Reversed and Remanded and Opinion filed February =
27,=20
2007.
In The
Fourteenth Court=20
of Appeals
_______________
NO. 14-05-01197-CV
_______________
THE CITY OF MONT BELVIEU, =
Appellant
V.
ENTERPRISE =
PRODUCTS=20
OPERATING, LP, Appellee
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On Appeal from the 281st District=20
Court
Harris County,=20
Texas
Trial Court Cause No.=20
05-64578
=20
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O P I N I O=20
N
In this land use =
dispute, the=20
City of Mont Belvieu (the ACity@) appeals from an =
order=20
granting a plea to the jurisdiction in favor of Enterprise =
Products=20
Operating, LP (AEnterprise@). In four =
issues, the=20
City contends the trial court erred by dismissing the =
City=3Ds suit for want of =
jurisdiction=20
because (1) preemption is an affirmative defense, not a =
jurisdictional=20
bar, (2) Enterprise failed to establish that the City=3Ds ordinances were =
preempted by=20
certain provisions of the Texas Natural Resources Code (the =
Acode@), (3) the code does =
not divest=20
a district court of jurisdiction to hear a =
municipality=3Ds action to enjoin a =
public=20
nuisance, and (4) the code does not preempt the common law duty of =
landowners to keep their premises from becoming public =
nuisances. We=20
reverse the trial court=3Ds order granting the =
plea to=20
the jurisdiction and remand for further proceedings.
I. =20
Background
The Barbers Hill salt =
dome,=20
located beneath the City, contains numerous caverns created and =
used by=20
the oil and gas industry as storage reservoirs for natural gas =
liquids and=20
other hydrocarbon products. On January 31, 2005, the Texas =
Railroad=20
Commission (ATRRC@) granted Enterprise =
a permit=20
to Acreate, operate and =
maintain an=20
underground hydrocarbon storage facility@ after a lengthy =
process in=20
which the City participated. On February 9, 2005, TRRC =
issued a=20
permit authorizing Enterprise to drill a well to access the =
storage=20
facility. =20
Enterprise began work prerequisite to drilling this well during =
August=20
2005.
When the City was =
informed that=20
Enterprise was operating a drilling rig within city limits, it =
notified=20
Enterprise of its permitting requirements. Because =
Enterprise did=20
not secure a permit, the City subsequently issued a Acease and =
desist@ letter to =
Enterprise, but=20
Enterprise continued to drill. The=20
City then filed suit against Enterprise, alleging that (1) =
Enterprise had=20
violated city ordinances relating to drilling without a permit, =
distance=20
requirements, and zoning; and (2) the drilling activity was a=20
nuisance. The City sought temporary and permanent =
injunctions, as=20
well as damages, interest and costs. In response, Enterprise =
filed a=20
general denial, several affirmative defenses, and a plea to the=20
jurisdiction. In its plea to the jurisdiction, Enterprise =
alleged=20
that the City was not entitled to the relief it requested because =
the=20
trial court lacked subject matter jurisdiction to grant an =
injunction=20
overturning TRRC=3Ds decision to permit =
the same=20
activities the City sought to enjoin. Enterprise also argued =
the=20
Legislature intended that TRRC, not municipalities, control salt =
dome=20
hydrocarbon storage facilities. After a hearing on October =
31, 2005,=20
the trial court granted Enterprise=3Ds plea to the=20
jurisdiction. This appeal followed.
II. =20
Jurisdiction of the Trial Court
In four issues, the =
City=20
contends the district court erred in dismissing its suit for lack =
of=20
subject matter jurisdiction because: (1) the Apreemption@ argument asserted by =
Enterprise in its plea to the jurisdiction operates as an =
affirmative=20
defense rather than a jurisdictional bar; (2) Enterprise failed to =
establish as a matter of law that section 211.002(b) of the code =
preempts=20
the City=3Ds ordinances; (3) =
Chapter 211=20
of the code does not divest the district court of jurisdiction to=20
entertain a municipality=3Ds action to enjoin a =
public=20
nuisance; and (4) Chapter 211 of the code does not preempt the =
common law=20
duty of landowners to keep their premises from becoming a public=20
nuisance.
