Miller v. United States

• Decision Date: 11 March 1976
• Docket Number: Civ. A. No. 3156.
• Citation: 410 F. Supp. 425
• Parties: Allan G. MILLER and Betty G. Miller, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

410 F. Supp. 425

Allan G. MILLER and Betty G. Miller, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 3156.

United States District Court, E. D. Michigan, N. D.

March 11, 1976.

Allan G. Miller, in pro. per.

Haskell H. Shelton, Jr., Asst. U. S. Atty., Bay City, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

On or about January 30, 1975, plaintiffs filed an amended complaint. Said complaint contains three separate counts and each count sets forth a separate and distinct theory upon which plaintiffs allege damage and taking of property by defendant, United States.

In Count One, plaintiffs allege that this action may be brought pursuant to Title 28, United States Code, Section 1331(a) for they seek monetary relief in excess of $10,000.00 for property damage caused by defendant United States. Said action arises out of and is founded upon a Treaty between the United States and Canada, commonly known as the "Boundary Water Treaty of 1909."

Plaintiffs allege in Count Two that the amount in controversy does not exceed $10,000.00 and all amounts over the subject matter jurisdiction of the Court pursuant to the provisions of the Tucker Act, Title 28, United States Code Section 1346(a)(2) are expressly waived. Also, plaintiffs seek monetary relief for the taking of real property by defendant without just compensation as allowed by the United States Constitution.

Finally, in Count Three, plaintiffs allege property damage due to the negligence of the United States Army Corps of Engineers. More specifically, it is alleged that an agent of the United States failed to operate certain water works with reasonable care and caution, thereby causing water conditions which injured the realty of plaintiffs. Plaintiffs assert that jurisdiction is founded upon the Federal Tort Claims Act, 28 U.S.C. 1346(b) in that the sovereign has waived its immunity to suits of this nature.

Although three separate legal theories are set out by plaintiffs, there exists only one set of factual allegations giving rise to plaintiffs' complaint. These allegations may be summarized as follows:

The sovereign United States and the Canadian government entered into a treaty whereby certain dams and control gates were erected to impound the waters of Lake Superior. Various diversion dams were also built in order to reverse the flow of two river streams thereby increasing the watershed of Lake Superior and the other Great Lakes. This diversion system was designed to divert water which naturally would flow directly into the Atlantic Ocean through the Great Lakes.

In an effort to protect Lake Superior riparian interests from high water, said United States Corps of Engineers negligently dumped all excess water through said control gates upon the lower lakes of Huron and Michigan to the injury of plaintiffs, lower lake riparian owners. As the volume and velocity of water flowing past the plaintiffs' property increased, it disrupted the natural littoral drift and destroyed protective beach barriers causing permanent erosion damage to ensue on plaintiffs' property. The erosion caused said lands to become submerged thereby becoming property of the United States as lands beneath navigable waters.

On March 28, 1975, defendant filed a motion to dismiss which was responded to by plaintiffs on April 9, 1975. The parties have agreed to waive any oral arguments on the motion to dismiss. Based on the pleadings as amended and the legal memoranda submitted and being otherwise fully advised in the premises, the Court renders the following opinion.

As to Count One, which arises out of the Boundary Water Treaty of 1909, the Court finds from a fair reading of said treaty that plaintiffs cannot be considered direct beneficiaries of the agreements made between the two contracting sovereigns. Furthermore, any channels of relief and/or procedures for processing a claim of injury that may be provided for the treaty provisions are formulated in terms of administrative, not judicial jurisdiction.¹ Although plaintiffs have made some attempt by letter to gain relief from the International Joint Committee, the Court does not consider this an exhaustion of the administrative remedies.

Even if plaintiffs were considered beneficiaries under said Treaty as "inhabitants" of the United States with riparian interest along the Great Lakes to be protected, no where in said Treaty are plaintiffs given any greater right to bring an action against the sovereign than normally exists under the relevant laws specifying limited waivers of sovereign immunity. Further discussion of sovereign immunity as a bar to the present action will be set out in the Court's consideration of Count Three.

Plaintiffs have not alleged in Count One that said Treaty provides the requisite consent to bring an action for property damage against the sovereign. Without such allegations, the statement of claim in Count One fails to state a cause of action upon which relief may be granted. Having failed to state a claim upon which this Court may grant relief, Count One of plaintiffs' amended complaint will be dismissed.

Plaintiffs allege in Count Two that defendant, acting through the Corps of Engineers, impounded waters of Lake Superior and other waters and diverted the same through control dam gates and locks into Lakes Michigan and Huron. This diverted water unnaturally increased the water level and velocity of the flow of the water in Lake Huron. These increases caused permanent erosion to plaintiffs' land along the shores of Lake Huron. The eroded land became submerged beneath the navigable waters of Lake Huron, thereby becoming the property of the United States. Plaintiffs seek just compensation for this taking by the defendant pursuant to...