Allen v. United States

Decision Date16 November 2021
Docket NumberCase No. 1:21-cv-10449
Parties Daniel ALLEN and Cathleen Allen, Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Eastern District of Michigan

Beth M. Rivers, Robert W. Palmer, Kevin M. Carlson, Megan Bonanni, Michael L. Pitt, Pitt McGehee Palmer & Rivers PC, Royal Oak, MI, Kenneth A. Stern, Stern Law, PLLC, Novi, MI, for Plaintiffs.

Zak Toomey, United States Attorney's Office, Detroit, MI, for Defendant.


THOMAS L. LUDINGTON, United States District Judge

On the evening of May 19, 2020, thousands of Midland County and Gladwin County residents were forced to flee their homes in search of high ground. The Edenville Dam, which had stood for nearly a century on the Tittabawassee River, had failed; the Dam's 2,600-acre reservoir had been unleashed. For many, the Dam's failure spelled disaster. Thousands of homes and businesses were damaged in the historic flooding that followed.

Plaintiffs Daniel and Cathleen Allen are Midland County residents whose home was damaged by the flooding. On February 26, 2021, they filed a complaint against the United States of America ("the Government" or "the United States") under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2761 et seq. In short, Plaintiffs claim that the Agency once tasked with monitoring the Edenville Dam, the Federal Energy Regulatory Commission ("FERC"), failed to ensure it was being operated safely and thus should be responsible for the harm it inflicted.

On June 25, 2021, the Government filed a motion to dismiss, arguing that this Court lacks jurisdiction because the Government is entitled to sovereign immunity. For the reasons stated hereafter, the Government's Motion to Dismiss will be granted, and this case will be dismissed.


For nearly a century, four dams have sat along a 39-mile stretch of the Tittabawassee River. Starting with the most upstream, they are the Secord, Smallwood, Edenville, and Sanford Dams (the "Dams").1

Originally constructed in 1924, the Edenville Dam consists of two earthen embankments spanning the Tittabawassee River and the Tobacco River. The water held by the Edenville Dam forms a 2,600-acre reservoir known as Wixom Lake.2 Like Sanford Lake, further downstream, Wixom Lake had become a popular recreation site before the Edenville Dam failed, with hundreds of homes and docks lining its shores.

FERC is an independent agency tasked with regulating the sale and transmission of electricity under the Federal Power Act (FPA), 16 U.S.C. § 791a et seq. In 1998, FERC issued licenses to Wolverine Power Company ("Wolverine") for the generation of hydroelectric power at the Smallwood, Edenville, and Sanford Dams.3 See Wolverine Power Corp. , 85 FERC ¶ 61,063 (1998). Several years later, Wolverine became insolvent, and the Dams and their licenses were purchased by Synex Michigan, LLC, which later became Boyce Hydro Power, LLC ("Boyce").4 ECF No. 1 at PageID.6. Ordinarily, FERC would have investigated Boyce's financial capacity to operate the Dam safely before Boyce could purchase it. See 16 U.S.C.§ 801 ("No voluntary transfer of any license, or of the rights thereunder granted, shall be made without the written approval of the commission ...."); id. at § 808(a)(2) (requiring FERC to make certain findings before issuing licenses). But for reasons that remain unclear, FERC never conducted a pretransfer investigation.5 ECF No. 1 at PageID.16. Instead, in June 2004, FERC issued a short order approving the transfer, which Wolverine and Boyce had finalized nearly a year beforehand. See Wolverine Power Corp. Synex Energy Res., Ltd. Synex Mich., LLC , 107 FERC ¶ 62,266, at 64,498 (2004).

With the license secured, Boyce proceeded to generate electricity at the Edenville Dam for the better part of two decades. It was only a matter of months, however, before Boyce was the target of federal regulators.

Shortly after FERC approved the transfer, Boyce sent a letter to FERC conveying plans to build auxiliary spillways at the Dam. Boyce Hydro Power, LLC , 164 FERC ¶ 61,178 at P 5 (2018). The need for additional spillway capacity was old news to FERC. In 1999, FERC sent a letter to Wolverine describing the need for more spillway capacity as its "primary concern." Id. at P 4. The fear was that, without additional spillway capacity, the Edenville Dam could not withstand the "Probable Maximum Flood" (PMF), defined as "the flood that may be expected from the most severe combination of critical meteorologic and hydrologic conditions that is reasonably possible in the drainage basin under study." Id. at P 3. The "[f]ailure of the Edenville Dam," FERC later warned, "could result in the loss of human life and the destruction of property and infrastructure." Boyce Hydro Power, LLC , 162 FERC ¶ 61,115 at P 3 (2018).

