Holland Phillips Oct. 22, 2013, 5:50pm

NEW ORLEANS – The U.S. Court of Appeals for the Fifth Circuit has affirmed a district court’s dismissal of a case brought by 28 individuals who alleged their properties were flooded and eroded when Sabine River Authorities of Louisiana and Texas opened their spillway gates in 2009.

The plaintiffs filed suit against Sabine River Authority of Louisiana, Louisiana Department of Transportation and Development, Linda Curtis Sparks, Entergy Gulf States Louisiana LLC, Entergy Corporation, Entergy Services Incorporated and Entergy Louisiana LLC in a Louisiana district court in October 2010.

The plaintiffs alleged negligence, nuisance, trespass, unconstitutional taking, damage to property without just compensation and due process violations against the defendants. They sought damages and a permanent injunction to prevent the defendants from releasing floodwaters from the Toledo Bend Dam in a way that would destroy and/or damage the properties of the plaintiffs, which lie downstream from the dam.

Previously, the plaintiffs had attempted to impose changes on dam operation, most of which the Federal Energy Regulatory Commission (FERC) denied. The plaintiffs claimed that the defendants were negligent for failing to change their operations, a claim that the appeals court concluded was “an attempt to force changes to a FERC-issued license [that] would ‘constitute a veto of the project that was approved and licensed by FERC.”

The defendants filed a motion to remove the action to federal court to determine liabilities as stipulated by the Federal Power Act (FPA) while the plaintiffs filed two motions to amend their complaint: one to remove references to the U. S. Constitution and another to remove requests for injunctive relief, in addition to filing a motion to remand their case to a state court.

The district court implicitly denied the plaintiff’s motions to amend when it ruled in favor of the defendants’ motion and dismissed the case with prejudice. The appeals court affirmed the district court’s judgment that federal FPA law preempts state property damage law in this case as in other cases “where the alleged damage is the result of ‘negligently’ operating in compliance with a FERC-issued license.” The appeals court ruling also states that the district court did not abuse it discretion by failing to permit the plaintiff’s motion to amend because the proposed changes were futile as the court had already held that the FPA preempted their state law claims.

The case was heard by Circuit Judges Jerry E. Smith and Jacques L. Wiener Jr. and Chief Judge Carl E. Stewart.

Case no. 2012-30494.

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