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Elliot v. City of New York

September 8, 2008

BARBARA MEI ELLIOT ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK ET AL., DEFENDANT.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION & ORDER

Plaintiffs bring this action against the City of New York and its agencies and bureaus, including, inter alia, the City of New York Department of Environmental Protection ("DEP") (collectively, "Defendant" or "City").*fn1 Plaintiffs make a number of allegations, all of which revolve around the City's alleged failure to properly operate and maintain the Neversink Reservoir and Neversink Dam during March and April 2005.

The fourth claim of Plaintiffs' Second Amended Complaint alleges that the City violated 42 U.S.C. § 1983 ("Section 1983") by depriving Plaintiffs of their substantive liberty and property interests without due process of law, and by failing to comply with provisions of the Endangered Species Act ("ESA") and Clean Water Act ("CWA"). Defendant moves to dismiss this Section 1983 claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. In response, Plaintiffs counter-move for a more definite statement of Defendant's third affirmative defense (immunity under the Water Supply Act) and to dismiss Defendant's fourth affirmative defense (accord and satisfaction).

For the reasons stated herein, Defendant's Motion to Dismiss the fourth claim of Plaintiffs' Second Amended Complaint is granted, and Plaintiffs' cross-motion is denied as moot.

I. Background

A. Factual Background

The following facts are alleged in the Second Amended Complaint and are presumed true for purposes of the instant motion.

Plaintiffs own and/or reside on property located in Sullivan County and/or Orange County, New York -- areas downstream from the Neversink Reservoir and Neversink Dam. (SAC ¶¶ 2, 6.) The Neversink Reservoir contains "approximately 34.9 billion gallons of water, is contained by the 195 foot high Neversink Dam, and is located at an elevation of 1,440 feet . . . ." (Id. ¶ 52.) Plaintiffs "use the lower Neversink River and its habitat for recreational, aesthetic and scientific purposes . . . [,]" and "derive recreational, aesthetic and scientific benefits from the existence of the Neversink River through wildlife observation, study, photography, and recreational fishing on and about the lower Neversink River." (Id. ¶ 8.)

The City owns, operates, and maintains the Neversink Reservoir and Dam. (Id. ¶¶ 11-12.) The Neversink Reservoir supplies water to the Neversink River through releases, spills, and leakage from the Neversink Dam, which in turn determines the Neversink River's flow. (Id. ¶¶ 15, 17.) The City, through the DEP, is responsible for operating and maintaining the Neversink Reservoir and Neversink Dam "in compliance with the rules or regulations for releases, promulgated by the New York State Department of Environmental Conservation . . . ." (Id. ¶¶ 13-14.) One of these regulations states that "[w]henever the . . . Neversink [R]eservoir is spilling, the city shall, in order to improve fishery habitat in the river flowing below such

[R]eservoir, release water from such reservoir up to a maximum amount which equals the amount of water which would otherwise be spilling from such [R]eservoir, or the capacity of the valves, whichever is lesser." N.Y. Comp. Codes R. & Regs. tit. 6, § 671.3(b)(2) (2008) ("Section 671.3(b)(2)").

In March and April 2005, Defendant allegedly implemented a Neversink Reservoir and Dam policy entitled "fill and spill," which violated the existing regulation. (SAC ¶ 21.) According to Plaintiffs, this new policy violated Section 671.3(b)(2) because it permitted the City to "'fill[]' the Neversink Reservoir until it 'spills' over into the Neversink River," thus allowing "the Neversink Reservoir to continuously fill without any offsetting water releases, even as the Reservoir [i]s already spilling, and without regard to predicted and anticipated spring rainfalls and known and predicted spring snow melt." (Id. ¶¶ 21-22.) By following this "fill and spill" policy, the City aimed to retain all the water in the Neversink River for the Reservoir system, subject only to "certain minimum water releases mandated by an Amended Decree of the Supreme Court of the United States . . . ." (Id. ¶¶ 21, 23.) Plaintiffs allege that in implementing this policy, the City "did not consider, address, or account for" the policy's impact upon, among other things: river flooding; river silting and sedimentation; river turbidity; critical habitats of the dwarf mussel and other endangered species; the flora and fauna along the riverbed; the maintenance and repair of the Neversink Reservoir and Dam; the City's water demand; and the safety of downriver residents and communities. (Id. ¶ 24.)

Starting around March 16, 2005, the Neversink Reservoir was filled to capacity and was spilling continuously. (Id. ¶ 36.) In the weeks that followed, storms and snowmelt added to the problem. On March 28--29, 2005, a rainstorm "contributed approximately 2.12 inches to the already-filled [and spilling] Neversink Reservoir." (Id. ¶ 39.) In late-March and early-April, a massive volume of melting snow added "approximately 7.8 billion gallons of water to the Neversink Reservoir." (Id. ¶ 40.) Finally, during a heavy rainstorm from April 2 through April 4, 2005, "approximately 3.5 inches of rain fell into the Neversink Reservoir." (Id. ¶ 46.)