In a plea to =
the=20
jurisdiction, a party challenges the trial court=3Ds authority to =
determine the=20
subject matter of the cause of action. Mulvey v. Mobil =
Producing=20
Tex. & N.M., 147 S.W.3d 594, 600 (Tex. App.CCorpus Christi 2004, =
pet.=20
denied); Tex. Parks & Wildlife Dep=3Dt. v. Garrett Place,=20
Inc., 972=20
S.W.2d 140, 142 (Tex. App.CDallas 1998, no =
pet.). =20
Because subject matter jurisdiction is a question of law, we =
review the=20
trial court=3Ds decision de=20
novo. Mulvey, 147 S.W.3d at 600. In =
deciding a plea=20
to the jurisdiction, we may not weigh the merits of the claim, but =
must=20
consider only the plaintiff=3Ds pleadings and the =
evidence=20
pertinent to the jurisdictional inquiry. Tex. Natural =
Res.=20
Conservation Comm=3Dn v. =
White, 46 S.W.3d 864, 868 =
(Tex.=20
2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,=20
554B55 (Tex. 2000). =
When we=20
consider a trial court=3Ds order on a plea to =
the=20
jurisdiction, we construe the pleadings in the =
plaintiff=3Ds favor and look to =
the=20
pleader=3Ds intent. =
See Tex.=20
Ass=3Dn of Bus. v. Tex. Air =
Control=20
Bd., =
852=20
S.W.2d 440, 446 (Tex. 1993). To prevail, the party asserting =
the=20
plea must show that, even if all the allegations in the=20
plaintiff=3Ds pleadings are taken =
as true,=20
an incurable jurisdictional defect appears on the face of =
the=20
pleadings, rendering it impossible for the plaintiff=3Ds petition to confer=20
jurisdiction on the trial court. Mulvey, 147 S.W.3d at 600. =
A. =20
Waiver/Preservation of Error
As a preliminary =
matter,=20
Enterprise insists that we may not review this matter because it =
never=20
asserted a preemption argument in the trial court. =20
Enterprise also argues that we may not reverse the trial =
court=3Ds judgment because =
the City has=20
failed to challenge every jurisdictional ground asserted in=20
Enterprise=3Ds plea.
A[T]he review of an =
order=20
sustaining a plea to the jurisdiction and dismissing the case is =
limited=20
to the matters actually presented to the trial court.@ Gadison v. =
Economy=20
Mud Products, Inc., 964 S.W.2d 652, 654 (Tex. App.CHouston [14th Dist.] =
1997, pet.=20
denied). In an appeal of a jurisdictional plea, an appellant =
must=20
attack Aall independent bases =
or=20
grounds that fully support a complained-of ruling or =
judgment.@ =
Britton v. Tex.=20
Dep=3Dt of Criminal=20
Justice, 95=20
S.W.3d 676, 681 (Tex. App.CHouston [1st Dist.] =
2002, no=20
pet.).
Enterprise=3Ds plea to the =
jurisdiction set=20
forth two bases for a lack of subject matter jurisdiction: (1) the =
trial=20
court may not entertain a request to enjoin operations at a salt =
dome=20
storage facility that TRRC permitted; and (2) the Legislature =
intended=20
that TRRC, not municipalities, control salt dome hydrocarbon =
storage=20
facilities. In its plea and argument before the trial court, =
Enterprise sought to establish that the Legislature Alimited@ a =
municipality=3Ds authority to =
regulate salt=20
dome storage facilities. Enterprise stated in its plea, =
A[T]he sole issue is =
whether the=20
drilling activity at issue is properly authorized after the TRRC =
has=20
granted the requested permit, or whether the City can require its =
own=20
permit with standards that flatly differ from those that TRRC has=20
established.@ On appeal, =
Enterprise=20
contends that an appropriate framing of the issue presented in its =
jurisdictional plea is: ADid the trial court =
err in=20
dismissing the City=3Ds petition for lack =
of=20
jurisdiction when the City had participated in [TRRC] proceedings =
deciding=20
these issues, and the issues were entirely within the purview of=20
[TRRC]?@
First, we note that =
contrary to=20
Enterprise=3Ds contentions, the =
City has not=20
contested the validity of the TRRC permits. Instead, in the=20
City=3Ds pleadings, which we =
must=20
construe in its favor, it alleges that (1) Enterprise has violated =
the=20
City=3Ds ordinances by =
failing to=20
obtain the proper City permit, and (2) Enterprise=3Ds drilling activities =
are a=20
nuisance. Indeed, the City states in the argument section of =
its=20
brief,
The City=3Ds suit is plainly not a collateral =
attack. =20
The City has no quarrel with the validity of [the TRRC] permit, =
and does=20
not seek either to overturn or contradict it. What the City =
seeks to=20
do is enforce its own ordinances that impose additional=20
requirements beyond the scope of [TRRC]=3Ds regulatory authority to ensure the =
safety of=20
Enterprise=3Ds well.
(citations =
omitted). =20
Labeling the City=3Ds lawsuit as a =
collateral=20
attack on TRRC=3Ds permitting process =
does not=20
properly construe the City=3Ds pleadings in its =
favor. =20
Thus, the trial court erred if it based its jurisdictional =
determination=20
on the notion that the City=3Ds lawsuit is an =
impermissible=20
collateral attack.
Second, admittedly, =
neither=20
party used the term Apreemption@ in the trial court =
to describe=20
Enterprise=3Ds grounds for its =
plea. =20
However, Enterprise=3Ds contention that the =
Legislature intended TRRC, and not municipalities, control salt =
dome=20
hydrocarbon storage facilities can hardly be classified as =
anything but a=20
preemption issue. =20
Moreover, because district courts are courts of general =
jurisdiction and=20
generally have subject matter jurisdiction absent a showing to the =
contrary, =
Enterprise=3Ds arguments =
necessarily rest on=20
a determination that the Legislature=3Ds grant of regulatory =
authority=20
to TRRC divested the court of jurisdiction to consider the=20
City=3Ds claims because it =
deprived=20
the City of any authority to regulate salt dome storage =
facilities. =20
Regardless of the actual words employed, Enterprise clearly sought =
to=20
establish that the City=3Ds permitting process =
was=20
subsumed or limited byB i.e., =
preempted=20
byBTRRC=3Ds permitting =
process. =20
Accordingly, we conclude that the City=3Ds arguments on appeal =
adequately encompass the grounds for Enterprise=3Ds plea to the=20
jurisdiction. See, e.g., El Paso Natural Gas Co. =
v. Minco=20
Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex. 1999) (noting =
that issues=20
should be liberally construed to Aobtain a just, fair, =
and=20
equitable adjudication of the rights of the litigants@); Tex. Mexican =
Ry. Co. v.=20
Bouchet, 963 S.W.2d 52, 54 (Tex. 1998) (AA point of error is =
sufficient=20
if it directs the attention of the appellate court to the error =
about=20
which complaint is made.@) (citation omitted, =
internal=20
quotations omitted).
B. =20
Preemption
In its first issue, =
the City=20
asserts that the trial court improperly conflated the issues of =
subject=20
matter jurisdiction and preemption, which are distinct =
inquiries. =20
The City contends that, while preemption may operate as an =
affirmative=20
defense to some of its claims, it does not deprive the trial court =
of=20
jurisdiction over them. We agree.
An ordinance or =
charter=20
provision that attempts to regulate a subject matter preempted by =
state=20
statute is unenforceable to the extent it conflicts with that=20
statute. See In re Sanchez, 81 S.W.3d 794, 796 (Tex. =
2002);=20
see also Austin Police Ass=3Dn v. City of=20
Austin, 71=20
S.W.3d 885, 888 (Tex. App.CAustin 2002, no =
pet.). =20
Simply because the legislature has enacted a law addressing a =
subject=20
matter does not mean the legislature has completely preempted the =
subject=20
matter. City of Houston v. Todd, 41 S.W.3d 289, 295 =
(Tex.=20
App.CHouston [14th Dist.] =
2001, pet.=20
denied). For a state statute to preempt a subject matter =
usually=20
encompassed by municipal authority, the statute must do so with=20
unmistakable clarity. City of Freeport v. =
Vandergrifft, 26=20
S.W.3d 680, 681 (Tex. App.CCorpus Christi 2000, =
pet.=20
denied).
