United States District Court, S.D. Texas, Corpus Christi Division
ORDER ON MOTION TO DISMISS OR STAY REQUEST FOR
PERMANENT INJUNCTIVE RELIEF
GONZALES RAMOS, UNITED STATES DISTRICT JUDGE
voestalpine Texas Holding, LLC and voestalpine Texas LLC own
and operate the La Quinta iron processing plant, which is an
alleged source of airborne metallic particulates. Plaintiffs
are owners of real and/or personal property located in the
vicinity of the plant. They filed this action against
Defendants because the particulates settle on their property,
causing rust and other damage. The claims sound in state law
actions for private nuisance, negligence, and trespass.
Plaintiffs seek monetary damages, as well as injunctive
relief to permanently reduce or eliminate Defendants'
particulate emissions. D.E. 1.
the Court is Defendants' “Motion to Dismiss or,
Alternatively, Stay Permanent Injunction Claim” (D.E.
11/12), complaining that the claim for injunctive relief is
not ripe and that this Court does not have subject matter
jurisdiction to consider such relief as it invades the
province of the Texas Commission on Environmental Quality
(TCEQ). Alternatively, Defendants argue that this Court
should stay any consideration of injunctive relief in favor
of the TCEQ's permitting process on the grounds of
primary jurisdiction. Plaintiffs have responded (D.E. 15) and
Defendants have replied (D.E. 17). For the reasons set out
below, the Court DENIES the motion.
Rule of Civil Procedure 12(b)(1) requires dismissal for lack
of subject matter jurisdiction if the court lacks statutory
or constitutional power to adjudicate the case. Home
Builders Ass'n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998). The burden of proof is
on the party asserting jurisdiction-Plaintiffs, here.
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir.2001), cert. denied sub nom., Cloud v.
United States, 536 U.S. 960 (2002).
examining a Rule 12(b)(1) motion, the district court is
empowered to consider matters of fact that may be in dispute.
“Lack of subject matter jurisdiction may be found in
any one of three instances: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Id. (citing Barrera-Montenegro v. United
States, 74 F.3d 657, 659 (5th Cir. 1996)). A
plaintiff's uncontroverted factual allegations are taken
as true. Ashcroft v. Iqbal, 556 U.S. 662, 678
Nature of Injunctive Relief Sought
seek damages for mental anguish, property damage, expenses
for mitigating losses, and lost market value of real and
personal property, along with exemplary damages. D.E. 1.
Plaintiffs' also request permanent injunctive relief, to
redress their complaints based on the same liability theories
on which they seek damages. Id. Defendants
characterize the request for injunctive relief as (1) a
separate claim that is (2) designed to interfere with the
permitting jurisdiction of the TCEQ. Neither is true.
relief is merely a remedy available, for instance, to address
a trespasser's invasion of land, destruction of an
owner's use and enjoyment, and repeated or continuing
trespass for which legal remedies are inadequate.
Beathard Joint Venture v. West Houston Airport
Corp., 72 S.W.3d 426, 432 (Tex. App.-Texarkana 2002, no
pet.) (injunctive relief for trespass of this kind is
appropriate upon showing of imminent harm, irreparable
damages, and inadequate remedy at law); City of Arlington
v. City of Fort Worth, 873 S.W.2d 765, 769 (Tex.
App.-Fort Worth 1994, writ dism'd) (denying relief, but
recognizing appropriate bases for granting it). Such relief
is also available to redress a nuisance, depending on the
balance of the harm from the operation of a facility against
the harm to the facility owners and public. 1717
Bissonnet, LLC v. Loughhead, 500 S.W.3d 488, 500 (Tex.
App.-Houston [14th Dist.] 2016, no pet.) (denying injunctive
relief); Hot Rod Hill Motor Park v. Triolo, 276
S.W.3d 565, 568 (Tex. App.- Waco 2008, no pet.) (affirming
injunction preventing operation of a race track).
to the Texas Clean Air Act, as enforced under the provisions
of the Texas Water Code,
The remedies under this chapter are cumulative of all other
remedies. Nothing in this chapter affects the right of a
private corporation or individual to pursue any available
common law remedy to abate a condition of pollution or other
nuisance, to recover damages to enforce a right, or to
prevent or seek redress or compensation for the violation of
a right or otherwise redress an injury.
Tex. Water Code § 7.004. Also, “[t]his chapter
does not exempt a person from complying with or being subject
to other law.” Id. at 7.005.
injunctive relief requested is further consistent with the
provisions of Defendants' TCEQ permit, according to the
allegations, taken as true. The permit allows for controls in
addition to those acknowledged in granting the permit and
specifically directs Defendants to not create a nuisance.
D.E. 1, p. 21. Plaintiffs seek measures to reduce
Defendants' emissions of particulates, consistent with
the TCEQ's purpose and to ...