Asphalt Contractors, Inc. v. Ala. Dep't of Transp. & John R. Cooper (In re Ala. Dep't of Transp. & John R. Cooper)

• Decision Date: 06 December 2013
• Docket Number: 1101439.
• Citation: 143 So.3d 730
• Parties: EX PARTE ALABAMA DEPARTMENT OF TRANSPORTATION and John R. Cooper, as director of the Alabama Department of Transportation. (In re Asphalt Contractors, Inc. v. Alabama Department of Transportation and John R. Cooper, as director of the Alabama Department of Transportation).
• Court: Alabama Supreme Court

143 So.3d 730

EX PARTE ALABAMA DEPARTMENT OF TRANSPORTATION and John R. Cooper, as director of the Alabama Department of Transportation.(In re Asphalt Contractors, Inc.

v.Alabama Department of Transportation and John R. Cooper, as director of the Alabama Department of Transportation).

1101439.

Supreme Court of Alabama.

Dec. 6, 2013.

Luther Strange, atty. gen.; John C. Neiman, Jr., deputy atty. gen.; and Jim R. Ippolito, Jr., asst. atty. gen. and chief counsel, and Floyd R. Gilliland, Jr., and Reed Williams, deputy attys. gen., Alabama Department of Transportation, for petitioners.

Cowin Knowles and E. Hamilton Wilson, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for respondent.

MURDOCK, Justice.

The Alabama Department of Transportation (“ALDOT”) and its director John R. Cooper petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying their motion to dismiss all claims filed against them by Asphalt Contractors, Inc. (“ACI”). We grant the petition in part and deny it in part.

I. Facts and Procedural History

Most of the factual background is succinctly explained in ACI's original complaint.

“1. Trichloroethylene (‘TCE’) and other chemicals were used by ALDOT at its Coliseum Boulevard and Fairgrounds Road facilities since the early 1970s. The use, storage, handling, management, and/or disposal of TCE by ALDOT was pursuant to the authority of [Cooper].

“2. TCE was used extensively by ALDOT (or its predecessor agency) as a degreaser and/or cleaning agent and/or as a solvent. TCE was also used to test the suitability of various materials for use as a road pavement. TCE was used by ALDOT from the 1960's through 1985. All of these activities were undertaken pursuant to the authority and approval of [Cooper].

“3. The practices and procedures used by ALDOT, its Director, officers, agents, and employees, resulted in on-site discharge and disposal of TCE. Spent TCE was poured into the sewer system until the late 1980's. TCE then found its way into surrounding groundwater and soil.

“4. TCE is now contained in shallow groundwater, which is about 10' to 50' below land surface in an area in North Montgomery.

“5. Over a period of years, the TCE discharged and disposed of at the ALDOT locations contaminated a plume of groundwater immediately beneath the Eastern Meadows, Vista View, and Chisholm residential communities. The contaminated plume of groundwater is known as the Coliseum Boulevard Plume (‘CBP’). The CBP is located in Montgomery, Alabama, and includes areas generally east of Lower Wetumpka Road, south of the CSX Railroad tracks and Northern Boulevard, and west of Emory Folmar Boulevard. However, the plume of contaminated groundwater has continued to migrate over a broader area.

“6. ACI operates sand and gravel mines on properties southwest of the CBP. North Montgomery Materials likewise operated sand and gravel mines on property adjacent to ACI's property and southwest of the CBP.

“....

“8. Hydraulic control is the method used to intercept, capture or control groundwater flow. It is a remedial technology that involves the use of dewatering systems (i.e., wells, pumps, excavation dewatering) to affect the movement of groundwater. ALDOT determined that a hydraulic-control system was capable of accomplishing a remedial objective of plume containment within a controlled boundary and minimizing exposure at the extraction point.

“9. During its investigations, ALDOT discovered that the rate and direction of groundwater flow in the CBP was influenced by the dewatering operations in the area of North Montgomery Materials, Inc. and ACI (i.e., known as the Southwest Area (‘SWA’)). The pumping of water affected the southwestward migration of the dissolved TCE groundwater plume. ALDOT determined through modeling that groundwater in the western part of the CBP could be controlled by continued, managed pumping at the SWA.

“....

