Petition for Writ of Certiorari — Grand River Dam Authority v. Dalrymple

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om Supreme Court,

VU, zoey Se ,

98 FOOT I6OM

No.

OFRE- OF HE Clix

In The

Supreme Court of the United States

October Term, 1998

GRAND RIVER DAM AUTHORITY and RONALD

COKER, in his official capacity as General Manager

and Chief Executive Officer of the

Grand River Dam Authority,

Petitioners,

Vv.

JACK DALRYMPLE, ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Rosert A. FRANDEN ALLEN B. PEASE

Counsel of Record General Counsel

Jopy R. NaTHAN GRAND River Dam

FELDMAN, FRANDEN, AUTHORITY

Wooparp & Farris P.O. Box 409

525 South Main, Vinita, OK 74301-0409

Suite 1000 Tel: 800-299-4732

Tulsa, OK 74103-4514

Tel: 918-583-7129

Attorneys for Petitioners

Grand River Dam Authority and Ronald Coker

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

RN ee

QUESTIONS PRESENTED

(1) Whether an order denying a party an immunity

defense is unreviewable if it is contained in a

remand order; and

(2) Whether a court may make a substantive ruling on

immunity and shield such ruling from review by

placing it in a remand order?

LIST OF PARTIES

The Petitioners are Grand River Dam Authority and

Ronald Coker in his official capacity as General Manager

and Chief Executive Officer of the Grand River Dam

Authority.

The respondents are: Jack Dalrymple; Rosemary

Dalrymple; David A. Adams; R.D. “Buddy” Adams; Ken-

neth Bales; Patricia Bales; Gerald L. Baser; Bettie L. Baser;

Larry J. Becker; Robert K. Berry; Susan M. Berry; Mark E.

Blankenship; Board of Commissioners of Ottawa County,

Oklahoma; Charles Bowling; Kathy Bowling; Calvin

Brady; Chet Brewington and Susan Brewington, d/b/a

Thunderbird Motel; Edna Offutt Bryant; George Camp-

bell; Carol Sue Campbell; Kenneth Cass; Maxine Cass;

Marvin Champlin; Joyce Champlin; Don Childers; Dee

Childers; City of Miami, Oklahoma, a Municipal Corpora-

tion; H. Dale Conard; Sherry Davis; Chester Desilva; Deb-

bie Desilva; E.G. Ventures, Inc.; Maxine Ferguson; Earl B.

Ferris; Kenneth Ferris; Diann Ferris; Howard W. Hoover;

Stephen L. Hunter; Debbie L. Hunter; Smithy Jameson;

K.C. Jeffries; Gary B.Jenkins; Betty A. Jenkins; Steve

Kresyman, d/b/a/ Miami Car Wash; Roy K. Lacen; Ida

M. Lacen; Jeffrey Lavine; Johnia Lavine; Bruce Lawrence;

Regina Lawrence; Faye Lester; Vera Dowty Lowery; Tim

Lucas; Rhonda Lucas; Chris Mabury; Debra Mabury;

Nadine Macy; Justin Mahurin; Becky Mahurin; Louis E.

Mathia, d/t/a Riverside Auto Salvage; Jeffry McCool

and Carolyn McCool, d/b/a Vettes and Vans; E.W.

McRae; Miami Animal Hospital, Inc.; Miami Tire Service,

Inc.; Miami Tribe of Oklahoma; Mid-America Land, Grain

LIST OF PARTIES —- Continued

& Cattle Company; Leo J. Mills; Virginia D. Mills; Jimmie

Mooneyham; Alan E. Newkirk; Mary Niffen; Tammy Nif-

fen; Robert E. Patterson; David D. Payne; Robert Pewitt;

Ann Pewitt; Tim Potter, d/b/a Potter Landscaping &

Nursery; James Redden; Cathy Redden; Wayne E.

Roberts; Claude Rogers; Joseph A. Rosin; Rosin Heritage,

Inc.; Paula S. Rutledge; Nick A. Shade; Marian Shipman;

Gary Roy Shoultz, d/b/a Gary’s Barbecue and Deli;

Robert L. Silversmith; Ruth Silversmith; Bess M. Steph-

ens; Edison B. Stepp; Patricia Stevens; Randy Stoner;

George S. Stunkard, d/b/a Blaster’s Arcade; Glen Sum-

mers; Dean Trone; Teresa Trone; Bert Vanatta; C.H. Van-

atta; Donald Vaughn; Loretta J. Vaughn; Emma Vaughn;

Everett R. Wagoner; Madeleine Wagoner; Joseph Walden;

Harold Watson; Bill E. Way; Shelby Way; Maynard

Weathers; Joann Weathers; Lahoma Webb; Michael Webb;

Ruth Webb; Wayne L. Webb; Nancy C. Webb; R. Neil

Wells; James L. Wetzel; Harmon Wiley; Anna Lee Wiley;

John D. Wilhoit, Jr.; Rose M. Wilhoit; David Wilkinson;

James Worley; Cheryl Worley.

United States of America ex rel. Federal Energy Reg-

ulatory Commission, and United States Army Corps of

Engineers.

In addition to the parties listed in the caption, Knotts

Motor, Inc. and JoAnn Long sought to intervene in the

action. Their motion to intervene was denied after the

case was remanded to state court. The proposed inter-

venors did not file a brief in the Tenth Circuit.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........

ie cass eR ii

TABLE OF Re hss iv

PHBE DH dercesdtnsumaaae ee Om vii

REFERENCES TO OFFICIAL AND UNOFFICIAL

Ee ONG. 605 1

STATEMENT OF BASIS OF JURISDICTION ..... 1

CONSTITUTIONAL AND STATUTORY PROV].

ate gig OP aerate s 2

Pic wiindomaact. ee 2

Eee RAR SAE 5, 6

CONFLICT AMONG THE CIRCUITS... 7

bieicaks ham oe ee 9

GRDA ALLEGED A COLORABLE FEDERAL

pets aa IES or tocarae 11

DETERMI ATIONS OF IMMUNITY ARE

Bah on RI 13

EXCEPTIONS TO BAR OF APPELLATE REVIEW

Oe OMB icc 14

IMPORTANT ISSUES OF PUBLIC POLICy SUP-

Wii rsicccianee ce ne ae 18

IR caus Oe Na oa 20

TABLE OF CONTENTS - Continued

Page

APPENDIX

Dalrymple v. Grand River Dam Authority, 145 F.3d

gt Be Ae. RA ees eo App.

Dairymple v. Grand River Dam Authority, 932

F.Supp. 1311 (N.D. Okla. 1996)............... App.

Order of the United States District Court for the

Northern District of Oklahoma Dismissing the

United States in Case No. 94-C-970-H, dated

MF SECS FATE aT OER Si SR ek App.

Order of the United States District Court for the

Northern District of Oklahoma Remanding the

Action in Case Nos. 94-C-1091-H and 94-

CMR ares, CRON S090 5 ii at encenctestiveapes App.

Order of the United States District Court for the

Northern District of Oklahoma Dismissing the

United States Case No. 94-C-1092-H, dated

kos ee Pee TORE Fo PORE RESTOR RTE TOT EE App.

Order of the United States District Court for the

Northern District of Oklahoma Denying motion

to reconsider and for stay of remand in Case

No. 94-C-1092-H, dated 4-11-96.............. App.

Order of the United States District Court for the

Northern District of Oklahoma Denying motion

for interlocutory certification and for stay

of remand in Case No. 94-C-1092-H, dated

Order of the United States Court of Appeals for

the Tenth Circuit Denying petition for rehearing

EE SO, IE is ooo Scns erceenddeowany App.

15. Cass ae Va Ge .. 02s 3. Se ee ah a App.

. 43

TABLE OF CONTENTS - Continued

Page

bk FS frie App. 47

ry Rit Me | TPES Peery ee ee App. 48

SO Wet MET oe accccawescevetowuxineeiee eee App. 51

BO Wa BGG sc accaccees ncuecuseee ee App. 52

TS UBEA © Peis 6.60scessectitadmeee App. 53

Notice of Removal filed in the United States Dis-

trict Court for the Northern District of Okla-

homa in Case No. 94-C-970-H, dated 10-14-94

(UCRERGUEE GRIND oi.c a cceces cchaee App. 55

vii

TABLE OF AUTHORITIES

Feperat Cases

Akin v. Big Three Industries, Inc., 851 F. Supp. 819

A INLD id Ohodntcdgaied is ana daween mae.

Angelides v. Baylor College of Medicine, 117 F.3d 833

I I ai cae i

Behrens v. Pelletier, 516 U.S. 299 (1996) ...........

Boyle v. United Technologies Corp., 487 U.S. 500

RAM RANA OG Mad dunes hha geeks cack pa

Carr v. American Red Cross, 17 F.3d 671 (3d Cir.

EEE FE a es Aas

Cleavinger v. Saxner, 474 U.S. 193 (1985)..........

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

POW REPU PS edb tes SiwesleCeeincedeteedveck. 1,

Conjugal Partnership v. Conjugal Partnership, 22

ee hl i DO ao rae oe

Dalrymple v. GRDA, 145 F.3d 1180 (10th Cir. 1998) .

Dalrymple v. GRDA, 932 F.Supp. 1311 (N.D. Okla.

ENA Rdcnst ov eveatinhbenininencdue ties thie.

DeVargas v. Mason & Hanger-Silas Mason Co., 844

F.2d 714 (10th Cir. 1988), cert. denied, 498 U.S.

oe. BoA SSE ie eS ae eels eee 13,

Forrester v. White, 484 U.S. 219 (1988) ............

Gutierrez de Martinez v. Lamagno, 515 US. 417

BIEL gly Spa St Gee aeay ner ul eae a

Hanna v. Naegele, 72 F.3d 137 (10th Cir. 1995)

(unpublished opinion, 1995 WL 723597)........

13, 18

18, 19

Vili

TABLE OF AUTHORITIES - Continued -

Page

Harlow v. Fitzgerald, 457 U.S. 800 (1982).....------ 9, 13

IMFC Professional Services of Florida, Inc. v. Latin

American Home Health, Inc., 676 F.2d 152 (5th

oe Pree rer tT tet ht se 10

Jamison v. Wiley, 14 F.3d 222 (4th Cir. 1994) .....7, 8,9

Kolibash v. Committee on Legal Ethics, 872 F.2d 871

(4th Cir. 1989).........-e cece eres cee ee ees eeeecess 15

Kozera v. Spirito, 723 F.2d 1003 (1st Cir. 1983) ....... 18

Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th

Cie, 2996) oi ccc recs ccteccccsseccscnctenascenees 7; 9

Mesa v. California, 489 U.S. 121 2) eke 6

Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342 (10th

Cin, 1992). 2c cic cescccsccnvsccscnvccceoceeracsces 16

Mitchell v. Forsyth, 472 U.S. 511 CL -) g eee 9, 13

Ohio v. Wright, 992 F.2d 616 (6th Cir. OGL. eriecies> 7

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313

U.S. 508 (1941) .... 2. cece cece c cere cece tence eeeree 19

Pack v. AC And §, Inc., 857 F. Supp. 26 (D. Md.

Pelleport Investors, Inc. v. Budco Quality Theatres,

Inc., 741 F.2d 273 (9th Cir. 1984).......-.+----: 16, 17

Powers v. Southland Corp., 4 F.3d 223 (3d Cir. 1993) .... 17

Richardson v. McKnight, 521 U.S. 399 (1997)......---- 19

Taboas v. Mlynczak, 149 F.3d 576 (7th Cir. 1998)....... 7

TABLE OF AUTHORITIES - Continued

Page

Teague v. GRDA, 279 F.Supp. 703 (N. D. Okla.

1968), aff'd, 425 F.2d 130 (10th Cir. 1970)........... 8

Tennessee v. Davis, 100 U.S. 257 (1880)............... 10

The Mayor v. Cooper, 6 Wall. 247 (1868)... 6, 7, 8, 9, 11, 19

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

US dy SSR ere errr reir sr 7, 14, 15, 16

Things Remembered, Inc. v. Petrarca, 516 U.S. 124

SE A waniw'd ie een onen Beg badas aa ub ein Xs Laan aie 15

Trans Penn Wax Corp. v. McCandless, 50 F.3d 217

Ue Ma ROS do hd s 20k Oden BO ase coli oak os 16

U.S. v. Phillips, 33 F.Supp. 261 (N.D. Okla. 1940)

vacated on other grounds, 312 U.S. 246 (1941) .... 19

Waco v. U.S. Fidelity & Guaranty Co., 293 U.S. 140

CRO bn. oes RNG 6 a5) BGs Aa Wi Kaos vans obese 7, 14, 15

Williams v. Brooks, 945 F.2d 1322 (5th Cir. 1991),

ithe a Ae ETE ite 2 ane 14

Willingham v. Morgan, 395 U.S. 402 (1969) ........... 10

Yearsley v. W.A. Ross Construction Co., 309 U.S. 18

SR Aoi ean ho pad os um le be nda o Sud ob pds Ae en 3, 11

STATE CASES

GRDA v. Board of Education of Town of Wyandotte,

193 Okla. 551, 147 P.2d 1003 (1943), cert. denied,

ES Be a, I ae ee 4

FEDERAL STATUTES AND RULES

I OD iS CFEC cneceriscctacwdsuvecene 2, 19

TE a aR 1

TABLE OF AUTHORITIES —- Continued

Page

FAS Faby 2 Meee cee rye ryt Wen 1, 13

BD I Bee ik ona sit vce whic ake dais ei eee eres 1

28 US.C. § 1441... 2.66. eee eee eee cece eee eee 1

Be Ses a tics inn bee enced RM aeER Cuan passim

Be as We RR 5 oes 6 enon ip ces dsanesonsnteeeneine 2

Se eS os = hb kG ho xe 4 adb «eee Ra passim

Be hes Pana es nes «i upp dak gsnees Raa ee 2, 11

a. CRT Bes cess innecitcswinces oo eeee celeee ees 1

SD. CA. BIE s «nn 6.02 5eo8s pazadas rekaa hens beers 1

REFERENCES TO OFFICIAL AND

UNOFFICIAL REPORTS OF OPINIONS

The opinion of the Court of Appeals is reported at

Dalrymple v. GRDA, 145 F.3d 1180 (10th Cir. 1998) and is

reproduced in the appendix at page 1. The reported opin-

ion of the district court is Dalrymple v. GRDA, 932 F.Supp.

1311 (N.D. Okla. 1996), and is also included in the appen-

dix. In addition, the unreported opinions of the district

court are reproduced in the appendix at pp. A-25-A-44.

STATEMENT OF BASIS OF JURISDICTION

On May 28, 1998, the United States Court of Appeals

for the Tenth Circuit entered its order dismissing Grand

River Dam Authority’s appeal from an order denying

immunity. A timely filed petition for rehearing was

denied on July 28, 1998, and this petition was filed within

90 days of the order denying rehearing.

Review is sought under 28 U.S.C. § 1254(1), pursuant

to Supreme Court Rule 10(a) and 10(c). The trial court's

jurisdiction was premised upon 28 U.S.C. §§ 1331,

1442(a)(1), 1446(a)(1), and 1441(b). Jurisdiction of the

Court of Appeals was based on 28 U.S.C. § 1291, and the

collateral order doctrine found in Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528

(1949). Appeal was from an order which rendered a sub-

stantive decision on the merits, determining GRDA had

not alleged a colorable claim of immunity, as well as a

final order of dismissal.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The constitutional and statutory provisions are set

forth in the appendix at pages 47-54. The citations are as

follows: U.S. CONST. Art.VI cl.2; 16 U.S.C. § 811; 28

U.S.C. § 1442; 28 U.S.C. § 1446; 28 U.S.C. § 1447; 33 U.S.C.

