Otwell et al v. Alabama Power Company

Filing 125

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 05/09/2013. (MSN)

FILED
2013 May-09 PM 03:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
CHARLES R. OTWELL, SR.,
et al.,
Plaintiffs,
vs.
ALABAMA POWER COMPANY,
Defendant.

)
)
)
)
)
)
)
)
)
)

6:11-cv-2139-LSC

MEMORANDUM OF OPINION
I.

Introduction
Before this Court are cross motions for summary judgment: 1) Defendant

Alabama Power Company’s (“Alabama Power’s”) Motion for Summary Judgment
as to all of Plaintiffs’ claims, filed on December 12, 2012 (Doc. 81), and 2) Plaintiffs’
Motion for Partial Summary Judgment as to Count One of their Second Amended
Complaint (Action for Declaratory Judgment of Riparian Rights), filed on January 17,
2013. (Doc. 89.) The motions are fully briefed and are now ripe for decision. Upon full
consideration of the legal arguments and evidence presented, Alabama Power’s
Motion for Summary Judgment will be granted, and Plaintiffs’ Cross Motion for

Page 1 of 58

Partial Summary Judgment will be denied.1
II.

Background Facts2 and Procedural History
1.

Alabama Power’s Federal Licensing and Development of Smith Dam

Alabama Power is an electric public utility engaged in the manufacture, supply
and sale to the public of electricity in the State of Alabama, including electricity
produced by water at hydroelectric power dams. In 1956, Alabama Power filed an
application with the Federal Power Commission (“FPC”), the predecessor agency to
the Federal Energy Regulatory Commission (the “FERC”), for a license under the
Federal Power Act (“FPA”) for the Warrior River Project (“the Project”). The
Project includes the Lewis Smith development, located in north central Alabama in

1

Also before the Court are several evidentiary-related motions. Plaintiffs filed a motion to
strike Alabama Power’s statement of undisputed facts and certain affidavits used in support of its
motion for summary judgment (Doc. 98), to which Alabama Power has responded (Doc. 109).
Plaintiffs also filed a motion to strike the second affidavit of William Edge submitted in support of
Alabama Power’s brief in opposition to Plaintiffs’ cross motion for summary judgment (Doc. 118),
to which Alabama Power has responded (Doc. 120). Within said response, Alabama Power included
a motion for leave to file a corrected third affidavit of William Edge. (Id.) Plaintiffs have replied in
support of the motion to strike and have responded to the motion to file the corrected affidavit. (Doc.
123.) Each of these motions will be addressed by the Court herein.
2

The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed
to be undisputed, their respective responses to those submissions, and the Court’s own examination
of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the
nonmoving party on each motion. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220,
1224 (11th Cir. 2002). These are the “facts” for summary judgment purposes only. They may not
be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th
Cir. 1994).
Page 2 of 58

the headwaters of the Black Warrior River on the Sipsey Fork in Cullman, Walker, and
Winston counties. The Lewis Smith development consists of a 300-foot-high, earth
and rock fill dam (“Smith Dam”); a 35-mile-long, 21,200 acre reservoir impounded
by construction of the dam (“Smith Lake”), and a hydroelectric power house. The
FPC issued a fifty-year license to Alabama Power for the Project effective September
1, 1957 (the “1957 License”). The license required the Project to be operated for flood
control and hydroelectric power generation. Specifically, Smith Dam was to provide
hydroelectric power storage between elevations of 488 to 510 feet above mean sea
level (“msl”), flood control storage between elevations of 510 and 522 msl, and flood
control surcharge between elevations of 522 and 540 msl. The 1957 License provided
for flood control operations in accordance with certain specified conditions to be
implemented by a Reservoir Regulation Manual (“the Manual”) to be prepared by the
U.S. Army Corps of Engineers (the “Corps”). In issuing the 1957 License, the FPC
found the Project “desirable and justified in the public interest” and stated:
The project is best adapted to a comprehensive plan for improving and
developing the Sipsey Fork of the Black Warrior River and the Black
Warrior River for the use and benefit of interstate or foreign commerce,
for the improvement and utilization of water-power development, and
for other beneficial public uses, including recreational purposes.
(Doc. 83-1, ¶ 10.)

Page 3 of 58

2.

Alabama Power’s Acquisition of the Project Property

Pursuant to the 1957 License, Alabama Power was obligated to acquire the
project lands required for the dam site and reservoir, the dam, power houses, and
related equipment, and “all riparian or other rights, the use or possession of which is
necessary or appropriate in the maintenance and operation of the project.” (Doc. 83-1,
at 194-98.) Upon purchase of the dam site, Alabama Power was authorized by
Alabama law “[t]o acquire by condemnation the lands and rights necessary for the
construction and operation of the dam and works connected therewith or useful
thereto, either up or downstream therefrom” and “all lands, waters, interests, rights,
or easements in lands or waters likely to be flooded or damaged by impounding or
diverting the water of any watercourse in this state . . . .” (Doc. 83-4, at 3-4, ¶¶ 3-5.)
Pursuant to this authority, Alabama Power either by negotiated purchase or
condemnation acquired the property necessary to own and operate the Project, which
was the property of the former owners in and to the portion of the real property lying
below elevation 510 msl and by easement the right to inundate from time to time lands
lying between 510 and 522 msl.
Plaintiffs Charles and Judy Otwell (“the Otwells”) own a subdivision lot on
Smith Lake in Walker County, Alabama, which they purchased in 1986. The Otwells’

Page 4 of 58

lot is part of a parcel of land that Alabama Power obtained from John E. Gaddy and his
wife by purchase in 1958. The Gaddy deed to Alabama Power provides that the land
between elevations of 510 and 522 msl is encumbered by an easement, and the land
below the elevation of 510 is owned in fee by Alabama Power.3
Plaintiff David Billings owns a lot on Smith lake described as 0.34 acres in
Cullman County, Alabama. Billings’ lot was part of a parcel of land that Alabama
Power obtained from E.C. Harris and his wife by purchase in 1958. The Harris deed
to Alabama Power also provides that the land between elevations of 510 and 522 msl
is encumbered by an easement, and the land below the elevation of 510 is owned in fee
by Alabama Power.4
The conveyances executed by the predecessors in title to the Otwells’ and
Billings’ properties also included an exculpatory covenant for future operation of
Smith Dam for the manufacture of electricity. (Doc. 83-4, ¶¶ 11, 13.)
Plaintiff KHFW, LLC is a real estate development company owned by Jared

3

The original property that contained the Otwells’ lot was not adjacent to the Sipsey Fork
of the Black Warrior River. However, a portion of a tributary of the Sipsey Fork, known as Battle
Branch, was located on that property below elevation 510 msl. Alabama Power purchased the portion
of Battle Branch located on that property.
4

The original property that included Billings’ lot was not adjacent to the Sipsey Fork of the
Warrior River. However, a portion of a tributary of the Sipsey Fork, known as Ryan Creek, was
located on that property below elevation 510 msl. Alabama Power purchased the portion of Ryan
Creek located on that property.
Page 5 of 58

Key, a former plaintiff in this case, and others. In 2006, KHFW, LLC acquired
property on Smith Lake consisting of approximately 22.17 acres in Winston County,
Alabama. The property now owned by KHFW, LLC was part of a much larger parcel
which Alabama Power obtained by condemnation from the Grief Brothers Cooperage
Corporation, consisting of 203 acres.5 Alabama Power’s condemnation proceedings
for this parcel provided that the land was being acquired in order to operate a dam for
the manufacture of electricity, that the land between elevations 510 and 522 msl would
be encumbered by an easement, and the land below elevation 510 would be owned in
fee by Alabama Power. The final condemnation order entered on September 6, 1958,
granted to Alabama Power “the right to take, use and hold the lands and waters . . .
for the purpose of covering with water, and flooding . . . in connection with the
construction and operation of Lewis M. Smith Dam for the manufacture, supply and
sale to the public of electric power . . . .” (Doc. 83-4, ¶ 15.)
3.

The Corps Reservoir Regulation Manual and Operations

Filling of Smith Lake commenced in 1960, minimum power pool elevations
were reached in 1961, and commercial operation of Smith Dam began in September
5

As with the other parcels, that parcel was not adjacent to the Sipsey Fork of the Warrior
River. However, a portion of Farley Branch was located on the property below elevation 510 msl.
Farley Branch was an intermittent stream, which was a tributary to Brushy Creek, which is a
tributary to the Sipsey Fork. Alabama Power purchased the portion of Farley Branch located on this
property.
Page 6 of 58

1961. As specified in the 1957 License, the Corps developed, in cooperation with
Alabama Power, a Manual which describes, among other things, Alabama Power’s
normal operation of Smith Lake and the procedure Alabama Power must use to
operate the lake in a flood event. The Manual generally describes the Project as “a
storage project constructed for the purpose of providing reservoir capacity for the
generation of hydro-electric power and for flood control. It will normally be operated
as a peaking plant to help meet load demands on the Alabama Power Company’s
system in the State of Alabama.” (Doc. 83-1, ¶ 13.)6
The Manual also contains a guide curve or chart for power operation,
illustrating the projected elevation of Smith Lake during normal operations by day of
the year. The guide curve describes the probable range of drawdown of the lake waters
as a band between elevations 488 and 496 msl from December to January, rising to
between 506 and 510 msl by April and continuing in May, then gradually falling
beginning in June until the reservoir reaches the 488 to 496 msl level by December 1.
The “principle objective” in the development of these guide curves by Alabama
Power and the Corps was to fill the reservoir during the early spring months to

6

At a peaking plant, the hydroelectric dam is run only during the hours of highest energy
demand and is used to offset the cost of providing energy from other, more expensive, sources.
Hydroelectric plants are ideally suited to meet peak demands because they require very little startup
and shutdown time and can be turned on and off to follow the demand for energy.
Page 7 of 58

provide maximum hydroelectric energy during the peak season months ( June through
September), during which time the reservoir was drawn down to achieve minimum
winter pool elevations by December 1.
Plaintiffs contend that the evidence submitted by Alabama Power shows that
it has not always operated Smith Dam in accordance with the Corps’ Manual’s guide
curves. Alabama Power submitted charts showing the elevation of Smith Lake for each
year from 1961 to 2012. These charts show that the high and low elevations vary
greatly from year to year based on precipitation, inflow and other factors, but that
generally the reservoir level was maintained within the guide curves. In any event, the
FERC has recognized that Alabama Power had discretion under the 1957 License to
operate the Project “to best suit the system requirements” between the minimum
power pool elevations of the lower guide curve and the top of the power pool at
elevation 510 msl, as follows:
The chart referred to in the above-quoted text (Chart 8: Guide Curves
and Rules of Project Operation) “shows guide curves for power
operation which indicate the probable range of drawdown.” Unlike many
cases involving guide curves, where the licensee would be required to
operate within the band established by the curves, there was no
requirement in the [1957 License] to operate within the guide curves.
The only operating requirements were for flood control and navigation.
. . . So long as Alabama Power met those two sets of requirements [flood
control and navigation], it could operate the Smith development to best
suit system requirements to obtain maximum energy generation from
Page 8 of 58

water available and did not have to maintain specified lake elevations.
(Doc. 83-1, ¶ 32.) (emphasis added).
Concerning recreation, the Manual states: “Development for purely
recreational purposes is not included among the project features. However, many
recreational advantages are inherent in an impoundment of this nature, and special
attention has been given to the encouragement of recreational aspects where they do
not conflict with major project purposes.” (Doc. 83-1, ¶ 14.)
4.

