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CROSS v. PACE

July 1, 1952

CROSS et al.
v.
PACE, Secretary of the Army, et al.



The opinion of the court was delivered by: PINE

Plaintiffs, who are citizens of the United States own real property in the State of New York adjoining the south shore of Lake Ontario. By reason of the rising water level of the lake, their property and the properties of many other similarly situated, have been flooded and greatly damaged. Plaintiffs attribute the rise in the water level of the lake to the effects of a dam in the St. Lawrence River, many miles downstream. This dam, known as the Gut Dam, was built in 1903 nearly fifty years ago. It extends some 700 feet between two islands lying in the St. Lawrence River, namely Galop and Adams islands. It diverts water around one of them. It is partially on territory of the United States and partially on territory of the Dominion of Canada.

Prior to its construction, the statutory law forbade the construction of any dam in navigable waters of the United States until the consent of Congress thereto had been obtained and until the plans therefor had been approved by the Chief of Engineers and the Secretary of War, Act of March 3, 1899; 33 U.S.C.A. ยง 401.

 In 1902 it was represented to Congress that Canada proposed to construct the dam in question with a view to improving navigation, and the consent of the United States was desired for the construction of that part which would be on United States territory. Responding to this representation, a statue was enacted, hereinafter referred to as the Enabling Act, giving such consent, provided that the type of dam and the plans of construction and operation were such as would not, in the judgment of the Secretary of War, materially affect the water level of Lake Ontario or cause other injury to the interests of the United States or its citizens, and provided further that the work of construction on United States territory should not be commenced until plans therefore were approved by the Secretary of War, Act of June 18, 1902, 32 Stat. 392.

 Thereafter, the Secretary of War executed a paper writing, referred to by plaintiffs as a 'permit,' reciting that, in his judgment, the type of dam and plans of construction and operation were such as would not materially affect the water level of Lake Ontario or cause any other injury to the interest of the United States or its citizens, and certifying that, in accordance with the recommendations of the Chief of Engineers, he approved the plans, subject to the condition that if, after the dam had been constructed, it should be found that it materially affected the water levels of Lake Ontario or caused any injury to the interest of the United States, Canada should make such changes as the Secretary might order, and subject to the further condition that, if the construction and operation of the dam should cause damage to the property of any citizen of the United States, Canada should pay such amount of compensation as might be agreed upon between Canada and the parties damaged or as might be awarded the parties in the proper court of the United States before which claims for damage might be brought.

 In 1904, the Acting Secretary of War, after similar recitations, certified his approval of modified plans providing for raising the crest of the dam 2 1/2 feet higher than shown on the original plans, and attached the same conditions.

 Plaintiffs have sued the Secretary of the Army, the Secretary of Defense, and the Secretary of State. In their complaint, from which the foregoing facts are taken, the plaintiffs allege three 'causes of action.'

 In their 'First Cause of Action,' plaintiffs claim that the Secretary of the Army has been 'derelict in his duty' in failing to notify the Government of Canada to alter, destroy, or reconstruct the dam.

 In their 'Second Cause of Action,' plaintiffs claim that if the Enabling Act is valid, the alleged failure of the Secretary of War to carry out the terms thereof has resulted in a lack of legal consent by the United States to the construction of the dam. From this they argue that the portion of the dam resting on United States territory is an illegal structure.

 In the 'Third Cause of Action,' plaintiffs claim that the Enabling Act is unconstitutional, and for this reason the United States did not validly consent to the construction of the dam, causing the same to be an illegal structure so far as it rests on United States territory.

 Plaintiffs pray for a mandatory injunction to compel defendants, 'pendente lite and permanently.' to order such alteration, destruction, or reconstruction of the portion of the dam resting on United States territory as may be necessary to lower the waters of Lake Ontario to their natural level and to serve notice of such order on the Canadian Government in accordance with the terms of the permits, and also to compel defendants to alter, destroy, or reconstruct such portion of the dam as may be necessary to so lower the waters of the lake. They likewise pray for a declaratory judgment setting forth the rights of the plaintiffs and the obligations of the defendants.

 The defendants have moved to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted, that the court is without jurisdiction of the subject matter, and that the action is a suit against the United States, which has not consented to be sued.

 Taking up the 'First Cause of Action,' no duty to notify the Government of Canada to alter, destroy, or reconstruct the dam is imposed upon defendants under the Enabling Act. There is, however, a condition attached to the permits requiring Canada to make such changes as the Secretary of War may order, if it is found that the construction of the dam materially affects the water levels or causes injury to the interests of the United States. It will be noted that this obligation placed upon the Secretary relates to injury to the interests of the United States, which plaintiffs have no standing to assert. Furthermore, this obligation involves the exercise of discretion by the Secretary in making a determination of whether the dam materially affects the water levels of the lake or causes such injury. This is a complex question, and one peculiarly within the Secretary's administrative knowledge. In such circumstances and in the absence of any showing of abuse, the courts are without power to control the exercise of his discretion or substitute its own judgment for that of the Secretary. This is true whether the relief sought is described as a mandatory injunction or mandamus. The principle of law involved has been reiterated on many occasions, a recent example of which is found in Laughlin v. Reynolds, D.C.CIR., 196 F.2d 863, 864, wherein the United States Court of Appeals for the District of Columbia, on May 1, 1952, held as follows:

 'Because of the extraordinary nature of the remedy, the courts will always proceed with great caution before granting relief in the nature of mandamus. The person seeking relief must have a clear right to the performance of the act sought to be commanded. Supervisors v. United States, 1873, 18 Wall. 71, 85 U.S. 71, 21 L. Ed. 771; Ex parte Cutting, 1876, 94 U.S. 14, 24 L. Ed. 49; State of Louisiana v. McAdoo, 1913, 123 U.S. 627, 34 S. Ct. 938, 58 L. Ed. 1506; United States ex rel. Girard Trust Co. v. Helvering, 1937, 301 U.S. 540, 57 S. Ct. 855, 81 L. Ed. 1272. And the relief will be granted '* * * only where the duty to be performed is ministerial and the obligation to act peremptory and plainly defined.' United States ex rel. McLenan v. Wilbur, 1931, 283 U.S. 414, 420, 51 S. Ct. 502, 504, 75 L.Ed 1148.'

 It should also be pointed out that plaintiffs ask the court to direct defendants to make representations to a foreign government. In such matters, the courts are likewise without power. As stated in United States ex rel. Holzendorf v. Hay, 20 App.D.C. 576, affirmed on other grounds in 194 U.S. 373, 24 S. Ct. 681, 48 L. Ed. 1025, 'The duty of righting the wrong that may be done to our citizens in foreign lands is a political one, and appertains to the executive and ...


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