ation d/b/a National Grid, is a former arily plaintiff’s claims against the Hudson arily plaintiff’s claims Plaintiff, Defendants. MEMORANDUM DECISION AND ORDER NYS Department of

Plaintiff, Niagara Mohawk Power Corpor vs. 5:09-CV-00471 vs. Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 1 of 13 1 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case hydroelectric power generating company which now merely transmits and distributes energy transmits which now merely hydroelectric power generating company River, and resources, but still owns various real estate parcels along the Hudson Black River Basins. This case involves prim I. INTRODUCTION Norman A. Mordue, Chief U.S. District Judge: UNITED STATES DISTRICT COURT DISTRICT STATES UNITED NEW YORK DISTRICT OF NORTHERN ______CORPORATION, MOHAWK POWER NIAGARA GRID, d/b/a NATIONAL Environmental Conservation -BLACK RIVER REGULATING HUDSON RIVER-BLACK YORK STATE DEPARTMENT DISTRICT and NEW CONSERVATION, OF ENVIRONMENTAL ______APPEARANCES:Hiscock & Barclay, L.L.P.50 Beaver Street Albany, New York 12207-2830 Attorney for Plaintiff Crane, Parente & Cherubin Regulating District 90 State Street, Suite 1515 Albany, New York 12207 River Attorney for Defendant Hudson River-Black Andrew M. CuomoAttorney of the State of New York General The Capitol Mark D. Lansing, Esq. OF COUNSEL: Albany, New York 12224 Attorney for Defendant David M. Cherubin, Esq. Assistant Attorney General J. Quackenbush, Esq. Charles NAM inter . The 1 NVTL E

§§ 15-2103(1), N.Y. AW , builds and operate L

. See ONSERV inter alia C

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§§ 15-2137, 15-2139, 15-2141. rict is a New York public benefit corporation rict is a New York public benefit AW N.Y.

L atutorily defined beneficiaries to finance the atutorily defined beneficiaries to

rict”) a New York state agency that regulates agency York state a New rict”) . 2 w York State Department of Environmental w York State Department ow of the Hudson and Black Rivers “as required ow of the Hudson and Black Rivers ONSERV C

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N.Y. See §§ 15-2103(1), 15-2109, 15-2111, 15-2123, 15-2125, 15-2129, 15-2133. The §§ 15-2103(1), 15-2109, 15-2111, 15-2123, 15-2125, 15-2129, 15-2133. AW L

. 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 Briefly, the relevant facts are these: The Dist Briefly, the relevant facts are these: 1 Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 2 of 13 2 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case , the Conklingville Dam and its related body of water, . Niagara Great Sacandaga related body of water, and its Dam , the Conklingville ONSERV 15-2139(2). In furtherance of this statutory directive, the District, 15-2139(2). In furtherance of this is its ownership and focal point of the District’s operation in the Hudson River watershed and its related body of water, the Sacandaga Reservoir, now operation of the Conklingville Dam known as Great Sacandaga Lake. water flow in the basins of the Hudson, Sacandaga, Black and Beaver Rivers and operates, and operates, and Beaver Rivers Black of the Hudson, Sacandaga, in the basins water flow alia benefit” and apportioning “headwater that the District has been assessing Mohawk asserts conservation law in state environmental utility pursuant to New York charges to the public before the Court is Niagara Mohawk’s doctrine. Presently preemption violation of the federal and the Ne injunction a preliminary for motion to dismiss. motion Conservation’s (“DEC’s) II. BACKGROUND RELEVANT FACTUAL AND PROCEDURAL River and Black River the then-existing Hudson combined created in 1959 by legislation that Regulating Districts. costs on st reservoirs, issues bonds and apportions and operation of its river regulating reservoirs. construction, maintenance C River-Black River Regulating District, (“the Dist (“the District, River Regulating River-Black District’s statutory mission is to regulate the fl District’s statutory mission and safety.” by the public welfare including health was originally formed in 1919. was originally formed NAM . NVTL E

N.Y. See The District issues annual 2 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 § 15-2121, the District (and its predecessor) is its predecessor) (and the District § 15-2121, 3 agara Mohawk owned and operated hydroelectric AW ate-owned lands in and and 3) ate-owned around Lake; Great Sacandaga L AW

pportionment for the Hudson River Area attributes for the Hudson River pportionment . L

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. 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