§ 702c.

STATEMENT OF THE CASE

Three lawsuits were filed in state court in Ottawa

County, Oklahoma, by landowners who claimed damages

and sought relief in inverse condemnation from the

Grand River Dam Authority, (GRDA) a public not-for-

profit agency operating the Pensacola Dam and Grand

Lake in Northeastern Oklahoma. Grand Lake is part of

the Neosho River, a tributary of the Arkansas and Missis-

sippi Rivers, and its operation directly affects at least four

states. Plaintiffs (a) sued for flood damages that occurred

when the Secretary of the Army, ex rel. United States

Army Corps of Engineers (Corps) was operating the dam

(through GRDA), (b) sought to enjoin the continued oper-

ation of the dam for flood control purposes, and (c)

requested alteration of the water levels in Grand Lake, as

maintained by GRDA under direct FERC orders as part of

its license.

The acts complained of, and sought to be enjoined,

were accomplished by GRDA as agent and contractor of

the federal government. Invoking the doctrine of shared

immunity, GRDA removed the cases to federal court and

asserted third-party claims for indemnity against the

United States. GRDA alleged the United States was at

least a necessary party because of the request for injunc-

tive relief against operation of the dam. GRDA invoked

the federal officer removal statute, presenting undisputed

evidence in its removal notice that it acted as agent for

the United States with respect to the opening and closing

of the gates at the dam on the date of the floods at issue.

GRDA offered evidence that control of the dam was

ceded to the United States during times of actual and

threatened flooding because the dam, situated on a navi-

gable river, is an integral cog in a multi-state flood system

operated by the United States Army Corps of Engineers

for the benefit of the citizens of Missouri, Kansas,

Arkansas and Oklahoma.

Because of this extensive federal control, GRDA con-

tended Plaintiffs’ claims were necessarily federal in char-

acter. Under the Supremacy Clause and federal law, the

United States has the right to manage the dam to protect

lives and property in emergencies. The United States has

the right to take control of the dam during heavy rainfall.

The right of federal control cannot be eroded by suits for

injunctions and damages against those who acceded, as

they must, to federal power over navigable waters and

their tributaries.

Historically, the dam was completed and the power

pool was filled in 1941. The State bargained for a grant

from the United States to pay for initial construction of

1 Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940).

the project. The State, ex rel. GRDA, agreed to operate the

completed project. The United States, in turn, agreed to

and obtained ownership of flowage easements permitting

it to flood surrounding lands up to the level the Corps

deemed necessary for its flood control program. GRDA

acquired land and easements necessary to operate the

power pool. This cooperative federal-state program, cou-

pled with dual ownership of the area around the lake,

continued virtually unchallenged? for over 50 years, until

these suits were filed in 1994. The dam creates a reservoir,

Grand Lake, which is used for power generation, flood

control and recreation. When it is apparent that the lake

will rise above 745 feet at the dam, the United States

2 GRDA was sued shortly after the dam was completed -

before the United States had completed its acquisition of flood

storage easements. GRDA v. Board of Education of Town of

Wyandotte, 193 Okla. 551, 147 P.2d 1003 (1943), cert. denied, 322

U.S. 733 (1944). At that time, GRDA’s contract with the United

States (an agreement that was actually incorporated into the

license) dictated that the federal program of flood control would

not be fully implemented until the United States finished

acquiring the easements it determined it would need. A flood

occurred, GRDA cooperated with the United States, and was

sued for having done so - under the theory that this cooperation

was not required because the United States had not yet

purchased the easements. This controversial opinion is the crux

of Plaintiffs’ lawsuit. Plaintiffs contend that because the United

States still has not purchased sufficient easements, GRDA is

liable under state law — hence, the extraordinary efforts to have

this case remanded to Ottawa County, situated in the flood zone

~ the very court which ruled against GRDA more than 50 years

ago in a damage suit. After Wyandotte, the United States agreed

in writing to indemnify GRDA for flood damage claims — which

was the basis, in part, for GRDA’s third-party suit against the

United States

Army Corps of Engineers controls water releases from

the dam. The Corps directs releases until the reservoir

falls below 745. Plaintiffs claim the water level is too high

and that too much water is retained under the Corps’

direction. Plaintiffs agree GRDA must obey the Army’s

commands, but contend GRDA must also pay for resul-

tant damages. GRDA’s removal of the suits was as agent

and contractor of the federal government -— entitling it to

assert an immunity defense and have that defense adjudi-

cated in federal court pursuant to 28 U.S.C. § 1442.

After removal, Plaintiffs successfully sought remand.

The United States District Court for the Northern District

of Oklahoma, Honorable Sven Holmes, held that GRDA

could not invoke the federal officer removal statute

because GRDA is owner of the Pensacola Dam, and there-

fore cannot be a contractor. Dalrymple v. Grand River Dam

Authority, 932 F.Supp. 1311 (N.D. Okla. 1996). The trial

court ruled there were no federal claims because it could

not look beyond the allegations of Plaintiffs’ Complaint

to determine the nature of the claim. The court further

held that because the United States was immune and any

claim for indemnity or injunction exceeded $10,000, it

had no jurisdiction.

GRDA appealed, contending that the adverse ruling

rejecting the federal immunity claim and its right to

federal officer removal were substantive rulings on the

merits, reviewable on appeal. That is, the trial court went

beyond a simple adjudication that the trial court had no

jurisdiction. The Court of Appeals, Tenth Circuit, consoli-

dated the cases for appeal, and declined to review the

remand order containing the substantive rulings. Because

the trial court had stated it remanded for lack of jurisdic-

tion, the Tenth Circuit determined it must accept the

language of the remand order at face value. Accordingly,

the appeal was dismissed. A petition for rehearing and

suggestion for rehearing en banc was subsequently

denied.

ARGUMENT

“The validity of the defence authorized to be

made is a distinct subject. It involves wholly

different inquiries. . . . It has no connection

whatever with the question of jurisdiction.”

The Mayor v. Cooper, 6 Wall. 247 at 254 (1868),

as quoted in Mesa v. California, 489 U.S. 121, at

129 (1989).

This case involves important issues of federal/state

comity and the scope of judicial review. At stake is a

federal flood control program in northeastern Oklahoma,

which is affected by, and directly affects, at least 13 other

reservoirs on eight different rivers in three states in the

Arkansas River Basin. The Pensacola Project is but one

cog in the Corps’ flood control and navigation apparatus,

and its releases and storage must be coordinated and

operated within the context of that entire apparatus. If

GRDA is to be held liable for its actions under the orders

of the United States, it will be unable to continue its

contract with the United States. At issue is whether the

federal flood control program will be controlled by fed-

eral directives or by the state court in Ottawa County,

Oklahoma.

CONFLICT AMONG THE CIRCUITS

There is a conflict within the Court of Appeals as to

whether a determination that a defendant has not alleged

a colorable immunity defense in a federal officer removal

is reviewable on appeal. Compare, Ohio v. Wright, 992

F.2d 616 (6th Cir. 1993) and Angelides v. Baylor College of

Medicine, 117 F.3d 833 (Sth Cir. 1997) (such ruling not

reviewable) with Jamison v. Wiley, 14 F.3d 222 (4th Cir.

1994) and Mangold v. Analytic Services, Inc., 77 F.3d 1442

(4th Cir. 1996) (decision regarding immunity is review-

able even when contained in a remand order). And see,

Taboas v. Mlynczak, 149 F.3d 576 (7th Cir. 1998) (permitting

review of order denying substitution under the Westfall

Act and equating substitution with immunity to find the

matter reviewable on appeal.) This court has not ruled on

the issue, but has come very close in Gutierrez de Martinez

v. Lamagno, 515 U.S. 417 (1995). Lamagno held that a

certification that a federal government employee was act-

ing within the course and scope of his employment was

reviewable by appeal. Similarly, in this case, the court

should find that the determination of an immunity

defense is appealable based upon its settled precedent

regardless of whether the order denying immunity is

contained in a remand order.

This court has held that the validity of a federal

defense is a separate issue from jurisdiction, The Mayor v.

Cooper, 6 Wall. 247 (1868), and thus, it appears that the

determination is reviewable under Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 336 (1976), and Waco v. U.S.

Fidelity & Guaranty Co., 293 US. 140 (1934). In addition,

the determination that GRDA is not entitled to remove an

action brought against it for acts done under direction of

the United States conflicts with Teague v. GRDA, 279

F.Supp. 763 (N. D. Okla. 1968), aff'd, 425 F.2d 130 (10th

Cir. 1970).

THE VALIDITY OF A FEDERAL DEFENSE IS

SEPARATE AND DISTINCT FROM

JURISDICTIONAL ISSUES.

In The Mayor v. Cooper, 6 Wall. 247 (1868), this court

ruled the validity of a federal defense is a separate and

distinct inquiry from the issue of whether the federal

courts have removal jurisdiction over a cause under the

federal officer removal statute. The question presented in

this case is whether a determination that a federal

defense is not valid is appealable. 28 U.S.C. § 1447(d)

only prohibits appeals from remand orders based on pro-

cedural defects or based on a finding of lack of jurisdic-

tion. Since this court has held that the two issues, validity

of the defense and jurisdiction over the case, are separate

and distinct, § 1447(d) is no bar to appeal. If a federal

defense supports removal jurisdiction, the rejection of the

defense does not divest a federal court's jurisdiction over

the removed action.

The Fourth Circuit has determined that the rejection

of an immunity defense is not insulated from review,

even if contained in a remand order. In Jamison v. Wiley,

14 F.3d 222 (4th Cir. 1994), the Fourth Circuit held that

rejection of an immunity defense under the federal officer

removal statute does not affect removal jurisdiction, and

that therefore, remand based on such rejection is review-

able on appeal. The rejection of an immunity defense

does not divest the court of subject matter jurisdiction

and permits review of the order.

That the federal court ultimately rejects the fed-

eral defense that supported removal under

§ 1442(a)(1) does not mean that it thereby loses

subject matter jurisdiction over the removed

action; “the jurisdiction of the federal courts

over a properly removed action will not be de-

feated by later developments in the suit.” 14A C.

Wright, A. Miller, & E. Cooper, supra, § 3739, at

582.

Jamison, at 239.

Similarly, in Mangold v. Analytic Services, Inc., 77 F.3d

1442 (4th Cir. 1996), the Fourth Circuit held that inclusion

of two dispositions — denial of immunity and remand to

state court in a single order — did not deprive the court of

jurisdiction to review the immunity ruling. The Tenth

Circuit’s ruling, that it could not review the trial court’s

ruling on immunity because it was contained in a remand

order directly conflicts with the rulings of the Fourth

Circuit. The ruling also conflicts with Cooper, where this

court held that questions of immunity and jurisdiction

are separate, as well as with Harlow v. Fitzgerald, 457 U.S.

800 (1982) and Mitchell v. Forsyth, 472 U.S. 511 (1985),

where this court held that orders denying immunity are

immediately appealable.

THE PURPOSE OF FEDERAL OFFICER REMOVAL

The federal officer removal statute is an incident of

federal supremacy, and one of its purposes is to provide a

federal forum in cases where federal officials and those

acting under them, may raise defenses arising from their

otficial duties. Thus, the test for removal is broader, not

narrower, than the test for official immunity. Willingham

v. Morgan, 395 U.S. 402 (1969). Because the government

can only act through its officers and agents, such right is

necessary to protect the ability of the government to act.

Thus, the right of removal under § 1442(a)(1) is made

absolute whenever a suit in a state court is for any act

under color of federal office, regardless of whether the

suit could have originally been brought in a federal court.

The removal statutes should not be read to have the

anomalous result of allowing removal only when the

officers had a clearly sustainable defense. Id., see also,

Tennessee v. Davis, 100 U.S. 257, 263 (1880).

The only prerequisite to removal of an action under

28 U.S.C. § 1442 is that it be brought against a federal

officer or agency or a person acting under a federal

officer. There is no requirement under the statute that the

federal court have subject matter jurisdiction over the

claim against the federal officer. “To the contrary, § 1442

itself grants independent jurisdictional grounds over

cases involving federal officers where a district court

otherwise would not have jurisdiction.” IMFC Professional

Services of Florida, Inc. v. Latin American Home Health, Inc.,

676 F.2d 152, 156 (5th Cir. 1982). Removal was proper

under Section 1442(a)(1) as GRDA provided undisputed

evidence it was acting under the control of a federal

officer during the flooding complained of by Plaintiffs.

Thus, it was acting for the federal government, to imple-

ment a federal flood control program.

The government has the same interest in getting its

work done when it uses others to do its work. Boyle v.

United Technologies Corp., 487 U.S. 500 (1988). The civil

liability of work done for the government is controlled by

federai law. Id. “If [the] authority to carry out the project

was validly conferred, that is, if what was done was

within the constitutional power of Congress, there is no

liability on the part of the contractor for executing its

will.” Yearsley v. W. A. Ross Construction Co., 309 U.S. at

20-21. In this case, GRDA is being sued for actions done

at the specific command of the United States. Because the

United States is immune for its flood control activities,

so is GRDA when acting under the United States orders.

GRDA ALLEGED A COLORABLE FEDERAL DEFENSE

For purposes of removal it is only required that the

defendants allege a colorable defense under federal law.

“The validity of the defence authorized to be made is a

distinct subject. It involves wholly different inquiries. . . .

It has no connection whatever with the question of juris-

diction.” The Mayor v. Cooper, 6 Wall. at 254. In this case,

as in Cooper, plaintiffs complained the defendants were

trespassing on their property. Further, as in Cooper, the

defense was that the complained of acts were done under

orders of the United States Army. In Cooper, Justice

Swayne decided that removal was appropriate. He

declared that a colorable defense was raised under fed-

eral law since the defendants were on Cooper’s land

because they were complying with the dictates of the

3 33 U.S.C. § 702c.

federal law, as ordered by a military commander. A fed-

eral defense to trespass was stated; removal was therefore

appropriate. The court should likewise find that removal

was appropriate in this case, and that GRDA alleged a

valid federal defense . . . that it was acting under orders

from the Secretary of War and the Corps of Engineers

during the times Plaintiffs seek to hold GRDA liable.

The removal statutes were never intended to give the

district courts the final word on whether a Defendant is

entitled to immunity. The district court’s findings [that

GRDA cannot remove under Section 1442(a)(1), and that ©

GRDA does not share the immunity of the United States

for acts done on behalf of and at the instance of the

United States] are reviewable on appeal. The Tenth Cir-

cuit’s refusal to review those findings on the merits is

wrong.

When a district court decides more than the basic

question of removal jurisdiction, its rulings are, and

should be, subject to appellate review. Here, the deter-

mination that GRDA is not entitled to immunity for acts

done as an agent of the federal government, and as a

person acting under the District Commander of the

United States Army Corps of Engineers, has implications

which extend beyond the immediate question of whether

there is federal subject matter jurisdiction. Similarly, the

trial court’s holding, that the Federal Power Act makes

GRDA liable to the plaintiffs (that is, that plaintiff’s claim

arises under federal law) goes to the heart of both the

Plaintiffs’ claims and GRDA’s defenses thereto and man-

dates removal jurisdiction. These holdings may not be

insulated from review by framing those factual and legal

conclusions in the context of a ruling on a motion to

remand.

