Wyble v. Gulf South Pipeline Co., L.P., Civil Action No. 9:02-cv-200.

• Decision Date: 04 March 2004
• Docket Number: Civil Action No. 9:02-cv-200.
• Parties: Joseph WYBLE; Robert May; Robert Hames; Winston Land & Cattle Company, Inc.; Snider Industries LLP; Snider Timberland FLP; Terry McKenzie, for and on behalf of the Hemby Living Trust; M. Kangerga & Bro.; and Kim R. Smith Logging, Inc. v. GULF SOUTH PIPELINE COMPANY, L.P., and GS Pipeline Company, L.L.C.
• Court: U.S. District Court — Eastern District of Texas

308 F.Supp.2d 733

Joseph WYBLE; Robert May; Robert Hames; Winston Land & Cattle Company, Inc.; Snider Industries LLP; Snider Timberland FLP; Terry McKenzie, for and on behalf of the Hemby Living Trust; M. Kangerga & Bro.; and Kim R. Smith Logging, Inc. v. GULF SOUTH PIPELINE COMPANY, L.P., and GS Pipeline Company, L.L.C.

Civil Action No. 9:02-cv-200.

United States District Court, E.D. Texas, Lufkin Division.

March 4, 2004.

COPYRIGHT MATERIAL OMITTED

Robert M. Parker, Tyler, TX, pro se.

Amelia Susan Harris, R. Michael McCauley, McCauley, MacDonald & Devin, Fred Misko, Jr., Law Offices of Fred Misko, Jr., Charles E. Ames, Edward Chin, Fred Misko, Jr, PC, Dallas, TX, Claude Edward Welch, Law Offices of Claude E. Welch, Clayton Edward Dark, Jr., Attorney at Law, George Edmond Chandler, Chandler Law Offices, Lufkin, TX, James LaVoy Branton, Thomas Andrew Crosley, Branton & Hall, San Antonio, TX, Samuel Issacharoff, Attorney at Law, New York, NY, Michael Edwin Jones, Potter Minton, Tyler, TX, Arthur R. Miller Board of Bar Overseers No. 554226, Cambridge, MA, for Plaintiffs.

Jennifer Parker Ainsworth, Wilson, Sheehy, Knowles, Robertson & Cornelius, PC, Walter Thomas Henson, Ramey & Flock, Tyler, TX, Robert Elkin, Robert E. Goodfriend, McKool Smith, Dallas, TX, Samuel Franklin Baxter, McKool Smith, PC, Marshall, TX, Michael E. McMahon, Attorney at Law, Houston, TX, Patricia Fry Godley, Van Ness Feldman, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVIS, District Judge.

Before the Court is Defendants' Motion for Partial Summary Judgment on Article III Standing with Respect to Remote Violations (Document No. 134), Plaintiffs' Response, and the parties' replies and sur-replies. Having carefully considered the parties' filings, the oral arguments of counsel, and the applicable law, the Court GRANTS Defendants' motion.

BACKGROUND AND PROCEDURAL HISTORY

Since November 10, 1992, Defendants have effectively owned and operated natural gas pipelines that span over 8,000 miles from Texas to Florida. From 1993 until early 2001, the company operated as Koch Gateway. In 2001, the company's name was changed to Gulf South Pipeline Company, L.P. ("Gulf South"). At the time of the name change, GS Pipeline Company, L.L.C. was formed and became Gulf South's general partner. Soon thereafter, in February 2001, both entities became wholly owned subsidiaries of Entergy-Koch, LP.

Plaintiffs are nine residents and landowners in East Texas through whose property Defendants' pipelines run. Plaintiffs allege ongoing injuries caused by Defendants' failure to maintain and monitor its pipelines as required by the Natural Gas Pipeline Safety Act, 49 U.S.C. § 60101 et seq. ("PSA") and the related regulations contained in 49 C.F.R. 192 (2000).

On July 26, 2002, four Plaintiffs, Joseph Wyble, Robert May, Robert Hames, and Winston Land & Cattle Co., filed their original complaint, seeking injunctive relief pursuant to the citizen suit provision of the Pipeline Safety Act, 49 U.S.C. § 60121. On May 27, 2003, six new Plaintiffs, Jacksonville ISD¹, Snider Industries, LLP, Snider Timberland, FLP, Hemby Living Trust, M. Kangerga & Bro., and Kim R. Smith Logging, Inc., were added as class representatives under Plaintiffs' First Amended Complaint. Plaintiffs claimed the pipeline running through their property led to the specific injury of a corroded and otherwise unsafe pipe in violation of the PSA. Plaintiffs further contended that this specific injury was symptomatic of a company policy and ethic in which maintenance and education in compliance with the PSA is not performed. The named plaintiffs sought to represent a class of similarly situated individuals who resided on or owned property along Defendants' 8,000 miles of pipeline from Texas to Pensacola, Florida.

