United States v. Houston Lighting and Power Company

C.A. No. 72-G-12 (S.D. Tex. June 30, 1972)

Plaintiff denied preliminary injunction against defendant's construction in shallow but allegedly navigable waters of a cooling pond for use by its fossil fuel electricity generating plant. Construction of the pond was substantially completed when hearing for preliminary injunction commenced. Whether or not to grant a preliminary injunction lies in the discretion of the court. Interlocutory relief which will compel affirmative acts by defendant should be rarely granted, in accordance with the rules set down in Citizens Committee for the Hudson Valley v. Volpe, 1 ELR 20006. At this point, the court is not convinced that plaintiff will succeed on the merits as to whether the waters in dispute are navigable. Continued operation of the cooling pond until trial on the merits will not interfere with actual navigation nor have more than a minimal effect on the area ecology. Defendant would suffer considerable expense in removing the pond and rebuilding it later if defendant prevails on the merits. Moreover, the public interest in the production of electricity balances the government's concern to protect the area's natural resources. Accordingly, a preliminary injunction will not issue at this time.

Counsel for Plaintiff
Jack Shepherd Chief Assistant U.S. Attorney
Federal Building
515 Rusk Avenue
Houston, Texas 77002

Counsel for Defendant
William R. Brown
Baker & Botts
One Shell Plaza
Houston, Texas 77002

[2 ELR 20452]

Cox, J.

MEMORANDUM AND ORDER

The United States of America, by authority of the Attorney General, and at the request of the United States Corps of Engineers, has brought this suit seeking to enjoin the Defendant, Houston Lighting and Power Company, from constructing dams and dikes across, in and around allegedly navigable water of the United States, and to further enjoin the Defendant from performing work in and altering the capacity of such allegedly navigable waters.

The Defendant is presently operating a fossil fuel (crude oil) electricity generating plant near Cedar Bayou in Chambers County, Texas, consisting at this time of two generating units, and is constructing and planning to construct additional generating units at the plant site. Salt water is, at the present time, taken from Galveston Bay, carried through Defendant's plant for cooling purposes, then by a canal about six miles long into a cooling pond, thus reducing the temperature of the water, and from there the water is discharged directly into Trinity Bay, an extension of the Gulf of Mexico. The actual construction of this cooling pond, which covers approximately 2,600 acres and is more a small lake than a pond, was commenced on August 5, 1971, or shortly before. At that time, the Defendant made application to the Galveston Division of the United States Army Corps of Engineers for a permit for such dikes and dams as would be necessary for the structure, but the permit has never been issued.

The government, in its original complaint filed on January 20, 1972, and its factual contentions filed on June 2 of this year, voiced its objections to the construction of such cooling pond. The charges are based upon the government's belief that the dams and dikes necessary to enclose the cooling pond have been constructed in, around and across the alleged navigable waters of Alligator Bayou, Red Bayou, High Tree Bayou, Wet Marsh Pond, and low-lying wetlands and marsh lands, and that the Defendant has not obtained authorization pursuant to Sections 401 and 403 of Title 33 of the United States Code; and, further, in contemplation of the Fifth Circuit's interpretation of the government's policy, as announced in Zabel, et al, v. Tabb, et al, 430 F.2d 199 (1970), the United States Attorney contends that such dams and dikes damage the ecology of the cooling pond site and surrounding areas.

We are, however, at this point, only concerned with the government's request, set forth in its original pleadings, and in a separate motion subsequently filed on February 11, 1972, for a preliminary injunction ordering the Defendant, pending the trial of this case: (a) to cease immediately its construction of a dam or dike across Alligator Bayou; (b) to cease immediately its construction in the navigable waters of the United States the structures for which it has not obtained authorization pursuant to the provisions of 33 U.S.C. §§ 401 and 403; and (c) to cease all operations and activities at its Cedar Bayou site which affect the capacity of the navigable waters of the United States and for which a permit has not yet been obtained under the provisions of 33 U.S.C., § 403.

On the 14th of February, 1972, the Defendant, Houston Lighting and Power Company, filed its original answer to the original complaint of the United States of America, contending that the Plaintiff is not entitled to either a permanent or a preliminary injunction. On April 14, 1972, a pretrial conference was held in this case, as well as in cases of Houston Lighting and Power Company v. William D. Ruckelshaus, Bill V. McFarland and Malcolm F. Kallus, C.A. No. 71-G-175, and United States of America v. Houston Lighting and Power Company, C.A. No. 72-G-49, at which time this Court set the application for a preliminary injunction for hearing on June 12, 1972. This hearing commenced on schedule and proceeded solely regarding the requested preliminary injunction.

Regardless of the initial positions of the parties, the construction of the cooling pond was substantially completed when the hearing commenced and the Defendant had continued the operation of its plant and the use of the cooling pond up to the date of and through the hearing; and did this in the face of the government's contentions. So, the only issue left for the Court's decision at this time is whether the Defendant power company should cease all operations and activities in connection with the cooling pond and remove any dams or dikes obstructing or affecting the capacity of the navigable waters of the United States in that area. Such issue is not here stated in the language of the government's pleadings, but it was obvious during the hearing and it was argued by both parties at the conclusion of the testimony.