Smith-Gorgas Coordination

The William Crawford Gorgas Electric Generating Plant (“Plant Gorgas”) is
located on the Mulberry Fork of the Black Warrior River downstream of Smith Dam
and has been in operation since 1917.7 Plant Gorgas produces electricity by burning
coal in a boiler to turn water into steam. Under high pressure, the steam turns the
blades of a turbine that spins a generator, producing electricity. The plant withdraws
cooling water to condense the steam that exits the turbine generators. As a general
matter, as the temperature of the cooling water decreases, the efficiency of the turbine
operation increases. Plant Gorgas has always withdrawn cooling water from the Black
Warrior River to condense the steam that exits the turbine generators, and the current

7

The Sipsey Fork, on which Smith Lake is located, flows into the Mulberry Fork upstream
of Plant Gorgas.
Page 9 of 58

cooling water intake structure has been in place since the late 1950s.
In conjunction with Alabama Power obtaining its FPC License for the Project,
the Alabama Public Service Commission (“APSC”) issued Alabama Power a
Certificate of Convenience and Necessity for the construction of the Project which
specifically found that “[t]he construction of the proposed dam on the Sipsey Fork
upstream from Gorgas will have the effect of making available great quantities of
cooling water for use at Gorgas, both in the Company’s present generating plants
there and in other generating units which may be added in the future at the Gorgas
location.” (Doc. 83-1, ¶ 8.)
Since 1974, in a process now known as “Smith-Gorgas Coordination,” releases
from Smith Dam supply cold water from Smith Lake to downstream Plant Gorgas for
use in once-through cooling during the months of May through October. In a plant
with once-through cooling, like Plant Gorgas, the cooling water is withdrawn from the
source, passes through the condenser and returns immediately back to the source at
a higher temperature. In contrast, in closed-cycle cooling systems, cooling water
re-circulates continuously between the condenser and a cooling tower.8 Though water

8

Cooling towers are heat removal devices used to transfer process waste heat to the
atmosphere, often installed at power plants to remove the heat absorbed in the circulating water
systems used in such plants.
Page 10 of 58

is re-circulated and reused in these systems, additional water is regularly withdrawn
from the river or other source to make up for evaporative and other losses inherent in
a closed-cycle system. Smith-Gorgas coordination typically requires releases from
Smith Dam five days per week for five or six hours per day.
There are state and federal thermal limits on discharges from power plants such
as Plant Gorgas, including National Pollutant Discharge Elimination System
(“NPDES”) thermal permit limits. Alabama Power’s studies in the early 1970s of
Smith Lake concluded that the coordination of cold water releases from hydro
generation at Smith Dam with cooling water needs at Plant Gorgas—Smith-Gorgas
Coordination—offered a good means to ensure thermal permit limit compliance and
plant operating efficiencies, while meeting other downstream interests including
recreation, municipal and industrial water supply, navigation, and downstream water
quality. Operating experience has shown that normal peaking power generation at
Smith Dam during the June through September period provides sufficient cooling
water to ensure both efficient operation of Plant Gorgas and compliance with the
NPDES thermal permit limits.
Alabama Power states that for more than 30 years, the ability to coordinate
Smith Dam’s power generation releases with Plant Gorgas’s once-through cooling

Page 11 of 58

needs has saved the cost of constructing and operating an alternative cooling system
at Plant Gorgas, such as cooling towers. Plaintiffs, on the other hand, dispute that
Alabama Power operates Smith Dam as a peaking facility, and instead contend that the
amount of water released from Smith Lake is determined primarily by the need for
cooling water at Plant Gorgas.
5.

Alabama Power’s Federal Relicensing of Smith Dam

In 2000, in anticipation of the expiration of the 1957 License, Alabama Power
began the public process of relicensing the Project, including Smith Dam. To issue a
license, the FPA requires that the FERC balance numerous, sometimes competing,
interests and benefits. See 16 U.S.C. §§ 797(e), 803(a)(1). Accordingly, the relicensing
process involved numerous stakeholders, including federal and state agencies, and
various individuals and groups representing interests both above and below Smith
Dam.
On July 28, 2005, Alabama Power submitted an application to the FERC for a
new license for the Project based on a consensus proposal. The application sought
continued operation of the Project as a “multi-purpose storage reservoir” providing
the benefits of “hydroelectric generation, flood control, navigation flow augmentation,
maintenance of downstream water quality, municipal and industrial water supply,

Page 12 of 58

recreational opportunities, and serves as habitat for fish and wildlife.” (Doc. 83-1, ¶
22.) The application also provided that the Project “will continue to normally operate
to produce peaking power” and that “no change in the Rule Curve . . . is needed.”
(Id.) Smith-Gorgas Coordination was also described in the FERC application. (Id.)
After Alabama Power’s application was filed with the FERC, the Smith Lake
Improvement & Stakeholders Association (“SLISA”), a group self-described as “a
non-profit organization representing more than 3,000 property owners and other
interested parties in and around Smith Lake,” submitted information during the
FERC’s consideration of the license application and requested that the FERC change
the manner in which Alabama Power operates Smith Dam by requiring limited
fluctuations of the water level at Smith Lake and by requiring the construction of
cooling towers at Plant Gorgas. Former plaintiff Jared Key, the organizer of SLISA,
and Plaintiff Billings attended SLISA meetings. Billings also participated in the FERC
relicensing proceeding by submitting an affidavit and calling the FERC more than a
dozen times.9
SLISA’s proposal was strongly opposed by a number of entities with

9

Key was SLISA’s corporate representative during the SLISA deposition in this case. As he
explained in his deposition, “[i]t’s a fine line here between me, SLISA, the Plaintiff and the
organization.” (Doc. 83-9, at 124.) According to Billings, the issues he is pursuing in this case are
the same issues he presented to the FERC during the relicensing proceeding. (Doc. 83-8, at 226-27.)
Page 13 of 58

downstream interests. For example, the Corps supported Alabama Power’s
relicensing application and was concerned that SLISA’s proposal would negatively
impact navigation. The Corps submitted comments to the FERC on April 8, 2008,
concerning the importance of releases from Smith Dam to downstream commercial
navigation:
The BWT [Black Warrior and Tombigbee Waterway] is one of the
busiest commercial waterways in the nation with over 21 million tons of
commodities shipped annually, including products for export through
the Port of Mobile, providing vital support to the nation’s balance of
trade. . . . No change in current operating practices or establishment of
minimum surface elevations at Smith Lake should be considered without
first fully considering the potential physical and economic impacts to
commercial navigation on the BWT. . . . However, it should be noted
that such impacts are not limited to navigation; limited flows due to
management of Smith Lake also have the potential to impact
downstream municipal and industrial water supply, recreation, and water
quality.
(Doc. 83-1, ¶ 25.) Other commenters before the FERC that were critical of SLISA’s
proposal included the Warrior-Tombigbee Waterway Association,10 Alabama State
Port Authority, Tuscaloosa County Commission, Birmingham City Council,

10

The Warrior Tombigbee Waterway Association (“WTWA”) is an organization that
fosters economic growth on the waterway. Its members include municipalities, economic
development organizations and other operators who view the waterway as vital to their business,
such as Parker Towing, Hunt Refinery, and Nucor Steel. WTWA was active in the FERC relicensing
proceeding because its members wanted to ensure that a stable channel depth is maintained, and
thus, WTWA objected to SLISA’s position and advocated that Alabama Power continue to operate
Smith Dam as it had prior to filing the relicensing application.
Page 14 of 58

Tuscaloosa City Council, Birmingham Water Works Board, United Mine Workers of
America, Alabama Coal Association, Birmingham Regional Chamber of Commerce,
West Alabama Chamber of Commerce, Tuscaloosa County Industrial Development
Authority, and PowerSouth Energy Cooperative.
On June 2, 2008, the FERC asked Alabama Power to provide information
concerning the impact that implementation of SLISA’s proposals would have on
various resources. Alabama Power’s response included a screening level estimate for
converting Plant Gorgas from once-through cooling to closed-cycle cooling. Based on
the estimate, Alabama Power advised the FERC, among other things, that the cost of
building cooling towers would exceed $300 million.
On March 2, 2009, the FERC issued its Final Environmental Assessment (the
“EA”) for the Project. In the EA, FERC staff discussed at length and rejected
SLISA’s contentions. (See Doc. 83-1, ¶ 28, Exhibit V.) The EA specifically found that
Smith-Gorgas Coordination “has helped [Alabama Power] meet NPDES permit
requirements and saved the cost of construction and operation of an alternative
cooling system at Plant Gorgas,” and that “the lake level is influenced by a
combination of factors that include the generation requirements at the Smith
development, coordinating operation with the Corps for purposes of navigation,

