IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40048

NORTH ALAMO WATER

SUPPLY CORPORATION,

Plaintiff-Appellee;

versus

CITY OF SAN JUAN,

Defendant-Appellant.

-------------------------

TEXAS RURAL WATER ASSOCIATION,

Amicus Curiae

Appeals from the United States District Court

For The Southern District of Texas

(93-CV-265)

April 15, 1996* Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

1 The Commission has rule making authority to regulate and

supervise retail public utilities’ rates, fees , operations, and

services.

2 Before KING, WIENER, and BENAVIDES, Circuit Judges:

PER CURIAM * :

This appeal involves a battle between Plaintiff-Appellee North

Alamo Water Supply Company (Utility) and the Defendant-Appellant

city of San Juan, Texas (City) over which one has the right to

provide water service to five residential sub divisions (disputed

areas) in or near the City. After the City began providing water

service to the disputed areas, the Utility filed this suit,

claiming that it had the exclusive right to provide water service

to the disputed areas. The district court held in favor of the

Utility and enjoined the City. The City appealed complaining,

inter alia

, that the district court’s injunction is improper,

vague, and offends both the Constit ution and principles of

federalism. We affirm in part and remand in part for modification

of the injunction consistent with this opinion.

I

FACTS AND PROCEEDINGS

A. B ACKGROUND

The Utility is a Texas nonprofit rural water supply company.

Approximately 20 years ago, the Texas Water Commission, which has

since bee n succeeded by the Texas Natural Resources Conservation

Commission (Commission), 1 granted Certificate of Convenience and2 See Tex. Water Code Ann. 13.250(a) ( Vernon 1988 & Supp.

1995)(“[A]ny retail public utilit y that possesses a . . .

certificate of public convenience and necessity shall serve every

consumer within its certificated area and shall render continuous

and adequate service within the area or areas.”)(emphasis added).

3 The names of these subdivisions are Loma Linda 1, Loma Linda

2, Los Arboles, B&H Mobile Home Park, and Chaparreles.

3 Necessity Number 10553 (Certificate) to the Utility. The

Certificate obligates the Utility to provide water services for a

large rural ar ea spanning Hidalgo and Willacy counties in South

Texas (Certificated Area). 2 To finance construction, operation,

and improvement of its water system, the Utility obtained loans and

grants from the Farmer’s Home Association (Fm HA). At the end of

1993, the Utility owed the FmHA approximately $12,000,000.

The City is a home rule municipality located in Hidalgo

County, Texas. It owns and operates a municipal water supply

system and provides water service in several subdivisions north of

the City, some of which lie within the Utility’s Certificated Area.

As the City developed, the Utility would determine from time to

time that various subdivisions of the City that are within the

Certificate d Area would be better served by the City. In such

instances, the Utility would either execute a wri tten release to

the City or acquiesce in the City’s furnishing water service to

those subdivisions. The five other subdivisions 3 which

collectively constitute the disputed areas are within the

C ertificated Area and are currently receiving water service from

the City, but the City had never obtained a release from the

Utility to service these subdivisions. The Utility objected to the4 Tex. Water Code Ann. § 13.254 (“The commissioner at any time

after notice and hearing may revoke or amend any certification of

public convenience and necessity . . . if it finds that the

certificate holder has never provided, is no longer providing, or

has failed to provide continuous and adequate service in the area, or part of the area, covered by the certificate.”).

5 Id. § 13.255 (addressing single certification in an annexed

or incorporated area).

6 This preliminary injunction has not been challenged in this

appeal.

4 Cit y’s providing service to the disputed areas, explaining that

these subdivisions are wi thin the Certificated Area and are

adjacent to the Utility’s water service lines. Despite these

objections, the City refused to allow the Utility to provide water

service to the disputed areas.

