Plaintiff’s Original Complaint 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

SAVE THE CUTOFF,

Plaintiff,

v.

IRON RIVER RANCH II, LLC, AND 

IRONHORSE UNLIMITED, INC.

Defendants.

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CIVIL ACTION NO. 6:23-CV-142

Plaintiff Save the Cutoff’s Original Complaint

I. Introduction

1. Save the Cutoff (“STC”) brings this citizen suit against Iron River Ranch II, LLC (“Iron 

River Ranch”), and IronHorse Unlimited, Inc. (“IronHorse”) (collectively, “Defendants”), 

under the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., also known as the 

Clean Water Act (“CWA” or “Act”). Defendants have discharged pollutants into Waters of the 

United States without a permit, in violation of 33 U.S.C. §§ 1311(a).

2. STC asks this Court to enter declaratory and injunctive relief, remedial relief, civil 

penalties, and the award of costs, including attorney’s and expert witness fees.

3. In an effort to redress this ongoing problem, STC brings this citizen suit against Iron River 

Ranch and IronHorse under the CWA. See 33 U.S.C. § 1365(a)(1).

II. Jurisdiction & Venue

4. This Court has subject matter jurisdiction over this action under 28 U.S.C § 1331 (federal 

question) and 33 U.S.C. § 1365(a) (CWA citizen suit to enforce effluent standards or 

limitations). The relief requested is authorized by 28 U.S.C. §§ 2201 and 2202 (further 

necessary or proper relief based on a declaratory judgment), 33 U.S.C. §§ 1319(b), 1365(a) 

(injunctive relief), and 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties). 

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5. Venue is proper under 28 U.S.C. § 1391(b)(1), (2) and 33 U.S.C. § 1365(c), because Iron 

River Ranch and its unauthorized discharges all are located or occurred in the Tyler Division 

of the Eastern District of Texas. 

III. Notice

6. STC has complied with the CWA’s statutory notice requirements. See 33 U.S.C. § 

1365(b)(1)(A). On January 9, 2023, in a letter sent by certified mail, return receipt requested,

to Phillip Surls, registered agent for Iron River Ranch and IronHorse, STC gave Iron River 

Ranch and IronHorse notice of the violations identified in this complaint and of its intent to 

file suit after 60 days should those violations continue. A true and correct copy of the notice 

letter, with documentation of its postmark and receipt, is attached as Exhibit 1. 

7. STC also mailed a copy of its notice letter by certified mail, return receipt requested, to the 

Administrator of the EPA, the Regional Administrator for EPA Region 6, the United States 

Attorney General, and the Interim Executive Director of Texas Commission on Environmental 

Quality (“TCEQ”). STC mailed a copy of its notice letter by first-class mail to the United States 

Army Corps of Engineers, the Texas Parks and Wildlife Department, and the Commissioners 

of the TCEQ.

8. Sixty days have passed since STC served Iron River Ranch and IronHorse and federal and 

state agencies with notice of its intent to sue for the violations described in this complaint. 

9. Neither the EPA, nor the Corps of Engineers, nor the State has commenced or is diligently 

prosecuting an action to redress the violations described in STC’s notice letter and alleged in 

this complaint. 

10. The violations identified in the notice letter are continuing at this time and are reasonably 

likely to continue in the future.

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IV. Parties

Plaintiff STC

11. Save the Cutoff is a membership non-profit organization whose purposes include 

protection of the environmental quality and integrity of the Cutoff and other nearby waters in 

Henderson and Navarro Counties. The members of STC have historically enjoyed fishing and 

recreating in the Cutoff along the Henderson County/Navarro County Line, as well as the 

portion of historical Cedar Creek connected to the Cutoff at this location.

12. Dustin Baker is a member of STC. Dustin Baker currently fishes in the historical waters

of Cedar Creek near the site of the illegal discharge approximately once a week, and has done 

so since approximately 1992, and has been taking his children to fish with him since 

approximately 2015. Mr. Baker is concerned that the illegal discharge of fill into historical 

Cedar Creek has negatively impacted the environment in the area and his aesthetic enjoyment 

of the environment. 

