, Santiago wrote about such an "establecimiento de paz ,"¹² which he documented from his review of primary source materials archived in Spain. Those sources include contemporaneous "communiqués" by commanders of the Spanish military reporting to superiors about the existence and activities of an area peace camp. As translated by Santiago, the source documents include discussions of Apache Indians crossing the river on a daily basis. Grossman testified that linguists have confirmed the accuracy of Santiago's interpretation. Fellow historian, David Romo, Ph.D., who also testified at the hearing, confirmed he, himself, had recently reviewed hundreds of Spanish colonial documents which provide eyewitness accounts of the sighting of Mescalero Apaches in the area.

12 In detail, Grossman testified: "the phenomenon of Apache peace camps, establecimiento de paz—that phenomenon has been known since at least the 1960s. A number of scholars had revealed that the Spanish established what were essentially the first reservations of the Americas[.]"

A key document from 1794, as translated by Santiago's work, describes the Apache camp as being situated in front of town on the other bank of the river. That document establishes the population of the Apache camp between 800 and 1,000 people. The information is particularly significant from an archeological perspective, Grossman asserted, because it reveals the area the Apaches occupied, how long they were there, how many were there, and their presence at a time pre-dating the arrival of Ponce de León. Grossman further described that Duranguito is situated squarely within the area described by the research, at the ford on the river, at the closest point to Paso del Norte. Other documents revealed by Santiago similarly indicate the Apaches participated in the area market, especially women and children of the tribe, who crossed the river daily. The Spanish provided Apaches with rations, to include tobacco, food, and parts, possibly needed to maintain weapons for hunting.

Summarizing the contribution of Santiago's work, Grossman asserted, "we have an entire chapter of El Paso's history that [was] completely unknown, that is, until now[,]" because of the publication of the material. The existence of the peace camp, he asserted, was critically important to the cultural history of the Southwest and the State of Texas, explaining:

An Apache peace camp has never been excavated. There were somewhere between 9 and 12 of them, depending on the year, established from Tucson all the way to Laredo, and here we have a very large rectangle squarely in the middle of an Apache peace camp. And it's significant for the history of the entire Southwest, the history of the Americas, certainly the history of El Paso. And if this area were destroyed, if it were erased by degrading operations, the reinforced steel concrete caissons and the other operations for building an arena, that information would be lost forever and we would lose forever the opportunity to learn where we came from.

As an expert in borderland history, Dr. Romo endorsed the same view. He described the Apache settlement as having tremendous significance because of the specificity identified by the source materials. Dr. Romo explained that specific landmarks are described where the "establecimiento" was located.¹³

13 In a pointed critique of Moore Consulting's research and reliance on Sonnichsen as a source, Dr. Romo testified it did not appear to him that they understood that Mescalero and Natagé are the same thing. Dr. Romo testified, "Natagé is the N'de word, the indigenous word, for Mescalero." He asserted, "[t]he biggest failing of that is the lack of any primary research.... I didn't see that they went to look at the archives of the Provincias Internas, which are in Mexico City. They did not go to see the Santa Fe records in Santa Fe, the state records of New Mexico. I didn't even see that they came here to El Paso to look at the Juarez archival collection."

A third historian, Matthew Babcock, Ph.D., who also since reviewed the primary source documents, echoed the testimony of the others by testifying, "I believe that there is an existence of an Apache peace camp from 1790 to 1794 on the north bank of the Rio Grande River[.]"

b) Attempts to incorporate the peace camp into the scope of work

After learning of Santiago's work, Grossman spoke with colleagues about the adequacy of the planned survey given the book's confirmation of a peace camp, large in size, in the same area. Among others, he spoke with Dr. David Carmichael, a senior archeologist who had experience in Native American excavations in the region, as well as historians, Dr. Romo and Dr. Babcock. Concerned with the aim of the research, Grossman sent a letter to the THC, via his attorney, formally requesting the agency "require the City of El Paso to revise the document entitled, Research Design for the City of El Paso Multipurpose Arts and Entertainment Center , dated July 10, 2018, and all amendments or supplements thereto that were prepared by its archeological consultant Moore Archeological Consulting, Inc." Grossman directed his attorney to send the letter because he felt it was critically important for the THC to be aware of "the recent discovery of the Apache peace camp that stood opposite Paso del Norte in Duranguito and the immediate surrounding area."

By a letter dated September 3, 2019, Grossman's attorney provided the following reasoning for its request of a revision of the planned survey for the Arena project:

Mr. Santiago's book is enormously significant for the history of El Paso because it has established for the first time that there was a large Mescalero Apache peace camp on the north bank of the Rio Grande, directly opposite Paso del Norte (now called Ciudad Juárez).

...

The significance of Duranguito being located within the Peace Establishment created by the Spanish cannot be overstated because most of the area that was within the Peace Establishment has since been developed into downtown El Paso. Duranguito is the only place in downtown El Paso where the type of archeological excavations necessary for locating and investigating the Peace Establishment can still take place.

...

The archival research conducted by Moore to develop its Research Design does not reference or take into account the research performed by Mr. Santiago because his book had not yet been published. Further, Moore apparently did not know of Mr. Santiago's work that had been completed at the time the Research Design was prepared.

With the letter, Grossman provided declarations of support from other area scholars. The group included Drs. Romo, Babcock, and Carmichael. Despite sending this letter, Grossman acknowledged the THC did not respond with a requirement for the City to modify the scope of work.

In seeking a temporary injunction, Grossman also presented deposition testimony of Douglas Mangum, the principal investigator of the City's survey and staff member of Moore Consulting. Mangum described that Moore Consulting was generally hired to perform salvage for hire or compliance archeology. Mangum testified he contributed to the survey preparation along with other senior staff members of the firm.

With regard to the survey of the project, Mangum described it was planned with the historic period of occupation beginning "[r]oughly around 1821 or so when Ponce de Leon got his first grant." The survey also included a map showing the location of the Rio Grande at various points in time. Research had shown that the area experienced flooding after 1827 which caused the river channel to move at least twice in the 19th century, occurring in 1852 and 1896. Mangum added, "[r]ivers move because they either cut new channels or because they shift to an older channel because of a flood." With each move, the river channel moved farther away from the modern-day location of the city. Consequently, the location of Duranguito, as best he could tell, would now be close to the river channel of 1827. However, he noted the 1827 channel "might not have been buried very deeply."

When asked the depth of the planned excavation for the survey, Mangum responded he had planned for "[w]hatever depth is necessary to reach the—however deep the actual excavations from the construction will occur." He added, "[t]ypically, not always, but typically, we are only investigating the -- to the depth of impact." Even still, Mangum asserted he had prepared the scope of work recognizing "there was potential for Apaches in the area ...." As cited by the scope of work, Mangum relied on books authored by Sonnichsen and Newcomb describing that "Mescalero, Natagé and Gila bands were present in the area." After skimming Santiago's book with regard to the existence of the Mescalero Apache peace camp in the area, Mangum asserted, "the scope of work and the research design that we have already written already encompasses the potentiality of such finds." From his point of view, the THC had not requested anything specific to encounter the peace camp and he saw no need for changes. He testified, "[w]e are never required to know precisely every single historic or prehistoric European or Native American cultural resource that we might encounter, but we are required to be prepared for any such find, regardless of whether we knew the specifics of what type or not."

To counter these points, Grossman next presented testimony of Dr. Carmichael, a professor who teaches on subjects including Native American history, archeological methods, and critical thinking. Dr. Carmichael focused heavily on the archeological history of Native Americans, his research concentration. He described that the City's downtown project presented a unique opportunity to conduct an archeological survey of the peace camp because of the size of the concentration of the Apache settlement, and the number of features that would likely be found. Dr. Carmichael further explained that a peace camp with a large size population means it would be easier to find materials.

Specifically, he described:

But when you have an opportunity where you've had, say, 6- or 800 people living for 20 years, intensively maybe for four or five of those years, the chances go up exponentially that you actually will be able to encounter some of those remains that we really haven't been able to discover in this region. Other parts of the Southwest have had greater success because the Apache groups in other parts of the Southwest tend to make -- they make more pottery than the Mescaleros did, and pottery is very preservable. And it's much more observable than what you would expect in a Mescalero site.

As an archeologist, Dr. Carmichael critiqued the survey's scope of work, in its present form, on a number of points. Focusing on the need to include input from local scholars, he described: "The first thing I would do, of course, is look up the regional literature for the region that's relevant to what we believe to be there. And the important part of that is contacting local scholars who are already working in that region or contractors who have done projects there." Next, he advocated for a systemic approach: "[t]he concern is, when you start looking for something that's below the surface, has no surface indication of where it might be, then you can't just hunt and peck. You have to produce some kind of systematic scheme for where you're going to test; otherwise, it's very hit or miss."

Dr. Carmichael pointed out that Moore's plan to excavate only to the depth of the project's construction was inadequate for achieving the goal of locating the peace camp. "But to plan to go only as deep as the construction is, I don't know what that means. In some places the construction's only going to be a sidewalk. Some places it might be a basement.... I think the preparation has to be for it to be potentially deep." Finally, in relation to Santiago's confirmation of a Mescalero Apache peace camp, Dr. Carmichael described, "the historical research that's been done looks very solid. And that is certainly the best guess that we have, the best estimate that we have of where this thing should be."