B. T HE L ITIGATION

In December 1993, the Utility brough t this action under 7

U.S.C. § 1926(b) to enjoin the City from providing water service

within the Certificated Area. In July 1994, the City filed

applications (Applications) under §§ 1 3.254 4 and 13.255, 5 seeking

to decertify portions of the Certificated Area and to recertify

them in the City’s name. On August 18, 1994, before the Commission

reached a decision on the Applications, the district court entered

an Agreed Preliminary Injunction, enjoining the City from servicing

any additional customers within the Certificated Area and ordering

the City to contact the C ommission and request that it take no

further action on the Applications until the expiration of the

Agreed Preliminary Injunction. 6

1. Original Judgment5

On December 15, 1994, the district cour t entered final

judgment (Original Judgment) in favor of the Utility and against

the City. After noting that under Texas law the Utility had a

legal duty to provide continuous and adequate service to residents

in the Certificated Area, the district court held that the Utility

had, as a matter of law, “made service available” as required by §

1926(b). In the alternative, the district court held that because

the Utility had water service lines adjacent to the disputed areas,

it had, as a factual matter, “made service available” as required

by § 192 6(b). The district court concluded that the City had

encroached on the service area of a federally indebted water

association and thus violated § 1926(b).

The district court found that the Utility’s annual net revenue

attributabl e to the disputed areas was approximately $365,000.

Accordingly, it permanently enjoined the City from (1) pursuing the

Applications; (2) offering to provide or providing service to the

disputed areas; and (3) offering to provide or providing water

se rvice to areas that lie within the Certified Area but are not

currently served by the City, except as agreed to by the Utility.

Finally, the court also instructed that the transition of service

from the City to the Utility within the disputed areas be

accomplished so as to minimize interruption in water service.

2. Amended Judgment

On December 27, 1994, the City filed a motion for a new trial

and a motion to alter or amend the judgment (City’s Motions). On

December 28, 1994, the Utility filed what it “captioned” as a6

motion for leave to amend its complaint (Utility’s Motion). On

January 27, 1995, the court overruled the City’s Motions, but took

the Utility’s Motion under advisement. In May 1995, the district

court issued an order which construed the Utility’s Motion as a

Rule 59(e) motion to amen d or alter the judgment and granted it

(Amended Judgment).

The Amended Judgement granted the same relief as the Original

Judgment. In addition, it clarified that the City must relinquish

to the Utility control of the water distribution infrastructures in

the disputed areas. On May 5, 1995, the City filed its amended

notice of appeal, challenging, inter alia

, the district co urt’s

findings of fact, its legal conclusions, and the re medy it

fashioned.

C. T HE C OMMISSION A GREES W ITH THE D ISTRICT C OURT

On May 30, 1995, the Commission issued a Cease and Desist

Order (Commission’s Order) at the request of the Utility. The

Texas Commission ruled that, as the disputed areas are within the

Certificated Area, the Utility had the exclusive right to provide

water in the disputed areas. As a result, the Commission’s Order

directed (1) the Utility to provide “continuous and adequate”

service to the disputed areas; (2) the City to continue providing

water service to the dis puted areas until the Utility initiates

service; and (3) the City to cease providing water service to the

disputed areas upon initiation of service by the Utility. The

Commission declined to order the City to relinquish control of the

water distribution infrastructures to the Utility, explaining that7 See Crisis Transp . Co. v. M/V Erlangen Express , 794 F.2d

185, 187 n.5 (5th Cir. 1986).

8 See id.

9 See First United Fin. Corp. v. S pecialty Oil Co., Inc. , 5

F.3d 944, 947 (5th Cir. 1993) (citing Anderson v. City of Bessemer

City, N.C. , 470 U.S. 564, 574 (1985)).

10 7 U.S.C. § 1926(b).

7 it did not have the power to do so. As a final instruction, the

Commission ordered the City and the Utility to “mend their fences,”

by filing applications to reflect the official boundaries of their

respective certificated areas.

