Inland Oil and Transport Co. v. United States
| Decision Date | 13 December 1978 |
| Docket Number | No. 77-969C(B).,77-969C(B). |
| Citation | 462 F. Supp. 763 |
| Parties | INLAND OIL AND TRANSPORT CO., Plaintiff, v. UNITED STATES of America, United States Army Corps of Engineers, Clifford L. Alexander, Secretary of the Army of the United States, Leon McKinney, District Engineer of the St. Louis District Corps of Engineers and James Fogilphol and James Stewart and Vernon Drew, Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Goldstein & Price, Gary T. Sacks, St. Louis, Mo., for plaintiff.
Joseph B. Moore, Asst. U. S. Atty., St. Louis, Mo., for defendants.
Before the Court are cross motions for summary judgment. The case arises out of the implementation of a Special Notice to Navigation Interests issued March 16, 1977 by the St. Louis District of the United States Army Corps of Engineers, an agency of the United States of America. The Special Notice established a locking precedence procedure at Locks and Dam No. 26 operated by and under the control of the Corps, and which is located at Mile 202.9 on the Upper Mississippi River at Alton, Illinois.
The effect of the Special Notice was to require vessels using Locks 26 to be "ready, willing and able" prior to being placed on the waiting list for transit through Locks 26, that is, being ready to lock in the desired configuration and willing to assist (without compensation or indemnity) other vessels at such Locks as a condition of locking through its main locking chamber.1
Alleging that on three occasions it sustained damages because its vessels (with cargoes of petroleum and petroleum products) were denied permission to timely proceed through Locks 26 by reason of its refusal as a precondition thereto to agree to furnish aid and assistance to other vessels without compensation and without indemnification for any damages, plaintiff sought declaratory, injunctive and monetary relief. Joined as defendants are the United States of America, the Army Corps of Engineers, the Secretary of the Army, the District Engineer of the St. Louis District, the Lockmaster and (by amendments) two Shift Chiefs at Locks and Dam No. 26. We are alleged to have jurisdiction under the Suits in Admiralty Act (46 U.S.C. §§ 741-752, the Administrative Procedure Act (5 U.S.C. §§ 706 and 705), and the Constitution and laws of the United States (28 U.S.C. § 1331).
It is plaintiff's position that the mandatory locking precedence procedure set forth in the March 16, 1977 Special Notice is invalid, in that it was developed and promulgated without complying with the Administrative Procedure Act and the Federal Advisory Committee Act. Additional contentions are that the procedure, as applied to plaintiff, is violative of the National Environmental Protection Act and the 13th and 5th Amendments to the Constitution.
By way of background: Because of long-standing traffic congestion problems at Locks 26, the Corps of Engineers contracted with Peat, Marwick, Mitchell & Co. to study alternative methods for increasing this lock's capacity, pending future Congressional authorization for the construction of a replacement facility. Three alternatives were considered in the report which followed, the third of which, the Industry Choice Plan (which included a "self-help" procedure) was determined to yield the greatest incremental benefit/cost ratio.
It is undisputed that an informal, loosely organized "Government-Industry River Advisory Committee," which was composed in part of representatives of the American Waterways Operators (of which plaintiff is a member), recommended that the Corps adopt the Industry Choice Plan. The St. Louis District decided thereafter to utilize the self-help procedure and issued a Special Notice to that effect dated October 13, 1976. However it was not until the Special Notice of March 16, 1977 that the District implemented the procedure.
There is a serious question as to whether the "Government-Industry Advisory Committee" comes within the purview of the Federal Advisory Committee Act (5 U.S.C. App. 31 et seq.), and if so, whether the deficiencies of which plaintiff complains suffice to invalidate the March 16, 1977 Special Notice (which as noted infra, has since been rescinded). So, too, it is doubtful whether the speculative possibility of a petroleum spillage serves to make the lockage precedence plan a major federal action which has a significant effect on the quality of the human environment and thus subject to the requirements of the Environmental Protection Act.
It is also not clear whether the Special Notice was a rule within the purview of the Administrative Procedure Act. The Secretary of the Army had theretofore promulgated regulations which are applicable to Locks and Dam No. 26 and in particular to the authority of the lockmaster. In 33 CFR 207.300 subsection (a) the lockmaster is authorized to depart from the regulations "as he deems necessary" in the event of any emergency. And in subsection (d) which sets forth the "normal" order of precedence at locks generally, the regulation expressly states that "the lockmaster may prescribe such departure from the normal order of precedence as in his judgment is warranted to achieve best lock utilization."
It is obvious that in the judgment of the St. Louis District, the situation at Locks 26 was such as to mandate some departure from the normal order of precedence in order "to achieve best lock utilization." Neither plaintiff nor any one else was compelled to make its services available for and to other vessels. However, in the interest of best lock utilization, the availability of such aid and assist services on a voluntary basis, was deemed necessary by the District.
We deem it unnecessary to definitively rule plaintiff's contentions, and in particular, to determine whether under the facts, it is entitled to declaratory and injunctive relief. Less than three weeks after this suit was filed, the requirements of the Special Notice of March 16, 1977, that vessels be willing to render aid and assistance to other vessels without compensation and indemnity as a condition of locking in...
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Inland Oil and Transport Co. v. U.S.
...600 F.2d 725 ... INLAND OIL AND TRANSPORT CO., Appellant, ... UNITED STATES of America, United States Army Corps of ... Engineers, Clifford L. Alexander, Secretary of the Army of ... the United States, Leon McKinney, ... ...