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Otwell v Alabama Power Company

Case No. 13-12584 (C.A. 11, Apr. 1, 2014)

Charles and Judy Otwell, property owners on Smith Lake in north central Alabama; David Billings, another property owner on Smith Lake; and KHFW, LLC, a real estate development company that owns property on Smith Lake (collectively, Appellants), appeal the district court’s grant of summary judgment to Appellee Alabama Power Company (Alabama Power) on their complaint alleging Alabama Power unreasonably lowers the water levels of Smith Lake. We conclude Appellants’ claims are an impermissible collateral attack on the agency order authorizing Alabama Power to continue operating the lake and therefore affirm.

I. BACKGROUND



The district court provided a thorough and cogent review of the history and context of this case in its order granting summary judgment, and the parties do not dispute the essential facts. Accordingly, we provide only a brief overview of the pertinent information.

In 1957, the Federal Power Commission (FPC), the predecessor of the Federal Energy Regulatory Commission (FERC), issued Alabama Power a 50-year license (the 1957 License) to construct, operate, and maintain the Warrior River Project (the Project), which included constructing the Lewis Smith Dam on the Sipsey Fork of the Black Warrior River, creating a 21,200 acre reservoir (i.e., Smith Lake), and building hydroelectric power houses. In accordance with the 1957 License, Alabama Power purchased or condemned land and property rights below 510 feet mean sea level (msl) from affected property owners and acquired the right to inundate the lands between 510 and 522 feet msl under certain conditions.
 

 

Judge(s): Susan Black
Jurisdiction: U.S. Court of Appeals, Eleventh Circuit
Related Categories: Administrative Law , Conflict of Laws , Property
 
Circuit Court Judge(s)
Susan Black
Frank Hull
Lynwood Smith, Jr.

 

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Click the maroon box above for a formatted PDF of the decision.
appellants’ suit. cf. telecomms. research & action ctr. v. fcc, 750 f.2d 70, 78 honorable c. lynwood smith, jr., united states district judge for the northern district riparian rights in smith lake. in a meticulous and particularly thoughtful order, riparian rights in the lake, and an injunction requiring alabama power to construct 1 with the gorgas steam plant (plant gorgas), which is located approximately 44 for the foregoing reasons, we affirm the district court’s judgment denying comprehensive use of multiple competing resources within the warrior river and once-through cooling) to minimize the releases of water from smith dam. f.3d 1328, 1330 (11th cir. 2005) (“the declaratory judgment act is an enabling case: 13-12584 date filed: 04/01/2014 page: 16 of 18 16 u.s.c. § 821. the supreme court has stated that the fpa: first iowa hydro-electric coop. v. fed. power comm’n, 328 u.s. 152, 171, 66 s. 78 s. ct. at 1219. “prescribed the specific, complete and exclusive mode for judicial review of the determination in any court.” (quotation marks and citation omitted)). particularized injury in fact that gives them article iii standing. see sierra club v. satisfy article iii’s standing requirements, a plaintiff must show (1) he has suffered emphasized that the fpa “establishes a broad and paramount federal regulatory the filing of such petition such court shall have jurisdiction, which within sixty days after the order of the commission upon the under alabama law. this appeal followed. 9 at 2034, and the district court’s grant of summary judgment to alabama power is from those allegations were voluntarily dismissed and are not part of this appeal. case: 13-12584 date filed: 04/01/2014 page: 4 of 18 judgment as well as “threshold justiciability determinations.” ouachita watch appellants contend the district court erred by finding their claims were an alabama power unreasonably decreased lake levels during certain months of the alabama power company, the ferc’s final order because those persons were not parties to the proceedings. we agree with the district court that appellants’ claims are a collateral ________________________ 7 more recently, in california v. ferc, 495 u.s. 490, 499, 110 s. ct. 2024, id. smith lake, provides procedures to be followed during a flood, and establishes conclude appellants’ claims are an impermissible collateral attack on the agency before the ferc may not contest the agency’s final decision in an alternative his aesthetic or recreational interests in the area have been harmed”).4 alabama power had no discretion regarding the operation of the project. unpersuaded. jurisdiction of the states. the solution reached is to apply the as the district court recognized, the question of whether appellants have case: 13-12584 date filed: 04/01/2014 page: 1 of 18 and federal governments. claims on an alternative basis. see ameritas variable life ins. co. v. roach, 411 complaint several times, appellants ultimately asserted numerous state tort claims and constitute an impermissible collateral attack on the ferc’s final order. does not conflict with our holding that the exclusive review provision of the federal power act year to such an extent that they could not enjoy their property or the lake.3 appellants, if they do not possess riparian rights in the lake, then they do not have the plaintiffs also alleged that alabama power improperly stored water on their standing to assert their claims. because “we have an obligation to assure ourselves 2030 (1990), the supreme court adhered to a narrow construction of § 821 and in order to assure itself of its jurisdiction to resolve this case. according to summary judgment, we view the facts and draw all reasonable inferences in the claims that are ‘inescapably intertwined’ with review of such orders”). the review inescapably intertwined with a review of the procedures and actions taken by the we of the federal aviation administration and concluding the plaintiff’s claims were exclusively in the courts of appeals also preclude district courts from hearing whether to issue a declaratory judgment, and the remedy is not obligatory. wilton litigant.” (quotation marks omitted)); see also wilton, 515 u.s. at 289, 115 s. ct. at 6 construct cooling towers at plant gorgas (rather than allow the company to use requested, inter alia, monetary damages, a declaratory judgment finding they had (collectively, appellants), appeal the district court’s grant of summary judgment to 3 not in the overall public interest to adopt this measure.” on march 31, 2010, the case: 13-12584 date filed: 04/01/2014 page: 8 of 18 distribution of water used in irrigation or for municipal or other uses, an injury in fact that is concrete and particularized as well as actual or imminent, § 825l(b) as allowing any person or entity that was not a party to the ferc such a construction of the statute would do violence to congress’s deliberately o’odham nation, 131 s. ct. 1723, 1730 (2011). under appellants’ approach, any judicial review of an order of the ferc to those parties who participated in the demands on the company’s system and, in so doing, would normally keep smith i. background for the northern district of alabama 5 lake.” jared key—a former plaintiff in this case and one of the owners of contention that particular conduct is illegal. . . .”). ct. 906, 915 (1946). in that context, the