CINCINNATI (CN) — The Federal Power Act applies to tort claims brought by owners of properties destroyed by the 2020 Edenville Dam failure, a Sixth Circuit panel determined in a ruling on Tuesday that affirmed the federal government's grant of sovereign immunity.
The May 2020 failure in central Michigan, which led to catastrophic flooding in the surrounding area, was caused, at least in part, by decades of negligence on the part of its operators, who refused to update the dam to come into compliance with federal regulations.
Boyce Hydro, now bankrupt, neglected to upgrade spillways after it took control of the facility in 2004, a decision that ultimately cost the dam operator its federal license in 2018.
The state of Michigan granted the facility a license afterward, and was the regulatory authority at the time of the failure.
Daniel and Cathleen Allen sued the federal government under the Federal Tort Claim Act but their suit was dismissed by a federal judge in November 2021.
The Allens appealed and their case was heard by the Sixth Circuit in June.
Although the Michigan dam was constructed in 1924 without a hydroelectric generation license from the Federal Energy Regulatory Commission, language in the Federal Power Act imposes liability only on the dam's operators, regardless of when a license was granted, according to the lower court's dismissal.
On Tuesday, the unified panel called the lower court's interpretation the "most natural reading" of the relevant statute and cited the Ninth Circuit's 2005 decision in Skokomish Indian Tribe v. United States in support of its ruling.
The per curiam opinion, Latin for "by the court," emphasized the first sentence of 803(c) "imposes sweeping requirements on the licensees" and, more importantly, does not include any qualifying phrases about construction of the facility.
"Many Federal Power Act provisions impose duties, costs, and responsibilities on the licensee alone," the court said. "None of these provisions distinguishes between project works that were constructed under a license and those that were not.
"Instead, these provisions impose duties, costs, and responsibilities solely on the licensee ... and that is done in exchange for the licensee's exclusive and profitable right to use the project works to generate hydroelectric power."
The Allens argued the construction of the statute, in which the phrase "constructed under the license" is separated from other phrases by commas, requires application of the phrase to all antecedents. The court disagreed.
"Although it is true that the comma favors the Allens' interpretation," the opinion said, "they assign too much weight to this piece of punctuation. The comma is merely one piece of evidence that must be weighed against others to determine the meaning of the statute."
The court sympathized with the Allens, but could offer no relief.
"Instead of holding the government liable for disasters like the Edenville Dam flood, Section 803(c) imposes liability on the licensees who build and manager hydroelectric projects," the judges wrote.
"To be sure, that design is cold comfort when the licensee is bankrupt, and the claimants have experienced a devastating injury. But we cannot modify that design — only Congress can."
The panel consisted of Senior U.S. Circuit Judge Helene White, a George W. Bush appointee, and U.S. Circuit Judges Amul Thapar and John Nalbandian, both of whom were appointed by Donald Trump.
Although the Allens also brought claims against federal regulators for negligent entrustment of the dam to Boyce Hydro, the court did not reach those claims and cited lack of jurisdiction.
Neither party immediately responded to requests for comment.
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