Fahnestock v. Reeder, CIV.A. 00-CV-1912.

• Decision Date: 05 April 2002
• Docket Number: No. CIV.A. 00-CV-1912.,CIV.A. 00-CV-1912.
• Citation: 223 F.Supp.2d 618
• Parties: Marcy A. FAHNESTOCK, Andrew T. Lints and Thomas Lints, Plaintiffs, v. William B. REEDER, deceased, by and through William E. Haggerty as Administrator of the Estate of William B. Reeder, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

223 F.Supp.2d 618

Marcy A. FAHNESTOCK, Andrew T. Lints and Thomas Lints, Plaintiffs, v. William B. REEDER, deceased, by and through William E. Haggerty as Administrator of the Estate of William B. Reeder, Defendant.

No. CIV.A. 00-CV-1912.

United States District Court, E.D. Pennsylvania.

April 5, 2002.

Melvin H. Hess, Anita J. Hanna, Gibbel, Kraybill & Hess, Lancaster, PA, Samuel M. Mecum, Lancaster, PA, for Marcy A. Fahnestock, Andrew T. Lints.

Gary Francis Seitz, Palmer Biezup & Henderson, Philadelphia, PA, for Thomas Lints.

Joseph B. Mayers, Lisa G. Faden, Mayers, Mennies & Sherr LLP, Blue Bell, PA, for William B. Reeder, David Glenlast, Sondra L. Reeder.

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

Plaintiffs Marcy Fahnestock, Thomas Lints and Andrew Lints filed suit against William Reeder on April 12, 2000 to recover for personal injuries arising from a recreational boating accident. The incident involved boats piloted by Plaintiff Thomas Lints and Defendant William Reeder on the Susquehanna River between the Holtwood and Safe Harbor dams on May 31, 1998. Thomas Lints was not directly injured in the accident, but alleged negligent infliction of emotional distress resulting from having witnessed his son, Plaintiff Andrew Lints, being injured.

On August 17, 2000, Defendant William Reeder, deceased, by and through William Haggerty as Administrator of Reeder's Estate (hereafter, "Reeder"), responded to the initial complaint, filing a Counter Claim against Thomas Lints (hereafter, "Lints"). Reeder's Counter Claim alleges that Lints caused or contributed to the accident by tortious operation of his boat. We resolved a number of issues concerning the underlying complaint and dismissed Plaintiffs' claims against several additional defendants in our October 3, 2001 opinion and order responding to summary judgment motions by all defendants. Smith v. Haggerty, 169 F.Supp.2d 376 (E.D.Pa. 2001).¹

On January 28, 2002 we rejected Lints' counter-claim defense counsel's motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), invoking stare decisis, in that all courts considering the matter have followed Pennsylvania Water & Power Co. v. Federal Power Commission, 123 F.2d 155, 158-161 (D.C.Cir.1941), finding the Susquehanna River navigable at or near Holtwood, Pennsylvania. Lints' defense counsel neglected even to mention this precedent in their original brief accompanying their 12(b)(1) motion.

Moving for reconsideration, Lints' counter-claim defense counsel now gives thorough consideration to Pennsylvania Water & Power Co. and argues that the decision's declaration of the Susquehanna's navigability is relevant only to congressional authority under the Commerce Clause — not our court's original jurisdiction under the Admiralty Clause.² We find this reasoning persuasive, grant the motion for reconsideration, vacate our January 28, 2002 order and our October 3, 2001, published decision in Smith v. Haggerty, and grant the Rule 12(b)(1) motion to dismiss. We also dismiss without discussion any and all other motions and matters before us in this case, because we have no jurisdiction to consider them. To our knowledge, we hold for the first time that the Susquehanna River is not wholly navigable for the purpose of conferring admiralty jurisdiction, limiting navigability in admiralty to bodies of water that are actually navigable or susceptible to being navigated without modification from their current state.

DISCUSSION

I. The Motion's Appropriateness

Though no party to this case had previously raised the arguments now before us concerning our subject matter jurisdiction, Fed.R.Civ.P. Rule 12(h)(3) requires dismissal of an action at any stage of the proceedings — even after a jury trial—if subject matter jurisdiction is shown to be lacking. Meritcare Inc. v. St. Paul Mercury Insurance Co., 166 F.3d 214, 217 (3rd Cir.1999). In other words, Rule 12(b)(1) motions may be filed at any time and repeatedly, if the movants assert new arguments warranting our attention. Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3rd Cir.1977). Lints' motion is appropriate.