DETERMINATIONS OF IMMUNITY

ARE APPEALABLE

This Court recognizes the right to appeal from an

order in which a federal officer is denied immunity. See,

e.g., Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73

L.Ed.2d 396 (1982) (appeal from denial of immunity to

government official); Mitchell v. Forsyth, 472 U.S. 511

(1985) (a district court’s denial of qualified immunity is

an immediately appealable “final decision” within the

meaning of 28 U.S.C. § 1291); Behrens v. Pelletier, 516 U.S.

299 (1996) (dismissal of federal officer’s immunity claim

is immediately appealable as a “final” decision under 28

U.S.C. § 1291 and Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541 (1949). GRDA has the same right of appeal from

the denial of its immunity claim as any other government

officer or agent. DeVargas v. Mason & Hanger-Silas Mason

Co., 844 F.2d 714 (10th Cir. 1988), cert. denied, 498 U.S.

1074 (1991).

GRDA’s entitlement to remove the case under the

federal officer removal statute, which is related to the

immunity issue, is appealable because the decision falls

under Section 1442(a)(1) and not under Section 1447(c).

The trial court’s order concerning GRDA’s right to invoke

the federal officer removal Statute, and its denial of

GRDA’s claim of immunity, are final orders, reviewable

on the merits on appeal.

GRDA has sustained its burden of proving a color-

able defense, by its assertion of immunity. Williams v.

Brooks, 945 F.2d 1322 (5th Cir. 1991), cert. denied, 504 U.S.

931. That assertion entitles GRDA to appeal the denial of

immunity. Whether GRDA ultimately prevails on its

immunity defense is irrelevant. GRDA has a colorable

claim to the defense, and that defense should be judged

by federal standards in a United States district court, and

appealed the same as any other order denying immunity.*

GRDA is entitled to appeal the trial court’s deprivation of

GRDA’s immunity claim.

EXCEPTIONS TO BAR OF APPELLATE REVIEW

OF REMAND ORDERS

Section 1447(d)’s bar of review has evolved under

two United States Supreme Court decisions: Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), and

Waco v. U.S. Fidelity & Guaranty Co., 293 U.S. 140 (1934).

4 Akin v. Big Three Industries, Inc., 851 F.Supp. 819, 823 (E.D.

Tex. 1994) (removal may be grounded on a federal contractor

defense even if the defendant fails to prevail on the defense);

Pack v. AC and S, Inc., 857 F. Supp. 26, 28 (D. Md. 1994) (raising a

colorable defense overcomes the well pleaded complaint rule,

and undocumented allegations that the defendant cannot prove

the defense does not preclude its being raised at trial); Conjugal

Partnership v. Conjugal Partnership, 22 F.3d 391, 395-96 (1st Cir.

1994) (a plausible federal defense is established by alleging that

the dispute arose out of federal regulations governing the

relationship between the parties, requiring the Court to

construe federal statutes and regulations; and the defendant

need not show that he is entitled to prevail in order to have

access to the federal forum).

Under Thermtron and Waco, supra, the prohibition against

appellate review is limited to cases wnere remand is

pursuant to 28 U.S.C. § 1447(c) (relating to defect in

removal procedure or lack of subject matter jurisdiction).

As a result, where the trial court determines a substantive

issue, even though on a motion for remand, the order is

reviewable. Further, under the Waco rule, a remand order

is appealable where it was Precipitated by an order of

dismissal.

Section 1447(d) and Section 1447(c) are to be con-

strued in pari materia. Things Remembered, Inc. v. Petrarca,

516 U.S. 124 (1995). A remand order is therefore immune

from appellate review only if it invokes the grounds

specified in Section 1447(c) — that is, that removal was

defective or the Court had no jurisdiction. Kolibash v,

Committee on Legal Ethics, 872 F.2d 871 (4th Cir. 1989).

District court remand orders determining non-juris-

dictional questions are subject to appellate review. In

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1976), the Court stated that the appellate courts have the

power “to correct a district court that has not merely

erred in applying the requisite provision for remand but

has remanded a case on grounds not specified in the

Statute and not touching the Propriety of removal.” 423

U.S. at 352. Thermtron established that remand orders

which go beyond an examination of the removal pro-

cedure itself, or beyond an examination of the trial

court’s removal jurisdiction, are Subject to appellate

review.

Thermtron is applied in a variety of contexts similar to

those present in the three cases which are the subject of

this appeal. For example, in Trans Penn Wax Corp. v.

McCandless, 50 F.3d 217 (3d Cir. 1995), the Court noted

that “a remand only falls under § 1447(c) if the removal

itself was jurisdictionally improper, not if the defect arose

after removal.” Id. at 223. In this case, there is no question

that the suits were removable on the dates GRDA

removed them. Section 1442(a)(1) provides an absolute

right of removal, based on the Notice of Removal. When

GRDA’s right of removal was challenged, GRDA met its

burden of proving a colorable claim to its defense. The

district court’s decision to remand a year and a half later,

in the midst of ongoing discovery and pretrial motions,

was based on subsequent events: (1) the district court's

decision on the merits of GRDA’s shared immunity

defense, (2) dismissal of the United States as a party, and

(3) the unexplained decision to first allow Plaintiffs a

right of action against GRDA under the Federal Power

Act and then issue a decision not to exercise jurisdiction

over such claim because it is not explicitly pleaded in

Plaintiffs’ complaint. Such orders are appealable under

Thermtron, even when contained in a remand order.

Jurisdiction over this appeal is supported by Pelleport

Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273

(9th Cir. 1984).5 An order of remand based on a forum

selection clause was not a decision within the scope of

Section 1447(c) and was thus reviewable; it had nothing

° The Pelleport decision was adopted by the Tenth Circuit in

Milk ‘N’ More, Inc. v. Beavert, 963 F.2d 1342 (10th Cir. 1992)

[holding that a remand based upon a forum selection clause was

reviewable because it was outside the scope of Section 1447(c)].

to do with the propriety of the removal but was a sub-

stantive decision on the merits. Id. at 276. The same is

true here. The district court completely eliminated

GRDA’s affirmative defense of shared immunity, dis-

missed the United States, and then was in a position to

remand the case to state court by first ignoring the statu-

tory basis of Plaintiffs’ claims and the fact that it had just

resolved substantive issues by reference to federal law.

The trial court went far beyond a decision based merely

on lack of jurisdiction.

In Carr v. American Red Cross, 17 F.3d 671 (3d Cir.

1994), the court ruled that where the underlying order

impacted on more than the issue of federal subject matter

jurisdiction, appellate review was appropriate.® Carr was

approved by the Tenth Circuit in Hanna v. Naegele, 72 F.3d

137 (10th Cir. 1995) (Table) (unpublished opinion, 1995

WL 723597). Hanna involved removal of a malpractice

suit by a civilian health care provider at an Air Force

base. The Tenth Circuit held that an order denying the

defendant's petition for certification as an employee of

the United States acting within the scope of his employ-

ment preceded and was separate from, the remand order

- thereby avoiding the Section 1447(d) restriction on

appellate review. Moreover, the trial court’s order had the

(orders which have independent relevance with respect to the

rights of the parties are separable, independent claims, even

though they also have an effect on the court's jurisdiction).

effect of denying the defendant’s claim of absolute immu-

nity and as such was an immediately appealable collat-

eral order under Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541 (1949).

In this case, the remand order went far beyond stat-

ing there was no jurisdiction. Rather, it determined that

GRDA had no immunity defense. This determination is

reviewable on appeal, even if it is contained in an order

of remand, just as the immunity issue was reviewable in

Carr and Hanna.

IMPORTANT ISSUES OF PUBLIC POLICY

SUPPORT REVIEW

In Kozera v. Spirito, 723 F.2d 1003 (1st Cir. 1983), the

plaintiffs were challenging the state’s implementation of

federal directives, and if they prevailed the state would

be caught in a “squeeze play” caused by a court order

which was irreconcilable with federal, state, and regula-

tory requirements. Similarly, in DeVargas v. Mason &

Hanger-Silas Mason Co., 844 F.2d 714 (10th Cir. 1988), the

court noted that the federal government required the

defendants to act as they did. “Not to allow immunity

here places defendants between Scylla and Charybdis -

potentially liable either to plaintiffs for obeying the con-

tract or to governmental bodies for breaching it.” Id., at

722. This is precisely the situation here. If Plaintiffs pre-

vail, the state court will enjoin the operation of the dam

under federal law, so that GRDA will have to choose

between obeying the Ottawa County Court and the fed-

eral government. Plaintiffs seek to hold GRDA liable for

following the mandate of federal law and its contracts

with the federal government. Failing to comply with fed-

eral regulations could make GRDA guilty of a misde-

meanor under 16 U.S.C. § 811.7 Failing to obey a court ©

order could subject GRDA to contempt proceedings.

Thus, GRDA is in a “squeeze play” caused by a proposed

court order which cannot be reconciled with federal, state

and regulatory requirements. This is the very situation

for which the cou.t in DeVargas, supra, held that such

facts gave rise to a claim of shared immunity as well as

the right to appellate review of the denial of the defen-

dant’s immunity claim. It is also similar to the situation in

Cooper, where the federal agent was sued under state law

for following orders of a federal army officer.

This Court has held that it is the function of individ-

ual defendants - the nature of the individual respon-

sibilities — not their status, that controls in resolving

immunity defenses. Forrester v. White, 484 U.S. 219 (1988);

Cleavinger v. Saxner, 474 U.S. 193, 201 (1985). When GRDA

releases flood waters from Grand Lake, it is operating

under direct orders from the Corps. Its status for pur-

poses of flood control, is as an agent of the United States,

as it is acting for the United States. GRDA is thus “serv-

ing as an adjunct to government in an essential govern-

mental activity, or acting under close official

supervision.” Richardson v. McKnight, 521 U.S. 399 (1997).

” Indeed, during the construction of the dam, the federal

army was called out to prevent the state from interfering with

the dam’s completion. U.S. v. Phillips, 33 F.Supp. 261 (N.D. Okla.

1940) vacated on other grounds, 312 U.S. 246 (1941); Oklahoma ex

rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941).

It is clearly acting for the federal government, and is

entitled to immunity.

The courts have not considered the dilemma that

GRDA faces. The statutes require GRDA to follow federal

directives on flood control. The Plaintiffs, however, seek

an injunction and other relief to require GRDA to operate

the dam so as to minimize damages to their property.

GRDA cannot follow both federal law and Plaintiffs’

directives. Either federal law is supreme and protects

GRDA from Plaintiffs’ suit, or it can be modified by state

courts. Either the Pensacola Dam is part of a multi-state

federal flood control program, or it is purely a local

concern over which the state court has jurisdiction. It

cannot be both.

CONCLUSION

[M]eaning in law depends upon an understand-

ing of purpose. Law’s words, however technical

they may sound, are not magic formulas; they

must be read in light of their purposes, if we are

to avoid essentially arbitrary; applications and

harmful results.

Behrens v. Pelletier, 516 U.S. 299, 324 (1996)

(Breyer, J., dissenting).

The court should not permit form to prevail over

substance. The decision regarding GRDA’s entitlement to

immunity was a determination on the merits, reviewable

on appeal. The inclusion of that decision in a remand

order, forever depriving GRDA of an important right,

should not insulate the decision from review. Decisions

denying a federal actor’s right to trial in federal court are

too important to entrust the final decision to a federal

district court, shielded from appellate scrutiny.

Respectfully submitted,

FELDMAN, FRANDEN, WooparD

& Farris

Rosert A. FRANDEN

Counsel of Record

Jopy R. NaTHAN

525 South Main, Suite 1000

Tulsa, OK 74103-4523

918/583-7129

918/584-3814 facsimile

ALLEN B. PEASE

General Counsel, GRDA

P.O. Box 409

Vinita, OK 74301-0409

800 / 299-4732

Attorneys for Grand River

Dam Authority and Ronald Coker in

his official capacity as General

Manager and Chief Executive Officer

of the Grind River Dam Authority

App. 1

APPENDIX

Jack DALRYMPLE; Rosemary Dalrymple; David A.

Adams; R.D. “Buddy” Adams; Kenneth Bales; Patricia

Bales; Gerald L. Baser; Bettie L. Baser; Larry J. Becker;

Robert K. Berry; Susan M. Berry; Mark E. Blankenship;

Board of Commissioners of Ottawa County, Oklahoma;

Charles Bowling; Kathy Bowling; Calvin Brady; Chet

Brewington and Susan Brewington, d/b/a Thunderbird

Motel; Edna Offutt Bryant; George Campbell; Carol

Sue Campbell; Kenneth Cass; Maxine Cass; Marvin

Champlin; Joyce Champlin; Don Childers; Dee

Childers; City of Miami, Oklahoma, a municipal

corporation; H. Dale Conard; Sherry Davis; Chester

Desilva; Debbie Desilva; E.G. Ventures, Inc.; Maxine

Ferguson; Earl B. Ferris; Kenneth Ferris; Diann Ferris;

Howard W. Hoover; Stephen L. Hunter; Debbie L.

Hunter; Smithy Jameson; K.C. Jeffries; Gary B. Jenkins;

Betty A. Jenkins; Steve Kresyman, d/b/a/ Miami Car

Wash; Roy K. Lacen; Ida M. Lacen; Jeffrey Lavine;

Johnia Lavine; Bruce Lawrence; Regina Lawrence; Faye

Lester; Vera Dowty Lowery; Tim Lucas; Rhonda Lucas;

Chris Mabury; Debra Mabury; Nadine Macy; Justin

Mahurin; Becky Mahurin; Louis E. Mathia, d/b/a

Riverside Auto Salvage; Jeffry McCool and Carolyn

McCool, d/b/a Vettes and Vans; E.W. McRae; Miami

Animal Hospital, Inc.; Miami Tire Service, Inc.; Miami

Tribe of Oklahoma; Mid-America Land, Grain & Cattle

Company; Leo J. Mills; Virginia D. Mills; Jimmie

Mooneyham; Alan E. Newkirk; Mary Niffen; Tammy

Niffen; Robert E. Patterson; David D. Payne; Robert

Pewitt; Ann Pewitt; Tim Potter, d/b/a Potter

Landscaping & Nursery; James Redden; Cathy Redden;

Wayne E. Roberts; Claude Rogers; Joseph A. Rosin;

Rosin Heritage, Inc.; Paula S. Rutledge; Nick A. Shade;

Marian Shipman; Gary Roy Shoultz, d/b/a Gary’s

Barbecue and Deli; Robert L. Silversmith; Ruth

Silversmith; Bess M. Stephens; Edison B. Stepp;

App. 2

Patricia Stevens; Randy Stoner; George S. Stunkard,

d/b/a Blaster’s Arcade; Glen Summers; Dean Trone;

Teresa Trone; Bert Vanatta; C.H. Vanatta; Donald

Vaughn; Loretta J. Vaughn; Emma Vaughn; Everett R.

Wagoner; Madeleine Wagoner; Joseph Walden; Harold

Watson; Bill E. Way; Shelby Way; Maynard Weathers;

Joann Weathers; Lahoma Webb; Michael Webb; Ruth

Webb; Wayne L. Webb; Nancy C. Webb; R. Neil Wells;

James L. Wetzel; Harmon Wiley; Anna Lee Wiley; John

D. Wilhoit, Jr.; Rose M. Wilhoit; David Wilkinson;

James Worley; Cheryl Worley; individually and as

representatives of a class consisting of all persons and

entities located upstream of Pensacola Dam who have

been injured by floods caused or increased by the

Dam since September 1992, Plaintiffs-Appellees,

Vv.

