Jеff SIMMONS; Alice Simmons; Jeanne Simmons; Gerald Edward McBride; Edward Bryant Bonner; et al, Plaintiffs-Appellants, v. SABINE RIVER AUTHORITY State of LOUISIANA; Louisiana Department of Transportation and Development; Linda Curtis Sparks; Entergy Gulf States Louisiana L.L.C.; Entergy Corporation; Entergy Services Incorporated; Entergy Louisiana, L.L.C., Defendants-Appellees.
No. 12-30494.
United States Court of Appeals, Fifth Circuit.
Oct. 9, 2013.
732 F.3d 469
The plaintiffs basically argue not just that there are known unknowns, but that there may be unknown unknowns; that, if only they had more time, they might discover something wrong with the drugs. Unknown unknowns, however, are insufficient to demonstrate a risk of harm; something more is needed to meet the difficult preliminary-injunction standard.
The closest case on point does not help the plaintiffs. In Landrigan v. Brewer, 2010 WL 4269559 (D.Ariz. Oct. 25, 2010), the plaintiff had pointed to a similar risk of harm where the state received its drugs from foreign, non-FDA-approved sources and did not reveal, in a timely manner, the source of the drugs. The plaintiff alleged a more concrete risk than here:
According to Plaintiff, because [the] supply of sodium thiopental lacks the appropriatе safeguards, it could be contaminated with toxins that cause pain, as opposed to unconsciousness or could fail to properly anesthetize him, thus resulting in excruciating pain when the second and third drugs are administered. Plaintiff further alleges that Arizona has feasible alternatives—it can obtain sodium thiopental from Hospira when the company starts manufacturing the drug again in early 2011, or it can use another available, FDA-approved barbiturate.
Id. at *5. The district court concluded thаt the use of sodium thiopental from a non-FDA-approved source raises issues regarding its efficacy and possible side-effects, so the court was unable to determine whether the drug was produced by a foreign company that follows standard operating procedures for the drug‘s manufacture or that has no history of contamination in manufacturing the product. Id. at *10. The court thus accepted the plaintiff‘s showing that such drugs are more likely to contain harmful contaminants, and it issued a stаy of execution. Id. The Ninth Circuit affirmed. 625 F.3d 1144 (9th Cir.2010).
The Supreme Court, however, vacated the stay in a one-paragraph opinion. Brewer v. Landrigan, 562 U.S. 996, 131 S. Ct. 445, 178 L.Ed.2d 346 (2010). It held: “There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. But speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering.‘” Id. (quoting Baze, 553 U.S. at 50; internal citation and quotation marks omitted).
Thus, even in light of a plausible scenario—thаt the foreign drug could contain a specific contaminant that would render the anesthetic ineffective—the Supreme Court held that mere speculation is not enough. There must be some indication in the record that the drug is very likely to cause needless suffering. There is no such evidence in the record before us.
The order denying injunctive relief is AFFIRMED. Yowell‘s motion for stay of execution is DENIED.
Patrick W. Pendley, Esq., Nicholas Ryan Rockforte, Pendley, Baudin & Coffin, L.L.P., New Orleans, LA, Victor L. Marcello, Esq., Talbot, Carmouche & Marcello, Baton Rouge, LA, for Plaintiffs-Appellants.
John Powers Wolff, III, Nancy B. Gilbert, Esq., Martin Edward Golden, Esq., Virginia Jordan McLin, Esq., Jamie Ann Polozola, Keogh, Cox & Wilson, Ltd., Charles Brandon Brown, Brown Law Firm, Baton Rouge, LA, for Defendants-Appellees.
CARL E. STEWART, Chief Judge:
This case asks us to resolve whether the Federal Power Act preempts property damage claims under state law where the claim alleges negligence for failing to act in a manner FERC expressly declined to mandate while operating a FERC-licensed project. We hold that it does, and so we AFFIRM the district court‘s dismissal of Plaintiffs’ case with prejudice.
