Levingston Shipbuilding Co. v. Ailes
| Decision Date | 30 March 1965 |
| Docket Number | Civ. A. No. 4915. |
| Citation | 239 F. Supp. 775 |
| Parties | LEVINGSTON SHIPBUILDING CO., Plaintiff, v. The Honorable Stephen AILES, Secretary of the Army, et al., Defendant. |
| Court | U.S. District Court — Eastern District of Texas |
George W. Brown, Jr., Beaumont, Tex., William C. Harvin, James K. Nance, Baker, Botts, Shepherd & Coates, Houston, Tex., for plaintiff.
William Wayne Justice, U. S. Atty., Eastern District of Texas, Richard B. Hardee, Asst. U. S. Atty., Eastern District of Texas, Tyler, Tex., for defendants.
This case involves the much publicized, proposed fixed span bridge which is to be constructed across the Sabine-Neches Waterway unless enjoined by court action.
The present bascule type bridge, in use for some 35 years, is considered to be inadequate for modern day use, and is extremely hazardous to navigation. Numerous vessels have collided with the present bridge and such accidents have become more frequent with the increase of waterway traffic in recent years. As the result of collisions, the present bridge has been rendered inoperative for extended periods of time, causing inconvenience, not only to navigation, but also to the vehicular traffic en route from the City of Port Arthur to a tract of land commonly called "Pleasure Island", and a highway connecting with Cameron Parish, Louisiana. The Sabine-Neches Canal is too shallow and too narrow to adequately accommodate the heavy water traffic at the present time, and unless remedied, the situation will become a greater problem in the future. The Sabine-Neches Waterway project is intended to improve the navigability of the waterway while simultaneously providing a more convenient passageway for persons and vehicles to and from the City of Port Arthur and the Island as well as Cameron Parish, Louisiana.
There is no disagreement with the ultimate goal, that is, the "deepening" and "widening" of the canal, the argument is solely about the vertical clearance of the bridge to be constructed. The type of bridge which the Federal Government seeks to build in this case, is a fixed, non-suspension bridge of reinforced concrete to have a vertical clearance of 138 feet above mean low tide.
The Plaintiff, Levingston Shipbuilding Company, seeks to have the proposed fixed span bridge declared an unlawful obstruction of the Sabine-Neches Waterway to free navigation, and thus constituting a public nuisance; alternatively, Plaintiff seeks a writ of mandamus directing the Defendants to provide adequate clearance for the navigation of said waterway and to preserve and to protect Plaintiff's established and potential use of said waterway for all purposes.
The Defendants filed a Motion to Dismiss, contending that the question of obstructing a waterway by building a bridge, is solely and exclusively within the power of Congress, and is not a subject matter over which this Court has jurisdiction; further, that Plaintiff has no cause of action or standing in Court, and that Defendants are acting within the scope of their authority and are agents of the United States Government and that this cause of action is against the Government without its consent.
The Motion to Dismiss was carried along with the trial on the merits and the attorneys for the respective parties were given until February 12, 1965, to file briefs in support of their respective positions.
Under the Commerce Clause of the Constitution, Article I, section 8, clause 3, Congress is given plenary power over the navigable waters of the United States and by virtue of this authority, the courts have held that Congress also has the power to authorize the construction of bridges across navigable waters. Newport and Cincinnati Bridge Co. v. United States, 105 U.S. 470, 26 L.Ed. 1143 (1881), Stockton v. Baltimore & N. Y. R. Co., C.C., 32 F. 9 (App.Dism., 140 U.S. 699, 11 S.Ct. 1028, 35 L.Ed. 603) (1887), United States v. Ingram, 203 F.2d 91 (8th Cir. 1953). Pursuant to this power, Congress enacted the River and Harbor Act of 1962 (87th Congress, 2nd Session (76 Stat. 1173), which provided in part as follows:
The specific Sabine-Neches Waterway project referred to in the River and Harbor Act of 1962, is set forth in the House Document Number 553, (Pages 14 to 55) as the recommendations of the District Engineers, in part as follows:
(Page 53.)