Despite assurances, Boyce's plan to increase the Dam's spillway capacity never materialized. On June 15, 2017, after over a decade of project delays, missed deadlines, and "patently deficient" construction proposals, FERC issued a compliance order directing Boyce to submit specific plans for the construction of auxiliary spillways. 164 FERC ¶ 61,178 at P 9 ; Boyce Hydro Power, LLC , 159 FERC ¶ 62,292 at P 2 (2017). When Boyce did not comply, FERC ordered it to stop generating power. Boyce Hydro Power, LLC , 161 FERC ¶ 62,119 at P 2 (2017).

Boyce appealed FERC's order to the Court of Appeals for the District of Columbia Circuit, which stayed the order and allowed Boyce to keep generating power. See In re Boyce Hydro Power , LLC, No. 17-1270 (D.C. Cir. Feb. 7, 2018). One week later, FERC formally proposed revoking Boyce's license, explaining that Boyce had "failed to meet nearly all the obligations in the Compliance Order, even after Commission staff granted multiple extensions." 162 FERC ¶ 61,115 at P 10.

Boyce did not request an evidentiary hearing or "dispute that it ... failed to comply with the Commission's directives." 164 FERC ¶ 61,178 at P 40. Instead, it argued that revocation of its licenses was not in the public interest because, inter alia, "revoking the license would not address the Commission's primary concern regarding the inadequate spillway capacity." Id. FERC disagreed, noting that once it revoked Boyce's license, regulatory jurisdiction over the Edenville Dam would transfer to the Michigan Department of Environmental Quality, which had its own spillway-capacity standards. See id. at P 55.

On September 10, 2018, FERC revoked Boyce's license for the Edenville Dam. Id. at P 1. As anticipated, the Michigan Department of Environmental Quality, now called the Michigan Department of Environment, Great Lakes, and Energy ("EGLE"), assumed jurisdiction over the Dam.6 ECF No. 1 at PageID.12. But Boyce continued to operate it.

In 2019, Boyce began negotiating the sale of the Edenville Dam to the Four Lakes Task Force (FLTF), a statutory entity formed under Part 307 of the Michigan Natural Resources and Environmental Protection Act, MICH. COMP. LAWS 324.30701 et seq.7 The FLTF obtained a permit to assess the feasibility of generating power at the Edenville Dam later that year but never sought a license. See Four Lakes Task Force , 169 FERC ¶ 62,124 (2019).

In the months leading up to the Dam disaster, Boyce, the FLTF, and EGLE disputed the appropriate water level at Wixom Lake. Their dispute escalated into several lawsuits, the details of which are irrelevant here.8 Nonetheless, it bears noting that FERC was not a party to any of those lawsuits.


During the week of May 18, 2020, The Tittabawassee watershed experienced unusually heavy rain, leading the National Weather Service and local authorities to warn of potential flash floods. On May 19, 2020, at about 5:30 PM EDT, the Tittabawassee portion of the Edenville Dam collapsed. The cascade of water quickly toppled the already strained Sanford Dam further downstream. The Sanford breach sent a swell of floodwater barreling toward local homes and businesses. Local authorities ordered residents to evacuate, and thousands abandoned their homes and belongings in search of high ground. By the following morning, Wixom Lake and Sanford Lake—altogether some 3,800 acres of water—were virtually empty.

Plaintiffs own a home downstream from the Edenville Dam, along Sanford Lake. ECF No. 1 at PageID.21. The failure of the Edenville Dam, and consequent failure of the Sanford Dam, flooded their home, displacing Mrs. Allen's 86-year-old mother. Id. at PageID.22. To date, Plaintiffs have spent roughly $157,000 in home repairs and have lost about $150,000 in personal property. Id.


Not long after the flooding subsided, dozens of lawsuits were filed in this Court and Michigan courts primarily targeting Boyce and related entities. On July 31, 2020, with thousands of potential creditors lining up, Boyce sought bankruptcy protection. On February 25, 2021, after months of bankruptcy proceedings, Judge Daniel Opperman approved the Boyce entities’ bankruptcy plan. Most of the cases filed in this Court have since been voluntarily dismissed.

On February 26, 2021, Plaintiffs brought this action under the FTCA, claiming that FERC negligently entrusted Boyce with the Edenville Dam and then failed to monitor its safety. See ECF No. 1 at PageID.15–21. Plaintiffs seek to recover their losses and believe FERC should be held accountable.

On June 25, 2021, the Government filed a motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction. ECF No. 15. The Government's Motion has since been fully briefed. ECF Nos. 20; 24.


Plaintiffs bear the burden of proving subject-matter jurisdiction. See Moir v. Greater Cleveland Reg'l Transit Auth. , 895 F.2d 266, 269 (6th Cir. 1990). "Motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks." United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994). When the moving party challenges the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT