Water Works Bd. of Arab v. City of Arab

• Decision Date: 23 December 2016
• Docket Number: 1150674
• Citation: Water Works Bd. of Arab v. City of Arab, 231 So.3d 265 (Ala. 2016)
• Parties: The WATER WORKS BOARD OF the CITY OF ARAB v. CITY OF ARAB
• Court: Alabama Supreme Court

231 So.3d 265

The WATER WORKS BOARD OF the CITY OF ARAB

v.CITY OF ARAB

1150674

Supreme Court of Alabama.

December 23, 2016

Rehearing Denied March 17, 2017

Scott Burnett Smith and J. Jameson Hughston of Bradley Arant Boult Cummings LLP, Huntsville, for appellant.

Jeffrey McLaughlin and Rodney Edmondson of McLaughlin & Edmondson, LLC, Guntersville, for appellee.

PARKER, Justice.

The Water Works Board of the City of Arab ("the Board") appeals the denial by the Marshall Circuit Court ("the circuit court") of the Board's motion to dismiss and the entry of a preliminary injunction requested by the City of Arab ("the City"). We reverse and remand.

Facts and Procedural History

The relevant facts are undisputed. Pursuant to § 11–50–230 et seq., Ala. Code 1975, the Board operates a waterworks system that supplies water to the City and its residents ("the waterworks system"); the Board was incorporated for this purpose in 1947.

On September 19, 1972, the City adopted a resolution ("the 1972 resolution") stating that the Board "be, and it hereby is, directed to secure the necessary approval of the State Department of Health and to procure the necessary supplies and materials for the addition of fluoride to the water supply system of the City." After the City adopted the 1972 resolution, the Board began fluoridating the water it supplies to the City.

On August 1, 2015, the Board, citing studies indicating negative health consequences resulting from fluoride, stopped fluoridating the water it supplies to the City. The City disagreed with the Board's decision. On November 2, 2015, the City, citing studies indicating negative health consequences resulting from the failure to fluoridate water, passed a resolution ("the 2015 resolution") ordering the Board "to immediately restart the addition of fluoride into the water supply system of the municipality." The 2015 resolution also stated

"that if the Board desires to remove the fluoride from the water supply system, that any such removal request should be made to the City Council of Arab who will consider any request of such a drastic change in due time and after public notice and consideration of all scientific data available, so that an informed decision that is in the best interest of the public health and well-being of the citizens may be had."

On November 10, 2015, the Board wrote a letter to the City stating that it did not intend to comply with the 2015 resolution.

On February 17, 2016, the City filed an action against the Board requesting, among other things, that the circuit court enter an injunction requiring the Board to fluoridate the water it supplies to the City. The City also sought a judgment declaring

"that both the [1972] [r]esolution and the [2015] resolution directing the ... Board are lawful directives of the City, and that the ... Board ..., as an agent and arm of the City, must follow said directive and that further ... the ... Board ... [did not have] the requisite authority to unilaterally cause the removal of fluoride from the public water system of the City, as it had been ordered by the City since 1972."

The City requested that the circuit court enter a preliminary injunction "enjoining [the Board] from removing the fluoridation from the public water system and/or requiring reintroduction of the same to maintainthe status quo." Although the City recognized that there is no federal or state law requiring the Board to fluoridate the water it supplies to the City, the City argued that the Board's decision to stop fluoridating the water it supplies to the City is "unlawful."

On March 3, 2016, the Board filed a motion to dismiss the City's declaratory-judgment action pursuant to Rule 12(b)(6), Ala. R. Civ. P.; on March 7, 2016, the Board filed a motion in opposition to the City's request for a preliminary injunction. On March 17, 2016, the circuit court granted the City's request for a preliminary injunction, stating:

"[T]he City ... filed a motion for a preliminary injunction seeking an order to require the [Board] to continue fluoridating the water supply of the City ... during the pendency of this lawsuit. After a hearing on March 8, 2016, and March 9, 2016, where both parties were present with their counsel, the court having considering the testimony, evidence presented, and legal argument, and applying the four-part standard which a party must meet in order for a preliminary injunction to be issued,¹ the court finds as follows:

"The court heard ore tenus testimony from the Mayor of the City ..., Bob Joslin, regarding a resolution of permanent nature passed by the City ... in 1972 instructing the ... Board to fluoridate the City's water supply. The ... Board followed the resolution and did so for 43 years without objection, until some point around August of 2015, when the ... Board ... unilaterally removed fluoride from the water supply without notice to the City Council or to the citizens of Arab. After unsuccessful efforts to have fluoride reintroduced into the water supply, the City filed this lawsuit.

