RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 23a0223p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ DANIEL ALLEN; CATHLEEN ALLEN, │ Plaintiffs-Appellants, │ > No. 22-1590 │ v. │ │ UNITED STATES OF AMERICA, │ Defendant-Appellee. │ ┘ Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:21-cv-10449—Thomas L. Ludington, District Judge. Argued: June 13, 2023 Decided and Filed: October 3, 2023 Before: WHITE, THAPAR, and NALBANDIAN, Circuit Judges. _________________ COUNSEL ARGUED: Kevin M. Carlson, PITT, MCGEHEE, PALMER, BONANNI & RIVERS P.C., Royal Oak, Michigan, for Appellants. Zak Toomey, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Kevin M. Carlson, Beth M. Rivers, Michael L. Pitt, PITT, MCGEHEE, PALMER, BONANNI & RIVERS P.C., Royal Oak, Michigan, for Appellants. Zak Toomey, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. The court delivered a PER CURIAM opinion. THAPAR, J. (pp. 15–17), delivered a separate concurring opinion. No. 22-1590 Allen v. United States Page 2 _________________ OPINION _________________ PER CURIAM. When Michigan’s Edenville Dam collapsed, it caused disastrous flooding. Daniel and Cathleen Allen lived downstream, and their home was among those destroyed. The Allens sued, alleging that the United States negligently entrusted operation of the Dam to an unfit operator. The district court dismissed the case for lack of subject-matter jurisdiction, holding that the government was entitled to sovereign immunity. We affirm. I. The Edenville Dam was located north of Midland, Michigan. Built in 1924, it stood for nearly a century. Its two earthen embankments spanned the Tittabawassee and Tobacco Rivers, forming a 2,600-acre reservoir called Wixom Lake.1 For many decades, the Dam operated unlicensed. Then, in 1998, the Federal Energy Regulatory Commission (“FERC”) issued a license to the Wolverine Power Corporation (“Wolverine”) to operate the Edenville Dam. See Wolverine Power Corp., 85 FERC ¶ 61,063 (1998), 1998 WL 721604, at *1, *18. A year later, FERC directed Wolverine to increase the Edenville Dam’s spillway capacity.2 Boyce Hydro Power, LLC, 164 FERC ¶ 61,178 (2018), 2018 WL 4350809, at *2. But Wolverine soon became insolvent. So in 2003, Synex Michigan, LLC, purchased Wolverine’s license to operate the Dam. And just a few years later, Synex became Boyce Hydro Power, LLC (“Boyce”). Once Boyce took over, it promised to increase spillway capacity. But it failed to deliver on that promise. Id. at *4. Further, Boyce committed numerous other regulatory violations, 1Because this is an appeal of a dismissal order, we take as true the facts alleged in the complaint. See Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). 2A spillway is “a passageway through which surplus water escapes” from a dam. Spillway, Dictionary.com, https://www.dictionary.com/browse/spillway (last visited May 31, 2023). No. 22-1590 Allen v. United States Page 3 including conducting unauthorized repairs, dredging, and land-clearing; failing to file a public- safety plan; failing to construct proper recreation facilities; and failing to properly monitor water quality. Id. at *2–5. So in September 2018, FERC …
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