572 F.Supp.3d 411
E.D. Mich.2021Background
- On May 19, 2020 the Edenville Dam failed, triggering historic flooding that damaged the Allens’ home and other property downstream.
- FERC had licensed hydroelectric projects on the Tittabawassee River; Boyce acquired the Edenville project and repeatedly failed to add required auxiliary spillway capacity.
- FERC issued compliance orders, sought to revoke Boyce’s license, and formally revoked it in September 2018; Michigan’s EGLE assumed regulatory jurisdiction, but Boyce continued operating the dam.
- The Allens sued the United States under the Federal Tort Claims Act (FTCA), alleging FERC negligently entrusted and failed to monitor the dam, causing their losses.
- The Government moved to dismiss for lack of subject-matter jurisdiction, arguing sovereign immunity under the Federal Power Act §10(c) and other defenses; the court granted the motion and dismissed the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 16 U.S.C. § 803(c) bars FTCA claims for damages from the project works | "Constructed under the license" modifies both "project works" and appurtenant works; Edenville was not constructed under Boyce’s license, so §803(c) does not bar suit | §803(c) exempts the United States from liability for damages occasioned by construction, maintenance, or operation of project works regardless of when constructed | Court found the text ambiguous but legislative history and statutory purpose support the Government’s reading; §803(c) exempts the U.S.; dismissal for lack of jurisdiction |
| Proper standard of review for Government’s jurisdictional challenge | Plaintiffs treated the attack as facial; facts in complaint should be accepted | Government framed its argument as a facial attack on jurisdiction under §803(c) | Court treated Government’s argument as a facial attack and accepted complaint allegations for purposes of statutory interpretation |
| Whether FTCA discretionary-function exception bars the claim | FERC’s monitoring and licensing were ministerial/non-discretionary duties subject to FTCA liability | FERC’s decisions implicate policy judgments protected by the discretionary-function exception | Court did not reach this issue after resolving §803(c) in favor of the Government |
| Whether FERC’s conduct would be actionable under Michigan law | FERC negligently entrusted the dam and failed to monitor Boyce under state tort law | FERC’s conduct was not actionable under Michigan law | Court did not resolve Michigan-law merits after finding §803(c) barred jurisdiction |
Key Cases Cited
- Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (sovereign immunity principle: United States not suable without consent)
- United States v. Navajo Nation, 537 U.S. 488 (2003) (waiver of sovereign immunity is prerequisite to jurisdiction)
- Hercules Inc. v. United States, 516 U.S. 417 (1996) (same)
- United States v. Mitchell, 463 U.S. 206 (1983) (limits on suits against the U.S.)
- Brownback v. King, 141 S. Ct. 740 (2021) (summarizing FTCA elements)
- Ritchie v. United States, 15 F.3d 592 (6th Cir. 1994) (facial vs. factual jurisdictional attack framework)
- Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (series-qualifier and comma rules in statutory interpretation)
- Barnhart v. Thomas, 540 U.S. 20 (2003) (last-antecedent rule guidance)
- Skokomish Indian Tribe v. United States, 410 F.3d 506 (9th Cir. 2005) (reading §10(c) to exempt the United States from liability)
- Pac. Gas & Elec. Co. v. FERC, 720 F.2d 78 (D.C. Cir. 1983) (discussing §10(c)’s purpose to place costs on licensees)