These recommendations were properly approved by the Board of Engineers and the Chief of Engineers and thus became a part of the Statute.1
The River and Harbor Act of 1962 specifies further that Section 1 of the River and Harbor Act of 1945, 59 Stat.
10, "* * * shall govern with respect to projects authorized in this Title; and * * * shall apply as if herein set forth in full." The incorporated provisions provide that:
"* * * it is hereby declared to be the policy of the Congress * * * to preserve and protect to the fullest possible extent established potential uses, for all purposes, of the waters of the Nation's rivers * * * and to limit the authorization and construction of navigation works to those in which a substantial benefit to navigation will be realized therefrom and which can be operated consistently with appropriate and economic use for the waters of such rivers by other users."
Plaintiff's theory briefly is that the said proposed fixed span bridge is both unlawful and obstructive. It is unlawful because the River and Harbor Act of 1962, with the enabling House Document Number 553, does not authorize the type of bridge which Defendants are attempting to construct, therefore, the Defendants are exceeding and acting beyond the scope of their lawful authority, and that Plaintiff is entitled to judicial relief.2 Plaintiff argues that the Defendants are only authorized to build a bridge with adequate vertical clearance for navigation, and that the proposed fixed span bridge with a vertical clearance of 138 feet above mean low tide is not adequate for Plaintiff's particular use and purpose; further, Section 1 of the River and Harbor Act of 1945, which is a part of the statute under which the bridge is authorized, is not adhered to in that such action on the part of Defendants in attempting to construct the fixed span bridge with a vertical clearance of 138 feet will not preserve and protect to the fullest possible extent, established potential use for all purposes of the waters of the Nation's rivers.
The Plaintiff cites the loose and somewhat ambiguous and repetitious language used by the District Engineer in his report;3 "* * * adequate navigation clearance", (Page 51); "* * * adequate horizontal and vertical clearance for navigation", (Page 64); in support of the argument that the Congressional authority provided by the River and Harbor Act of 1962 was for adequate vertical clearance, and not merely a vertical clearance of 138 feet above mean low tide. Although the report of the District Engineer is quite voluminous, repetitious and somewhat ambiguous in places, no other conclusion can be reached than that it was the recommendation of the District Engineer that a vertical clearance of 138 feet would be adequate for seagoing traffic. This conclusion is supported by the testimony of numerous witnesses including port captains, marine superintendents, and managers of tank fleets for all of the oil companies operating vessels in the Sabine-Neches Waterway.
The Defendants have made some effort to prove that the proposed bridge should be adequate for Plaintiff's use, or at least that such vertical clearance would not be too injurious to Plaintiff in the construction and repair of mobile off-shore drilling rigs in that a "topping off" procedure could be used at some point after the structure had traveled under the bridge. While such a procedure is possible, this Court has serious doubts that the process would be economically practical. Further, it might be undesirable from the customer's standpoint to have their equipment subjected to the severance process when the repairs are necessary. Also, we cannot lose sight of the further fact that the future might prove the fixed span bridge of the vertical clearance of only 138 feet inadequate for other industries which might locate in the area and which would require vertical unobstructed access to the deep waters of the Gulf of Mexico.
This Court finds that since the Sabine-Neches Canal is the only feasible access that the Plaintiff has to the Gulf of Mexico, the minimum vertical clearance of 138 feet above mean low tide, is not adequate for the Plaintiff's use in constructing and repairing mobile...
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LEVINGSTON SHIPBUILDING COMPANY v. Ailes, 22913.
...denied, 345 U.S. 995, 73 S.Ct. 1136, 97 L.Ed. 1402 (1953); Sewell v. Arundel Corp., 20 F.2d 503 (5th Cir. 1927). Affirmed. 1 239 F.Supp. 775 (E.D.Tex.1965). 2 River and Harbor Act of 1962, 76 Stat. 1173, 3 House Document No. 553 requires various conditions of local cooperation; one such con......
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