Citizens for Gr. Water Protection v. Porter

• Decision Date: 09 December 2008
• Docket Number: No. SD 28732.,No. SD 28797.,SD 28732.,SD 28797.
• Parties: CITIZENS FOR GROUND WATER PROTECTION, a Missouri Non-Profit Corporation, Gary Rogers, Carol Alberty, Harry Coambes, Susan Tolliver, Rancel Clark, and Ronnie Williams, Plaintiffs-Appellants, v. William Larry PORTER and Linda Jo Porter, husband and wife, Robert Porter and Mary Porter, husband and wife, Jeff Porter, and Gulfstream Bioflex Energy, L.L.C., a Missouri Limited Corporation, a/k/a Gulfstream Biolfex Industries, Defendants-Respondents.
• Court: Missouri Court of Appeals

275 S.W.3d 329

CITIZENS FOR GROUND WATER PROTECTION, a Missouri Non-Profit Corporation, Gary Rogers, Carol Alberty, Harry Coambes, Susan Tolliver, Rancel Clark, and Ronnie Williams, Plaintiffs-Appellants, v. William Larry PORTER and Linda Jo Porter, husband and wife, Robert Porter and Mary Porter, husband and wife, Jeff Porter, and Gulfstream Bioflex Energy, L.L.C., a Missouri Limited Corporation, a/k/a Gulfstream Biolfex Industries, Defendants-Respondents.

No. SD 28732.

No. SD 28797.

Missouri Court of Appeals, Southern District, Division Two.

December 9, 2008.

Motion for Rehearing and Transfer Denied December 29, 2008.

Application for Transfer Denied February 24, 2009.

William H. McDonald, William H. McDonald & Associates, Springfield, MO, for Appellants.

Craig F. Lowther and Kory D. Stubblefield, Lowther Johnson, Attorneys at Law, L.L.C., Springfield, MO, for Respondents.

GARY W. LYNCH, Chief Judge.

Overview

Plaintiffs filed a petition in the Circuit Court of Webster County seeking injunctive and declaratory judgment relief against Defendants relating to Defendants' proposed use of a parcel of land in Webster County for construction of an ethanol plant and the alleged unreasonable use of groundwater from that land for the manufacture of ethanol. Plaintiffs initially sought and obtained a temporary restraining order from the trial court, secured by their posting of a $25,000 injunction bond, enjoining Defendants from pursuing their plans until a trial on the merits of Plaintiffs' petition was held. After that trial, the court entered a judgment denying Appellants any relief and ordered the release of the injunction bond. Both sides timely appealed this judgment.

Plaintiffs initiated this action based upon their allegation that Defendants' proposed use of groundwater to manufacture ethanol, both as to draw from the ground and discharge after use, was unreasonable because it would harm Plaintiffs. They claimed that Defendants' proposed draw of water would unreasonably affect their ability to draw water from their land and that the Defendants' proposed discharge of water would either trespass on or otherwise pollute their land.

The trial court's resolution of these allegations involved consideration of extensive technical scientific evidence concerning the construction of the proposed ethanol plant, the proposed draw of groundwater to be used in the ethanol manufacturing process and the discharge and disposal of wastewater as a by-product of the manufacturing process, as well as the impact of such draw and discharge upon the land and environment surrounding the proposed plant both on the surface and below the surface of the earth. In resolving conflicts in this evidence, the trial court was called upon to exercise its judgment in deciding the relative credibility of the witnesses. In other words, in order to determine the facts upon which to apply the law to reach a decision in this case, the trial court was required to believe some evidence presented by some witnesses to the exclusion of other conflicting evidence.

As a court of review, our function in these appeals is not to second guess the trial court's witness-credibility determinations or to invade the province of the trial court's function as the fact-finder, but rather, is limited to a determination as to whether the trial court committed any legal errors in reaching its decision. Moreover, our review is further limited to only those alleged legal errors raised by an appealing party. In resolving an alleged legal error, we determine the applicable and appropriate legal principle and then apply that law to the facts as determined by the trial court to reach the result as mandated by that law, regardless of any public or media interest or any of our own personal wishes, opinions, or beliefs.

Our decision in this case is limited to resolving the legal disputes between the parties in this case based upon the evidence in the record before us which was generated specifically during and for this case and which is related to the particular circumstances between these parties. Thus, regional, state, or national public policy issues and debates as to the efficacy of ethanol, the propriety of land-use planning, or the conservation of our natural resources are beyond the scope of our appellate function and inquiry and are rightfully left to appropriate legislative bodies and executive agencies for consideration and determination.

In their appeal, Plaintiffs raise four points of alleged trial court error challenging the trial court's denial of any relief, and Defendants raise one point related to the release of the bond. Finding no legal error in the trial court's denial of relief to Plaintiffs as posited in Plaintiffs' points, we affirm that determination. However, finding the trial court legally erred in ordering the release of the injunction bond, as alleged in Defendants' point on appeal, we reverse the judgment as to such release and remand the case to the trial court to strike from the judgment the language releasing the bond.

The resolution of the claims of legal error as raised by the parties in their cross-appeals requires a thorough and, unfortunately for the reader, lengthy recitation and review of the factual and procedural background of this case.

Factual and Procedural Background

In August 2006, Gulfstream Bioflex Energy, L.L.C. ("Gulfstream") contracted with William Larry Porter, Linda Jo Porter, Robert Porter, Mary Porter, and Jeff Porter ("Porters"), property owners of adjacent tracts of land in Webster County, for options to purchase a total of 252 acres for the purpose of constructing and operating an ethanol manufacturing plant. The contracts were contingent upon Gulfstream obtaining necessary governmental approvals and permits and test drilling to ensure that sufficient water was available to satisfy the needs for such an operation.

The site was selected for its access to highway and rail transportation, in order to provide ease of transportation of corn and the finished product, and its close proximity to a natural gas pipeline. There is a convenience store, a baseball park, and a used-car lot situated east of the site. Situated directly west of the site is an automotive junkyard, west of which is an industrial park. The property north of the site is used predominately for agricultural purposes, including cattle and horse operations. The surrounding area is sparsely populated.

Gulfstream announced its intent to invest $165 million dollars to construct its plant in late August 2006. In order to evaluate the suitability of the site for the plant's proposed operations, Gulfstream first required the drilling of a test well in order to measure the volume of water available and determine the water's characteristics. Once suitability was determined, Gulfstream anticipated drilling multiple wells to a depth of approximately 1,600 feet, cased to a depth of approximately 650 feet, to meet the need for the maximum capacity that the plant would require, estimated at 945 gallons of water per minute. Gulfstream also began the process of obtaining some thirty-seven permits and approvals at federal, state, and municipal levels in order to comply with applicable regulations.

Webster County has no planning and zoning ordinances. The Webster County Commission ordered the formation of a committee, the Webster County Groundwater Impact Committee, to investigate any possible impact of the proposed plant on the environment and report its findings. The Committee's report was issued on September 8, 2006.

Citizens for Ground Water Protection ("Citizens"), a non-profit corporation incorporated on September 22, 2006, filed a petition for preliminary and permanent injunction on October 2, 2006, against the Porters and Gulfstream (collectively, "Defendants"), opposing the test drilling and construction of the ethanol manufacturing plant. On October 5, 2006, Citizens petitioned for a temporary restraining order seeking to enjoin Gulfstream from any drilling activities for fifteen days. Citizens claimed that the report issued by the Webster County Groundwater Impact Committee concluded that use of the wells necessary in the operation of the ethanol manufacturing plant would result in "immediate and irreparable injury, loss and/or damage to Plaintiff and its members[.]"

The Circuit Court of Webster County issued a temporary restraining order ("TRO") filed October 5, 2006, enjoining Gulfstream "from drilling a deep well on the Porter property for fifteen days[,]" set bond amount at $25,000, and set a hearing date for October 18, 2006, on Citizens' request for a preliminary injunction. On October 13, 2006, Citizens deposited $25,000 cash with the circuit clerk, and the trial court entered an order approving that deposit as satisfying the bond requirement in the TRO. Defendants opposed Citizens' request for injunctive relief on the ground that Citizens lacked standing to bring suit.

On October 17, 2006, Citizens filed a motion for extension of the TRO and Defendants moved for a change of judge. Defendants' motion for change of judge was sustained, and the preliminary hearing was postponed until a new judge could be appointed. The TRO expired by its express terms on October 18, 2006. A new judge was assigned on October 19, 2006.

Defendants filed a motion to dismiss Citizens' petition on November 2, 2006. Citizens filed its first amended petition on November 6, 2006, adding plaintiffs Gary Rogers, Carol Alberty, Harry Coambes, Susan Tolliver, Rancel Clark, and Ronnie Williams, directors of Citizens and Webster County residents who claimed an interest in property "and ground water ... beneath, adjacent, abutting, adjoining and/or near" the Porters' property (Citizens and these additional plaintiffs are collectively referred to herein as "Plaintiffs"). Plaintiffs objected to the placement of the plant at its planned site, alleging future nuisance, trespass,...