In sum, witnesses testifying in support of the temporary injunction agreed that Santiago's book was well-researched, groundbreaking even, and deserved treatment as an important reference informing the cultural history of the area as required for survey work. The historians testified it was important to take this moment to study this peace camp and see what could be found. Together, the witnesses opined that the City's scope of work, as currently drafted, was not adequate to effectively locate, protect, and preserve the Mescalero Apache artifacts that were likely buried in the area of the project.

To be clear, Mangum testified he had no dispute with complying with the THC's request to become familiar with Santiago's book. Given the THC had not otherwise demanded changes, however, none had been made. Although he acknowledged the scope of work only mentions the Mescalero Apaches in one sentence and fails to include a systematic plan to determine whether those remains can be found, he asserted his firm remains aware "they were potentially there." On that score, he testified, "[s]o our coverage of how we will deal with Native American remains includes that." After being pressed for whether the survey included a plan to search for and recover Mescalero Apache remains from the peace camp area, he responded, "[i]t contains specific plans for how we will deal with Native American remains. And the THC, in their letter reinstating our permit, did not require us to be specific, just to be aware of and be mindful of that potentiality." Mangum conceded, "[w]e do not mention the peace camps because the peace camps were not something we were aware of because Mr. Santiago had not yet written or at least not yet published his book, but we do discuss the potential for Mescalero Apaches being in the area and how we will address any Native American remains that we find, including Mescaleros."

4. Analysis

Given no factual dispute over the relative significance of the newly discovered research in confirming the possible existence of a historic peace camp in the area of the project's footprint, we hold that Grossman met his burden to establish a probable right to the relief sought pending a trial on the merits. Plainly, there is no factual dispute between the parties with regard to the City's survey—in its present form—in that it omits a plan to locate, protect, and preserve the historic Mescalero Apache peace camp, whose existence was known and confirmed only after submission of the survey to the THC. Even when viewing the record in a light favorable to the trial court's ruling, the evidence tends to establish the City is threatening to knowingly proceed with an investigation that does not comply with the administrative rules of the THC and related provisions of the Code. See 13 TEX. ADMIN. CODE § 26.18(a) and (b) ; see also TEX. NAT. RES. CODE ANN. § 191.055 ; Cook , 385 S.W.3d at 600 ; San Miguel v. City of Windcrest , 40 S.W.3d 104, 107 (Tex. App.—San Antonio 2000, no pet.) ; Priest v. Texas Animal Health Com'n , 780 S.W.2d 874, 876 (Tex. App.—Dallas 1989, no writ). Thus, we find the trial court clearly abused its discretion by misapplying the law to the established facts in this case.

Specifically, section 26.13 of the administrative rules requires that "[i]nvestigations undertaken on publicly owned cultural resources or to locate or discover such resources must be oriented toward solving a particular research problem ... or for the purpose of salvaging information and specimens from a site threatened with immediate destruction." See 13 TEX. ADMIN. CODE § 26.13(a). Yet, here, the City does not contest or refute that the survey was prepared prior to the publication of Santiago's book. Nor does it contest the significance of that research in identifying archived documents that confirm the existence of a relatively large, historic peace camp in the area of the project's footprint. See TEX. NAT. RES. CODE ANN. § 191.002 (protected sites include historical American Indian or aboriginal campsites, dwellings, and habitation sites); see also 13 TEX. ADMIN. CODE § 26.3(5)(B) (for purposes of the Code, an archeological site is defined to include Native American open campsites which were occupied on a temporary, seasonal, or intermittent basis).

Given the post-submission timing of the book's publication, the survey in its current form does not account for the likely presence of the peace camp or the archeological items related to it. As section 26.13 provides, the research design of a survey investigation is "essential to the success of scientific objectives, resource management decision-making, and project management." See id. § 26.13(d). And without modification of the original design and work plan, the survey lacks planning to ensure that adequate funds, personnel, equipment, and facilities are utilized for this objective. See id. § 26.13(c)(1)-(7). The City acknowledges it has made no specific decisions oriented to the study of the newly discovered Mescalero Apache peace camp, nor otherwise planned for the recovery of the maximum amount of objects related thereto. See TEX. NAT. RES. CODE ANN. § 191.055.

Relying solely on the response from the THC, the City asserts it will keep a look out for Apache remains, but otherwise, it sees no need to make changes to the previously submitted work plan. We see two problems with such a response. First, by failing to modify the research design and related scope of work, the City fails to link the investigative study to relevant data brought to light by Santiago's work. Id. § 26.13(d)(3)(A). And, as required by section 26.13, research designs are not conceived as rigid, unchanging plans. Id. § 26.13(d)(4). Rather, THC rules provide that effort should be made to modify designs to exploit new information efficiently. Id. And, recognizing that a survey must be carried out under the general supervision of the THC, all proposed changes in terms and conditions must be approved by the THC. Id. § 26.14(i).

Second, even if the City follows through with its promise to keep a look out for the peace camp while on site, that promise remains outside the terms and conditions of the issued permit. The record shows, then, that the City plans on carrying out an investigation not entirely under the general supervision of the THC, not in accordance with the applicable rules of the THC, nor in such manner as to account for recovering and preserving the maximum amount of historic, scientific, archeological and educational information that may be recovered from an investigation of the subsurface area of the arena footprint. See TEX. NAT. RES. CODE ANN. § 191.055. Either way, we conclude the City's response does not comport with the requirements of the Code nor of the adopted rules of the THC.

Even still, the City asserts two further arguments. First, that Moore Consulting's original research design and scope of work in fact recognized the potential for Native American artifacts, and thus, the survey provides for the location, protection, and preservation of Mescalero Apache artifacts. And second, that Grossman himself has already raised his concerns with the THC and it determined that no additional action was necessary. The City argues the THC's response precludes any obligation on the City to modify the original plan. As to both arguments, we disagree.

It is the implementation of what is written, the actual performance of the terms and conditions of the permit in accordance with the submitted work plan, that may or may not result in locating, protecting, and preserving the desired artifacts. By terms of the statute, the archeological permit operates as a contract setting forth the conditions to reasonably effect the purpose of the chapter. See TEX. NAT. RES. CODE ANN. § 191.052. And all operations must be carried out under the supervision of the THC in accordance with rules adopted by the THC. See id. § 191.055. Thus, neither the City nor the THC, for that matter, can overlook the adopted rules of the agency. Even though the City now states it will look for peace camp items while on site, that assurance, while satisfying, falls outside contract terms.

And section 26.18 imposes an obligation on permittees not to encourage investigations on public lands without a "properly issued permit." 13 TEX. ADMIN. CODE § 26.18(c). Indeed, the statute expressly warns, "[s]uch investigations proceeding with the knowledge of the project sponsor and/or permittee constitute a violation of the Antiquities Code of Texas." Id. § 26.18(c). And to be properly issued, a permit must follow all pertinent requirements. Cf. Amex Properties , 602 S.W.3d at 532. To that extent, it follows that a properly issued permit must include all terms and conditions of the survey work.

What is most critical, at this juncture, is not whether the City failed to research adequately, but rather, whether the City complied with Code requirements after it learned of the new research discovering the existence of a Mescalero Apache peace camp in the project area. The THC rules require the research design to remain flexible such that it may be modified as important information develops. Yet, the City, in this instance, has refused to formally modify its survey and the THC likewise has not asked for such modification. Even so, the THC must comply with its own rules particularly given that the Code requires that operations must be carried out in accordance with those rules. See TEX. NAT. RES. CODE ANN. § 191.055 ; see also Cadena Comercial USA Corp. , 518 S.W.3d at 325. On this record, sufficient evidence was presented tending to show a probable violation of the Antiquities Code, and related rules of the THC, to support a temporary injunction to maintain the status quo until a final trial on the merits.

Because the state's interest in locating, protecting, and preserving a historic Mescalero Apache peace camp is threatened by the City's use of a scope of work that admittedly fails to link with a desired research object, and fails to include all terms and conditions of the work planned on site, we conclude that temporary injunctive relief is appropriate to preserve the status quo pending a trial on the merits. See id. § 26.13(d)(3)(A). Had the City contested the likely presence of a Mescalero Apache peace camp in the project footprint, the obligation to revise the scope of work to account for that existence would be far less compelling. But we disagree with the City's position that it can operate with an admittedly incomplete survey that clearly omits any planning for the historic peace camp, yet decide, while on site, how it will thereafter proceed to locate, protect, and preserve, the potential artifacts of that particular research target.