13. In order to access water within the historical bed of Cedar Creek, and the “Cutoff” which 

is connected to the historical Cedar Creek, Mr. Baker and other members of STC have 

frequently accessed historical Cedar Creek from the right-of-way of Farm-to-Market Road

(FM) 1667. Soon after Defendants placed the illegal fill in February of 2022, Defendants then 

constructed a metal fence upon that fill (within State Right of Way of FM 1667), which fence 

included wording entitled “No Trespassing.” This metal fence prevents Mr. Baker and others 

from using heavy boats to fish in historical Cedar Creek and the Cutoff, as they did previously. 

Instead, Mr. Baker and other members of STC must climb over the fence in order to access 

historical Cedar Creek and the Cutoff. In order to boat within Cedar Creek and the Cutoff, 

they must lift boats over the fence by hand. This results in the need for additional effort to 

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reach historical Cedar Creek and the Cutoff, and also limits the size of boat which they are able 

to use. 

14. The illegal discharge of fill committed by Defendants has lessened the aesthetic and 

recreational value of historical Cedar Creek for Mr. Baker and other members of STC. The 

illegal discharge of fill has degraded the physical, chemical, and biological integrity of the 

historical Cedar Creek. Some of the fill is believed to have been transported from a property 

where the soil was contaminated by aviation operations, and chemicals from that contaminated 

fill are potentially leaching into the water, resulting in chemical contamination of historical 

Cedar Creek. 

15. The relief sought by this complaint will redress the harms to STC and its members caused 

by Defendants’ unlawful discharges. Removal of the illegal fill will restore more effective 

access to Cedar Creek and the Cutoff. Removal of the illegal fill will likewise enable the use 

of boats which currently cannot be carried over the fence due to weight. Removal of the fill 

will likewise allow for remedial restoration of environmental features impacted by the illegal 

discharge of the fill.

16. If successful, this action also will result in civil penalties that will deter future violations 

that would threaten STC’s and its members’ use and enjoyment of the areas and waters adjacent 

to and downstream from the location where Defendants’ violations have occurred.

17. STC and its members suffer actual, concrete injuries that are fairly traceable to Defendants’

violations and are redressable by this Court. STC has no other adequate remedy at law.

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Defendants Iron River Ranch II, LLC and IronHorse Unlimited, Inc.

18. Defendant Iron River Ranch II, LLC is the owner of property identified as Property I.D. 

231695 within the T.N. Jones Survey in Henderson County. This property is adjacent to 

historical Cedar Creek. 

19. Iron River Ranch II, LLC is a Texas Domestic Limited Liability Company. Iron River 

Ranch II, LLC therefore is a “person” under CWA section 502(5), 33 U.S.C. § 1362(5) and 

subject to citizen suit enforcement under the CWA. See 33 U.S.C. § 1365(a)(1). 

20. Iron River Ranch’s registered agent is Phillip Surls, whose mailing address is 11101 State 

Highway 31 West, Malakoff, Texas 75148.

21. Defendant IronHorse Unlimited, Inc. is an engineering and construction company which 

engages in planning, engineering, and construction activities. 

22. IronHorse Unlimited’s registered agent is the same Phillip Surls as is the registered agent 

for Iron River Ranch II, LLC.

V. Legal Background

The Clean Water Act

23. Congress enacted the CWA to “restore and maintain the chemical, physical, and biological 

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve this goal, the CWA prohibits 

the discharge of pollutants, including dredged or fill material, into navigable waters unless 

authorized by a CWA permit. 33 U.S.C. §§ 1311(a), 1344, 1362(6) (listing rock and sand, 

among other things, as pollutants under the CWA).

24. Discharges of dredged or fill material into Waters of the United States may only occur if 

permitted by the United States Army Corps of Engineers. 33 U.S.C. §§ 1311(a), 1344(a).

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25. The excavation of material from one portion of a wetland and placement of that material 

into another portion of the same wetland constitutes “sidecasting,” which is an illegal discharge 

of pollutants under the Clean Water Act. U.S. v. Deaton, 209 F.3d 331, 335 (4th Cir., 2000).

