to liability for damages, was enacted to benefit the United
States by exculpating it from liability for any damages caused
by its licensees. It was not intended to create a new federal
cause of action for injured riparian property owners.
Plaintiffs argue that this interpretation of the statute does
not make sense since the United States was already protected
from suit under the doctrine of sovereign immunity. There are a
number of reasons, however, why Congress might have deemed it
prudent to add this exculpatory language. First, Congress may
have wanted to make it clear that the United States was not
waiving its sovereign immunity. Second, Congress may have
wanted to make it clear that licensees do not acquire sovereign
immunity merely because they are licensed by the United States.
Finally, Congress may have wanted to make it clear that the
United States would not be liable under the Fifth Amendment for
acts committed by licensees. For example, if a riparian
property owner's land is permanently flooded due to the
construction, operation or maintenance of a licensee's project
works, § 803(c) makes clear that it is the licensee, not the
United States, who must pay the owner just compensation for the
taking of his or her property.
2. Legislative Intent
Where, as here, the resolution of an issue turns on the
construction of a federal statute and the intention of
Congress, the Court must "look first to the statutory language
and then to the legislative history if the statutory language
is unclear." Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct.
1541, 1548, 79 L.Ed.2d 891 (1984). While the language of §
803(c) makes it clear that the FPA does not shield licensees
from liability for damages occasioned by the construction,
maintenance or operation of project works, the statute does
not, on its face, resolve the question of whether the liability
of licensees is to be determined according to state law or a
new federal tort law. See South Carolina Pub. Serv. Auth. v.
FERC, 850 F.2d 788, 794 (D.C.Cir. 1988). Nor does it specify
whether an injured property owner may bring suit against a
licensee in federal court. Thus, since the language of the
statute is unclear, the Court must turn to the legislative
history of § 803(c) in order to determine Congress' intent.
As the Supreme Court has noted, the legislative history of the
FPA "discloses both a vigorous determination of Congress to
make progress with the development of the long idle water power
resources of the Nation and a determination to avoid
unconstitutional invasion of the jurisdiction of the States."
First Iowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152, 171, 66
S.Ct. 906, 915, 90 L.Ed. 1143 (1946); see id. at 174, 66
S.Ct. at 916 (quoting remarks of Rep. William L. LaFollette, 56
Cong.Rec. 9810: "We are earnestly trying not to infringe the
rights of the States.").*fn3
Congress' determination to avoid invasion of the jurisdiction
of the States is reflected in the legislative history of §
803(c). See South Carolina Pub. Serv. Auth., 850 F.2d at
794-95 (provides summary of legislative history of § 803(c)).
The original version of § 803(c), reported to the House of
Representatives by the Committee on Water Power, provided in
No license hereunder shall have the effect of relieving the
licensee from liability for any injury or damages occasioned by
the construction, maintenance, or operation of said project
works; and the United States shall in no event be liable
H.R.Rep. No. 715, 65th Cong., 2d Sess. (1918). During the floor
debate in the
House, Representative Graham of Illinois proposed that § 803 be
amended to require licensees to make advance payment or
settlement of damages prior to construction according to the
laws of the state where the project was to be built. 56
Cong.Rec. 9913-14 (1918). While Representative Dempsey objected
to the amendment on the ground that it would be impracticable
to make licensees settle "in advance before they can know the
amount of the settlement," no one challenged the premise that
damages should be determined according to state law. See id.
Thus, both the original version of the statute and the Graham
amendment, which was accepted, clearly demonstrate that it was
Congress' intent to preserve any existing cause of action for
damages under state law.
While the original version of the statute and the Graham
amendment were later superseded, in conference with the Senate,
by the current language of § 803(c), the Conference Report,
H.R.Rep. No. 1147, 65th Cong., 3d Sess. 16 (1919), does not
indicate any intention to abandon the principle that property
damages caused by licensees should be determined according to
state law. Thus, the Court finds that the intent of Congress,
as readily demonstrated through the words spoken by its members
during the course of debate on § 803(c), was that any liability
for damages resulting from the construction, maintenance or
operation of power works would be borne by the licensees and
that the substantive law to be applied in determining liability
for, and the amount of, damages would be state tort law. Most
courts that have considered the meaning of § 803(c) have
similarly concluded that Congress intended simply to preserve
any existing cause of action under state law. See, e.g., South
Carolina Pub. Serv. Auth., 850 F.2d at 794-95; Pike Rapids
Power Co. v. Minneapolis, St. P. & S.S.M.R. Co., 99 F.2d 902,
911-12 (8th Cir. 1938), cert. denied, 306 U.S. 640, 59 S.Ct.
