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Weaver's Cove Energy, LLC v. Allen

November 14, 2008

WEAVER'S COVE ENERGY, LLC, PLAINTIFF,
v.
THAD W. ALLEN, COMMANDANT, UNITED STATES COAST GUARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Weaver's Cove Energy, LLC ("Weaver's Cove") has filed suit against defendants Admiral Thad W. Allen, Commandant of the United States Coast Guard (the "Commandant"), Hala Elgaaly, Chief of the Bridge Administration Division of the United States Coast Guard (the "Chief"), and Rear Admiral Timothy S. Sullivan, Commander of the First Coast Guard District (the "Commander"). Plaintiff seeks a writ of mandamus pursuant to the Mandamus Act, 28 U.S.C. § 1361, and for judgment and relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. Defendants move to dismiss plaintiff's complaint. For the reasons stated below, defendants' motion will be granted.

BACKGROUND

This case involves a dispute over defendants' statutory and regulatory duties under the Truman-Hobbs Act, 33 U.S.C. § 513, and its implementing regulations, 33 C.F.R. Part 116. The Truman-Hobbs Act authorizes the United States Coast Guard to order a bridge owner to alter any bridge that unreasonably obstructs navigation. The regulations promulgated under the Truman-Hobbs Act establish a lengthy administrative procedure for investigating and determining whether a bridge constitutes "an unreasonable obstruction to navigation." See 33 C.F.R. §§ 116.01-116.55 (setting out complaint, preliminary investigation, detailed investigation, public hearing, and administrative review process).

By instituting suit, Weaver's Cove is attempting to force defendants to initiate these administrative procedures with respect to the old Brightman Street Bridge (the "Old Bridge"), which connects Fall River to Somerset, Massachusetts. Weaver Cove's interest in this bridge stems from the fact that it received authorization from the Federal Energy Regulatory Commission to construct and operate a liquid natural gas import, storage, and vaporization terminal facility at Fall River, Massachusetts, on the lower Taunton River. (See id. ¶¶ 1, 35.) The liquid natural gas will be delivered to plaintiff's facility in large specially-designed tankers transiting through the Federal Navigation Channel. (Id. ¶ 36.) To reach the facility, the tankers will have to transit through the Old Bridge (id. ¶ 5), and according to plaintiff, the defendants are obligated by statute to determine if the Old Bridge is an unreasonable obstruction to navigation, and if so, to order alterations of the bridge. (Id. ¶ 11.)

The Old Bridge is a one-hundred year-old drawbridge that spans the Federal Navigation Channel of the Taunton River between Fall River and Somerset, Massachusetts. (Id. ¶ 4.) It is located approximately 4,500 feet downstream of plaintiff's facility. (Id. ¶ 39.) The Old Bridge is a bascule bridge with two movable sections that open vertically to create a passage through the bridge span with unlimited vertical clearance. (Id. ¶ 5.) When the drawbridge is in an upright position, it has a 98 feet horizontal clearance (id. ¶ 47), which translates to an operational horizontal clearance of 80 feet. (Id. ¶¶ 5, 43.)*fn1 The piers supporting the bascules of the Old Bridge are positioned on the western-most edge of the roughly 400-foot-wide Federal Navigation Channel. (Id. ¶ 5.) The Old Bridge is owned, operated, and maintained by the Commonwealth of Massachusetts through the Massachusetts Highway Department. (Id. ¶ 4.)

Originally, plans were made to replace the Old Bridge with a new Brightman Street Bridge (the "New Bridge") to be located approximately 1,500 feet upstream of the Old Bridge. (Id. ¶¶ 6, 47.) The New Bridge would have a horizontal navigational span of at least 200 feet, compared with the Old Bridge's span of 98 feet. (Id. ¶ 47; Pl.'s Ex. D.) The pier supports of the New Bridge would be centered on the Federal Navigation Channel and would not be aligned with those of the Old Bridge, which are located on the western-most edge of the Channel. (Compl. ¶ 7.) The Commander mandated that the Old Bridge be demolished within 270 days of the completion of the New Bridge. (See Pl.'s Ex. D. at 15-16; Pl.'s Ex. C at 2.) Construction of the New Bridge began in 2001 and is still ongoing. (Compl. ¶ 47.)

On August 10, 2005, however, Congress enacted legislation that prohibits the expenditure of federal funds for the demolition of the Old Bridge and requires that the Old Bridge be maintained. See Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users ("SAFETEA-LU"), Pub. L. No. 109-59 at § 1948, 119 Stat. 1144, 1514. Section 1948 states: "Notwithstanding any Federal law, regulation, or policy to the contrary, no Federal funds shall be obligated or expended for the demolition of the [Old] Bridge connecting Fall River and Somerset, Massachusetts, and the [Old] Bridge shall be maintained for pedestrian and bicycle access, and as an emergency service route."

On April 3, 2006, the Bridge Program Manager for the First Coast Guard District, acting in the capacity of the Commander, requested authorization from the Commandant to investigate the Old Bridge as a "potential obstructive bridge." (Pl.'s Ex. I.) In response, the Commandant authorized a Preliminary Investigation of the Old Bridge, under 33 C.F.R. § 116.15, stating that "it appears that the subject bridge may constitute an unreasonable obstruction to navigation." (Compl. Ex. J at 1.) The Commander subsequently issued a notice of proposed rulemaking in the Federal Register, confirming that the Coast Guard would undertake a Preliminary Investigation of the Old Bridge. See 71 Fed. Reg. 30108, 30109 (May 25, 2006). However, in October 2007, the Coast Guard determined that a Preliminary Investigation of the Old Bridge was not warranted because Section 1948 prohibits the expenditure of federal funds for the demolition of the Old Bridge. (Pl.'s Ex. B; Elgaaly Decl. ¶ 3; see also Section 1948, 119 Stat. at 1514.)

After plaintiff filed this lawsuit, in June 2008, the Coast Guard reconsidered its October 2007 decision and concluded that Section 1948 does not bar the use of federal funds for alterations short of complete demolition. (See Elgaaly Decl. ¶ 4.) On July 28, 2008, the Chief notified plaintiff that the Coast Guard had reauthorized a Preliminary Investigation of the Old Bridge. (See id.) However, the Coast Guard is currently conducting two unrelated investigations, and it has a backlog of thirty-one bridges awaiting Preliminary Investigation. (See id. ¶ 5.) Because of this backlog and the need to prioritize its investigations based on the urgency of the situations in terms of navigational safety (see id. ¶ 5), the Coast Guard is unable to predict when the Preliminary Investigation of the Old Bridge will be undertaken.

ANALYSIS

I. Mandamus

Defendants move to dismiss plaintiff's complaint for lack of jurisdiction, or alternatively, for failure to state a claim upon which relief can be granted. The Court concludes that the prerequisites for stating a cause of action under the Mandamus Act have not been met, and plaintiff has therefore failed to state a claim upon which relief may be granted.*fn2

Plaintiff petitions for a writ of mandamus compelling defendants to perform the duties allegedly owed to plaintiff by the Truman-Hobbs Act, 33 U.S.C. § 511 et seq., and the regulations promulgated thereunder, 33 C.F.R. Part 116. (Compl. ¶ 14.) The Mandamus Act provides that district courts "shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of ...


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