* District Judge of the Western District of Louisiana, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91-4638.

UNITED TEXAS TRANSMISSION COMPANY, Plaintiff-Appellant,

v.

UNITED STATES ARMY CORPS OF ENGINEERS, Etc., et al., Defendants-Appellees.

Nov. 18, 1993.

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES and WIENER, Circuit Judges, and LITTLE, * District Judge.

WIENER, Circuit Judge:

We write today to resolve a long-standing dispute as to the party responsible for the costs of

relocati ng sections of two pipelines which, pursuant to permits issued by the United States Army

Corps of Engineers (the Corps), ran under the Hillebrandt Bayou (the bayou) in Southeast Texas.

At all relevant times, the pipelines were owned by the United Texas Transmission Company

(UTTCO). Their relocation was required to conform with a project to widen and deepen the bayou.

This project was a joint endeavor of Jefferson County Drainage District NO. 6 (Drainage District)

and the Cor ps. UTTCO refused the Corps' order to relocate the lines until UTTCO received

assurances that it would receive reimbursement for costs and expenses of relocatio n. In turn, the

Corps revoked UTTCO's permits to cross under the bayou, a nav igable st ream, and this litigation

ensued.

The district court granted summary judgment in favor of the Corps and the Drainage District,

holding that UTTCO could be compelled to pay for the entire relocation of the pipelines under the

permits. The court also held that, in the face of UTTCO's refusal to comply with the Corps' order

to relocate the pipeline s, t he Corps' revocation of UTTCO's permits was not an abuse of its

discretion. Even though we view the case in a different manner than did the district court, we affirm.

I1 P.L. No. 89-298, 79 Stat. 1073 (Oct. 27, 1965).

2 (Emphasis added). FACTS AND PROCEDURAL HISTORY

Historically, Southeast Texas in general and Jefferson County in particular have been plagued

by destructive floods. Man's attempts to alter drainage patterns in the area have been legion but less

than wholly successful. Specifically, since 1912, numerous efforts have been instituted to curb the

problems resulting from the flooding of the bayou.

The instant wideni n g and deepening project was instituted under the aegis of the Flood

Control Act of 1965, which authorized many such projects throughout the country. 1 These projects

are conducted as joint efforts between local sponsors, such as the Drainage District (with local funds

furnished for the particular improvement), and the Corps (with funds appropriated by Congress).

In 1972, the United States and the Drainage District entered into a "Local Cooperation

Agreement." Under that agreement, the Drainage District was to work with the Corps and was to

provide all the necessary lands, easements, and rights of way necessary for the project. In addition,

the Drainage District agreed to make "all necessary alterations and relocations of structu res and

utilities" that were necessary for the project.

In 1951 and 1956, UTTCO's predecessor in ownership of the pipelines was granted permits

from the Corps to la y t wo gas pipelines under the bed of the bayou. When UTTCO acquired the

pipelines it succeeded to these permits (and to eas ement s across lands abutting the bayou—lands

through which portions of the pipelines ran). The permits were issued by the Corps pursuant to § 10

of the Rivers and Harbors Act of 1899 (hereafter, § 10 permits). The language of ¶ ( f ) of the instant

§ 10 permits is relevant to our inquiry. That paragraph provides, in pertinent part:

( f ) That if the future operations by the United States require an alteration in the position or

the structure or work herein authorized

... the owner will be required upon due notice from

the Secretary of the Army, to remove or alter the structural work or o bst ructions caused

thereby without expense to the United States.... 2

The scope of the Corps' authority under ¶ ( f ) to demand relocation of the pipelines at the expense

of the permit holder is at the heart of this lawsuit.3 UTTCO has maintained throughout the course of this litigation that, when the Drainage

District began to run low on funds, it developed the plan to have the Corps to use its perceived

authority under the § 10 permits to force pipeline owners to absorb the costs of relocations,

thereby relieving the District of its obligation to do so under the Cooperation Agreement

provision for the District to provide easements and relocations. We are concerned here with the

Corps' authority under § 10 permits and not why it may have chosen to exert that authority. In 1987, UTTCO was informed by the Corps that the pipelines would have to be relocated

t o accommodate the flood control project. UTTCO instituted the preparation of a preliminary

estimate of the cost of the necessary relocations. When the results were received, the Corps and the