GRAND RIVER DAM AUTHORITY, and Ronald Coker,

in his official capacity as General Manager and Chief

Executive Officer of the Grand River Dam Authority,

Defendants-Third-Party Plaintiffs-Appellants,

Vv.

UNITED STATES of America ex rel. FEDERAL

ENERGY REGULATORY CUMMISSION, and United

States Army Corps of Engineers, Third-Party

Defendants-Appellees.

Nos. 96-5113 to 96-5115.

United States Court of Appeals, Tenth Circuit.

May 28, 1998.

N. Larry Bork (Wayne T. Stratton, with him on the

brief) of Goodell, Stratton, Edmonds & Palmer, L.L-P.,

Topeka, Kansas; and Frank M. Hagedorn (Graydon D.

Luthey, with him on the brief) of Hall, Estill, Hardwick,

App. 3

Gable, Golden & Nelson, Tulsa, Oklahoma, for Plaintiffs-

Appellees.

Janet Kay Jones (Susan Tomasky, General Counsel,

and Joseph S. Davies, Acting Solicitor, with her on the

brief), Federal Energy Regulatory Commission, Washing-

ton, DC, for Third-Party Defendant-Appellee Federal

Energy Regulatory Commission.

Philipe Pinnell (Stephen C. Lewis, United States

Attorney, with him on the brief), Assistant United States

Attorney, Tulsa, Oklahoma, for Third-Party Defendant-

Appellee United States Army Corps of Engineers.

Robert A. Franden (Jody R. Nathan of Feldman, Fran-

den, Woodard, Farris & Taylor, Tulsa, Oklahoma; and

Allen B. Pease of Grand River Dam Authority, Vinita,

Oklahoma, with him on the brief) of Feldman, Franden,

Woodard, Farris & Taylor, Tulsa, Oklahoma, for Defen-

dants-Third-Party Plaintiffs-Appellants.

Before BRORBY and McWILLIAMS, Circuit Judges,

and BLACK", District Judge.

BRORBY, Circuit Judge.

Appellant, Grand River Dam Authority (the “ Author-

ity”), is a conservation and reclamation district created

pursuant to Oklahoma statute “for the purpose of utiliz-

ing the waters of Grand River and its tributaries.” Grand

River Dam Auth. v. Wyandotte Bd. of Educ., 193 Okla. 551,

147 P.2d 1003, 1004 (1943) (citing Okla. Stat. tit. 82, § 861

(1941)), cert. denied, 322 U.S. 733, 64 S.Ct. 1045, 88 L.Ed.

* The Honorable Bruce D. Black, District Judge for the District of

New Mexico, sitting by designation.

App. 4

1568 (1944); Teague v. Grand River Dam Auth., 425 F.2d 130,

132 (10th Cir.1970). Acting as a state agency, the Author-

ity owns and operates the Pensacola Hydroelectric Pro-

ject/Pensacola Dam, in accordance with the terms and

conditions of its Federal Energy Regulatory Commission

(“FERC”) license and the Federal Power Act, 16 U.S.C.

§ 799.

In March 1994, the Wagoner and Roberts plaintiffs

filed separate suits against the Authority for property

damage resulting from flooding along the Spring River in

1993. The Wagoner and Roberts plaintiffs later amended

their petitions to include flood damage that occurred in

1994. In September 1994, the Dalrymple plaintiffs brought

a class action suit against the Authority for property

damage suffered as a result of the increased elevation and

duration of flooding on the Neosho River from 1992-94:

The Neosho and Spring rivers combine to form the Grand

River, which is impounded by the Pensacola Dam. Plain-

tiffs filed their complaints in Oklahoma state court; col-

lectively, they asserted claims of inverse condemnation,

_ consequential damage to private property for public use,

breach of contract, strict liability, trespass, and nuisance.

The Dalrymple plaintiffs also sought injunctive relief as

an alternative to their damage claims.

The Authority removed the actions to federal district

court alleging proper jurisdiction under 28 U.S.C.

§§ 1441(b) and 1442(a)(1). In response to each action, the

Authority also filed third party complaints against FERC

and the United States Army Corps of Engineers (the

“Corps”), seeking indemnification for any damages ulti-

mately awarded to the Plaintiffs.

App. 5

Upon Plaintiffs’ motions, and after some discussion

at a status hearing, the district court remanded the cases

to state court by orders dated April 2, 1996. The district

court dismissed the Authority’s third party claims against

the federal agencies by separate orders on the same date.!

The Authority appeals both rulings in each Plaintiff’s

action. The appeals have been consolidated for purposes

of briefing and disposition.

Because we conclude the remand orders were based

to a fair degree upon the district court’s finding it lacked

subject matter jurisdiction to hear the cases, we are stat-

utorily precluded from reviewing those orders, on appeal

or otherwise. 28 U.S.C. § 1447(d). We therefore grant

Plaintiffs’ motions to dismiss the Authority’s appeal of

the remand orders.

Our jurisdiction to review the district court’s orders

dismissing the Authority’s third party complaints against __

FERC and the Corps is not likewise restricted.2

1 The district court entered substantially the same orders in

each docketed case. Because the evidence and argument

supporting remand and dismissal were virtually identical in

each suit, we will address the remand orders collectively and

the dismissal orders collectively.

? It is clear from the record that while they were filed on the

same date, the dismissal orders were drafted prior to and

separate from the remand decisions. The remand orders

mentioned the dismissals, yet in no way were predicated on the

dismissals. The Authority filed its notices of removal prior to

filing its third party complaints and thus never relied on its

claims against the federal agencies as grounds for removal. The

Supreme Court has held even if a dismissal leads to a remand, it

is still permissible to review the dismissal order. Waco v. United

States Fidelity & Guar. Co., 293 U.S. 140, 143, 55 S.Ct. 6, 79 L.Ed.

App. 6

Reviewing those orders de novo, SK Finance SA v. La Plata

County, 126 F.3d 1272, 1275 (10th Cir.1997), we affirm.

DISCUSSION

Remand of Plaintiffs’ Cases to State Court

Relying on 28 U.S.C. § 1447(d),> Plaintiffs seek to

dismiss this portion of the appeal, claiming we have no

jurisdiction to review the remand orders. The threshold

issue, therefore, is one of appellate jurisdiction.+

In determining whether § 1447(d) deprives us of

jurisdiction to review the district court’s remand orders,

we first acknowledge the application of § 1447(d) is not as

broad as its language suggests. Appellate review is

barred by § 1447(d) only when the district court remands

244 (1934) (district court cannot prevent appellate review of a

final collateral order by contemporaneously remanding a case to

state court). Thus, we perceive no barrier to our review of the

dismissal orders in this case.

3 28 U.S.C. § 1447(d) states:

An order remanding a case to the State court from

which it was removed is not reviewable on appeal or

otherwise, except that an order remanding a case to

the State court from which it was removed pursuant

to section 1443 [civil rights] of this title shall be

reviewable by appeal or otherwise.

4 The Authority raises several substantive challenges to the

remand orders. Because we hold we are without jurisdiction to

review those orders, we do not address those challenges.

App. 7

on grounds permitted by § 1447(c).5 Things Remembered,

Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133

L.Ed.2d 461 (1995); Thermtron Prod., Inc. v. Hermansdorfer,

423 U.S. 336, 345-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976).

An explicit reference to § 1447(c) does not automatically

render a remand order nonreviewable, however. Archuleta

v. Lacuesta, 131 F.3d 1359, 1362 (10th Cir.1997). Nor does

the absence of such a reference automatically confer

appellate jurisdiction over a remand order. In order to

evaluate the reviewability of the district court’s remand

orders, we must independently review the record to

determine the actual grounds upon which the district

court believed it was empowered to remand. Id.

One of the grounds for remanding a case under

§ 1447(c) - the ground at issue here — is a determination

the federal district court lacks subject matter jurisdiction.

28 U.S.C. § 1447(c). We have held if a “remand order was

based to a fair degree upon the court’s finding that it

lacked subject matter jurisdiction to hear the case,” such

order is rendered nonreviewable under § 1447(d). Flores v.

Long, 110 F.3d 730, 733 (10th Cir.1997); see also Archuleta,

131 F.3d at 1363. This remains true even if the district

court’s jurisdictional determination appears erroneous, so

5 28 U.S.C. § 1447(c) reads:

A motion to remand the case on the basis of any

defect other than lack of subject matter jurisdiction

must be made within 30 days after the filing of the

notice of removal under section 1446(a). If at any time

before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be

remanded.

App. 8

long as that determination was made in good faith.

Archuleta, 131 F.3d at 1362-63; Flores, 110 F.3d at 732-33.

The Authority removed Plaintiffs’ cases to federal

court alleging proper federal jurisdiction under 28 U.S.C.

§§ 1441(b) and 1442(a)(1). Section 1441(b) provides in

relevant part:

Any civil action of which the district courts have

original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws

of the United States shall be removable without

regard to the citizenship or residence of the

parties.

To support removal under § 1441(b), the Authority

argued Plaintiffs’ claims amount to federal constitutional

claims because the Pensacola Dam is on navigable waters

and is subject to federal government control pursuant to

the Commerce Clause.

Section 1442 provides:

(a) A civil action or criminal prosecution com-

menced in a State court against any of the fol-

lowing may be removed by them to the district

court of the United States for the district and

division embracing the place wherein it is pend-

ing:

(1) The United States or any agency

thereof or any officer (or any person

acting under that officer) of the United

States or of any agency thereof, sued in

an official or individual capacity for

any act under color of such office or on

account of any right, title or authority

claimed under any Act of Congress for

the apprehension or punishment of

App. 9

criminals or the collection of the reve-

nue.®

The Authority claimed it was entitled to removal

under this provision because it effectively acted as a

government contractor or federal agent, which at ail

times operated the Pensacola Dam and reservoir accord-

ing to the terms and conditions of its FERC license and,

during flood stage, pursuant to the Corps’ directives.”

In remanding these cases, the district court concluded

there was no basis for removal under either § 1441(b) or

§ 1442(a)(1). According to the district court, removal

under § 1441(b) was not warranted because Plaintiffs’

various causes of action do not implicate any federal

right or immunity - there simply is no federal contro-

versy apparent on the face of the Plaintiffs’ complaints.

With respect to § 1442(a)(1), the court held the Authority

failed to aver a colorable federal immunity defense, as is

6 This provision was amended after the Authority removed

Plaintiffs’ cases to federal court. The amendment, which

legislatively reversed the Supreme Court’s decision in

International Primate Protection League v. Administrators of Tulane

Educational Fund, 500 U.S. 72, 111 S.Ct. 1700, 114 L.Ed.2d 134

(1991), H.R.Rep. No. 104-798 (1996), 1996 WL 532692 at 56-57, by

extending removal jurisdiction to actions against federal

agencies as well as those against federal officers, has no effect

on our disposition in this case.

7 According to the Authority, FERC establishes target levels

for the reservoir throughout the year. When reservoir elevation

is projected to reach flood state - 745 feet or more — the

Authority operates the dam as directed by the Corps. The Corps

directs flood control operations because the Neosho River, as

part of the Arkansas River basin, is included in the federal flood

control program designed to protect residents of Missouri,

Kansas, Arkansas and Oklahoma.

App. 10

necessary to support removal by an officer or agency of

the United States, or any person acting uncer such officer

or agency. The court did not explicitly refer to § 1447(c) in

its remand orders; however, Plaintiffs szecifically

requested relief pursuant to § 1447(c) in their motions to

remand.

Having independently reviewed the record, we are

convinced the district court based its remand decision

upon the belief it lacked subject matter jurisdiction to

hear Plaintiffs’ claims. The remand orders at issue clearly

do not reflect the typical nonjurisdictional determination

involving a discretionary remand of supplementary or

pendent claims, venue, abstention, comity, or the waiver

of opportunity to challenge a procedurally irregular

removal. Instead, the orders address key issues directly

related to whether the district court could have exercised

subject matter jurisdiction over the cases — the presence

of a federal question on the face of the plaintiffs’ com-

plaints, and/or the presence of a federal question in the

form of a colorable federal immunity defense.

On its face, § 1441(b) requires a district court to

determine whether it has “original jurisdiction” over the

case at bar. Thus, an inquiry into the propriety of removal

under § 1441(b) necessarily incorporates an inquiry into

subject matter jurisdiction. An inquiry into the propriety

of removal under § 1442(a)(1) similarly encompasses a

subject matter jurisdiction determination since removal

under that section is predicated not just on the federal

character of the defendant, but also on the averment of a

defense grounded in federal law. See Mesa v. California,

489 U.S. 121, 136, 139, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989).

Accordingly, we cannot see how the district court’s

App. 11

remand orders could be characterized as based on any-

thing but a lack of subject matter jurisdiction as contem-

plated by § 1447(c).8 We therefore are precluded by

§ 1447(d) from reviewing those orders. Plaintiffs’ motions

to dismiss the Authority’s appeal of the remand orders

are granted.

Dismissal of Third Party Complaints

The Authority filed third party complaints against

both FERC and the Corps, seeking indemnification from

the United States for any liability the Authority may have

8 We acknowledge the Fifth Circuit’s efforts to characterize

district court remand decisions as procedurally based so as to

apply waiver principles and thereby avoid nonreviewability. See

Hopkins v. Dolphin Titan Int'l, Inc., 976 F.2d 924 (5th Cir.1992); In

re Digicon Marine, Inc., 966 F.2d 158 (5th Cir.1992); Baris v.

Sulpicio Lines, Inc., 932 F.2d 1540 (5th Cir.), cert. denied, 502 U.S.

963, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991). We fear such

maneuvering unnecessarily convolutes the law in this area and

runs afoul of strong congressional policy against review of

remand orders “in order to prevent delay in the trial of

remanded cases by protracted litigation of jurisdictional

issues.” Thermtron Prod., Inc., 423 U.S. at 351, 96 S.Ct. 584.

As stated above, we believe a remand decision based on

improper removal under §§ 1441(b) and 1442(a)(1) is

appropriately characterized as a decision based on a lack of

subject matter jurisdiction, not a procedural defect. But see

Archuleta, 131 F.3d at 1365 (Baldock, J. dissenting). Nevertheless,

to the extent §§ 1441(b) and 1442(a)(1) could be considered

procedural limitations, a remand order issued pursuant to a

timely motion asserting a defect in the removal procedure also

is precluded from appellate review. Petrarca, 516 U.S. at 127-28,

116 S.Ct. 494. The Authority does not contest the fact Plaintiffs’

filed their motions for remand within the thirty days allotted by

§ 1447(c).

App. 12

to the Plaintiffs. Each agency responded with a motion to

dismiss on multiple grounds: (1) under both the Federal

Tort Claims Act, 28 U.S.C. § 2680(a), and the jurisdictional

limits of 28 U.S.C. § 1346, the court lacked subject matter

jurisdiction, (2) sovereign immunity barred the Author-

ity’s third party claims, and (3) the Authority failed to

state a cause of action upon which relief could be

granted.

The district court granted the motions for lack of

subject matter jurisdiction. The court first concluded, and

the Authority conceded, the federal agencies were

immune from any liability to the Authority deriving from

Plaintiffs’ tort claims. To the extent the United States

could be liable to indemnify the Authority for damages

related to the Plaintiffs’ inverse condemnation claims,°

the district court concluded that because each Plaintiff

claimed damages in excess of $10,000, the amount in

controversy exceeded the $10,000 limit within which it

can exercise jurisdiction pursuant to 28 U.S.C.

§ 1346(a)(2). Thus, according to the district court, the

9 We note the district court characterized Plaintiffs’ inverse

condemnation claims as Fifth Amendment claims. (Apt.App.

