982 F.2d 73 (2nd Cir. 1992), 1833, DiLaura v. Power Authority of State of N.Y.

Docket Nº:1833, Docket 92-7061.
Citation:982 F.2d 73
Party Name:23 Envtl. J. Gary DiLAURA, individually, and as president of Waterfront Homeowners Association of Western New York, et al.; James Lewis, individually, and as vice president of Waterfront Homeowners Association of Western NY; Barbara Custodi, individually, and as secretary of Waterfront Homeowners Association of Western NY; Richard Rozicki, individu
Case Date:December 29, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 73

982 F.2d 73 (2nd Cir. 1992)

23 Envtl.

J. Gary DiLAURA, individually, and as president of

Waterfront Homeowners Association of Western New York, et

al.; James Lewis, individually, and as vice president of

Waterfront Homeowners Association of Western NY; Barbara

Custodi, individually, and as secretary of Waterfront

Homeowners Association of Western NY; Richard Rozicki,

individually, and as treasurer of Waterfront Homeowners

Association of Western NY; John Arent; Thomas E. Arida;

Lawrence Barclay; Ralph Barker; Harry Board; Patricia A.

Boies; Richard Bowen; Stanley Brzezinski; Joseph D.

Calato; Leonard Cannello; Jack Carpenter; William Carr;

Miro Catipovic; Howard L. Charlsey; Century Club; Edgar

Cooper; Joseph J. Costa; Roy Cotton; John A. Culbert;

Walter Czapla; John T. Daniels; Thomas Deremer; William

J. Desjardin; Ralph Engstron; 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; David K. Jordan; Lawrence C. Jugle;

Philip 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 Limenfelser; Raymond Lippens; Jack

Livermore; Harvey R. Mack; Patrick MacKenna; Margaret

Malican; Blue Water Marina; Placid Harbor Marina; Charles

Markarian; Robert Marlin; James Martin; Ronald R.

McMamee; Daniel J. McMamee; Richard P. McBride; Paul

McCarthy; Patrick M. McLaughlin; George McMurdo; Louise

E. Michaels; Jack Mikulksky; Gustave Milkey; Arlene

Mille; Charles F. Mohr; Richard Molnar; Jeffrey L.

Morgan; Richard G. Murray; Craig Neville; Jim Nicholas;

Russell Nixon; Issac Pack; Arthur R. Page; Norman Parisi;

Vincent Peri; Edwin Pfohl; Robert Phillips; Kim

Piccirelli; Ken Pieri; Bohdan Pikas; Richard H. Popp;

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; Wilfred 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.; Waterfront Homeowners Association of

Western NY, Plaintiffs-Appellants,


POWER AUTHORITY of the STATE of NY, Defendant-Appellee.

No. 1833, Docket 92-7061.

United States Court of Appeals, Second Circuit

December 29, 1992

Argued Aug. 12, 1992.

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John P. Bartolomei, Niagara Falls, NY (Paul A. Grenga, Bartolomei & Grenga, P.C., Niagara Falls, NY, of counsel), for plaintiffs-appellants.

Andrew Feldman, Buffalo, NY (Ann W. Herman, Damon & Morey, Buffalo, NY, of counsel), for defendant-appellee.

Before WINTER, MINER, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Plaintiffs appeal from a judgment of the United States District Court for the Western

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District of New York, Richard J. Arcara, Judge, dismissing their claims for compensatory and punitive damages and injunctive relief under 16 U.S.C. § 803(c) (1988) and state negligence law.

Plaintiffs own land on the Niagara River shoreline. They sued the Power Authority of the State of New York ("PASNY") for damages and injunctive relief resulting from PASNY's ice control procedures on the River. The district court dismissed the action in its entirety, (1) finding that plaintiffs failed to state a claim under § 803(c); (2) holding that it lacked subject matter jurisdiction over plaintiffs' request for injunctive relief; and (3) declining to exercise supplemental jurisdiction (what used to be known as pendent jurisdiction) over plaintiffs' state-law negligence claims. We now affirm.


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 this appeal.

The Niagara River connects Lake Erie and Lake Ontario. With various power-related facilities controlling the flow and elevation of the river, PASNY and its Canadian partner Ontario Hydro have transformed the Niagara River into a long "hydraulic canal" to produce electrical power. Two international treaties, related regulations, and a license issued by the Federal Energy Regulatory Commission ("FERC"), 1 govern PASNY's managed diversion of Niagara River waters.

The two international agreements between the United States and Canada are the Boundary Waters Treaty, Jan. 11, 1909, U.S.-Gr. Brit., 36 Stat. 2448 ("1909 Treaty"), and the Treaty Concerning Uses for the Waters of the Niagara River, Feb. 27, 1950, U.S.-Can., T.I.A.S. No. 2130, 694 ("1950 Treaty"). The 1909 Treaty established an International Joint Commission ("IJC"), giving it jurisdiction to regulate the diversion, obstruction, and use of boundary waters. See 1909 Treaty, arts. VII-XII, 36 Stat. at 2451-54; see also Miller v. United States, 583 F.2d 857, 860 (6th Cir.1978); Soucheray v. Corps of Eng'rs of the United States Army, 483 F.Supp. 352, 353 (W.D.Wis.1979). The 1909 Treaty also regulated the use of the Niagara River by establishing minimum water flows over Niagara Falls. See 1909 Treaty, art. V, 36 Stat. at 2450-51. The 1950 Treaty increased flow requirements and authorized the construction of various "remedial works" in the River to regulate the water flow over Niagara Falls. See 1950 Treaty, arts. II-IV, T.I.A.S. No. 2130 at 696-97.

In 1957, Congress enacted the Niagara Redevelopment Act ("NRA"), 16 U.S.C. §§ 836-836a (1988), directing 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." Id. § 836(a). The license for the Niagara Project specifically reserved to FERC the right to regulate PASNY's use of the Niagara River waters for the protection of life, health and property. Id. § 803(c).

All decisions regarding River water diversions for power production, operation of the Control Structure--the principal "remedial work"--and ice control operations require close coordination between PASNY and Ontario Hydro. In particular, the two power entities have joint development procedures, described in the Niagara River Ice Control Manual, for minimizing the effect of ice on the River flow and the operation of the Control Structure.

There was a severe winter storm on the Upper Niagara River in early 1985. Plaintiffs, who own property in New York along the East Channel of the Niagara River, allege that PASNY over-reacted to this event by diverting too much water into the Niagara Project power intakes, thus causing

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the River to flow in a reverse direction. This, plaintiffs claim, resulted in an ice jam with consequent flooding and ice damage to plaintiffs' property. Asserting claims under 16 U.S.C. § 803(c) and state-law negligence, plaintiffs sued in the Western District in April 1985, for compensatory and punitive damages and injunctive relief. PASNY answered that the unpredictable weather along the Niagara River caused the ice jam, and that the situation would have been much worse if PASNY had not intervened to control the storm damage.

Plaintiffs moved for a preliminary injunction to prevent PASNY from causing more flooding. In a Memorandum and Order dated February 26, 1987, the district court (per Judge Elfvin) denied the motion. DiLaura I, 654 F.Supp. 641. Although Judge Elfvin agreed that § 803(c) creates a federal claim and that the district court had jurisdiction to grant injunctive relief, he denied the motion because plaintiffs failed to make the required showing of irreparable harm, a likelihood of success, and a balance of hardships tipping decidedly in their favor. DiLaura I, 654 F.Supp. at 646-47.

The case was then transferred to Judge Arcara in April 1989. At the final pre-trial conference in April 1991, Judge Arcara, on his own motion, raised the issue of subject matter jurisdiction. The issue was then briefed and argued. By Memorandum and Order dated December 2, 1991, the court dismissed the complaint. DiLaura II, 786 F.Supp. 241.

With respect to plaintiffs' § 803(c) claim, Judge Arcara found that § 803(c) does not create a federal claim and that plaintiffs' complaint therefore failed to state a claim upon which relief could be granted. He also dismissed plaintiffs' request for injunctive relief for lack of subject matter jurisdiction under the "political question" doctrine and the exhaustion requirement. Acknowledging the interests of federalism and comity, the court also declined to exercise supplemental jurisdiction over plaintiffs' state-law negligence claims. DiLaura II, 786 F.Supp. at 255.


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