Drainage District were advised by UTTCO that it was prepared to go forward with the relocation as

soon as it received assurance from the Drainage District that UTTCO would be reimbursed for the

entire cost of reloc at ion—approximately $1,060,000. Initially, the Corps agreed with UTTCO's

assertion that the Drainage District was responsible for at least so me of the cost of the pipeline

relocations. Later, however, the Corps took the position (with the Drainage District) that, under the

language of

t he permits, the Corps could require UTTCO to relocate the pipelines and absorb the

entire cost. 3

When UTTCO made clear that it was no t prepared to relocate the pipelines without

assurances of reimbursement, a stalemate developed. The parties corresponded and met frequently,

each attempting to convince the othe r t hat it had to pay for the relocations. These efforts failed,

however, with a result that the flood control project was delayed by UTTCO's unflagging refusal to

relocate its pipelines until it received assurances of reimbursement.

In February 1989, the Corps notified UTTCO that its § 10 permits had been suspended and

advised UTTCO of its right to require a public hearing. According to that notification, appropriate

action on the permits—which could include reinstatement, modification, or revocation—would be

taken only after such a hearing (if one were requested). The public hearing was held in June 1989.

The principal matter discussed was whether the Corps' use of its asserted authority to force UTTCO

to move its pipelines at its own expense would be in the "public intere st." UTTCO conti nued to

refuse to bear the relocation cost, arguing that the Corps had no authority to order such a relocation.

UTTCO also continued to maintain that under the Cooperati on Agreement the Drainage District was4 UTTCO v. Corps, 772 F.Supp. 952, 954 (E.D.Tex.1991).

5 That court stated that "UTTCO has agreed that it is possible it does not have a claim against

the federal government for the costs of relocating those parts of the pipelines located within the

navigable waterway." obligated to pay for any required relocations.

After the public hearing but before the Corps took formal action on the permits, UTTCO filed

the instant lawsuit, naming the Corps and the Drainage District as defendants. The lawsuit was filed

in July 1989, and in it UTTCO sought monetary, injunctive, and declaratory relief. Essentially,

UTTCO sought a determination that it could not be forced by the Corps to pay for the relocation of

the pipelines.

In August 1990, over a year after this suit was filed, the Corps formally considered the status

of UTTCO's § 10 permits. The Corps noted that UTTCO had been notified repeatedly of the need

to relocate the pipelines, but that UTTCO had consistently refused to comply. The Corps also

asserted that it had authority to revoke the permits of a recalcitrant permit holder such as UTTCO,

citing a string of precedents which held t hat a permit holder does not have a vested interest in the

permit. As for UTTCO's argument that the Corps had no authority to order relocation of facilities

situated outside the boundaries of the stream as they existed when the § 10 permits were issued, the

Corps found:

The permits do not provide that future operations be within the stream bed of the Hillebrandt

Bayou, or that the own er must be given assurance of compensation for such pipeline

relocation o n the fastlands [i.e., the lands outside of the original stream banks]. On the

contrary, permit conditions state that the owner will be required to remove or alter the

structural work for future operations without expense to the United States.

The Corps then revoked the permits, issuing its opinion on August 13, 1990.

The district court granted summary judgment in the instant case in August 1991. In its

opinion, the court stated that "no dispute whatsoever exists as to the facts involved in the claims upon

which summary judgment is granted." 4 That court found—at least implicitly—that some parts of the

pipelines which had to be relocated lay inside the original boundaries of the streams and other parts

of the pipelines which had to be relocated lay outside of those boundaries. 5 The court then held that

UTTCO could be forced to pay the costs of accomplishing the required relocations of parts of the6 Id. (quoting and discussing United States v. 597.75 Acres of Land, 241 F.Supp. 796, 799

(W.D.La.1965)).

7 772 F.Supp. at 955.

8 A letter filed jointly by the parties on June 10, 1993, at our request, confirms our

understanding that the removal of UTTCO's pipelines was completed by July 1992, before

argument was heard on this appeal, but after the parties' briefs were filed with this court.

