The opinion of the court was delivered by: Arcara, District Judge.
Plaintiffs commenced this action on April 15, 1985. The case
was originally assigned to the Honorable John T. Elfvin.
Plaintiffs filed an Amended Complaint on December 31, 1985. The
Amended Complaint states two causes of action. The first cause
of action asserts a claim under 16 U.S.C. § 803(c).*fn1 The
second cause of action asserts a state law negligence claim.
Plaintiffs seek both compensatory and punitive damages, as well
as an injunction enjoining the Power Authority of the State of
New York ("PASNY") from future operation of its power plant in
such a manner as to cause serious damage to their property.
Plaintiffs moved for a preliminary injunction on December 31,
1985. In a Memorandum and Order dated February 26, 1987, Judge
Elfvin denied the motion. 654 F. Supp. 641 (W.D.N.Y. 1987). The
case was transferred to this Court on April 19, 1989. The trial
was scheduled to begin May 1, 1991. However, during a final
pretrial conference, the Court raised sua sponte the issue of
subject matter jurisdiction. The parties were given an
opportunity to brief and argue their respective positions.
After reviewing the submissions of the parties and hearing
argument from counsel, the Court finds that plaintiffs' first
cause of action under 16 U.S.C. § 803(c) fails to state a claim
upon which relief can be granted and must therefore must be
dismissed. Further, the Court finds that it lacks subject
matter jurisdiction over plaintiffs' request for injunctive
relief. Finally, the Court declines to exercise pendent
jurisdiction over plaintiffs' state law negligence claim.
The Niagara River is actually a strait that connects Lakes Erie
and Ontario. It flows from south to north with the United
States on the east bank and Canada on the west bank. At one
point, a large island known as Grand Island, causes the River
to divide into two channels. The East Channel flows between
Grand Island and the United States, while the West Channel
flows between Grand Island and Canada. The East and West
Channels then join together again before the water flows over
Niagara Falls. The portion of the River upstream from the Falls
is commonly referred to as the Upper Niagara River. See Map
attached as an Appendix A of this Decision.
Plaintiffs are riparian property owners in the State of New
York located along the East Channel of the Niagara River. PASNY
is a corporate municipal instrumentality and political
subdivision of the State of New York, operating pursuant to
Article 5, Title 1 of the New York State Public Authorities Law
for the purpose of generating, selling and transmitting
electric power and energy. PASNY is licensed by the federal
government pursuant to the Federal Power Act ("FPA"), 16 U.S.C. § 791a
et seq., and currently operates a power plant
utilizing the waters of the Niagara River. This power plant is
known as the Niagara Project.
This case has a lengthy background. On January 11, 1909, the
United States and Canada signed the Boundary Waters Treaty of
1909 ("1909 Treaty"). 36 Stat. 2448 (1909); T.S. No. 548. The
purposes of the 1909 Treaty were: (1) to provide guidance for
the use of boundary waters; and (2) to provide a forum for
resolving questions that might arise regarding the use of such
waters. See Miller v. United States, 583 F.2d 857, 860 (6th
Cir. 1978); Soucheray v. United States Army Corps of Eng'rs.,
483 F. Supp. 352, 353 (W.D.Wis. 1979). The 1909 Treaty
established an International Joint Commission ("IJC"),
comprised of three members from each country, to approve and
regulate the diversion, obstruction and use of boundary waters.
The 1909 Treaty also regulated the use of Niagara River water
by establishing minimum flows of water over Niagara Falls.
After the 1909 Treaty went into effect, there was interest in
diversion of additional water from the Niagara River for power
production. A Special International Niagara Board was
established to study additional power development. See S.Doc.
No. 128, 71st Cong., 2d Sess. (1929). The Board submitted a
report to the United States and Canada in 1929. Id.
In 1950, the United States and Canada concluded the Treaty
Concerning Uses of the Waters of the Niagara River ("1950
Treaty"). TIAS 2130. The 1950 Treaty provided for the
completion of remedial works in the Niagara River above Niagara
Falls necessary to carry out the objectives envisaged in the
Special International Niagara Board's 1929 report. See Art.
II of the 1950 Treaty. The 1950 Treaty also superseded the
limitation in the 1909 Treaty on diversion of water from the
Niagara River and authorized a substantial increase in the
amount of water that could be diverted for power production.
See Art. III, IV and V of the 1950 Treaty.
Following ratification of the 1950 Treaty, the Canadians
promptly proceeded to construct additional hydroelectric
facilities on their side of the River to take advantage of the
increased diversions authorized under the 1950 Treaty. In 1953,
the United States and Canadian governments approved IJC
recommendations concerning design and construction of the
remedial works. In August, 1953, the IJC established the
International Niagara Board of Control ("Niagara Board") to
supervise the construction and operation of the remedial works.
The purpose of the remedial works is to regulate the flow of
water over the Falls and permit increased diversions of water
for power production without affecting the water levels that
previously existed in the Upper Niagara River. The remedial
works include: the Chippawa-Grass Island Pool Control Structure
("Control Structure"); several excavations in the bed of the
River at the Canadian Falls; excavation of the Tower Island
shoal near the Control Structure; and excavation of the ice
escape channel between the power intakes on the American side
and the Tower Island area. See Map attached at Appendix B of
The principal remedial work is the Control Structure. The
Control Structure contains eighteen gates and extends
approximately three-fifths of the way across the River from the
Canadian shore, about 5,000 feet upstream from the crest of the
Canadian Falls. It forms a pool in the River, known as the
Grass Island Pool, that extends from the Control Structure
upstream in both the East and West Channels of the River. The
Control Structure permits regulation of the flow of water over
the Falls to meet the specific flow requirements of the 1950
Treaty, and regulation of the water level in the Grass Island
As previously stated, one of the goals of the Control Structure
and the other remedial works was to permit the additional
diversion of water for power production and regulation of the
flow over the Falls without affecting the relationship between
the total river flow and the water levels in the Grass Island
Pool. In order to achieve this goal, the Niagara Board issued a
Directive in 1955 concerning the maintenance of water levels in
the Grass Island Pool and operation of the Control Structure.
