Carrington v. City of Tacoma, Department of Public Utilities, Light Division
276 F. Supp. 3d 1035
| W.D. Wash. | 2017Background
- Twenty-three downstream landowners sued Tacoma Public Utility (TPU) in state court for flood damage allegedly caused by TPU’s operation of the Cushman hydroelectric project under a FERC-mandated flow regime following relicensing.
- Plaintiffs asserted six state-law claims: strict liability (water law), RCW 4.24.630 violation, trespass, nuisance, negligence, and inverse condemnation; they sought only damages (no injunctive relief altering the license).
- TPU removed to federal court, arguing Plaintiffs’ negligence claim necessarily raises federal questions (duty of care derives from TPU’s FERC license and the scope of 16 U.S.C. §10(c)), and moved to dismiss all claims as preempted by the Federal Power Act (FPA).
- Plaintiffs moved to remand relying on precedent (Richert) and §10(c) to preserve state damage claims; they argued state tort law provides the duty of care and they seek only compensation.
- The court applied Gunn’s four-part federal-question test, concluded Plaintiffs’ negligence claim necessarily raises substantial federal issues (interpretation/application of the FERC license and §10(c)), denied remand, and held all state-law damage claims are field- and conflict-preempted by the FPA.
- The court dismissed the claims with prejudice and denied leave to amend, concluding amendment could not cure preemption-based defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal-question jurisdiction exists over the negligence claim | Negligence duty arises from state tort law; no federal question; remand warranted | Duty of care derives from TPU’s FERC license and §10(c) raises federal issues; federal jurisdiction proper | Federal jurisdiction exists: negligence claim necessarily raises actually disputed, substantial federal questions under Gunn; remand denied |
| Whether 16 U.S.C. §10(c) preserves Plaintiffs’ state-law damage claims | §10(c) preserves state tort claims for damages caused by dam operation even if operation complies with the license | §10(c) preserves only state-law claims alleging operation outside license; it does not save claims challenging license-consistent operations | §10(c) does not preserve claims for damages caused by license-compliant operations; §10(c) is limited to claims for noncompliance |
| Whether Plaintiffs’ state-law damage claims are field-preempted by the FPA | State tort claims for damages are traditional state matters and should proceed | FPA and FERC licensing occupy the field for licensed hydro projects except narrow state property rights; claims attack FERC relicensing and are preempted | Claims are field-preempted: FPA occupies the relevant field and Plaintiffs failed to use the FERC administrative/appeals process |
| Whether Plaintiffs’ claims are conflict-preempted | Monetary damages do not interfere with FERC’s regime; no injunction sought, so no conflict | State damages for license-consistent activity would frustrate FPA objectives and undermine uniform federal regulation | Claims are conflict-preempted: allowing state damages for license-compliant operations would obstruct FPA’s comprehensive scheme |
Key Cases Cited
- Simmons v. Sabine River Auth. La., 732 F.3d 469 (5th Cir.) (license, not state tort law, supplies duty of care for dam operators)
- Otwell v. Ala. Power Co., 747 F.3d 1275 (11th Cir.) (state tort claims against licensee impermissibly collateral attack on FERC relicensing)
- DiLaura v. Power Auth. of State of N.Y., 982 F.2d 73 (2d Cir.) (§10(c) preserves state tort liability when claim challenges noncompliant operation)
- Gunn v. Minton, 568 U.S. 251 (2013) (four-part test for federal-question jurisdiction on state-law claims)
- First Iowa Hydro-Elec. Co-op. v. Federal Power Comm’n, 328 U.S. 152 (1946) (FPA creates comprehensive national regulatory scheme for hydroelectric projects)
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) (exclusive federal review of FERC licensing decisions via courts of appeals)
- Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625 (2012) (state-law damages can effectively regulate conduct and conflict with federal objectives)
- Sayles Hydro Assocs. v. Maughan, 985 F.2d 451 (9th Cir.) (§27 reserves only state proprietary water-rights authority)
- McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086 (9th Cir.) (elements of negligence include duty of care)