supreme court explained that § 821 because we conclude appellants could not pursue their claims directly in the district through cooling—a process that allows the plant to meet regulatory requirements faa); see also merritt v. shuttle, inc., 245 f.3d 182, 187 (2d cir. 2001) judy otwell, than challenging the agency’s decision, appellants simply sought to enforce their commission’s proceedings may not challenge the commission’s final agency’s final determination. cal. trout v. ferc, 572 f.3d 1003, 1013 (9th cir. the same results and to place the same constraints on alabama power rejected by 10 an impermissible collateral attack on the agency order because they were stable throughout the year and suggested that the ferc require alabama power to any party to a proceeding under this chapter aggrieved by an order regardless of whether appellants have riparian rights in smith lake, the case: 13-12584 date filed: 04/01/2014 page: 14 of 18 the ferc, appellants filed a putative class action against alabama power in the judgment on their claim seeking a declaratory judgment that they possessed decide whether they have riparian rights in the waters of smith lake. they alabama power filed a motion for summary judgment on all of the the fitness of the case for resolution, are peculiarly within [the district court’s] maximum energy generation from water available and did not have to maintain f.3d 964, 976 (11th cir. 2005) (“[s]tanding in no way depends on the merits of the plaintiff’s act, which confers a discretion on courts rather than an absolute right upon the located or has its principal place of business, or in the united states we begin our analysis with a brief discussion of federal jurisdiction and the miles downstream from the dam. as part of the coordination procedure, alabama in march 2009, the ferc issued a “final environmental assessment” in judge coogler granted alabama power’s motion for summary judgment and appellee alabama power company (alabama power) on their complaint alleging district court’s grant of summary judgment to alabama power and hold that rights,’ or ‘rights of the same nature as those relating to the use of water in other modes of judicial review,” and requires that “all objections to the order, to ________________________ 14 district judge. discretion in the district court’s refusal to grant declaratory relief, we address the appellants’ motion for partial summary judgment and granting summary judgment city of tacoma that § 825l(b) precludes all other modes of judicial review and that 16 operations pursuant to a manual that alabama power would prepare in conjunction smith lake), and building hydroelectric power houses. in accordance with the appellants property rights and allows them to pursue their claims. downstream river basins.” slisa filed a petition for rehearing. to regulate the amount of water a ferc-licensed power plant had to maintain in a case: 13-12584 date filed: 04/01/2014 page: 3 of 18 iowa, 328 u.s. at 176, 66 s. ct. at 917). the supreme court also concluded that party’s claims.” (quotation marks and brackets omitted)); bochese v. town of ponce inlet, 405 (2) the injury is traceable to the defendant, and (3) it is likely the injury will be case: 13-12584 date filed: 04/01/2014 page: 17 of 18 federal energy regulatory commission (ferc), issued alabama power a 50-year see friends of the earth, 528 u.s. at otherwise avoid liability for any number of reasons. appellants did not have a (april 1, 2014) right to a declaratory judgment, and the district court did not abuse its substantial that they do not seek to vindicate the same interests slisa pursued before the [n]othing contained in this chapter shall be construed as affecting or fail in the absence of riparian rights because the district court’s jurisdiction to resolve cases and case: 13-12584 date filed: 04/01/2014 page: 15 of 18 have alleged a concrete and particularized injury in fact to their recreational conditions. compelling considerations, including judicial economy, fairness, and the finding that they possess riparian rights in smith lake. finding no abuse of all.” 357 u.s. at 336, 78 s. ct. at 1219. our interpretation of § 825l(b) also the power plant was subject to the minimum flow rates established by the ferc a. standing interests, see nat’l parks conservation ass’n v. norton, 324 f.3d 1229, 1242-43 affirmed. on may 11, 2011, while slisa’s petition for rehearing was pending with such rights, alabama power might not have violated those rights or might prevents the provision from being rendered nugatory. see united states v. tohono rejected by the ferc in its relicensing proceedings, in the order issuing the 2010 (fpa) contains a judicial review provision which vests the federal courts of ferc. 16 u.s.c. § 825l(b). section 825l(b) provides: appellants’ standing is entirely independent of whether they actually have riparian uses of the same nature.” id. at 175-76, 66 s. ct. at 917. the court emphasized concluded that “the costs of [slisa’s] alternative outweigh the benefits, and it is case: 13-12584 date filed: 04/01/2014 page: 11 of 18 appellants also challenge the district court’s denial of their cross-motion for partial for the temperature of discharges back into the river. such coordination ordinarily dispute the essential facts. accordingly, we provide only a brief overview of the 2009) (“because section [825l(b)] enumerates the specific, complete and exclusive black, circuit judge: that the words “other uses” are “confined to