9 Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). pipelines, including parts located outside the original banks of the bayou. Specifically, the court held

that the work outside the original banks was incidental to the work inside the original banks, and that

UTTCO could thus be forced to pay for the entire relocation. 6 The court also held that, inasmuch

as UTTCO had improperly refused to obey the Corps' order to relocate the pipelines, the Corps was

authorized, under the language in ¶ ( f ) of the § 10 permits, to r evoke the permits and order the

pipelines removed.

The district court summarized its view of the case and the arguments that UTTCO was

making, stating:

[T]his court opines that apparently the plaint iff pipeline owner here wishes to reap the

benefits of conducting business over nav igable waterways, without bearing any of the

burdens. The court assumes the pipelines were constructed over the Hillebrandt Bayou

because that was the most direct and profitable route for the transmission of natural gas. For

over thirty years, pipeline owners have been profiting from the federal government's generous permission to cross a navigable waterway. Now fl ood control for a substanti al porti on of

southeast Texas is at stake, and the plaint iff wants the taxpayers to subsidize its relocation of

its pipelines so the plaint iff can profitably transmit natural gas. Not only is such a position not

good law, it is not good sense. 7

The court denied UTTCO's summary judgment motion, granted those of the Drainage District and

Corps, and ordered removal of UTTCO's pipelines. UTTCO timely appealed. We are advised that

during the pendency of this appeal, both of UTTCO's pipelines were removed from the bayou and

were not re-installed. 8

II

ANALYSIS

As all must know by now, we review the reco rd o n appeal from a district court's grant of

summary judgment "under the same standards which guided the district court." 9 The standards we10 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

11 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

12 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

13 For reasons explained below, a fifth possible way that the Corps could order relocation of a

pipeline—a relocation outside of the original banks of the stream that would have an incidental

effect inside the original banks—will be grouped with the fourth possibility for purposes of this

analysis. apply are set out in the Supreme Court trilogy of Anderson v. Liberty Lobby, Inc., 10 Celotex Corp.

v. Catrett, 11 and Matsushita Electric Indus trial Co. v. Zenith Radio Corp. 1 2 In our review of this

case, we consider two issues of law: whether UTTCO could have been forced to absorb the entire

cost of relocating its pipelines if it had done so; and whether the Corps abused its discretion in

revoking UTTCO's § 10 permits after UTTCO refused to relocate sections of its pipelines as ordered

by the Corps.

A. Responsibility for Relocation Costs

1. Types of Relocation Orders and Responsibility for Costs

There are essentially four factual situations that could be encountered when the Corps orders

relocation of pipelines running under a navigable stream pursuant to a § 10 permit. The orders could

require relocation of pipelines (1) wholly within the original banks of the stream; (2) wholly outside

the original stream banks (e.g., when a stream is widened but not deepened, or at least not enough

to require relocation of the porti on of the pipeline lying beneath the original stream bed); (3) almost

enti rely inside the original stream banks but with some incidental involvement of relatively

insignificant portions of the pipeline or related facilit ies located outside the original boundaries; or

(4) both inside and

outside the original stream banks, with substantial work in each area. 13

Under our interpretation of the permit language, the correlative rights and obligations of the

permit holder and the Corps differ significant ly, depending on which type of relocation situation is

implicated in the particular order. As the question whether the Corps properly revoked UTTCO's

permits is dependent on the specific rights and duties that appertain under the type of relocation that

is encountered in the instant § 10 orders, we shall first elaborate seriatim on the particular rights and14 427 F.2d 1061 (5th Cir.1970).

15 Id. at 1064.

16 241 F.Supp. 796 (W.D.La.1965). duties that flow from each of the four possible types of relocation.

a) Wholly within the Original Banks of the Bayou

As no t ed above, one of the aspects of this litigation which is not disputed is t hat

permit-holders must pay for the movement of any porti on of a pipeline th at is located within the

original permit area. The cases relied on by UTTCO in its brief to this court and its representations

at oral argument confirm acknowledgement of this proposition. Solely fo r t he sake of clarity and

perspective, then, we reiterate the truism that t he pipeline owner must bear the cost of relocation

work within the original permit area, i.e., the boundaries of the bayou existing when the § 10 permits

were granted.