I. BACKGROUND
A. Facts
The Sabine River meanders between Texas and Louisiana. Two state agencies jointly regulate the Sabine River‘s waterways: the Sabine River Authority of Louisiana and the Sabine River Authority of Texas (collectively, “Authorities“). Upon application by the Authorities, the Federal Power Commission1 granted a fifty-year license (the “License“), commencing Octo-
Under a Power Sales Agreement (the “Agreement“), the Authorities granted Defendant-Appellant Entergy2 the right to oversee the generation of power and to purchasе the generated power. Under the terms of the Agreement, Entergy is subject to the terms and conditions of the License. The License requires the Authorities to maintain a normal maximum reservoir elevation of 172 feet mean sea level (“msl“). To generate power, a minimum reservoir elevation of 162.2 feet msl is required. To maintain the required reservoir levels, water is released through the spillway gates, the power turbines, or both. Entergy and the Authorities operate the spillway gates, which are located in Louisiana.
Between 2000 and 2003, pursuant to Article 43 of the License, FERC considered several requests to modify the Project‘s operations.3 FERC conducted an analysis of historical floods and found that the Dam had not had “any significant effect” on flooding. FERC ultimately denied most of the requests, including a request to raise the Project‘s minimum reservoir elevation, and issued a report explaining its reasoning. In declining to order changes to project operations during floods, FERC observed that the Project “cannot provide any significant flood control benefits.” However, FERC did require improvements to the Project‘s Emergency Action Plan.
B. Procedural History
Plaintiffs-Appellants (“Plaintiffs“) are 28 individuals who allege that their properties were flooded and eroded after the Authorities and Entergy opened the spillway gates from October 30, 2009 through November 2009.4
In October 2010, Plaintiffs filed suit in Louisiana state court, alleging negligence, nuisance, trespass, unconstitutional taking, damage of property without just cоmpensation, and due process violations under the Louisiana and United States constitutions. Plaintiffs sought, inter alia, damages and a permanent injunction “enjoining [Defendants] from opening the flood gates of the Toledo Bend Dam in such a manner as will cause the inundation of the downstream properties of the Plaintiffs.”
Defendants thereafter removed the action under
Subsequently, without ruling on any of Plaintiffs’ pending motions, the district court held a hearing on the pending motion to dismiss. The district court then granted Defendants’ motion to dismiss under
II. STATE TORT CLAIMS
Plaintiffs argue that the district court improperly dismissed Plaintiffs’ claims based on preemption.
A. Standard of Review
We review the district court‘s grant of a motion to dismiss de novo. Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir.2012). Well-pleaded facts are viewed in the light most favorable to the plaintiff. Castro v. Collecto, Inc., 634 F.3d 779, 783 (5th Cir.2011).
B. Preemption
“Federal preemption is an affirmative defense that a defendant must plead and prove.” Fisher v. Halliburton, 667 F.3d 602, 609 (5th Cir.2012). Defendants did so plead. If the complaint establishes the applicability of a federal preemption defense, it can properly be the subject of a
As is well known, federal preemption is based on the Supremacy Clause, which provides that federal law “shall be the supreme Law of the Land.”
[t]he intent to displace state law altogether can be inferred from a framework of regulation so pervasive... that Congress left no room for the States to supplement it or where there is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.
Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2501, 183 L.Ed.2d 351 (2012). Cоnflict preemption occurs “where compliance with both federal and state regulations is a physical impossibility, and those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the
The district court was not explicit as to which type of preemption it found applicable. However, we may affirm the district court‘s judgment for any reason supported by the record. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009).
C. Federal Power Act
In order to understand whether the FPA preempts state property damage claims, we look to the text of the Act, its history, and the way in which the Supreme Court, our circuit, and our sister circuits have interpreted it. We note that this is a question of first impression in this circuit. Our analysis leads us to conclude that the FPA preempts property damage claims based in state tort law where the alleged damage is the result of “negligently” operating in compliance with a FERC-issued license.
The Federal Power Act of 1935 indicates congressionаl intent for “a broad federal role in the development and licensing of hydroelectric power.” California v. FERC, 495 U.S. 490, 496, 110 S.Ct. 2024, 109 L.Ed.2d 474 (1990). There are several FPA sections relevant to the claims at issue here. First, Section 4(e) of the Act authorizes FERC to issue licenses for projects “necessary or convenient... for the development, transmission, and utilization of power across, along, from, or in any of the streams... over which Congress has jurisdiction.”
Third, Section 10(c) of the Act is central to Plaintiffs’ arguments and our analysis. First, it requires the licensee to maintain the project and conform to Commission rules.