II

DISCUSSION

A. T HE V IOLATION I SSUES :

1. Standard of Review

We review a judgment on the merits of a n onjury civil case

applying the usual standards of review. 7 Thus, we review

conclusi o ns of law de novo and findings of fact for clear error. 8

If the district court's account of the evidence is plausible in

light of the record viewed in its entirety, we may not reverse even

if we are convinced that, had we been sitting as the trier of fact,

we would have weighed the evidence differently. 9

2. The Statute: 7 U.S.C. § 1926(b)

The initial issue in this appeal centers around Section

1926(b). 10 That section provides in pertinent part:

The service provided or made available through any such

[indebted water] association shall not be curtailed or

limited by the inclusion of the area within the

boundaries of any municipal corporation or other public11 Id. (emphasis added).

1 2 Wayne v. Of Sebring , 36 F.3d 517, 527-28 (6th Cir. 1994),

cert. denied , 115 S.Ct. 2000 (1995); J ennings Water, Inc. v. City of North Vernon, Ind.

, 895 F.2d 311, 315 (7th Cir. 1989);

Glenpool Util. Auth. v. Creek County Rural Water Dist. No. 2 , 861

F.2d 1211, 1214 (10th Cir. 1988), cert. denied

, 490 U.S. 1067

(1989); City of Madison, Miss. v. Bear Creek Water Ass'n., Inc.

, 816 F.2d 1057, 1059 (5th Cir. 1987); N orth Shelby Water Co. v. Shelbyville Mun. Water & Sewer Comm’n , 803 F.Supp. 15, 21 (E.D.

Ky. 1992); P inehurst Enter., Inc. v. Town of Southern Pines

, 690

F.Supp. 444, 451 (M.D.N.C.1988), af f'd , 887 F.2d 1080 (4th Cir.

1989); M oore Bayou Water Ass'n., Inc. v. Town of Jonestown, Miss.

, 628 F.Supp. 1367, 1369 (M.D.Miss. 1986); R ural Dist. No. 3 v.

Owasso Util. Auth. , 530 F.Supp. 818, 824 (M.D.Okla. 1979).

13 816 F.2d at 1060-61.

8 body, or by the granting of any private f ranchise for

similar service within such area during the term of said

loan

. . . . 11

The service area of a federally indebted water association is

sacrosanct. Every federal court to have interpreted § 1926(b) has

concluded that the statute should be liberally interpreted to

protect FmHA-indebted rural water associations from municipal

encroachment. 12

In City of Madison, Miss. v. Bear Creek Water Ass’n Inc.

, 13 we

held that § 1926(b) “indicates a congressional mandate that local

governments not encroach upon the services provided by such [water]

associations, be that encroachment in th e form of competing

franchises, new or additi o nal permit requirements, or similar

means.” We explained that the history behind this section

indicates two congressional purposes: (1) to encourage rural water

development by expanding the number of potential users of such

systems, thereby decreasing the per-user cost, and (2) to safeguard

t he viability and financial security of such associations (and1 4 Id. at 1060 (citing S.Rep. No. 566, 87th Cong., 1st Sess.,

reprinted in 1961 U.S. Code Cong. & Admin. News 2243, 2309).

15 See 7 U.S.C. § 1926(b); see also City of Madison 816 F.2d

at 1059; Glenpool , 861 F.2d at 1214.

16 See Tex. Water Code Ann. § 13.001(b)(1),(2) & § 13.250(a)

(West 1988 & Supp. 1995); s ee also Commission’s Order (“[The

Utility] holds the CCN for the five [disputed] subdivisions . . .

and has the legal right to solely serve those subdivisions.”).

1 7 See Tex. Water Code Ann. 13.250(a) (Ve rnon 1988 & Supp.

1995)(“[A]ny retail public utility that possesse s a . . .

9 FmHA's loans) by protec ting them from the expansion of nearby

cities and towns. With this background, we turn to the violation

issue. 14

3. Did the City Violate § 1926(b)?

To secure the protections of § 1926(b) the Utility must

establish that (1) it has a continuing indebtedness to the FmHA,

and (2) the City has encroached on an area to which the Utility

“made service available.” 15 As of the end of 1993, the Utility owed

the FmHA approximately $12,000,000. The City does not contest that

the first, “indebtedness” element is satisfied. Instead, it

contends that the Utility failed to establish the second, “made

service available” element. We disagree.