Page 15 of 58

municipal water withdrawals, enhancement of fish spawning habitat in the lake,
recreation, and natural variation in precipitation.” (Id.) In the same document, the
FERC expressly found that SLISA’s recommendations, including cooling towers at
Plant Gorgas “would not contribute to the best comprehensive use of the Black
Warrior River water resources,” that the alleged “benefits, (such as increased
recreation, revenues from recreation, property values, and tax base) are speculative,”
and that “the costs of [SLISA’s] alternative outweigh the benefits, and it is not in the
overall public interest to adopt this measure.” (Id.)
On March 31, 2010, the FERC issued an order granting Alabama Power’s
request to continue the Project for an additional thirty years (the “2010 License”).
(See Doc. 83-2, Exhibit W.) In issuing the 2010 License, the FERC approved the
findings made in the EA and expressly rejected SLISA’s requests for a different lake
water level guide curve and for cooling towers at Plant Gorgas. After reviewing the
record, the FERC found that “the operation recommended by [SLISA] would be
excessively costly and provide speculative benefits which may never be realized.” The
FERC approved Alabama Power’s proposed operation of the Project “because it
provides for the comprehensive use of multiple competing resources within the
Warrior River and downstream river basins.” As required by the FPA, the FERC

Page 16 of 58

found that Alabama Power’s proposed Project operations were:
best adapted to a comprehensive plan for improving or developing a
waterway or waterways for the use or benefit of interstate or foreign
commerce; for the improvement and utilization of waterpower
development; for the adequate protection, mitigation, and enhancement
of fish and wildlife; and for other beneficial public uses, including
irrigation, flood control, water supply, recreation, and other purposes.
(Id.)
On April 30, 2010, SLISA requested rehearing to challenge the 2010 License.
SLISA asked the FERC to reconsider its decision rejecting SLISA’s request that the
FERC set a different Smith Lake water level guide curve, and once again requested the
FERC to require the construction of cooling towers for Plant Gorgas. (See Doc. 83-2,
Exhibit Y.)
The FERC denied SLISA’s rehearing petition by order issued November 15,
2012 (“Rehearing Order”). The Rehearing Order, in again rejecting SLISA’s request
for minimal fluctuation of Smith Lake, described and approved Alabama Power’s
discretion to operate the Project within the 488 to 510 msl power pool specified by the
FERC License and the Manual, so long as Alabama Power met flood control and
navigation flow requirements. (Doc. 83-2, Exhibit Z.) Additionally, in the Rehearing
Order, the FERC again specifically found that SLISA’s proposed rule curve and plan
for more stable water levels was not in the public interest, writing that
Page 17 of 58

“[i]mplementing the operation recommended by the Lake Association could increase
private and commercial development around the lake and lengthen the recreation
boating season, but this would be costly in terms of lost peak generation.” (Id.) The
Rehearing Order specifically found “that [SLISA’s] interests have not been infringed
upon or harmed.” (Id.)
6.

The Present Lawsuit

On May 11, 2011, while SLISA was awaiting rehearing on its challenge to the
2010 FERC License, Plaintiffs filed this action, on behalf of a purported class generally
described as “owners, lessees, and licensees” of properties on Smith Lake, against
Alabama Power in the Circuit Court of Walker County, Alabama. Thereafter,
Alabama Power timely removed the action to this Court. Plaintiffs’ second amended
complaint seeks declaratory and injunctive relief, as well as money damages, due to
Alabama Power’s alleged misuse of waters and property surrounding the Lewis Smith
development at Smith Lake.11 Plaintiffs allege generally that they have riparian rights
in the waters of Smith Lake and that these rights are violated, and other torts result,
when Alabama Power “unreasonably releases large flows of water from Smith Lake
11

Plaintiffs twice amended their complaint, first to dismiss Plaintiff Jared Key and later to
dismiss their claims for violation and misuse of easements, trespass, and action to reform
conveyance. These three claims were related to Plaintiffs’ original allegations that Alabama Power
was misusing flood easements to Plaintiffs’ properties lying between 510 and 522 datum planes by
allowing water levels to be too high at certain times.
Page 18 of 58

to cool the Gorgas discharge,” resulting in a water level too far below the 510 msl
shoreline contour. (Doc. 96-1, ¶ 24.) Plaintiffs also allege that Alabama Power is
unreasonably lowering lake levels in order to avoid building cooling towers at Plant
Gorgas (Id.) Plaintiffs’ claims are as follows: I) Action for Declaratory Judgment of
Riparian Rights, II) Unlawful Taking and Violation of Riparian Rights, III) Private
Nuisance, IV) Unjust Enrichment, V) Action for Constructive Trust, VI) Action for
Injunctive Relief (to require Alabama Power to construct appropriate and effective
cooling towers at Plant Gorgas), and VII) Wantonness.
After an agreed-upon period of discovery, the now-pending summary judgment
motions were filed. The Court also granted Plaintiffs leave to file a motion for class
certification after the motions for summary judgment are ruled upon, should
Plaintiffs’ claims survive summary judgment.
III.

Analysis of Plaintiffs’ Motion to Strike12
12

The Court’s analysis in this section does not pertain to Plaintiffs’ motion to strike the
second affidavit of William Edge submitted in support of Alabama Power’s brief in opposition to
Plaintiffs’ cross motion for summary judgment, (Doc. 118), or Alabama Power’s response thereto,
in which it sought to file a corrected third affidavit of William Edge. (Doc. 120.) This is because the
issues inherent in that evidentiary dispute, the gist of which concerns whether the Sipsey Fork was
navigable at the point where Smith Dam was constructed in the late 1950s, are not relevant to the
Court’s disposition of the motions for summary judgment. The question of the navigability of the
Sipsey Fork goes to whether Plaintiffs possess riparian rights in Smith Lake under Alabama law, an
issue that the Court holds need not be decided in order to resolve the controversy between the
parties, see section IV.B, infra. As such, both Plaintiffs’ motion to strike William Edge’s second
affidavit (Doc. 118), and Alabama Power’s motion to submit a corrected third affidavit of William
Edge (Doc. 120) are due to be denied as moot without further discussion.
Page 19 of 58

Before addressing the cross motions for summary judgment, the Court will
discuss Plaintiffs’ motion to strike Alabama Power’s statement of facts and two
affidavits submitted in support of Alabama Power’s motion for summary judgment.
(Doc. 98.) Plaintiffs state that they could not effectively respond to Alabama Power’s
statement of facts because Alabama Power failed to provide a specific reference to the
portions of its evidentiary submission that supported certain factual contentions.
Plaintiffs refer to 23 paragraphs in Alabama Power’s statement of facts that are
allegedly deficient.
Alabama Power’s factual statement consists of 56 separately-numbered
paragraphs, and each paragraph contains a specific citation to the portion of Alabama
Power’s evidentiary submission supporting the factual statements in each paragraph.
Relying on the instructions set out in this Court’s Uniform Initial Order, Plaintiffs
apparently contend that Alabama Power should have provided a citation at the end of
each sentence in the separately-numbered paragraphs rather than at the end of each
paragraph. The Court need not decide whether Plaintiffs’ interpretation of the
Uniform Initial Order is correct because Alabama Power submitted a response to
Plaintiffs’ motion containing a chart of the 23 paragraphs identified by Plaintiffs as
deficient, along with revised citations in the form described in Plaintiffs’ motion. As

Page 20 of 58

such, Plaintiffs’ motion, insofar as it pertains to the argument that Alabama Power’s
statement of facts is deficient, is due to be denied as moot.
In the same motion, Plaintiffs move to strike certain affidavits used in support
of Alabama Power’s motion for summary judgment. The affidavits in question are
those of two of Alabama Power’s corporate representatives: James Crew, a Hydro
Services Manager for Alabama Power’s sister company Southern Company Services,
Inc., and William Edge, a Land Supervisor over Shoreline Operations for Alabama
Power’s Corporate Real Estate Department. According to Plaintiffs, each of these
individuals pled ignorance or deferred to other employees within the company when
asked certain questions during their depositions, but they each later “unequivocally
fill[ed] in the gaps and assert[ed] responses in their affidavits to previously
unanswered questions.” (Doc. 98 at 6.) Plaintiffs also argue generally that Alabama
Power did not produce Federal Rule of Civil Procedure 30(b)(6) witnesses who could
answer questions within the scope of their deposition notices.
The Eleventh Circuit bars “sham affidavits” as a means to support or overcome
a motion for summary judgment. Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736
F.2d 656, 657-58 (11th Cir. 1984). Sham affidavits “contradict[], without explanation,
previously given clear testimony” to “unambiguous questions.” Only an affidavit that

Page 21 of 58

is “inherently irreconcilable” with earlier testimony should be stricken. Tippens v.
Celotex Corp., 805 F.2d 949, 954 n.6 (11th Cir. 1986). If the affidavit merely
“supplements earlier testimony, presents a variation of testimony or represents
instances of failed memory,” it should be considered. Croom v. Balkwill, 672 F. Supp.
2d 1280, 1285 (M.D. Fla. 2009).
Plaintiffs’ argument with regard to James Crew’s affidavit is that he testified
that he did not have specific knowledge about how or why the Corps developed the
guide curve for Alabama Power’s operation of Smith Lake as it did, but in his affidavit,
Crew “relied heavily” on the guide curve, discussing the “principal objective” of the
guide curve and Alabama Power’s compliance with it. (Doc. 98, at 9.)
Crew testified as a Rule 30(b)(6) representative for three topics contained in
Plaintiffs’ Rule 30(b)(6) Notice and Amended Rule 30(b)(6) Notice. The first topic
was “[d]ocuments in the custody or control of Alabama Power relating or referring
to the Guide Curve or Rule Curve created, developed or established by Alabama
Power for Smith Lake.” Alabama Power objected to the overly broad nature of this
topic, but stated that it had “produced the 1957 License for the Warrior River Project
No. 2165; the application for the 1957 License; the 2010 License for the Warrior River
Project No. 2165; the 2005 application for the License; and the U.S. Army Corps of

Page 22 of 58

Engineers Reservoir Regulation Manual for the Lewis M. Smith Reservoir” and would
provide a representative with knowledge of those specific documents. (Doc. 109, at
8.)
During Crew’s deposition, Plaintiffs’ counsel asked several questions
concerning how the guide curve was created in the 1950s. Alabama Power argues that
these questions were beyond the scope of request for “documents . . . relating or
referring to the Guide Curve . . .” In any event, Crew testified that while he was not
present when the guide curve was developed in the 1950s, it was his understanding
that when guide curves are developed, an engineering analysis takes place which
includes many factors such as the drainage basin area, the topography of the area,
projected inflows, anticipated power needs, navigation requirements, and flood
control requirements. (Doc. 98-2, at 17.) Additionally, after Crew’s deposition,
Plaintiffs requested, and Alabama Power produced, any historic documents related to
the creation of the guide curve in the 1950s, and Exhibit M to Crew’s affidavit is one
of the documents that was produced. Plaintiffs never requested to redepose Crew or
any other Alabama Power representative about any of those documents.
Further, an examination of paragraphs 13 to 18 of Crew’s affidavit, the
paragraphs that Plaintiffs take issue with, reveals that Crew’s affidavit is simply

Page 23 of 58

quoting and summarizing specific parts of the Corps Manual and two other
documents that are attached as exhibits to the affidavit, including the historic
document produced to Plaintiffs after Crew’s deposition. As such, it cannot be said
that Crew’s affidavit is “inherently irreconcilable” with his earlier testimony, see
Tippens, 805 F.2d at 954 n.6, especially when he was merely quoting from documents
in Plaintiffs’ possession.
Plaintiffs also argue that during his deposition, Crew disavowed any information
relating to Alabama Power’s response to the FERC’s request for additional
information regarding the installation of a closed-cycle cooling system at Plant Gorgas,
instead deferring to another employee, David Maxwell (“Maxwell”). In his later
affidavit, Plaintiffs say that Crew specifically addressed the costs and consequences
associated with installing a closed-cycle cooling system.
The Rule 30(b)(6) topic for which Crew was designated on this issue was
“[a]ny studies or investigations done of building cooling towers for use at the Gorgas
Plant.” Alabama Power objected to the overly broad nature of this topic, but agreed
to provide an individual “with knowledge for the time period of May 11, 2005 to May
11, 2011 . . . .”
Contrary to Plaintiffs’ assertion, Crew, in his deposition, did not disavow

Page 24 of 58

having any knowledge about Alabama Power’s response to the FERC’s request for
additional information regarding the installation of a closed-cycle cooling system at
Plant Gorgas. Rather, he testified that he was the “point person” at Alabama Power
to respond to the FERC’s request for information, and that as a result of the request,
“[W]e specifically asked David [Maxwell] to prepare a conceptual cost estimate for
construction of the cooling towers at Gorgas.” (Doc. 98-2, at 39, 55.) He further
described portions of Maxwell’s report. (Id. at 39-40.) While it is clear that engineer
Maxwell performed the design calculations at Crew’s request, Crew, as the individual
in charge of providing the complete response to the FERC, was competent to provide
testimony about Alabama Power’s response. In any event, Plaintiffs’ counsel never
asked to depose Maxwell.
Later, in his affidavit, Crew merely recites that the FERC asked Alabama Power
to provide information concerning certain proposals made by SLISA, attaches a copy
of the FERC’s request, and quotes from the response, also attached. (Doc. 83-1, ¶ 27.)
The Court finds that there are no inherent inconsistencies between Crew’s affidavit
and his deposition testimony, but rather, that Crew’s affidavit merely supplements
earlier testimony. See Croom, 672 F. Supp. 2d at 1285. As such, Plaintiffs’ motion to

Page 25 of 58

strike, insofar as it pertains to James Crew’s affidavit, is due to be denied.13
IV.

Analysis of Cross Motions for Summary Judgment
A.

Standard of Review

Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of [the evidence] which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The movant can meet this burden by presenting evidence showing that there is no
genuine dispute of material fact, or by showing that the nonmoving party has failed to
present evidence in support of some element of its case on which it bears the ultimate
burden of proof. Id. at 322-23. In evaluating the arguments of the movant, the court
must view the evidence in the light most favorable to the nonmoving party. Mize v.

13

As noted, Plaintiffs also find fault with William Edge’s affidavit in this motion to strike,
arguing that he first testified that he did not know who owned the streambed lying underneath Smith
Lake, but that later, in his affidavit, he contends that Alabama Power, and not the State of Alabama,
owns the streambed. As will become evident herein, this evidence is not relevant to the Court’s
disposition of the cross motions for summary judgment. In other words, even if the Court were to
adopt Plaintiffs’ position on this issue—which is that the State of Alabama owns the streambed
underneath Smith Lake—summary judgment would still be due to be granted in favor of Alabama
Power for the reasons stated in section IV.C., infra. As such, Plaintiffs’ motion to strike, insofar as
it pertains to William Edge’s affidavit, is due to be denied as moot.
Page 26 of 58

Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
Once the moving party has met his burden, Rule 56 “requires the nonmoving
party to go beyond the pleadings and by [his] own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations
omitted); see also Fed. R. Civ. P. 56(c). “A factual dispute is genuine only if a
‘reasonable jury could return a verdict for the nonmoving party.’” Info. Sys. &
Networks Corp., 281 F.3d at 1224 (quoting United States v. Four Parcels of Real Property,
941 F.2d 1428, 1437 (11th Cir. 1991)).
B.

Plaintiffs’ Motion for Partial Summary Judgment

Plaintiffs seek summary judgment on the declaratory judgment count of their
complaint, requesting that the Court declare that they have riparian rights in Smith
Lake as a matter of law. For the reasons that follow, Plaintiffs’ motion for summary
judgment is due to be denied.
Alabama law has defined riparian rights as the rights enjoyed by owners of lands
abutting watercourses. Mobile Trans. Co. v. City of Mobile, 30 So. 645, 646 (Ala. 1900),
overruled on other grounds.14 The basic concept of a riparian right is the right of an

14

At common law, the term “riparian rights” referred to the rights of owners of land abutting
a stream, while the term “littoral rights” referred to the rights of owners of land abutting the surface
Page 27 of 58

owner of land abutting a waterbody to extract, use, and enjoy water from that
waterbody on the adjoining riparian land. See 1 Waters and Water Rights § 6.01(a)
(Amy L. Kelley, ed., 3d ed. LexisNexis/Matthew Bender 2011). Each abutting
landowner has an equal and correlative right to make reasonable use of the water. Id.
In other words, a riparian right is a right to use and enjoy the water, subject to the
rights of other riparian owners to do the same.
The parties have submitted hundreds of pages of briefing and evidence devoted
to whether Plaintiffs have riparian rights in Smith Lake. This is presumably because
Plaintiffs concede that if they do not have riparian rights, they have no claim for which
this Court could grant relief. (See Plaintiffs’ Reply Brief, Doc. 116, at 9.) However,
Plaintiffs’ request for a declaration is due to be denied because it will not resolve the
dispute that is directly before the Court on Alabama Power’s motion for summary
judgment and thus, any declaration made by this Court would be merely advisory.
A district court has broad discretion to decide whether to render a declaratory
judgment. See Wilton v. Seven Falls Co., 515 U.S. 277, 278 (1995) (“Since its inception,
the Declaratory Judgment Act has been understood to confer on federal courts unique

waters of a lake or the sea, but courts now commonly use the word “riparian” when describing water
rights in either context. Wehby v. Turpin, 710 So. 2d 1243, 1246 n.2 (Ala. 1998) (internal citation
omitted).
Page 28 of 58

and substantial discretion in deciding whether to declare the rights of litigants. On its
face, the statute provides that a court ‘may declare the rights and other legal relations
of any interested party seeking such declaration.’”). The Supreme Court further
stated:
Consistent with the nonobligatory nature of the remedy, a district court
is authorized, in the sound exercise of its discretion, to stay or to dismiss
an action seeking a declaratory judgment before trial or after all
arguments have drawn to a close. In the declaratory judgment context,
the normal principle that federal courts should adjudicate claims within
their jurisdiction yields to considerations of practicality and wise judicial
administration.
Id. at 288.
The two principal criteria guiding the policy in favor of rendering declaratory
judgments are 1) when the judgment will serve a useful purpose in clarifying and
settling the legal relations in issue; and 2) when it will terminate and afford relief from
the uncertainty, insecurity, and controversy giving rise to the proceeding. 10B Wright,
Miller & Kane, Federal Practice & Procedure: Civil 3d § 2759 (1998). For the reasons
that follow, the Court finds that neither of these criteria is met here.
The Court deems it unnecessary to issue an abstract ruling on whether Plaintiffs
have riparian rights in Smith Lake because such a ruling will not resolve the dispute
that is squarely before the Court on Alabama Power’s motion for summary judgment;

Page 29 of 58

i.e., whether Alabama Power’s operation of Smith Dam under its 1957 and 2010 FERC
Licenses and the Corps Manual is a reasonable use of its own riparian rights such that
Plaintiffs’ state-law tort causes of action cannot be maintained. See In re Orion Pictures
Corp., 4 F.3d 1095, 1100 (2nd Cir. 1993) (“Where a district court has before it a
declaratory judgment action and a direct action containing all of the issues in the
declaratory judgment action, and decides the common issues in the direct action, it
may exercise its discretion to dismiss the declaratory judgment complaint.”). As will
be discussed in section IV.C., infra, even if Plaintiffs do have riparian rights in Smith
Lake, Alabama Power has not violated any such rights, and thus all of Plaintiffs’
claims, which are all based upon an alleged violation of riparian rights, are due to be
dismissed. Thus, the Court, in its discretion, will deny Plaintiffs’ request for a
declaration that they possess riparian rights in the waters of Smith Lake because there
is no need for it. The dispositive issue for this Court is whether or not Plaintiffs’
riparian rights, assuming they possess them, are being unreasonably interfered with
by Alabama Power due to its operation of Smith Dam in accordance with its FERC
licenses, the issue to which the Court now turns.
C.

