oelectric power generating company which now oelectric power generating company Plaintiff, Defendant, Intervenor. MEMORANDUM DECISION AND ORDER Plaintiff, National Grid, is a former hydr Plaintiff, National Grid, is a former vs. 5:09-CV-00471 vs. Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 1 of 15 1 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case Regulating District merely transmits and distributes energy resources, but still owns various undeveloped real estate and distributes energy resources, but transmits merely I. INTRODUCTION Norman A. Mordue, Chief U.S. District Judge: DISTRICT COURT DISTRICT STATES UNITED DISTRICT OF NORTHERN ______CORPORATION, MOHAWK POWER NIAGARA GRID, d/b/a NATIONAL HUDSON -BLACK RIVER REGULATING -BLACK DISTRICT, Hodgson Russ LLPThe Guaranty Building140 Pearl Street, Suite 100 Buffalo, New York 14202-4040 Attorneys for Intervenor Sacandaga Protection Corporation Esq. K. Ahlstrom, Benjamin Daniel A. Spitzer, Esq. SACANDAGA PROTECTION CORPORATION, SACANDAGA PROTECTION ______APPEARANCES:Hiscock & Barclay, L.L.P.50 Beaver Street Albany, New York 12207-2830 Attorneys for Plaintiff Crane, Parente & Cherubin Regulating District 90 State Street, Suite 1515 Albany, New York 12207 River Attorneys for Defendant Hudson River-Black Mark D. Lansing, Esq. OF COUNSEL: David M. Cherubin, Esq. NAM . NVTL E

§§ 15-2137, N.Y.

AW L

. ONSERV C

. , the and its Dam , the Conklingville NVTL §§ 15-2103(1), 15-2109, 15-2111, E

AW inter alia and Black River Basins. This case involves This Basins. Black River and L tional Grid asserts that the District has been tional Grid asserts

ndaga Protection Corporation (“SPC”), has filed ndaga Protection Corporation (“SPC”), . N.Y. 2 ates water flow in the basins of the Hudson, flow in the basins ates water See on River-Black River Regulating District, (“the District, River Regulating on River-Black ONSERV C

. NVTL E

N.Y. See The District’s statutory mission is to regulate the flow of the Hudson and is to The District’s statutory mission 1 , builds and operates reservoirs, issues bonds and apportions costs on statutorily , builds and operates reservoirs, issues bonds and apportions costs §§ 15-2103(1), 15-2139(2). In furtherance of this statutory directive, the §§ 15-2103(1), 15-2139(2). In furtherance of this statutory directive, AW L

. inter alia The Hudson River Regulating District was originally formed in 1922 and the Black River Regulating District in Regulating District was originally formed River Hudson The To reiterate, the relevant facts are these: The District is a New York public benefit To reiterate, the relevant facts are 1 Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 2 of 15 2 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case ONSERV defined beneficiaries to finance the construction, maintenance and operation of its river defined beneficiaries to finance the construction, maintenance regulating reservoirs. 15-2139, 15-2141. District, Black “as required by the public welfare including health and safety.” Black Rivers “as required by the public welfare including health parcels along the Hudson River, River Sacandaga River, the Hudson along parcels agency that regul a New York state District”) and Beaver Rivers and operates, Sacandaga, Black primarily plaintiff’s claims against the Huds against plaintiff’s claims primarily Great . Na related body of water, to New to the public utility pursuant “headwater benefit” charges assessing and apportioning doctrine. preemption law in violation of the federal conservation York state environmental National Grid judgment. for summary motion before the Court is the District’s Presently pending The intervening party, Saca opposes this motion. Also pending before the Court judgment. for summary motion a brief in support of the District’s this parties to stay discovery and adjourn discovery deadlines pending by the are cross motions motion. judgment of the summary Court’s determination II. BACKGROUND RELEVANT FACTUAL AND PROCEDURAL the then-existing Hudson 1959 by legislation that combined corporation which was created in Districts. River and Black River Regulating C was originally formed in 1919. was originally formed NAM . NVTL E