488, 83 L.Ed. 1040 (1939); Beaunit Corp. v. Alabama Power
Corp., 370 F. Supp. 1044, 1050-51 (N.D.Ala. 1973); Key Sales
Co. v. South Carolina Elec. & Gas Co., 290 F. Supp. 8, 23
(D.S.C. 1968), aff'd, 422 F.2d 389 (4th Cir. 1970); Rice
Hope Plantation v. South Carolina Pub. Serv. Auth.,
216 S.C. 500, 59 S.E.2d 132, 140-41 (1950); Alabama Power Co. v.
Smith, 229 Ala. 105, 155 So. 601, 604 (1934); but see
Seaboard Air Line R.R. Co. v. County of Crisp, 280 F.2d 873,
87576 (5th Cir. 1960), cert. denied, 364 U.S. 942, 81 S.Ct.
460, 5 L.Ed.2d 373 (1961); DiLaura v. Power Auth. of the State
of New York, 654 F. Supp. 641, 644 (W.D.N.Y. 1987).
Assuming, as the legislative history suggests, that Congress
intended for § 803(c) merely to preserve existing state laws
governing damage liability of licensees, it follows that
Congress intended injured riparian property owners to bring
suit against licensees for damages in state, rather than
federal court. As the legislative history of the FPA makes
clear, Congress did not want to oust the States of their
traditional authority to determine property rights and rules of
liability in tort.*fn4 Nor did Congress intend that such
authority be shared by federal and state authorities. In First
Iowa Hydro-Elec., the Supreme Court expressly warned against
interpretations of the FPA that establish "futile duplication
of two authorities over the same subject
matter." 328 U.S. at 171, 66 S.Ct. at 915. The Court stated
In the [FPA] there is a separation of those subjects that
remain under the jurisdiction of the States from those subjects
that the Constitution delegates to the United States and over
which Congress vests the Federal Power Commission with
authority to act. To the extent of this separation, the [FPA]
establishes a dual system of control. The duality of control
consists merely of the division of common enterprise between
two cooperating agencies of government, each with final
authority in its own jurisdiction. The duality does not require
two agencies to share in the final decision of the same issue.
Id. at 167-68, 66 S.Ct. at 913.
Applying these principles to the instant case, the Court finds
that Congress did not intend for the determination of when
licensees would be liable to their neighbors for property
damages to be made in federal court. Instead, Congress intended
that such a determination would "remain under the jurisdiction
of the States," and would be decided exclusively by state
courts applying state tort law.*fn5 See South Carolina Pub.
Serv. Auth., 850 F.2d at 795.
3. Inconsistency in Implying a Private Cause of Action
As previously stated, the legislative history of § 803(c)
clearly establishes that Congress did not intend to create a
private federal cause of action. Instead, it only intended to
shield the United States from liability in suits brought by
parties damaged because of the construction, maintenance or
operation of project works. Thus, in view of Congress' intent
in enacting the statute, it would be inconsistent to find that
§ 803(c) creates a private federal cause of action.
4. Cause of Action Traditionally Relegated to State Law
Property rights and liability in tort have traditionally been
areas of state, not federal, law. South Carolina Pub. Serv.
Auth., 850 F.2d at 792 n. 3 (citing Georgia Power Co. v.
Sanders, 617 F.2d 1112 (5th Cir. 1980), cert. denied,
450 U.S. 936, 101 S.Ct. 1403, 67 L.Ed.2d 372 (1981) (relying, in
part, on the state's strong interest in avoiding the
displacement of its laws governing property rights, the court
concluded that state law should be applied to determine the
appropriate compensation in condemnation actions under the
FPA)). Thus, it would be inappropriate to infer that § 803(c)
creates new federal property rights on behalf of riparian
property owners or creates new liabilities in tort on behalf of
In sum, after applying the four-part test in Cort v. Ash, the
Court finds that it was not Congress' intent when it enacted §
803(c) to provide riparian property owners with a new federal
cause of action against licensees. Instead, Congress simply
wanted to preserve the right of injured property owners to
bring actions for damages against licensees in state court
under traditional state tort law, and to shield the United
States against liability.
While the Court initially raised the issue of subject matter
jurisdiction sua sponte, it now finds upon further
reflection, that the issue is really one of failure to state a
claim upon which relief can be granted.*fn6
Little is needed for a plaintiff to assert a claim sufficient
to give the federal court jurisdiction. Where the complaint `is
so drawn as to seek recovery under the Constitution or law of
the United States,' the district court must entertain the suit
unless the federal claim `clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or
where such claim is wholly insubstantial and frivolous.'
Spencer v. Casavilla,