Under Texas law, the Certificate gives the Utility the

exclusive right to serve the area within its CCN and obligates it

“to serve every consumer within its certified area and

. . . render

continuous and adequa te service within the area or areas.” 1 6 We

hold that the Utility’s state law duty to provide service is the

legal equivalent to the Utility’s “making service available” under

§1926(b). 17 When confronted with a similar issue, other courts havecertificate of public convenience and necessity shall serve every

consumer within its certificated area and shall render continuous

and adequate service within the area or areas.”)(emphasis added).

18 Glenpool

, 861 F.2d at 1214 (“made service available”

requirement satisfi ed if state law requires utility to provide

service within a certified area).

1 9 North Shelby ,803 F.S upp. at 21 (“made service available”

requirement satisfied when utility has water lines running

throughout disputed areas).

10 reached the same result, holding that when state law obligates a

utility to provide water service, that utility has, for the

purposes of § 1926(b), “made service available.” 18

In the alternative, the district court found as a factual

matter that the Utility had “made service a vailable.” 1 9

Specifically, the district court made three findings of fact

relevant to this conclusion: (1) The Utility currently provides

water service to subdivisions adjacent to the disputed areas; (2)

the Utility has lines and adequate facilities to provide service to

the disputed areas; (3) the Utility has not refused service to

anyone who has reques ted service within the Certificated Area.

These findings of fact are not clearly erroneous. Accordingly, on

the strength of these alternative legal and factual determinations,

we affirm the district court’s conclusion that the Utility had

“made services available” to the disputed areas. As a result, we

also agree with the holding of the district court that the City

violated § 1926(b).

4. Does § 1926(b) Violate the Tenth Amendment?

Before turning to the issues of remedy, we pause to address

the City’s constitutional challenge to § 1926(b). For the first2 0 Footnote 8 of the district court’s opini o n explicitly

states, “[n]o Tenth Amendment argument has been made in the present

case.”

2 1 Singlet on v. Wulff , 428 U.S. 106, 120 (1976); T homas v. Capital Sec. Services , 836 f.2d 866, 884 n.25 (5th Cir. 1988)(en

banc).

2 2 Verden v. C&B Boat Co., Inc.

, 860 F.2d 1 50, 155 (5th Cir.

1988).

2 3 City of Madison

, 816 F.2d at 1060 (“[W]e perceive no

significant limitation on the city’s powers by virtue of a statute

enacted to protec t FmHA’s subsidy of rural water authorities.”);

see also Helvering v. Davis , 301 U.S. 619 (1936)(“When money is

spent to promote the general welfare, the concept of welfare or the

opposite is shaped by Congress, not the states. So the concept be

not arbitrary, the locality must yield”).

2 4 Peach es Entertainment Corp. v. Entertainment Repertoire

Assoc. , 62 F.3d 690, 693 (5th Cir. 1995).

11 time on appeal, the City insists that § 1926(b) represents an

illegitimate exercise of the Congress’ p ower under the Spending

Clause. 20 We will not consider an issue that a party fails to raise

in the district court, absent extraordinary circumstances. 21

Extraordinary circumstances exist when the issue involved is a pure

question of law and a miscarriage of justice would result from our

failure to consider it. 22 Such extraordinary circumstances do not

exist here. As this court has previously addressed a similar

constitutional challenge (and resolved it contrary to the City’s

position), 23 we follow our general for feiture rule and decline to

consider the issue.

B. T HE I NJUNCTION I SSUES :

1. Standard Of Review

The panel reviews the district court’s grant or denial of a

permanent injunction for abuse of discretion. 24 The district court25 Id.

2 6 See

, e.g.