To effectuate the state's interest, investigations or recovery operations must be carried out with adequate supervision by the THC, in accordance with the adopted rules, and in such manner that the maximum amount of historic, scientific, archeological, and educational information may be recovered and preserved. See TEX. NAT. RES. CODE ANN. § 191.055. And by the plain terms of the Code, the THC must issue an appropriate permit which provides for the termination of any right in the investigator or permittee on the violation of any terms of the permit. See id. § 191.054(c). If proper terms are not incorporated into a revised scope of work, followed by an amended permit, it then follows that the THC would be unable to adequately supervise or enforce violations of permit terms. Even when viewing the evidence in the light most favorable to the trial court's findings, we hold the trial court abused its discretion in denying the request for a temporary injunction. See Butnaru , 84 S.W.3d at 204 ; Walker , 827 S.W.2d at 840 ; Cook , 385 S.W.3d at 607. Given the Code requires an "appropriate permit," and no factual dispute exists over the relevance of the discovery of the historic Mescalero Apache peace camp, we conclude the trial court erred in denying injunctive relief to preserve the status quo pending a trial on the merits. The City essentially concedes that the newly discovered research merits consideration as the City promises to keep a look out while otherwise on site. To comply with THC supervision, however, an appropriate permit must contain all terms and conditions suitable to the planned investigation.

5. Relief

Based on the new research, Grossman argues the opportunity to explore the archeology of the peace camp will be forever lost if the City proceeds with a survey that is not designed to locate, protect, and preserve the remains of the peace camp. Preservation of the status quo is needed to ensure the project will proceed under the required supervision of the THC. Section 26.18 obligates the City—as a permittee—not to proceed with an investigation without receiving an appropriate permit from the THC. See 13 TEX. ADMIN. CODE § 26.18. And the THC is authorized to issue permit amendments, when appropriate, based on proposed changes in terms. See id. § 26.14(i).

Based on the record provided, we conclude the trial court abused its discretion as Grossman established entitlement to temporary injunctive relief to preserve the status quo pending trial on the merits. Walling v. Metcalfe , 863 S.W.2d 56, 58 (Tex. 1993). Status quo is defined as the last peaceable time before the controversy. See Sw. Bell Tel. Co. , 526 S.W.2d at 528. Here, the time before submission of a permit application reflects the last peaceable time before the controversy. Thus, preservation of the status quo requires no commencement of the project, nor demolition of the buildings, until a trial on the merits of Grossman's statutory claim asserting the City's survey, as currently formed, violates or threatens to violate provisions of the Code. See TEX. NAT. RES. CODE ANN. § 191.0525(b).

Accordingly, we sustain Grossman's sole issue.

V. CONCLUSION

We affirm the denial of the plea to the jurisdiction. Additionally, because we conclude the trial court abused its discretion in denying the temporary injunction, we reverse the trial court's order denying injunctive relief and remand this cause to the trial court with instructions that it grant Grossman's request for a temporary injunction in furtherance of proceedings consistent with this opinion.

Alley, J., dissenting

DISSENT

JEFF ALLEY, Justice

Appellant Max Grossman had three significant hurdles to clear to obtain relief from our Court. He had to show: (1) that the legislature waived governmental immunity for the causes of action he asserts; (2) his claims were not foreclosed by issue or claim preclusion; and (3) that the trial judge abused his discretion in finding against Grossman on what was a conflicting factual record. Because I disagree with the majority's analysis on two of these issues, I respectfully dissent. Section I of this dissent provides a history of the progression of the litigation in this matter. Section II addresses sovereign immunity. The rationale and result expressed in that section is what the Court, in my opinion, should have issued immediately following oral argument in this case, but which obviously could not garner a second vote. Section III addresses the merits arguments, which I address only because the majority has.

I. BACKGROUND

The genesis of this dispute is a 2012 bond referendum whereby El Paso voters approved several "quality of life" projects. One of those projects was a "multipurpose performing arts and entertainment facility" which I shorthand as the "Arena." But where to build the Arena? That question was not specified in the ordinance authorizing the referendum other than it was to be "downtown." After some study, the City of El Paso (the City) settled on a four-city-block area in downtown El Paso. The area was once popularly known as the El Paso First Ward, but now is referred to as the Duranguito neighborhood. It is dotted by an assortment of residential and commercial structures, as well as surface parking lots.

Opposition to the site soon followed, leading to three lawsuits that set the table for this appeal. The progression of these suits intertwine and overlap, so I describe each in chronological relation to each other.

A. The City Files First--the Austin Litigation

To validate the project before issuing 180 million dollars in bonds, the City filed a declaratory judgment action under Chapter 1205 of the Texas Government Code in the 250th District Court of Travis County ("the Austin suit"). Under Chapter 1205, a bond issuer may bring a declaratory judgment action asking a court to validate "the authority of the issuer to issue the public securities" and the "legality and validity of each public security authorization relating to the public securities[.]" TEX.GOV'T CODE ANN. § 1205.021 ; see also, Buckholts Indep. Sch. Dist.v. Glaser , 632 S.W.2d 146, 149 (Tex. 1982) (Chapter 1205's predecessor statute was enacted to stop "the age-old practice of allowing one disgruntled taxpayer to stop the entire bond issue simply by filing suit."). Relying on that provision, the City sought a judicial declaration that the ordinance initiating the election, and its approval by voters, was legal and valid.

Grossman appeared as an interested party in the Austin suit and in part contended that the ordinance which authorized the bond election called for a "performing arts" facility. The City, however, contemplated a structure that could host sporting events. According to Grossman, to be consistent with the ordinance, the Arena could not include a design for sporting events. Following a hearing, the Austin trial court ruled from the bench that it agreed with that part of Grossman's claim, but the court rejected other challenges. The trial court was prepared to enter a judgment finding that the electorate's approval of the bond project, at least for a non-sports facility, was legal and valid. Before the trial court signed a final judgment to that effect, however, Grossman filed the second piece of litigation, and the one before us today.

B. Grossman Files the Next Suit--the El Paso Litigation

In July 2017, Grossman filed a lawsuit in the 384th District Court for El Paso County (the El Paso suit) objecting to the City's plan on a different basis. In the El Paso suit, Grossman sought to enjoin demolition of buildings in the Arena's footprint under the Texas Antiquities Code. See TEX.NAT.RES.CODE ANN. § 191.001 - 191.094. One provision of that Code requires the person primarily responsible for a project on state or local public lands to first notify the Texas Historical Commission (THC), which in turn must determine if the site requires protection, or whether an archeological survey is necessary. Id. § 191.0525(a), (b). Grossman alleged that several structures in the four-city-block footprint are historically or architecturally significant. His pleading also referenced a prior survey that suggested the "potential for historic archaeological sites" in the area. Because the City had allegedly failed to notify or obtain a permit from the THC, Grossman sought to enjoin the City from entering into further contracts related to the project until it fully complied with the Antiquities Code.

Before the hearing on a temporary injunction, the City filed a plea to the jurisdiction, contending that Grossman failed to plead any facts that establish a waiver of the City's governmental immunity. It also claimed the Antiquities Code does not contain a clear and unambiguous waiver of the City's immunity. Just prior to the hearing on the temporary injunction, the trial court denied the City's plea to the jurisdiction. The City then immediately pursued an interlocutory appeal of that ruling with this Court (which effectively stayed the injunction hearing). Grossman immediately filed with this Court a petition for writ of injunction to halt demolition of buildings in the footprint of the Arena. We notified the Texas Supreme Court of our recusal of the entire panel, and both appeals were transferred to the Second Court of Appeals. That court granted the writ of injunction pending its hearing of the companion appeal.

C. The City Links the Austin Suit to the El Paso Suit

Meanwhile, back in Austin, the City asked the trial court to enjoin further prosecution of the El Paso suit. One provision of the Government Code under which the City brought suit authorized the Austin court to enjoin any litigation that might undermine the court's validation of the bonds. TEX.GOV'T CODE ANN. § 1205.061. Based on that provision, the City asked the Austin court to enjoin further prosecution of the El Paso suit. The Austin trial court denied that request. As part of its final judgment, the Austin court took judicial notice of the El Paso suit, but also expressly declined to exercise jurisdiction over the Antiquities Code cause of action.

The City appealed that judgment to the Third Court of Appeals.

D. The City Obtains a Permit from THC

The El Paso suit was based in part on the claimed failure of the City to notify the THC of the impending project. The City resolved any notice issue, however, when its agent, Moore Archeological Consulting, Inc. (Moore), sent a notice letter to the THC in May of 2018.¹ In June 2018, the THC responded by outlining its requirements for issuing a permit. In August of 2018, Moore submitted a permit application, scope of work, and research design. Those documents included a description of the area at issue, historical photographs and drawings depicting its evolution over time, and a description of some prior excavations in the vicinity. The research design noted that no buildings within the footprint are presently listed in the National Register of Historic Places or are defined as contributing elements to such districts. Thus, Moore's proposed plan was limited to the potential for subsurface archaeological deposits. And the research design itself notes the potential of "prehistoric or early historic Native American activity" in the area, and the possibility of finding among other things, pottery, lithic tools, cooking pits, pueblo-style building remnants, and while less likely, human remains.²

1 And based on having notified the THC of its plans, the City moved to dismiss its interlocutory appeal of the El Paso case that was then pending before the Second Court of Appeals. The City reasoned that the merits of the dispute were moot because the City had notified the THC of its plans for the Arena. The City also withdrew its plea to the jurisdiction by recasting its jurisdictional argument. It claimed that its original plea to the jurisdiction was predicated on the fact it did not own all the properties at issue, but during the course of the appeal, it in fact obtained title to those properties. The Fort Worth court dismissed the interlocutory appeal. City of El Paso v. Grossman , 02-17-00384-CV, 2018 WL 4140461, at *3 (Tex.App.--Fort Worth Aug. 30, 2018, no pet.) (mem. op.).

