JAMES T. LICHOULAS, JR., Individually v. City of Lowell

United States Court of Appeals
For the First Circuit
Nos. 08-1485, 08-2023
JAMES T. LICHOULAS, JR.,
Individually and as Trustee of the Appleton Trust,
the Appleton Mill No. 5 Parking Trust,
the Appleton Mill No. 5 Realty Trust,
and the Parcel 291 Realty Trust,
Plaintiff, Appellant,
v.
CITY OF LOWELL,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Brian A. Davis with whom Laurence D. Pierce and Choate Hall &
Stewart LLP were on brief for appellant.
Christine P. O'Connor, City Solicitor, City of Lowell, Law
Department, for appellee.
January 30, 2009

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Because the district court granted a motion to dismiss, we 1
assume the truth of the allegations of the complaint, Beddall v.
State Street Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998), and
take judicial notice of the related FERC proceedings. Town of
Norwood v. New England Power Co., 202 F.3d 408, 412 n.1 (1st Cir.
2000).
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BOUDIN, Circuit Judge. James T. Lichoulas, Jr. owns or
serves as trustee for five parcels of land (collectively, "the
Appleton Properties") that were taken by eminent domain by the City
of Lowell, Massachusetts. Located on the properties is a
hydroelectric power facility that was designed to generate
electricity from the flow of water between the Pawtucket and
Hamilton Canals. Although the facility is inactive, its existence
is the occasion for Lichoulas' federal law suit. The background
events are easily summarized.1
The Federal Energy Regulatory Commission ("FERC") granted
a license on July 18, 1986, to operate a hydroelectric power
project ("the Project") on the Appleton Properties. In 1994 the
facility ceased to operate, save perhaps for a short period of time
in 2002. On September 23, 2004, FERC concluded an exchange of
letters with Lichoulas by stating that it deemed the project
abandoned and that Lichoulas' license would be terminated unless
the project returned to operating condition. See 18 C.F.R. § 6.4
(2008) ("[i]f any licensee . . . shall abandon, or shall
discontinue good faith operation of the project for a period of

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three years, the Commission will deem it to be the intent of the
licensee to surrender the license....").
Lichoulas replied two months later that repairs on the
project had been delayed by asbestos removal, but that he intended
to develop a work plan by March of 2005, which he would forward to
the Commission. The plan was never sent. On April 25, 2006, the
City took the Appleton Properties by eminent domain under state law
as part of an urban redevelopment project, thereafter informing
FERC of its actions. FERC in turn began proceedings to terminate
Lichoulas' license.
Lichoulas then filed the present law suit in federal
district court, challenging the legality of the taking and asking
that it be enjoined; his main theory was that section 807(a) of the
Federal Power Act, 16 U.S.C. § 807(a)(2006), precluded the city
from taking over a licensed hydroelectric facility unless it
planned to "maintain, and operate" the facility. He also made a
claim seeking just compensation for the taking.
Lowell moved to dismiss, urging that section 807(a)
conferred no private right of action and, in the alternative, the
statute by its terms only applies to hydroelectric projects that
were "serviceable in the development, transmission or distribution
of power . . . ." 16 U.S.C. § 807(a). Without ruling definitively
on these objections, the district court dismissed the complaint

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By a separate complaint, Lichoulas sought a memorandum of lis 2
pendens--a notice for public records that title to property is in
litigation--which the district court denied and from which he has
also appealed. We consolidated the two appeals for review.
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pending the conclusion of the FERC proceedings and declined to
consider the request for compensation.
Lichoulas has appealed from the district court's
dismissal. Since the district court's dismissal, FERC has entered 2
an order terminating the license, Order Terminating License By
Implied Surrender, 124 FERC ¶ 61,255 (Sept. 18, 2008), reh'g
denied, 125 FERC ¶ 61,195 (Nov. 20, 2008) (Lichoulas has said that
he plans to seek review of the termination). He offers several
objections to the district court's ruling, which we address after
considering sua sponte a possible appellate jurisdictional issue.
The district court's decision did not determine the
merits and said that Lichoulas may refile the action "after the
conclusion of the FERC proceedings." In certain cases, dismissals
without prejudice with leave to amend are viewed as nonappealable
because of the "final judgment" requirement. 28 U.S.C. § 1291
(2006), e.g., North Carolina Nat'l Bank v. Montilla, 600 F.2d 333,
334-35 (1st Cir. 1979).
However, such cases generally involve easily remediable
defects, see generally 15A Wright, Miller, & Cooper Federal
Practice & Procedure, § 3914.6 at 145 n.18 (2d ed. Supp. 2000), and
a closer analogy to this case is a dismissal for lack of ripeness,