While the government contends it only needs to prove an obstruction of navigable water without the authority of the Corps of Army Engineers in order to establish the right to a preliminary injunction, we disagree. A preliminary injunction is interlocutory, tentative, not fixed or final or conclusive, and it is really characterized by its "for-the-time-beingist." Moore's Federal Practice, Section 65.04. Such an application is directed to the discretion of the Court and is for the purpose of preserving the status quo. Any request for an interlocutory injunction which compels the Defendant, in order to obey it, to take affirmative action, should be sparsely used.

The four pertinent points to be considered, following the rules set down in Citizens Committee for Hudson Valley v. Volpe, 297 F. Supp. 804, 806 (S.D.N.Y. 1969), are (a) the probability that Plaintiff will eventually succeed at the trial of this cause on the merits; (b) the presence of some irreparable injury which the Plaintiff will suffer by the existence of the cooling pond; (c) what injury will result to Defendant if the operation of the cooling pond is suspended; and (d) the public interest in requiring the destruction of the cooling pond.

The Defendant's plant itself is not on any property which is claimed by the government to be navigable waters. The intake canal and the discharge canal, along with other structures, were authorized by the Department of the Army, Corps of Engineers, in 1968. The cooling pond, which is the subject matter of this controversy, covers a considerable portion of a large area of low-lying wetlands and marsh lands in the general vicinity of Trinity Bay; but, there is no convincing testimony that those wetlands and the marsh lands alone constitute navigable waters. Alligator Bayou appeared to be the body of water most affected and the one which the government mostly relies on to establish navigability of waters in the area. According to government's Exhibit No. 7, the cooling pond exterior dike crosses Alligator Bayou a short distance from its mouth at Cotton Lake, and the cooling pond waters cover it beyond that point. If the cooling pond were not [2 ELR 20453] there, that bayou would go on meandering in a southerly direction to the lower end of Wet Marsh Pond, which, at that point, extends in a northerly direction almost to the northern exterior dike of the cooling pond. An offshoot of the Wet Marsh Pond is blocked by the dike, but even if the dike were not there, that offshoot would not extend to High Tree Bayou, although an artificial barrier may be the reason. The Defendant's dike on the easterly side of the cooling pond does not cross High Tree Bayou, but the dike does cross what could be called a deviation from the main channel of Red Bayou.Red Bayou starts about where High Tree Bayou goes into Cross Bayou and Trinity Bay can now be reached from High Tree Bayou through Cross Bayou or Red Bayou. Alligator Bayou has never directly emptied into Trinity Bay.

The government presented evidence of the width and depth of Alligator Bayou at specific points and as to the bottom of the wetlands and marsh lands in relation to mean high water elevation, all within the area covered by the cooling pond and elsewhere in that vicinity, including Cotton Lake and Cross Bayou. It proffered testimony of old-time residents who, in past years, trapped and killed alligators, muskrats, coons and other mammals, in those low lands. Small, flat-bottomed skiffs, some with small, outboard motors, were used to move in and through the area. This testimony was offset to some extent by old-time residents who testified for the Defendant. The government tried to create a movement of interstate commerce over navigable waters of the United States by adding testimony that trappers and hunters field-dressed their kill, took the skins or hides to their respective homes, salted and dried the skins and hides and prepared them for shipping; some were sold to buyers outside of Texas. Nevertheless, the testimony just discussed is only a part of the total evidence presented.

This Court recognizes this litigation (this suit and the other cases above identified as being before this Court) is extremely important, and the first question which must necessarily be answered is whether or not Alligator Bayou and the other waters covered by the cooling pond are navigable. The Court has not yet answered this first question. However, the Court, in order to make any decision as to a preliminary injunction, does not have to decide finally whether Alligator Bayou, the other bayous and marsh ponds, and the low-lying wetlands and marsh lands constitute navigable waters. The Court has considered the navigability question, but, for the time being, we are not willing to say the government is more likely to succeed on the merits of this question than not. Thus, we have taken care of the rule under point (a) attributable to Citizens Committee for Hudson Valley, supra.

This case is set for trial on the 10th day of October, 1972, which date is only four months from the closing date of the hearing on the government's application for a preliminary injunction. As we have already pointed out, the cooling pond was completed and put in operation before this hearing commenced. Its continued operation until trial on the merits will not, as we understand the government's contentions, interfere in any way with actual navigation in the area, and, in addition, the Court finds it will have a minimal sort of effect on the ecology of the marsh lands between now and the October trial date. The continued use of the cooling pond may serve some beneficial purpose as to the waters of Trinity Bay. On the other hand, the Defendant would be put to considerable expense to destroy the cooling pond now, and additional expense in the future to rebuild it, should Defendant finally prevail on the merits. The situation, after balancing points (b) and (c) of Citizens Committee for Hudson Valley, supra, does not call for the issuance of a preliminary injunction today.

This Court is not unmindful of the government's concern to protect the natural resources of this country, but the public also is interested in the production of electrical power. The public concerns balance each other. We do not believe the public interest will be served by granting the requested preliminary injunction. The government did not meet its burden under what the Court considers to be the fair rules set down in Citizens Committee for Hudson Valley, supra. The application of the United States for a preliminary injunction should be denied, and it is so ordered.