N.Y. See The District issues annual 2 the District’s operation in the Hudson in the operation the District’s ources: 1) annual assessments chargedources: 1) annual assessments to “statutory ard Hydropower, L.P. for the use of state-owned head and § 15-2125. rcels of property that have fall or "head" on the rcels of property that have fall or § 15-2121, the District (and its predecessor) is § 15-2121, the District 3 AW ate-owned lands in and and 3) ate-owned around Lake; Great Sacandaga L AW

pportionment for the Hudson River Area attributes pportionment . L

. ONSERV C ONSERV

. C

. NVTL E The District (including its predecessor) has used the same method of method the same its predecessor) has used The District (including NVTL

E

therefore derive, or potentially derive, the benefit of increased water power therefore derive, or potentially derive,

§§ 15-2121,15-2123,15-2125. Although at the time the original apportionment §§ 15-2121,15-2123,15-2125. Although at the time AW L

. The District’s funding comes from three revenue s from The District’s funding comes The District enacts a three-year budget triennially, based on its estimates and triennially, based on its estimates The District enacts a three-year budget Pursuant to N.Y. 2 Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 3 of 15 3 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case ONSERV C river, and which potential (undeveloped). or merely industrial (e.g., mills), production – whether hydroelectric, flow along the river for flood control, 5% is allocated to municipalities The remaining assimilation. and sanitary benefits such as wastewater augmentation, reservoirs and dams, the District's of operating and maintaining related to the cost determinations N.Y. other improvements. approximately 95% of the project's benefits to pa 95% of the project's approximately covering the July 1st - June 30th fiscal year. The on July 1st of each year, assessments allocate a portion of the District’s budget on “statutory beneficiaries” in proportion assessments of Cost. to their percentages set forth in the original 1925 Apportionment apportionment to determine its annual assessments of costs continuously since its original of costs continuously since its annual assessments to determine apportionment of a method adoption in 1925. The District's 15-2123, 15-2125, 15-2129, 15-2133. The focal point of point The focal 15-2133. 15-2129, 15-2125, 15-2123, for the facilities and costs and maintenance the cost of its capital, operation required to apportion of property that are charged to all owners through an annual assessment property it owns by its services. benefitted River watershed is its ownership and operation of the Conklingville Dam and its related body of its related body and Dam of the Conklingville and operation is its ownership River watershed Lake. as Great Sacandaga now known Sacandaga Reservoir, water, the beneficiaries;” 2) permit fees charged for the use of st the use of for charged fees permit 2) beneficiaries;” with Erie Boulev a hydroelectric site agreement revenues from water rights at Conklingville Dam. water rights at Conklingville Dam. NAM , § AW L