"The Court then heard ore tenus testimony from the Director of the Alabama Department of Public Health, Dr. Robert Meador, from dentist Dr. Tom Willis, board certified pediatrician Dr. Don Jones, and board certified pediatric dentist, Dr. Steven Mitchell. All medical professionals in attendance were qualified as experts in their fields and each offered the opinion that systemic fluoride is important for the public health, and that removal of fluoride from the water supply would cause immediate, irreversible, irreparable harm—especially to children who need systemic fluoride as their teeth develop, elderly, and poor citizens served by the ... Board .... In addition, the court notes that it found each of the experts to be credible and knowledgeable. It further accepts their collective testimony that the only reputable, reliable, and credible evidence on the issue of fluoridation of water is that it promotes public health. Based on the abundance of undisputed medical testimony on the issue of irreparable harm, the court finds that irreparable harm would result if no injunction is issued. And finally on this issue, based on the medical evidence presented that ceasing systemic fluoridation through treatment of the public water supply would result in immediate irreversible harm to the same groups noted above, especially to children with developing teeth, the court finds that there is no adequate remedy at law for the [City].

"The [City] presented Alabama Code [ (1975),] § 11–45–1 [,] and its 1972 Resolution (supported by its 2015 Resolution) to establish its authority to direct the [Board] to fluoridate [the City's] water. The [Board] offered no evidence of its authority to remove fluoride over the objection of the City. The [Board] offered no evidence at all of the procedure, parliamentary or otherwise, that it followed in determining that fluoride should be removed. The [Board] also failed to offer any evidence of harm that would result if it is required to fluoridate the water supply during the pendency of this litigation. To the contrary, the only evidence before the court is that [the Board] fluoridated the water for 43 years without any complaint or claim of hardship. And while the [Board] has presented no evidence of hardship, the City has shown through the testimony presented that immediate and irreparable harm will indeed occur if fluoride is not reintroduced into the [C]ity['s] water system. Thus the court finds that no hardship will be suffered by the [Board] by the granting of the injunction; certainly any hardship imposed on the [Board] by the injunction will not unreasonably outweigh the benefit accruing to the [City].

"Based on the evidence offered and Alabama statutory and case law, the court finds that the City is properly acting within the scope of its authority in seeking to enforce its own resolutions as they relate to protecting the public health, especially in light of the fact that the ... Board abided by the instruction in the resolution for 43 years with no objection and only now argues that it should not have to follow it. See Water & Wastewater Bd. of City of Madison v. City of Athens, 17 So.3d 241, 245 (Ala. Civ. App. 2009) (holding 'Despite the language in cases like [ Water Works Bd. of Leeds v.] Huffstutler [, 292 Ala. 669, 299 So.2d 268 (1974),] and [ City of Mobile v.] Cochran [, 276 Ala. 530, 165 So.2d 81 (1964),] regarding the separate and independent nature of public corporations, our supreme court has also long held that, in at least some respects, a public corporation like the [water] Board is an agency of the municipality it serves.'); see also, Wetumpka v. Central Elmore Water Auth., 703 So.2d 907 (Ala. 1997) (the Alabama Supreme Court holding 'that a water works board organized and operating pursuant to §§ 11–50–230 through 11–50–241 is an agency of the municipality it serves') (citing City of Montgomery v. Water Works & Sanitary Sewer Board of the City of Montgomery, 660 So.2d 588 (Ala. 1995) ). Considering the 1972 resolution, the 43 year history of uninterrupted, unquestioned fluoridation of the water supply by the [Board], and based on the authority of the City under Alabama statutes including but not limited to § 11–45–1, Code of Alabama [ (1975) ], the caselaw presented (including that cited above), and the evidence offered at the hearing, the court finds that the [City] has a reasonable chance of success on the merits.

"Based on the [City's] having met all four elements required for the issuance of a preliminary injunction as detailed above, the court hereby orders as follows:

"The ... Board ... is to immediately resume the addition of fluoride to the water supply at the optimal level as recommended by the U.S. Department of Health and Human Services, currently 0.7 milligrams of fluoride per liter of water, and otherwise in accord with the same practices followed by the Board over the past 43 years prior to August, 2015, and is

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