26. The term “Waters of the United States,” as intended by the EPA to be adopted by regulation 

published in the Federal Register January 18, 2023, and intended by the EPA to be effective 

March 20, 2023, includes permanent or standing bodies of water that are tributaries of waters 

which were used in the past or may be susceptible to use in interstate commerce. 33 C.F.R. 

§ 328.3(a) (effective March 20, 2023) (“the 2023 Rule”).

27. The term “Waters of the United States,” as set forth by federal regulation effective 

immediately prior to March 20, 2023, includes waters that were used in the past, or may be 

susceptible to use in interstate commerce, and tributaries of such waters, as well as lakes and 

ponds and impoundments of such jurisdictional waters. 33 C.F.R. § 328.3(a) (effective 

immediately prior to March 20, 2023, pursuant to Pascua Yaqui Tribe v. EPA, 557 F.Supp.3d 

949 (D. Arizona Aug. 30, 2021)) (“Pascua”).

28. The United Stated District Court for the Southern District of Texas on March 19, 2023 

issued a memorandum opinion and order granting preliminary injunction enjoining 

enforcement of the 2023 Rule in the states of Texas and Idaho in the case of State of Texas, et 

al. v. United States Environmental Protection Agency, et al., No. 3:23-cv-17, slip op. at 34

(S.D.Tex. Mar. 19, 2023) (“Texas”). Plaintiff disagrees with this ruling, and contends that the 

2023 Rule should properly be enforceable. But, the waters impacted by Defendants’ 

discharges in the immediate case are permanent navigable waters, and are “Waters of the 

United States” under the prior standard for determining “Waters of the United States” put in 

place by Pascua, remaining in effect in Texas even under the March 19, 2023 Order issued in 

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the Texas case. Thus, the immediate case does not require that the Court reach the question of 

whether issuance of the 2023 Rule was a valid exercise of EPA’s authority.

29. Should the Court find that the waters receiving the discharge are not Waters of the United 

States under the standard in place pursuant to Pascua, Plaintiff asserts that the waters receiving 

the discharge are properly considered Waters of the United States under the 2023 Rule.

Citizen Enforcement

30. The CWA authorizes any citizen to file a civil action against any person who commits an 

unlawful act under 33 U.S.C. § 1311, including the discharge of a pollutant without 

authorization pursuant to 33 U.S.C. § 1344. Subsection (a) of the citizen suit provision, entitled 

“Authorization; jurisdiction,” instructs: “Except as provided in subsection (b) of this section..., 

any citizen may commence a civil action on his own behalf... against any person... who is 

alleged to be in violation of... an effluent standard or limitation under this chapter.” 33 U.S.C. 

§ 1365(a)(1). Section 1365(f), in turn, provides a seven-part definition of “effluent standard 

or limitation under this chapter.” Relevant here, § 1365(f)(1) allows citizen suits for “an 

unlawful act under subsection (a) of section 1311 of this title.” Section 1311(a), titled 

“[i]llegality of pollutant discharges except in compliance with law,” provides that “[e]xcept as 

in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this 

title, the discharge of any pollutant by any person shall be unlawful.” 

31. CWA section 505, 33 U.S.C. § 1365, also authorizes citizens to seek injunctive relief, civil 

penalties, and litigation costs.

32. For violations occurring after November 2, 2015 and assessed after January 6, 2023, each 

separate violation of the CWA subjects the violator to a penalty of up to $64,618 per day, per 

violation, pursuant to sections 309(d) and 505(a) of the CWA. 33 U.S.C. §§ 1319(d), 1365(a), 

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and 40 C.F.R. § 19.4 (2009) (Adjustment of Civil Monetary Penalties for Inflation). Section 

505(d) of the CWA, 33 U.S.C. § 1365(d), allows prevailing or substantially prevailing parties 

to recover litigation costs, including attorney’s fees and expert witness fees.