. inter alia ONSERV C

. NVTL E

District’s practice of allocating 95% of its District’s practice ich revealed finally in July 2003, that there ich revealed finally in July 2003, strict to revise its apportionment.” Indeed, strict to revise its apportionment.” projects which benefitted from its services and from projects which benefitted l Grid continues to own various parcels of land various parcels of to own l Grid continues ers to be “developable” hydroelectric generation ers to be “developable” 4 along the Hudson River, the company has since the company Hudson River, along the and consultants have advised the District over and consultants annual budget could or should be apportioned. ilation, whitewater recreation, navigation and National Grid alleges that notwithstanding the National Grid alleges In September 2002, as part of obtaining a required license from the Federal Energy a required license from 2002, as part of obtaining In September Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 4 of 15 4 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case and assessment was rendered by the District, Niagara Mohawk, National Grid’s predecessor, Grid’s National Mohawk, Niagara by the District, was rendered assessment and plants power operated hydroelectric owned and divested all of its power plant operations. Nationa plant operations. all of its power divested method. its original 1925 apportionment are assessed by the District under sites. These sites the hydroelectric of Cost to annual Apportionment various studies the other 5% to municipalities, parcels along the Hudson River and Great unassessed, but benefitted that numerous time required by N.Y. apportionments Sacandaga Lake are not paying the along the Hudson River which the District consid along the Hudson 15-2121. As stated rather succinctly by counsel for the New York State Department of by counsel for the New York State Department 15-2121. As stated rather succinctly papers filed in connection with motion Conservation in the agency’s previous Environmental have it is undisputed that “circumstances injunction, for a preliminary National Grid’s motion call for the Di evolved” since 1925 “which arguably an 1999 to perform & Sullivan, in September Gomez firm, the District retained a consulting regulation study wh independent Hudson River flow benefits (flood protection, lake recreation, determinable are seven categories of economically hydroelectric power generation, waste assim lakeshore properties) by which the District’s and Great the Conklingville Dam the operation of (“FERC”) for Regulatory Commission National Grid, and with DEC, Settlement of Sacandaga Lake, the District entered into an Offer and property owners which included, other interested agencies, businesses numerous methodology. update its assessment to by the District to conduct a reapportionment an agreement NAM affecting the owner of such reservoir or arges to be paid by any licensee h challenge the Hudson River and Black River h challenge the Hudson 5 eering for the regulating benefits provided by the eering for the regulating benefits shall be determined by the Commission. . . . by the Commission. shall be determined f) Reimbursement by licensee of other licensees, etc. f) Reimbursement is directly benefitedThat whenever any licensee hereunder by the or of the United construction work of another licensee, a permittee, the States of a storage reservoir or other headwater improvement, the license that the shall require as a condition of Commission shall reimburse licensee so benefited for such part of the annual charges for interest,other improvements deem may thereon as the Commission and depreciation maintenance, equitable. The proportion of such ch National Grid timely grieved and challenged judicially the apportionments and the apportionments judicially and challenged grieved Grid timely National Corporation, a FERC licensee in its capacity as owner In June 2006, Albany Engineering Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 5 of 15 5 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case 16 U.S.C. § 803(f). Further, § 27 of the FPA limits the state’s regulation of matters matters the state’s regulation of 16 U.S.C. § 803(f). Further, § 27 of the FPA limits Conklingville Dam. To wit, FPA § 10(f) provides as follows: provides as follows: To wit, FPA § 10(f) Conklingville Dam. use and irrigation: of municipal federally licensed power projects to matters Concurrent with the licensing order, FERC approved the Offer of Settlement. To date, the To date, Settlement. of the Offer FERC approved order, licensing the with Concurrent effort. the agreed reapportionment or even begun has not completed District to real estate years 2000 through 2010 related to it by the District for fiscal assigned assessments 20 actions River Basins. There are now the Hudson River and Sacandaga parcels it owns along Court whic York State Supreme pending in New and due as violations of equal protection of both state law as well on the grounds assessments raised in The constitutional claims New York State and federal constitutions. process under the pending to those raised in the claims Court actions are identical the New York State Supreme herein. with complaint an administrative Hydroelectric Project, filed the Mechanicville and operator of to the Federal Power Act (“FPA”), state agencies such as the FERC contending that pursuant Engin District lack authority to assess Albany NAM Albany Eng’g Corp. v. Fed. state headwater benefits assessments.” state headwater benefits assessments.” all interfere with the laws of the the laws of with interfere the District’s assessment and apportionment the District’s assessment sed by FERC or “parcels that are or would be tion or for municipal or other uses, municipal tion or for sagreed with Albany Engineering’s contention sagreed with Albany Engineering’s 6 ly controlling “irrigation” or “municipal” water or “municipal” ly controlling “irrigation” characterizes such parcels as purportedly compensation from downstream hydropower plants downstream from compensation § 15-2121 well in excess of the cost of “interest, maintenance and cost of “interest, maintenance § 15-2121 well in excess of the , 548 F. 3d 1070, 1076-77 (D.C. Cir. 2008). Indeed, the Circuit court AW The company asserts that the District is preempted from apportioning from asserts that the District is preempted The company L

. ONSERV Nothing contained in this chapter shall be construed as affecting or construed as affecting chapter shall be contained in this Nothing any way to to affect or in intending respective use, or appropriation, to the control, States relating in irriga of water used distribution or any vested right acquired therein. right acquired or any vested C

. National Grid filed the present action primarily on the basis of the D.C. Circuit’s decision on the basis of present action primarily the National Grid filed FERC agreed that pursuant to the FPA, the District was required to obtain approval of the FERC agreed that pursuant to the NVTL E

Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 6 of 15 6 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case at 1079 (emphasis in original). at 1079 (emphasis Albany Engineering. that the District was prohibited from assessing additional charges for its operational costs. that the District was prohibited from holding that determination, reversed FERC’s administrative However, on appeal, the D.C. Circuit exacting states from federal law preempts operators. dam upstream from that receive "headwater benefits" Energy Regulatory Comm’n be understood to “preempt[] held that FPA §10(f) must Id. in and assessing costs to hydroelectric projects licen subject to FERC’s oversight as the District depreciation” authorized by the FPA. and depreciation and others for interest, maintenance charges apportioned to Albany Engineering FERC. FERC di from the Conklingville Dam of 16 U.S.C. § 821. Albany Engineering charged that 16 U.S.C. § 821. of laws mere outside the realm clearly scheme, were not determined annual assessments FPA in two ways- first, the District’s use, violated the for its operations under charges was imposing and second, the District by FERC to be “equitable” N.Y. NAM ack River basins including collection of Annual ack River basins including collection 7 fifth cause of action, National Grid claims the fifth cause of action, National Grid claims the Equal Protection clause of the Fourteenth the Equal Protection clause of the The first cause of action seeks a declaratory judgment that the FPA preempts regulation of regulation preempts that the FPA action seeks a declaratory judgment The first cause of to a motion this Court granted complaint, Subsequent to the filing of the amended Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 7 of 15 7 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case navigable waterways except for irrigation and municipal use, and thereby preempts all of the thereby preempts use, and except for irrigation and municipal navigable waterways River and Bl District’s operations in the Hudson seeks declaratory relief in against National Grid. The second cause of action also Assessments Grid’s arguing it does not assess National estopping the District from of a judgment the form headwater benefit the District’s authority to make then limiting parcels as hydroelectric sites and a pursuant to FPA § 10(f). The third cause of action also seeks on these parcels assessments together with its scheme, and assessment that the District’s apportionment declaratory judgment with the FPA violates to comply alleged failure situated other similarly National Grid’s property differently from insofar as it treats Amendment final system seeks a declaration that the District’s permit parcels. The fourth cause of action in its by the FPA. Finally, rules are preempted constitutes an used by the District methodology and the apportionment assessments constitutions. unconstitutional taking under both the federal and New York State in May 2009 to respond to actions taken by the intervene by SPC, an interest group formed enjoyed for decades by both system District and DEC regarding proposed changes to the permit recreational users of Great “front lot” and “back lot” property owners as well as business and ‘developable hydroelectric sites.’” The original complaint alleged five causes of action including alleged five causes complaint sites.’” The original hydroelectric ‘developable for a Grid’s motion denied National Court previously injunction. This for a preliminary a request York Department against the New Grid’s claims National dismissed injunction and preliminary which also complaint Grid filed an amended (“DEC”). Subsequently, National of Conservation against DEC. of action and also includes claims contains five causes NAM , Fed. R. See , 762 F.2d 243, 249 Delaware & H. R. Co.

Matsushita Elec. Indus. See , 477 U.S. 317, 323 (1986). With 477 U.S. 242, 258 (1986). Fed. R. Civ. P. 56(c). Substantive Fed. R. Civ. P. 56(c). See see Ramseur v. Chase Bank 8 See Celotex Corp v. Catrett Eastway Constr. Corp. v. City of New York at 325. Once the movant meets this initial burden, the meets at 325. Once the movant ., 902 F.2d 174, 178 (2d Cir. 1990) (quoting See id. See Anderson v. Liberty Lobby, Inc., See Anderson v. Liberty Lobby, The moving party bears the initial burden of establishing that there is no genuine party bears the initial burden of The moving See id. Summary judgment is appropriate where there is no genuine issue of material fact and the fact no genuine issue of material is appropriate where there is judgment Summary of and draw all inferences in favor resolve all ambiguities Although the trial court must Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 8 of 15 8 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case moving party is entitled to judgment as a matter of law. of as a matter party is entitled to judgment moving the suit of the outcome affect might is, which facts that are material; which facts law determines under the governing law. even when they are in judgment, not preclude summary Irrelevant or unnecessary facts do dispute. fact to be decided. issue of material its meet of proof, it may party does not bear the burden moving respect to any issue on which the absence of evidence to support the by showing that there is an judgment burden on summary party’s case. nonmoving a genuine unresolved issue for trial. that there is demonstrate party must nonmoving Civ. P. 56(e). is sought, judgment summary that party against whom v. Consolidated Rail Corp Sacandaga Lake. Although National Grid opposed SPC’s motion to intervene, the Court found intervene, the Court to motion opposed SPC’s National Grid Lake. Although Sacandaga case to warrant interests in this divergent had sufficiently Grid and SPC that National as of right. intervention III. DISCUSSION A. Standard Judgment Summary 865 F.2d 460, 465 (2d Cir. 1989); "metaphysical raises merely who will not be defeated by a non-movant (2d Cir. 1985), the motion doubt" concerning the facts or who only offers conjecture or surmise. NAM , Anderson,