rights of the same nature as those upon the filing of the record with it shall be exclusive, to affirm, case: 13-12584 date filed: 04/01/2014 page: 6 of 18 the commission be modified or set aside in whole or in part. . . . upon with the development of the long idle water power resources of the versus in 1957, the federal power commission (fpc), the predecessor of the jurisdictional question which must be addressed prior to and independent of the merits of a case: 13-12584 date filed: 04/01/2014 page: 7 of 18 3 from other areas of the law in which concepts of discretion surface.” id. at 286-87, respective states relating to the control, appropriation, use, or application for rehearing, a written petition praying that the order of controversy”). appellants’ suit sought more stable water levels in smith lake, and ferc since they assert different claims and request different relief. in addition, charles r. otwell, sr., rights in smith lake. it is immaterial that the specific claims appellants chose to pursue would 6 wherein the licensee or public utility to which the order relates is context of this case in its order granting summary judgment, and the parties do not llc, a real estate development company that owns property on smith lake league v. jacobs, 463 f.3d 1163, 1169 (11th cir. 2006). in reviewing a grant of appellants explicitly requested an injunction requiring alabama power to construct cooling towers at plant gorgas—proposals expressly considered and alabama; david billings, another property owner on smith lake; and khfw, against alabama power related to its allegedly unreasonable actions in lowering court, we need not address the district court’s alternative finding that alabama power’s operation flooding. it is undisputed, however, that so long as alabama power operated the specific section of a stream. id. at 493-94, 110 s. ct. at 2027. in concluding that schedule for flood control operations were needed. 2. section 821 actively participated in the relicensing proceedings and opposed alabama power’s has] always understood it to suggest, distinguish the declaratory judgment context act has been understood to confer on federal courts unique and substantial 15 below 510 feet mean sea level (msl) from affected property owners and acquired case: 13-12584 date filed: 04/01/2014 page: 18 of 18 (explaining that “statutes . . . that vest judicial review of administrative orders no. 13-12584 modify, or set aside such order in whole or in part. and california from the present case by asserting this case involves discretionary for partial summary judgment. rejected slisa’s proposal for more stable lake levels and approved alabama a declaratory judgment concerning appellants’ purported riparian rights. it is well charles and judy otwell, property owners on smith lake in north central to irrigation or municipal uses even if the guide curve were mandatory or if such order in the united states court of appeals for any circuit 4 power’s plan for operating the project “because it provide[d] for the the right to inundate the lands between 510 and 522 feet msl under certain 1. section 825l(b) 17 conduct while first iowa and california involved mandatory state regulations. statute’s textual commitment to discretion, and the breadth of leeway [the court 2144 (“[f]acts bearing on the usefulness of the declaratory judgment remedy, and nat’l comm., 520 f.3d 1299, 1301 (11th cir. 2008) (quotation marks omitted). to grasp.”). accordingly, we affirm the district court’s denial of appellants’ motion (11th cir. 2008). license, and in its order denying rehearing. appellants are attempting to obtain arguments before addressing the propriety of the district court’s grant of summary person or entity with an interest in the proceedings before the ferc could evade after alabama power removed the case to federal district court, the ferc affirm. in their complaint, appellants alleged even if they were not, alabama power’s operation of the project was reasonable statute’s judicial review mechanism did not negate the fact that appellants’ have alleged a the 1957 license obligated alabama power to implement flood control defendant-appellee. arguing that they are pursuing different claims and different relief than the parties appellants argue that 16 u.s.c. § 821 expressly preserves state common law denied appellants’ cross-motion, finding in pertinent part that appellants’ claims before the ferc. see id. (stating § 825l(b) encompasses “all issues inhering in the 110 s. ct. at 2029 (quotation omitted). the court explained that “california’s the fpa’s exclusive judicial review provision by simply choosing not to participate 8 sipsey fork of the black warrior river, creating a 21,200 acre reservoir (i.e., forum by bringing challenges that are inescapably intertwined with a review of the the doctrine of standing does not support appellants’ arguments. article iii the district court provided a thorough and cogent review of the history and protects state laws from federal preemption but is limited “to laws as to the control, iii. discussion discretion by assuming appellants had riparian rights and then resolving their impermissible collateral attack on the ferc’s relicensing order because, rather v. sec’y of ga., 668 f.3d 1285, 1288 (11th cir. 2012) (“we have held that standing is a threshold mode for judicial review of the commission’s orders, a non-party to the ferc in july 2005. the application provided that alabama power would continue or would use more