Soucheray v. Corps of Engineers of US Army, 74-C-109.

• Decision Date: 07 November 1979
• Docket Number: No. 74-C-109.,74-C-109.
• Citation: 483 F. Supp. 352
• Parties: Susan SOUCHERAY et al., Plaintiffs, v. CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

483 F. Supp. 352

Susan SOUCHERAY et al., Plaintiffs, v. CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants.

No. 74-C-109.

United States District Court, W. D. Wisconsin.

November 7, 1979.

Allan R. Koritzinsky, Rikkers, Koritzinsky & Rikkers, Madison, Wis., for plaintiffs.

Frederick J. Erhardt, Asst. U. S. Atty., Madison, Wis., Andrew F. Walch, Asst. Atty. Gen., Land & Natural Resources Division, U. S. Dept. of Justice, Washington, D. C., for defendants.

OPINION AND ORDER

LARSON, Senior District Judge, sitting by designation.

This lawsuit involves complex and delicate questions regarding the actions taken by an international agency in regulating water levels in the Great Lakes basin. Both parties have moved for summary judgment. Summary judgment is properly granted only when no genuine issue of material fact remains and a party is entitled to judgment as a matter of law. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976); Federal Deposit Ins. Corp. v. Balistreri, 470 F.Supp. 752, 754 (E.D.Wis.1979). The Court has decided that summary judgment may appropriately be awarded to the defendants.

This action has a lengthy background.¹ On January 11, 1909, the United States and Canada agreed to the Boundary Waters Treaty of 1909. 36 Stat. 2448; T.S. No. 548. The Treaty's purpose was to settle any questions which might arise regarding the use of the waters along the two countries' borders. The Treaty establishes an International Joint Commission, composed of three members from each country, to approve and regulate the diversion, obstruction, and use of boundary waters.

In 1913 a Canadian and an American company applied to the Commission for permission to build dams and compensating works at the head of St. Marys River, which provides the outlet from Lake Superior to the lower Great Lakes. Orders of Approval for the project were issued in 1914.

The Commission found that the works would allow maintenance of Lake Superior water levels within a more restricted range than previously possible. The range of levels, measured by the monthly mean, for the preceding fifty years had been 3.5 feet. The new works would allow confinement of levels within 2.5 feet, and ordinarily within 1.5 feet — between surface elevations of 600.5 and 602.0 feet.² The Commission found that "under proper international joint control the levels of said lake may be regulated so as to benefit navigation and reasonably protect the property and interests, public and private, in both countries above said works." 1914 Orders of Approval, Paragraph 6 (emphasis added).

Therefore, as a condition of control and operation, the Commission required that the works "be so operated as to maintain the level of Lake Superior as nearly as may be between the levels 600.5 and 602.0 and in such manner as not to interfere with navigation." Id., Conditions As To Control And Operation, Condition 5 (emphasis added). To ensure the correct functioning of the works, a Lake Superior Board of Control was created. The American member of the Board is the Division Engineer of the North Central Division of the Army Corps of Engineers. The Canadian member is the Director General, Ontario Region, Inland Waters Directorate, Department of Fisheries and the Environment. The Board's duty is to "formulate rules under which the compensating works and power canals and their head gates and by-passes shall be operated so as to secure as nearly as may be the regulation of Lake Superior as set forth herein." Id. Condition 7 (emphasis added). See also Condition 5.

The Board of Control has adopted a series of regulation plans. The first was in 1916, the "Sabin plan." That plan was supplanted in 1941 by "Rule P-5," which allowed increased outflows for wartime power generation. The "Rule of 1949" was next; it took into account increased supplies to Lake Superior from water diversions in Canada. This was replaced by the "1955 Modified Rule of 1949."