II. Defining the Term "Navigable"

In United States v. Appalachian Electric Power Co., 311 U.S. 377, 407-408, 61 S.Ct. 291, 85 L.Ed. 243 (1940), the Supreme Court set forth a landmark definition of navigability:

A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken.... When once found to be navigable, a waterway remains so. This is no more indefinite than a rule of navigability ... based upon `useful interstate commerce' or `general and common usefulness for purposes of trade and commerce' if these are interpreted as barring improvements. Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic.

Thus, under Appalachian Electric Power Co., a river was deemed navigable if it had a history of navigability and/or any potential for navigability.

In 1941, following Appalachian Electric Power Co., the D.C. Circuit thoroughly considered the Susquehanna River's navigability at and near Holtwood, Pennsylvania for the purpose of conferring subject matter jurisdiction. Pennsylvania Water & Power Co., 123 F.2d at 158-161. Tracing the history of the river's navigability beginning in the 17th century and continuing through the construction of the Holtwood dam, the court observed that "for a long time past, [it] has [not] carried any interstate commerce in navigation, and ... there is no present need of improvements with the object of making the river usable for interstate navigation." Nonetheless, the court concluded, based on the Susquehanna River's history and potential, "[W]e have no hesitation in declaring the Susquehanna a navigable water of the United States." Id. at 161.

Since Pennsylvania Water & Power Co., every federal court which has considered cases arising from actions on the Susquehanna River, including the Third Circuit in Metropolitan Edison Co. v. Federal Power Commission, 169 F.2d 719, 720 n.1 (3rd Cir.1948), has treated the river as navigable, applying the D.C. Circuit's decision. See, e.g., Federal Energy Regulatory Commission v. Keck, 818 F.Supp. 792, 795 FN5 (W.D.Pa.1993) ("[W]e believe there is sufficient precedent to readily conclude that the Susquehanna is a navigable river.").

The Lints' defense counsel now argues, and we agree, that the waters of the Susquehanna River between the Safe Harbor and Holtwood dams are "navigable waters of the United States" within the purview of Congress under the Commerce Clause, but are not "navigable waters," for the purpose of conferring admiralty jurisdiction upon our court. Plaintiff Fahnestock contends that the "Lints' argument begs the question: why should there be a difference between `navigability' for purpose A (Commerce Clause) and purpose B (exercise of admiralty jurisdiction)?"

Fahnestock answers her own question: "[T]he U.S. Supreme Court in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) identified ... four separate usages of the word `navigability' depending on the context." Fahnestock Brief at p. 5. However, Fahnestock wrongly contends that the Supreme Court did not "endors[e] the wisdom" of separate definitions of the term "navigable." Id. In fact, as Lints' defense counsel argues, Kaiser Aetna, and virtually all decisions after it, have said that we must apply different meanings of the term to different contexts, though they may be, as Fahnestock contends, "definition[s] of the word `navigable' which only lawyers could love." Id. at 3.

In Kaiser Aetna, the Court found that the owners of a marina, Kuapa Pond, could deny public access to it unless they were justly compensated by the government, though the marina was dredged and connected by a bay to the Pacific Ocean. Kaiser Aetna, 444 U.S. at 164, 100 S.Ct. 383. The Court's decision concerned the boundaries of a navigational servitude and the Takings Clause. In so deciding, however, the Court set forth what have since been the guidelines to employing the term "navigability:"

It is true that Kuapa Pond may fit within definitions of "navigability" articulated in past decisions of this Court. But it must be recognized that the concept of navigability in these decisions was used for purposes other than to delimit the boundaries of the navigational servitude: for example, to define the scope of Congress' regulatory authority under the Interstate Commerce Clause, see, e. g., United States v. Appalachian Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); South Carolina v. Georgia, 93 U.S. 4, 3 Otto 4, 23 L.Ed. 782 (1876).; The Montello, 87 U.S. 430, 20 Wall. 430, 22 L.Ed. 391 (1874); The Daniel Ball, 10 Wall. 557, 19 L.E. 999 (1871), to determine the extent of the authority of the Corps of Engineers under the Rivers and Harbors Appropriation Act of 1899, and to establish the limits of the jurisdiction of federal courts conferred by Art. III, § 2, of the United States Constitution over admiralty and maritime cases. Although the Government is clearly correct in maintaining that the now dredged Kuapa Pond falls within the definition of "navigable waters" as this Court has used that term in delimiting the boundaries of Congress' regulatory authority under the Commerce Clause, see, e.g., The Daniel Ball, supra, 10 Wall., at 563, 19 L.Ed. 999; The Montello, supra, 87 U.S. 430, 20 Wall. at 441-442, 22 L.Ed. 391; United States v. Appalachian Power Co., supra, 311 U.S. at 407-408, 61 S.Ct. at 299-300, this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress...