The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
The Canadian St. Regis Band of Mohawk Indians brings this action to recover possession of certain islands in the St. Lawrence River. Plaintiffs also seek compensation from the federal defendants St. Lawrence Seaway Development Corporation and its administrator for flooding portions of their land without just compensation in violation of the Fifth Amendment to the United States Constitution. Presently before the court is the federal defendants' motion to dismiss plaintiffs' Fifth Amendment claim on the ground that it is time barred. For the reasons discussed below, the court grants the federal defendants' motion.
Plaintiffs are a Canadian Indian tribe. In this action they seek a declaratory judgment that they own and are entitled to possess the Croil
and Barnhart Islands, which are located in the St. Lawrence River. According to plaintiffs, New York transferred plaintiffs' islands in violation of the Treaty of Ghent and the Indian Nonintercourse Act. Plaintiffs also seek trespass damages for the period of dispossession. Their third claim for relief alleges that the St. Lawrence Seaway Development Corporation and/or the New York State Power Authority took portions of Barnhart and Croil Islands in violation of the Fifth Amendment when defendants flooded the islands. Plaintiffs are also suing the administrator of the St. Lawrence Seaway Development Corporation in his official capacity. The complaint does not allege that he acted beyond the scope of his authority.
The St. Lawrence Seaway Development Corporation is a federal corporation chartered under the laws of the United States. 33 U.S.C. § 981 et seq. It has the power to sue and be sued in its own name. 33 U.S.C. § 984(a)(3). In the 1950s the Corporation constructed the St. Lawrence Seaway Project. The project included the Robert Moses Power Dam, extending from the eastern end of Barnhart Island to the northern shore of the St. Lawrence River, and the Long Sault Spillway Dam, extending from the western end of Barnhart Island to the southern shore of the St. Lawrence River. The subsequent flooding that these dams caused submerged substantial portions of Barnhart and Croil Islands.
Plaintiffs filed the present action on October 15, 1982. The St. Lawrence Seaway Development Corporation and its administrator have moved to dismiss the claim against them as time barred. The federal defendants contend that plaintiffs' Fifth Amendment claim is in reality a suit against the United States under the Tucker Act, 28 U.S.C. § 1346(a)(2), and that the six-year statute of limitations of 28 U.S.C. § 2401(a) applies. According to the federal defendants, plaintiffs' claim against the Corporation is barred because it was filed more than six years after plaintiffs' land was flooded. Plaintiffs, however, argue that the "sue and be sued" clause in the Corporation's charter allows plaintiffs to sue the St. Lawrence Seaway Development Corporation on the same terms as a private litigant. They contend that no statute of limitations applies.
A motion to dismiss will be granted only if it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitled them to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir. 1985). The court's review is confined to the face of the complaint and any documents incorporated in the complaint by reference. Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985). The court must assume that the facts in the complaint are true and draw all reasonable inferences in the plaintiffs' favor Dwyer, 777 F.2d at 829; Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 54 (2d Cir. 1985).
The issue before the court is whether plaintiffs' claim against the federal defendants is in fact against the United States and thus time barred. A suit, however captioned, is one against the government if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration." Dugan v. Rank, 372 U.S. 609, 620, 10 L. Ed. 2d 15, 83 S. Ct. 999 (1963); Land v. Dollar, 330 U.S. 731, 738, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947); Blackburn v. Goodwin, 608 F.2d 919, 923 (2d Cir. 1979). Courts will also examine whether the corporation or agency was functioning as an instrumentality of the federal government. See Breitbeck v. United States, 205 Ct. Cl. 208, 500 F.2d 556, 557-58 (Ct. Cl. 1974).
Congress created the St. Lawrence Seaway Development Corporation in 1954, as a wholly owned federal corporation. 33 U.S.C. § 981 et seq. "The management of the Corporation [is] vested in an Administrator who [is] appointed by the President, by and with the advice and consent of the Senate. . . ." 33 U.S.C. § 982(a). The President also appoints the Advisory Board. 33 U.S.C. § 982(b). The Corporation's activities are under the Secretary of Transportation's supervision, and its tolls and other charges are subject to the President's approval. 33 U.S.C. §§ 981, 988. Moreover, the Corporation's functions al fall directly within the federal authority over interstate commerce. Breitbeck, 500 F.2d at 558. Congress has also authorized the Corporation to acquire property by condemnation, among other means. 33 U.S.C. § 984(a)(8).
The relevant legislative history reveals that Congress created the Corporation "as an instrumentality of the United States" to construct, operate, and maintain the United States' portion of the St. Lawrence Seaway.
S. Rep. No. 2150, 83rd Cong., 2d Sess., reprinted in, 1954 U.S. Code Cong. & Ad. News 2197, 2198. The Seaway was considered a vital element of the United States national security system. Id. at 2232. President Eisenhower in his State of the Union address, urged Congress to approve United States' participation in constructing the Seaway for both security and economic reasons. Id. at 2234.
The Court of Claims in Breitbeck considered whether the United States could be sued for a claim against the St. Lawrence Seaway Development Corporation. Employees of the St. Lawrence Seaway Development Corporation brought suit against the United States to recover wages owed to them by the Corporation. The United States moved to dismiss claiming that the Court of Claims had no jurisdiction because the suit was not one against the United States. The court held that because the Corporation was an agency of the United States accomplishing purely governmental purposes, a suit could be maintained in the Court of Claims against the United States. The court also noted that even though "Congress did attempt to make the agency self-supporting, in general,. . .there are likewise substantial indications that this was not to separate it wholly from the Treasury." Breitbeck, 500 F.2d at 559. After analyzing the Corporation's continued dependence on federal funds, the Court of Claims concluded, "There is in short, no such clear cleavage between the Corporation's own funds and those of the United States that one could say Congress wished to cut the agency entirely loose from the Treasury or from appropriated funds." Id.
In the present action the St. Lawrence Seaway Corporation was acting under express authorization to build the dams in question. S. Rep. 2150, 83rd Cong., 2d Sess., reprinted in, 1954 U.S. Code Cong. & Ad. News 2197, 2234. They were constructed for public navigation and power and for the national security, all governmental functions. Moreover, plaintiffs are asserting a Fifth Amendment claim.
They contend that the flooding caused by the dams constituted a taking of their property for public use without just compensation. A Fifth Amendment claim requires a public taking and must be asserted against a governmental entity. U.S. Const. Amend. V.; See e.g., Penn Central v. City of New York, 438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978); United States v. Causby, 328 U.S. 256, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946). Because only the government may take property for public use, the Corporation had to be acting as the instrumentality of the government when it appropriated plaintiffs' land. Any ...