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Carrington v. City of Tacoma

United States District Court, W.D. Washington, Tacoma

April 21, 2017

MICHAEL AND COLETTE CARRINGTON, husband and wife, and the marital community thereof, et al., Plaintiffs, CITY OF TACOMA, DEPARTMENT OF PUBLIC UTILITIES, LIGHT DIVISION, D/B/A TACOMA POWER (“TACOMA POWER”), a Washington municipality, Defendant.



         THIS MATTER is before the Court on Plaintiffs' Motion to Remand [Dkt. #9] and Defendant Tacoma Public Utility's Motion to Dismiss [Dkt. #2]. The twenty-three Plaintiffs own property in the flood plain of the Skokomish River, downstream from TPU's Cushman Hydroelectric Project. In September 2016, Plaintiffs sued TPU in Mason County Superior Court, alleging state tort claims for damages resulting from TPU's 2008 FERC-mandated flow regime for the North Fork of the Skokomish River. They claim TPU caused flooding and property damage by improperly releasing water from nearby McTaggert Creek into the North Fork of the Skokomish River. They also claim TPU failed to adequately “enhance the channel capacity of the River” before releasing FERC-mandated flows. They assert six claims: (1) strict liability water law claims; (2) violation of RCW 4.24.630, which prohibits wrongful causing waste or injury to another's land; (3) trespass and continuing trespass; (4) nuisance and continuing nuisance; (5) negligence; and (6) inverse condemnation.

         TPU timely removed the case to federal court. It argues Plaintiffs' negligence claim necessarily raises two federal questions: (1) whether TPU breached the duty of care established by its federal license, and (2) whether § 10(c) of the Federal Power Act preserves all state law damage claims.

         Plaintiffs ask the Court to remand the case to Mason County, claiming none of their state law damage claims implicate a federal question. They contend the duty of care arises from state case law, not from TPU's federal license. They claim the case is identical to Richert v. Tacoma, which this Court remanded in 2011 after the plaintiffs agreed to dismiss their claim for injunctive relief-precluding TPU from operating the dam in a way that damaged them-which was the “hook” TPU used to remove that case. This Court determined the remaining state law damage claims-including Plaintiffs' negligence claims-did not raise a federal question. See Richert et al. v. Tacoma Power Utility, et al., No. 10-05863, Dkt. #32. Plaintiffs also argue § 10(c) preserves their state law damage claims because it expressly assigns liability to dam operators for damages caused by dam operations.

         TPU argues that Richert was or at least is wrongly decided, because every court that has since considered this issue found federal jurisdiction over state law negligence claims: The Fifth Circuit held that FERC-not state tort law-set the applicable duty of care. Simmons v. Sabine River Auth. La., 732 F.3d 569, 476 (5th Cir. 2013). Simmons also held that § 10(c)'s limited savings clause did not preserve state law claims challenging FERC-mandated dam operations-it permitted only negligence claims for failing to operate the dam in compliance with the permit. Id. The Eleventh Circuit similarly held that federal issues were inherent in the resolution of state law tort claims against a dam operator. See Otwell v. Ala. Power Co., 747 F.3d 1275, 1279 (11th Cir. 2014) (“Appellants' claims are inescapably intertwined with a review of the 2010 License and constitute an impermissible collateral attack on FERC's final order.”). And a South Carolina district court denied a motion to remand state law damage claims, holding that a negligence claim necessarily raised a federal issue. Funderburk v. South Carolina Electric & Gas Company, 179 F.Supp.3d 569, 579, 583 (D.S.C. 2016).

         TPU moves to dismiss all of Plaintiffs' claims for similar reasons. It argues they are an impermissible collateral attack on TPU's FERC license and are thus preempted by federal law. TPU repeatedly characterizes plaintiffs' claims as an argument that “FERC got it wrong” when it relicensed the dam.

         While Plaintiffs failed to intervene in TPU's thirty-six year relicensing process, FERC nonetheless considered and addressed substantially similar complaints by other downstream landowners. It declined to impose any of their proposed requirements, concluding instead that the licensed flow regime would reduce sediment aggradation and decrease the overall likelihood of damages. TPU argues the FPA provides a comprehensive regulatory framework preempting all state law claims except damage claims under § 10(c) resulting from negligent operation inconsistent with a FERC license (and proprietary water rights claims reserved under § 27, not at issue here). TPU also contends Plaintiffs' damage claims are conflict preempted because they stand as an obstacle to the purposes and objectives of the FPA's comprehensive regulatory scheme.

         Plaintiffs deny that their claims are a collateral attack, and that they frustrate the FPA because they seek merely compensation for damages caused by dam operations-they do not seek injunctive relief altering the current flow regime. They also reiterate their claim that § 10(c) preserves state law damage claims for negligent operation, whether or not authorized by a FERC license.


         Plaintiffs argue that because all of their claims, including their negligence claim, depend solely on state law, this Court lacks subject matter jurisdiction over them. They point primarily to Richert, where this court remanded substantially similar negligence claims. They claim that the FPA expressly preserves state court jurisdiction over state law damage claims. See § 10(c); DiLaura v. Power Auth. Of State of N.Y., 982 F.2d 73, 78 (2nd Cir. 1999) (Congress “wanted to reserve the right of injured property owners to bring actions for damages against licensees in state court under traditional state tort law.”).

         TPU argues that cases since Richert have correctly held that § 10(c) preserves only state law negligence claims arising from negligent operation of the dam-for failing to adhere to its license's operational requirements. But that is not what the Plaintiffs claim here; they argue operation of the dam in compliance with the license nevertheless causes damage. TPU argues that the duty component of plaintiff's negligence claim necessarily arises from the FERC license, which unavoidably raises a federal question.

         A. Standard of review

         An action is removable to a federal court only if it could have been brought there originally. 28 U.S.C. § 1441(a). Under Conrad Associates v. Hartford Accident & Indemnity Co., 994 F.Supp. 1196 (N.D. Cal. 1998) and numerous other authorities, the party asserting federal jurisdiction has the burden of proof on a motion to remand to state court. The removal statute is strictly construed against removal jurisdiction. The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing removal is proper. Conrad, 994 F.Supp. at 1198. It is obligated to do so by a preponderance of the evidence. Id. at 1199; see ...

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