See that a reapportionment agrees dential parcels, are now enjoying the benefit dential parcels, are now enjoying See Mason v. Continental Ill. Nat’l Bank See Mason v. Continental the District’s budget but which are not currently 9 y’s pleading, but "must set forth specific facts set but "must y’s pleading, s along the Hudson and Black Rivers that other s along the Hudson and Black Rivers Fed. R. Civ. P. 56(e). The standard for granting P. 56(e). The Fed. R. Civ. See ., 475 U.S. 574, 586 (1986)). Indeed, the nonmoving party’s opposition party’s nonmoving Indeed, the 574, 586 (1986)). ., 475 U.S. National Grid has assembled an impressive record in opposition to the District’s moving record an impressive National Grid has assembled Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 9 of 15 9 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case summary judgment mirrors the directed verdict standard under Rule 50(a) which requires the the directed verdict standard under mirrors judgment summary be but one reasonable conclusion. verdict where there can court to grant a directed showing there is a genuine issue for trial." issue for trial." there is a genuine showing may not rest on mere denials of the moving part moving denials of the on mere not rest may through the and their witnesses to put them "It is a gratuitous cruelty to parties 477 U.S. at 250. is foreordained." the outcome ordeal of a trial when that the Court It is with these considerations in mind 704 F.2d 361, 367 (7th Cir. 1983). judgment. for summary addresses the District’s motion B. Based on the FPA and Preemption Claims historical reports, assessment affidavits, public records, voluminous papers herein by submitting the inequity created by the to demonstrate in an attempt maps records, contracts, photographs and years obvious that in the over eighty It seems methodology. District’s antiquated assessment propertie since the District first began assessing included. By all accounts, it appears to the Court that the District Co. v. Zenith Radio Corp Co. v. Zenith property owners, including both commercial and resi commercial property owners, including both which in turn contains the Great the Conklingville Dam, to maintain the District’s efforts of lakefront now own and maintain Sacandaga Lake where countless residential homeowners or reassessment property. However, the District has steadfastly refused to undertake a to perform at least one consulting firm despite having commissioned reapportionment determinable of economically regulation study which revealed that there are several categories benefits which could or should be apportioned in NAM See stands for the First Iowa Hydro-Elec. Albany Engineering Albany Engineering r purposes of irrigation or municipal use. r purposes of irrigation or municipal ity over the nation’s navigable waters outside ontrary to National Grid’s contentions, nothing ontrary to National Grid’s contentions, 10 rict, a state regulatory agency is prohibited from rict, a state regulatory agency is the FPA from apportioning its operation costs to the FPA from , 328 U.S. 152 (1946), and its progeny for the Nevertheless, in spite of the egregious circumstances of National Grid’s continuing of National the egregious circumstances in spite of Nevertheless, if not all, of the District’s directives and operations alleges that most, also The complaint Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 10 of 15 10 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case 16 U.S.C. § 821. National Grid relies on the Supreme Court’s decision in 16 U.S.C. § 821. National Grid relies on the Supreme Co-op. v. Fed. Energy Regulatory Comm’n proposition that FERC has total regulatory author the use. It is the position of National Grid that since the areas of irrigation and municipal other FERC licensees, such as Albany Engineering, an owner and operator of a hydroelectric other FERC licensees, such as Albany C Dam. the Conklingville of project downstream that the Dist in the D.C. Circuit’s decision held obligation to pay millions of dollars in assessments to the District, one factor has not changed one factor to the District, dollars in assessments of millions obligation to pay FPA and National Grid’s of with the merits last reviewed this case in connection since this Court applies only to held that the FPA § 10(f), As this Court previously claims. federal preemption hydroelectric power projects. “licensed” or “unlicensed” by propostion that the District is preempted property owners along the Hudson River and Great under state law from collecting assessments are otherwise regulated by federal law and FERC for Sacandaga Lake, even if these waterways any evidence that National Grid is a licensed or unlicensed other purposes. In the absence of - at least insofar as its on this motion factual submissions hydroelectric power producer, its under the FPA - are largely irrelevant. on preemption based claims which - according to National Grid - reserves to the states by the §27 of the FPA are preempted only the power to regulate navigable waterways fo should and must be done since it signed an Offer of Settlement before FERC in 2002 that FERC in 2002 before Offer of Settlement since it signed an be done must should and completed. be that a reapportionment a provision requiring included NAM or any First Iowa California v. Fed. Energy California v. Fed. depositions have yet to be completed but hundreds of depositions have yet to be completed a district court to adjudicate a controversy ivate parcels owned by National Grid. Based ivate parcels owned by National ponse to Freedom of Information requests, and two sets of Information ponse to