In Tenneco, Inc. v. Greater LaFourche Port Commission, 1 4 on which UTTCO principally

relies, we stated:

Tenneco agrees that it is financially responsible for pipeline alterations necessary to accommodate changes in the channel that are made within the right of way purchased from

the State—that is, changes within the bayou's original boundaries. Tenneco objects to paying

for those changes occasioned by the channel's encroachment onto [the abutti ng owner's]

property and onto Tenneco's easement there. 15

UTTCO attempts to align itself with Tenneco. In discussing Tenneco and United States v. 597.75

Acres of Land 16 in its brief to this court, UTTCO states that "when a pipeline owner is compelled to

relocate a porti on of its pipeline within the permitted area (i.e., the porti on lying between the banks

of the waterway at the time of permit issuance) pursuant to a permit condition, then any relocation

of portions of the pipelines lying outside the permitted area cannot be the subject o f a claim for

compensation when the latter is merely incidental to the required relocation within the Bayou." If

nothing else, then, UTTCO agrees with the principle that the pipeline owners must pay for alterations

to portions of the pipelines within the bayou's channel as it existed when the § 10 permits were

granted; UTTCO simply insists that a ll alterations necessitated by the instant relocation orders were

to portions of the pipelines located outside the original boundaries of the bayou, and therefore must17 This point was made by UTTCO even more explicitly in its response to the Corps and the

Drainage District's motions for summary judgment. UTTCO argued:

Further, UTTCO never refused to relocate the pipelines without expense to

the United States. Though [sic] not required to do so by the permit itself, UTTCO

in fact expressly agreed to relocate portions of its pipelines within the Bayou that

needed to be relocated (if any) at its ow n expense. UTTCO also agreed to relocate

even the portions of the pipelines lying outside the Corps' jurisdiction in privately

owned fastlands at no cost to the federal government, provided that the Drainage

District provide assurance that it would [pay for the relocations].

(Footnote om itted).

18 (Emphasis added).

19 At oral argument, counsel for UTTCO argued that this flood control project is local and thus

is not a "future operation[ ] of the United States. " We disagree. This project was primarily for

the benefit of the citizens of the area, but certainly there is flood control benefit beyond the

immediate region of the Hillebrandt Bayou. That this project is a "future operation of the United

States" is evidenced by its authorization by act of Congress, substantial funding coming from the

federal government, and the work of the Corps on the project.

20 But see section II.A.2., infra. be paid for by the Drainage District—or at least not by UTTCO. 17

The pipeline owner's responsibility for all costs of relocation inside the per mit area derives

from the language of ¶ (

f ) of the p ermits. That paragraph states that "if future operations of the

United States require alteration in the positi on of the structure or work h erein authorized,

... the

owner will be required to remove or alter the structural work or obstructions caused thereby without

expense to the United States." 18 This permit language clearly gives the Corps 1 9 the authority to order

the relocation of the pipelines inside the boundaries of the original permit area at the expense of the

pipeline owners. As stated before, this is not in dispute; only relocations in the areas outside of the

original banks of the bayou—the abutting lands through which the pipeline owner had acquired

private easements—is disputed in the instant case. As noted, UTTCO insists that no relocation was

required between the banks of the bayou as they existed at the times the permits were issued. 20

b) Wholly outside the Original Banks of the Bayou

The Corps and the Drainage District argue that, pursuant to the Corps' authority under the

§ 10 permits, it may order the relocation of pipelines in areas outside the original boundaries of the

bayou as well as the area within tho s e boundaries, i.e., between the original banks; and that these21 See United States v. Alaska, --- U.S. ----, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992); United

States v. Cherokee Nation of Okla., 480 U.S. 700, 707, 107 S.Ct. 1487, 1491, 94 L.Ed.2d 704

(1987); United States v. Tw in City Pow er Co., 350 U.S. 222, 224, 76 S.Ct. 259, 260, 100 L.Ed.

240 (1955); Lambert Gravel Co. v. J.A. Jones Constr. Co., 835 F.2d 1105, 1110 (5th Cir.1988).

22 Lambert Gravel, 835 F.2d at 1110 (quoting Coastal Petroleum Co. v. United States, 524

F.2d 1206, 1210, 207 Ct.Cl. 701 (1975)).