In 1973, the Niagara Board issued a revised
Directive regulating the water levels in the Grass Island Pool.
Both Directives dealt in part with the subject of ice
In 1957, Congress enacted the Niagara Redevelopment Act
("NRA"), 16 U.S.C. § 836 et seq. The NRA directed the Federal
Power Commission ("FPC"), succeeded in 1977 by the Federal
Energy Regulatory Commission ("FERC"), to issue a license to
PASNY "for construction and operation of a power project with
capacity to utilize all of the United States' share of the
water of the Niagara River permitted to be used by
international agreement." NRA, 71 Stat. 401, 16 U.S.C. § 836(a).
The FPC issued a license for the Niagara Project to
PASNY in January, 1958. 19 F.P.C. 186.
The license expressly authorizes PASNY to divert from the
Niagara River all of the United States' share of waters
permitted to be used by international agreement. Further, as
required by 16 U.S.C. § 803(c), the license specifically
reserves to FERC the right to regulate PASNY's use of the
Niagara River waters for the protection of life, health and
property. The Niagara Project began operation in 1961.
Compliance with the 1950 Treaty flow requirements is achieved
by operation of the Control Structure and by diversions of
water to the United States and Canadian hydroelectric plants.
See Item 19, Hollmer Affidavit ¶ 10. Diversions of water for
power production to the Niagara Project and at two of the four
locations on the Canadian side of the River are made from the
Grass Island Pool. More specifically, the Control Structure
diverts water from the Grass Island Pool into the intakes of
the power plants on each side of the River. The diverted water
is then used for power production before being returned to the
River downstream. The gates of the Control Structure can be
manipulated so as to regulate the amount of water that is
diverted for power production. Id. at ¶ 11. This regulatory
process requires close coordination between PASNY and its
Canadian counterpart, Ontario Hydro. Id. at ¶ 13. In
particular, all decisions regarding diversions of water from
the River for power production, operation of the Control
Structure, and ice control operations are made on a
consultative and coordinated basis by the two power entities.
Ice conditions on the Niagara River can significantly affect
the flow of the River and the operation of the Control
Structure. Id. at ¶ 14. Consequently, PASNY and Ontario Hydro
have jointly developed procedures for minimizing the effect of
ice on the flow of the River and the operation of the Control
Structure. These procedures include, inter alia, installation
of an ice boom in Lake Erie at the entrance of the Niagara
River, operation of two ice-breaking vessels in the Grass
Island Pool and procedures for monitoring ice conditions. Id.
The procedures are described in the Niagara River Ice Control
Manual that has been prepared jointly by PASNY and Ontario
Hydro. See Item 12, Copy of Niagara River Ice Control
Manual attached at Plaintiff's Motion for Preliminary
The instant action arises out of severe weather and ice
conditions on the Upper Niagara River in January and February
1985. Plaintiffs allege that during this period, PASNY caused,
through its operation of the Niagara Project, an ice jam that
in turn caused flooding and ice damage to their property. More
specifically, plaintiffs allege that during the severe weather,
PASNY negligently diverted an excessive quantity of water into
its power intakes thus causing the River to flow in a reverse
direction in the East Channel, and that this reverse flow, in
turn, caused flooding and ice damage.
"'Federal subject matter jurisdiction may be raised at any time
during litigation and must be raised sua sponte by a federal
court when there is an indication that jurisdiction is
lacking.'" Alumax Mill Prods., Inc. v. Congress Fin. Corp.,
912 F.2d 996, 1002 (8th Cir. 1990) (quoting Hughes v.
Patrolmen's Benevolent Ass'n of City of New York, Inc.,
850 F.2d 876, 881 (2d Cir.), cert. denied, 488 U.S. 967, 109
S.Ct. 495, 102 L.Ed.2d 532 (1988)). Federal courts, unlike
state courts, are courts of limited, not general, jurisdiction.
As stated earlier, plaintiffs' Amended Complaint asserts two
causes of action. The first asserts a claim under 16 U.S.C. § 803(c).
The second asserts a state law negligence claim.
Plaintiffs argue that § 803(c) creates a private federal cause
of action and, therefore, the Court has subject matter
jurisdiction over the first cause of action under
16 U.S.C. § 825p.*fn2 With regard to the state law negligence claim,
plaintiffs argue that the Court has pendent jurisdiction.
PASNY, on the other hand, argues that § 803(c) does not create
a private federal cause of action and, therefore, the Court
lacks subject matter jurisdiction over plaintiffs' first cause
of action. Further, PASNY argues that, even if § 803(c) creates
a private cause of action for money damages, the Court still
lacks subject matter jurisdiction to grant injunctive relief
because the use and diversion of water from the Niagara River
are subject to international treaties and are under the
jurisdiction of the IJC and FERC. PASNY agrees with plaintiffs,
however, that the Court should exercise pendent jurisdiction
over plaintiffs' state law negligence claim even if the §
803(c) claim is dismissed.
When determining whether a federal statute provides a private
litigant a cause of action, "`[t]he ultimate issue is whether
Congress intended to create a private cause of action.'"
Karahalios v. Nat'l Fed'n of Fed. Employees, 489 U.S. 527,
109 S.Ct. 1282, 103 L.Ed.2d 539 (1989) (quoting California v.
Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68
L.Ed.2d 101 (1981)). "Unless such `congressional intent can be
inferred from the language of the statute, the statutory
structure, or some other source, the essential predicate of
implication of ...