Portage County Bd. of Comm'Rs v. City of Akron

• Decision Date: 21 July 1998
• Docket Number: No. 5:98-CV-1015.,5:98-CV-1015.
• Citation: 12 F.Supp.2d 693
• Parties: PORTAGE COUNTY BOARD OF COMMISSIONERS, et al., Plaintiffs, v. CITY OF AKRON, Defendant.
• Court: U.S. District Court — Northern District of Ohio

12 F.Supp.2d 693

PORTAGE COUNTY BOARD OF COMMISSIONERS, et al., Plaintiffs, v. CITY OF AKRON, Defendant.

No. 5:98-CV-1015.

United States District Court, N.D. Ohio, Eastern Division.

July 21, 1998.

John Wesley Edwards, II, Jones, Day, Reavis & Pogue, Cleveland, OH, Jack A. Van Kley, Robert W. Hamilton, John White Edwards, Jones, Day, Reavis & Pogue, Columbus, OH, for Portage County Board of Commissioners, Charles Keiper, II, Kathleen Chandler, Christopher Smeiles, Cuyahoga Falls, City of, Kent, City of, Munroe Falls, City of, Silver Lake, Village of.

Leslie W. Jacobs, Robert Francis Ware, Jr., Thompson, Hine & Flory, Cleveland, OH, Cheri B. Cunningham, Max Rothal, City Of Akron, Law Department, Akron, OH, for Akron, City of.

OPINION AND ORDER

GWIN, District Judge.

On May 27, 1998, Plaintiffs Portage County Board of Commissioners, et al.¹ ("Portage County") filed a motion to remand this cause to the Portage County Court of Common Pleas [Doc. 6]. Plaintiffs Portage County's motion to remand follows Defendant City of Akron's April 4, 1998 notice of removal to this Court pursuant to 28 U.S.C. § 1441.² Plaintiffs Portage County contend this case should be heard in state court because the issues presented are not governed by federal law and thus do not vest this Court with federal subject matter jurisdiction under 28 U.S.C. § 1331.³

In ruling on Plaintiffs Portage County's motion to remand, the Court first considers whether the claims in Portage County's complaint, on their face, invoke federal question jurisdiction. If not, the Court then considers whether the "real nature" of Plaintiffs Portage County's state claims "arise under federal law" such to require this Court's review.⁴ To determine these issues, the Court evaluates whether Portage County's state claims specifically implicate either the Clean Water Act, 33 U.S.C. §§ 1251-1387; the Boundary Waters Treaty of 1909 between the United States and Canada; or the Water Resources Development Act of 1986, 42 U.S.C. § 1962d-20. Defendant City of Akron maintains that Plaintiff Portage County's claims "involve substantial questions of federal law" arising under the aforementioned provisions. As related, Defendant City of Akron contends that Plaintiffs Portage County purposefully omit reference to these federal laws in the complaint in an effort to avoid federal court jurisdiction.

For the reasons that follow, the Court concludes that Plaintiffs Portage County did not intend to adjudicate federal claims in this action. The Court also concludes that Defendant City of Akron fails to establish this Court's jurisdiction over this case pursuant to 28 U.S.C. § 1331. In this regard, Defendant City of Akron fails to show that Plaintiffs Portage County purposefully and artfully drafted their complaint to avoid federal court. Accordingly, the Court grants Plaintiffs Portage County's motion to remand this case to the Portage County Court of Common Pleas for all further proceedings.

I. Facts

On April 17, 1998, Plaintiffs Portage County filed a lawsuit in the Portage County Court of Common Pleas against Defendant City of Akron.⁵ The suit seeks to resolve disputes between Plaintiffs Portage County and the City of Akron concerning the alleged improper diversion, removal, use and pollution of certain waters caused by Defendant City of Akron's operation of the Lake Rockwell Dam. The Rockwell Dam is located in Franklin Township, Portage County, Ohio. Construction of the dam created Lake Rockwell, a 770 acre reservoir with a storage capacity of 2,300,000,000 gallons of water.

Defendant City of Akron controls the flow and release of water behind the Rockwell Dam. Plaintiffs Portage County complain that the City's use and release of Lake Rockwell's waters causes irreparable damage to the several communities located downstream from the Rockwell Dam.⁶ This damage allegedly includes injury to aquatic and marine life, contamination of watershed areas supporting community recreational facilities, and pollution of a well field supplying downstream residents with water for commercial, manufacturing and domestic use.

