DiLaura v. Power Authority of State of NY
| Decision Date | 27 February 1987 |
| Docket Number | No. CIV-85-500E.,CIV-85-500E. |
| Citation | 654 F. Supp. 641 |
| Parties | J. Gary DiLAURA, Individually and as President of Waterfront Homeowners Association of Western New York and James Lewis, Individually and as Vice-President of Waterfront Homeowners Association of Western New York and Barbara Custodi, Individually and as Secretary of Waterfront Homeowners Association of Western New York and Richard Rozicki, Individually and as Treasurer of Waterfront Homeowners Association of Western New York and John Arent, Thomas E. Arida, Lawrence Barclay, Ralph Barker, Harry Board, Patricia A. Boies, Thomas Bosz, Richard Bowen, Richard Brown, Stanley Brzezinski, Joseph D. Calato, Leonard Cannello, Jack Carpenter, William Carr, Miro Catipovic, Edward L. Charsley, Century Club, Edgar Cooper, Joseph J. Costa, Roy Cotton, Jon A. Culbert, Walter Czapla, John T. Daniels, Thomas DeRemer, Wilfred J. Des Jardin, Ralph Engstrom, Hugo Filax, Forbes, Philip Galmabacher, Donald Gannon, Arthur Gehrman, Robert Hackett, Robert Hadden, James J. Hallett, Robert P. Harper, Edgar E. Harris, John W. Hartman, Gladys M. Heinrich, John B. Henshaw, John Hess, Richard M. Hesson, William F. Hesson, Marcy Hilts, Dominic Hofert, Sheldon Holland, Gary Hunt, Violet Iadicicco, Stanley W. Jarosz, John W. Jaruszawicus, John J. Jaruszawicus, Dwight Jeeves, Robert Jensen, Arthur Jocoy, Ray Jones, David K. Jordan, Lawrence C. Jugle, Phillip Julias, James Kearney, Walter Kendzia, Robert J. Kiedrowski, James Kimbrough, Gail R. Klementowski, Kenneth V. Klementowski, Alex Kollwitz, Ed Konecki, Richard Kraus, Steve Kurthy, Frank Kustra, Richard LeClaire, Verna L. Learman, Gary Lewis, Norman Lichtenthal, Daniel Linenfelser, Raymond Lippens, Jack Livermore, Harvey R. Mack, Patrick MacKenna, Margaret Malican, Blue Water Marina, Placid Harbor Marina, Charles Markarian, Robert Marlin, James W. Martin, Ronald R. McMamee, Daniel J. McMamee, Richard P. McBride, Paul McCarthy, Patrick M. McLaughlin, George McMurdo, Albert W. Merry, Louise E. Michaels, Jack Mikulski, Gustave Milkey, Arlene Mille, Charles F. Mohr, Richard Molnar, Jeffey L. Morgan, Richard G. Murray, Craig Neville, Jim Nicholas, Russell Nixon, Issac Pack, Arthur R. Page, Norman Parisi, Vincent Peri, Edward Pfohl, Robert Phillips, Kim Piccirelli, Ken Pieri, Bohdan Pikas, Richard H. Popp, Joel Radin, William Reagan, Elizabeth M. Reszel, Thomas Roberts, William Robinson, John Robinson, Richard Rozicki, Elmer C. Rumsey, Arthur Ruthowski, Edward L. Samulski, Allan F. Schreiner, Barbara C. Shedd, Wilfrid S. Sherk, William J. Simon, John R. Simon, Thomas Sliwa, Dennis Smith, Robin Smith, Joseph J. Smith, Richard Stange, Thomas J. Stedman, James Stephenson, Flora Stone, William C. Sundeen, Robert F. Swan, Dennis Szymanski, David Taylor, Louis W. Taylor, Patrick Tench, Douglas Tiebor, William E. Tisdale, Harry Tolli, Donald Tompkins, Aldo Urbani, Arthur Wade, Kenneth F. Wagner, Kenneth H. Walczak, Robert W. Weaver, Loretta L. Weaver, Norma Wedlake, Elsa Werstine, Thaddeus Weselak, Tony Wiatr, Donald Wilkinson, Frank Williams, LaSalle Yacht Club, Inc., William Young, Angelo Zino, Jr., and the Waterfront Homeowners Association of Western New York, Plaintiffs, v. POWER AUTHORITY OF the STATE OF NEW YORK, Defendant. |
| Court | U.S. District Court — Western District of New York |
John P. Bartolomei, Niagara Falls, N.Y., for plaintiffs.
Irving C. Maghran, Buffalo, N.Y., for defendant.