2 The research design notes that the project area was part of the "first homestead and farmlands of Juan Maria Ponce de Leon, the earliest European settler on the north side of this segment of the Rio Grande." Ponce de Leon built his first home in or immediately adjacent to the project area around 1827. After Ponce de Leon's death, a syndicate--the El Paso Company--acquired the land and hired Anson Mills to plat the area as a town in 1859. The Arena project encompasses an area that once contained the original City Hall and Fire Station, "Toenigges’ Beer Garden," "Myar's Opera House," a short-lived skating rink, and several brothels. By 1908 roughly 70% of the project area was made up of small single-family dwellings, boarding houses, tenements, apartments, or vacant lots. Grossman testified that a prior City survey identified fourteen structures that were eligible to be added to the National Register of Historic Places, or eligible to be contributing buildings within a national registered district. One remaining structure of note from that period includes a building circa 1902, that housed a "Chinese Laundry" which has been converted into a residence. But much of Grossman's complaint about the research design was that it was Euro-centric in that it failed to include sufficient detail for the time-period before Ponce de Leon's ranch.

The proposed plan contemplated surveying the open areas (streets, parking lots, and walkways) with ground penetrating radar (GPR) to identify possible archeological features. As existing building are demolished down to ground level, the footprint of those structures would also be surveyed by GPR. "Results of the GPR survey will be evaluated and used to help propose a focused strategy for conducting a mechanical survey of the project area." The mechanical survey contemplated digging trenches to expose, but not remove archeological features or intact deposits. Afterwards, the City would share an inventory of the findings with the THC.

A THC project reviewer raised initial questions about the depth of construction disturbances, the qualifications of the GPR operator, and the rationale for GPR before and after demolition. After resolution of those questions, THC issued a permit to the City on October 15, 2018. The archeological survey design approved by the THC included three phases: (1) the demolition of the buildings in the footprint of the Arena, (2) an underground survey of the site using GPR, and (3) a subsurface investigation.

E. Grossman Files Suit Against THC's Director, Mark Wolfe

Grossman then filed the third lawsuit relevant to our appeal. In Travis County, Grossman filed suit against Mark Wolfe, the Director of THS (the Wolfe suit). The pleadings in that suit are not in our record, but the background is evident from the subsequently published appellate decision of the Third Court of Appeals. Grossman v. Wolfe , 578 S.W.3d 250 (Tex.App.--Austin 2019, pet. denied). The suit sought declaratory and injunctive relief contending that the permit for the Arena was unlawfully issued. Grossman alleged, (1) that Wolfe acted ultra vires by issuing the permit himself without the Commission's approval, and (2) the permit allowed the City to "commence" the Arena project--to include demolishing the existing buildings--before completion of the archeological survey. As to this later claim, the Antiquities Code provides that if an archeological survey is necessary, "the project may not commence until the archeological survey is completed." TEX.NAT.RES.CODE ANN. § 191.0525(c). Grossman asked the district court to declare the permit void and to enjoin the City from conducting the archeological survey authorized by the permit. Wolfe , 578 S.W.3d at 254.

The City intervened in the suit, and in part asserted that sovereign immunity barred Grossman's claims against Wolfe. The City argued that neither the Government Code nor the Antiquities Code contain an express waiver of immunity. The district court sustained a plea to the jurisdiction and dismissed Grossman's case.

F. The Third Court of Appeals Rules Against Grossman

The City filed an appeal from the Austin lawsuit and Grossman filed an appeal from the Wolfe lawsuit. Both appeals were decided by the Third Court of Appeals; those decisions are relevant here, so I outline the key holdings.

1. The Austin suit

In November 2018, the Third Court of Appeals affirmed in part and reversed in part the Austin trial court's judgment. Ex parte City of El Paso , 563 S.W.3d 517 (Tex.App.--Austin 2018, pet. denied). Relevant here, the Third Court of Appeals first held that the trial court erred in ruling that the arena must exclude sporting events. According to the court, a grammatically correct construction of the ordinance that authorized the bond election would permit construction of an Arena that could also host sporting events. Id. at 525. Second, the court of appeals concluded that the trial court erred in failing to issue an injunction against Grossman for pursuing the El Paso litigation. At least that is what its opinion stated: "Because Grossman's El Paso suit is a proceeding that ‘contests the validity of ... an action or expenditure of money relating to the public securities, a proposed action or expenditure, or both,’ the district court was authorized to enjoin the prosecution or maintenance of the suit." Id. at 527, quoting TEX.GOV'T CODE ANN. § 1205.061(a)(4). "The district court's failure to do so was an abuse of discretion because Grossman's El Paso suit prevents final resolution of all matters subject to the City's [declaratory judgment] lawsuit." Ex parte City of El Paso , 563 S.W.3d at 527. The court of appeals judgment, however, only enjoined Grossman from filing a lawsuit (as distinct from pursuing an already filed action).³ Id. at 528. Grossman unsuccessfully petitioned the Texas Supreme Court for review of this decision.

3 The Third Court's judgment reads:

IT IS FURTHER ORDERED that, as specified by Texas Government Code section 1205.151, this Final Judgment is a permanent injunction against the filing by any person or entity of any proceeding contesting the validity of the bonds, the authorization of the bonds, the expenditure of money relating to the bonds in conformity with this judgment, the provisions made for payment of the bonds or of interest thereon, any matter adjudicated by this Final Judgment, and any matter that could have been raised in these proceedings.

https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=31c848f1-e5e4-4c23-80ac-796205176d09&coa=coa03&DT=Opinion&MediaID=57a2d895-7392-4834-bd6c-7e359ab85380 (last visited October 22, 2021)

2. The Wolfe suit

In the Wolfe case, our sister court concluded that while Grossman had standing to raise his challenges, Wolfe was protected by sovereign immunity. Grossman could not sue a state actor without legislative permission, but under Texas law he could sue an individual state employee who acted "ultra vires " (that is, where the officer acted without legal authority or failed to perform a purely ministerial act). Wolfe , 578 S.W.3d at 258, citing City of El Paso v. Heinrich , 284 S.W.3d 366, 372 (Tex. 2009). Relevant here, Grossman contended that Wolfe acted illegally or without authority because the permit allowed the City to "commence" the Arena project by demolishing buildings before the archeological survey was completed. And section 191.0525(c) of the Antiquities Code states "the project may not commence until the archeological survey is completed." TEX.NAT.RES.CODE ANN. § 191.0525(c).

Nonetheless, the court held Grossman had not asserted a viable ultra vires claim because the Antiquities Code and the Commission's rules gave it "broad discretion" in how archeological surveys are performed and how permits are issued. Wolfe , 578 S.W.3d at 260. The THC understood that the City intended to use GPR to survey 100% of the project footprint. Any items of archeological significance would be found below ground. As the Third Court of Appeals noted, "There is no indication that the buildings have historical or archeological value." Id. at 261. "And the record before us indicates that demolition of existing buildings is required to perform a subsurface survey, and that is what the permit at issue here allows." Id. Because the THC acted within its discretion to approve the permit, Grossman failed to assert a true ultra vires claim, and his suit did not fall within that exception to sovereign immunity.

But Grossman had also asserted an alternative theory. On appeal he claimed that if his ultra vires claim failed, then section 191.173(a) itself waived Wolfe's immunity. Id. at 261. That section provides:

A citizen of the State of Texas may bring an action in any court of competent jurisdiction for restraining orders and injunctive relief to restrain and enjoin violations or threatened violations of this chapter, and for the return of items taken in violation of the provisions of this chapter.

TEX.NAT.RES.CODE ANN. § 191.173. And the legislature can waive its sovereign immunity by legislative consent expressed in "clear and unambiguous language." TEX.GOV'T CODE ANN. § 311.034 ; Texas Nat. Resource Conservation Comm'n. v. IT-Davy , 74 S.W.3d 849, 853-54 (Tex. 2002). Grossman claimed section 191.173 provides that consent. But because Grossman had not plead a section 191.173 theory against the THC at the trial court, the court of appeals treated this claim as a request to remand the case so Grossman could replead. It denied that request, however, because pleading this theory would be futile. Wolfe , 578 S.W.3d at 261. The Third Court of Appeals had previously held that a virtually identical statute had not waived the THC's immunity. Id. citing Bacon v. Texas Historical Comm'n , 411 S.W.3d 161, 172 (Tex.App.--Austin 2013, no pet.). The court thus concluded that section 191.173 did not waive sovereign immunity. Wolfe , 578 S.W.3d at 261.

Grossman pursued a further appeal of this holding with the Texas Supreme Court, which denied his petition for review.