Ordinarily, a plea to =
the=20
jurisdiction is not the proper vehicle for resolving preemption =
issues=20
because preemption operates as an affirmative defense. Cf. =
Harrill v.=20
A.J.=3Ds Wrecker Serv.,=20
Inc., 27=20
S.W.3d 191, 195 n.1 (Tex. App.CDallas 2000, pet.=20
dism=3Dd w.o.j.) (noting =
that a=20
defendant=3Ds plea to the =
jurisdiction=20
based on federal preemption did not warrant dismissal of=20
plaintiff=3Ds complaint, where =
plaintiff=20
pleaded sufficient facts to establish his cause of action under =
state=20
transportation code). Nonetheless, Enterprise contends that =
a plea=20
to the jurisdiction was proper in this instance because the issue =
here is=20
one of forum preemption rather than Achoice of =
law@ preemption. =
See=20
Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, =
545B46 (Tex. 1991) =
(distinguishing=20
between forum preemption, which implicates a court=3Ds subject matter =
jurisdiction,=20
and Achoice of =
law@ preemption, which =
instead=20
operates as an affirmative defense and does not impact subject =
matter=20
jurisdiction).
However, in this =
case, forum=20
preemption does not apply because the Legislature has not given =
TRRC=20
exclusive authority over salt dome facilities. Several parts =
of=20
Chapter 211 of the code signal the Legislature=3Ds intent that the =
TRRC not have=20
exclusive jurisdiction over everything related to salt dome=20
facilities.
First, T =
RRC=3Ds authority over salt =
dome=20
storage facilities derives from section 211.011 of the code, which =
provides: A[TRRC] has =
jurisdiction over=20
all salt dome storage of hazardous liquids and over salt dome =
storage=20
facilities used for the storage of hazardous liquids.@ Tex. Nat. Res. Code =
Ann.=20
' 211.011(Vernon =
2001). =20
Subsection 211.011 does not state that it confers Aexclusive@ jurisdiction on =
TRRC; it=20
merely gives TRRC Ajurisdiction.@ See id. =20
Second, Chapter 211 =
of the code=20
also contains the following provisions, which specifically =
preserve a=20
municipality=3Ds authority even in =
spite of=20
Chapter 211=3Ds reservation =
of powers=20
to TRRC:
(a) This chapter does not reduce, limit, =
or impair=20
the authority provided by law to any municipality, except as =
provided by=20
Subsection (b) of this section.
(b) A municipality or county may not =
adopt or=20
enforce an ordinance or other regulation that establishes safety =
standards=20
or practices applicable to hazardous liquid salt formation storage =
facilities that are subject to regulation by federal or state=20
law.
(c) ASafety standards or =
practices@ means any regulation of an activity or =
facility=20
covered by this chapter or that is incompatible with the safety =
standards=20
or practices enacted or adopted by federal or state government =
pursuant to=20
the Hazardous Liquid Pipeline Safety Act of 1979, as =
amended.
Tex.=20
Nat. Res. Code Ann. ' 211.002 (Vernon =
2001). Under=20
these provisions, the Legislature did not intend to fully =
preempt a=20
municipality=3Ds authority in this =
area. =20
But, if we were to adopt Enterprise=3Ds position, we would =
have to=20
ignore sections 211.002 (a) and (b) and they would serve no =
purpose in the=20
chapter.