In this action the plaintiffs claim that the defendant ("PASNY") caused, through its operation and maintenance of an electrical power plant on the Niagara River, an ice jam which in turn caused flooding and damage to their property. They seek compensatory as well as punitive damages and protection from future damage to their real and personal property. The plaintiffs have moved for an order enjoining preliminarily PASNY from causing a repetition of flooding. Specifically, they seek to enjoin it from causing the Niagara River to flow in a reverse direction in an area adjacent to its water intake structures during river ice runs, to enjoin it from causing and/or maintaining an ice jam in the portion of the Niagara River immediately upstream from the intake structures and to require it to follow the ice control procedures detailed in the Niagara River Ice Control Manual (1984 Revision).1
A threshold question is whether this Court has jurisdiction over the claims asserted. In particular, significant questions have been raised concerning this Court's jurisdiction to grant the injunctive relief requested. The question of this Court's jurisdiction over the plaintiffs' claims for monetary damages is, however, more easily resolved.
In 1909 the United States and Canada agreed to the Boundary Waters Treaty of 1909, 36 Stat. 2448 ("the 1909 Treaty"). The purposes of the 1909 Treaty were to provide guidance for the use of boundary waters and to provide a forum for resolving questions which would thereafter arise regarding the use of such waters. See Miller v. United States, 583 F.2d 857, 860 (6th Cir.1978); Soucheray v. Corps of Engineers of U.S. Army, 483 F.Supp. 352, 353 (W.D.Wis.1979). To oversee and implement the 1909 Treaty's provisions the pact established the International Joint Commission ("the IJC") which was to be composed of three members from each country and which was to approve and regulate the diversion, obstruction and use of boundary waters. The 1909 Treaty regulated the use of Niagara River water by establishing minimum flows of water over Niagara Falls.
A second treaty, the Treaty Between the United States and Canada Concerning Uses of the Waters of the Niagara River, TIAS 2130 ("the 1950 Treaty"), authorized greater water diversion from the Niagara River for power production and provided for the construction of remedial works upon the recommendation of and under the supervision of the IJC for the purpose of regulating water flow. As with the 1909 Treaty the 1950 Treaty regulates the amount of water which may be diverted from the Niagara River by prescribing certain minimum flows of water over Niagara Falls.
In 1957 Congress enacted the Niagara Redevelopment Act ("the Act"), 16 U.S.C. § 836 et seq. The Act directed the Federal Power Commission, succeeded in 1977 by the Federal Energy Regulatory Commission ("FERC"), to issue a license to PASNY "for the 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." 16 U.S.C. § 836(a). PASNY, a corporate municipal instrumentality of the State of New York, acquired its license under this Act.
In this action the plaintiffs seek to impose upon PASNY the liability referenced in 16 U.S.C. § 803(c). This Court finds that 16 U.S.C. § 825p provides a statutory basis upon which the plaintiffs may seek damages for the losses incurred.
PASNY argues that the plaintiffs have already brought to FERC the complaints raised here and that FERC denied any relief. It claims that the plaintiffs are seeking a review of FERC's decision to deny relief and that such review is brought properly only before a United States Court of Appeals and that, at least insofar as they sought preliminary injunction, this Court has no jurisdiction.
The statute which PASNY invokes, 16 U.S.C. § 825l,2 provides that a party aggrieved by an order issued by FERC in a proceeding under the Federal Power Act may apply for judicial review of such order only after applying for a rehearing before FERC and then only before a United States Court of Appeals. A federal district court has no jurisdiction upon which to review orders issued by FERC. Halifax Cty. By & Through Bd. of Sup'rs v. Lever, 718 F.2d 649, 652 (4th Cir.1983).
The administrative action which PASNY asserts precludes this Court from hearing the plaintiffs' action arose out of an application submitted by PASNY to FERC to amend PASNY's license to permit additional water diversion. A number of the plaintiffs had written to FERC in opposition to any amendment. See Exhibits 4-6 to Giutini's Affidavit in Opposition to Motion for Preliminary Injunction. Rather than considering the objections as part of the license amendment application, FERC construed the letters to be a "complaint" and directed PASNY to respond appropriately. Exhibit 8 to said affidavit. See 16 U.S.C. § 825e; 18 C.F.R. § 385.206(a). Upon review FERC concluded that "the Niagara Power Project was not the cause of the ice jamming and flooding in question." Exhibit 13 to said affidavit. More significantly for the purpose of assessing this Court's jurisdiction is FERC's conclusion that "evidence and supporting data before...
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DiLaura v. Power Authority of State of N.Y.
...16 U.S.C. § 803(c) (1988) and state negligence law. BACKGROUND The facts of this case are fully reported at 654 F.Supp. 641, 643-44 (W.D.N.Y.1987) (Elfvin, J.) ["DiLaura I "] and 786 F.Supp. 241, 243-45 (W.D.N.Y.1991) (Arcara, J.) ["DiLaura II "]. We summarize the salient facts relevant to ......
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