, City of M adison , 816 F.2d at 1059 (enjoining a

city from annexing subdivisions within a utili ty’s certificated

area after finding violation of § 1926(b)); s ee also Jennings

12 abuses its discretion if it (1) relies on clearly erroneous factual

findings when deciding to gra nt or deny the permanent injunction

(2) relies on erroneous conclusions of law when deciding to grant

or deny the permanent injunction, or (3) misapplies the factual or

legal conclusions when fashioning its injunctive relief. 25

2. Was Injunctive Relief Appropriate?

The City urges that the district court’s conclusions that the

Utility would have suffered irreparable harm and had no adequate

legal remedy were “clearly erroneous.” The City asserts that the

record contains no factual basis for such a conclusions. We

disagree. The record reflects the following facts: (1) the Utility

is indebted to the FmHA; (2) in the disputed areas the City has

encroached on the Utility’s service area; and, (3) as a result, the

Utility would lose revenue exceeding $365,000 a year if the City’s

encroachment went unabated. The district court held (and we have

now affirmed) that, as a legal and factual matter, the Utility had

“made service available” to the disputed areas. In other words,

unless the City is prevented from violating § 1926(b), the Utility

will lose $365,000 in annual revenue.

Section 1926(b) does not create or specify a remedy for the

enforcement of violations, but an injunction has been the principle

tool employed by the courts with which to enforce the statute and

prevent violations. 26 Given these circumstances, we hold that theWater

, 895 F.2d at 315 (a violation of §1926(b) provided sufficient

basis for the issuance of an injunction).

2 7 The district court’s injunction has forbidden the City to

provide or offer to provide water service within the entire

Cert ificated Area. This injunction, albeit broad, does not

constitute an abuse of discretion. The Utility, by virtue of its

indebtedness to the FmHA and state law duty to provide “continuous

and adequate” service to the C ertificated Area, Tex. Water Code

Ann. 13.250(a), has satisfied the requirements of § 1926(b) with

respect to the entire Certificated Area. Thus, § 1926(b) protects

the entire Certificated Area from encroachment by the City.

Nevertheless, it would have been more prudent to limit the

injunction to the disputed a reas, the particular portion of the

Utility’s servi ce area at the heart of this litigation. As the

Commission was not a party to this litigation, we assume the

district court intended this injunction to apply only to these

parties and not to limit the Commissions’ power to regulate or

redraw the Certificated Area. Such an injunction, purporting to

control the a ctions of the Commission, a state regulatory body,

would create a considerably more difficult federalism question:

Namely, does § 1926(b) also preclude a state regulatory agency from

modifying the service area of a federally indebted utility. But,

we leave that issue for another day.

28 Rule 65(d) provides in pertinent part as follows:

Every order granting an injunction and every restraining order

shall set forth the reasons for its issuance; shall be

specific in terms; shall describe in reasonable detail, and

not by reference to the complaint or other document, the act

or acts sought to be restrained . . .

13 record contains ample evidence to support the injunction. 27

3. Is The Injunction Sufficiently Specific?

Next, t he City complains that the district court’s judgment

fails to satisfy the requirements of Rule 65(d). 28 In the form of

a laundry list of specious quibbles and rhetorical questions, the

City urges that the injunction is vague, uncl ear, and imprecise.

We find that none of these flaws to be present. The injunction is

sufficient ly and reasonably detailed and specific to permit the

tra nsfer of water service from the City to the Utility.14

Transferring water service from the City to the Utility will be a

relatively complicated logistical task, requiring a coordinated

effort by both parties. The burdens of any disruption in service

will fall more heavily on the residents than on the parties. With

an eye on these potential pitfalls, the district court instructed

the City to continue uninterrupted water service until the Utility

is prepared to commence service, then to cease providing water

service immediately upon commencement of service by t he Utility.

Although this order does not choreograph every step, leap, turn,

and bow of the transition ballet, it specifies the end results

expected and allows the parties the flexibility to accomplish those

results. Like the district court, we trust that, despite their

differences regarding the right to service the disputed areas, the

parties will work together to achieve a smooth transition with no

interruption in water service and a minimum of inconvenience to the

residents of the disputed areas.

