Dalrymple v. Grand River Dam Authority, s. 96-5113
| Decision Date | 28 May 1998 |
| Docket Number | Nos. 96-5113,s. 96-5113 |
| Citation | 145 F.3d 1180 |
| Parties | 98 CJ C.A.R. 2751 Jack DALRYMPLE; Rosemary Dalrymple; David A. Adams; R.D. "Buddy" Adams; Kenneth Bales; Patricia Bales; Gerald L. Baser; Bettie L. Baser; Larry J. Becker; Robert K. Berry; Susan M. Berry; Mark E. Blankenship; Board of Commissioners of Ottawa County, Oklahoma; Charles Bowling; Kathy Bowling; Calvin Brady; Chet Brewington and Susan Brewington, d/b/a Thunderbird Motel; Edna Offutt Bryant; George Campbell; Carol Sue Campbell; Kenneth Cass; Maxine Cass; Marvin Champlin; Joyce Champlin; Don Childers; Dee Childers; City of Miami, Oklahoma, a municipal corporation; H. Dale Conard; Sherry Davis; Chester Desilva; Debbie Desilva; E.G. Ventures, Inc.; Maxine Ferguson; Earl B. Ferris; Kenneth Ferris; Diann Ferris; Howard W. Hoover; Stephen L. Hunter; Debbie L. Hunter; Smithy Jameson; K.C. Jeffries; Gary B. Jenkins; Betty A. Jenkins; Steve Kresyman, d/b/a/ Miami Car Wash; Roy K. Lacen; Ida M. Lacen; Jeffrey Lavine; Johnia Lavine; Bruce Lawrence; Regina Lawrence; Faye Lester; Vera Dowty Lowery; Tim Lucas; Rhonda Lucas; Chris Mabury; Debra Mabury; Nadine Macy; Justin Mahurin; Becky Mahurin; Louis E. Mathia, d/b/a Riverside Auto Salvage; Jeffry McCool and Carolyn McCool, d/b/a Vettes and Vans; E.W. McRae; Miami Animal Hospital, Inc.; Miami Tire Service, Inc.; Miami Tribe of Oklahoma; Mid-America Land, Grain & Cattle Company; Leo J. Mills; Virginia D. Mills; Jimmie Mooneyham; Alan E. Newkirk; Mary Niffen; Tammy Niffen; Robert E. Patterson; David D. Payne; Robert Pewitt; Ann Pewitt; Tim Potter, d/b/a Potter Landscaping & Nursery; James Redden; Cathy Redden; Wayne E. Roberts; Claude Rogers; Joseph A. Rosin; Rosin Heritage, Inc.; Paula S. Rutledge; Nick A. Shade; Marian Shipman; Gary Roy Shoultz, d/b/a Gary's Barbecue and Deli; Robert L. Silversmith; Ruth Silversmith; Bess M. Stephens; Edison B. Stepp; Patricia Stevens; Randy Stoner; George S. Stunkard, d/b/a Blaster's Arcade; Glen Summers; Dean Trone; Teresa Trone; Bert Vanatta; C.H. Vanatta; Donald Vaughn; Loretta J. |
| Court | U.S. Court of Appeals — Tenth Circuit |
N. Larry Bork (Wayne T. Stratton, with him on the brief) of Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, Kansas; and Frank M. Hagedorn (Graydon D. Luthey, with him on the brief) of Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, Oklahoma, for Plaintiffs-Appellees.
Janet Kay Jones (Susan Tomasky, General Counsel, and Joseph S. Davies, Acting Solicitor, with her on the brief), Federal Energy Regulatory Commission, Washington, DC, for Third-Party Defendant-Appellee Federal Energy Regulatory Commission.
Philipe Pinnell (Stephen C. Lewis, United States Attorney, with him on the brief), Assistant United States Attorney, Tulsa, Oklahoma, for Third-Party Defendant-Appellee United States Army Corps of Engineers.
Robert A. Franden (Jody R. Nathan of Feldman, Franden, Woodard, Farris & Taylor, Tulsa, Oklahoma; and Allen B. Pease of Grand River Dam Authority, Vinita, Oklahoma, with him on the brief) of Feldman, Franden, Woodard, Farris & Taylor, Tulsa, Oklahoma, for Defendants-Third-Party Plaintiffs-Appellants.
Before BRORBY and McWILLIAMS, Circuit Judges, and BLACK, * District Judge.