23 See Cherokee Nation of Okla., 480 U.S. at 704, 107 S.Ct. at 1489.

24 524 F.2d 1206, 1209, 207 Ct.Cl. 701 (5th Cir.1975) (emphasis added) (citing United States

v. Kansas City Life Ins. Co., 339 U.S. 799, 808, 70 S.Ct. 885, 890, 94 L.Ed. 1277 (1950), and

Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996 (1897)). relocations too must be made without cost to the government. We do not agree. The clear language

of the permits that the Corps issued to UTTCO's predecessor limit s the permit's coverage to the

"work herein authorized"—i.e., the work authorized by the permits within the original bounds of the

bayou. Thus, the language of the permits literally limit s the Corps' authority to impose the costs of

relocation on the holder of the permits to those costs properly allocated to relocation work in the area

between the banks of the bayou as they existed at the time the permits were granted.

In the alternative the Corps and the Drainage District argue that the costs of relocation work

outside the original banks can pro perly be assessed to permit holders under the "navigational

servitude" possessed by the government. In their briefs to this court both the Corps and the Drainage

District cite several cases that discuss the expansive powers of the federal gove r nment under the

navigational servitude. 21 In addition, the parties argue at length about whether "navigation" per se

is a requisite to invoking that serv it ude, and whether the work involved in this project is properly

viewed as implicating "navigation."

The "navigational servitude" is an aspect of the sovereignty of the United States, "grounded

in the power of the Federal Government to regulate commerce," 22 entitling the government to exert

a dominant servitude in all lands below the ordinary high water mark of navigable streams. 23 As noted

in Coastal Petroleum Co. v. United States, "[t]his n avigat io n servitude is an extremely old

concept—own ers of property or property ri ghts w ithin navigable waters take those rights fully

cognizant of their limit

ed nature." 24 One facet of the situation at issue in this case—that concerning

portions of pipelines situated outside the original river banks—is by definition not within navigablewaters and thus cannot be subject to the servitude. We find the question whether the project involved

navigation to be irrelevant to our consideration. Even if we were to find the navigational servitude

applicable, the Corps would still not here be authorized to assert the servitude outside the original

banks of the bayou and the refore cannot order UTTCO to bear the expense of rel ocati ng those

portions of the pipelines not located between the original banks of the bayou.

UTTCO held easemen t s on the private lands (the "fastlands," i.e., those lands that are

contiguous to but outside the original banks of the bayou) under the surface of which the pipelines

passed. The instant project involved both (1) d eepening the original permit channel, thereby affecting

that section of pipeli nes lying in that portion of the bed of the bayou situated between the original

banks, and (2) w idening the bayou, thereby affecting substantial portions of the pipelines lying outside

and on either side of the original banks. The proposition that the navigat ional servitude extends

beyond the original banks of the stream (out side the navigable waters of the United States) is

insupportable—as is the "bootstrap" proposition th at t he very act of widening the bayou brings

"within navigable waters" the land previously lying outside the original b a nks but affected by the

widening, thereby making it subject to the servitude retroactively.

The land outside the banks was not taken by exercise of the navigational servitude so that the

bayou could be widened (for it could not have been), but was purchased from the landowners. In

fact, title to that land was acquired subject to UTTCO's own pipeline easements! There is no merit

to the Corps' argument that it can simply take private proper t y right s (here, UTTCO's easements

across private riparian property ) that are not subject to a navigational servitude without compensating

the owner for the property right thus taken. Yet that would be the precise result if we were to allow

the Corps to obliterate UTTCO's easements on the fastlands by (1) acquiring those lands from private

owners, (2) widening the bayou to encompass those lands, and (3) applying the navigational servitude

thereto retroactively for purposes of forcing owners of pre-existing easements, such as UTTCO, to

relocate their pipelines and other facilities at those owners' cost.

Unlike its non-property right in the permits to cross the bayou, UTTCO's easements in private

property contiguous to the bayou but outside the banks do constitute property rights. Here, UTTCO25 241 F.Supp. 796.