Vol. II at A915.) Plaintiffs clarify they filed their inverse

condemnation claims under Article II, Section 24 of the

Oklahoma Constitution and Okla. Stat. tit. 27, § 12, not the

federal Constitution. (No. 96-5113, Reply to GRDA’s

Memorandum in Opposition to Motion of Plaintiffs to Dismiss

Action Pursuant to 10th Cir. R. 27.2.1 at 3; Apt.App. Vol. I at

A29-69 FY 35-48; Vol. II at A1001-07 FY 26-29; Vol. III at

A1194-98 ¥J 20-22.) This discrepancy in no way affects the

district court’s determination that jurisdiction over the

Authority’s third party claims resides solely within the United

States Court of Federal Claims.

App. 13

United States Court of Federal Claims has exclusive sub-

ject matter jurisdiction over the Authority’s third party

indemnification actions. 28 U.S.C. §§ 1346(a)(2) and

1491(a)(1).

The Authority asserts the district court erred in find-

ing Plaintiffs’ inverse condemnation claims exceeded the

$10,000 jurisdictional limit. The Authority further argues

dismissal was improper since (1) indemnity is a cause of

action available against the United States, (2) the federal

government bears the ultimate responsibility for purchas-

ing the lands necessary for operation of the dam during

flooding, and (3) the Authority’s liability is predicated

solely on activities it undertook as an agent of the federal

government. While these arguments may bear superficial

appeal, we agree with the district court they overlook

fundamental jurisdictional infirmities.

Like the district court, we begin from the premise

that FERC and the Corps, as United States defendants,

are immune from suit, absent an expressed waiver of

sovereign immunity. United States v. Mitchell, 445 U.S. 535,

538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); see also U.S. v.

Richman (In re Talbot), 124 F.3d 1201, 1206 (10th Cir.1997)

(citing United States v. Nordic Village, Inc., 503 U.S. 30, 33,

112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)). As the district

court indicated, the Authority conceded there is no

waiver of immunity from liability related to Plaintiffs’

tort claims. The Authority therefore based its indemni-

fication claim against the federal government solely on

liability exposure related to Plaintiffs’ inverse condemna-

tion claims. In so doing, however, the Authority failed to

identify any applicable statutory waiver of sovereign

App. 14

immunity from liability deriving from inverse condemna-

tion claims, or to otherwise explain why the United

States’ waiver of sovereign immunity for actions based on

the United States Constitution or express or implied con-

tract, see 28 U.S.C. § 1346(a)(2), necessarily pertains to its

indemnification claims.

As legal grounds to avoid sovereign immunity, the

Authority seems to rely merely on its assertion indemnity

is a cause of action available against the United States, its

self-described role as the United States’ agent when oper-

ating the Pensacola Dam, and the fact Congress appropri-

ated monies in 1996 to purchase additional land from

property owners impacted by flooding in the vicinity of

the Pensacola Dam. We are not convinced such grounds

are adequate. Nevertheless, because we agree with the

district court the amount in controversy is the dispositive

jurisdictional issue, we will assume, without deciding,

the Authority’s indemnification claims based on liability

exposure related to Plaintiffs’ inverse condemnation

claims fall within the scope of 28 U.S.C. § 1346(a)(2).

It is beyond dispute § 1346(a)(2) limits federal district

court jurisdiction to claims against the feceral govern-

ment not exceeding $10,000; the Court of Federal Claims

has exclusive jurisdiction over such claims in excess of

$10,000. 28 U.S.C. §§ 1346 and 1491. The Authority asserts

the district court erred in its jurisdictional ruling since the

court had no basis upon which to determine the amount

of damages attributable to Plaintiffs’ ins erse condemna-

tion claims, apart from their other claims. The Authority

also suggests the district court could retain jurisdiction

over the third party claims since Plaintiffs sought injunc-

tive relief. Even if the Court of Federal Claims does have

;

‘4

App. 15

exclusive jurisdiction, the Authority argues its claims

should have been transferred pursuant to 28 U.S.C.

§ 1631, not dismissed.

The issue before us is whether the district court has

jurisdiction over the Authority’s third party complaints,

not Plaintiffs’ complaints. Thus, it is of no significance

that some Plaintiffs requested injunctive relief. The

amount of Plaintiffs’ damage claims is significant, how-

ever, because those claims are the reason for the Author-

ity’s third party indemnity actions against FERC and the

Corps. The record confirms each plaintiff sought damages

in excess of $10,000. The record further illustrates there is

no need to allocate Plaintiffs’ damage claims to each

different theory of recovery, since Plaintiffs prayed for

full recovery in excess of $10,000 on any one of their

alternative claims. Even more telling, the Authority did

not attempt to quantify its liability exposure vis-a-vis

Plaintiffs’ inverse condemnation claims. Rather, it sought

indemnification from the United States for any and all

amounts the Plaintiffs recover from the Authority. The

amount in controversy as reflected by each third party

complaint thus exceeds $10,000. Assuming the Authority

can overcome the sovereign immunity barrier and other

potential obstacles,’° jurisdiction over its indemnity

claims against the United States government lies exclu-

sively within the Court of Federal Claims.

10 As FERC points out, the Authority’s indemnity claims

are inextricably linked to Plaintiffs’ state law claims. The Court

of Federal Claims arguably has no jurisdiction over Plaintiffs’

complaints, and thus could decline to adjudicate the Authority’s

indemnity claims on grounds they were premature.

App. 16

Finally, while the district court could have trans-

ferred the Authority’s third party complaints to the Court

of Federal Claims pursuant to 28 U.S.C. § 1631, we per-

ceive no error in its failure to do so. Section 1631 requires

an action to be transferred “to any other such court in

which the action or appeal could have been brought at

the time it was filed” if the transfer “is in the interest of

justice.” 28 U.S.C. § 1631. The Authority provides no

explanation why justice would have been served by such

a transfer. Moreover, it appears the Authority could refile

its third party actions in the Court of Federal Claims

without penalty, should it choose to do so.

CONCLUSION

For the foregoing reasons, we DISMISS the Author-

ity’s appeal of the district court’s remand orders for lack

of appellate jurisdiction. We AFFIRM the district court's

dismissal of the Authority’s third party complaints

against FERC and the Corps.

App. 17

Jack DALRYMPLE and Rosemary Dalrymple,

et al., Plaintiffs,

Vv.

GRAND RIVER DAM AUTHORITY,

Defendant/Third Party Plaintiff,

UNITED STATES of America ex rel., FEDERAL

ENERGY REGULATORY COMMISSION; and

United States Army Corps of Engineers,

Third Party Defendants.

No. 94-C-970-H.

United States District Court,

N.D. Oklahoma.

April 2, 1996.

Scott R. Rowland, Frederic N. Schneider, III, L.K.

Smith, Boone Smith Davis Hurst & Dickman, Tulsa, OK,

Wayne T. Stratton, N. Larry Bork, Sam Brownback, Good-

ell Stratton Edmons & Palmer, Topeka, KS, for plaintiffs.

Tony M. Graham, United States Attorney, Tulsa, OK,

Jody R. Nathan, Robert A. Franden, Feldman Hall Fran-

den Woodward & Farris, Tulsa, OK, Allen B. Pease, Grand

River Dam Authority, Vinita, OK, for defendant/third

party plaintiff.

Donna Smith, David E. Jones, Logan & Lowry, Vinita,

OK, for intervenors.

Janet Jones, Federal Energy Regulatory Commission,

Washington, DC, for third-party defendant U-S. ex rel.

Federal Energy Regulatory Com’n.

App. 18

Phil Pinnell, United States Attorney, Tulsa, OK, Kay

Hoover, John Roselle, Terence Smith, United States Army

Corps of Engineers, Tulsa District, Tulsa, OK, for third-

party defendant U.S. Army Corps of Engineers.

ORDER

HOLMES, District judge.

This matter comes before the Court on Plaintiffs’

Motion to Remand (Docket # 4).

Plaintiffs brought this action in the District Court of

Ottawa County, alleging claims of inverse condemnation,

consequential damage to private property for public use,

strict liability, trespass, nuisance, and injunction against

Defendant Grand River Dam Authority (“GRDA”). Plain-

tiffs contend that they sustained damage to their property

as a result of the release of water from the Pensacola Dam

by GRDA. GRDA is a conservation and reclamation dis-

trict created within the State of Oklahoma by 82

Okla.Stat.Ann. § 861, which operates the Pensacola Dam

pursuant to a license issued by the Federal Energy Regu-

latory Commission (“FERC”).

GRDA removed this action to the United States Dis-

trict Court for the Northern District of Oklahoma on

October 14, 1994, alleging that jurisdiction is proper

under 28 U.S.C. §§ 1441(b) and 1442(a)(1). On October 21,

1994, GRDA filed a third party claim for indemnification

against FERC and the United States Army Corps of Engi-

neers (“Corps”). In an Order entered on this date, the

Court dismissed the Third-Party Complaint against the

App. 19

United States. The Court now considers Plaintiffs’ motion

to remand.

GRDA claims that removal is proper under Section

1442(a)(1) because it was acting pursuant to the direction

f a federal officer when it released the waters that

allegedly flooded Plaintiffs’ property. Section 1442 pro-

vides:

(a) A civil action or criminal prosecution com-

menced in a State court against any of the fol-

lowing persons may be removed by them to the

district court of the United States for the district

and division embracing the place wherein it is

pending:

(1) Any officer of the United States or any

agency thereof, or person acting under

him, for any act under color or such

office or on account of any right, title

or authority claimed under any Act of

Congress for the apprehension or pun-

ishment of criminals or the collection

of the revenue.

(emphasis added). GRDA alleges that it is entitled to

remove the action under Section 1442(a)(1) because it

operates the dam pursuant to a license from FERC and

because the Corps directs releases from Grand Lake when

the water level is within the flood pool.

Removal under Section 1442(a)(1) must be predicated

upon the averment of a colorable federal defense to Plain-

tiffs’ claims. Mesa v. California, 489 U.S. 121, 139, 109 S.Ct.

959, 970, 103 L.Ed.2d 99 (1989). Although a defendant

App- 20

need not prove that it would prevail on its federal immu-

nity defense in order to obtain removal, see Willingham v.

Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d

396 (1969), a defendant must “allege facts that would

support a colorable immunity defense if those facts were

true,” State v. Ivory, 906 F.2d 999, 1002 (4th Cir.1990).

GRDA contends that it has satisfied this requirement

by asserting a claim of “shared immunity” with the fed-

eral government. Specifically, GRDA relies upon the

“government contractor’s immunity” recognized by the

Supreme Court in Yearsley v. W.A. Ross Construction Co.,

309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1939). The Supreme

Court has recognized government contractor’s immunity

in a products liability action against a manufacturer who

manufactured allegedly defective products under a con-

tract with the federal government and in accordance with

government specifications. Boyle v. United Technologies

Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).

Government contractor’s immunity has also barred

claims against a construction company performing labor

for the government pursuant to a government contract.

Yearsley, 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554. GRDA has

offered no evidence that it is either producing goods or

performing labor pursuant to a government contract.

Rather, GRDA owns and operates its own facility. The

mere fact that it is licensed by FERC does not transform it

into a government contractor for purposes of securing

federal immunity. In fact, to the contrary, the statutory

terms incorporated into the license itself specifically ren-

der GRDA, as licensee, liable for damages incurred by

third parties as a result of the licensee’s operation of its

project. Section 10(c) of the Federal Power Act provides:

RPE T RESEND EMA iN oti ks mate NA Rat ieee tate che y ‘

App. 21

All licenses issued under this subchapter shall be on

the following conditions:

liability of licensee for damages

That the licensee shall maintain the project

works in a condition of repair adequate for the

purposes of navigation and for the efficient

operation of said works in the development and

transmission of power, shall make all necessary

renewals and replacements, shall establish and

maintain adequate depreciation reserves for

such purposes, shall so maintain and operate

said works as not to impair navigation, and

shall conform to such rules and regulations as

the Commission may from time to time pre-

scribe for the protection of life, health and prop-

erty. Each licensee hereunder shall be liable for

all damages occasioned to the property of others

by the construction, maintenance, or operation

of the project works or of the works appurtenant

or accessory thereto, constructed under the

license, and in no event shall the United States

be liable therefor.

16 U.S.C. § 803(c) (emphasis added); see Henry Ford &

Son v. Little Falls Fibre Co., 280 U.S. 369, 50 S.Ct. 140, 74

L.Ed. 483 (1930) (relying upon Section 803(c) to hold

licensee liable to third parties).

GRDA recognizes the applicability of this language,

see Def.’s Mem. in Opp’n to Pls. Mot. to Remand at 17 n.

16, but seeks to avoid it. GRDA states in brief as follows:

Section 10(c) of the Federal Power Act was

enacted in 1920. Section 3 of the Flood Control

Act of 1928 (33 U.S.C. § 702(c)) — the basis for

GRDA’s claim of shared immunity — was

App. 22

enacted later. Section 10(c) generally addresses

the liability for all federal hydroelectric

licensees. Section 3 of the Flood Control Act of

1928 addresses the specific issue of liability for

the federal government's flood control activities.

As both a later enactment, and a more specific

enactment, the provisions of Section 3 of the

Flood Control Act of 1928 prevai: over the more

general provision of Section 10(c) of the Federal

Power Act.

Id. GRDA’s reliance upon Section 702c, however, is

misplaced. That provision merely states that “[n]o lia-

bility of any kind shall attach to or rest upon the United

States for any damage from or by floods or flood waters

at any place.” 33 U.S.C. § 702c. It does not extend that

protection to licensees, nor does it even allude to the

licensee’s role in the flood control process. In fact, one

federal appellate court has rejected the notion that Sec-

tion 702c provides “shared immunity” to local water dis-

tricts operating flood control projects constructed by the

Corps. Taylor Bay Protective Ass'n v. Administrator, United

States Envtl. Protection Agency, 884 F.2d 1073 (8th

Cir.1989). By contrast, Section 10(c) of the Federal Power

Act deals exclusively with the relationship between

licensees and the federal government, squarely placing

potential liability on licensees and explicitly preserving

the federal government’s immunity. The Court therefore

rejects GRDA’s claim that it shares in the general immu-

nity of the United States when federal law specifically

subjects licensees to liability to third parties.' Because

! The Court also rejects GRDA’s argument that it is entitled

to government contractor’s immunity because it is acting

LIAM GO TE PETS.

App. 23

GRDA does not have a colorable federal immunity

defense to this action, the Court does not have jurisdic-

tion pursuant to 28 U.S.C. § 1442(a)(1).

Il.

GRDA asserts 28 U.S.C. § 1441(b) as an additional

basis for removal. That provision states:

Any civil action of which the district courts have

original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws

of the United States shall be removable without

regard to the citizenship or residence of the

parties. Any other such action shall be remov-

able only if none of the parties in interest prop-

erly joined and served as defendants is a citizen

of the state in which such action is brought.

In applying Section 1441(b), the Tenth Circuit has

held that

the required federal right or immunity must be |

an essential element of the plaintiff’s cause of

action, and [ ] the federal controversy must be

‘disclosed upon the face of the complaint,

unaided by the answer or by the petition for

removal.’

Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333

(10th Cir.1982) (citations omitted). It is uncontested that

pursuant to federal law and “contracts with the Corps of

Engineers.” Def.’s Supp.Resp. at 8. Nothing contained in the

statutes and regulations cited in support of this proposition

transforms them from regulatory provisions issued by a

governmental entity into contracts between two consenting

parties.

