Miller v. U.S.
| Decision Date | 31 August 1978 |
| Docket Number | No. 76-1694,76-1694 |
| Parties | Allan C. MILLER and Betty G. Miller, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Allan C. Miller, Betty G. Miller, Tawas City, Mich., for plaintiffs-appellants.
James K. Robinson, U. S. Atty., Detroit, Mich., Edward J. Shawaker, Carl Strass, Raymond N. Zagone, Appellate Sect., Land and Natural Resources Division, Dept. of Justice, Washington, D.C., for defendant-appellee.
Before WEICK and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.
Rivers and lakes mark more than half of the 3,500 mile border between Canada and the United States, and over the years many problems have arisen concerning the use and diversion of these waters and their tributaries for irrigation, navigation, flood control and electric power. In this case Allan and Betty Miller, owners of lakefront property on Lake Huron near Saginaw Bay, claim that the combined effect of two hydroelectric dams in Canada, and the operation of locks and flood gates at the outlet of Lake Superior near Sault Ste. Marie, have caused high water in the lower lakes. They claim that the United States supported construction of the Canadian dams and that the United States Corps of Engineers operates the locks and flood gates at Sault Ste. Marie in conjunction with an international commission. They seek damages from the United States for alleged flooding and erosion caused by rising water levels and an increased flow of water in Lake Huron. The District Court dismissed their complaint, 410 F.Supp. 425 (E.D.Mich.1976), and they appeal. We affirm in part and reverse in part for fact-finding on specific questions.
Specifically, the Millers say that the dams and the operation of the locks and flood gates have made the low water levels of Lake Huron higher, that the lake levels have varied up to 4.4 feet since 1965, and that the process of erosion has been aggravated by disruption of the littoral drift, by the destruction of protective beach barriers, and by the action of fall winds on the increased volumes of water. They said at oral argument that they had lost approximately 6,000 square feet of their lakefront lot since 1968 and that as a result their residence is now much closer to the lake.
The Millers claim that the diversion of two rivers in northern Ontario (the Kenogami River at Long Lac and the Ogoki River) has artificially increased the amount of water flowing into Lake Superior and that the release of water from Lake Superior into Lake Huron at Sault Ste. Marie has in turn raised the levels and increased the velocity of water in Lake Huron.
The Millers allege that the United States, "acting in concert with Canada . . . erected diversion dams at Long Lac and Ogoki, which reversed the (northerly) flow of these streams" from Hudson Bay into the Lake Superior watershed. The diversions are shown on the map of the Great Lakes region printed as Exhibit A in the Appendix. They claim that these Canadian dams divert from 5,000 to 10,000 cubic feet of water per second into Lake Superior and that the United States Army Corps of Engineers, in concert with the International Joint Commission of the United States and Canada (the "IJC"), then "dumps" all of the water into the lower lakes, through locks and floodgates at Sault Ste. Marie, thereby maintaining Lake Superior at an "unnaturally" low level. We take judicial notice that it was the Hydroelectric Power Commission of Ontario which erected the dams and diverted the waters of the two Canadian rivers. It did so with the approval of the Province of Ontario and the approval of the Canadian Government and with the consent of the United States, as expressed by an executive agreement consisting of an exchange of notes between Secretary of State Cordell Hull and the Canadian Foreign Minister in October and November of 1940. 1
The Millers have stated three theories of recovery against the United States. First, they claim that the indemnification provisions in the Boundary Waters Treaty of 1909 between the United States and Canada 2 create a basis for recovery against the United States for actions affecting boundary waters. Second, they claim that the United States has "taken" their property through construction and operation of canals and control works at the outlet of Lake Superior, and that compensation must be paid under the Fifth Amendment to the Constitution and the Tucker Act. 3 Finally, they claim damages under the Federal Tort Claims Act, 4 alleging negligent operation of the canal locks and control gates by the Corps of Engineers at Sault Ste. Marie.
The District Court correctly dismissed the Miller's claim under the 1909 treaty. The treaty does not create additional private rights of action for a United States citizen against his own government. The Ogoki and Long Lac diversions, moreover, are not within the subject matter governed by the treaty nor are they within the jurisdiction of the IJC, the international monitoring agency created by the treaty. 5
The purpose of the Boundary Waters Treaty of 1909 was "to prevent disputes regarding the use of boundary waters" and "to make provision for the adjustment and settlement" of questions "between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other." To this end, the treaty establishes the IJC, which performs certain judicial, investigative, administrative and engineering functions. It has the authority to approve or prohibit and to regulate the obstruction or diversion of certain waters, and the United States and Canada agree not to allow construction of such projects without IJC approval. (Articles III, IV, VIII).
The Millers claim a right of action under one paragraph of Article VIII of the treaty which allows the IJC to insist on compensation of citizens in certain situations "as a condition of its approval" of a project. Article VIII, however, limits the scope of the compensation requirement to citizens "on the other side of the line" from the project in question. The pertinent paragraph of Article VIII provides:
In cases involving the elevation of the natural level of waters On either side of the line as a result of the construction or maintenance On the other side of remedial or protective works or dams or other obstructions in boundary waters or in waters flowing therefrom or in waters below the boundary in rivers flowing across the boundary, the Commission shall require, as a condition of its approval thereof, that suitable and adequate provision, approved by it, be made for the protection and Indemnity of all interests on the other side of the line which may be injured thereby. (Emphasis added.)
For example, if Canada proposes construction of a dam in certain Canadian waters, the United States and Canada agree under Article VIII that the IJC will not approve unless Americans injured by the dam are indemnified. Under Articles III and IV, moreover, the Canadian government has promised that it will not allow construction of such a dam without IJC approval. Canada breaks its treaty obligations to the United States if it permits construction before the IJC approves. We emphasize, however, that the only Treaty-made obligations which are broken are those of Canada to the United States. Certainly the United States, even if it fails to make diplomatic representations or actively encourages the dam construction in Canada, has violated no treaty-created obligations to its own citizens.
Conversely, if the United States allows someone to build a dam in the specified American waters without IJC approval, and Canadians are injured as a consequence, the United States has violated its treaty obligations to Canada under Articles III, IV, and VIII. The United States has not, however, violated any treaty-made obligations to its own citizens, even if Americans as well as Canadians have been injured by the project. 6
Thus we see that disputes between the Millers and their own government have no place in the treaty context of Article VIII. The United States and Canada each have agreed to take responsibility for international effects of certain domestic actions. The Millers, however, clearly do not request "trans-boundary" indemnification arrangements with Canada, but rather seek damages from their own government. We understand the treaty and the establishment of the IJC to be a means of providing for peaceful adjustment of interests between the United States and Canadian governments as representatives of their citizens. The two countries in signing the treaty agreed to accept responsibility for the international repercussions of domestic water control projects, but there is no indication that the treaty also expresses an intent on the part of either government to accept new obligations vis-a-vis its own citizens.
The same principles apply to the other indemnity provision of the treaty on which the Millers rely. Article II provides that a government or person engaged in "interference with or diversion" of certain waters will have the same obligation to compensate injured citizens "on the other side of the boundary" as it has to compensate local citizens:
(A)ny interference with or diversion from their natural channel of (waters which in their natural channels would flow across the boundary or into boundary waters) on Either side of the boundary, resulting in any injury On the other side of the boundary, shall give rise to the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs. . . . (Emphasis added.)
This compensation provision leaves the citizen to pursue his rights against his own government under...
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