26 Id. at 799.

27 427 F.2d at 1066 (quoting 597.75 Acres, 241 F.Supp. at 799). does not contest the Corps' abilit y to order the relocation of portions of the pipelines that are situated

in the fastlands and must be moved to accommodate the widening of the bayou; UTTCO (like any

farmer whose property is burdened by UTTCO's easement and lies in the way of the widening project)

simply asks for compensation for the costs it will incur in relocating its pipelines within the affected

areas.

c) Relocation Outside the Banks that is Incidental to Relocation Inside the Banks

As we have observed, no one seriously contests the rule that the cost of relocating the porti on

of a pipelines lying between the ori ginal banks of the bayou (i.e., the work that was either "herein

authorized" under ¶ (

f ) of the permits or covered by the navigational servitude) must be borne by the

pipeline owner. On t he other hand, when the project requires the relocation of portions of the

pipelines lying not between the original banks but in easements in the fastlands, the relocation costs

generally must be borne by the appropriating governmental unit. We say g enerally, however, because

there is one recognized exception: When the permit holder is required to relocate its facilit ies

between the original banks of the waterway at no cost to the government, the permit holder will also

be responsible for those costs incurred for work outside the original banks when such work is only

incidental to the alterations required to be made between the original banks.

In 597.75 Acres, 25 the district court stated that "a reasonable interpretation [of the permits]

would also require that such incidental work on adjoining lands as is necessary to accomplish [the

relocation within the waterway's banks] be effected at [the permit holders'] expense." 26 In T enneco,

we elaborated on this point, stating that incidental alterations include "changes the pipeline company

must make "necessary to accomplish [the] purpose' of relocation within the riverbed." 27 We continue

to recognize this ex cept ion, first discussed in 5 97.75 Acres and reiterated in Tenneco. In other

words, when a project requires relocation work to be done principally within the original boundaries

of the stream (the work "herein authorized" by the permits or within the bounds of the pre-existingnavigational servitude) but some incidental work must be done in adjacent areas outside the banks

as well (as a consequence of the work required inside the banks), the permit holders will be

responsible for the entire cost of relocation of the pipelines.

d) Substantial Relocation Both Inside and Outside the Permitted Area

The final situation that might be involved when the Corps orders relocation is that in which

the permit holder might be required to make substantial relocations of portions of the pipelines both

within and without the original banks of the stream. We today hold that when the scope of the

government project requires substantial work (as distinguished from incidental work), not only within

the original banks but outside as well, the sponsoring governmental agency or subdivision shall be

responsible for all reasonable costs incurred by the permit holder in relocating those portions of its

facilities situated outside the original permit boundaries, i.e., outside the original stream banks. Of

course, the permit holder will remain responsible for t he costs attributable to the relocation work

within the permit area.

This result flows naturally from the reasoning set forth in the foregoing analysis of the first

three types of relocation orders. In fact, it is the corollary implicit in the "incident of work" rule of

Tenneco and 597.75. On one end of the spectrum, the language of ¶ ( f ) of the § 10 permits clearly

allows the Corps to force th e pipeline owner to bear the cost of relocations inside the original

riverbanks. On the other end, the government is clearly obliged to pay the expense o f subst ant ial

relocations wholly outside the origi nal banks. Obviously, each such case will require a factual

determination concerning what porti on of the relocation costs pertains to the work within the original

permit area and what porti on pertains to the work outside that area, for the expenses shall be borne

accordingly. Only when essentially all relocation work is between the banks of the stream will the

permit holder be responsible for costs attributable to outside work, and then only for that which is

truly incidental to the bulk of the project, i.e., that within the banks. We caution, however, that no

such "incidental" exception exists for the obverse situation in wh ich t he relocation order requires

w ork on facilit

ies situated almost wholly outside the stream banks. In such situations the permit

holder remains responsible for costs attributable to any work between the stream banks, no matter28 This has been UTTCO's contention throughout this litigation. For example, the footnote we

omitted from UTTCO's response to the Corps' and the Drainage District's motion for summary

judgment, see supra note 17, asserts: "In point of fact, no such relocation [inside the original

banks] was ever required." how incidental, given the permit's language.