App. 24

the alleged federal right or immunity is not an element of

Plaintiffs’ cause of action. Instead, GRDA contends that

the “fundamental issues in this case involve federal flood

control activities, whether or not Plaintiffs have chosen so

to plead those issues.” Def.’s Mem. at 22. In support of

the proposition that federal law, though unspoken, can so

permeate a petition that it mandates removal, GRDA cites

Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107

S.Ct. 1542, 95 L.Ed.2d 55 (1987). In Taylor, the Supreme

Court held that the defense of ERISA preemption need

not appear on the face of the complaint because ERISA

claims are necessarily federal in character. Id. at 66, 107

S.Ct. at 1547-48. The Court has held herein that GRDA

has no claim to federal immunity. Furthermore, the Court

rejects GRDA’s assertion that Plaintiffs’ claims are neces-

sarily federal in character. Therefore, there is no basis for

removal under Section 1441(b).

Accordingly, Plaintiffs’ Motion for Remand is hereby

granted (Docket # 4). The Clerk of the Court is directed to

send a copy of this Order to the Clerk of the District

Court of Ottawa Coufty, Oklahoma.

IT IS SO ORDERED.

App. 25

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

JACK DALRYMPLE and ROSEMARY)

DALRYMPLE, et al.,

Plaintiffs,

GRAND RIVER DAM AUTHORITY,

Defendant/Third

Party Plaintiff,

UNITED STATES OF AMERICA ex

rel FEDERAL ENERGY

REGULATORY COMMISSION; and

UNITED STATES ARMY CORPS OF

ENGINEERS,

Third Party

Defendants.

me me ee ee ee ee ee ee ee”

ORDER

(Filed Apr. 2, 1996)

Case No.

94-C-970-H

This matter comes before the Court on a Motion to

Dismiss filed by each of the Third Party Defendants, the

Federal Energy Regulatory Commission (Docket #18) and

the United States Army Corps of Engineers (Docket #20).

Pl ‘ntiffs brought this action in the District Court of

Ottawe lounty, alleging claims of inverse condemnation,

conseq. ential damage to private property for public use,

strict liability, trespass, nuisance, and injunction against

Defendant Grand River Dam Authority (“GRDA”). Plain-

tiffs contend that they sustained damage to their property

App. 26

as a result of the release of water from the Pensacola Dam

by GRDA. GRDA is a conservation and reclamation dis-

trict created within the State of Oklahoma by 82 Okla.

Stat. Ann. § 861, which operates the Pensacola Dam pur-

suant to a license issued by the Federal Energy Regula-

tory Commissions (“FERC”).

GRDA removed this action to the United States Dis-

trict Court for the Northern District of Oklahoma on

October 14, 1994, alleging that jurisdiction is proper

under 28 U.S.C. §§ 1441(b) and 1442(a)(1). On October 21,

1994, GRDA filed a third party claim for indemnification

against FERC and the United States Army Corps of Engi-

neers (“Corps”). FERC and the Corps now challenge this

Court’s jurisdiction.

Sovereign immunity bars suits against the United

States absent an express waiver of immunity. United

States v. Mitchell, 445 U.S. 535 (1980). If the sovereign does

consent to be sued, it may define the jurisdiction of the

court entertaining that suit. Id. at 538. Section 1346 of

Title 28 of the United States Code provides:

(a) The district courts shall have original juris-

diction, concurrent with the United States Court

of Federal Claims, of... .

(2) Any other civil action or claim against

the United States, not exceeding $10,000 in

amount, founded either upon the Constitu-

tion, or any Act of Congress, or any regula-

tion of an executive department, or upon

any express or implied contract with the

United States, or for liquidated or unliqui-

dated damages in cases not sounding in

tort...

are

SEDER SNA DIAL I ET BROLIN LA rot BP ad Thr ef tie oe

ee wee

App. 27

(b) Subject to the provisions of chapter 171 of

this title, the district courts . . . shall have exclu-

sive jurisdiction of civil actions on claims

against the United States, for money damages,

accruing on and after January 1, 1945, for injury

or loss of property, or personal injury or death

caused by the negligent or wrongful act or omis-

sion of any employee of the Government while

acting within the scope of his office or employ-

ment, under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place

where the act or omission occurred.

Thus, in those cases in which the United States has

waived its immunity as to tort claims, this Court has

jurisdiction. Plaintiffs allege various tort claims against

GRDA, who, in turn, seeks indemnity from the United

States. However, GRDA explicitly acknowledges that the

United States possesses immunity from these tort claims.

Def.’s Br. in Opp’n to the Third Party Defs.’ Mot. to

Dismiss Third-Party Compl. at 5. The Court therefore

does not have jurisdiction over the portion of the Third-

Party Complaint arising out of the tort claims.

Plaintiffs also assert two claims for inverse condem-

nation. Inverse condemnation is essentially a claim for

just compensation for the taking of property as required

by the Fifth Amendment to the United States Constitu-

tion. Plaintiffs seek “just compensation” for each Plaintiff

“in excess of $50,000” from GRDA, who seeks full indem-

nification from the United States. This constitutes a claim

in excess of $10,000 that is founded upon the United

States Constitution, thus divesting this Court of its juris-

diction.

App. 28

Section 1491(a)(1) of Title 28 of the United States

Code provides in pertinent part:

The United States Court of Federal Claims shall

have jurisdiction to render judgment upon any

claim against the United States founded either

upon the Constitution, or any Act of Congress

or any regulation of an executive department, or

upon any express or implied contract with the

United States, or for liquidated or unliquidated

damages in cases not sounding in tort... .

The Court of Federal Claims therefore has concurrent

jurisdiction over all civil actions against the United States

arising under the Constitution for claims “not exceeding

$10,000,” see 28 U.S.C. § 1346(a)(2), and exclusive jurisdic-

tion over those actions, such as this, that seek damages in

excess of $10,000.

Accordingly, the Court hereby dismisses GRDA’s

claims against FERC and the Corps for lack of subject

matter jurisdiction (Dockets #18, 20).

IT IS SO ORDERED.

This 2nd day of April, 1996.

/s/ Sven Erik Holmes

Sven Erik Holmes

United States

District Judge

App. 29

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

EVERETT R. WAGONER and

MADELINE WAGONER,

Plaintiffs,

GRAND RIVER DAM AUTHORITY

and RONALD COKER, in his

official capacity as General Manager

and Chief Executive Officer of the

Grand River Dam Authority,

Defendants /Third

Party Plaintiffs,

UNITED STATES OF AMERICA ex

rel FEDERAL ENERGY

REGULATORY COMMISSION; and

UNITED STATES ARMY CORPS OF

ENGINEERS,

Third Party

Defendants

WAYNE E. ROBERTS,

Plaintiff,

GRAND RIVER DAM AUTHORITY

and RONALD COKER, in his

official capacity as General

Manager and Chief Executive

Officer of the Grand River

Dam Authority,

Defendants / Third

Party Plaintiffs,

de ee ee ee ee ee ee ee ee ee, ee, ee ee ee, ee, ae, ee, ee ee ee ee

Case No.

94-C-1091-H

(Filed

Apr. 2, 1996)

Case No.

94-C-1092-H

App. 30

Vv.

UNITED STATES OF AMERICA ex

rel FEDERAL ENERGY

REGULATORY COMMISSION; and

UNITED STATES ARMY CORPS OF

ENGINEERS,

Third Party

Defendants.

ORDER

This matter comes before the Court on Plaintiffs’

Motion to Remand (Docket #9).

Plaintiffs brought this action in the District Court of

Ottawa County, alleging claims of trespass and inverse

condemnation against Defendants Grand River Dam

Authority (“GRDA”} «nd Ronald Coker. Plaintiffs con-

tend that they sustained damage to their property as a

result of the release of water from the Pensacola Dam by

GRDA. GRDA is a conservation and reclamation district

created within the State of Oklahoma by 82 Okla. Stat.

Ann. § 861, which operates the Pensacola Dam pursuant

to a license issued by the Federal Energy Regulatory

Commission (“FERC”). Mr. Coker is the General Manager

and Chief Executive Officer of GRDA.

Defendants removed this action to the United States

District Court for the Northern District of Oklahoma on

April 12, 1994. Concluding that Defendants had not

offered any evidence te establish that they were acting

under the control of a federal officer, the United States

District Court remanded the case to the District Court of

Ottawa County. Plaintiffs then filed an amended petition

App. 31

Defendants filed an answer, asserting a third party claim

for indemnification against FERC and the United States

Army Corps of Engineers (“Corps”). Defendants then

removed the action to the United States District Court

again, alleging that jurisdiction is proper under 28 U. S.C.

§§ 144 1(b) and 1442(a)(1). In an Order entered on this

date, the Court dismissed the Third-Party Complaint

against the United States. The Court now considers Plain-

tiffs’ motion to remand.

Defendants claim that removal is proper under Sec-

tion 1442(a)(1) because GRDA was acting pursuant to the

direction of a federal officer when it released the waters

that allegedly flooded Plaintiffs’ property. Section 1442

provides:

(a) A civil action or criminal prosecution com-

raesced in a State court against any of the fol-

lowing persons may be removed by them to the

~ district court of the United States for the district

and division embracing the place wherein it is

pending:

(1) Any officer of the United States or any

agency thereof, or person acting under him,

for any act under color or such office or on

account of any right, title or authority

claimed under any Act of Congress for the

apprehension or punishment of criminals or

the collection of the revenue.

(emphasis added). Defendants allege they are entitled to

remove the action under Section 1442(a)(1) because

GRDA operates the dam pursuant to a license from FERC

and because the Corps directs releases from Grand Lake

when the water level is within the flood pool.

App. 32

Removal under Section 1442(a)(1) must be predicated

upon the averment of a colorable federal defense to Plain-

tiffs’ claims. Mesa v. California, 489 U.S. 121, 139 (1989).

Although a defendant need not prove that it would pre-

vail on its federal immunity defense in order to obtain

removal, see Willingham v. Morgan, 395 U.S. 402, 407

(1969), a defendant must “allege facts that would support

a colorable immunity defense if those facts were true,”

State v. Ivory, 906 F.2d 999, 1002 (4th Cir. 1990).

Defendants contend that it has satisfied this require-

ment by asserting a claim of “shared immunity” with the

federal government. Specifically, Defendants rely upon

the “government contractor’s immunity” recognized by

the Supreme Court in Yearsley v. W.A. Ross Construction

Co., 309 U.S. 18 (1939). The Supreme Court has recog-

nized government contractor’s immunity in a products

liability action against a manufacturer who manufactured

allegedly defective products under a contract with the

federal government and in accordance with government

specifications. Boyle v. United Technologies Corp., 487 U.S.

500 (1988). Government contractor’s immunity has also

barred claims against a construction company performing

labor for the government pursuant to a government con-

tract. Yearsley, 309 U.S. 18. Defendants have offered no

evidence that GRDA is either producing goods or per-

forming labor pursuant to a government contract. Rather,

GRDA owns and operates its own facility. The mere fact

that it is licensed by FERC does not transform it into a

government contractor for purposes of securing federal

immunity. In fact, to the contrary, the statutory terms

incorporated into the license itself specifically render

GRDA, as licensee, liable for damages incurred by third

App. 33

parties as a result of the licensee’s operation of its project.

Section 10(c) of the Federal Power Act provides:

Al licenses issued under this subchapter shall

be on the following conditions:

liability of licensee for damages

That the licensee shall maintain the project

works in a condition of repair adequate for the

purposes of navigation and for the efficient

operation of said works in the development and

transmission of power, shall make all necessary

renewals and replacements, shall establish and

maintain adequate depreciation reserves for

such purposes, shall so maintain and operate ~

said works as not to impair navigation, and

shall conform to such rules and regulations as

the Commission may from time to time pre-

scribe for the protection of life, health and prop-

erty. Each licensee hereunder shali be liable for all

damages occasioned to the property of others by the

construction, maintenance, or operation of the pro-

ject works or of the works appurtenant or accessory

thereto. constructed under the license, and in no

event shall the United States be liable therefor.

16 U.S.C. § 803(c) (emphasis added); see Henry Ford & Son

v. Little Falls Fibre Co., 280 U.S. 369 (1930) (relying upon

Section 803(c) to hold licensee liable to third parties).

Defendants recognize the applicability of this lan-

guage, see Defs.’ Mem. in Opp’n to Pls.’ Mot. to Remand

at 19 n.12, but seek to avoid it. Defendants state in brief

as follows:

Section 10(c) of the Federal Power Act was

enacted in 1920. Section 3 of the Flood Control

App. 34

Act of 1928 (33 U.S.C. § 702(c)) — the basis for

GRDA’s claim of shared immunity - was

enacted later. Section 10(c) generally addresses

the liability for all federal hydroelectric

licensees. Section 3 of the Flood Control Act of

1928 addresses the specific issue of liability for

the federal government’s flood contrcl activities.

As both a later enactment, and a more specific

enactment, the provisions of Section 3 of the

Flood Control Act of 1928 prevail over the more

general provision of Section 10(c) of the Federal

Power Act.

Id. Defendants’ reliance upon Section 702(c), however, is

misplaced. That provision merely states that “[nJo lia-

bility of any kind shall attach to or rest upon the United

States for any damage from or by floods or flood waters

at any place.” 33 U.S.C. § 702(c). It does not extend that

protection to licensees, nor does it even allude to the

licensee’s role in the flood control process. In fact, one

federal appellate court has rejected the notion that Sec-

tion 702(c) provides “shared immunity” to local water

districts operating flood control projects constructed by

the Corps. Taylor Bay Protective Ass'n v. Administrator,

United States Envtl. Protection Agency, 884 F.2d 1073 (8th

Cir. 1989). By contrast, Section 10(c) of the Federal Power

Act deals exclusively with the relationship between

licensees and the federal government, squarely placing

potential liability on licensees and explicitly preserving

the federal government’s immunity. The Court therefore

rejects Defendants’ claim that they share in the general

App. 35

immunity of the United States when federal law speci-

fically subjects licensees to liability to third parties.1

Because Defendants do not have a colorable federal

immunity defense to this action, the Court does not have

jurisdiction pursuant to 28 U.S.C. § 1442(a)(1).

II.

Defendants assert 28 U.S.C. § 1441(b) as an additional

basis for removal. That provision states:

Any civil action of which the district courts have

original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws

of the United States shall be removable without

regard to the citizenship or residence of the

parties. Any other such action shall be remov-

able only if none of the parties in interest prop--

erly joined and served as defendants is a citizen

of the state in which such action is brought. In

applying Section 1441(b), the Tenth Circuit has

held that the required federal right or immunity

must be an essential element of the plaintiff's

cause of action, and [] the federal controversy

must be ‘disclosed upon the face of the com-

plaint, unaided by the answer or by the petition

for removal.’

1 The Court also rejects Defendants’ argument that it is a

government contractor because “GRDA’s operation of the dam

is pursuant to federal contracts entered into under federal

Statutes and regulations.” Defs.’ Supp. Resp. at 8. Nothing

contained in the statutes and regulations cited in support of this

Proposition transforms them from regulatory provisions issued

by a governmental entity into contracts between two consenting

parties.

App. 36

Fajen v. Foundation Reserve Ins. Co,, 683 F.2d 331, 333 (10th

Cir. 1982) (citations omitted). It is uncontested that the

alleged federal right or immunity is not an element of

Plaintiffs’ cause of action. Instead, Defendants contend

that the “fundamental issues in this case involve federal

flood control activities, whether or not Plaintiff has cho-

sen so to plead those issues.” Defs.’ Mem. at 23. In

support of the proposition that federal law, though

unspoken, can so permeate a petition that it mandates

removal, Defendants cite Metropolitan Life Insurance Co. v.