While the Neversink Reservoir was continuously spilling, "the [C]ity . . . closed pre-existing diversions like the Neversink Tunnel for non-emergency repairs." (Id. ¶ 42.) The Neversink Tunnel, an aqueduct owned by the City, diverts water from the Neversink Reservoir to the Rondout Reservoir. (Id. ¶ 32-33.) In the years prior to 2005, the City used the Neversink Tunnel to divert water from the Neversink Reservoir to the Rondout Reservoir during early spring in order to absorb excess rainfall and snowmelt. (Id. ¶ 47.) The past use of this means for diverting water typically "left the Neversink Reservoir at approximately 80% of capacity, on average, as opposed to the more than 100% of capacity in April 2005." (Id. ¶ 48.) In addition, the City allegedly neglected to implement a "flood management program to release and divert water," despite the City's supposed familiarity with this type of management plan. (Id. ¶¶ 42-44.) These actions contributed to the Neversink Reservoir and Dam's continuous spillage in late-March and early-April 2005.

The City finally "became concerned" with the state of the Neversink Dam on or about April 2, 2005. (Id. ¶ 56.) An "earthen" dam structure, the Neversink Dam was already beyond its fifty-year life expectancy in 2005, and allegedly had not been regularly maintained or dredged by the City. (Id. ¶¶ 25-28, 31.) The City's "fill and spill" policy is said to have exacerbated the risk of failure and collapse of this kind of dam, because "[r]eservoirs filled to capacity place additional stress and pressure on earthen dams, and spillage over the top of earthen dams hastens the decline in the Dam's integrity." (Id. ¶ 53.)

As a result of these concerns, on or about April 2, 2005, the City "elected to open release valves located at or near the base of the Neversink Dam" as an "emergency safety protocol" to reduce pressure on the Dam. (Id. ¶¶ 56-57.) The opening of the release valves "released a torrent of water, both in volume and velocity, into the Neversink River" that was "comparable to a tsunami or storm surge in a hurricane." (Id. ¶ 58.) The "wall of water" created by the release of the valves exceeded the historical "500 year" flood levels in the area, even though the April 2-4 storm did not qualify as even a "50 year" storm. (Id. ¶¶ 65, 67.) The valves also released accumulated silt and sediment into the lower Neversink River. (Id. ¶ 61.) Once opened, the City could not close the release valves and, instead, further opened the valves "in an attempt to regain control of the mechanisms of the valves." (Id. ¶ 59.) The valves failed because of the City's "failure to maintain the[] valves by regular cleaning of the accumulated silt and debris." (Id. ¶ 60.) Furthermore, the City failed to notify Plaintiffs prior to its decision to open the valves, giving Plaintiffs no warnings, evacuation notices, or time to implement emergency safety plans. (Id. ¶ 66.)

As a result of this flooding, Plaintiffs suffered, inter alia, considerable damage to their land, buildings, and possessions, and now feel less secure in the use and enjoyment of their land. (Id. ¶ 71.) In addition, the flooding caused drastic harm to the neighboring environment, in particular the Neversink River's flora and fauna. (Id.)

B. Procedural Background

Plaintiffs filed their original Complaint on January 13, 2006, in New York Supreme Court, Sullivan County. The City subsequently removed the case to this Court and then moved to dismiss the case on grounds of subject matter jurisdiction, res judicata, and governmental immunity. On October 5, 2006, Judge McMahon, to whom this case had previously been assigned, denied the City's Motion to Dismiss.*fn2 In that same Decision and Order, however, Judge McMahon dismissed without prejudice all but one of Plaintiffs' federal and statutory claims for failure to meet the minimal pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. See Mei v. City of New York, No. 06-CV-296, 2006 WL 2997111 (S.D.N.Y. Oct. 6, 2006). Judge McMahon then granted Plaintiffs one final opportunity to amend their Complaint to identify the specific statutes violated by the City, and to identify how and why the violation of such statutes arose under federal law. See id at *13 ("Plaintiffs should take care to ascertain whether there exists any private right of action under each such statute, and to plead facts sufficient to give them standing to assert such a claim. . . . And plaintiffs are cautioned that this is the last time they will be permitted to amend their complaint. They should think carefully about what claims they really want to assert -- and whether those claims really arise under Federal law."). On April 7, 2007, nearly six months after the previous Decision and Order, Plaintiffs filed their Second Amended Complaint.*fn3 On June 7, 2007, the City filed a Motion to Dismiss Count Four of the Second Amended Complaint for failure to state a claim pursuant to Federal Rule 12(b)(6). In response, Plaintiffs filed a cross-motion to dismiss the third and fourth affirmative defenses asserted in Defendant's Answer -- immunity under the Water Supply Act and accord and satisfaction, respectively. The Court held oral argument on May 22, 2008.

II. Discussion

A. Standard of Review under ...


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