Alabama Power’s Motion for Summary Judgment

The primary argument advanced in Alabama Power’s motion for summary

Page 30 of 58

judgment is twofold: that all of Plaintiffs’ claims are due to be dismissed because 1)
even if Plaintiffs possess riparian rights in Smith Lake, Alabama Power has not
violated any such rights or committed any of the torts alleged because it has at all
relevant times operated Smith Dam in accordance with its 1957 and 2010 FERC
Licenses and the Corps Manual, and 2) the FERC has already rejected Plaintiffs’
arguments for more stable lake levels and Plaintiffs bring this lawsuit outside of the
FPA’s exclusive judicial review mechanism. Because the Court finds that these
arguments are sufficient to dispose of all of Plaintiffs’ claims, the Court’s analysis will
not go beyond these two interrelated arguments. The Court will address the
arguments in reverse order, because as Alabama Power’s second argument is
essentially that Plaintiffs brought their claims in an improper forum, the Court should
first determine if it has jurisdiction.
1.

Plaintiffs’ Claims Constitute an Impermissible Collateral Attack on
Operations the FERC has Sanctioned, after the FERC Considered and
Rejected the Same Arguments Plaintiffs Now Make to this Court
Outside of the Exclusive Judicial Review Mechanism Mandated by the
FPA

Alabama Power argues that all of Plaintiffs’ claims fail because this lawsuit is
an impermissible collateral attack on the FERC License, which was issued to Alabama
Power after the FERC considered and rejected the same substantive arguments

Page 31 of 58

Plaintiffs now make to this Court. Deciding whether this argument has merit requires
the Court to examine portions of the FPA, the statute that vests the FERC with the
authority to issue licenses and to impose conditions on licensees. See 16 U.S.C. §§
797(e), 803.
Congress’s power to control the navigable waters of the United States through
enactment of the FPA arises from the Commerce Clause, as “[w]ater power
development from dams in navigable streams is . . . a by-product of the general use of
the rivers for commerce.” United States v. Appalachian Elec. Power Co., 311 U.S. 377,
426 (1940), superseded by statute on other grounds. The U.S. Supreme Court has
recognized that in enacting the FPA under this authority, “Congress clearly intended
a broad federal role in the development and licensing of hydroelectric power.”
California v. F.E.R.C., 495 U.S. 490, 496 (1990). Indeed, the FPA authorizes the
FERC to issue licenses “for the purpose of constructing, operating, and maintaining
dams . . . reservoirs, power houses, . . . or other project works necessary or convenient
for the development and improvement of navigation and for the development,
transmission, and utilization of power across, along, from, or in any of the streams or
other bodies of water over which Congress has jurisdiction.” 16 U.S.C. § 797(e). The
FERC may do so subject to the conditions it deems best suited with respect to a

Page 32 of 58

number of sometimes competing interests and benefits, including “interstate or
foreign commerce, . . . water power development, . . . adequate protection, mitigation,
and enhancement of fish and wildlife . . . other beneficial public uses, including
irrigation, flood control, water supply, and recreational and other purposes . . .” Id.
at § 803(a).
Importantly, the FERC has exclusive jurisdiction over hydroelectric projects
it licenses. First Iowa Hydro-Elec. Co-op. v. Fed. Power Commission, 328 U.S. 152, 175-76
(1946). Additionally, the FPA provides that the exclusive mechanism for review of a
FERC decision is through the federal courts of appeals:
Any party to a proceeding under this chapter aggrieved by an order
issued by the Commission in such proceeding may obtain a review of
such in the United States Court of Appeals for any circuit wherein the
licensee or public utility to which the order relates is located.
16 U.S.C. § 825l(b).
In this case, no matter how their claims are characterized, it is clear that
Plaintiffs are seeking more stable water levels at Smith Lake and that they are asking
this Court to order Alabama Power to construct cooling towers at Plant Gorgas:
During certain months of the year, including but not limited to June
through December, Alabama Power unreasonably decreases lake levels
to such a degree that the Class members are unable to reasonably use or
enjoy their property or the waters of Smith Lake. Alabama Power is
unreasonably lowering lake levels in order to avoid building necessary
Page 33 of 58

cooling towers at [Plant Gorgas].
...
Alabama Power uses the waters of Smith lake in lieu of an appropriate
cooling system. At the time of large discharges from the Gorgas Plant,
Alabama Power unreasonably releases large flows of water from Smith
Lake to cool the Gorgas discharge. During such releases, the Class
members’ use of their riparian property and the waters of Smith Lake is
severely impaired.
...
[P]laintiffs request that this Court issue an injunction (a) requiring
Alabama Power to construct appropriate and effective cooling towers at
the Gorgas Plant and, in so doing, to undertake in good faith all steps and
procedures necessary to construct the cooling towers, including
obtaining the necessary permits and licenses and complying with all
necessary administrative, procedural, and legal requirements . . . .
(Second Amended Complaint, Doc. 96-1, at ¶¶ 19-20, 24, 51.)
There is also no question that these are the same requests for more stable water
levels and for cooling towers that their lakefront property owners’ association, SLISA,
sought during the dam relicensing proceeding before the FERC and the same relief
that SLISA sought on rehearing to the FERC.15 Like Plaintiffs here, SLISA sought to
elevate recreational use above all other interests. But Smith Lake was not designed
solely for recreational use, as the Corps Manual provides:
Primarily, it is a storage project constructed for the purpose of providing

15

As noted previously, former plaintiff Jared Key and Plaintiff Billings both conceded that
Plaintiffs are making substantively the same requests for more stable water levels and for cooling
towers that SLISA made before the FERC.
Page 34 of 58

reservoir capacity for the generation of hydro-electric power and for
flood control.
...
Development for purely recreational purposes is not included among the
project features. However, many recreational advantages are inherent in
an impoundment of this nature, and special attention has been given to
the encouragement of recreational aspects where they do not conflict
with major project purposes.
(Doc. 83-1, ¶¶ 13-14.)
The FERC rejected SLISA’s proposal in both proceedings, after balancing
recreational uses with many other interests:
[FERC] Staff balanced the need for power, flood control, navigation and
commerce, water quality, aquatic resources, and recreation. Staff
concluded that the project currently provides considerable benefits to
recreation around the lake, and these benefits would continue under the
staff-recommended project operation. Implementing the operation
recommended by the Lake Association [i.e., SLISA] would be excessively
costly and provide speculative benefits which may never be realized.
Finally, in the EA Staff concluded that the costs of the Lake Association
alternative outweighs the benefits, and is not in the overall public
interest.
(Doc. 83-1, ¶ 28, Exhibit V.)
Despite the FPA’s designated avenue for appealing a FERC decision only to the
federal courts of appeals, Plaintiffs filed this lawsuit in Alabama state court, alleging
state law tort claims, including violation of riparian rights, and seeking damages and
equitable relief. Plaintiffs assert that this was appropriate under the FPA, because the

Page 35 of 58

FPA also contains a savings clause that preserves the type of state-law riparian rights
they say they possess in Smith Lake and that they are exercising before this Court.
Section 27 of Part I of the FPA provides:
Nothing in this chapter shall be construed as affecting or intending to
affect or in any way to interfere with the laws of the respective States
relating to the control, appropriation, use, or distribution of water used
in irrigation or for municipal or other uses, or any vested right acquired
therein.
16 U.S.C. § 821.
In Georgia Power Company v. Baker, the Eleventh Circuit interpreted the savings
clause set forth above, explaining the “continued vitality of state laws” as follows:
“The Supreme Court [held] that as long as the federal government has not exercised
its power to abolish state law riparian rights, those rights survived the passage of the
Act, even if they are within the scope of the government’s dominant servitude.” 830
F.2d 163, 166 (11th Cir. 1987) (citing Federal Power Comm’n v. Niagra Mohawk Power
Corp., 347 U.S. 239, 252 (1954)). Again quoting the Supreme Court, the Eleventh
Circuit explained:
The references in the [FPA] to preexisting water rights carry a natural
implication that those rights are to survive, at least until taken over by
purchase or otherwise. Riparian water rights, like other real property
rights, are determined by state law. The Federal Water Power Act
merely imposes upon their owners the additional obligation of using
them in compliance with that Act.
Page 36 of 58

830 F.2d at 166 (quoting Niagra, 347 U.S. at 252). Thus, the Baker court held that
despite Georgia Power’s obligation to operate its power project on Lake Sinclair in
compliance with its FERC license, Georgia Power still had water surface rights under
state law which would allow it to regulate seaplane usage on the lake. Id.
Importantly, however, the Baker court held that Georgia Power’s state law
water surface rights must be exercised in conformity with its FERC license. Id. The
court thus went on to discuss whether Georgia Power’s prohibition of seaplane
operations on Lake Sinclair was consistent with the requirements of its FERC license
that it allow reasonable public access to the lake, reserving such “facilities” as
necessary for the protection of life, health, and property. Id. at 167 (although the
license required Georgia Power to “allow the public free access, to a reasonable
extent, to project waters,” it also allowed the licensee to “reserve from public access,
such portions of the project waters, adjacent lands, and project facilities as may be
necessary for the protection of life, health, and property”). Because the prohibition
on seaplanes due to their potential harm to the public was a reasonable limitation on
public access to the lake property, the ban was held to be a proper application of
Georgia Power’s state law rights exercised in conformity with its FERC license. Id. at 168.
Baker thus suggests that although the FPA provides a plan for comprehensive federal

Page 37 of 58

regulation of water resources, it does not entirely preempt state riparian rights laws,
conditioned on the requirement that these state law rights are used in conformity with
federal regulations.
However, Alabama Power argues that the Supreme Court has ruled in other
contexts that state tort claims are preempted where a federal agency has ruled on all
of the issues upon which the claims are based. See, e.g., Chicago & N.W. Transp. Co.
v. Kalo Brick & Tile Co., 450 U.S. 311, 325-326 (1981) (holding that the plaintiff’s
claims under Iowa law against the defendant railroad for abandonment of a rail line
were preempted by the Interstate Commerce Act, which authorized the
abandonment). And analogous to the situation here, Alabama Power points out that
several courts have held that a party cannot use state tort law to effect a change to a
FERC licensing proceeding. A Massachusetts court held that if a FERC license
expressly authorizes an action, a plaintiff “cannot use state tort law to prevent [the
licensee] from doing something that FERC has sanctioned.” Lowell v. Enel N. Am.,
Inc., 796 F. Supp. 2d 225, 231 (D. Mass. 2011). The court thus held that the plaintiffs’
claims of trespass, negligence, and intentional interference with advantageous business
relations asserted against the dam operator were preempted because they were based
on actions expressly authorized by the FERC, stating: “To effect changes to the