Taylor, 481 U.S. 58 (1987). In Taylor, the Supreme Court

held that the defense of ERISA preemption need not

appear on the face of the complaint because ERISA claims

are necessarily federal in character. Id. at 66. The Court

has held herein that Defendants have no claim to federal

immunity. Furthermore, the Court rejects Defendants’

assertion that Plaintiffs’ claims are necessarily federal in

character. Therefore, there is no basis for removal under

Section 1441(b).

Accordingly, Plaintiffs’ Motions for Remand are

hereby granted (Docket #9). The Clerk of the Court is

directed to send a copy of this Order to the Clerk of the

District Court of Ottawa County, Oklahoma.

IT IS SO ORDERED.

This 2nd day of April, 1996.

/s/ Sven Erik Holmes

Sven Erik Holmes

United States

District Judge

App. 37

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

WAYNE E. ROBERTS,

Plaintiff,

GRAND RIVER DAM

AUTHORITY and RONALD

COKER, in his official capacity

as General Manager and Chief

Executive Officer of the Grand

River Dam Authority,

Defendants /Third

Party Plaintiffs,

Case No.

94-C-1092-H

Vv.

UNITED STATES OF AMERICA

ex rel FEDERAL ENERGY

REGULATORY COMMISSION;

and UNITED STATES ARMY

CORPS OF ENGINEERS,

meme em eee ee ee”

ORDER

(Filed Apr. 2, 1996)

This matter comes before the Court on a Motion to

Dismiss filed by each of the Third Party Defendants, the

Federal Energy Regulatory Commission (Docket #19) and

the United States Army Corps of Engineers (Docket #14).

Plaintiffs brought this action in the District Court of

Ottawa County, alleging claims of trespass and inverse

condemnation against Defendants Grand River Dam

Authority (“GRDA”) and Ronald Coker. Plaintiffs con-

tend that they sustained damage to their property as a

App. 38

result of the release of water from the Pensacola Dam by

(*RDA. GRDA is a conservation and reclamation district

created within the State of Oklahoma by 82 Okla. Stat.

Ann. § 861, which operates the Pensacola Dam pursuant

to a license issued by the Federal Energy Regulatory

Commission (“FERC”). Mr. Coker is the General Manager

and Chief Executive Officer of GRDA.

Defendants removed this action to the United States

District Court for the Northern District of Oklahoma on

April 12, 1994. Concluding that Defendants had not

offered any evidence to establish that they were acting

under the control of a federal officer, the United States

District Court remanded the case to the District Court of

Ottawa County. Plaintiffs then filed an amended petition.

Defendants filed an answer, asserting a third party claim

for indemnification against FERC and the United States

Army Corps of Fagineers (“Corps”). Defendants then

removed the actic to the United States District Court

again. FERC and the Corps now challenge this Court's

jurisdiction.

Sovereign immunity bars suits against the United

States absent an express waiver of immunity. United

States v. Mitchell, 445 U.S. 535 (1980). If the sovereign does

consent to be sued, it may define the jurisdiction of the

court entertaining that suit. Id. at 538. Section 1346 of

Title 28 of the United States Code provides:

(a) The district courts shall have original juris-

diction, concurrent with the United States Court

of Federal Claims, of: ...

(2) Any other civil action or claim against

the United States, not exceeding $10,000 in

App. 39

amount, founded either upon the Constitu-

tion, or any Act of Congress, or any regula-

tion of an executive department, or upon

any express or implied contract with the

United States, or for liquidated or unliqui-

dated damages in cases not sounding in

Cres.

(b) Subject to the provisions of chapter 171 of

this title, the district courts . . . shall have exclu-

Sive jurisdiction of civil actions on claims

against the United States, for money damages,

accruing on and after January 1, 1945, for injury

or loss of property, or personal injury or death

caused by the negligent or wrongful act or omis-

sion of any employee of the Government while

acting within the scope of his office or employ-

ment, under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place

where the act or omission occurred.

Thus, in those cases in which the United States has

waived its immunity as to tort claims, this Court has

jurisdiction. Plaintiffs allege a claim of trespass against

Defendants/Third Party Plaintiffs, who, in turn, seek

indemnity from the United States. However, Defendants /

Third Party Plaintiffs explicitly acknowledge that the

United States possesses immunity from this tort claim.

Defs.’ Br. in Opp’n to the Third Party Defs.’ Mot. to

Dismiss Third-Party Compl. at 1, 6. The Court therefore

does not have jurisdiction over the portion of the Third-

Party Complaint arising out of the tort claim.

Plaintiffs also assert a claim for inverse condemna-

tion. Inverse condemnation is essentially a claim for just

compensation for the taking of property as required by

App. 40

the Fifth Amendment to the United States Constitution.

Plaintiffs seek “in excess of $10,000” from Defendants/

Third Party Plaintiffs, who seek full indemnification from

the United States, This constitutes a claim in excess of

$10,000 that is founded upon the United States Constitu-

tion, thus divesting this Court of its jurisdiction.

Section 1491(a)(1) of Title 28 of the United States

Code provides in pertinent part:

The United States Court of Federal Claims shall

have jurisdiction to render judgment upon any

claim against the United States founded either

upon the Constitution, or any Act of Congress

or any regulation of an executive department, or

upon any express or implied contract with the

United States, or for liquidated or unliquidated

damages in cases not sounding in tort... .

The Court of Federal Claims therefore has concurrent

jurisdiction over all civil actions against the United States

arising under the Constitution for claims “not exceeding

$10,000,” see 28 U.S.C. § 1346(a)(2), and exclusive jurisdic-

tion over those actions, such as this, that seek damages in

excess of $10,000.

Accordingly, the Court hereby dismisses the Defen-

dants’/Third Party Plaintiffs’ claims against FERC and

the Corps for lack of subject matter jurisdiction (Dockets

#19,14).

IT IS SO ORDERED.

This 2nd day of April, 1996.

/s/ Sven Erik Holmes

ven Eri olmes

United States District Judge

App. 41

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

WAYNE E. ROBERTS,

Plaintiff,

GRAND RIVER DAM

AUTHORITY and RONALD

COKER, in his official Capacity

as General Manager and Chief

Executive Officer of the Grand

)

) Case No.

)

River Dam Authority,

)

94-C-1092-H

Defendants /Third

Party Plaintiffs,

UNITED STATES OF AMERICA

ex rel FEDERAL ENERGY

REGULATORY COMMISSION;

and UNITED STATES ARMY

CORPS OF ENGINEERS,

Third Party

Defendants.

ORDER

(Filed Apr. 11, 1996)

This matter comes before the Court on Defendants’

, Motion to Reconsider and for Immediate Stay of Remand

| (Docket #64).

App. 42

Under Rule 60(b) of the Federal Rules of Civil Pro-

cedure,! the Court has discretion to grant the

“extraordinary procedure” of relief from a final judgment

or order. Greenwood Expiorations, Ltd. v. Merit Gas & Oil

Corp., 837 F.2d 423, 426 (10th Cir. 1988); Cessna Fin. Corp.

v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444

(10th Cir. 1983). Based on its review of Defendants’

motion, the Court declines to grant this relief. Defen-

dants’ motion to Reconsider and Stay of Remand (Docket

#64) is accordingly denied.

IT IS SO ORDERED.

This 11th day of April, 1996.

/s/ Sven Erik Holmes

Sven Erik Holmes

United States District Judge

1 Defendants also request relief pursuant to Fed. R. Civ. P.

59(e), which provides: “Any motion to alter or amend a

judgment shall be filed no later than 10 days after entry of the

judgment.” No judgment was entered herein, therefore Rule

59(e) is inapplicable to the instant case.

Sab an a la i ca baa

App. 43

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

WAYNE E. ROBERTS,

Plaintiff,

GRAND RIVER DAM

AUTHORITY and RONALD

COKER, in his official capacity

as General Manager and Chief

Executive Officer of the Grand

River Dam Authority,

Defendants /Third

Party Plaintiffs,

UNITED STATES OF AMERICA

ex rel FEDERAL ENERGY

REGULATORY COMMISSION;

and UNITED STATES ARMY

CORPS OF ENGINEERS,

Third Party

Defendants.

ORDER

Case No.

94-C-1092-H

)

(Filed Apr. 12, 1996)

This matter comes before the Court on Defendants’

Motion for Int-rlocutory Certification and for Stay of

Remand Pending Interlocutory Appeal (Docket #65).

Defendants seek certification of the issues underlying

the Court’s remand order entered April 2, 1996. Defen-

dants assert that certification is available pursuant to 28

U.S.C. § 1292(b), which Provides in pertinent part:

App. 44

When a district judge, in making in a civil action

an order not otherwise appealable under this

section, shall be of the opinion that such order

involves a controlling question of law as to

which there is substantial ground for difference

of opinion and than an immediate appeal from

the order may materially advance the ultimate

termination of the litigation, he shall so state in

writing in such order. The Court of Appeals

which would have jurisdiction of an appeal of

such action may thereupon, in its discretion,

permit an appeal to be taken from such order, if

application is made to it within ten days after

the entry of the order... .

The Court concludes that certification is not appropriate

in the instant case. Defendants’ Motion for Interlocutory

Certification and for Stay of Remand Pending Interlocu-

tory Appeal is hereby denied (Docket #65).

IT IS SO ORDERED.

This 12th day of April, 1996.

/s/ Sven Erik Holmes

Sven Erik Holmes

United States District Judge

App. 45

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JACK DALRYMPLE, et al. )

Plaintiffs-Appellees,

v. )

GRAND RIVER DAM

AUTHORITY,

Defendant/Third Party )

Plaintiff-Appellant, ) Nos.

) 96-5113

)

}

96-5114

96-5115

Vv.

UNITED STATES OF AMERICA.

ex rel. FEDERAL ENERGY

REGULATORY COMMISSION

and UNITED STATES ARMY

CORPS OF ENGINEERS,

Third-Party-Defendants-

Appellees.

ORDER

(Filed July 28, 1998)

Before BRORBY and McWILLIAMS, Circuit Judges and

BLACK* District Court Judge.

* The Honorable Bruce D. Black, District Court Judge for the

District of New Mexico, sitting by designation.

App. 46

Appellant Grand River Dam Authority’s petition for

rehearing is denied.

The suggestion for rehearing en banc was transmit-

ted to all of the judges of the court who are in regular

active service required by Fed. R. App. P. 35. As no

member of the panel and no judge in regular active

service on the court requested that the court be polled,

the suggestion is also denied.

Entered for the Court

PATRICK FISHER, Clerk of Court

by: /s/ Ardell Schuler

Deputy Clerk

App. 47

U.S. CONST. Art.VI cl.2

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the Author-

ity of the United States, shall be the supreme Law of the

Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.

28 U.S.C. § 1442. Federal officers or agencies sued or

prosecuted

(a) A civil action or criminal prosecution com-

menced in a State court against any of the following may

be removed by them to the district court of the United

States ior the district and division embracing the place

wherein it is pending:

(1) The United States or any agency thereof or any

officer (or any person acting under that officer) of the

United States or of any agency thereof, sued in an official

or individual capacity for any act under color of such

office or on account of any right, title or authority

claimed under any Act of Congress for the apprehension

or punishment of criminals or the collection of the reve-

nue.

(2) A property holder whose title is derived from

any such officer, where such action or prosecution affects

the validity of any law of the United States.

(3) Any officer of the courts of the United States, for

any Act under color of office or in the performance of his

duties;

App. 45

(4) Any officer of either House of Congress, for any

act in the discharge of his official duty under an order of

such House.

(b) A personal action commenced in any State court

by an alien against any citizen of a State who is, or at the

time the alleged action accrued was, a civil officer of the

United States and is a nonresident of such State, wherein

jurisdiction is obtained by the State court by personal

service of process, may be removed by the defendant to

the district court of the United States for the district and

division in which the defendant was served with process.

ial

28 U.S.C. § 1446. Procedure for removal

(a) A defendant or defendants desiring to remove

any civil action or criminal prosecution from a State court

shall file in the district court of the United States for the

district and division within which such action is pending

a notice of removal signed pursuant to Rule 11 of the

Federal Rules of Civil Procedure and containing a short

and plain statement of the grounds for removal, together

with a copy of all process, pleadings, and orders served

upon such defendant or defendants in such action.

(b) The notice of removal of a civil action or pro-

ceeding shall be filed within thirty days after the receipt

by the defendant, through service or otherwise, of a copy

of the initial pleading setting forth the claim for relief

upon which such action or proceeding is based, or within

thirty days after the service of summons upon the defen-

dant if such initial pleading has then been filed in court

and is not required to be served on the defendant, which-

ever period is shorter.

App. 49

If the case stated by the initial pleading is not remov-

able, a notice of removal may be filed within thirty days

after receipt by the defendant, through service or other-

wise, of a copy of an amended pleading, motion, order or

other paper from which it may first be ascertained that

the case is one which is or has become removable, except

that a case may not be removed on the basis of jurisdic-

tion conferred by section 1332 of this title more than 1

year after commencement of the action.

(c)(1) A notice of removal of a criminal prosecution

shall be filed not later than thirty days after the arraign-

ment in the State court, or at any time before trial, which-

ever is earlier, except that for good cause shown the

United States district court may enter an order granting

the defendant or defendants leave to file the notice at a

later time.

(2) A notice of removal of a criminal prosecution

shall include all grounds for such removal. A failure to

state grounds which exist at ‘he time of the filing of the

notice shall constitute a waiver of such grounds, and a

second notice may be filed only on grounds not existing

at the time of the original notice. For good cause shown,

the United States district court may grant relief from the

limitations of this paragraph.

(3) The filing of a notice of removal of a criminal

prosecution shall not prevent the State court in which

such prosecution is pending from proceeding further,

except that a judgment of conviction shall not be entered

unless the prosecution is first remanded.

(4) The United States district court in which such

notice is filed shall examine the notice promptly. If it

App. 50

clearly appears on the face of the notice and any exhibits

annexed thereto that removal should not be permitted,

the court shall make an order for summary remand.

(5) If the United States district court does not order

the summary remand of such prosecution, it shall order

an evidentiary hearing to be held promptly and after

such hearing shall make such disposition of the prosecu-

tion as justice shall require. If the United States district

court determines that removal shall be permitted, it shall

so notify the State court in which prosecution is pending,

which shall proceed no further.

(d) Promptly after the filing of such notice of

removal of a civil action the defendant or defendants

shall give written notice thereof to all adverse parties and

shall file a copy of the notice with the clerk of such State

court, which shall effect the removal and the State court

shall proceed no further unless and until the case is

remanded.

(e) If the defendant or defendants are in actual cus-

tody on process issued by the State court, the district

court shall issue its writ of habeas corpus, and the mar-

shal shall thereupon take such defendant or defendants

into his custody and deliver a copy of the writ to the clerk

of such State court.

(f) With respect to any counterclaim removed to a

district court pursuant to section 337(c) of the Tariff Act

of 1930, the district court shall resolve such counterclaim

in the same manner as an original complaint under the

Federal Rules of Civil Procedure, except that the payment

of a filing fee shall not be required in such cases and the

counterclaim shall relate back to the date of the original

App. 51

complaint in the proceeding before the International

Trade Commission under section 337 of that Act.

28 U.S.C. § 1447. Procedure after removal generally

(a) In any case removed from a State court, the

district court may issue all necessary orders and process

to bring before it all proper parties whether served by

process issued by the State court or otherwise.

