Biafora suit against Lake Lynn Generation moved to federal court; Lake Lynn seeks dismissal

Nov. 13—dbeard MORGANTOWN — Lake Lynn Generation successfully moved a lawsuit filed against it by the Biafora family business Marina 1 LLC from Monongalia County Circuit Court to federal court, and is now arguing that the case should be dismissed.

Marina 1, doing business as Cheat Lake Marina, filed suit Sept. 30, alleges 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.

The lake level is back up, "However, the damage has already been done." This includes 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."

The company alleged, "Cheat Lake Marina has, and will continue to suffer, irreparable injury if the defendants are allowed to continually lower the water level of Cheat Lake in violation of their FERC permit. Conversely, the defendants will not be significantly impaired by this court forbidding them from doing such."

Marina 1 is seeking an injunction and temporary restraining order to prevent Lake Lynn Generation from using its dam to lower the lake level. Lake Lynn Generation and its sister company, Eagle Creek Hydro Operations, are the defendants.

Lake Lynn on Nov. 1 filed notice that the case was moved 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.

Late last week, Lake Lynn filed its motion to dismiss and offered a number of reasons to support its request.

One is that Marina 1 is asking Lake Lynn to do the impossible: maintain the lake at a suitable level for commercial interests during a drought while simultaneously balancing competing FERC license mandates. Lake Lynn must maintain a level of 868-870 feet from May-October ; 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.

(During the drought, Lake Lynn submitted and later withdrew a request for a temporary variance to the minimum lake level of 868 feet in order to increase spillway discharge to address potentially low dissolved oxygen levels.)

Lake Lynn told the federal court, "Plaintiff recognizes that Lake Lynn was faced with an impossible scenario in having to maintain the lake's water level while simultaneously utilizing the water in the lake to feed the downstream environment in the Cheat River. ... While recognizing the impossibility of this situation, Plaintiff filed this lawsuit. ... To have it Plaintiff's way, the Cheat River downstream of the Lake Lynn dam can be completely drained and dried—with all dissolved oxygen cut off to the aquatic habitat—so long as Plaintiff's commercial enterprise is unharmed."

Two, Lake Lynn views the suit as an attack on its FERC license, and any challenge to the license must first go through a FERC administrative process and then to federal appeals court — not district court, which has no jurisdiction.

And three, since the drought has passed and the lake level is back where it should be, Marina 1 can't demonstrate irreparable harm. Speculating about the future is just that: speculation. "Any further harm is unlikely to occur."

Lake Lynn several times accuses Marina 1 of acting in self-interest. "Plaintiff incorrectly asserts that Lake Lynn's paramount obligation is to the recreational users of Cheat Lake as opposed to the downstream aquatic environments and habitats that are protected by virtue of the FERC license.

It continues, "Plaintiff alleges that the maintenance of a suitable water level for the recreational and commercial use of Cheat Lake (to the benefit of commercial entities like itself) must be given priority over the literal life-or-death consequences of shutting off outflow into the downstream environs of the Cheat River."

Chief District Judge Thomas Kleeh has set a Dec. 3 motions hearing in Clarksburg on Marina 1's request for the temporary restraining order and preliminary injunction.