G. Grossman Rekindles the El Paso Litigation

After the Texas Supreme Court denied the petition for review (and motion for rehearing) in the Wolfe lawsuit, Grossman amended his petition in the El Paso litigation to assert a new factual theory against the City.⁴ The amended petition alleged that in October 2018, author Mark Santiago published a new book that documented a Mescalero Apache "Peace Camp" on the north bank of the Rio Grande which could have been on the present site of the Duranguito neighborhood. According to Santiago's book, this Peace Camp was used intermittently between 1778 and 1825 and continuously between 1790 and 1794.

4 The Texas Supreme Court denied the petition for review on August 9, 2019, and the motion for rehearing on October 4, 2019. Grossman filed the amended petition in the El Paso suit on October 17, 2019.

Based on this new information, Grossman alleged that the project must be stopped until a plan could be developed "to uncover, study, and retrieve artifacts from the Peace Establishment era and preserve this area for future study."⁵ An exchange of letters shows that Grossman's lawyers raised the "Peace Camp" issue with the THC in September 2019, attaching declarations from several experts, including author Mark Santiago. The THC wrote to the City on October 7, 2019, recommending that it familiarize itself with "Santiago's work and consider the potential for encountering cultural deposits associated with the peace camp during [its] investigations." But otherwise, the THC did not revoke its permit.

5 More specifically, the amended petition sought to require Moore to review all the available primary source material for the Peace Camp, including the documentation located in archives in Mexico City and Seville, Spain. It would also require Moore to review archeological reports from the El Paso Convention Center in 1970 and "produce a Scope of Work requiring excavation to the appropriate depth, employing techniques that include federally approved safeguards for its workers, in order to thoroughly investigate the Spanish Colonial period."

The City promptly filed an amended plea to the jurisdiction incorporating the holding from the Third Court of Appeals decision in the Wolfe suit.

The trial court heard both the plea to the jurisdiction and temporary injunction on October 21, 2019. At the injunction hearing, it took testimony from three historians and two archeologists. The City does not contest the evidence submitted by the historians that the Mescalero Apache may have had a Peace Camp in the footprint of the Arena project, nor that studying artifacts from that encampment is a worthy undertaking. Rather, the parties clashed over the strategy to uncover any archeological finds. Advocating for Grossman, Dr. Michael Carmichael questioned the efficacy of using GPR in sandy soils. He criticized Moore's plan because it proposed scrapping the surface, then trenching, when he would start with a grid of trenches. And the material excavated from the trenches should be sieved through 1/8 inch versus 1/4 inch screens to find the smaller items likely found with Native American encampments. He also questioned the depth which the survey should reach. A nearby prior excavation, not mentioned in the Moore report, found native American artifacts at twenty feet. In retort, archeologist Douglas Mangum, the named author of Moore's research design, testified that the survey would search to whatever depth was necessary to uncover archeological finds. His original design contemplated the possibility of Mescalero Apache artifacts, and he would follow the THC's letter guidance to consider the Peace Camp outlined in Santiago's new book.

The trial court denied both the plea to the jurisdiction and the temporary injunction. Grossman and the City perfected appeals from the adverse rulings on their respective motions, which we combined for the purposes of this appeal.⁶

6 We granted Grossman's motion for emergency relief and stayed the project pending the resolution of this appeal. The City filed a motion to reconsider which the Court denied shortly after oral argument, over my dissent.

II. GOVERNMENTAL IMMUNITY

A. Governmental Immunity

When it applies, governmental immunity protects political subdivisions of the State, including cities, from suit. See Wichita Falls State Hospital v. Taylor , 106 S.W.3d 692, 694 n.3 (Tex. 2003) ; Tabrizi v. City of Austin , 551 S.W.3d 290, 295-96 (Tex.App.--El Paso 2018, no pet.). Governmental immunity generally applies to municipalities when they are performing governmental as opposed to proprietary functions. Wasson Interests, Ltd. v. City of Jacksonville , 489 S.W.3d 427, 439 (Tex. 2016). Planning and development of a coliseum is a governmental function. See TEX.CIV.PRAC. & REM.CODE ANN. § 101.0215(16) (so stating under Texas Tort Claims Act); CHW-Lattas Creek, L.P. by GP Alice Lattas Creek, L.L.C. v. City of Alice , 565 S.W.3d 779, 782 (Tex.App.--San Antonio 2018, pet. denied) (failure of city to build amphitheater implicated governmental and not propriety function); City of San Antonio v. Butler , 131 S.W.3d 170, 178 (Tex.App.--San Antonio 2004, pet. denied) (city's concession contract for vendors in the Alamodome was part of its governmental function of owning, operating, or maintaining a civic center or coliseum).

Several other aspects of governmental immunity are worthy of mention:

1. Immunity is a doctrine as old or older than the archeological finds at issue

Sovereign immunity has its roots in the English common-law dating back more than six hundred years. Tooke v. City of Mexia , 197 S.W.3d 325, 331 (Tex. 2006) (governmental immunity is "an established principle of jurisprudence in all civilized nations") quoting Beers v. State of Arkansas , 61 U.S. 527, 20 How. 527, 15 L.Ed. 991 (1857) ; see also 3 WILLIAM BLACKSTONE , COMMENTARIES ON THE LAWS OF ENGLAND 254 (1768). Texas first recognized sovereign immunity as a principle of its law more than 170 years ago. See Hosner v. DeYoung , 1 Tex. 764 (1847) ("[N]o state can be sued in her own courts without her consent, and then only in the manner indicated by that consent."). Federal courts acknowledged the doctrine at least twenty years earlier. See Cohens v. State of Virginia , 19 U.S. 264, 6 Wheat. 264, 5 L.Ed. 257 (1821). The doctrine is acknowledged in the Federalist papers written at the founding of our Republic. See Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 695 (Tex. 2003) citing THE FEDERALIST No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

"Although the justifications for its existence have evolved through the years, we have steadfastly retained it in modern times precisely because it shields ‘the public from the costs and consequences of improvident actions of their governments[,]’ and ensures that the taxes the public pays are used ‘for their intended purposes[.]’ " Hillman v. Nueces County , 579 S.W.3d 354, 361 (Tex. 2019), quoting Tooke , 197 S.W.3d at 332, and Reata Const. Corp. v. City of Dallas , 197 S.W.3d 371, 375 (Tex. 2006). Without this protection, public funds would be used to defend lawsuits and pay judgments instead of providing public services, leading to "governmental paralysis." Hughes v. Tom Green County , 573 S.W.3d 212, 218 (Tex. 2019). Relatedly, immunity "preserves separation-of-powers principles by preventing the judiciary from interfering with the legislature's prerogative to allocate tax dollars." Brown & Gay Engineering, Inc. v. Olivares , 461 S.W.3d 117, 121 (Tex. 2015).

2. Governmental immunity resolves cases, but not on the merits

As here, a government unit may raise its immunity through a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225-26 (Tex. 2004). The function of the plea is "to defeat a cause of action without regard to whether the claims asserted have merit." Bland Independent School Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). But inherent in that principal is Justice Willett's observation that "just as immunity is inherent to sovereignty, unfairness is inherent to immunity." City of Galveston v. State , 217 S.W.3d 466, 480 n.38 (Tex. 2007) (Willett, J., dissenting).

3. The legislature primarily decides when immunity should be waived

Texas Courts have recognized that the legislature "is best suited to make the policy-laden judgments as to if and how state government resources should be expended." Bacon , 411 S.W.3d at 172-73 citing Texas Dep't of Transp. v. Sefzik , 355 S.W.3d 618, 621 (Tex. 2011) and Tooke , 197 S.W.3d at 331-32. Courts should thus defer to the legislature as the policy-making branch of government "to decide whether and to what extent that immunity should be waived." City of Galveston , 217 S.W.3d at 471. And courts have consistently done so. Reata Const. Corp. , 197 S.W.3d at 374-75.⁷ Thus "[a] political subdivision enjoys governmental immunity from suit to the extent that immunity has not been abrogated by the Legislature." Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-Ins. Fund , 212 S.W.3d 320, 324 (Tex. 2006). "Where a government entity challenges jurisdiction on the basis of immunity, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity." Ryder Integrated Logistics, Inc. v. Fayette County , 453 S.W.3d 922, 927 (Tex. 2015) (internal quotation marks omitted). And governmental immunity is waived only by clear and unambiguous language indicating the legislature's intent to do so. TEX.GOV'T CODE ANN. § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."); Hillman , 579 S.W.3d at 359-60 ; Socorro Indep. Sch. Dist. v. Hamilton , 579 S.W.3d 831, 835 (Tex.App.--El Paso 2019, pet. denied).

7 Reata raises one of the few examples of courts defining an exception to governmental immunity. The court there held that when a government entity initiates the litigation process by asserting its own affirmative claims for monetary relief, the defendant can raise claims against that same government entity as an offset. Reata Const. Corp. v. City of Dallas , 197 S.W.3d 371, 376-77 (Tex. 2006).