Freedom motions for summary judgment were denied in 2006 with judgment for summary motions irrigation or municipal use, it is preempted by use, it is preempted or municipal irrigation om exercising jurisdiction over National Grid’s exercising om 11 ed, over 45,000 pages have been produced in discovery, esently pending in Supreme Court is a motion by National Court is a motion esently pending in Supreme The Court notes that abstention from the exercise of from The Court notes that abstention 3 the various litigations. , 495 U.S. 490, 499 (1990). There is simply nothing in (1990). There is simply , 495 U.S. 490, 499 consolidate The District urges this Court to abstain fr The District urges this Court to abstain The Court disagrees. It is very clear that § 27 of the FPA was devised as a scheme to the FPA was devised as a scheme It is very clear that § 27 of The Court disagrees. 3 of interrogatories have been served exchanged. Pr 8,541 pages of documents have been turned over in res have been turned over 8,541 pages of documents Grid to In Hamilton County Supreme Court, the parties’ cross- County Supreme In Hamilton the right to renew upon completion of discovery. Various the right to renew upon completion have been review thousands of pages of documents Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 11 of 15 11 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case remaining constitutional claims on the ground that these identical claims are already being identical claims on the ground that these constitutional claims remaining Supreme the last 10 years in New York State for been filed litigated in 20 actions which have well into the discovery and cases these actions have already progressed Court and in some litigation. phases of dispositive motion abstention, under which a federal jurisdiction is the exception, not the rule. “The doctrine of an decline to exercise or postpone the exercise of its jurisdiction, is district court may extraordinary and narrow exception to the duty of the FPA and FERC’s exclusive authority to regulate under said statute. exclusive authority to regulate the FPA and FERC’s projects.” federal jurisdiction “over hydroelectric divide state and Regulatory Comm’n regulating, taxing or a state agency from by National Grid which prohibits other case cited such as the pr assessing non hydroelectric projects first, second, and fourth causes of action in the amended thereupon the Court finds that the be dismissed. and the FPA must based on preemption which assert claims complaint C. Abstention District’s assessment and apportionment methodology, as applied to mere property owners such property owners applied to mere as methodology, apportionment and assessment District’s appear to contemplate Grid, does not as National NAM To Cone Moses H. See id. Colorado River ., 460 U.S. 1, 13-19 , 424 U.S. 800, 817-20 (1976). Bethlehem Contracting, Co. v. County of Allegheny v. Frank County of Allegheny 762 F.2d 205, 207 (2d Cir. 1985) 762 F.2d 205, 207 (2d Cir. 1985) abstention “rest[s] on considerations of wise 12 ., 460 U.S. 1, 16; vation of judicial resources and comprehensive favor of the exercise of jurisdiction.” favor of the exercise of jurisdiction.” , 424 U.S. at 817. The decision “does not rest on a abstention is appropriate, a district court must weigh six court must abstention is appropriate, a district Colorado River Colorado River ., 800 F.2d 325, 327 (2d Cir.1986). The four original ., 800 F.2d 325, 327 (2d Cir.1986). Moses H. Cone Hospital v. Mercury Construction Corp Moses H. Cone Hospital v. Mercury Colorado River : (5) whether state or federal law supplies the rule of decision, and (6) whether : (5) whether state or federal law supplies the rule of decision, and , 360 U.S. 185, 188-189 (1959). , 360 U.S. 185, 188-189 In 1976 the Supreme Court crafted a new exceptional-circumstances test for Court crafted a new exceptional-circumstances In 1976 the Supreme Colorado River Water Conservation Dist. v. United States Colorado River Water Conservation Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 12 of 15 12 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case determining-absent any of the three accepted bases for federal-court abstention - whether federal for federal-court abstention any of the three accepted bases determining-absent in state court litigation commenced be stayed out of deference to parallel litigation should Co. v. City of New York, Arkwright-Boston Mfrs Mut. Ins. Mashuda Co. (citing Seven years later in test. exceptional-circumstances and elaborated on this (1983), the Court reaffirmed whether determine weighted in factors, with the “balance heavily Constr. Corp Cone Memorial Hosp. v. Mercury Lehrer/McGovern, Inc Memorial Hospital party seeking to invoke federal the state court proceeding will adequately protect the rights of the jurisdiction. 460 U.S. at 13-19. properly before it. Abdication of the obligation to decide cases can be justified under this cases can be justified to decide of the obligation before it. Abdication properly to the state parties to repair the order to the where circumstances only in the exceptional doctrine countervailing interest.” serve an important court would clearly factors include: (1) the assumption of jurisdiction by either court over any res or property; (2) the of jurisdiction by either court over any res factors include: (1) the assumption litigation; and (4) the order in piecemeal (3) the avoidance of inconvenience of the federal forum; later added two factors in which jurisdiction was obtained. 424 U.S. at 817-20. The Court giving regard to conser judicial administration, disposition of litigation.” NAM . NVTL E