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therefore derive, or potentially derive, the benefit of increased water power or potentially derive, the benefit therefore 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. Pursuant 2 Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 3 of 13 3 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case ONSERV C and assessment was rendered by the District, Ni was rendered by the and assessment has since divested all of its power plant power plants along the Hudson River, the company to own various parcels of operations. Niagara Mohawk’s successor, National Grid, continues 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 of the project's 95% approximately fiscal year. The on July 1st of each year, covering the July 1st - June 30th assessments of the District’s budget on “statutory beneficiaries” in proportion allocate a portion assessments of Cost. original 1925 Apportionment to their percentages set forth in the 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 The District's adoption in 1925. required to apportion the cost of its capital, operation and maintenance costs for the facilities and costs for maintenance operation and cost of its capital, to apportion the required that are all owners of property charged to an annual assessment it owns through property by its services. benefitted 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 inter § 15-2121. AW L

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District’s practice of allocating 95% of its District’s practice projects which benefitted from its services and from projects which benefitted r, FERC approved the Offer of Settlement. To r, FERC approved the Offer of Settlement. 4 have evolved” since 1925 “which arguably call have evolved” since 1925 “which considers to be “developable” hydroelectric be “developable” to considers recreation, hydroelectric power generation, waste recreation, hydroelectric power generation, In September 2002, as part of obtaining a required license from the Federal Energy 2002, as part of obtaining a required license from In September National Grid alleges that notwithstanding the National Grid alleges Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 4 of 13 4 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case , an agreement by the District to conduct a reapportionment to update its assessment to by the District to conduct a reapportionment , an agreement assimilation, whitewater recreation, navigation and lakeshore properties) by which the District’s whitewater recreation, navigation and lakeshore properties) by assimilation, apportioned. annual budget could or should be and Great the Conklingville Dam the operation of (“FERC”) for Regulatory Commission Niagara Mohawk, with DEC, Settlement of Sacandaga Lake, the District entered into an Offer businesses and property owners which included, other interested agencies, and numerous alia Concurrent with the licensing orde methodology. effort. reapportionment or even begun the agreed date, the District has not completed for the District to revise its apportionment.” Indeed, the District retained a consulting firm, for the District to revise its apportionment.” River flow regulation an independent Hudson 1999 to perform & Sullivan, in September Gomez 2003, that there are seven categories of economically study which revealed finally in July benefits (flood protection, lake determinable As stated rather succinctly by counsel for DEC in the agency’s motion papers, it seems for DEC in the agency’s motion As stated rather succinctly by counsel “circumstances undisputed at the very least that, land along the Hudson River which the District District which the River Hudson along the land generation sites. These sites are assessed by the District under its original 1925 apportionment under its original by the District are assessed sites. These sites generation method. the hydroelectric of Cost to annual Apportionment time had advised the District over various studies and consultants the other 5% to municipalities, and Great Sacandaga parcels along the Hudson River unassessed, but benefitted that numerous required by N.Y. the apportionments Lake were not paying NAM affecting interfere with the laws of the with the laws of interfere arges to be paid by any licensee the District’s assessment and apportionment the District’s assessment tion or for municipal or other uses, tion or for municipal 5 provides the exclusive means by which the by which provides the exclusive means ly controlling “irrigation” or “municipal” water ly controlling “irrigation” or “municipal” shall be determined by the Commission. . . . by the Commission. shall be determined or Nothing contained in this chapter shall be construed as affecting intending to affect or in any way to f) Reimbursement by licensee of other licensees, etc. f) Reimbursement That whenever is directly benefited by the any licensee hereunder or of the a permittee, construction work of another licensee, United the other headwater improvement, States of a storage reservoir or condition of the license that the Commission shall require as a licensee so benefitedsuch reservoir or the owner of shall reimburse interest, the annual charges for such part of for other improvements deem may and depreciation thereon as the Commission maintenance, ch equitable. The proportion of such respective control, appropriation, use, or States relating to the distribution of water used in irriga or any vested right acquired therein. National Grid timely grieved and challenged judicially the apportionments and apportionments the judicially and challenged grieved timely Grid National Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 5 of 13 5 of Page 09/16/09 Filed 29 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 use and irrigation: of municipal federally licensed power projects to matters assessments assigned to it by the District for fiscal years 2000-01 through 2008-09 related to real 2008-09 related through fiscal years 2000-01 by the District for assigned to it assessments These state judicial River Basins. and Sacandaga the Hudson River it owns along estate parcels In June 2006, Albany Engineering proceedings are still pending. and/or administrative and operator of the Mechanicville licensee in its capacity as owner Corporation, a FERC that pursuant to with FERC contending complaint filed an administrative Hydroelectric Project, to assess as the District lack authority Act (“FPA”), state agencies such the Federal Power Specifically, Dam. provided by the Conklingville benefits the regulating for Albany Engineering FPA § 10(f) Albany Engineering contended that its water of beneficiaries by FERC can assess charges to downstream licensed a facility owner of § 10(f) provides as follows: regulating operations. To wit, FPA 16 U.S.C. § 821. Albany Engineering charged that of laws mere clearly outside the realm scheme, NAM at 1079 Id. arges for its operational costs. On appeal, the arges for its operational costs. On ith Albany Engineering’s contention that the ith Albany Engineering’s contention sed by FERC or “parcels that are or would be oval from FERC. However, FERC ruled that FERC. However, oval from 6 not address Albany Engineering’s claim that FERC claim not address Albany Engineering’s state headwater benefits assessments.” state headwater benefits assessments.” all Albany Eng’g Corp. v. Fed. Energy Regulatory Albany Eng’g Corp. v. Fed. Energy § 15-2121 well in excess of the cost of “interest, maintenance and maintenance of the cost of “interest, well in excess § 15-2121 AW The company asserts that the District is preempted from apportioning from asserts that the District is preempted The company L

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. , 548 F. 3d 1070, 1076-77 (D.C. Cir. 2008). Indeed, the Circuit court held that FPA , 548 F. 3d 1070, 1076-77 (D.C. FERC agreed that pursuant to the FPA, the District was required to obtain approval of the was required to obtain approval pursuant to the FPA, the District FERC agreed that the D.C. Circuit’s decision on the basis of present action primarily the National Grid filed NVTL E

Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 6 of 13 6 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case Albany Engineering. depreciation” authorized by the FPA. depreciation” authorized and depreciation others for interest, maintenance to Albany Engineering and charges apportioned obtaining appr without Dam of the Conklingville charges for interest, only to the extent the state seeks to impose state law Section 10(f) preempts and depreciation. FERC disagreed w maintenance ch assessing additional District was prohibited from Comm’n be understood to “preempt[] §10(f) must in original). The D.C. Circuit did (emphasis of federal it had collected in violation had the power to order the District to refund assessments for FERC to resolve on remand. law. Rather, the panel left the issue of an appropriate remedy of Albany Engineering’s in the matter FERC has not yet issued a final determination complaint. administrative in and assessing costs to hydroelectric projects licen use, violated the FPA in two ways- first, the District’s annual assessments were not determined assessments the District’s annual two ways- first, the FPA in use, violated operations under charges for its District was imposing and second, the to be “equitable” by FERC N.Y. D.C. Circuit reversed FERC’s administrative determination, holding that federal law preempts holding that federal determination, D.C. Circuit reversed FERC’s administrative hydropower plants that receive "headwater downstream from exacting compensation states from operators. dam upstream benefits" from NAM ’s annual assessments based on its eighty- ’s annual assessments iled an emergency motion seeking a preliminary motion iled an emergency 7 expedited, but nevertheless sufficient briefing e preempted by the FPA. Finally, in its fifth cause by the FPA. Finally, in its fifth e preempted characterizes such parcels as purportedly such parcels characterizes On April 30, 2009, prior to issuance of the District’s three year budget for fiscal years On April 30, 2009, prior to issuance Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 7 of 13 7 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case year old Apportionment of Cost, National Grid f of Cost, National Grid year old Apportionment was filed as an Order to Show Cause seeking a temporary injunction. Although the motion between the parties as restraining order, the Court did not view the long-standing circumstances Thus, the Court ordered a somewhat emergent. in opposition to the schedule concerning the requested relief. The District has filed papers application for preliminary DEC essentially takes no position on National Grid’s motion. the against the District. DEC opposes injunctive relief insofar as it pertains to the claims to relate even tangentially to the agency. DEC be deemed injunction only as it may preliminary of action, National Grid claims the assessments and the apportionment methodology used by the methodology and the apportionment the assessments of action, National Grid claims taking under both the federal and New York State District constitutes an unconstitutional constitutions. contained the District 2009-10 through 2011-12, which ‘developable hydroelectric sites.’” The complaint alleges five causes of action. The first seeks a The first seeks five causes of action. alleges sites.’” The complaint hydroelectric ‘developable its “illegal of continued application District from to preclude the injunction preliminary of a judgment in the form requests declaratory relief The second [m]ethodology.” [a]ssessment doctrine. on the federal preemption based assessments to make the District’s authority limiting and that the District’s apportionment judgment action also seeks a declaratory The third cause of violates the Equal with the FPA to comply its alleged failure together with scheme, assessment National Grid’s property insofar as it treats Amendment Protection clause of the Fourteenth action seeks a declaration situated parcels. The fourth cause of other similarly differently from rules ar final system that the District’s permit subject to FERC’s oversight as the District FERC’s oversight subject to NAM . NVTL E

must meet the See Tom Doherty , 949 F. 2d 624, 626 status quo ., 903 F.2d 904, 907 (2d Cir. 1990). , 878 F.2d 577, 580 (2d Cir. 1989). , 878 F.2d 577, 580 (2d Cir. 1989). at 33-34. In this case, National Grid is asking 8 Id. Resolution Trust Corp. v. Elman ., 60 F.3d 27, 34 (2d Cir. 1995). Further, the heightened by commanding some positive act, he must meet a heightened standard of meet positive act, he must some by commanding See Reuters Ltd. v. United Press Intern., Inc See Reuters Ltd. v. United Press , 949 F. 2d at 626. Where, however, a movant seeks a mandatory injunction to seeks a mandatory however, a movant , 949 F. 2d at 626. Where, § 15-2121 and/or to discard its current apportionment method and conduct a method § 15-2121 and/or to discard its current apportionment accord Plaza Health Lab., Inc. v. Perales accord Plaza Health Lab., Inc. v. AW L

. status quo A party seeking a preliminary injunction "must demonstrate (1) irreparable harm should (1) irreparable harm demonstrate injunction "must a preliminary A party seeking the seeking a prohibitory injunction to maintain A movant Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 8 of 13 8 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case ONSERV C the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) likelihood of success on the merits, be granted, and (2) either (a) a the injunction not a balance of hardships tipping decidedly and questions going to the merits sufficiently serious relief." toward the party seeking injunctive (2d Cir. 1991); prerequisite for the issuance of important is the single most of irreparable harm The requirement injunctive relief. serious or sufficiently of showing a likelihood of success on the merits requirement familiar favor. of hardships tipping decidedly in movant's and a balance questions going to the merits Resolution Trust alter the a likelihood of success by a "clear" or "substantial" showing. demonstrating Assocs., Inc. v. Saban Entertainment, Inc has also filed a cross-motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The Court will first The Court R. Civ. P. 12(b)(6). pursuant to Fed. to dismiss a cross-motion filed has also injunction. preliminary application for a National Grid’s address III. DISCUSSION A. Applicable Legal Standard standard applies whenever "an injunction – whether or not mandatory – will provide the movant standard applies whenever "an injunction – whether or not mandatory with substantially all the relief that is sought." the District to cease assessing costs as it has done for over eighty years pursuant to N.Y. the District to cease assessing costs as it has done for over eighty NAM , of other licensee , thus triggering National , thus triggering status quo National Grid argues that it should “[P]erhaps [a] more accurate description of accurate description “[P]erhaps [a] more Id. 9 Brenntag Intern. Chems., Inc. v. Bank of India Brenntag Intern. and compensated, the likelihood of such injury and compensated, d.” Assuming the truth of National Grid’s National the truth of d.” Assuming e title of § 10(f) is “Reimbursement by e title of § 10(f) is “Reimbursement in presenting its preemption claims herein, National Grid is not identically or claims in presenting its preemption The heart of National Grid’s complaint in this case is a dispute over the fact or amount of or amount over the fact this case is a dispute in complaint of National Grid’s The heart Although National Grid relies heavily, if not primarily, on the D.C. Circuit’s holding in Although National Grid relies heavily, if not primarily, Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 9 of 13 9 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case Grid’s obligation to demonstrate substantial likelihood of success on the merits. merits. of success on the likelihood substantial to demonstrate Grid’s obligation paid. for the refund of past assessments by the District and a demand collected future assessments injury can be estimated “[B]ecause monetary constitute irreparable harm.” usually does not (2d Cir. 1999) (citations omitted). 175 F.3d 245, 249 equitable the grant of where, but for is that that constitute irreparable harm the circumstances that upon final resolution of the action the parties cannot be relief, there is a substantial chance occupied.” returned to the positions they previously reapportionment. Clearly these actions would disrupt the these actions would Clearly reapportionment. even similarly situated to Albany Engineering insofar as application or relevance of the FPA. situated to Albany Engineering even similarly applies only to “licensed” or “unlicensed” by its title and terms, FPA § 10(f), Quite simply, hydroelectric power projects. Indeed, th prevail on the question whether irreparable harm will inure to it absent the issuance of a of will inure to it absent the issuance harm prevail on the question whether irreparable injury results when injunction because