Page 38 of 58

FERC license, [the plaintiffs] must utilize the process established by the FPA [i.e.,
challenging the FERC license before the federal courts of appeals], not state tort law.”
Id. at 231-32.
Likewise, the Ninth Circuit has twice held that any collateral attacks on the
FERC’s licensing orders are still governed by the FPA’s exclusive judicial review
provision. In Skokomish Indian Tribe v. United States, 332 F.3d 551 (9th Cir. 2003), the
court held that § 825l(b) still controls even if a party’s claims are couched in a
damages action:
Here, the Tribe does not explicitly seek to modify, rescind, or set aside
FERC’s licensing order. Rather, the Tribe artfully pleads its claims based
on the Treaty, 42 U.S.C. § 1983, the Fifth and Fourteenth Amendments,
and federal common law as a basis for the district court’s jurisdiction.
However, the Tribe’s claims flow directly from FERC’s licensing order. The
FPA required FERC to make a specific finding that the Project “will not
interfere or be inconsistent with the purpose for which any reservation
affected thereby was created or acquired.” Moreover, the Tribe raised
its claims in context of the FERC relicensing proceeding and FERC
attached certain conditions to its license to mitigate any harm to the
Tribe. The Tribe is now asking us to find that Tacoma’s operation of the
Project pursuant to its federal license gives rise to a damages action, which in
turn requires us to conclude that FERC erred when it found that the license
would not interfere with the purpose for which the reservation was created. As
in Taxpayers of Tacoma, the Tribe’s claims were raised and addressed in
the FERC licensing proceeding, and any dispute over FERC’s decision
belongs first before FERC and then the circuit courts, not the district
courts. Thus, the Tribe’s claims are impermissible collateral attacks on
FERC’s licensing order.

Page 39 of 58

Skokomish, 332 F.3d at 560 (emphasis added).
City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958), the U.S. Supreme
Court case on which the Ninth Circuit relies in Skokomish, involved a FERC license
to the City of Tacoma to construct a power facility on the Cowlitz River, which the
FERC granted despite Washington State’s contention that the project could not be
built without its approval. Id. at 323-28. In a separate proceeding, the State appealed
the FERC’s licensing decision to the Ninth Circuit, which affirmed the FERC. Id. at
327-28. At the same time, the City of Tacoma filed a state court action seeking a
declaratory judgment that its issue of revenue bonds in connection with the building
of that project was valid. Id. at 329. The Washington Supreme Court held that the
FERC license could not give the City of Tacoma power to condemn state land
necessary for the project without specific state legislation. Id. On appeal before the
U.S. Supreme Court, the City of Tacoma argued that the question had been finally
determined by the Court of Appeals in affirming the FERC’s decision, and that the
State’s cross-complaints in the subsequent bond validation suit in the Washington
courts had been nothing more than impermissible collateral attacks upon the final
judgment of the Court of Appeals. Id. at 334. The Court interpreted § 825l(b) as
follows:

Page 40 of 58

This statute is written in simple words of plain meaning and leaves no
room to doubt the congressional purpose and intent. It can hardly be
doubted that Congress, acting within its constitutional powers, may
prescribe the procedures and conditions under which, and the courts in
which, judicial review of administrative orders may be had. . . . So acting,
Congress in [§ 825l(b)] prescribed the specific, complete and exclusive
mode for judicial review of the Commission’s orders. . . . It thereby
necessarily precluded de novo litigation between the parties of all issues
inhering in the controversy, and all other modes of judicial review. Hence,
upon judicial review of the Commission’s order, all objections to the
order, to the license it directs to be issued, and to the legal competence
of the licensee to execute its terms, must be made in the Court of
Appeals or not at all. . . . [E]ven if it might be thought that this issue was
not raised in the Court of Appeals, it cannot be doubted that it could and
should have been, for that was the court to which Congress had given
“exclusive jurisdiction to affirm, modify, or set aside” the [FERC]
Commission’s order. And the State may not reserve the point, for another
round of piecemeal litigation . . . .
357 U.S. at 335-37, 339 (internal citations omitted) (emphasis added). Thus, the
State’s contentions were impermissible collateral attacks on the FERC’s licensing
decision. Id. at 341.
Also in California Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908 (9th
Cir. 1989), the FERC issued a license to construct and operate a hydroelectric power
facility in the Sierra National Forest. After failing to get relief from an administrative
review of the FERC’s decision, the plaintiffs filed a complaint in district court against
the United States Forest Service under the National Environmental Policy Act and
the American Indian Religious Freedom Act. Id. at 910. The plaintiffs argued that
Page 41 of 58

§825l(b) was inapplicable because they were not attacking the licensing decision made
by the FERC, but were alleging the failure of the Forest Service to follow necessary
procedural steps in statutes outside the purview of the FPA. Id. at 911. The court
rejected the plaintiffs’ argument, holding that the FPA governs review of all disputes
concerning the licensing of hydroelectric projects, and that the plaintiffs’ action was
at its core an attempt to restrain the licensing procedures authorized by the FERC. Id.
at 912. The court also noted that the plaintiffs’ approach would disturb the
statutorily-mandated licensing procedure, stating, “The point of creating a special
review procedure in the first place is to avoid duplication and inconsistency. It
provides a single and expeditious procedure for resolving licensing disputes.” Id.
In this Court’s view, the Eleventh Circuit’s holding in Baker is not at odds with
the results reached in the other aforementioned cases. As noted previously, Baker
indicates that there is an interplay between federal regulation of hydroelectric projects
and state law property rights. For example, Alabama Power’s 1957 FERC License
obligated it to acquire “all riparian or other rights, the use or possession of which is
necessary or appropriate in the maintenance and operation of the project.” (Doc. 83-1,
at 194-98.) But once an activity is exclusively regulated and sanctioned by a FERC
license, an aggrieved party may not use state law tort as a vehicle to interfere with that

Page 42 of 58

sanctioned activity. See California v. F.E.R.C., 495 U.S. 490, 506 (1990) (holding that
the FPA preempts state laws where compliance with a state law or regulation would
frustrate compliance with the FPA or a FERC license, thus stating that a California
requirement for minimum flow was preempted because “FERC set the conditions of
the license, including the minimum stream flow, after considering which requirements
would best protect wildlife and ensure that the project would be economically feasible,
and thus further power development”).
In other words, pursuant to Baker, a plaintiff may still bring a violation of
riparian rights claim in certain situations. However, if such a claim essentially asks a
court to modify the terms of an existing FERC licensing order, the request must be
made in the federal courts of appeals or not at all. That is the case here: even though
Plaintiffs do not “explicitly seek to modify, rescind, or set aside FERC’s licensing
order” in this lawsuit, the suit is nonetheless a collateral attack on the FERC license
because it “artfully pleads” claims that “flow directly from FERC’s licensing order.”
Skokomish, 332 F.3d at 560. Indeed, Plaintiffs’ proposals for different operations that
would purportedly result in more stable water levels, in fact, have already been
presented to and rejected by the FERC. By requesting the same relief in this lawsuit,
Plaintiffs are essentially asking this Court to rule that the FERC license was granted

Page 43 of 58

unreasonably. Under these cases, it does not matter that Plaintiffs also seek monetary
damages from the alleged commission of torts in addition to an injunction and a court
order to construct cooling towers. In Skokomish, because the plaintiffs asked the court
“to find that [the defendant’s] operation of the Project pursuant to its federal license
gives rise to a damages action,” the court necessarily would be required “to conclude
that FERC erred when it found that the license would not interfere with the
[plaintiff’s interests].” Id. The same is true here.
In sum, Alabama Power’s motion for summary judgment is due to be granted
because Plaintiffs’ claims constitute an impermissible attack on a FERC licensing
decision and thus belong only in a federal court of appeals.
2.

In the Alternative, Alabama Power’s Operation in Compliance with
the FERC License is a “Reasonable Use” of its Own Riparian Rights
and not Violative of Any Riparian Rights Plaintiffs May Have

If the Court has misinterpreted the cases set forth above, and Plaintiffs may
pursue their state law claims based on alleged violations of riparian rights in this Court
despite the FPA’s provision requiring challenges to FERC licensing proceedings to
be brought only in the federal courts of appeals, all of Plaintiffs’ claims nonetheless fail
for an entirely independent reason. Alabama Power argues that Plaintiffs’ riparian
rights, assuming they have them, are subject to the right of reasonable use of the

Page 44 of 58

waters by other riparian owners, including Alabama Power, and the use of riparian
rights on a FERC-licensed project is considered “reasonable” as a matter of law when
the FERC licensee is acting in compliance with its FERC license. In support of this
contention, Alabama Power relies primarily on three cases in which it was sued by
downstream riparian owners alleging misuse of waters on hydroelectric projects:
Beaunit Corp. v. Alabama Power Co., 370 F. Supp. 1044 (N.D. Ala. 1973), Ellis v.
Alabama Power Co., 431 So. 2d 1242 (Ala. 1983), and Bryan v. Alabama Power Co., 20
So. 3d 108 (Ala. 2009).
In Beaunit, the plaintiff corporation owned a textile manufacturing plant several
miles downstream from Alabama Power’s Logan Martin Dam on the Coosa River. 370
F. Supp at 1045. The plaintiff claimed that Alabama Power’s operation of the dam as
a peaking power plant, including the raising and lowering of water, caused the flow of
the Coosa River past the plaintiff’s textile plant downstream to be intermittent,
causing damage to the plant. Id. at 1049.16 The court made several findings of fact in
the case, including that Alabama Power’s operation of Logan Martin Dam as a peaking