Appellant, Grand River Dam Authority (the "Authority"), is a conservation and reclamation district created pursuant to Oklahoma statute "for the purpose of utilizing the waters of Grand River and its tributaries." Grand River Dam Auth. v. Wyandotte Bd. of Educ., 193 Okla. 551, 147 P.2d 1003, 1004 (1943) (citing Okla. Stat. tit. 82, § 861(1941)), cert. denied, 322 U.S. 733, 64 S.Ct. 1045, 88 L.Ed. 1568 (1944); Teague v. Grand River Dam Auth., 425 F.2d 130, 132 (10th Cir.1970). Acting as a state agency, the Authority owns and operates the Pensacola Hydroelectric Project/Pensacola Dam, in accordance with the terms and conditions of its In March 1994, the Wagoner and Roberts plaintiffs filed separate suits against the Authority for property damage resulting from flooding along the Spring River in 1993. The Wagoner and Roberts plaintiffs later amended their petitions to include flood damage that occurred in 1994. In September 1994, the Dalrymple plaintiffs brought a class action suit against the Authority for property damage suffered as a result of the increased elevation and duration of flooding on the Neosho River from 1992-94. The Neosho and Spring rivers combine to form the Grand River, which is impounded by the Pensacola Dam. Plaintiffs filed their complaints in Oklahoma state court; collectively, they asserted claims of inverse condemnation, consequential damage to private property for public use, breach of contract, strict liability, trespass, and nuisance. The Dalrymple plaintiffs also sought injunctive relief as an alternative to their damage claims.
Federal Energy Regulatory Commission ("FERC") license and the Federal Power Act, 16 U.S.C. § 799.
The Authority removed the actions to federal district court alleging proper jurisdiction under 28 U.S.C. §§ 1441(b) and 1442(a)(1). In response to each action, the Authority also filed third party complaints against FERC and the United States Army Corps of Engineers (the "Corps"), seeking indemnification for any damages ultimately awarded to the Plaintiffs.
Upon Plaintiffs' motions, and after some discussion at a status hearing, the district court remanded the cases to state court by orders dated April 2, 1996. The district court dismissed the Authority's third party claims against the federal agencies by separate orders on the same date. 1 The Authority appeals both rulings in each Plaintiff's action. The appeals have been consolidated for purposes of briefing and disposition.
Because we conclude the remand orders were based to a fair degree upon the district court's finding it lacked subject matter jurisdiction to hear the cases, we are statutorily precluded from reviewing those orders, on appeal or otherwise. 28 U.S.C. § 1447(d). We therefore grant Plaintiffs' motions to dismiss the Authority's appeal of the remand orders.
Our jurisdiction to review the district court's orders dismissing the Authority's third party complaints against FERC and the Corps is not likewise restricted. 2 Reviewing those orders de novo, SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th Cir.1997), we affirm.
Relying on 28 U.S.C. § 1447(d), 3 Plaintiffs seek to dismiss this portion of the appeal, claiming we have no jurisdiction to review the remand orders. The threshold issue, therefore, is one of appellate jurisdiction. 4
In determining whether § 1447(d) deprives us of jurisdiction to review the district court's remand orders, we first acknowledge the application of § 1447(d) is not as broad as its language suggests. Appellate review is barred by § 1447(d) only when the district court remands on grounds permitted by § 1447(c). 5 Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). An explicit reference to § 1447(c) does not automatically render a remand order nonreviewable, however. Archuleta v. Lacuesta, 131 F.3d 1359, 1362 (10th Cir.1997). Nor does the absence of such a reference automatically confer appellate jurisdiction over a remand order. In order to evaluate the reviewability of the district court's remand orders, we must independently review the record to determine the actual grounds upon which the district court believed it was empowered to remand. Id.
One of the grounds for remanding a case under § 1447(c)--the ground at issue here--is a determination the federal district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). We have held if a "remand order was based to a fair degree upon the court's finding that it lacked subject matter jurisdiction to hear the case," such order is rendered nonreviewable under § 1447(d). Flores v. Long, 110 F.3d 730, 733 (10th Cir.1997); see also Archuleta, 131 F.3d at 1363. This remains true even if the district court's jurisdictional determination appears erroneous, so long as that determination was made in good faith. Archuleta, 131 F.3d at 1362-63; Flores, 110 F.3d at 732-33.
The Authority removed Plaintiffs' cases to federal court alleging proper federal jurisdiction under 28 U.S.C. §§ 1441(b) and 1442(a)(1). Section 1441(b) provides in relevant part:
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.
To support removal under § 1441(b), the Authority argued Plaintiffs' claims amount to federal constitutional claims because the Pensacola Dam is on navigable waters and is subject to federal government control pursuant to the Commerce Clause.
Section 1442 provides:
(a) A civil action or criminal prose...
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