The opinion of the court was delivered by: McMahon, J
DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Plaintiffs are owners and/or residents of property located downstream from the Neversink Dam ("the Dam") and Neversink Reservoir ("the Reservoir"), which are located on the Neversink River in Sullivan County, New York. Plaintiffs, on behalf of themselves and all others similarly situated, bring this action against the City of New York ("the City"), the owner and operator of the Dam and Reservoir, claiming that they suffered property damage as a result of flooding which occurred in April 2005. Plaintiffs allege both common law and state and federal statutory causes of action.
The City moves to dismiss the complaint pursuant to Rules 12(b)(1) and (6), on the grounds that (1) plaintiffs' interests are represented by the State of New York acting as parens patriae, and thus plaintiffs lack standing to bring the instant suit, (2) plaintiffs' claims are barred by res judicata, (3) the City has no duty to engage in flood control, (4) plaintiffs do not allege violation of a regulatory mandate, and (5) operation of the Dam is a discretionary exercise for which the City is immune from liability. Plaintiffs oppose the motion.
For the reasons discussed below, defendant's motion to dismiss is denied.
The relevant facts, as set forth in the complaint and in the May 24, 1954 Report of the Special Master in a lawsuit entitled State of New Jersey v. State of New York and City of New York (Sup. Ct., October Term 1950), are as follows:*fn1
The Neversink Dam and Reservoir
The Neversink Dam and Reservoir are operated by the City of New York through its Department of Environmental Protection (DEP). The Dam and Reservoir were constructed between 1941 and 1953; the Dam became operational in 1955. The Reservoir, which holds approximately 34.9 billion gallons of water, supplies about 10% of the drinking water for New York City. It receives water from the 93 square mile watershed of the Neversink River. After water enters the Reservoir, it is delivered to the City through a series of aqueducts and tunnels. When the Reservoir fills to capacity, excess water spills into a concrete spillway and down a ravine into the Neversink River, which is a tributary of the Delaware River. An aqueduct known as the Rondout Aqueduct can be used to divert water from the Reservoir and into the Rondout Reservoir, where water is transferred and stored before being further diverted to New York City.
The Dam that contains the Reservoir is 195 feet high and is located at an elevation of 1,440 feet outside of Liberty, New York in Sullivan County. It is an earthen dam structure, and plaintiffs allege that the normal life expectancy of the dam is fifty years. Plaintiffs also contend that the City did not perform regular maintenance on the Dam.
Because the City draws much of its drinking water from the Delaware River and its tributaries, four states (New York, New Jersey, Pennsylvania and Delaware) became involved in litigation in the United States Supreme Court. The litigation eventually resulted in an opinion and decree ("the Decree"). New Jersey v. New York, 347 U.S. 995 (1954). Pursuant to the Decree, the City of New York was permitted to impound drinking water from the Delaware and its tributaries (including the Neversink), but the imposition of minimum flow requirements protected minimum water flow for downstream states.
According to the complaint, the City's policy regarding the Neversink River and Dam was characterized as a "fill and spill" policy. The "fill and spill" policy means that, except for certain minimum water releases mandated by the Decree, the City fills the Neversink Reservoir until it spills over into Neversink River. Plaintiffs allege that this policy was designed to "preserve every last drop of water for the City's reservoir system, except as specifically mandated by the Amended Decree," (Am. Cplt. ¶ 12), without regard to any impact on river flooding, safety of downstream residents and communities and/or river ecology (id. at ¶ 13) or the impact of "fill and spill" on the maintenance and repair of the Dam. (Id. at ¶ 14.) The complaint contends that the risk of catastrophic earthen dam failure and collapse is significantly increased as a result of "fill and spill" policies.
Plaintiffs allege that, by March 28, 2005, the Neversink Reservoir was already filled and continuously spilling. They contend that the City knew or should have known that all additional water entering the Neversink Reservoir, whether from rain or snowmelt, would be spilled from the Reservoir into the Neversink River, unless the City diverted water from the Reservoir. However, the City made no attempt to divert any water. A rainstorm on March 28-29, 2005 added 2.12 inches of water to the already-full Reservoir, causing the Reservoir to spill continuously during that storm and thereafter, including during a second rainstorm that occurred between April 2 and 4, 2005, when another 3.5 inches of rain fell into the Reservoir.
