Case 48

Soucheray v. Corps of Engineers, 483 F. Supp. 352 (W.D. Wis. 1979).

Plaintiffs, landowners on the shores of Lake Superior, sought to compel the Army Corps of Engineers to lower the water level of Lake Superior. The Corps was the United States member of the Lake Superior Board of Control, which was created by the International Joint Commission that was established by the Boundary Waters Treaty of 1909 between the United States and Canada. The board, under supervision of the commission, controlled dams and compensating works that regulated the flow of water out of Lake Superior. Among other things, plaintiffs claimed that the Corps was violating the National Historic Preservation Act.

The court held that the actions taken in the regulation of Lake Superior outflow were actions taken under the authority and direction of the commission. By signing the treaty, the United States gave up any control over the diversion, obstruction, and use of the boundary waters. The increased water level could not be attributed to the United States. Any actions taken by the Corps' representatives were undertaken in their capacity as board or commission members and not as employees of the United States. The United States was not responsible for the conduct of these bodies in the regulation of Lake Superior.

The court therefore concluded that the Corps' representatives were immune from suit under 28 U.S.C. §§ 228a(1) and 228a(6), 483 F. Supp. at 355, and no relief was available on plaintiffs' statutory claims. Id. at 357.

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