it is well-settled that “irreparable preliminary are violate constitutional and statutory rights that alleged possible violation of its and about money contention that this case is not just the point is moot to constitute irreparable harm, is sufficient constitutional rights in this case a juncture - satisfy the initial burden of demonstrating since National Grid cannot - at this of its claims. substantial likelihood of success on the merits B. Doctrine Application of FPA § 10(f) and Federal Preemption Albany Engineering NAM the 3 Albany along the Hudson along the power projects, unlicensed property owners owners property under license is benefitted by the construction work ojects, “National Grid is a co-licensee for the ojects, “National Grid is a co-licensee sts to other FERC licensees, such as Albany sts to other FERC l merely held that the District was prohibited held that the District was l merely e and equitable annual charge to be paid to the licensee or wever, National Grid’s counsel does not state wever, National Grid’s counsel does thereof, the Commission, after notice to the owner or owners thereof, the Commission, dded). The D.C. Circuit did not hold in D.C. Circuit dded). The lectric project downstream of the Conklingville lectric project downstream 10 that the District, a FERC licensed operator of the Conklingville Dam, was Dam, the Conklingville of licensed operator District, a FERC that the , etc..” 16 U.S.C. § 803(f) (emphasis a (emphasis U.S.C. § 803(f) , etc..” 16 FPA § 10(f) provides: Whenever any power project not National Grid offers contrary statements - but no evidence - concerning its stature as a National Grid offers contrary statements 3 Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 10 of 13 10 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case FPA, by its very title, applies only to hydroelectric power facilities, and not to “developable FPA, by its very title, applies only to hydroelectric power facilities, complaint. hydroelectric projects” or “FERC assessees” as referenced in the Engineering Engineering from collecting assessments FPA from by the preempted owner and operator of a hydroe Engineering, an licensees under federal law from apportioning its operation co from under federal law Dam. National Grid’s counsel asserted in a papers, initial moving FERC licensee in this case. In its to the District’s is “not a FERC licensee.” In reply of law that the company memorandum counsel avers that regardless of the question whether FPA § opposition papers, National Grid’s power pr 10(f) applies only to licensed hydroelectric River and Great Sacandaga Lake. Rather, the pane River and Great Projects.” Ho Hudson Falls and South Glens Falls nor does he provide evidence or details of of this averment the source of his personal knowledge Grid does not provide information Moreover, National the alleged co-licensing agreement. between: 1) these power projects and the Conklingville Dam; concerning the connection, if any, and the District’s apportionment and 2) National Grid’s alleged co-licensure of these projects and it is true that FPA also applies to While scheme. assessment of a licensee or permittee, the United States or any agency the permittee, or of a licensee and fix a reasonabl of such unlicensed project, shall determine on account of such benefits, or to the Unitedpermittee 16 States if it be the owner of such headwater improvement. U.S.C. § 803(f). NAM 16 U.S.C. King v. See First Iowa 69 F.3d 669, See Grandon v. Merrill , 328 U.S. 152 (1946), which interpreted , 328 U.S. 152 (1946), . ppear to contemplate the FPA or interfere with ppear to contemplate facts in support of his claim which would facts in support of his claim Gant v. Wallingford Bd. of Educ., 11 poses of irrigation or municipal use. use. or municipal poses of irrigation 241 F.3d 186, 191 (2d Cir. 2001) (quotation omitted). 241 F.3d 186, 191 (2d Cir. 2001) (quotation omitted). Albany Engineering Nettis v. Levitt, 147 F.3d 184, 188 (2d Cir. 1998); Applicable Standard of Review to dismiss well-settled. On a motion are to dismiss The standard applicable to motions The complaint also alleges that most, if not all, of the District’s directives and operations directives and all, of the District’s if not that most, also alleges The complaint Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 11 of 13 11 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case Therefore, the issue before the Court on such a motion "is not whether a plaintiff will ultimately "is not whether a plaintiff the Court on such a motion the issue before Therefore, is entitled to offer evidence to support the claims." prevail but whether the claimant 673 (2d Cir. 1995). In addition, the Court may not dismiss the complaint unless "it appears the complaint not dismiss 673 (2d Cir. 1995). In addition, the Court may beyond doubt that the plaintiff can prove no set of to relief." entitle him § 821. The Court, however, is