Federal judge sends Duke case back to state court
A federal district judge in Bryson City has granted Jackson County’s request to move Jackson County’s condemnation suit against Duke Energy regarding the Dillsboro Dam back to state court, though his 26-page ruling indicates that he doesn’t think it belongs there, either.
Judge Martin Reidinger issued his ruling Nov. 3. In it he writes that while his federal district court lacks “subject matter jurisdiction,” the only court with jurisdiction to hear the county’s condemnation claim is the Washington, D.C., Circuit Court of Appeals.
That court is already involved in the protracted legal battle between the county and Duke, because the county last year filed suit there in an attempt to have Federal Energy Regulatory Commission orders mandating the dam’s removal overturned. Oral arguments in that case were heard Oct. 9, but the court to date has not issued a ruling.
According to Reidinger’s ruling, Duke successfully had the case removed from state court to federal court in August based on “preemption,” saying that the Federal Power Act preempts state law and therefore the county’s attempt to seize the Dillsboro Dam and powerhouse should be heard in federal court.
“In making this argument, Duke ignores the proceeding pending before the D.C. Circuit and the language of (a Supreme Court ruling), providing that the D.C. Circuit has ‘exclusive’ jurisdiction,” Reidinger writes.
However, he goes on to question the validity of the county’s condemnation suit, saying that a challenger to a FERC order may not “collaterally attack the validity of a prior FERC order in a subsequent proceeding” in either state or federal court, and terms the county’s attempt to seize the dam just such a collateral attack.
“The county’s eminent domain/condemnation action is an attempt to avoid FERC’s order of surrender and demolition of the dam and powerhouse,” Reidinger writes. “The very issue involved in this action, whether the (Dillsboro) project must be dismantled and demolished, is pending before the D.C. Circuit in a proceeding in which Duke and the county are both parties to. The FPA governs review of all disputes concerning the licensing of hydroelectric projects, and … (the county’s) action is at its core an attempt to restrain the licensing procedures authorized by FERC.”
For its part, despite the return of the county’s condemnation suit to state courts, Duke views Reidinger’s ruling as a positive development, according to Fred Alexander, the power company’s district manager for government and business relations.
“We believe the order is favorable for dam removal and river restoration because of two main determinations: 1) that Jackson County’s condemnation complaint is an impermissible collateral attack on the FERC surrender orders; and 2) that the only courts that could hear any of these issues are the U.S. Court of Appeals for the Fourth Circuit, also known as the D.C. Circuit,” Alexander said Tuesday. “Of course, Jackson County’s challenges to the FERC orders are already pending before the D.C. Circuit; it has been fully briefed and argued. We await the opinion of the D.C. Circuit.”
County Manager Ken Westmoreland Tuesday declined comment on the judge’s ruling.
Reidinger also denied Duke’s request to dismiss the county’s condemnation suit, calling it “moot.”
Judge Reidinger’s order is below.
PDF: Judge Martin Reidinger Order
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Judge Martin Reidinger OrderNo related posts.