16

As part of its operations, the plaintiff’s plant continuously pumped waste into the Coosa
River, but it was doing so in conformity with the requirements set by the Alabama Water
Improvement Commission. After Alabama Power’s completion of the dam, the plaintiff was required
by the commission to alter its method of waste discharges into the river which involved the
construction of a large waste lagoon and appurtenant facilities. This resulted in expenditures by the
plaintiff of approximately $650,000.00, which it sought to recover from Alabama Power. Id.
Page 45 of 58

power plant in conformity with its FPC (which was the predecessor to the FERC)
license and with plans of operation approved by the Corps was “reasonable,” and
further, that Alabama Power’s “use of the Coosa River incident to its operation and
maintenance of Logan Martin Dam and its generating facilities is a reasonable use and
a reasonable exercise of its riparian rights.” Id. at 1047. This was because, as the court
found, Alabama Power’s operation in conformity with the FPC license and Corps’
requirements “permits efficient and economic hydroelectric power generation, and
also produces a balanced use of the river giving effect to flood control, navigation and
recreation, as well as power benefits” and was therefore reasonable. Id. at 1049. The
court applied Alabama’s “reasonable use” doctrine to the plaintiff corporation’s
nuisance claim, pursuant to which “any right of plaintiff to the flow of river past its
lands is subject to and qualified by the right of reasonable use of the rivers by other
riparian owners, including [Alabama Power].” Id. at 1051. Because the court found
that Alabama Power operated Logan Martin Dam reasonably, it held that Alabama
Power did not violate any rights of the downstream riparian owner, and thus the
downstream riparian owner could not recover a judgment against Alabama Power. Id.
Just as in Beaunit, the uncontroverted evidence in this case establishes that
Alabama Power has at all times operated Smith Dam in accordance with its FERC

Page 46 of 58

License and the Corps’ Manual. The Manual that the License requires Alabama
Power to follow provides that the area from 488 to 510 feet above msl is “available for
normal power operations.” Plaintiffs do not dispute this. See Plaintiffs’ Second
Amended Complaint, Doc. 96-1, at ¶ 18 (“Alabama Power has water power storage
rights below the 510-foot contour level of the Class members’ shoreline property.”).
The record also includes charts showing the elevation of Smith Lake for each year
from 1961 to 2012, which show that Alabama Power has generally operated the Smith
Dam project in accordance with the Manual’s guide curves from inception. Plaintiffs’
disagree, but in recently denying SLISA’s request for rehearing, the FERC reiterated
that under its license, Alabama Power has discretion in the way it operates Smith
Dam: “So long as Alabama Power met these two sets of requirements [flood control
and navigation releases], it could operate the Smith development to ‘best suit system
requirements to obtain maximum energy generation from water available’ and did not
have to maintain specified lake elevations.” (Doc. 83-1, ¶ 32.) It is thus undisputed
that Alabama Power has at all times17 complied with the FERC licenses’ provisions for
17

Plaintiffs do not dispute Alabama Power’s contention that the longest statute of limitations
for any of Plaintiffs’ claims is six years. See Beaunit, 370 F. Supp. at 1052 (recognizing that the
Supreme Court of Alabama has held the two year statute of limitations in Ala. Code § 6-2-38(l)
[formerly one year] to apply to actions brought for interference with riparian rights); Ala. Code §
6-5-127(a) (setting a one year statute of limitations for nuisance claims arising from the operation of
an “agricultural, manufacturing or other industrial plant or establishment”); Auburn Univ. v. Int’l
Bus. Mach., Corp., 716 F. Supp. 2d 1114, 1118 (M.D. Ala. 2010) (holding unjust enrichment based on
Page 47 of 58

use of waters at 510 feet msl and below, which is where Plaintiffs claim the water is too
low. The fact that water used to generate hydropower at Smith Dam is also used to
condense steam downstream at Plant Gorgas and to maintain downstream water
quality does not violate any provision of the License, and indeed, the fact that Plant
Gorgas would benefit from these operations was recognized from the outset. Further,
as the court found in Beaunit, the FERC, in issuing both the 1957 and 2010 License,
found that Alabama Power’s operation of Smith Dam “is best adapted to a
comprehensive plan for improving and developing the Sipsey Fork of the Black
Warrior River and the Black Warrior River for the use and benefit of interstate or
foreign commerce, for the improvement and utilization of water-power development,
and for other beneficial public uses, including recreational purposes.” (Doc. 83-1, at

tort and not contract was subject to two-year statute of limitations in Ala. Code § 6-2-38(l)); Ex parte
Capstone Bldg. Corp., 96 So. 3d 77, 91 (Ala. 2012) (“[L]itigants whose causes of action accrued on
or before June 3, 2011, the date of the original issuance by this Court of its opinion in this case, shall
have two years from that date to bring their action, unless and to the extent that the time for filing
their action under the six-year limitations period announced in McKenzie would expire sooner.”).
As discussed infra, Counts VII and IX of the complaint are remedies, not causes of action.
Therefore, they have no separate statutes of limitations. Rather, the statute of limitations for the
underlying cause of action applies. See Alabama v. United States Army Corp of Eng’rs, 424 F.3d 1117,
1127 (11th Cir. 2005) (quoting Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004));
see also Gulf States Steel, Inc. v. Lipton, 765 F. Supp. 696, 704 (N.D. Ala. 1990) (holding that a claim
for constructive trust was not a separate cause of action and that plaintiff’s request for constructive
trust was barred by the statute of limitations for the cause of action on which plaintiff’s request was
based). “[A]ny motion or suit for either a preliminary or permanent injunction must be based upon
a cause of action” and the relevant statute of limitations would be that which is applicable to the
underlying cause of action. United States Army Corp. of Eng’rs, 424 F.3d at 1127.
Page 48 of 58

¶ 10.)
In attempting to distinguish Beaunit, Plaintiffs point out that the court in that
case noted that the expert witness called by the plaintiff, and the expert witnesses
called by Alabama Power, “were not in conflict regarding the reasonableness and
necessity of the defendant’s mode of operation of Logan Martin Dam.” See Beaunit,
370 F. Supp. at 1049. Here, Plaintiffs say, there are questions of fact concerning
whether Alabama Power’s use of Smith Lake is reasonable. More specifically,
Plaintiffs say that questions of fact exist as to 1) whether cooling water provided by
Smith Lake to Plant Gorgas is incidental to Smith Dam’s operation as a peaking plant
or whether the need for cooling water at Plant Gorgas drives the operation of Smith
Lake during the summer months; 2) whether Alabama Power operates Smith Lake
differently than its other lakes by dropping the elevation of the lake much earlier in the
year, i.e., in June and July, due to the need for cooling water at Plant Gorgas; and 3)
whether Alabama Power altered its use of the waters at Smith Lake after the filing of
the present action, because the water level was generally higher during the summer
of 2012 than it had ever been.
However, the FERC, in connection with the relicensing of the Project,
considered and rejected SLISA’s arguments that the Smith-Gorgas Coordination

Page 49 of 58

procedure implemented by Alabama Power at Smith Lake was unreasonable, which
resolved the first two “fact issues” alleged by Plaintiffs.18 And, at a federally-licensed
dam like Smith Dam, a FERC decision is the touchstone for reasonableness because
the FERC was specifically charged with balancing the competing interests in Project
waters. Indeed, the FERC balanced interests including “interstate or foreign
commerce, . . . water power development, . . . adequate protection, mitigation, and
enhancement of fish and wildlife . . . other beneficial public uses, including irrigation,
flood control, water supply, and recreational and other purposes . . . .” 16 U.S.C. at
§ 803(a).19 Importantly, the court deferred to the FERC’s balancing in Beaunit, even
18

In support of these two alleged fact issues, Plaintiffs cite the declaration of Brian
McCrodden, an engineer who was SLISA’s expert during the FERC relicensing proceeding, wherein
he offered his model as a better way to operate Smith Dam, including constructing cooling towers
at Plant Gorgas. The FERC rejected his opinions, and Plaintiffs’ attempt to resurrect them conflict
with the FERC’s findings. As to the third fact issue, it appears irrelevant to the Court that the water
level was generally higher during the summer of 2012 considering that Alabama Power has great
discretion in how it operates the dam under its FERC license and it is not required to maintain lake
levels at a certain height.
19

Plaintiffs take issue with the FERC’s statement in its EA that “the Gorgas Plant is not
licensed by [FERC]; therefore, construction of cooling towers at the Gorgas Plant is outside the
Commission’s jurisdiction.” (Doc. 83-2, Exhibit V.) However, the FERC does have exclusive
jurisdiction to determine the public interest associated with how Smith Dam should be operated, and
it has done so, finding that SLISA’s proposals for the construction of cooling towers at Plant Gorgas
are not in the public interest. Moreover, Plant Gorgas is licensed by the APSC, which found it to be
in the public interest. (Doc. 83-1, ¶ 8.) Because of this, it appears that this Court does not have the
authority to order the construction of cooling towers at Plant Gorgas if it wanted to. The Alabama
Code provides that the APSC must review the prudence of a public utility’s, like Alabama Power’s,
decisions and that the APSC has exclusive jurisdiction to issue certificates of convenience and
necessity to establish rates. See, e.g., Ala. Code §§ 37-1-49, 37-4-28, 37-1-80; Con’t Tel. Co. of the
South v. Ala. Public. Serv. Com’n, 427 So. 2d 981, 987-88 (Ala. 1982). Plaintiffs’ request would have
Page 50 of 58

though the plaintiffs had been operating their plant before the dam was ever built,
recognizing that “[s]uch method of operation of the dam and its generating facilities
[i.e., compliance with a FERC license] is reasonable.” Beaunit, 370 F. Supp. at 1051.
Considering the record developed in this case, Beaunit strongly suggests that Alabama
Power’s actions in operating Smith Dam and lake as it does are a reasonable use of its
riparian rights, such that all of Plaintiffs’ tort claims, which are each based on an
alleged violation of riparian rights, cannot stand.
Ellis and Bryan provide further support for Alabama Power’s position. In Ellis,
riparian owners on the Coosa River between Lay Dam and Mitchell Dam sued
Alabama Power in connection with flooding of their property. 431 So. 2d at 1243. The
Alabama Supreme Court framed the issue as “whether [Alabama Power], when it
operates its hydroelectric dams in accord with the [FPC] license and the Department
of Army regulations, is liable in an action for damages for negligence, trespass and/or
nuisance.” Id. The Court held that operation of a dam in accordance with “the plans
and specifications required by the government . . . relieved [Alabama Power] from the

