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Click here for the full text of this decision FACTS:The El Paso County Water Improvement District No. 1 (EPCWID) created an application process and fee schedule for entities wanting to cross its facilities, which was made up of a series of irrigation canals, laterals and ditches deeded from the U.S. Bureau of Reclamation. Southwestern Bell Telephone (SWBT) began laying telecommunication lines across EPCWID’s facilities without acceding to the application process. When SWBT attempted to lay fiber optic cable, EPCWID threatened to arrest the SWBT linemen. SWBT sought a declaratory judgment against EPCWID, arguing: 1. EPCWID’s application fees violate the FTA and state law; 2. roads and highways crossing EPCWID’s ditches, laterals and canals are public roadways; 3. EPCWID has no right to charge for telephone lines crossing its canals, ditches and laterals when those lines are within the rights-of-ways of public roadways; 4. the water flowing through EPCWID’s canals and ditches is public; and 5. EPCWID has no right to charge for telephone lines crossing public waters. EPCWID filed a counterclaim, alleging that SWBT has trespassed on its property. After SWBT moved for summary judgment, the district court denied EPCWID’s request to amend its appeal, finding undue delay on EPCWID’s part. The district court then granted SWBT’s summary judgment motion, but denied SWBT’s motion for attorneys’ fees. Both parties appeal. HOLDING:Affirmed in part; reversed and remanded in part. EPCWID argued the district court abused its discretion by refusing to allow it to amend its pleadings. The district court imposed a scheduling order, but EPCWID did not follow it, the court notes, and EPCWID did not show good cause of not. Further, SWBT would have been prejudiced if EPCWID had been allowed to add untimely counterclaims. SWBT argues that Texas Utilities Code �181.082, which says “A telephone or telegraph corporation may install a facility of the corporation along, on, or across a public road, a public street, or public water in a manner that does not inconvenience the public in the use of the road, street, or water,” authorizes it to cross EPCWID’s facilities without submitting to the application process. The court rejects EPCWID’s contention that the roads on its facilities are not public: The roads are public, even when they cross over EPCWID’s facilities, the court concludes. Furthermore, it is contrary to public policy to restrict access to these roads to providers of telephone service to areas of new construction. The court declined to rule on whether the waterways on EPCWID’s facilities are public. The court reverses the trial court, however, on the matter of attorneys’ fees, finding that attorneys’ fees may be awarded in SWBT’s claim brought under 42 U.S.C. �1983, which alleged an unauthorized taking by El Paso and EPCWID. “Attorneys’ fees may be awarded even if the �1983 claim is not decided, provided that 1. the �1983 claim of constitutional deprivation was substantial; and 2. the successful pendant claims arose out of a common nucleus of operative facts. A claim is substantial if it supports federal question jurisdiction, and the ‘common nucleus of operative facts’ element must satisfy the test established in United Mine Workers v. Gibbs[, 383 U.S. 715 (1966),] for pendent jurisdiction.” OPINION:Jolly, Higginbotham and Stewart, Circuit Judges.

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