Allan C. Miller and Betty G. Miller v. United States

583 F.2d 857, 1978 U.S. App. LEXIS 9282
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 31, 1978
Docket76-1694
StatusPublished
Cited by41 cases

This text of 583 F.2d 857 (Allan C. Miller and Betty G. Miller v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allan C. Miller and Betty G. Miller v. United States, 583 F.2d 857, 1978 U.S. App. LEXIS 9282 (6th Cir. 1978).

Opinion

MERRITT, Circuit Judge.

Rivers and lakes mark more than half of the 3,500 mile border between Canada and the United States, and over the years many problems have arisen concerning the use and diversion of these waters and their tributaries for irrigation, navigation, flood control and electric power. In this case Allan and Betty Miller, owners of lakefront property on Lake Huron near Saginaw Bay, claim that the combined effect of two hydroelectric dams in Canada, and the operation of locks and flood gates at the outlet of Lake Superior near Sault Ste. Marie, have caused high water in the lower lakes. They claim that the United States supported construction of the Canadian dams and that the United States Corps of Engineers operates the locks and flood gates at Sault Ste. Marie in conjunction with an international *859 commission. They seek damages from the United States for alleged flooding and erosion caused by rising water levels and an increased flow of water in Lake Huron. The District Court dismissed their complaint, 410 F.Supp. 425 (E.D.Mich.1976), and they appeal. We affirm in part and reverse in part for fact-finding on specific questions.

I. STATEMENT OF THE CASE

Specifically, the Millers say that the dams and the operation of the locks and flood gates have made the low water levels of Lake Huron higher, that the lake levels have varied up to 4.4 feet since 1965, and that the process of erosion has been aggravated by disruption of the littoral drift, by the destruction of protective beach barriers, and by the action of fall winds on the increased volumes of water. They said at oral argument that they had lost approximately 6,000 square feet of their lakefront lot since 1968 and that as a result their residence is now much closer to’ the lake.

The Millers claim that the diversion of two rivers in northern Ontario (the Kenoga-mi River at Long Lac and the Ogoki River) has artificially increased the amount of water flowing into Lake Superior and that the release of water from Lake Superior into Lake Huron at Sault Ste. Marie has in turn raised the levels and increased the velocity of water in Lake Huron.

The Millers allege that the United States, “acting in concert with Canada . erected diversion dams at Long Lac and Ogoki, which reversed the [northerly] flow of these streams” from Hudson Bay into the Lake Superior watershed. The diversions are shown on the map of. the Great Lakes region printed as Exhibit A in the Appendix. They claim that these Canadian dams divert from 5,000 to 10,000 cubic feet of water per second into Lake Superior and that the United States Army Corps of Engineers, in concert with the International Joint Commission of the United States and Canada (the “IJC”), then “dumps” all of the water into the lower lakes, through locks and floodgates at Sault Ste. Marie, thereby maintaining Lake Superior at an “unnaturally” low level. We take judicial notice that it was the Hydroelectric Power Commission of Ontario which erected the dams and diverted the waters of the two Canadian rivers. It did so with the approval of the Province of Ontario and the approval of the Canadian Government and with the consent of the United States, as expressed by an executive agreement consisting of an exchange of notes between Secretary of State Cordell Hull and the Canadian Foreign Minister in October and November of 1940. 1

The Millers have stated three theories of recovery against the United States. First, they claim that the indemnification provisions in the Boundary Waters Treaty of 1909 between the United States and Canada 2 create a basis for recovery against the United States for actions affecting boundary waters. Second, they claim that the United States has “taken” their property through construction and operation of canals and control works at the outlet of Lake Superior, and that compensation must be paid under the Fifth Amendment to the Constitution and the Tucker Act. 3 Finally, they claim damages under the Federal Tort Claims Act, 4 alleging negligent operation of the canal locks and control gates by the Corps of Engineers at Sault Ste. Marie.

II. THE BOUNDARY WATERS TREATY OF 1909

The District Court correctly dismissed the Miller’s claim under the 1909 treaty. The treaty does not create addi *860 tional private rights of action for a United States citizen against his own government. The Ogoki and Long Lac diversions, moreover, are not within the subject matter governed by the treaty nor are they within the jurisdiction of the IJC, the international monitoring agency created by the treaty. 5

The purpose of the Boundary Waters Treaty of 1909 was “to prevent disputes regarding the use of boundary waters” and “to make provision for the adjustment and settlement” of questions “between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other.” To this end, the treaty establishes the IJC, which performs certain judicial, investigative, administrative and engineering functions. It has the authority to approve or prohibit and to regulate the obstruction or diversion of certain waters, and the United States and Canada agree not to allow construction of such projects without IJC approval. (Articles III, IV, VIII).

The Millers claim a right of action under one paragraph of Article VIII of the treaty which allows the IJC to insist on compensation of citizens in certain situations “as a condition of its approval” of a project. Article VIII, however, limits the scope of the compensation requirement to citizens “on the other side of the line” from the project in question. The pertinent paragraph of Article VIII provides:

In cases involving the elevation of the natural level of waters on either side of the line as a result of the construction or maintenance on the other side of remedial or protective works or dams or other obstructions in boundary waters or in waters flowing therefrom or in waters below the boundary in rivers flowing across the boundary, the Commission shall require, as a condition of its approval thereof, that suitable and adequate provision, approved by it, be made for the protection and indemnity of all interests on the other side of the line which may be injured thereby. [Emphasis added.]

For example, if Canada proposes construction of a dam in certain Canadian waters, the United States and Canada agree under Article VIII that the IJC will not approve unless Americans injured by the dam are indemnified. Under Articles III and IV, moreover, the Canadian government has promised that it will not allow construction of such a dam without IJC approval. Canada breaks its treaty obligations to the United States if it permits construction before the IJC approves. We emphasize, however, that the only treaty-made obligations which are broken are those of Canada to the United States.

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583 F.2d 857, 1978 U.S. App. LEXIS 9282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allan-c-miller-and-betty-g-miller-v-united-states-ca6-1978.