the effect of vesting this Court with authorities plainly granted to Alabama Power and to the APSC
under those code sections. For example, if the Court were to order the construction of cooling
towers, the APSC would be foreclosed from assessing the need for the cooling towers as part of a
proceeding for a certificate of convenience and necessity or the costs associate with the cooling
towers when any such costs are included in rate base as property of the utility used to serve the
public.
Page 51 of 58

creation and maintenance of a nuisance.” Id. at 1245 (quoting Burnett v. Ala. Power
Co., 74 So. 459, 467 (Ala. 1916) (holding that Alabama Power was not liable for flood
damage in its operation of a dam across a navigable waterway)). The court further held
that “there could be no negligence in doing the thing so sanctioned [by the federal
government].” Id. (quoting Burnett, 74 So. at 467-68).
In Bryan, the plaintiff farmers owned property on the Tallapoosa River,
downstream from Martin Dam, which is operated by Alabama Power under a FERC
license. 20 So. 3d at 110. The downstream riparian owners claimed that Alabama
Power was negligent and wanton in its operation of Martin Dam during flood events
in 2003, thus causing damage to their properties. Id. The case turned on whether the
downstream riparians could prove that Alabama Power owed them a duty and, if so,
whether they breached that duty, because duty was an element of both their
negligence and wantonness claims. Id. at 115-16. In holding that Alabama Power did
not breach a duty to downstream riparian owners, the Alabama Supreme Court relied
on its previous holding in Ellis, stating that there the court found “uncontradicted
evidence of compliance with federal regulations to be incompatible with a claim of
breach of duty to a lower riparian owner.” Id. at 116-17 (citing Ellis, 431 So. 2d at
1246). The court likened Bryan to Ellis insofar as in both cases the dams at issue were

Page 52 of 58

subject to federal regulations:
For example, the operating curve of the 1978 FERC license for Martin
Dam specified that Alabama Power was to maintain the lake level
between 489 and 490 feet. Additionally, the FERC licenses specified that
during flood periods Alabama Power was not to operate Martin Dam
with a rate of outflow greater than the concurrent rate of inflow.
Furthermore, the FERC licenses required Alabama Power to
communicate and coordinate with the Corps of Engineers with respect
to its flood-control operations. The record shows that the FERC licenses
govern many other aspects of Alabama Power’s operation of Martin Dam
as well. In light of the extensive federal involvement in Alabama Power’s
operation of Martin Dam via the FERC licenses, it is apparent that
Martin Dam is part of a general scheme of federal coordination and
regulation of navigable waterways, including coordination with the Corps
of Engineers.
Id. at 117. The court further found in Bryan that, as in Ellis, Alabama Power complied
with its FERC license during the floods at issue by maintaining lake levels within the
operative curve; thus its operation of Martin Dam was not negligent. Id. at 118. In so
holding and thus granting summary judgment for Alabama Power, the Alabama
Supreme Court further emphasized that it would not impose a legal duty beyond the
requirements of the FERC license for a hydroelectric project:
In so concluding, we are mindful of the fact that operating Martin Dam
to attain such storage would require Alabama Power to maintain a lake
level below the operating curve established by the FERC and approved
by the Corps of Engineers. We are also mindful of the delicate balancing
of interests between upstream and downstream landowners along the
Tallapoosa River basin. The balancing of those interests is subject to
federal regulations and has been challenged, negotiated, and agreed upon
Page 53 of 58

by various individuals and entities during the last several decades. The
farmers have not presented adequate authority justifying this Court’s
interference with the regulation and previous balancing of such interests.
Id. at 119.20
Plaintiffs attempt to distinguish Bryan on its facts, emphasizing that it was
limited to duties that dam operators owe to prevent or limit flooding on the property
of downstream owners regarding causing or worsening of flooding, not an alleged
interference with riparian rights, at issue here. See Bryan, 20 So. 3d at 116-18. The
Court does not find that fact to be a material point of distinction between this action
and Bryan. As in Bryan, Plaintiffs here sue Alabama Power for wantonness in its
operation of Smith Dam, a cause of action which necessitates a finding of breach of a
duty under Alabama law. See Bryan, 20 So. 3d at 115-116.
The claims raised by the plaintiffs in Beaunit, Ellis, and Bryan are the same as
the claims Plaintiffs assert here: Count II (violation of riparian rights); Count III
(private nuisance); and Count VII (wantonness). Yet in Beaunit, Ellis, and Bryan,
Alabama courts held that these tort claims of other riparian owners—to which
Plaintiffs have analogized themselves in this case—could not stand in light of Alabama

20

As in this case, in Bryan, a group of landowners had intervened in the FERC’s re-licensing
of Martin Dam, objecting to the operation of the dam in a manner that would allow high lake levels
during rainy seasons. The landowners’ proposals were rejected by the FERC as not in the public
interest. Id. at 111.
Page 54 of 58

Power’s operation of hydroelectric projects in accord with federal regulations. See
Beaunit, 370 F. Supp. at 1051 (holding that Alabama Power did not violate
downstream riparian owner’s riparian rights because “[s]uch method of operation of
the dam and its generating facilities [in accordance with its FPC License] is
reasonable”); Ellis, 431 So. 2d at 1245 (holding that operation of a dam in accordance
with “the plans and specifications required by the government . . . relieved [Alabama
Power] from the creation and maintenance of a nuisance”) (quoting Burnett, 74 So.
at 467); Bryan, 20 So. 3d at 116-17 (holding that plaintiff’s negligence and wantonness
claims failed because “uncontradicted evidence of compliance with federal regulations
[is] incompatible with a claim of breach of duty to a lower riparian owner”).
These cases persuade the Court that Alabama law respects the balance struck
by federal law, regulation, and licensing in this area such that a FERC licensee is not
liable for doing the very thing permitted by the license. See Ellis, 431 So. 2d at 1245.
In other words, Alabama’s common law defers to the superior expertise of regulatory
agencies and is modest enough not to place courts in charge of operating
federally-licensed hydroelectric dams. Indeed, Plaintiffs cite no authority for what
they are asking this Court to do—which is have a jury decide that the FERC’s
approved operations are not reasonable and award damages and enjoin operation

Page 55 of 58

pursuant to a FERC license, effectively overruling the FERC outside the exclusive
judicial review provisions of the FPA and substituting this Court’s own view of
reasonable dam operations. In asking the Court to require a fundamental change in the
mode of operation of Smith Dam over the last fifty years, Plaintiffs would have the
Court overturn the FERC’s careful balancing of competing interests in the waters of
Smith Lake. Yet the Court cannot ignore that Alabama Power created Smith Lake for
the principal purpose of generating electricity and that the FERC and the Corps
approved the very operations about which Plaintiffs complain.21
In sum, because Alabama Power has at all times operated Smith Dam in
accordance with its FERC License and the Corps’ Manual, its exercise of its own
riparian rights on Smith Lake is reasonable, and it has thus not violated any such rights
of Plaintiffs, nor has it committed any of the torts flowing from the alleged violation
of riparian rights.22 As such, Alabama Power’s motion for summary judgment is due
21

Plaintiffs warn that if the Court grants summary judgment in favor of Alabama Power, state
common law rights would cease to exist and common law remedies would vanish whenever an
activity is subject to federal regulation. The Court does not agree with Plaintiffs’ broad
characterization of its holding today. There may be a case, coming before a court upon different facts,
in which a FERC-licensee may indeed be liable for common law torts associated with its operation
of a FERC-licensed project, because it, among other things, violated its FERC license or otherwise
acted improperly. This is not that case.
22

In addition to violation of riparian rights, nuisance, and wantonness, Plaintiffs also allege
in Count IV of their complaint that Alabama Power was unjustly enriched by its violation of
Plaintiffs’ riparian rights. As the violation of riparian rights claim fails in light of Beaunit and other
aforementioned cases, so too does the unjust enrichment claim. Finally, because Alabama Power is
Page 56 of 58

to be granted as to all of Plaintiffs’ claims.23 All other claims being thus disposed of,
Plaintiffs’ motion for summary judgment as to the request for a declaratory judgment
of riparian rights is due to be denied as merely advisory, as explained more fully in part
IV.B, supra.
V.

Conclusion
For the foregoing reasons, no genuine issues of material fact are present and

thus Alabama Power’s Motion for Summary Judgment (Doc. 81) is due to be granted.
Plaintiffs’ Cross Motion for Partial Summary Judgment (Doc. 89) is due to be denied.
A separate order will be entered consistent with this Opinion.
Done this 9th day of May 2013.

entitled to summary judgment on the underlying tort claims, it is also entitled to summary judgment
on the remedies Plaintiffs seek through Count V(Action for Constructive Trust) and Count VI
(Action for Injunctive Relief ). See U.S. Army Corps of Eng’rs, 424 F.3d at 1127 (“There is no such
thing as a suit for a traditional injunction in the abstract. For a traditional injunction to even be
theoretically available, a plaintiff must be able to articulate a basis for relief that would withstand
scrutiny under Fed. R. Civ. P. 12(b)(6) (failure to state a claim). . . . [I]f the plaintiff’s rights have not
been violated, he is not entitled to any relief, injunctive or otherwise.”) (quoting Klay, 376 F.3d at
1097-98).
23

Because the Court holds as it does, it need not discuss Alabama Power’s alternative
arguments that 1) Plaintiffs do not have riparian rights in Smith Lake because Alabama Power
acquired any that existed pursuant to language in the deeds and condemnation orders that Plaintiffs’
predecessors-in-interest granted to Alabama Power, and/or 2) that all of Plaintiffs’ claims fail
because the Otwells’ and Billings’ properties are subject to exculpatory clauses exonerating Alabama
Power for any consequences and damages caused by its operation of Smith Dam and Alabama
Power’s power plants.
Page 57 of 58

L. Scott Coogler
United States District Judge
[160704]

Page 58 of 58