, 762 F.2d at 210. , 762 F.2d factors are not applicable in this case. factors are not applicable come. “[T]he existence of such come. e courts have not or will not adequately protect e courts have not or will not adequately 13 it will force defendants to defend this to defend defendants it will force long obtained in state court on National Grid’s long obtained in state court on National Colorado River , the danger of piecemeal litigation is the paramount consideration in litigation is the paramount , the danger of piecemeal the various litgations and compel further discovery. Regarding the fourth discovery. further and compel the various litgations § 15-2121. National Grid has not submitted any evidence on this motion in any evidence on this motion submitted § 15-2121. National Grid has not If [this Court] refuses to abstain, refuses Court] [this If Further, inconsistent disposition of litigation on two fronts. complex breed additional would between two concurrent forums these claims litigation and issue preclusion. This could on assertions of claim burden the parties for years to an concurrent proceedings creates the serious potential for spawning can resolve the unseemly and destructive race to see which forum issues first [which would be] prejudicial, to say the least, to the same by either forum. reasoned decisionmaking possibility of Colorado River AW L

consolidate . As in The Court notes that the first two that the first The Court notes Arkwright-Boston Mfrs Mut. Ins. Co. v. City of New York Mut. Ins. Co. v. Mfrs Arkwright-Boston Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 13 of 15 13 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case ONSERV support of the sixth factor suggesting that the stat support of the sixth factor suggesting proceedings. its rights in any of these 20 pending this case: C mechanical checklist, but on a careful balancing of the important factors as they apply in a given factors as of the important on a careful balancing checklist, but mechanical case.” factor, primary jurisdiction has clearly been jurisdiction has factor, primary factor, both state and federal law will govern In connection with the fifth constitutional claims. State and since they are raised under both the New York claims National Grid’s remaining interest to New York peculiar the Court notes that it is of United States constitutions. However, benefit corporation - should resolve operation and how the District - a New York public under a New York State statute N.Y. scheme of its outdated apportionment management There is no property or res at issue and the federal forum is not inconvenient. Insofar as the third is not inconvenient. forum or res at issue and the federal There is no property of the state court some litigation, the Court observes that of piecemeal factor, the avoidance Grid has has been underway and National pending since 2000, discovery actions have been to moved NAM ”), , 515 ., this Court is Moses H. Cone and Wilton v. Seven Falls Co. , 463 U.S. 545, 568 (1983)). , 463 U.S. Colorado River Analysis of the several factors here requires Analysis of the ercise of federal jurisdiction have sustained ercise of federal eclaratory Judgment Act, we believe, justify a eclaratory Judgment Id. 14 hensive disposition of litigation counsels a federal hensive disposition of litigation Plainly, avoidance of piecemeal litigation is best of piecemeal Plainly, avoidance Arkwright-Boston Mfrs. Mut. Ins Arkwright-Boston scretion in declaratory judgment actions than that scretion in