4. The doctrine is of such importance that it cannot be waived

A government unit's immunity implicates a trial court's subject matter jurisdiction. Engelman Irrigation Dist. v. Shields Brothers, Inc. , 514 S.W.3d 746, 751 (Tex. 2017). As such we have an obligation to consider the issue even if it was not raised below. Rusk State Hosp. v. Black , 392 S.W.3d 88, 91 (Tex. 2012) (argument raised for first time to court of appeals); Manbeck v. Austin Indep. Sch. Dist. , 381 S.W.3d 528, 530 (Tex. 2012) (immunity argument raised for first time before Texas Supreme Court).⁸ B. Application

8 Accordingly, the majority correctly rejected, as do I, Grossman's argument that the City waived immunity through a prior claimed judicial admission.

With these principles in mind, does section 191.173 of the Natural Resources Code unambiguously waive the City's governmental immunity? Section 191.173 is the sole basis for Grossman's claim that he may sue the City. The text of that section authorizes a "citizen of the State of Texas" to bring an action "to restrain and enjoin violations or threatened violations" of the Antiquities Code "and for the return of items taken in violation of the provisions of this chapter." TEX.NAT.RES.CODE ANN. § 191.173(a). While this provision generally authorizes an injunctive suit, our question is whether the legislature has allowed injunctive suits against government entities. We undertake this task understanding that our sister court of appeals has already answered the question "No." Wolfe , 578 S.W.3d at 261 ("But even assuming Grossman is entitled to replead to assert claims against the Commission, the jurisdictional defect would remain because the Antiquities Code does not waive the Commission's sovereign immunity."). Grossman reminds us that the Third Court of Appeals’ decision is not binding on this Court. Both the majority and I agree on the framework to decide this question. We just disagree on the outcome of the analysis.

1. The relevant considerations

Two terms ago, the Texas Supreme Court decided whether provisions of the Michael Morton Act waived a County's immunity from a wrongful discharge claim by one of its prosecutors. In deciding whether the Act "clearly and unambiguously" waived immunity, the court outlined five considerations to answer that question:

(1) "whether the statutory provisions, even if not a model of clarity, waive immunity without doubt";

(2) resolve any "ambiguity as to waiver ... in favor of retaining immunity";

(3) generally, find waiver "if the Legislature requires that the [governmental] entity be joined in a lawsuit even though the entity would otherwise be immune from suit";

(4) whether the Legislature "provided an objective limitation on the governmental entity's potential liability"; and

(5) "whether the statutory provisions would serve any purpose absent a waiver of immunity."

Hillman , 579 S.W.3d at 360, quoting Harris County Hosp. Dist. v. Tomball Reg'l Hosp. , 283 S.W.3d 838, 844 (Tex. 2009). In my view, none of these factors weigh in favor of a waiver of governmental immunity.

2. Application of the factors

First, the text of section 191.173 does not expressly waive the City's immunity. It makes no explicit reference to a government entity at all. The language is contrasted with other statutory provisions that expressly waive immunity. See, e.g. , TEX.GOV'T CODE ANN. § 554.0035 ("Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter."); Id. § 2007.024(c) ("Sovereign immunity to liability is waived to the extent the governmental entity elects to pay compensation under this subsection."); TEX.NAT.RES.CODE ANN. § 52.035(c) ("The state waives its right to claim sovereign immunity in any action commenced against the state for unauthorized disclosure of the confidential information obtained from the Department of the Interior [as per this section]"); Id. § 33.171(a) ("A littoral owner whose rights may be affected by any action of the board under this chapter may bring suit for a declaratory judgment against the State of Texas in a district court in Travis County to try the issues."); TEX.CIV.PRAC. & REM.CODE ANN. § 110.008 ("Subject to section 110.006, sovereign immunity ... from liability is waived and abolished to the extent of liability created by section 110.005[.]"). Consequently, section 191.173 does not "waive immunity without doubt." Hillman , 579 S.W.3d at 360.

And although not bound by the decision, I find persuasive the Third Court of Appeals decision in Bacon , 411 S.W.3d at 177. The court there answered the same question before us, but as to section 442.012(a) of the Texas Government Code. That section permits "any resident of this state [to] file suit in district court to restrain and enjoin a violation or threatened violation of this chapter or Chapter 191, Natural Resources Code, to recover on behalf of the state a civil penalty provided by this chapter, ... or for both injunctive relief and a civil penalty." See TEX.GOV'T CODE ANN. § 442.012(a). The plaintiff in Bacon based his claim against the THC on this provision, contending that the THC approved inaccurate historical markers. The court concluded, however, that the THC was immune from that claim. As the court noted, "[E]ven if section 442.012(a) otherwise authorized Bacon to bring his suit, it would not, as THC emphasizes, waive the sovereign immunity that shields the agency against this or any other claim Bacon brings against it." Bacon , 411 S.W.3d at 177. The court reached this conclusion, reasoning the section 442.012 did not clearly and unambiguously waive immunity. Like our statute, section 442.012 does not expressly mention suing a government entity. The Bacon court also compared the statute to those that merely permit the state to "sue or be sued" or to "plead or [be] impleaded," noting that even such statutory language by itself is not sufficient to waive sovereign or governmental immunity. Id. , citing Tooke , 197 S.W.3d at 342.⁹

9 As the court noted in Tooke :

Scores of Texas statutes provide, variously, that individuals and entities, public and private, may "sue and (or) be sued", "(im)plead and (or) be impleaded", "be impleaded", "prosecute and defend", "defend or be defended", "answer and be answered", "complain and (or) defend", or some combination of these phrases, in court.... Because immunity is waived only by clear and unambiguous language, and because the import of these phrases cannot be ascertained apart from the context in which they occur, we hold that they do not, in and of themselves, waive immunity from suit.

Tooke , 197 S.W.3d at 328.

The second and third considerations also weigh against Grossman. If there is a doubt (and there is here), then that doubt is resolved against a waiver. This factor mirrors the allocation of burdens: Grossman carries the burden to demonstrate that the trial court has subject-matter jurisdiction over his claims. Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003) ; City of El Paso v. Waterblasting Technologies, Inc. , 491 S.W.3d 890, 895 (Tex.App.--El Paso 2016, no pet.). As to the third consideration, the Natural Resources Code does not require the joinder of any public entity into an injunction action. Section 191.173 says nothing at all about who must be a party to the action.

Because section 191.173 only allows for injunctive type relief, it at least arguably limits a public entities liability if suit is filed. This fourth factor might superficially weigh in Grossman's favor and is the factor that the majority partly hangs its hat on. But as the expanse of this litigation suggests, even a claim that does not seek monetary relief can tax a public entity's resources. In the nine years that the litigation surrounding the project has dragged on, we would be blind to not acknowledge that the costs of delay and litigation to the City are substantial. Setting aside the legal fees, the costs of labor, material, and real estate to complete the Arena have no doubt risen. See Buckholts Indep. Sch. Dist. , 632 S.W.2d at 149 (noting that the mere existence of a suit contesting a public project bond is likely to cause damages, including from increased construction costs); Hotze v. City of Houston , 339 S.W.3d 809, 815 (Tex.App.--Austin 2011, no pet.) (upholding constitutionality of bond requirement and amount of bond in challenge to public works bond based on costs of delay, including increased costs related to re-bidding contracts and inflation). We would also be naïve to assume that delays occasioned by temporary injunction litigation do not affect the cost of financing for the City. If the Arena is ever built, it may be appreciably more expensive than as originally planned, or at least would need to be scaled back to fit the original budget. And any delay in constructing the Arena would equate to lost revenue for the events that could not be booked there. Simply because Grossman has not sought monetary relief does not mean that he is not exacting a substantial cost to the City.

The parties largely join issue on the last consideration--whether section 191.173 would apply to anyone other than a government entity. Stated otherwise, "we must look at whether a statute makes any sense if immunity is not waived." Kerrville State Hosp. v. Fernandez , 28 S.W.3d 1, 6 (Tex. 2000). Grossman's argument claims that because the Antiquities Code primarily applies to projects on public lands, it necessarily involves government entity defendants, and the injunction remedy was necessarily intended to waive immunity. And true enough, section 191.0525 requires the issuance of a permit for any project located "on state or local public land[.]" TEX.NAT.RES.CODE ANN. at § 191.0525(a). But that provision does not necessarily mean that the party constructing the improvement is also a public entity. There are any number of situations where a private entity could be constructing facilities on public lands (and consequently the injunction provision could be directed at such private entities). The notice requirement in section 191.0525 contains a list of sixteen categorical exclusions, several of which would implicate private, and not public entities. Id. § 191.0525(e)(1)(14)(15) (oil and gas wells activities); (2) (upgrading electrical lines); (8) (animal grazing); and (9) (plowing). Had the Code been designed solely to restrain construction by or on behalf of public entities, there would have been no need to exclude what are typically considered private commercial activities.