frequently, an area affected by the alleged violations and that appellants’ purported rights to the recreational use of smith lake would not relate 18 proceedings. instead, we read § 825l(b) as limiting the persons who may seek constitutional standing requirements of article iii. after concluding appellants reiterated that § 821 is limited to proprietary rights “of the same nature as those the license it directs to be issued, and to the legal competence of the licensee to case: 13-12584 date filed: 04/01/2014 page: 9 of 18 guide curves for the year-round elevation of the lake. the manual explains that we review de novo a district court’s resolution of a motion for summary crafted administrative scheme and would eviscerate § 825l(b). appellants argue the district court abused its discretion by declining to cooling towers at plant gorgas. circuit court of walker county, alabama.2 specifically proposed that the elevation of smith lake be kept higher and more obtain a collateral redetermination of the identical issues considered and rejected in project to meet the dual requirements of flood control and downstream navigation, ________________________ controversies. u.s. const. art. iii, § 2. standing “is an essential and unchanging the agency in the exercise of its institutional expertise, and their claims are david billings, case, an individual plaintiff may show . . . injury in fact[] by attesting that he uses, 2 summary judgment. the levels of smith lake. in the operative version of their complaint, appellants appellants’ purported rights in smith lake relate to their recreational use of section 821 does not allow appellants to veto the operation of a project that was section 821 provides that: appeal from the united states district court entailed by appellants’ claims is statutorily dedicated to the court of appeals, and appellants’ argument that they are not subject to the exclusive judicial in 1974, alabama power began coordinating its operation of smith lake plaintiffs-appellants, riparian rights in smith lake is not dispositive of their claims. even if they have of a litigant’s standing under article iii,” we consider appellants standing case: 13-12584 date filed: 04/01/2014 page: 13 of 18 issued by the commission in such proceeding may obtain a review of which it discussed slisa’s proposal for more stable lake levels at length and cognizable injury in fact for article iii purposes. completely unrelated to the type of rights that fall within the ambit of § 821. before hull and black, circuit judges, and smith,* contend the district court should have addressed whether they have riparian rights after consulting with numerous stakeholders, filed a renewal application with the to alabama power. case: 13-12584 date filed: 04/01/2014 page: 2 of 18 to operate the project as a peaking plant and that no changes in the guide curve or nation and a determination to avoid unconstitutional invasion of the the relicensing proceedings. slisa is “a non-profit organization representing khfw, llc, or any vested right acquired therein. inescapably intertwined with a review of the ferc’s final decision. see doe v. approved and licensed by the ferc, see california, 495 u.s. at 506-07, 110 s. ct. review provision of § 825l(b) because they are distinct parties from slisa and did khfw—is the president of slisa. slisa, as well as appellant david billings, judgment. ouachita watch league, 463 f.3d at 1169. 11 interpreted by the supreme court. appellants attempt to distinguish first iowa court of appeals for the district of columbia, by filing in such court, 2 c. collateral attack 180-81, 120 s. ct. at 704. first iowa’s interpretation of § 821 was not dicta. id. at 500-02, 110 s. ct. at controversies does not hinge on the ultimate success or failure of a plaintiff’s claims. see swann power releases cold water from smith dam for plant gorgas to use in once- 336, 78 s. ct. 1209, 1218 (1958). thus, § 825l(b) “necessarily preclude[s] de per day from may through october. the district court did not err by concluding it could not resolve the merits of not participate in the proceedings before the ferc is unavailing. we do not read iv. conclusion affirmed.6 (the 2010 license). in the 2010 license, the ferc stated it had considered and ferc issued alabama power a 30-year license to continue operating the project appellants’ claims, and appellants filed a cross-motion for partial summary proceedings to collaterally challenge the final order resulting from those relating to the use of water in irrigation or for municipal purposes.” id. at 497-98, novo litigation between the parties of all issues inhering in the controversy, and all in 2000, alabama power began the process of relicensing the project and, 2030-31. ii. standard of review with the army corps of engineers. that manual describes the normal operation of case: 13-12584 date filed: 04/01/2014 page: 10 of 18 s. ct. at 917. request to continue operating the project as it had under the 1957 license. slisa relating to the use of water in irrigation or for municipal purposes.” id. at 176, 66 and allows them to assert their state law claims against alabama power. we are (fpa) prevented appellants from pursuing their claims in the district court. although the fpa in the proceedings, or by creating a corporate entity to champion its interests (d.c. cir. 1984) (explaining that exclusive judicial review provisions implicate it could conduct its operations “to best suit system requirements to obtain faa, 432 f.3d 1259, 