Third, the phrase =
Asafety standards or=20
practices@ has a specific =
meaning in=20
Chapter 211. That meaning does not include all actions a=20
municipality might take regarding a salt dome or even all matters =
related=20
to safety. Section 211.012 requires the Commission to adopt =
safety=20
standards and practices for salt dome storage of hazardous liquids =
via=20
rules. The rules are to cover specific areas such =
as
$ =
; =20
installation and =
testing of=20
safety devices at the facilities;
$ =
; =20
emergency =
notification=20
procedures;
$ =
; =20
fire prevention and =
response=20
procedures;
$ =
; =20
safety training for=20
employees/workers on the operation of the facility; and
$ =
; =20
other requirements =
regarding=20
safe construction, operation and maintenance of=20
facilities.
Tex.=20
Nat. Res. Code Ann. ' 211.012(Vernon =
2001). =20
Thus, Asafety standards and=20
practices@ is limited to these=20
specifically listed areas. =
See=20
id.
Accordingly, this =
case does not=20
present an issue of forum preemption, but instead a question of =
choice of=20
law preemption, which does not operate as a jurisdictional bar to =
the=20
City=3Ds claims. The =
trial court=20
therefore has jurisdiction to determine whether, and to what =
extent, the=20
ordinances at issue are preempted by the Legislature=3Ds grant of regulatory =
authority=20
to TRRC, and thus whether the City is entitled to the relief it=20
sought.
III. =20
Conclusion
Because the trial =
court erred=20
by disposing of the City=3Ds claims in a plea to =
the=20
jurisdiction, we sustain the City=3Ds first issue. =
We will=20
not consider the City=3Ds remaining issues =
because they=20
relate to a preemption argument not properly resolved in such a=20
plea. Further, we discern no other incurable jurisdictional =
defects=20
apparent from the face of the City=3Ds pleadings. =
Accordingly,=20
we reverse the trial court=3Ds order granting the =
plea to=20
the jurisdiction and remand this case for proceedings consistent =
with this=20
opinion.
/s/ =20
Charles W. Seymore
Justice
Judgment rendered and Opinion filed =
February 27,=20
2007.
Panel consists of Justices Fowler, Frost =
and=20
Seymore.
Nothing in our record indicates =
whether the=20
City was aware of or participated in the permitting process for =
this=20
particular well.
According to the City=3Ds original petition, Enterprise =
initially declined=20
to secure a permit before drilling, but subsequently submitted an=20
application. However, at that time, Enterprise had failed to =
secure=20
any waivers to reduce the drilling limitation set-offs required by =
the=20
City=3Ds ordinances. Thus, the City had =
not granted=20
the permit, but was still processing Enterprise=3Ds application, when it issued its =
Acease and desist@ letter.
Enterprise contends that it is =
not=20
similarly limited to matters raised in the court below, citing =
Lucey v.=20
Southeast Tex. Emergency Physicians Assoc., 802 S.W.2d 300, =
304 (Tex.=20
App.CEl Paso 1990, writ denied). =
However,=20
Lucey is easily distinguishable because it addressed an=20
appellee=3Ds right to bring new matters on appeal =
in a case=20
after a judgment non obstante veredicto, a situation in =
which an=20
appellee is permitted by the rules of civil procedure to bring =
forward=20
cross-points in support of the judgment. Id. =20
Enterprise employed the following =
statement=20
as a subheading in the argument section of its plea: AThe Legislature intended that the TRRC, =
not=20
municipalities, control salt dome hydrocarbon storage=20
facilities.@
See Tex. Const. art. V, =
' 8; see also In re Entergy =
Corp.,=20
142 S.W.2d 316, 322 (Tex. 2004).
Cf. In re Entergy =
Corp., 142=20
S.W.3d at 322-23 (AAn agency has exclusive jurisdiction =
when the=20
Legislature has granted that agency the sole authority to make an =
initial=20
determination in a dispute.@).
See In re Entergy Corp., =
142 S.W.3d=20
at 332 (noting that an administrative agency Amay exercise only those powers the law =
confers=20
upon them in clear and express statutory language and those =
reasonably=20
necessary to fulfill a function or perform a duty that the =
Legislative has=20
expressly placed with the agency@). |