not persuaded that the Supreme Court’s decision in Court’s decision the Supreme however, is not persuaded that § 821. The Court, v. Fed. Energy Regulatory Comm’n Hydro-Elec. Co-op. by National be read as broadly as suggested clause” for the states, should the FPA’s “savings to mere as applied methodology, and apportionment the District’s assessment Grid. After all, Grid, does not a property owners such as National or all functions whether the FPA should be read to preempt the jurisdiction of FERC. Moreover, question quite use is a legal irrigation and municipal areas of the District outside the activities of holding of the limited apart from C. Motion to Dismiss as accept the allegations of the complaint the Court must pursuant to Fed. R. Civ. P. 12(b)(6), party. in favor of the nonmoving true, and draw all reasonable inferences Lynch & Co., are preempted by the FPA which - according to National Grid - reserves to the states only the the states only - reserves to to National Grid which - according by the FPA are preempted navigable waterways for pur power to regulate NAM 56 plaintiff states no legally viable claim plaintiff states no Villager Pond, Inc. v. Town of Darien, Pond, Inc. v. Town Villager ght in connection with the District’s budget and 12 plaintiff cites no authority suggesting that DEC from the District regarding its operations.” the District from ct and DEC, by signing the Offer of Settlement ct and DEC, by signing the Offer pportionment scheme. The second, third and fifth scheme. pportionment te and distinct public authority. Although it is make a good faith effort to effectuate a make 189 F.3d 284, 287 (2d Cir. 1999) (quoting 1999) (quoting 284, 287 (2d Cir. 189 F.3d DEC has moved to dismiss on the ground that on the ground to dismiss DEC has moved are based on the alleged none of which the complaint, There are five causes of action in Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 12 of 13 12 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case undisputed that DEC has the authority to approve any plan for reapportionment submitted by the submitted undisputed that DEC has the authority to approve any plan for reapportionment Further, District, none has yet been submitted. obvious that a Moreover, while it is patently has the power to order or force a reapportionment. Second, National Grid contends that the Distri Second, National Grid contends of the original a reapportionment” to complete themselves before FERC in April 2000, “obligated Third, National Grid apportionment. on which the District bases its current 1925 assessment “failed to argues that the District and DEC regulatory functions, the District is a separa F.3d 375, 378 (2d Cir. 1995)). 378 (2d Cir. 1995)). F.3d 375, First, National in three places in the complaint. agrees. DEC is referenced against it. The Court by recommended approve all apportionments DEC is “required to review and Grid asserts that by the and approve all proposed regulations collection of its budgets, review the District for the and review annual reports District and receive reapportionment.” injunction against continued first seeks a preliminary actions or inactions of DEC. The and a application of the District’s assessment and/or unconstitutional against the alleged unlawful relief action request declaratory causes of The fourth claim methodology. and apportionment actions of the District and its assessment by the FPA. It appears is also illegal and preempted system asserts that the District’s permitting oversi undisputed that while DEC exercises some Simpson, NAM tiff’s claims is GRANTED and plaintiff’s is GRANTED tiff’s claims y injunction is DENIED; and it is further y injunction is DENIED; and it is way of signing the Offer of Settlement, there is Offer of Settlement, way of signing the 13 Based upon the foregoing, it is hereby Based upon the foregoing, it is hereby a preliminar for motion ORDERED plaintiff’s plain to dismiss ORDERED that DEC’s motion IT IS SO ORDERED. Date: 16, 2009 September Case 5:09-cv-00471-NAM-ATB Document 29 Filed 09/16/09 Page 13 of 13 13 of Page 09/16/09 Filed 29 Document 5:09-cv-00471-NAM-ATB Case no claim for breach of the agency’s alleged legal or contractual duties in the complaint. Because or contractual duties in the complaint. of the agency’s alleged legal for breach no claim DEC and the alleged actions or inactions of or factual connection between the there is no legal claims of the dismissal the Court finds and/or relief as set forth in the complaint, causes of action at this time. against DEC appropriate IV. CONCLUSION against DEC are dismissed. claims Syracuse, New York reapportionment by the District is required and/or necessary, the complaint does not seek the complaint and/or necessary, District is required by the reapportionment or could itself to conduct DEC obligated Even assuming an avenue of relief. as reapportionment by to conduct a reapportionment force the District NAM