Finally, Section 27 of the Act is a savings clause:
Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.
The Act “carefully preserved separate interests of the states throughout the Act, without setting up a divided authority over any one subject.” First Iowa Hydro-Elec. Coop. v. Fed. Power Comm‘n, 328 U.S. 152, 174, 66 S.Ct. 906, 90 L.Ed. 1143 (1946). As several cases recount, members of Congress who were involved in formulating the FPA emphasized that the state retained some water rights. For example, Representative William L. LaFollette of Washington stated, “The property rights are within the State. It can dispose of the beds, or parts of them, regardless of the riparian ownership оf the banks, if it desires to[.]” Id. (citing 56 Cong. Rec. 9810); see also Skokomish Indian Tribe v. United States, 410 F.3d 506, 519 (9th Cir.2005) (holding that the FPA “does not create a federal private right of action, but instead preserves only existing state-law claims against licensees“); DiLaura v. Power Auth. of N.Y., 982 F.2d 73, 78 (2d Cir.1992)
D. Supreme Court Precedent and Other Persuasive Authority
The district court relied on First Iowa and California v. FERC for its preemption determination. Both cases concern state water permitting schemes rather than state tort law, as is at issue here; thus while neither is dirеctly on point, we find them both informative, as is Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 666 (1954).
In First Iowa, the Supreme Court considered whether a proposed federal hydroelectric project was required to obtain a state permit, as mandated by Iowa law, in addition to its federal license. 328 U.S. at 161. The Court held that such a state permit was not required because it would allow the state agency a “veto power over the federal project” and thereby subvert the comprehensive control of the project granted to the federal government. Id. at 164. The Court also held that the savings clause,
In Niagara Mohawk, the Supreme Court held that the Federal Water Power Act of 19207 did nоt eliminate preexisting water rights, grounded in state law, on navigable streams. 347 U.S. at 248. In so holding, the Court recognized the United States‘s “dominant servitude... under which private persons hold physical properties obstructing navigable waters of the United States and all rights to use the waters of those streams,” but it also recognized “that the exercise of that servitude, without making allowances for preexisting rights under state law, requires clear authorization.” Id. at 249. Moreover, the Court concluded that while the Act reservеs the ability to “exercise the federal servitude and... federal rights of purchase or condemnation, there is no purpose expressed to seize, abolish or eliminate water rights without compensation merely by force of the Act itself.” Id. at 251-52. Importantly for the issue here, the Court noted that the Act “merely imposes” on the owners of state-based property rights “the additional obligation of using them in compliance” with the Act. Id. at 252. The Court expressed disbelief that the Act abolished “preеxisting water rights on a nationwide scale,” stating that such action would require “a convincing explanation of that purpose,” which the Court did not find. Id. at 252-53.
If that were the end of our inquiry, the issue before us would present a closer question. However, California v. FERC, decided over four decades after First Iowa, indicated that the FPA has occupied the field of “power development and other public uses of the waters,” with the exception of a narrow carve-out for water use
The language in California v. FERC indicates that the Supreme Court has interpreted the FPA as occupying the field of public water usе and power generation except for water use rights. Thus, we agree with the Ninth Circuit‘s statement that First Iowa and its progeny have “read the broadest possible negative pregnant into [the FPA‘s] savings clause,” exempting only “a state property law regime [that] enables users of streams and wells to obtain proprietary rights in a continuing quantity of water.” Sayles Hydro Assocs. v. Maughan, 985 F.2d 451, 454-55 (9th Cir.1993) (also discussing California v. FERC‘s interpretation of First Iowa).8
The importance of a single federal agency controlling public water use and dam operations is underscored by the factual scenаrio presented by the instant case. The Dam spans the Texas and Louisiana state lines, and the FERC license was granted to an entity comprised of both state agencies. Yet, Plaintiffs assert claims only under Louisiana law and only against Louisiana state agencies, in addition to the private defendants. That each state may have different causes of action and different standards of conduct that it could impose on the FERC licensee is problematic when states are jointly involved in such a project.
E. Property Damage Claims Under FPA § 10(c)
California v. FERC‘s interpretation of Section 27‘s general savings clause is instructive for our interpretation of Section 10(c)‘s limited savings clause. The latter cannot be interpreted so broadly as to allow state tort law to supplant FERC‘s exclusive control of dam operations.