Defendants filed a motion to dismiss which this Court denied on December 18, 2002. Based on the allegations of Plaintiffs' then-live complaint and the evidence filed in support of their Response to Defendants' motion to dismiss, the Court opined that Plaintiffs satisfied all elements of constitutional standing to pursue two distinct claims. The first was for violations on the pipeline running through the land in which they have a proprietary interest, or direct injuries. The second was for a system-wide failure to monitor and maintain the pipeline due to a company policy or ethic of putting profits ahead of compliance. However, on June 6, 2003, when Plaintiffs' motion for class certification was due, Plaintiffs filed a Second Amended Complaint, abandoning its class action allegations. Because the Court's December 18, 2002 Order denying Defendants' motion to dismiss was based on an alleged class action, the Court then had to determine whether Plaintiffs had standing to bring claims for violations on the property of others absent a class action.

In June and July, 2003, the parties submitted briefs on their positions as to Plaintiffs' efforts to seek system-wide injunctive relief under the citizen suit provision of the PSA absent class action allegations. In their briefing, Plaintiffs alleged various theories of standing for the first time. First, Plaintiffs claimed they could seek enforcement system-wide because they "stood in the shoes" of the Attorney General of the United States. Next, Plaintiffs claimed they could act as private attorneys general and represent all Americans and passers-by on the pipeline. Defendants argued that such standing was not allowed without benefit of a class action. Plaintiffs appeared to subsequently abandon these first two theories in their filings. Plaintiffs then claimed they had standing to obtain injunctive relief for so-called "remote violations," for violations of the pipeline not only on their property, but for Defendants' violations anywhere along the 8,000 miles of its pipeline that placed Plaintiffs at immediate risk of injury on their own properties. Again, Defendants claimed that, absent class action certification, Plaintiffs did not have standing to bring these remote violations and could seek injunctive relief only as to their particular injuries on their properties.

On July 28, 2003, a hearing was held before the Honorable John Hannah regarding Plaintiffs' standing under the PSA's citizen suit provision following Plaintiffs' decision to abandon class certification. The Court ultimately withheld its ruling on the standing issue pending further discovery. On July 29, 2003, the Court ordered that system-wide discovery was to proceed to include information and issues relating to the entire pipeline in order for the Court to properly determine the standing/jurisdictional issue. The Court opined that Defendants were not precluded from raising the jurisdictional issue again following the completion of discovery, but that even if the Plaintiffs did not have standing to assert damages and seek relief for unnamed citizens along the pipeline, such evidence would be circumstantial and highly useful to the named Plaintiffs in their case. The Court also found that such evidence might very well be useful to the Court in fashioning any injunctive remedy that the Court found necessary in regard to the named Plaintiffs' cause of action.

Ten days later, on August 8, 2003, Plaintiffs filed a motion for limited preliminary injunction and emergency hearing alleging that Defendants' pipeline crossing the property of a non-party, the Huntsville Independent School District ("HISD"), was unsafe. Plaintiffs sought to shut the pipeline down right before school commenced. No Plaintiff lived near Huntsville and none alleged any connection to HISD or its property. Neither the Jacksonville Independent School District or any of the other Plaintiffs sought a preliminary injunction as to their own properties. The Court set the hearing on the motion for August 15, 2003. Defendants filed a response to Plaintiffs' motion, demonstrating that the pipeline crossing the HISD property was buried at a safe depth, much deeper than Plaintiffs' expert had reported, and was properly maintained and operated under the PSA. Plaintiffs' counsel then sought to withdraw their request for a hearing on the motion on August 15 2003, the day the hearing was set. The Court proceeded with the hearing and, while little time was devoted to the motion for limited preliminary injunction at the hearing, Plaintiffs declined to withdraw the motion because, they argued, more discovery was needed. The Court allowed the motion to remain on the docket pending the completion of discovery on the HISD preliminary injunction issue. Plaintiffs formally withdrew the motion for limited preliminary injunction on December 23, 2003.

Also at the August 15, 2003 hearing, Judge Hannah heard arguments on Defendants' motion for reconsideration of the Court's failure to rule on suggestion of parties that the Court lacks subject matter jurisdiction. The Court never formally acted on this motion, but did state,

I think we have all admitted that I have jurisdiction to at least part of this case, at least to the Plaintiffs that are named and to the properties they're complaining about. As to whether or not I have subject matter jurisdiction to the rest of the case is always a pending issue before this Court, and at some time I might very well decide that I do not have jurisdiction over the rest of the pipeline.

Hr'g Tr., Aug. 15, 2003.²

On January 29, 2004, in compliance with the scheduling order regarding dispositive motions, Defendants again raised the issue by filing the instant motion for summary judgment on Article III standing with respect to the remote violations. In Plaintiffs' Second Amended Complaint, which Defendants base their summary judgment motion on, Plaintiffs claim they have standing for "remote violations" of the pipeline, anywhere along the 8,000 miles of pipeline, that placed Plaintiffs at immediate risk of injury on their own properties. However, in their response, Plaintiffs once...