# Petition for Writ of Certiorari — Grand River Dam Authority v. Dalrymple > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1093%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 525 U.S. 1069 ## Text 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 i 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? il 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. iv 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 Vv 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. 17 25 29 37 41 . 43 45 47 vi 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 ix 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 3 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. ~e 4 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). ie vv 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 10 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. 11 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. 12 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. 14 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). 15 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 16 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)]. 17 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 © See also, Powers v. Southland Corp., 4 F.3d 223 (3d Cir. 1993) (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). 18 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 19 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). 20 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 21 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 ; ¥ 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, V. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1093%3A1. Public record. Not legal advice.