Plaintiff, USS Cabot CVL 28 Association, Inc., an association of primarily
U.S. Navy veterans who served on the USS Cabot, sought a preliminary
injunction 1) ordering the Commander of the Eighth Coast Guard District to require
that a Dead Ship Tow Plan be submitted to plaintiff prior to any movement of
the ex-Navy aircraft carrier USS Cabot, a National Historic Landmark,
and 2) prohibiting the Commander from approving any Dead Ship Tow Plan for the
Cabot unless and until he has complied with the provisions of the National
Historic Preservation Act (NHPA).
Following its war days, the Cabot was transferred to Spain and then back
to the U.S. to one of the defendants, the USS Cabot/Dedalo Foundation,
Inc., a non-profit corporation, for the purposes of converting the vessel into
a museum. The ship was docked in New Orleans and then moved to Violet, Louisiana.
The ship was then transferred to another one of the defendants, Global Maritime
Group, LLC. The foundation entered into an agreement with Global to scrap the
Cabot. The Cabot was then moved to Port Isabel, Texas.
Plaintiff then filed this lawsuit because the Foundation/Global joint venture
planned to move the Cabot from Port Isabel to Brownsville where it would
be scrapped. Plaintiff made it clear that its interest was to prevent the scrapping
of the Cabot and that it had no particular interest in any movement of
the vessel, except to the extent it would result in the vessel's demolition.
Plaintiff contended that the approval of an additional Dead Ship Tow Plan by
the U.S. Coast Guard, which has extensive regulatory authority, is an "undertaking"
under NHPA.
The court found several serious questions in regards to the merits of plaintiff's
case. As a preliminary matter, the court stated that plaintiff had not shown
that, under the circumstances, the regulations required the Coast Guard to control
any further movement of the Cabot. Any decisions on further vessel movement
were left to the discretion of the District Commander and the Commander of the
Port (COTP). Further, plaintiff was unable to show that conditions mandating
action by the COTP currently existed. There was also a serious question as to
whether the movement of the Cabot from Port Isabel to Brownsville would
constitute an "undertaking" under NHPA.
However, the court refused to rule on this issue and decided to deny the petition
for a preliminary injunction on the issue of harm to the public interest. After
assuming that plaintiff had demonstrated irreparable harm, the court concluded
that the potential harm to plaintiff if the injunction did issue (i.e., moving
the vessel and scrapping it) did not outweigh the potential hardship to Global
and the foundation if the injunction were granted (i.e., losing the vessel through
capsizing or sinking in a storm due to its present location).
The court further found that the issuance of the preliminary injunction would
not be in the public interest. While acknowledging that there is a public interest
in the preservation of National Historic Landmarks such as the Cabot,
the court stated that the interest of public safety posed by the current location
and size of the Cabot was more important. In its current location, the
Cabot posed a threat to Port Isabel in the event of a tropical storm,
exposing the community to a risk of loss of life and damage to facilities and
the environment.
Since plaintiff could not show that the requested preliminary injunction would
not undermine the public interest, it failed to establish another of the necessary
prerequisites to the issuance of a preliminary injunction, and the court denied
the request.
In order to be granted a preliminary injunction, the movant must demonstrate
by a clear showing that 1) there is a substantial likelihood of success on the
merits; 2) there is a substantial threat of irreparable harm if the injunction
is not granted; 3) the threatened injury outweighs any harm that may result
from the injunction to the non-movant; and 4) the injunction will not undermine
the public interest. Bypassing the first issue, and assuming the second issue
in favor of plaintiff, the court found against plaintiff regarding the third
and fourth issues. The petition was, therefore, denied.
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