In the early 1970's heavy precipitation raised the levels of the Great Lakes. By 1972, Lakes Michigan and Huron were at such high levels that serious damage was occurring to shoreline property. Congressmen in that area met with the President, requesting that action be taken to prevent further damage. The State Department applied to the International Joint Commission for emergency relief from the high water levels in the lower lakes, suggesting amendment of the 1914 Orders of Approval. No amendment was forthcoming, but in the spring of 1973, the Commission ordered the Lake Superior Board of Control to reduce outflows from Lake Superior on a temporary basis. On June 29, 1973, the Commission directed the Board to continue to diverge from the 1955 Modified Rule of 1949, using a plan "SO-901" as a guide. This plan considered the levels of the lower lakes in determining discharge from Lake Superior. SO-901 was used as a guide beyond the time when the emergency on Lake Huron ended, March 31, 1977. Plan 1977, a refinement of SO-901, was used as the guide beginning on October 4, 1977. On October 3, 1979, the Commission ordered formal adoption of Plan 1977 as the rule for regulation of Lake Superior water levels. On the same date it amended the 1914 Orders of Approval in several respects. The Orders now specifically allow the Board to take the lower Great Lakes' water levels into account when setting outflows from Lake Superior. This amendment was in accord with the recommendations resulting from a decade-long study by the Commission of the future regulation of the Great Lakes. See International Joint Commission, Further Regulation of the Great Lakes (1976). Plan 1977 and the amended orders probably will result in higher monthly means, but they continue to stress that the lake level remain below 602.0 feet.

The individual plaintiffs are landowners on the Lake Superior shoreline. They claim that the increased water levels in Lake Superior have inundated their property and caused erosion and other damage to the shoreline and lake. Several organizations have joined as plaintiffs, alleging harm from the high water to their property, business or environmental interests. The defendants are the Secretary of the Army, the Chief of Engineers of the Corps of Engineers, and the Division Engineer of the North Central Division of the Corps of Engineers, who is the United States member on the Lake Superior Board of Control.

Plaintiffs filed their original complaint on April 1, 1974. Amended complaints were filed on December 22, 1975; June 16, 1978; and July 24, 1978. The gist of plaintiffs' claims is that the change in regulation of Lake Superior outflows which resulted in higher water levels was improper and illegal. They argue that use of plan SO-901 was contrary to the 1914 Orders of Approval. It is alleged that the defendants were without authorization under United States law to implement SO-901 and that their actions in doing so were ultra vires, and violated plaintiffs' Fifth Amendment right to compensation before their property is taken. In addition, defendants are said to have violated the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq.; the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq.; and the National Historic Preservation Act, 16 U.S.C. §§ 470, et seq. Plaintiffs requested injunctive relief to prevent regulation of the lake based on SO-901 or plans like it, and a declaration that defendants' conduct constituted a taking of plaintiffs' property for public purposes without compensation.

On July 21, 1978, the defendants moved for summary judgment on several grounds. On August 8, 1978, plaintiffs made a cross motion for summary judgment. In their memorandum supporting the motion for summary judgment, the plaintiffs asked for an injunction preventing implementation of the new regulation plan "until the International Joint Commission officially issues other Orders of Approval supplanting or modifying the 1914 Orders of Approval." Because the October 3, 1979, action of the Commission allows regulation of Lake Superior with consideration of other Great Lakes' levels, the Court believes that plaintiffs' request for future injunctive relief is now moot. However, in the interest of fairness to the parties and because of possible future proceedings, the Court will explain why it believes plaintiffs would not be entitled to relief even if the request for an injunction had not been mooted.

The actions taken in changing the outflow from Lake Superior were actions taken under the International Joint Commission's authority and direction. By signing the Treaty of 1909, the United States gave up any control over the diversion, obstruction and use of boundary waters. Therefore, the increased water level in Lake Superior is not attributable to the United States. Edison Sault Electric Co. v. United States, 552 F.2d 326, 333 (Ct.Cl. 1977). Although the United States is not a defendant here, its lack of responsibility for the complained-of actions is important because plaintiffs' Fifth Amendment rights protect them only against governmental action.³ Similarly, any actions by the named defendants were undertaken as agents or representatives of the International Joint Commission and the Lake Superior Board of Control, not as employees of the United States. Id. at 334. Therefore, the United States is not responsible for their conduct as it relates to the regulation of Lake Superior.

The fact that the regulation of Lake Superior is conduct attributable to the International Joint Commission, not the United States, is important for at least two other reasons. First, the Commission and its employees or representatives are immune from suit under 22 U.S.C. §§ 288a(b), 288d(b). Edison Sault Electric Co. v. United States, supra, at 336. See Restatement (Second) of Foreign Relations § 85 (1965). The immunity is provided for "acts performed by them in their official capacities and falling within their function as such representatives, officials or...