33. The CWA subjects citizen suits to two limitations. 33 U.S.C. § 1365(b). First, sixty days 

before filing a citizen suit, the citizen must give notice of the alleged violation to the alleged 

violator, the EPA, and the State in which the alleged violation occurs. § 1365(b)(1)(A). Sixty 

days after giving notice, citizens may bring an action in federal district court to enforce any 

ongoing violations of the CWA. The Supreme Court has stated that “the purpose of notice to 

the alleged violator is to give it an opportunity to bring itself into complete compliance with 

the Act and thus . . . render unnecessary a citizen suit.” Gwaltney of Smithfield, Ltd. v. 

Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987). Furthermore, “[t]he requirement that 

notice be given to the responsible officials highlights their primary role in enforcing the Act 

compared to the supplementary position of the citizen.” Hamker v. Diamond Shamrock Chem. 

Co., 756 F.2d 392, 396 (5th Cir. 1985).

34. Second, the Act bars a citizen suit if the EPA or State “has commenced and is diligently 

prosecuting a civil or criminal action in a court of the United States, or a State to require 

compliance with the standard, limitation, or order.” 33 U.S.C. § 1365(b)(1)(B).

35. Where, as here, the EPA or State fails to act within the sixty-day notice period, a citizen 

suit is appropriate. See Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 526 (5th Cir. 

2008) (“The citizen-suit provision is a critical component of the CWA’s enforcement scheme, 

as it ‘permit[s] citizens to abate pollution when the government cannot or will not command 

compliance.’”) (alteration in original). 

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VI. Facts

36. STC fully incorporates Exhibit 1 ̧ including all attachments to Exhibit 1, into this 

complaint.

37. The Trinity River is a prominent river in East Texas which constitutes the boundary 

between Henderson and Navarro Counties. Cedar Creek is a tributary of the Trinity River 

located southwest of Trinidad, Texas. During the 1920s, several levees were built which 

redirected a portion of the Trinity River and Cedar Creek. As a result, a certain portion of the 

natural course of the Trinity River was partially separated from the redirected course of the 

Trinity River, and a certain portion of the natural course of Cedar Creek was partially separated 

from the redirected course of Cedar Creek. That partially separated natural course of Cedar 

Creek is referenced herein as “historical” Cedar Creek. It is also sometimes referenced as 

Creslenn Ranch Lake. The portion of the Trinity River which was partially separated from the 

redirected flow of the Trinity River is commonly referred to as the “Cutoff.”

38. The separation of historical Cedar Creek, and the historical Trinity River is only partial. 

Culverts still exist which connect historical Cedar Creek with the redirected flow of Cedar 

Creek. Water moves through these culverts into historical Cedar Creek under flood conditions. 

Furthermore, culverts exist downstream of historical Cedar Creek at the downstream end of 

the Cutoff. Those culverts continue to convey water from historical Cedar Creek through the 

historical Trinity River into the Trinity River downstream of this levee system. Thus, historical 

Cedar Creek remains a tributary of the current Trinity River.

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Depiction of The Cutoff and Cedar Creek

(From 1981 United States Geologic Survey Creslenn Ranch Quadrangle Map)

39. FM 1667 is a roadway that now exists crossing the original bed of Cedar Creek.

40. Prior to February of 2022, the bank of Cedar Creek extended to within the right-of-way of 

FM 1667. Prior to February of 2022, utility poles along the right-of-way were effectively coextensive with the boundaries of Cedar Creek. Under these conditions, Cedar Creek extended 

to within the right-of-way of FM 1667, allowing the public to use that right-of-way to access 

Cedar Creek to exercise their public right to fish in State waters.

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January 2022 aerial photograph of FM 1667 adjacent to Cedar Creek

41. In February of 2022, IronHorse, as a contractor or agent of Iron River Ranch, placed fill 

within historical Cedar Creek alongside FM 1667 in this area. Fill was placed to a degree that 

placed the resulting bank of Cedar Creek well beyond the utility poles in the area, and a fence 

was installed which was apparently intended to prevent public access to Cedar Creek and the 

Cutoff. Texas Parks and Wildlife Department Staff observed and documented this activity. 

The fence installed included lettering stating “No Trespassing.”

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IronHorse Equipment Placing Fill in Historical Cedar Creek on February 17, 2022

(Photograph taken by Texas Parks and Wildlife Personnel)

42. Much of the fill placed in the right of way of FM 1667 was derived from another area of 

historic Cedar Creek. In this manner, much of the activity occurring constituted sidecasting. 

Other material used as fill was brought in from other properties. 

43. On March 8, 2022, the United States Army Corps of Engineers (USACE), Fort Worth 

District, sent a letter to Iron River Ranch LLC, via “Mr. Philip Sorls” [sic] stating that “it 

appears that an unauthorized discharge of dredged or fill material has occurred into Creslenn 

Ranch Lake.” The USACE went on to note that, “[t]he work referred to above has occurred in 

water subject to Section 404 statutory requirements without the requisite permit.”

44. The fill placed in historical Cedar Creek in February of 2022 remains present in the Creek. 

The fill activities conducted in February of 2022 by IronHorse for Iron River Ranch resulted 

in the runoff of sediment into Cedar Creek. During rainfall events, sediment continues to be 

discharged into Cedar Creek as a result of the placement of this fill.

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VII. First Claim for Relief

(Violations of Conditions III(A)(4) and III(E)(2)(b)) 

45. STC incorporates each and every allegation set forth above. 

46. CWA Sections 301 and 404 (33 U.S.C. §§ 1311 & 1344) require that a person obtain a 

permit prior to the placement of fill within a Water of the United States. 

47. Defendants’ placement of fill within historical Cedar Creek on or about February 17, 2022

without a permit, and action in leaving that fill in place, constitutes an ongoing violation of

CWA Sections 301 and 404 (33 U.S.C. §§ 1311 & 1344). This violation has been repeated 

each day since on or about February 17, 2022.

48. The historical Cedar Creek constitutes a “Water of the United States” under either the rules 

published by the EPA January 18, 2023 and designated effective March 20, 2023, or the rules 

effective immediately prior to March 20, 2023. This portion of the historical Cedar Creek is a

permanent body of water which is a tributary of the Trinity River. The Trinity River is a water 

used in the past for interstate commerce, and is still susceptible to such use.

49. Each date of violation is a separate and distinct violation of Section 301(a), 33 U.S.C. 

§ 1311(a), and Section 404, 33 U.S.C. § 1344, of the CWA.

50. Neither the EPA nor the State of Texas is diligently prosecuting these violations. 

51. Defendants’ violations constitute ongoing violations of the CWA. 

52. Defendants’ continuing commission of the acts and omissions alleged in this complaint 

irreparably harms the waters of the United States in the historical Cedar Creek area, as well as 

STC and its members, for which harm they have no adequate remedy at law.

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VIII. Prayer for Relief

53. STC respectfully asks this Court to:

54. Issue a declaratory judgment stating that Defendants have violated and are continuing to 

violate the Clean Water Act with their discharges of fill into Waters of the United States

without a permit;

55. Grant appropriate injunctive relief to ensure that Defendants remove the illegallydischarged fill, and address the local environmental effects of the illegal discharges;

56. Retain jurisdiction over this matter until such time as Defendants have come into 

compliance with the prohibitions, terms, and conditions of the CWA and the injunctive relief 

ordered by this Court;

57. Assess civil penalties against Defendants of up to $64,618 per violation, per day, as 

provided by 33 U.S.C. §§ 1319(d) and 1365(a), and the Adjustment of Civil Monetary 

Penalties for Inflation, 40 C.F.R. pt. 19;

58. Award STC its costs, including reasonable attorney’s fees, as authorized under the CWA. 

33 U.S.C. § 1365(d); and 

59. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted on March 22, 2023.

By: 

/s/ Eric Allmon 

Eric Allmon

Texas Bar No. 24031819

eallmon@txenvirolaw.com

PERALES, ALLMON & ICE, P.C. 

1206 San Antonio St.

Austin, Texas 78701

Tel: (512) 469-6000 

Fax: (512) 482-9346

Attorney for Save the Cutoff

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EXHIBITS

Exhibit 1 – Plaintiff STC’s Notice of Intent to Sue Letter and Documentation of Postmark and 

Receipt (January 9, 2023). 

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