1263 (11th cir. 2005) (considering a challenge to a decision 1957 license, alabama power purchased or condemned land and property rights relief for abuse of discretion. frulla v. cra holdings, inc., 543 f.3d 1247, 1251 likely be redressed by a favorable decision. accordingly, appellants meet the were an impermissible collateral attack on the ferc’s 2010 relicensing order and, the smith lake improvement and stakeholders association (slisa) intervened in (11th cir. 2003), that injury is traceable to alabama power, and that injury would all objections to the ferc’s order “must be made in the court of appeals or not at rather than the state, the supreme court reaffirmed the validity of first iowa and discloses both a vigorous determination of congress to make progress the lake. those alleged rights are not similar in nature to rights relating to irrigation and municipal uses and therefore do not fall within the scope of § 821, as case: 13-12584 date filed: 04/01/2014 page: 5 of 18 directs all challenges to the ferc’s final orders directly from the agency to this court, the servs. (toc), inc., 528 u.s. 167, 180-81, 120 s. ct. 693, 704 (2000). appeals with exclusive jurisdiction to affirm, modify, or set aside an order of the tenn. valley auth., 430 f.3d 1337, 1344 (11th cir. 2005) (“in an environmental have alleged a cognizable injury in fact, we address their contention that the * 1325, 1331 (11th cir. 2013). we review the district court’s denial of declaratory elimination of duplicative and potentially conflicting review). ferc proceedings. 16 u.s.c. § 825l(b). thus, non-parties to the proceedings [publish] having assured ourselves that article iii’s standing requirements have been of alabama, sitting by designation. 115 s. ct. at 2142. part of the case-or-controversy requirement of article iii.” dimaio v. democratic alleged harm to their recreational interests in the lake is a concrete and 13 the discretion granted to alabama power under its ferc license, however, is voluntarily dismissed from the case. case: 13-12584 date filed: 04/01/2014 page: 12 of 18 minimum stream flow requirements neither reflect nor establish ‘proprietary for the eleventh circuit district court abused its discretion by declining to issue a declaratory judgment redressed by a favorable decision. friends of the earth, inc. v. laidlaw envtl. b. declaratory relief of the project was reasonable under state law. appellants argue § 821 of the fpa “saves” their state common law rights riparian rights. appellants also maintain they are distinct parties from slisa and role.” in california, the state of california and the federal government both sought jared key was also a plaintiff in the initial suit, but he and his claims were later discretion in deciding whether to declare the rights of litigants,” and that “[t]he project (the project), which included constructing the lewis smith dam on the alabama power unreasonably lowers the water levels of smith lake.1 attack on the ferc’s final relicensing determination. the federal power act license (the 1957 license) to construct, operate, and maintain the warrior river met, we conclude the district court did not abuse its discretion in declining to issue alabama power would operate the project as a “peaking plant” to help meet energy specified lake elevations.” before the agency. then, following an adverse order, the non-participants could denied slisa’s request for rehearing, reiterating that slisa’s proposal for more lake at or below an elevation of 510 feet msl at all times when there was no light most favorable to the nonmoving party. goodman v. kimbrough, 718 f.3d pertinent information. supreme court has explained that, “[s]ince its inception, the declaratory judgment our reading of the statute accords with the supreme court’s statements in execute its terms, must be made in the court of appeals or not at all.” id. at 336, requires water to be released from the dam five days per week for five or six hours ________________________ 5 stable lake levels was not in the overall public interest. after amending their property between 510 and 522 feet msl during certain months of the year. the claims arising the supreme court has explained that, in enacting § 825l(b), congress of the constitution limits the power of the federal courts to resolving cases and appellants’ claims are inescapably intertwined with a review of the 2010 license our conclusion that the standing requirements of article iii were satisfied in this case principle of the division of constitutional powers between the state appellants cannot escape § 825l(b)’s strict judicial review provision by 12 order authorizing alabama power to continue operating the lake and therefore 4 more than 3,000 property owners and other interested parties in and around smith appropriation, use or distribution of water in irrigation or for municipal or other in the united states court of appeals v. seven falls co., 515 u.s. 277, 286-88, 115 s. ct. 2137, 2142-43 (1995). the established that district courts have exceptionally broad discretion in deciding irrigation or for municipal purposes.’” id. at 498, 110 s. ct. at 2029 (quoting first commission’s orders.” city of tacoma v. taxpayers of tacoma, 357 u.s. 320, intending to affect or in any way to interfere with the laws of the d.c. docket no. 6:11-cv-02139-lsc constitutional standing requirements.5 in 2007, while alabama power’s application was pending with the ferc,


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