2. The Type of Relocation Situation Involved Here

At oral argument to this court, counsel for UTTCO represented several times that all of the

alterations to the pipelines involved in the instant case were to occur outside of the original permit

area; that no portions of the pipelines lying within the banks of the bayou would be affected. 2 8 After

a thorough review of the record, however, we find that assertion cont radicted by (1) the evidence

presented to the district court at the summary judgment hearing, (2) the findings made by the district

court, and most importantly, (3) the findings of and evidence considered by the Corps in its

proceedings for administrative revocation of the permits. Apparent from all of that—and contrary

to UTTCO's assertions—are the conclusions that some portions of the required relocation work

would necessarily involve segments of the pipelines situated under the bed of the bayou as it existed

at the times the permits were granted, i.e., inside the original permit area, and that such work would

be substantial, not merely incidental. The same is true of relocation work outside the original permit

area. Thus, the type of relocation ordered is that described in subsection d) abo ve: substantial

relocation both insi de and outside the permitted area. It follows inescapably, then, that UTTCO

would have been responsible for all costs and expenses allocable to work inside the original banks of

the bayou, but would have been entitled to reimbursement from the Corps or the Drai nage

District—or both—for the costs and expenses allocable to relocation work outside the permit area.

From the underdeveloped summary judgment record, however, it appears that UTTCO never

attempted to show precisely how much of the pipelines involved in the instant case lay within the

original permit boundaries and how much lay outside those boundaries. Even less determinable at

this juncture is just what fraction of the total relocation cost that UTTCO would have incurred if it

had obeyed the relocation order of the Corps would have been allocable to the inside work and what

fraction would have been allocable to the outside work.29 See Bow les v. United States Army Corps of Eng'rs, 841 F.2d 112, 116 (5th Cir.1988) (citing

5 U.S.C. § 706(2)(A)).

30 Id. (citing Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106

(1973)). B. The Revocation of UTTCO's Permits

In reviewing the Corps' revocation of UTTCO's permits, we must ask whether the Corps

"acted in an arbitrary and capricious fashion, abused its discretion or otherwise ac ted not i n

accordance with law." 29 This inquiry in turn requires a review of the findings of the Corps and the

record made by that agency. "If the agency decision cannot be sustained on the administrative record,

then the case should be remanded to the agency for further consideration." 30

The Corps revoked the permits because UTTCO refused to relocate the pipelines without

assurances of compensation from the Corps or the District or both. In its Statement of Findings that

accompanied the revocation orders, the Corps stated:

The permits do not provide that future o perations be within the streambed of Hillebrandt

Bayou, or that the owner must be given assurance of compensation on the fastlands. On the

contrary, permit condition s state that the owner will be required to remove or alter the

structural work for future operations without expense to the United States.

Clear from the first part of this finding is the premise that if the facts revealed that some porti ons of

the pipelines were within the permit area a nd t hose portions required relocation, the Corps would

have the right to order such relocation at UTTCO's expense. It follows that if UTTCO then refused

to comply with the Corps' relocation order, the Corps could not be found to have abu s ed its

discretion by revoking the permits.

Our inquiry thus must begin with the fact question whether the Corps had substantial evidence

to determine that some of the required relocation work would necessarily occur within the original

boundaries of the bayou. At oral argument, counsel for UTTCO asserted that the Corps had never

made a finding that any of the alterations would have to be made inside t he original banks of the

bayou. In its findings, however, the Corps stated:

The project specifications set out in the enclosure 25 are in accordance wi th the Corps'

regulation

... which requires pipelines to be at least five (5) feet below the bed o f the

waterway. Both of UTTCO's pipelines fall w i thin this safety zone. Encl. 25. Thus, the

Secretary of the Army has the authority to seek removal or a lt erat io n of the pipelines in31 (Emphasis added).

32 For example, discussing a letter UTTCO sent to the Corps in August 1988, the Corps noted

in its findings that "UTTCO further stated that almost all of such costs arise from the proposed

widening of the Hillebrandt Bayou, and that only a small portion of the area from which UTTCO

was advised to relocate is within the boundaries of the Bayou, and then only as an incident to the

widening of the Bayou." At another point in the Corps' findings, it discussed UTTCO's assertion

that a partial relocation of the pipelines, of the portions of pipeline within the original boundaries,

would be senseless.

33 See supra note 17. accordance with condition ( f ). 31

Enclosure 25 of the findings includes two plats of the pipelines. Those diagrams clearly demonstrate

that a significant part of the pipeline relocation would occur within the original permit area.