Because the state law property damage claims at issue here infringe on FERC‘s operational control, we hold that they are conflict preempted. Essentially, Plaintiffs allege that Defendants were negligent because they failed to act in a manner FERC had expressly declined to require. But FERC, not state tort law, must set the appropriate duty of care for dam operators. See
The Supreme Court has recognized that damages claims can serve the same effect as regulations. See Kurns, 132 S. Ct. at 1269 (“[S]tate regulation can be... effectively exerted through an award of damages, and [t]he obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” (second alteration in original) (citation and internal quotation marks omitted)). Plaintiffs attempted, through the proper administrative procedure channels, to impose changes on Dam operations. FERC considered these requests and issued a report denying most of the requested changes. Plaintiffs have nоt asserted that this administrative decision was improper. Nonetheless, failing to achieve their objective, Plaintiffs now seek to use state law to accomplish the same aims, alleging that Defendants were negligent for not changing their operations. Permitting such state property damage claims in an attempt to force changes to a FERC-issued license would “constitute a veto of the project that was approved and licensed by FERC.” California v. FERC, 495 U.S. at 507, 110 S.Ct. 2024; see also City of Lowell v. ENEL N. Am., Inc., 796 F.Supp.2d 225, 231 (D.Mass.2011) (holding that a “negligence claim is рreempted by the FERC license because [the plaintiff] cannot use state tort law to prevent [the FERC licensee] from doing something that FERC has sanctioned” and describing the negligence claim as a “collateral attack on the FERC license“).9
Applying state tort law to set the duty of care for the operation of FERC-licensed projects would “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives” of the FPA. See Arizona, 132 S. Ct. at 2501. We thеrefore hold that the district court properly concluded that the FPA preempts Plaintiffs’ claim for negligence.10
III. MOTIONS TO AMEND AND REMAND
After Defendants filed their motion to dismiss, Plaintiffs filed two motions to amend their complaint. The first motion to amend sought to delete references to the United States Constitution, which Plaintiffs characterized as “mistaken” additions to their complaint. The second motion to amend sought, without explanation, to remove the complaint‘s claim for injunctive relief. The district court did not explicitly rule on these motions before granting Defendants’ motion to dismiss. Plaintiffs argue the district court abused its discretion in failing to permit them to amend their complaint. Plaintiffs also argue that the district court erred when it implicitly denied their motion to remand.
A district court‘s denial of leave to amend is reviewed for an abuse of discretion. Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 364 (5th Cir.2012). Similarly, a district court‘s failure to remand state law claims to the state court from which the case was removed is reviewed for abuse of discretion. Enochs v. Lampasas Cnty., 641 F.3d 155, 158 (5th Cir.2011).
B. Motions to Amend
Although the distriсt court did not explicitly deny Plaintiffs’ motions to amend, it implicitly did so when it entered its ruling in favor of Defendants’ motion to dismiss and dismissed the case with prejudice. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994).
“[A] party may amend its pleading only with the opposing party‘s written consent or the court‘s leave. The court should freely give leave when justice so requires.”
“Denial of leave to amend may be warranted for undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies, undue prejudice to the opposing party, or futility of a proposed amendment.” Id. Where, as here, the district court has not “engage[d] in a formal recitation of reasons[, the] reason for denial must be clear... either from the findings of the district court or elsewhere in the record.” Lone Star Ladies Inv. Club v. Schlotzsky‘s Inc., 238 F.3d 363, 367 (5th Cir.2001).
Defendants argue that Plaintiffs’ proposed amendments were futile in light of the district court‘s holding that the FPA preempted their state law claims. We agree. “Clearly, if a complaint as amended is subject to dismissal, leave to amend need not be given.” Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 546 (5th Cir.1980), abrogated on other grounds by Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 536 n. 33, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Here, the complaint as amended would have left only state law claims for property damage. As we have determined that the district court correctly dismissed these claims, Plaintiffs’ motions to amend were futile. Accordingly, the district court did not abuse its discretion in implicitly denying Plaintiffs’ motions to amend.
C. Motion to Remand
Because we have concluded that the district court properly granted Defendants’ motion to dismiss, we need not consider whether the district court abused its discretion in denying Plaintiffs’ motion to remand.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.