Nor is it a given that all construction on public lands is performed by public entities. In 2011, the legislature enacted a comprehensive set of provisions authorizing public private partnerships that would permit a private entity to construct for the benefit of a public entity qualifying projects, which might include, among others, facilities for mass transit, vehicle parking, port, power generation, fuel supply, water supply, medical or nursing care or recreation. Also included are oil or gas pipelines, hospitals, and schools. TEX.GOV'T CODE ANN. §§ 2267.001 - 2267.066 ; 2267.001(10) (defining qualifying projects); § 2267.056 (authorizing conveyance of interests in public lands); § 2267.057(a)(2) (authority of qualifying person to develop project). Even prior to that enactment, several statutes authorized public entities to lease their land to private entities for commercial development. TEX.REV.CIV.STATS.ANN. art. 5421c § 8-A (State land subject to lease for recovery of oil and gas); TEX.NAT.RES.CODE ANN. § 51.121 (unsold public school land may be leased for any purpose that is in the best interest of the state); TEX.EDUC.CODE ANN. § 65.39 (UT regents’ authority to lease its lands); Walker v. City of Georgetown , 86 S.W.3d 249, 252 (Tex.App.--Austin 2002, pet. denied) (example of private entity building and operating a batting cage in a public park owned by the city); Zachry v. City of San Antonio , 157 Tex. 551, 305 S.W.2d 558, 559 (1957) (example of city's attempted lease of portion of public park for construction of parking garage). Accordingly, section 191.0525 could well apply to a private entity constructing improvements on public lands.

Moreover, the Antiquities Code has other provisions that implicate private parties. Section 191.054 contemplates the THC issuing permits to state agencies, political subdivisions "or to qualified private institutions, companies, or individuals for the survey and discovery, excavation, demolition, or restoration of, or the conduct of scientific or educational studies at, in, or on landmarks, or for the discovery of eligible landmarks on public land[s.]" TEX.NAT.RES.CODE ANN. § 191.054(a). Landmarks can, pursuant to the limitations in the Code, be designated on private lands. Id. § 191.054 - 191.098. Moreover, section 191.058 details how qualified private parties can display artifacts and other items through permanent exhibits. Id. § 191.058(a). Additionally, section 191.053 contemplates contracts with "private institutions, corporations, or individuals for the discovery and scientific investigation of sunken or abandoned ships[.]" Id. § 191.053.¹⁰ The injunction provision in section 191.173 could just as well apply to a private salvage company exploiting such a shipwreck. Nor is it hard to envision how section 191.173 might be useful in preventing private parties from interfering with landmarks on private land, or protecting artifacts held for display by private parties. In fact, section 191.173 well fits those situations in that it expressly authorizes "the return of items taken in violation of the provisions of this chapter." Id. § 191.173(a).

10 Tex.Nat.Res.Code Ann. § 191.091 ("Sunken or abandoned pre-twentieth century ships and wrecks of the sea, and any part or the contents of them, and all treasure imbedded in the earth, located in, on, or under the surface of land belonging to the State of Texas, including its tidelands, submerged land, and the beds of its rivers and the sea within jurisdiction of the State of Texas, are declared to be state archeological landmarks and are eligible for designation.").

Because there are applications of section 191.173 that extend beyond public works projects administered by government entities on public lands, the provision serves other "purpose[s] absent a waiver of immunity." Tomball Reg'l Hosp. , 283 S.W.3d at 844 ; see also Hillman , 579 S.W.3d at 360 (rejecting similar argument because Michael Morton Act served purpose "separate and apart" from wrongful termination claims).

In sum, the balance of the considerations outlined in Hillman , should inform us that section 191.173 is not a clear and unambiguous waiver of governmental immunity.

3. Governmental immunity does not defang the Antiquities Code

Nor does the existence of governmental immunity prevent the Antiquities Code from accomplishing its purpose. "[W]hile governmental immunity provides broad protection to the state and its officers, it does not bar a suit against a government officer for acting outside his authority—i.e. , an ultra vires suit." Houston Belt & Terminal Ry. Co. v. City of Houston , 487 S.W.3d 154, 161 (Tex. 2016). That claim prevents a state officer from acting "without legal authority or fail[ing] to perform a purely ministerial act." Heinrich , 284 S.W.3d at 372. That is, ultra vires suits "attempt to reassert the control of the state" over overreaching government officials and "encourages enforcement of existing policy." City of Houston , 487 S.W.3d at 164.

So, when the City here first proceeded to begin the Arena project without notifying the THC, its officials subjected themselves to an ultra vires claim for failing to perform the ministerial act of complying with the notice provisions of the Antiquities Act. And once the THC was involved, its officers were subject to ultra vires claims if they acted without legal authority or failed to perform a ministerial duty. That is what Grossman in fact claimed when he sued Director Wolfe in the Wolfe suit.

No doubt, an ultra vires claim does not permit a litigant to challenge the valid exercise of a government official's discretion (such as the Austin Court of Appeals concluded in the Wolfe suit). In City of Houston , the court explained the distinction between the type of discretion which might be raised in an ultra vires suit, and that which cannot:

Accordingly, the principle arising out of Heinrich and its progeny is that governmental immunity bars suits complaining of an exercise of absolute discretion but not suits complaining of either an officer's failure to perform a ministerial act or an officer's exercise of judgment or limited discretion without reference to or in conflict with the constraints of the law authorizing the official to act. Only when such absolute discretion—free decision-making without any constraints—is granted are ultra vires suits absolutely barred. And, as a general rule, "a public officer has no discretion or authority to misinterpret the law." Cf. In re Smith , 333 S.W.3d 582, 585 (Tex. 2011) (orig. proceeding).

City of Houston , 487 S.W.3d at 163 (emphasis original).

This case does not come to us an ultra vires claim, either against the City or THC. The point, however, is that even with the limitations imposed by governmental immunity, aggrieved litigants are not without recourse to enforce the Antiquities Code against government actors for actions clearly in derogation of the Act. What they cannot do, however, is to have a court second guess the THC's discretion to approve the technical formulation of an archeological dig.

III. THE TRIAL COURT DID NOT ERR IN DENYING THE TEMPORARY INJUNCTION

On the merits, Grossman carries the burden to show that the trial court abused its discretion in failing to find the three elements for a temporary injunction: (1) his legal right to relief; (2) a probable right for recovery; and (3) a probable, imminent, and irreparable injury if the relief is not granted. Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 (Tex. 2002). For the first two elements, the thrust of his argument is that the current design of the archeological survey is inadequate to locate and protect the remnants of the Peace Camp, which in the intervening centuries has been covered with as much as 20 feet of sediment. The City contested this claim and offered its own expert to defend the current archeological research design. Faced with conflicting testimony, the trial court resolved the dispute against Grossman. On the merits, I agree with the City that our standard of review precludes the relief that Grossman seeks.

The majority opinion acknowledges our standard of review, but in my view fails to properly apply it. The trial court was vested with the discretion to grant or deny the temporary injunction. Id. at 204. We can overturn its decision only upon a showing that the trial court abused that discretion. Id. ; State v. Walker , 679 S.W.2d 484, 485 (Tex. 1984). We cannot find an abuse of discretion without a showing that the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Johnson v. Fourth Ct. of Appeals , 700 S.W.2d 916, 918 (Tex. 1985). Moreover, when the trial court does not make findings of fact or conclusions of law, we must uphold the court's order on any legal theory supported by the record. Yardeni v. Torres , 418 S.W.3d 914, 918 (Tex.App.--El Paso 2013, no pet.). The trial court sits as fact finder and has the discretion to believe or disbelieve a witness's testimony; we may not disturb that finding so long as it falls within the "zone of reasonable disagreement." Yardeni , quoting City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005) ("A reviewing court cannot substitute its judgment for that of the trier-of-fact" where facts are disputed).

Simply put, the dispute below outlines two strategies for conducting an archeological survey. Both sides acknowledge that there may have been a "Peace Camp" within the footprint of the Arena project. And both sides agree to the importance of preserving any artifacts that might be still found there. What they disagreed upon what how go about doing the survey.

Grossman asks that the project be stayed until the City implements a "research design ... that properly accounts for the existence of the peace camp in Duranguito." The City's current plan, however, was not developed in a vacuum, as its Scope of Work had to be approved by the THC, as evidenced by a duly issued permit. Under the statute, the THC can issue that permit when, in "the opinion of the committee" the "permit is in the best interest of the State of Texas." TEX.NAT.RES.CODE ANN. § 191.054(a). That language certainly vests the THC with a broad discretion, which courts should ordinarily be loath to second guess:

If the matter covered by the order is one committed to the agency by the Legislature, and involves the exercise of its sound judgment and discretion in the administration of the matter so committed to it, the court will not undertake to put itself in the position of the agency, and determine the wisdom or advisability of the particular ruling or order in question, but will sustain the action of the agency so long as its conclusions are reasonably supported by substantial evidence. This is so because, since the Legislature has seen fit to vest the authority to exercise sound judgment and discretion in the particular matter in the administrative agency, courts will not undertake to usurp the powers committed to the agency, and to exercise the agency's judgment and discretion for it.

Railroad Comm'n v. Shell Oil Co. , 139 Tex. 66, 161 S.W.2d 1022, 1029 (1942).

Although Grossman argues that the current design does not comply with the statute, his claims are long on rhetoric, but short on details. Grossman's experts disputed the methodology of using the ground penetrating radar, and the size of the screens used to sieve the soil. But not even the majority finds these claims substantial enough to ground its decision. Moreover, these were technical ladened questions which were resolved against Grossman. Another specific claim is that a proper research design apparently would require the City to send its consultants to physically examine the archival materials referenced in Santiago's book and consult with local experts. But no specific part of the statute, or the THC's internal rules require that as a part of a proper research design. At the end of the day, we are left with the claim that the current Scope of Work does not account for the peace camps, but I believe the evidence below on this central point was hotly disputed, and it is far from clear that the City has not already accounted for the possibility of a peace camp in the Arena's footprint.