The snowmelt associated with the spring thaw of March and April 2005 contributed an additional 7.8 billion gallons of water to the Reservoir.
Plaintiffs allege that the City should have known about the Neversink River's potential for flooding and that the "hording" [sic] of water in the Reservoir during that period was unnecessary. (Am. Cplt. ¶ 28.) Nonetheless, the City made no attempt to release water from the Reservoir gradually, or otherwise to divert water from the Reservoir, for purposes of water management. Indeed, the City allegedly even closed pre-existing diversions such as the Rondout Aqueduct for non-emergency repairs during this period. Plaintiffs contrast this with the City's flood management program at the nearby Pepacton Reservoir, which was reduced to 92.4% of capacity during the same period, as well as with the City's prior policy of diverting water from the Neversink into the Rondout Reservoir early each spring -- a diversion that could not occur during the heavy rains of 2005, because the Rondout Aqueduct was out of service.
Between April 2 and 4, plaintiffs allege that the City became concerned about the possibility that the Neversink Dam would collapse under the volume of water generated by its "fill and spill" policy, and so elected to follow an emergency protocol by opening the release valves at the base of the dam. This released a torrent of water into the Neversink River "comparable to a tsunami or storm surge in a hurricane." (Am. Cplt. ¶ 44.) Plaintiffs allege that the valves had not been maintained and were defective, and so could not be closed to control this water flow. A wall of water moved down the river, causing water levels to rise in excess of the "100 year" flood markers. This wall of water led to the flooding that destroyed or damaged plaintiffs' property. (Id. at ¶ 51.)
Plaintiffs assert both statutory and common law claims arising out of the Spring 2005 flooding.
In a single paragraph, plaintiffs allege that the City has committed 18 different non-common law violations, including violations of 42 U.S.C. § 1983; The New York State Environmental Conservation Law; the Dam Safety and Security Act of 2002; The Water Resources and Development Act of 1996; the "Conservation Law" of the United States (including 16 U.S.C. §§ 469 and 1278); OSHA; the New York State Industrial Code; the Federal Clean Water Act; the National Environmental Policy Act; the Navigation and Navigable Waters Act; the National Wild and Scenic Rivers Act of 1968; the Endangered Species Act of 1973; the Public Trust Doctrine; the New York City Administrative Code; the United States Constitution and the Constitution of the State of New York; "numerous" unidentified state and local statutes, ordinances and judicial directives, and the Amended Decree of the United States Supreme Court. (Id. at ¶ 64.) Plaintiffs refer to this omnibus allegation as their "statutory claims," although at least some of them are non-statutory in nature.
The complaint does not specifically allege what action or inaction by the City violated which statute, ordinance or judicial directive. There are few citations to specific sections of statutes that are allegedly violated.
In addition, plaintiffs plead a common law negligence claim. (Am. Cplt. ¶ 61.) Plaintiffs seek damages for the diminution or loss of the value of their real property, costs and expenses incurred in connection with their evacuation, relocation, temporary housing and moving; loss of income; loss of quality of life and psychological injuries; and something called "[o]ngoing expenses and damages in connection with the City's policies and procedures associated with the Neversink River and the Neversink Dam...." (Id. at ¶ 55.)
The 141 named plaintiffs have all filed notices of claim with the City, under the State's General Municipal Law. However, they purport to bring this action as a class action. For reasons not yet explained, they invoke Article 9 of New York's Civil Practice Law and Rules; obviously, they should have invoked Rule 23 of the Federal Rules of Civil Procedure. No motion for class certification has yet been made.
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a claim when the federal court "lacks jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). In considering a motion to dismiss for lack of subject matter jurisdiction, the court must assume the truth of the complaint's factual allegations. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). However, when resolving issues surrounding subject matter jurisdiction, a district court is not confined to the complaint and may refer to evidence outside the pleadings, such as affidavits. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (internal citations omitted). Plaintiff bears the burden of establishing the court's jurisdiction by a preponderance of the evidence. See Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). The court should consider a 12(b)(1) motion before ruling on any other motions to dismiss, as dismissal of an action for lack of subject matter jurisdiction will render all defenses and motions moot. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper where "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). The test is not whether the plaintiff ultimately is likely to prevail, but whether he is entitled to offer evidence to support his claims. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). As a general rule, "[i]n considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. ...