As related, Plaintiffs Portage County contend that, on occasions, the City rapidly releases large volumes of water from the dam, rather than steadily regulating the volume of water. These sudden releases of water damage the aquatic life downstream. Plaintiffs Portage County also argue that Defendant City of Akron's excessive retention of water impairs the use of these waters by Plaintiffs Portage County for boating and other purposes, thus diminishing Plaintiffs Portage County quality of life and economies. The County likewise contends that the City of Akron's restriction of water flow during periods of low precipitation results in stagnant, odorous, and algae-infested river water thus impairing water use.

Plaintiffs Portage County also complain that Defendant City of Akron's unreasonable operation of the Rockwell Dam and related water flow has increased the costs associated with Plaintiffs Portage County's Kent and Fishcreek downstream water treatment facilities. Plaintiffs Portage County seek compensatory, declaratory, and injunctive relief as a result of Defendant City of Akron's alleged actions.

II. Claims

In their complaint, Plaintiffs Portage County make seven claims for relief: Count I claims damage for unreasonable use of water violating Ohio Rev.Code §§ 2721.02 and 2721.09; Count II seeks a declaration limiting Defendant City of Akron's use rights of these waters under 102 Ohio Laws 175 (the "1911 Statute"); Count III claims damages from Defendant City of Akron's impairment and obstruction of public access to navigable streams and lakes; Count IV claims damage for unreasonable operation of the Rockwell Dam as a public nuisance; Count V claims damage for unreasonable operation of the Rockwell Dam as a private nuisance; Count VI claims damage for negligent failure to exercise ordinary care in operating the Rockwell Dam; Count VII seeks declaratory and injunctive relief for diverting water without a permit violating Ohio Rev.Code § 1501.32.

These claims can be grouped into three categories: (1) claims that Defendant City of Akron has unreasonably diverted the flow of water from the Cuyahoga River (the "Diversion Claims"); (2) a claim that Defendant City of Akron failed to obtain a required permit from the Ohio Director of Natural Resources before diverting more than 100,000 gallons of water per day from the Lake Erie Basin (the "DNR Permit Claim"); and (3) claims that Defendant City of Akron's operation of the Rockwell Dam causes pollution of the Cuyahoga River (the "Pollution Claims").

Considering Plaintiffs Portage County's claims, the Court decides whether the complaint presents issues "arising under federal law" to warrant federal jurisdiction.

III. Standard of Review

If a federal court of competent jurisdiction determines that a case before it presents no basis for federal jurisdiction, the court has a duty to remand the case. 28 U.S.C. § 1447(c).⁷ If a case is improperly removed to federal court pursuant to 28 U.S.C. § 1441, the court must remand the case back to the state court from which it was removed. 28 U.S.C. § 1447(d). Remand may be initiated sua sponte or upon motion of a party. Wood v. Home Ins. Co., 305 F.Supp. 937, 938 (C.D.Cal.1969). If a federal court is in doubt of jurisdiction, such doubt must be resolved in favor of state court jurisdiction. Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 (D.S.C.1990). Applying these standards, the Court considers whether Defendant City of Akron properly removed this case to federal court.

Any party to a lawsuit may remove a case to federal court if a proper basis for jurisdiction is provided. The party seeking removal bears the burden of establishing federal subject matter jurisdiction. Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 453-54 (6th Cir.1996).

Under Title 28, U.S.C. § 1331, jurisdiction is proper only if the underlying civil action "aris[es] under the Constitution, laws, treaties of the United States." 28 U.S.C. § 1331. In Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908), the United States Supreme Court described when a case "arises under" federal law:

[A] suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States.

Id. at 152, 29 S.Ct. 42.

The Supreme Court clarified Mottley in Kerr-McGee Chemical Corp. v. Illinois, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982). There, the Court describes the "well-pleaded complaint rule." The Court stated:

It has been well established for many years that federal question jurisdiction is present "only when the plaintiff's statement of his own cause of action shows that it is based upon [federal] laws of the [federal] Constitution." (citation Mottley omitted). It is insufficient "that the defendant would set up in defense of certain laws of the United States." (citing Mottley at 153).

Id. 459 U.S. at 1049, 103 S.Ct. 469.⁸ The Court reiterated this view in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 813, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), stating that "the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Rather, there must be a "substantial" federal issue raised. Id. at 813-34, 106 S.Ct. 3229. An action may be removed to federal court "where the real nature of the claim asserted in the complaint is federal, irrespective of whether it is so characterized." Sable v. General Motors Corp., 90 F.3d 171, 174 (6th Cir.1996) (citations omitted).⁹ See also Her...