“11. ALDOT had a duty to remediate the CBP. ALDOT, incident to its responsibilities for investigation and remediation of the CBP, implemented an institutional Control Program (‘ICP’) to minimize exposure of the groundwater containing TCE and to prevent TCE contamination of deeper groundwater aquifers.

“12. ALDOT developed a Corrective Measures Implementation Plan for the western part of the CBP. The Interim Operating Plan for ALDOT utilized an interim operating plan to manage and maintain Hydraulic control over the groundwater in the western part of the CBP.

“13. In April 2009, ALDOT purchased the site [of] the former sand and gravel mine located west of Lower Wetumpka Road from North Montgomery Materials, Inc.

“14. ALDOT implemented the Hydraulic control features of the Interim Plan involved the use of a series of ponds through which groundwater moves [sic]. The ponds are located on the land purchased form North Montgomery Materials, Inc. and adjacent to ACI's property.

“15. The Dewatering Pond [is] located on the former North Montgomery Materials, Inc. property. Groundwater is captured by designed pumping into the Dewatering Pond. Water from the Dewatering Pond is then pumped to the Transfer Pond which provides primary treatment and settling of solids in water. Water from the Transfer Pond is then pumped to the South Pond for additional treatment prior to discharge into a wetland area. Wetland vegetation in the South Pond provides treatment of the TCE-laden water. The water is then discharged into Three Mile Branch.

“16. Part of the South Pond sits atop property owned by ALDOT, and previously owned by North Montgomery Materials, Inc. and part atop property currently owned by ACI. Water which backs up from the South Pond sits atop property currently owned by ACI. Water from the South Pond then flows into a wetland area, part of which sits atop property owned by ACI. As such, ALDOT is discharging TCE-laden water onto ACI property.

“17. Since at least April 2009, ALDOT has pumped groundwater into the Dewatering Pond and from there onto the Transfer Pond and then to the South Pond. A portion of the South Pond and wetland area used in ALDOT's remedial efforts to treat the CBP is on ACI's property, and as such, TCE is being discharged onto ACI's property.

“18. On April 15, 2010, ACI demanded that ALDOT immediately cease all dumping of contaminated water on ACI's property. However, the dumping of TCE-laden water onto ACI's property has continued to the date of filing of this action.”

On April 12, 2011, ACI filed a “Petition for Temporary Restraining Order/Preliminary Injunction/Complaint” against ALDOT and Cooper, in his official capacity as the director of ALDOT. The complaint asserted trespass to realty and inverse condemnation and made claims for injunctive relief. ACI requested damages for the full fair-market value of its property, consequential and incidental damages, compensatory damages, punitive and exemplary damages, expenses, costs, interest, and attorney fees.

On May 12, 2011, ALDOT and Cooper filed a motion to dismiss the complaint in which they contended that the trial court lacked subject-matter jurisdiction because ALDOT and Cooper were entitled to State immunity. On May 19, 2011, ACI filed a response to ALDOT's motion to dismiss. On July 13, 2011, ACI filed an amended complaint in which it added a claim that it was entitled to an injunction because, it says, ALDOT, through Cooper, acted fraudulently, in bad faith, beyond its authority, or under a mistaken interpretation of the law.

On July 15, 2011, the trial court held a hearing on the motion to dismiss and heard testimony and arguments concerning ACI's request for a preliminary injunction. On July 27, 2011, the trial court entered an order denying the motion to dismiss, and it took ACI's motion for a preliminary injunction under advisement.

II. Standard of Review

“ ‘It is well established that mandamus will lie to compel a dismissal of claim that is barred by the doctrine of sovereign immunity.’ Ex parte Blankenship, 893 So.2d 303, 305 (Ala.2004).

“ ‘A writ of mandamus is a

“ ‘ “drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” ’

“Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).

“....

“ ‘ “[I]f an action is an action against the State within the meaning of § 14, such a case ‘presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.’ ” Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004) (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142–43 (Ala.2002)). “Therefore, a court's failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.” Ex parte Alabama Dep't of Mental Health & Retardation, 837 So.2d 808, 810–11 (Ala.2002).'

“Ex parte Davis, 930 So.2d 497, 499–500 (Ala.2005).”

Ex parte Lawley, 38 So.3d 41, 44–45 (Ala.2009).

“ ‘In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

“ ‘ “A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”

“ ‘878 So.2d at 1148–49.’

“Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005). We construe all doubts...