Charles R. Otwell, Sr. v. Alabama Power Company
2014 U.S. App. LEXIS 6042
| 11th Cir. | 2014Background
- 1957 FPC license authorized Smith Lake project, with a 510–522 ft msl inundation area and flood-control operations.
- Alabama Power operated Smith Lake as a peaking system, normally at or below 510 ft msl absent floods.
- 2000–2010 relicensing process culminated in a 2010 FERC license maintaining prior operation; SLISA opposed more stable lake levels.
- SLISA and KHFW/Billings intervened in relicensing, proposing higher, more stable levels and cooling towers; FERC rejected those proposals.
- In 2011, Appellants filed state-law tort claims alleging unreasonable lake-level reductions; district court granted summary judgment for Alabama Power as collateral attack on FERC order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Appellants have concrete recreational injury | Standing exists underArticle III for environmental injury | Appellants have standing |
| Declaratory relief for riparian rights | Seek declaratory riparian rights | Declaratory relief improper | District court did not abuse discretion; denied declaratory relief |
| Collateral attack under FPA §825l(b) | Not a collateral attack; seeks enforcement | Claims intertwined with FERC review | Collateral attack; exclusive review lies in court of appeals |
| Section 821 rights preservation | §821 preserves state water rights | Rights do not include recreational use of Smith Lake | §821 does not authorize challenges to FERC-approved operation |
Key Cases Cited
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (U.S. Supreme Court 1958) (exclusive review provision governs challenges to agency orders)
- First Iowa Hydro-Electric Coop. v. Fed. Power Comm’n, 328 U.S. 152 (U.S. Supreme Court 1946) (§ 821 protects state water rights limited to irrigation/municipal uses)
- California v. FERC, 495 U.S. 490 (U.S. Supreme Court 1990) (federal preemption; broad federal regulatory role for FERC)
- Doe v. FAA, 432 F.3d 1259 (11th Cir. 2005) (collateral attack analysis for agency orders)
- Merritt v. Shuttle, Inc., 245 F.3d 182 (2d Cir. 2001) (second circuit on exclusive review and intertwined claims)