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MORGANTOWN – Lake Lynn Generation successfully moved a lawsuit filed against it by family-owned company Biafora Marina 1 LLC from Monongalia County Circuit Court to federal court and now argues the case should be dismissed.

Marina 1, doing business as Cheat Lake Marina, filed a lawsuit Sept. 30 alleging that before Labor Day weekend, Lake Lynn deliberately lowered the level of Cheat Lake below the minimum of 868 feet in violation of its FERC license.

The lake level has returned, “However, the damage has already been done.” This includes boaters who used its docks rather than other docks inaccessible without permission, causing damage to the docks at Cheat Lake Marina. And the low water level caused its docks to slowly move away from their land mounts, “causing irreparable damage.”

The company alleged that “Cheat Lake Marina has suffered 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. Instead, the defendants will not be materially prejudiced by this court enjoining them from doing so.”

Marina 1 is seeking a temporary injunction and 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.

On Nov. 1, Lake Lynn filed notice that the case was moved to the U.S. District Court for the Northern District of West Virginia on the grounds that the operation of Lake Lynn Dam is regulated by the Federal Energy Regulatory Commission and its actions have were taken pursuant to its FERC license.

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

One is that Marina 1 is asking Lynn Lake to do the impossible: keep the lake at a level suitable 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) in the Cheat, with an absolute minimum of 100 cfs, and maintain dissolved oxygen at 5 milligrams per liter for aquatic life.

(During the drought, Lake Lynn submitted and later withdrew a request to temporarily change the minimum lake level of 868 feet to increase spillway flow to address potentially low dissolved oxygen levels.)

Lake Lynn told the federal court, “Plaintiff acknowledges that Lake Lynn faced the impossible scenario of having to maintain lake water levels while simultaneously using lake water to feed the downstream environment of the Cheat River. … Although he recognized the impossibility of this situation, the plaintiff filed this lawsuit. … For plaintiff to be so, the Cheat River downstream of Lynn Lake Dam can be completely drained and dried up—with all dissolved oxygen cut off from the aquatic habitat—as long as plaintiff’s commercial enterprise is unharmed.”

Second, Lake Lynn sees the lawsuit 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 has returned to where it should have been, Marina 1 cannot demonstrate irreparable harm. Speculating on the future is just that: speculation. “It is unlikely that any further harm will occur.”

Lake Lynn repeatedly accuses Navy 1 of acting in self-interest. “Plaintiff incorrectly asserts that Lynn Lake’s primary obligation is to the recreational users of Cheat Lake, as opposed to the downstream aquatic environments and habitats that are protected under the FERC license.

It continues: “Plaintiff contends that maintaining an adequate water level for recreational and commercial use of Cheat Lake (for the benefit of commercial entities like her) must take precedence over the literal life-or-death consequences of stopping outflow. in the downstream environs of the Cheat River.”

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