Amdel Pipeline Inc. v. State (541 S.W.2d 821, 1976)

REAVLEY, Justice.

This case presents a question of the statutory authority of the State Parks and Wildlife Department to require those persons dredging materials from state owned tidal lands to obtain permits and to pay for spoil removed by the dredging.

Amdel Pipeline Inc. (Amdel), acting pursuant to a permit from the United States Army Corps of Engineers, removed materials which had silted into and filled the bottom of the approaches to its loading docks on the Neches River; the dredged material was deposited upon land owned by Amdel but subject to a perpetual spoil disposal easement of the United States. Am-del contends that existing statutes do not require it to obtain a permit from the State Parks and Wildlife Department (Department) to perform this work under these circumstances. Amdel further contends that it owes nothing to the Department or to the State for the spoil removed from the river bottom. The Department contends that Amdel may remove no material from these submerged lands except by approval of the Department and, in this case, by the payment of 25$ per cubic yard for the materials removed. The trial court sustained the position of the Department and rendered judgment that the State recover $28,-865.72 from Amdel. The Court of Civil Appeals held that the disposition of the cause depends upon the amount of certain elements in the dredged materials and, because that proof is absent from the present record, the case was remanded to the trial court for further development. 530 S.W.2d 647. We sustain Amdel’s position and render judgment in its favor.

Amdel owns and operates oil storage and ship terminal facilities on the Neches River near Port Neches and adjacent to the refinery of American Petrofina Company. The ship terminal facilities consist of three wharves or docks, one of which can accommodate large tankers. Tankers reach these docks through the Neches River Channel.

The Neches River Channel is a federal navigation project, approximately 40 feet deep and 400 feet wide, providing deep draft ship navigation from the Gulf of Mexico as far inland as the Port of Beaumont. Maintenance of this channel and project is the responsibility of the United States Army Corps of Engineers. In order to provide the local contribution and assure maintenance of the federal project, the Beaumont Navigation District has obligated itself to the United States to provide all easements for spoil disposal, to provide and maintain levees on all spoil disposal areas, and to provide “depths in berthing areas and local access channels serving the terminals commensurate with depths in related project areas.”

Amdel’s ship terminal facilities are located adjacent to the Neches River Channel at a sufficient distance to insure that ships moored to its docks do not obstruct navigation in the channel. The use of these dock facilities requires deep water between the channel and the dock. When Amdel acquired these facilities on July 1, 1973, it discovered that the water approach areas had become filled to an extent that blocked the movement of deep draft vessels. The Corps of Engineers was then engaged in a maintenance program to clear the Neches River Channel, which afforded Amdel the opportunity to engage the services of the dredging contractor when the operations reached the site of Amdel’s facilities.

When the Neches River Channel is dredged by the Corps of Engineers, the material dredged from the river bottom is placed on land near the river. There is no location in the river suitable for this material to be placed. The United States has been given permanent easement rights in areas along the river for spoil disposal in this manner. One of these spoil disposal areas of approximately 435 acres is located on a tract of land owned by Amdel and adjacent to its ship facilities. Under its easement the United States has the perpetual right to deposit spoil and other excavated matter from the channel. This spoil disposal area has been used for nothing except disposal of dredged material since December 23, 1935. Material dredged from the river bottom between Amdel’s docks and the Neches River Channel has on all occasions been placed in the same disposal area used by the Corps of Engineers.

In 1973 Amdel applied for and received a dredging permit from the Corps of Engineers to conduct the maintenance dredging of the area adjacent to its dock facilities. The dredging has been completed under the permit which was conditioned upon Amdel obtaining such permits as might be required under state law. The Texas Parks and Wildlife Department required Amdel to obtain a permit conditioned upon Amdel’s payment of 25