4. Was the Judgment Properly Amended?

The City argues that the district court lacked jurisdiction to

amend the Original Judgment and order the City to give the Utility

control of the water distribution infrastructures in the disputed

areas. First, the City argues that the district court’s decision

to construe the Motion as a Rule 59(e) motion was “clearly

erroneous.” Although the City cites no authority for this

conclusional proposition, it seems to be arguing that, as a matter

of law, a district court cannot construe a motion to amen d the

complaint as a Rule 59(e) motion. We have found no support for29 See Fed.R.Civ.P. 8.

30 See Fed.R.Civ.P. 59(e).

31 See id. (“A motion to alter or amend the judgment shall be

served not later than 10 days after entry of the judgment.“).

32 See Fed.R.Civ.P. 6(a).

15 this proposition.

As a general matter, the caption on a pleading does not

constrain the court’s treatment of a pleading. For example, Rule

8(f) instructs district courts to construe all pleadings so as to

do substantial justice, while Rule 8(c) counsels that when a party

mistakenly designates a defense as a counter- claim or vice-versa

the court shall, if justice so requires, treat the pleading as

though it had the proper designat ion. 2 9 Thus, the district court

could construe the motion as a Rule 59(e) motion so long as the

requirements of Rule 59(e) are met.

Rule 59(e ) requires that a motion call into question the

correctness of the judgment and be served within ten days after the

ent r y of the judgment. 30 The City does not contest the first

element, but attempts to obfuscate the second by arguing that the

Utility failed to serve its motion within the ten day limitation

period. 31 According to the district court’s docket sheet, the

Original Judgment was entered on December 15, 1994. The

limitations period under Rule 59(e) is less than 11 days, so under

Rule 6(a) the date on which the judgment was entered, weekends, and

federal holidays are not counted “in computing the period of time

prescribed or allowed by these rules.” 32 Under this computation3 3 Four weekend days and the Christmas holiday account for the

extra five days.

34 547 F.2d 888, 891 (5th Cir. 1977).

3 5 Fed.R.Civ.P. 54(c) (“[E]very final judgment shall grant the

relief to which t h e party in whose favor it is rendered is

entitled, even if the party has not demanded such relief in the

party’s pleadings.”); see also International Harvester

, 547 F.2d at

891.

16 method, the Utility had from December 15, 1994 until December 30,

1994 to serve a Rule 59(e) motion. 33 As the City avers that it

received a copy of the motion on December 29, 1994, the motion was

timely under Rule 59(e). Accordingly, we hold that there was no

legal impediment to construing the Utility’s Motion as a Rule 59(e)

motion and that the motion was timely under Rule 59(e).

5. The Water Distribution Infrastructures

The City argues that the district court abused its discretion

when it ordered the City to relinquish the water service

infrastructures to the Utility because the relief was unrequested

and if granted would prejudiced the City. Citing I nternat ional

Harvester Credit Corp. v. East Coast Truck

, 34 the City insists that

when the failure to demand the re lief granted prejudices the

opposing party, the district court abuses its discretion.

We conclude that in ordering the transfer of the

infrastructures to th e Utility, the district court did not abuse

its discretio n. Rule 54(c) vests district courts with broad

discretion to fashion a remedy, even if the remedy awarded is not

specifically requested in the prayer fo r relief. 3 5 Although we

recognize that Harvester places some limits on the district court’s3 6 We do not know from the record or the briefs of the parties

by what means or for what prices, the City came into possession of

the infrastructures in the disputed areas. In P ublic Utility

Comm’n of Tx. v. Southwest Water Serv., Inc. , 636 S.W.2d 262, 263

n.1 (Tex.Ct.App.--Austin 1982, writ ref’d n.r.e.), the practices of

the Texas water and sewer utility industry were described as

follows:

Water and sewer utilities serving suburban or rural areas acquire their facilities, particularly the water and

sewer pipe mains and their connections to individual

houses or businesses, f rom the developer of a

subdivision. The developer will normally incur the

original cost of installing the pipe and setting up the

system. More often than not, the developer will recoup

the cost of installation of the system when he sells

houses in the subdivision. For federal income tax

17 dis cretion, those limits are modest indeed and clearly were not

exceeded here. The law gives the Utility the exclusive right to

provide water service to and within the disputed areas. We are

under the impression that the dev elopers of the subdivisions

installed the infrastructures and ceded them to the City without

charge. The infrastructures are indispensable to providing water

service to the residents of the subd ivisions now that the

development is complete. Thus, unless the infrastructures are

transferred, the Utility would not be able to provide efficient and

economical water service, and the rights of the Utility that are

validated here would be useless.

We are, however, concerned that the City may not receive just

and adequate compensation for those items comprising the

infrastructures, if any, that the City may have furnished. We have

been unable to determine precisely how the City obtai ned the

infrastructures or any portions thereof other than a s uggestion

that they received them gratuitously from the developers. 36 Thus,purposes, the developer is also allowed to deduct the

cost of the system from the income he receives from the

sale of the lots or houses. The developer will then sell

or donate the in-place water and sewer system to a newly

created utility company. Often, this utility company will

be one of several affiliate compa nies owned by the

developer or the development company. Later, when the

utility company is operating and seeks to increase the

rates it charges its customers, the company will seek to

include this property in its rate base as invested

capital. Of course, inclusion of this property in the

rate base will expand the rate base and increase the

amount of return on the invested capital the utility is

entitled to receive in the form of increased rates.

Customers of the util ity often complain that they are

charged twice for the same property-once when they buy

the house or lot (and the developer has computed the cost

of the sy stem into the purchase price) and second when

the u tility is allowed an increased return on invested

capital becau se the property is included in the rate

base.

Be that as it may, we do not know which if any of the s e generalizations apply in this case.

18 we remand only this sub -issue to the district court for it to

determine (1) whether the City paid for the infrastructures or any

p ortions thereof, and (2) if so, the amount of just and adequate

compensation that should be paid to the City for its reasonable

costs and expenses in that regard.

6. Are The Applications Preempted by § 1926(b)?

The district court enjoined the City from pur suing the

Applications with the Commission. The City argues that this aspect

of the district court’s i njunction impermissibly interferes with

the legitimate exercise of the State of Texas’ regulatory powers.

Amicus Texas Rural Water Association urges that the district

court’s injunction would be impermissible only if it functioned as

a limitation or prohibition of the power of the State of Texas to19

enforce the minimum requirements for the protection of public

health and safety. We hold that these issues were rendered moot by

the Commission’s Order.

As discussed above, § 1926(b) grants broad protection to

federally indebted utilities. In this case, we need not probe the

outer limits of that grant. Instead, we decide only the issues

presented in this appeal: (1) whether the City, by providing water

service to the disputed areas, has violated § 1926(b); and (2) if

so, what is the appropriate remedy in response to that particular

violation. The district court held, as both a factual and legal

matter, that the Utility has the exclusive right to provide water

service to the disputed areas. The Commission, in a ruling

congruent with that of the distri ct court, declared that the

Utility had the exclusive right to provide water service to the

disputed areas. With that order, the Applications--which sought a

ruling from the Commission that the Utility did not have the

exclusive right to provide water service to the disputed areas--

became moot. Accordingly, we need not address that issue here.20 III

CONCLUSION

We affirm the district court’s judgment that the City violated

§ 1926(b). We also affirm that court’s injunction except as to

that part which omits a determination of possible repayment of

costs and expenses, if any, incurred by the C ity in acquiring or

improving the inf rastructures. In that limited respect only, we

remand for the district court to consider and, if necessary, to

modify its injunction consistent with this opinion.

AFFIRMED, in part, and REMANDED, in part.