dbeard@dominionpost.com
MORGANTOWN – Marina 1 LLC – Cheat Lake Marina – has modified its lawsuit seeking financial damages from Lake Lynn Generation for alleged harm that occurred during the summer drought, and is seeking to have the case returned from federal court back to circuit court.
Marina 1, a Biafora family company doing business as Cheat Lake Marina, filed suit Sept. 30, alleging that before the Labor Day weekend, Lake Lynn deliberately lowered the level of Cheat Lake below the 868-foot minimum in violation of its FERC license.
This caused various damages, including boaters who used its docks rather than other inaccessible docks without permission, causing damages to Cheat Lake Marina’s docks. And the low water level caused its docks to slowly pull away from their land mounts, “causing irreparable damage.”
Lake Lynn had the case moved from Monongalia County Circuit Court to the U.S. District Court for the Northern District of West Virginia on the basis that Lake Lynn’s dam operation is regulated by the Federal Energy Regulatory Commission and its actions were taken in compliance with its FERC license.
Marina 1 originally sought a temporary restraining order and preliminary injunction, along with $50,000 in damages. Last week it amended its complaint to drop the request for the restraining order and preliminary injunction from the case, but retain the counts of strict liability, negligence and breach of contract associated with the request for monetary damages.
With the complaint amended, Chief District Judge Thomas Kleeh last week denied lake Lynn’s motion to dismiss the case and canceled a Dec. 3 hearing in Clarksburg on Marina 1’s request for the temporary restraining order and preliminary injunction.
Just before Kleeh issued his order, Marina 1 took some time to respond to Lake Lynn’s defense of its position and expand on its own position.
Lake Lynn has maintained that it has to juggle three competing requirements under its Federal Energy Regulatory Commission license and chose to sacrifice one requirement – maintaining the lake level at a minimum 868 feet – to satisfy the other two: maintain a flow rate of 212 cubic feet per second (cfs) into the Cheat, with an absolute minimum of 100 cfs, and maintain dissolved oxygen at 5 milligrams per liter for the aquatic life.
Marina 1 alleges, “Lake Lynn ultimately chose the former to retaliate against Plaintiff’s outspoken public criticism of Lake Lynn’s application and failure to maintain and care for Cheat Lake.”
Lake Lynn requested from FERC and then dropped the request for a temporary variance to the lake level requirement. Marina 1 alleges that Lake Lynn knew the drought would end before FERC could respond, deliberately wasting time.
“Drought-like conditions did not create an emergency for Lake Lynn,” Marina 1 said. “Its claim of an emergency is simply a sham to post hoc justify its actions of lowering the water level of Cheat Lake in violation of its FERC license. … Regardless of which [FERC requirement] it chooses to prioritize, it must be held responsible for the damage that results from the violation of the other.”
In moving to return the case to circuit court, Marina 1 argues that while Lake Lynn violated its FERC license by wrongly lowering the lake level, this issue isn’t a federal matter.
Marina 1 argues that the allegations of liability, negligence and breach of contract are matters of state law. Marina 1 is not in any way challenging Lake Lynn’s FERC license, it is only seeking compensation for property damage. “A violation of a FERC license is not a violation of federal law, as a FERC license itself is not federal law.”
Also, Marina 1 argues, while it and the defendant are based in separate states – Marina 1 in West Virginia, Lake Lynn in Delaware – the case doesn’t meet the $75,000 threshold to qualify for federal jurisdiction. Marina 1 is seeking only $50,000.