declaratory judgment Arizona v. San Carlos Apache Tribe of Arizona v. San Carlos Apache Arizona Having found that abstention is appropriate under the “exceptional circumstances” Having found that abstention is appropriate Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 14 of 15 14 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case at 211 (citing at 211 (citing court that has concurrent jurisdiction with a state court to abstain from exercising its exercising with a state court to abstain from court that has concurrent jurisdiction jurisdiction.” 762 F.2d at 212. the Court finds alternatively that abstention is also standard set forth in Colorado River, lenient standard of review discussed in warranted under the more their burden of persuasion. As was the case in their burden of persuasion. prudent where those exceptional circumstances “persuaded that this litigation presents resources and compre of judicial administration features of the D U.S. 277, 286 (1995) (“Distinct greater di standard vesting district courts with test of the “exceptional circumstances” under permitted the third cause Act. Indeed, because this action is brought pursuant to the Declaratory Judgment equal protection seeks which asserts a denial of complaint, of action in National Grid’s amended fifth cause of action, while not titled as one seeking Persual of the a declaratory judgment. action which does seek a way as the third cause of is written in the same declaratory relief a “judgment” demands declaration. Moreover, in the wherefore clause, each of the paragraphs seeks various declaratory complaint declaring specific relief. In short, the entire amended Id. this Court to find that defendants opposing the ex this Court to find “Maintaining virtually identical suits in two forums under these circumstances would waste these circumstances under forums suits in two virtually identical “Maintaining and invite duplicative effort. judicial resources these suits in the state court.” served by leaving NAM , abstention is also , abstention Wilton ecision granting the District’s motion for ecision granting the District’s motion 15 ry (Dkt # 75) and the cross-motion to adjourn ry (Dkt # 75) and the cross-motion Based upon the foregoing, it is hereby Based upon the foregoing, (Dkt # 47) is filed by the District judgment for summary the motion ORDERED that are complaint of action in the amended the first, second and fourth causes ORDERED that exercising its jurisdiction in connection with the form ORDERED that the Court abstains d ORDERED that in view of the Court’s IT IS SO ORDERED. Date: 29, 2010 September Case 5:09-cv-00471-NAM-ATB Document 82 Filed 09/30/10 Page 15 of 15 15 of Page 09/30/10 Filed 82 Document 5:09-cv-00471-NAM-ATB Case warranted due to the indisputable existence of concurrent identical state court litigation. identical state court of concurrent existence due to the indisputable warranted IV. CONCLUSION and it is further GRANTED in part; prejudice in their entirety; and it is further with dismissed these claims and thereby dismisses complaint the amended third and fifth causes of action in without prejudice; and it is further without complaint of the amended the balance in part and dismissing judgment summary to stay discove prejudice, the District’s motion discovery (Dkt # 77) filed by National Grid are DENIED as moot. discovery (Dkt # 77) filed by National Syracuse, New York judgments. Thus, based on the more discretionary standard outlined in standard discretionary more based on the Thus, judgments. NAM