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DILAURA v. POWER AUTHORITY OF STATE OF N.Y.

December 2, 1991

J. GARY DILAURA, INDIVIDUALLY AND AS PRESIDENT OF WATERFRONT HOMEOWNERS ASSOCIATION OF WESTERN NEW YORK, ET AL., PLAINTIFFS,
v.
POWER AUTHORITY OF THE STATE OF NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Arcara, District Judge.

  DECISION AND ORDER

I.

INTRODUCTION

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.

II.

BACKGROUND

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 this Decision.

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 Pool.

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 conditions.

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. Id.

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 Injunction.

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.

III.

DISCUSSION

"'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. Id.

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.

A.

THE § 803(c) CLAIM

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 ...


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