In addition to the statement quoted above, we have located several other places in the findings

of the Corps at which the fact is recognized, at least implicitly, that some of the required relocation

work would be within the bayou's original boundaries. 32 Interestingly, the Corps' findings often quote

correspondence from UTTCO in which it asserted a will ingness to pay for alterations that it

recognized needed to be made inside the original permit area.

Coupled with the clear fact that portions of the subject pipelines lay within the original banks

of the stream bed (so that UTTCO's refusal to relocate those sections of the pipelines in compliance

with the Corps order would justify revocation of the permits), is the undeniable (and undenied)

proposition that the Corps has the absolute authority to order relocations in the fastlands too. This

flood control project was authorized by Congress, and the Corps had the unquestionable authority

to d et ermine the specifications—including the new placement of UTTCO's pipelines—for

implementation of the project. As noted above, 3 3 UTTCO has never questioned the Corps' authority

to order relocation in the fastlands; instead, UTTCO has merely denied any obligation to pay for the

relocations in those areas which, it asserted at different points in the litigation, comprised the entire

relocations.

The inescapable picture that emerges is that UTTCO thus engaged in the strong-arm tactic

of refusing to relocate its pipelines in the face of the clear authority of the Corps to order the

relocation. UTTCO opted to play an unwarranted game of hardball when, without any legal right todo so, it demanded that the Drainage District assure reimbursement for the entire re locati on

costs—an allocation of costs that could never be correct in view of the fact that porti ons of the

pipelines unquestionably were within the original stream bed. On the other hand, the Corps and the

Drainage District were playing some hardball of their own: they were demanding that UTTCO bear

the entire cost of relocating the pipelines even though substantial portions of the pipelines that had

to be relocated lay in the fastlands, where UTTCO was not responsible for the cost of relocations.

If UTTCO had only complied with the Corps' order (even under formal protest), relocated

the pipelines, and sued for compensation for the portions of its private easements that were taken and

for the costs associated with the relocation in the fastlands, then under the reasoning set out above,

UTTCO clearly would have been entitled to recover. UTTCO did not, however, follow this course.

Instead, UTTCO delayed the project by demanding assurances of full compensation—to which it was

not entitled—before it would begin work on the relocation. As it turns out, UTTCO's recalcitrance

constitutes a valid cause for the Corps to revoke the § 10 permits. As UTTCO never challenged the

Corps' authority to order the relocation, but nevertheless refused absolutely to relocate the pipelines,

we cannot say that the Corps abused its discretion by revoking UTTCO's permits.

There is no provision of federal law to which UTTCO can point that would sanction the type

of self help in which it engaged in this case. We have no choice, therefore, but to recognize that the

Corps held the stronger hand (which it played with aplomb) and to affirm the district court's decision.

III

CONCLUSION

UTTCO does not—because it cannot—challenge the authority of th e Corps to order

relocation of UTTCO's pipelines to accommodate the subject drainage project. For the reasons set

forth above, we have concluded that UTTCO was without legal justification in refusing to relocate

its pipelines in response to those orders of the Corps. Thus the Corps did not abuse its discretion in

revoking UTTCO's § 10 permits.

As a consequence of those permit revocations, UTTCO lost the opti on to rel ocate i ts

pipelines, leaving itself no alternative but to remove those portions, both within and without theoriginal permit areas, that needed to be moved so that construction of the project could proceed.

And, whe t her in recognition of the valid revocation of the § 10 permits by the Corps, or in

compliance with the district court's judgment that is here being appealed, or for some other reason

or reasons that are not apparent to us, UTTCO did in fact remove its pipelines from the bed of the

bayou and from the fastlands.

Had UTTCO t imely relocated its pipelines pursuant to the orders of the Corps, thereby

preventing revocation of the § 10 permits that had allowed the pipelines to cross the bayou in the first

place, UTTCO might have been successful in recovering, through the instant litigation, t he costs

incurred in relocating those portions of the pipelines that were situated outside the original stream

bed—costs that clearly would not have been merely incidental to relocating the portions of the

pipelines situated inside the original stream bed. But unfortunately for UTTCO, that was not the

course of action it pursued; so we must affirm the judgment of the district court. In so doing, we

do not speculate on any other remedies that UTTCO may even now retain against the Corps or the

Drainage District.

AFFIRMED.