(b) It may require the removing party to file with its

clerk copies of all records and proceedings in such State

court or may cause the same to be brought before it by

writ of certiorari issued to such State court.

defect other than lack of subject matter jurisdiction must

be made within 30 days after the filing of the notice of

removal under section 1446(a). If at any time before final

judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded. An order

remanding the case may require payment of just costs

and any actual expenses, including attorney fees,

incurred as a result of the removal. A certified i copy of the

order of remand shall be mailed by the clerk to the clerk

of the State court. The State court may thereupon proceed

with such case.

(d) An order remaniling a case to the State court

from which it was removed is not reviewable on appeal

or otherwise, except that an order remanding a case to

the State court from which it was removed pursuant to

section 1443 of this title shall be reviewable by appeal or

otherwise.

App. 52

(e) If after removal the plaintiff seeks to join addi-

tional defendants whose joinder would destroy subject

matter jurisdiction, the court may deny joinder, or permit

joinder and remand the action to the State court.

16 U.S.C. § 811. Operation of navigation facilities; rules

and regulations; penalties

The Commission shall require the construction, main-

tenance, and operation by a licensee at its own expense of

such lights and signals as may be directed by the Secre-

tary of the Department in which the Coast Guard is

operating, and such fishways as may be prescribed by the

Secretary of the Interior or the Secretary of Commerce, as

appropriate. The operation of any navigation facilities

which may be constructed as a part of or in connection

with any dam or diversion structure built under the

provisions of this chapter, whether at the expense of a

licensee hereunder or of the United States, shall at all

times be controlled by such reasonable rules and regula-

tions in the interest of navigation, including the control of

the level of the pool caused by such dam or diversion

structure as may be made from time to time by the

Secretary of the Army; and for willful failure to c>mply

with any such rule or regulation such licensee shall be

deeired guilty of a misdemeanor, and upon conviction

thereof shall be punished as provided in section 8250 of

this title.

App. 53

33 U.S.C. § 702c. Expenditures for construction work;

conditions precedent; liability for damage from flood

waters; condemnation proceedings; floodage rights

Except when authorized by the Secretary of the Army

upon the recommendation of the Chief of Engineers, no

money appropriated under authority of sections 702a and

702g of this title shall be expended on the construction of

any item of the project until the States or levee districts

have given assurances satisfactory to the Secretary of the

Army that they will (a) maintain all flood-control works

after their completion, except controlling and regulating

spillway structures, including special relief levees; main-

tenance includes normally such matters as cutting grass,

removal of weeds, local drainage, and minor repairs of

main river levees; (b) agree to accept land turned over to

them under the provisions of section 702d of this title: (c)

provide without cost to the United States, all rights of

way for levee foundations and levees on the main stem of

the Mississippi River between Cape Girardeau, Missouri,

and the Head of Passes.

No liability of any kind shall attach to or rest upon

the United States for any damage from or by floods or

flood waters at any place: Provided, however, That if in

carrying out the purposes of sections 702a, 702b to 702d,

702e to 702g, 702h, 702i, 702j, 702k, 7021, 702m, and 704 of

this title it shall be found that upon any stretch of the

banks of the Mississippi River it is impracticable to con-

struct levees, either because such construction is not eco-

nomically justified or because such construction would

unreasonably restrict the flood channel, and lands in such

stretch of the river are subjected to overflow and damage

which are not now overflowed or damaged by reason of

App. 54

the construction of levees on the opposite banks of the

river it shall be the duty of the Secretary of the Army and

the Chief of Engineers to institute proceedings on behalf

of the United States Government to acquire either the

absolute ownership of the lands so subjected to overflow

and damage or floodage rights over such lands.

App. 55

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

JACK DALRYMPLE and

ROSEMARY DALRYMPLE,

husband and wife; DAVID A. 94 C 970 K

ADAMS; R.D. “BUDDY” ae

. Northern District

ADAMS; GERALD L. BASER Court No.

and BETTIE L. BASER, husband

and wife; LARRY J. BECKER;

ROBERT K. BERRY and SUSAN

M. BERRY, husband and wife;

CHARLES BOWLING and

KATHY BOWLING, husband and

wife; CALVIN BRADY: EDNA

OFFUTT BRYANT; GEORGE

CAMPBELL and CAROL SUE

CAMPBELL, husband and wife;

)

Ottawa County

)

DON CHILDERS and DEE )

)

Court No.

CJ-94-444

Proposed CLASS

ACTION

CHILDERS, husband and wife: (Filed

H. DALE CONARD; E.G. Oct. 14, 1994)

VENTURES, INC.; EARL B.

FERRIS; KENNETH FERRIS and

DIANN FERRIS, husband and

wife; HOWARD W. HOOVER;

MIAMI ANIMAL HOSPITAL,

INC.; STEPHEN L. HUNTER

and DEBBIE L. HUNTER,

husband and wife; SMITHY

JAMESON;; K.C. JEFFRIES;

GARY B. JENKINS and BETTY

A. JENKINS, husband and wife;

MIAMI TRIBE OF OKLAHOMA;

STEVE KRESYMAN, d/ b/a

Miami Car Wash; ROY K.

LACEN and IDA M. LACEN,

App. 56

husband and wife; JEFFREY

LAVINE and JOHNIA LAVINE,

husband and wife; BRUCE

LAWRENCE and REGINA

LAWRENCE, husband and wife;

TIM LUCAS and RHONDA

LUCAS, husband and wife;

JUSTIN MAHURIN and BECKY

MAHURIN, husband and wife;

BOARD OF COUNTY

COMMISSIONERS OF OTTAWA

COUNTY, OKLAHOMA; VERA

DC‘WTY LOWERY; CHRIS

MABURY and DEBRA MABURY,

husband and wife; LOUIS E.

MATHIA, d/b/a Riverside Auto

Salvage; CITY OF MIAMI,

OKLAHOMA, a municipal

corporation; LEO JAY MILLS;

VIRGINIA DIAN MILLS; JEFFRY

McCOOL and CAROLYN

McCOOL, husband and wife,

and d/b/a Vettes and Vans;

_E.W. McRAE; MIAMI TIRE

SERVICE, INC.; ALAN E.

NEWKIRK; MARY NIFFEN;

TAMMY NIFFEN; ROBERT E.

PATTERSON; MID-AMERICA

LAND, GRAIN & CATTLE

COMPANY; DAVID D. PAYNE;

ROBERT PEWITT and ANN

PEWITT, husband and wife; TIM

POTTER, d/b/a Potter

Landscaping & Nursery; JAMES

REDDEN and CATHY REDDEN,

husband and wife; JOSEPH A.

eee eee eee ee ee”

App. 57

ROSIN; ROSIN HERITAGE,

INC.; PAULA S. RUTLEDGE;

NICK A. SHADE; MARIAN

SHIPMAN; GARY ROY

SHOULTZ, d/b/a Gary’s

Barbeque and Deli; ROBERT L.

SILVERSMITH; RUTH

SILVERSMITH; BESS M.

STEPHENS; EDISON B. STEPP

and PATRICIA STEPP, husband

and wife; RANDY STONER;

GEORGE S. STUNKARD, d/b/a

Blaster’s Arcade; GLEN

SUMMERS; GEORGE

TROLINGER; DEAN TRONE and

TERESA TRONE, husband and

wife; BERT VANATTA; C.H.

VANATTA; EMMA VAUGHN;

HAROLD WATSON; BILL E.

WAY and SHELBY J. WAY,

husband and wife; MAYNARD

WEATHERS and JOANN

WEATHERS, husband and wife;

WAYNE L. WEBB and NANCY

CHARLENE WEBB, husband and

wife; R. NEIL WELLS; JAMES L.

WETZEL; HARMON WILEY and

ANNA LEE WILEY, husband

and wife; and JOHN D.

WILHOIT, JR. and ROSE M.

WILHOIT, husband and wife;

JAMES WORLEY and CHERYL

WORLEY, husband and wife;

individually, and as

representatives of a class

consisting of all persons and

NN Ft a St et SP eat al heal Sa Seat Saal a Nace ale Sani Salah “ag Seah Sill Self seca ing ll daaae aay tail ei) aaa sega

{

App. 58

entities located upstream of

Pensacola Dam who have been

injured by floods caused or

increased by the Dam since

September, 1992,

Plaintiffs,

GRAND RIVER DAM

AUTHORITY,

Defendant.

me me ee ee eee ee ee”

NOTICE OF REMOVAL

Your Petitioner, Grand River Dam Authority,

(GRDA), states that it is entitled to have said suit

removed from the District Court of Ottawa County, State

of Oklahoma, into the District Court of the United States

for the Northern District of Oklahoma and respectfully

show as follows:

1. This action is a suit of a civil nature at law of

which the District Court of the United States has original

jurisdiction and has been brought and is now pending in

the District Court of Ottawa County, State of Oklahoma.

2. This Petition for removal is filed within thirty

(30) days after service of the Amended Complaint upon

said Defendant.

3. Plaintiffs contend that this Defendant has caused

their property to be flooded, and that the impoundment

of flood waters on Plaintiffs’ property has so substan-

tially interfered with the Plaintiffs’ use and enjoyment of

their property as to constitute a taking thereof. Plaintiffs

App. 59

seek to be reimbursed for damages resulting from the

flooding of their property. Plaintiffs have also claimed the

flooding “has damaged such property for public use,”

and GRDA should be strictly liable for their damages,

and have included claims for trespass, nuisance, and

injunction. Plaintiffs further seek to be certified as a class.

4. Petitioner asserts that release of flood waters was

done only upon orders from an officer of the United

States (the Secretary of the Army) acting under color of

his office and therefore Defendant performs the same as

an agent of and acting under such officer of the United

States. Other acts of GRDA complained of by Plaintiffs

were done by GRDA in compliance with its License

granted by the Federal Energy Regulatory Commission

(“FERC”) to operate and maintain the 86.9 megawatt

Pensacola Project. Thus, GRDA performs the same as a

person or agent of and acting under color of authority of

such regulatory commission of the United States, as well

as under such officer of the United States.

5. The Pensacola Dam and Reservoir was autho-

rized under the Flood Control Act of 1941. Public Laws

77-228. See also Exhibit “A”. Section 7 of the Flood Con-

trol Act of 1944! directs the Secretary of the Army to

1 33 U.S.C. § 709

Regulations for use of storage waters; application to Tennessee

Valley Authority

On and after December 22, 1944, it shall be the duty of

the Secretary of the Army to prescribe regulations for

the use of storage allocated for flood control or

navigation at all reservoirs constructed wholly or in

part with Federal funds provided on the basis of such

_—

App. 60

prescribe regulations for the use of storage allocated for

flood control or navigation at all reservoirs constructed

wholly or in part with federal funds. Pursuant to GRDA’s

operating license,? it is required to operate the reservoir

surface at certain levels. In 1992, GRDA and the Army

Corps of Engineers, (“Corps”), acting on behalf of the

Secretary of the Army, signed a “letter of understanding”

and “water control agreement,” which specify their

respective responsibilities regarding operation of the Pen-

sacola Reservoir for Flood Control. Those agreements are

attached hereto as Exhibits “B” and “C”. Under these

agreements*, the Corps, acting on behalf of the Secretary

purposes, and the operation of any such project shall

be in accordance with such regulations: Provided,

That this section shall not apply to the Tennessee

Valley Authority, except that in case of danger from

floods on the Lower Ohio and Mississippi Rivers-the

Tennessee Valley Authority is directed to regulate the

release of water from the Tennessee River into the

Ohio River in accordance with such instructions as

may be issued by the Department of the Army.

2 GRDA was issued a new hydropower license from the

Federal Energy Regulatory Commission (“FERC”) on April 24,

1992. 59 FERC ¥ 62,073. In issuing the license, FERC approved a

reservoir management rule curve that provided for fluctuating

reservoir water levels throughout the year to achieve potential

improvements to fish and wildlife resources.

3 The Corps Pensacola Water Control Manual discusses the

objectives of the Pensacola Reservoir as follows:

7.01. ~General Objectives. The primary objectives of

Pensacola Reservoir are flood control and

hydroelectric power production. The flood control

operations of Pensacola Reservoir are directed by the

Secretary of the Army through the U.S. Army Corps

of Engineers, and operated by the Grand River Dam

App. 61

of the Army, controls water releases from the dam when

the storage allocation lies between elevation of 745 feet

and 755 feet, and controls all water releases from the

floodgates. The operation of the floodgates is always at

the direction and control of the Corps. The only water

ever released by GRDA from the conservation pool is for

the purpose of electrical generation. The Corps directs

GRDA in flood control aspects of the operation of the

project below elevations of 745 feet during rising pool

conditions and during flood recovery operations in the

Arkansas River Basin. Therefore, during periods of rising

pool conditions, flood recovery and when elevations are

greater than 745 feet, the Corps controls the release of

water from the dam. From the periods of June 3, 1992 to

September 18, 1992; November 11, 1992, through Septem-

ber 4, 1993; September 14, 1993 through October 22, 1993;

and November 15, 1993 through November 18, 1993, and

on the other dates complained of (April ii, 1994 and

April 29, 1994) the Corps controlled the operation of the

project. See, e.g., Exhibits “D” and “E”.

The Federal Energy Regulatory Commission order of

June 10, 1994, states:

any attributions to issues such as flooding or

backwater conditions within the flood pool can

Authority (G.R.D.A.). For flood control, the normal

procedure assumes operation of Pensacola, Markham

Ferry and Ft. Gibson reservoirs as a system of

reservoirs, utilizing similar percentages of the flood

control storage in each project. This system of

reservoirs is operated in conjunction with the

remaining reservoirs in the Arkansas River basin to

provide maximum benefits. . . .

ee i

App. 62

not be reached and are, in any event, under the

purview of the U.S: Army Corps of Engineers.

67 FERC { 62,239 at page 64,431, attached hereto as

Exhibit “A”. The FERC order also notes the license

requirements to meet certain target reservoir surface

levels. These target levels are between 741 feet and 745

feet.

6. Further authority for removal by this Defendant

may be found in Teague v. Grand River Dam Authority, 279

F.Supp. 703 (N.D. Okl. 1968), affirmed on appeal at 425

F.2d 130 (10th Cir. Okl. 1970).

7. Under these circumstances, Petitioner is entitled

to remove the case to Federal Court pursuant to 28 U.S.C.

§ 1442(a)(1).

8. Furthermore, this action arises under the United

States Constitution, since the Pensacola project is on navi-

gable waters, and is subject to control by the federal

government pursuant to the Commerce Clause, and pur-

suant to 33 U.S.C. § 709, thus, removal is proper under 28

U.S.C. § 1441.

9. Petitioner attaches hereto_a copy of the Petition

filed in the District Court of Ottawa County, State of

Oklahoma, being cause number CJ-94-444, styled Dalrym-

ple et al., v. Grand River Dam Authority, and a copy of the

summons, served upon the Defendant, as Exhibits “F”

and “G” which constitute all the pleadings and process

had upon the Defendant to date.

WHEREFORE, Petitioner prays this Court to remove

this cause from the District Court of Ottawa County, State

App. 63

of Oklahoma, into the District Court of the United States

for the Northern District of Oklahoma.

Respectfully submitted,

FELDMAN, HALL, FRANDEN,

WOODARD & FARRIS

By: /s/ Jody R. Nathan

TONY M. GRAHAM,

OBA #3524

JODY R. NATHAN,

OBA #11685

525 South Main, Suite 1400

Tulsa, Oklahoma 74103-4523

918-583-7129

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.