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which does constitute an appealable order. Bateman v. City of W.
Bountiful, 89 F.3d 704, 705-06 (10th Cir. 1996). True enough, a
stay of proceedings by the district court pending agency action
would ordinarily not be appealable, Fuchs, for and on Behalf of
N.L.R.B v. Hood Indus., Inc., 590 F.2d 395, 396 (1st Cir. 1979);
but if the line between a stay and a dismissal is somewhat formal,
formality is an element in determining what is or is not a final
judgment.
Lichoulas' first claim on appeal is that his complaint
alleged that the hydroelectric project was duly licensed and that
the license had not been "abandoned or surrendered" at the time of
the taking. Accordingly, he says, the district court was required
on the motion to dismiss to accept that all well-pleaded
allegations in the complaint are true. Rumford Pharmacy, Inc. v.
City of E. Providence, 970 F.2d 996, 997 (1st Cir. 1992). The
short answer is that the court was entitled, so far as relevant, to
take judicial notice of the FERC proceeding. Town of Norwood, 202
F.3d at 412 n.1.
Lichoulas' more substantive objection is that (he argues)
any supposed revocation of the license is irrelevant because state
law assesses the legality of takings at the time the property is
seized; subsequent events, the argument goes, cannot remedy a
tainted taking. See Burwick v. Mass. Highway Dep't., 57 Mass. App.
Ct. 302, 309 (2003) ("Where the statutory requirements for an order

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See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 288-89 3
(1995) (noting that district court has discretion under Declaratory
Judgment Act whether or not to exercise jurisdiction); Rossi v.
Gemma, 489 F.3d 26, 38 (1st Cir. 2007) (same); see also Ross-Simons
of Warwick, Inc. v. Baccarat, Inc., 217 F.3d 8, 13 (1st Cir. 2000)
("district courts have broad discretion to . . . make
determinations regarding the propriety of injunctive relief")
(internal quotation marks omitted).
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of taking have been neglected, no subsequently entered order may
cure the defect.").
We need not resolve this objection nor others on which
relief on the merits might depend, such as whether there is a
private right of action under section 807 or whether the city's
taking of a dormant plant would violate the statute. This is not
a case where the taking had any effect on the ongoing production of
power or where FERC has evidenced any concern. Lichoulas is simply
seeking to have the federal court derail a state takings proceeding
in which--given the Supremacy Clause--he could presumably raise his
objections.
The district court had no obligation to oblige. In
general, declaratory and injunctive relief are both matters of
judicial discretion. Here, the evident prospect that FERC would 3
revoke the license made clear that the federal interest, such as it
was, would likely be mooted; and any objection to the taking, or
deficiency in adequate compensation, could be and preferably is to
be done in state proceedings. Williamson County Reg'l Planning
Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985).

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Under these circumstances, the district court was
entitled, as a matter of judicial judgment, to await the outcome of
a FERC proceeding that likely would eliminate any warrant for
intervention by a federal court. Whether a stay of proceedings
might have been used (rather than a dismissal without prejudice) is
of no consequence here: FERC did in fact terminate the license. If
that termination is undone through appeal of the FERC order,
Lichoulas has the district court's leave to refile his complaint.
To the extent that Lichoulas seeks compensation for the
taking, the claim is properly brought in state court, as Williamson
makes clear. As for Lichoulas' appeal from the district court's
refusal to issue a lis pendens, M.G.L. c. 184, § 15(a)(2003), there
is no federal suit currently pending so that request is moot.
Affirmed.

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