The City relies on the testimony of Douglas Mangum who was responsible for the "research design" and "scope of work" submitted as part of the permit application.¹¹ His revised Scope of Work describes a phased plan that includes:

11 Mangum obtained a bachelor's degree in anthropology with a concentration in archaeology. He obtained a master's degree in history. His firm was hired as the cultural resource management firm for the Arena project. He has worked for the firm for almost 19 years. No challenge was made below to his qualifications to offer expert opinion.

Phase 1a. Remote Sensing Survey . This phase describes the use of GPR in open areas, such as streets, parking lots and sidewalks. As buildings are demolished to ground level, their footprint will also be surveyed by GPR, until 100% of the Arena footprint is examined. "Upon the conclusion of the remote sensing survey, an interim report will be prepared that summarizes the key findings." The interim report will be submitted for review and comment to the City and then to the Archeology Division of the THC, for the purpose of formulating a plan to mechanically survey the area.

Phase 1b. Archeological Monitoring of Building Demolition . This phase is intended to ensure that the demolition of existing buildings will be conducted in a way so as to not impact deposits beneath the structures and pavements. It includes onsite inspection by archeologists and guiding the machine operators doing the demolition. It also includes stopping work if any "artifacts or features related to any historic/prehistoric sites are inadvertently exposed by this process."

Phase 2. Mechanical Survey of the Project Area. This phase describes the methodology for shallow scraping and trenching and exploratory trenches "situated in strategic locations (e.g., archival high priority areas and GPR anomalies)." "Each trench excavation will be monitored by a crew of at least two professional archeologists, who will conduct the screening and who will record all findings from each trench." Moore contemplated 35 to 50 trenches, "[h]owever, these numbers will likely vary depending on the result of the GPR survey and conditions on the ground as they are encountered."

Following the mechanical survey, Moore would prepare a technical report that details the results and makes recommendations regarding the need for any additional work. "The goal of this phase of work is to identify and record sites, and as feasible based on Phase 1 and 2-level efforts, make recommendations regarding the possible need for additional investigation. As a result, more intensive excavation, if necessary, will take place following reporting of the Phase 1 and 2 results and findings, and coordination of these findings with the THC. Any archaeological discoveries made during this phase will be evaluated and compared against available historical or archival information."

Phase 3. Future Phases of Work. This phase including developing an inventory of sites in the footprint that are possible landmarks and providing recommendations to the THC about the status of these sites.

Grossman challenged this research design first by submitting his expert's opinions as an attachment to a letter served on the THC. The letter asked for a redesign of the scope of work based on the Mark Santiago book describing the peace camp. The THC did not require a redesign of the scope of work. It did, however, send Mangum a letter that asked his firm to "familiarize" itself with the Santiago book and "consider the potential for encountering cultural deposits associated with the peace camp" during the investigations. Mangum agreed that he would follow the THC's recommendation and testified that he has read or skimmed through Santiago's book multiple times.

But even as early as the original scope of work, Mangum had already recognized the potential for Apache artifacts:

Q. And what specific provisions did you make to cover that potential?

A. We recognize that there's potential for Apaches in the area, and in both the research design and in the scope, we specifically discuss what we will do and what potential there is for prehistoric and Native American finds on the site.

...

Q. Now, the letter that we previously discussed, which is Exhibit 9, have you considered the potential for encountering cultural deposits associate with a peace camp?

A. Yes.

Q. And what considerations have you come up with?

A. It's actually pretty much the same thing that we have always done, which was that the potential for prehistoric and Native American remains have always been a high priority for us on this project. It was in fact the first context that we named as an important potentially -- potentiality on this site. And so if we encounter them, if we encounter any Native American remains, then the first consideration with this data will be the potential for the peace camps.

Q. So you are not making any changes to your scope of work at this point, you're not recommending anything be done to change it?

A. The THC has not asked us to.

...

Q. Sure. The letter here says that we recommend that you familiarize yourself with Mr. Santiago's work, Santiago's work, and consider the potential for encountering cultural deposits associated with a peace camp during your investigations, and I asked you are they requiring you to do anything specific to encounter the peace camps?

A. They are not because it is already written into the scope of work that we will be doing so....

Q. I'm asking you whether your scope of work contains a systematic plan to uncover Mescalero Apache remains from the peace camp area.

A. It contains specific plans for how we will deal with Native American remains. And the THC, in their letter reinstating our permit, did not require us to be specific, just to be aware of and be mindful of that potentiality.

Grossman argued below that the Scope of Work would only go down as far as the footings on the Arena structure. Mangum's testimony shows that argument is demonstrably false. Mangum had reviewed several historical maps to plot the likely location of the Rio Grande's changing riverbed, but he acknowledged the depth of sediment deposits could only be theorized at this point. He believes any remains for a peace camp "could be shallow, it could be fairly deep, but it would almost certainly ... would still be well within what we anticipate probably having to excavate as part of our work." Ultimately, the depth of excavation cannot be determined until the process actually starts:

Q. All right. And it is clear then -- are you being clear with me that in September --on September 27th, the date of the revised scope of work, you did not know exactly how deep you would go?

A. No, I did not. It's not always essential at this phase because the work that we're doing is preliminary. We are -- the Phase 2 is intended as an exploratory and then we will determine whether we need to go deeper. It is always possible, and this happens on a regular basis, that in our initial investigations, we reach a depth at which it's clear that there's no potential for human occupation for one reason or another. And so we do not always plan on excavating as deep as -- as everything will go unless we need to.

Q. All right. And what determines if you need to?

A. The results that we find as we go down, as we dig down.

Q. And if you reach a find, does that mean you continue to go down below that?

A. [It] really depends on the methodology that we're using. Typically if something like this, if we find something at a depth and we think it needs more under -- that we need to do more investigating on that, then at least in the area of that find, pardon me, we will stop digging deeper and start digging broader to investigate what we're finding there.

Q. So these are judgments you're making along the way?

A. Yes.

Grossman also claims that the City has no specific plan to account for the peace camps. But Mangum also described the details of the City's plan:

Q. Okay. And what is the systematic plan, then?

A. We will investigate any Native American remains, cultural remains, physical remains that we find.

Q. And what is the system to do that? What is the plan to do that?

A. We will go into Phase 2 mode. We will start clearing the living surfaces that we encounter. We will identify each and every artifact as it is exposed in place. We will do analysis of those artifacts. We will determine, based on that analysis, what groups, what times they lived there.

We will take samples, including potentially radiocarbon dates so that we can identify specific times. We will essentially conduct an entire archaeological investigation of each layer that we encounter that has historic or prehistoric cultural remains.

Nor do I find persuasive the criticism that the present plan was inflexible. The Scope of Work already outlined how Moore would provide interim reports for the THC which would guide further actions.

The THC, which has primary expertise and responsibility in this area has agreed with the City's plan. So too did the trial judge who heard the evidence (at least in the sense that Grossman did not meet his burden). Usually, we accord deference to an administrative agency acting within its discretion and area of expertise. E.g., Shell Oil Co. , 161 S.W.2d at 1029. And usually when a trial court record contains conflicting evidence, we accord discretion to the fact finder (who had the opportunity to actually see and hear the live testimony). See Furr's Supermarkets, Inc. v. Bethune , 53 S.W.3d 375, 379 (Tex. 2001) ("A trial court does not abuse its discretion if some evidence supports the trial court's decision."); Davis v. Huey , 571 S.W.2d 859, 862 (Tex. 1978) ("An abuse of discretion does not exist where the trial court bases its decision on conflicting evidence."). Because the Court has done neither here, I respectfully dissent. On the key point--whether the existing scope of work already accounts for the potential of a peace camp--the evidence was at most conflicting, and a reasonable fact finder could have well found that Mangum persuasively outlined a flexible plan for accounting for all historical finds, including the peace camp.

IV. CONCLUSION

Anyone walking Boston's "Freedom Trail" has no doubt marveled at the 17th century wood and brick structures nestled between the glass and steel skyscrapers that define the city's skyline. Still preserved to this day are the Boston Commons (America's oldest public park), the Old South Meeting House (where the Boston tea party began), Faneuil Hall (where Sam Adams rallied the cause of independence and George Washington toasted the nation's first birthday), Paul Revere's House, and the Old North Church (heralding warnings of British troop movements). Generations of Bostonians have no doubt resisted the urge to replace these historic places and structures with more utilitarian or lucrative uses for the prime real estate. And as beneficiaries of their foresight, we are still able to see many of the buildings and places where our Republic was born.

But to my research, the decisions to save these landmarks were fought out in the political arena, and not imposed on the City by its judiciary. Today, we have armed the loser in a political battle over the Arena with a powerful weapon to delay and likely kill a project that prevailed in the ballot box. And in doing so, we have created a conflict in the courts of appeals over whether section 191.173 waives sovereign immunity. For these reasons, I dissent.