Shoreline municipalities are calling for legal action to lower the water level in Lake Ontario and recover damages, though history suggests the likelihood of success is slim.

The threat of litigation is the latest reaction by frustrated shoreline residents and business owners who have been coping with high water on the lake since March. The level has been at record heights for the last several weeks.

Litigation over high water in Lake Ontario has been threatened over and over again for at least the last 65 years. The Democrat and Chronicle could find evidence of just one lawsuit actually being filed, and it had no lasting impact.

This time around, the village of Sodus Point, Wayne County, which has suffered some of the worst flooding on the south shore, apparently was the first to act.

The board there approved a resolution last week asking Wayne County to pursue litigation against the federal government and the International Joint Commission, which oversees the regulation of water levels in the lake.

The towns of Greece and Newfane, Niagara County, followed suit Wednesday, asking their respective county governments to look into filing suit.

Greece Town Board members, meeting at a special session on Wednesday, singled out the International Joint Commission, saying it contributed to the shoreline damage through its adoption of Plan 2014, a set of lake-level regulatory guidelines that went into effect in January.

Monroe County Executive Cheryl Dinolfo agreed Wednesday to take up the case, asking the county's law department "to take any legal action necessary to protect the property and safety of all Monroe County residents and businesses along the shores of Lake Ontario as well as public infrastructure impacted by high waters which affect all Monroe County residents."

Brett Walsh, a Dinolfo spokesman, said Thursday that the law department is researching whether it would be possible to take legal action against the IJC, compel it to adjust water levels to offer more relief to south shore residents and possibly recover damages or force financial assistance for property owners who have sustained losses from the flooding.

Some shoreline property owners and municipalities blame Plan 2014, though officials from the IJC and elsewhere have said record-setting rainfall, not the new plan, is responsible for the ongoing flooding.

A review of Democrat and Chronicle files show threats of lake-level lawsuits by citizens or municipalities in 1952, 1973, 1974, 1976, 1993 and 1998 — all years in which water reached alarming levels.

Litigation was threatened again over the last dozen years as the IJC debated updates to its regulatory plan that shoreline property owners in the Rochester region opposed.

It does not appear any suits were ever brought against the IJC, which was created in a boundary treaty between the United States and Canada.

Three commissioners are appointed by the U.S. president and three by the Canadian prime minister. Its staff and operating budget are provided by the federal governments of the two countries.

The commission exists in something of a legal no man's land and is considered unreachable in lawsuits.

Immunity

Henry Stewart, a Greece attorney and president of the Lake Ontario South Shore Council, said although he appreciates the municipalities looking for ways to assist the waterfront homeowners, he believes the IJC's status as a treaty organization makes it immune from civil lawsuits.

He said he'd like to see an enterprising prosecutor try to file criminal charges against IJC commissioners for decisions made regarding Plan 2014, and what he believes to be its result of stripping lakeshore owners of their property without just compensation.

Stewart's group may be the only entity that actually did bring suit over Lake Ontario water levels, although that move predated his involvement.

In 1987, two members of the citizens group filed a legal action in U.S. District Court in Rochester.

They did not sue the IJC, however. Instead the case targeted the federal government, which exerts some control over the IJC, and the New York Power Authority, which obtains hydropower from the dam that is used to adjust outflow from the lake.

Paul Britton, an attorney with Harter Secrest and Emery in Rochester, represented one of the plaintiffs. He said to the best of his recollection, issues of immunity prevented naming the IJC as a defendant in that case.

Still, the plaintiffs claimed the government defendants had kept the lake "artificially high" and sought class action status to represent 3,000 shoreline property owners on the American side of the lake.

Issues raised in that suit are strikingly similar to current complaints by lake shore property owners. Britton said the 1987 suit claimed the interests of the power authority, shipping industry, environmentalists and people living along the St. Lawrence River were considered before those of residents of the south shore.

"It seemed to us that the riparians were coming in a distant fourth," he said.

The suit sought $10,000 for each owner to compensate for what they termed the illegal taking of property through erosion caused by high water.

The case led to lengthy settlement discussions that ended in 1990 with what was termed a symbolic victory for shoreline interests. The government bodies promised to provide more information about lake-level regulation and to take shoreline interests into account when the levels were adjusted.

More:The 1987 suit over lake levels

The federal and state government paid no damages to property owners, though they did provide $25,000 to help cover the plaintiff's legal costs.

The lake level plan scorned by some shoreline property owners was studied and approved by the two federal governments, and then adopted by unanimous vote of the IJC commissioners last year.

Officials have said it would take a vote of the commissioners to rescind Plan 2014, which in essence means the administrations of President Trump and Prime Minister Justin Trudeau would have to concur.

More:Water high but Plan 2014 intact

In statements to the Democrat and Chronicle earlier this spring, neither administration indicated any interest in undoing the plan.

SORR@Gannett.com

MCDERMOT@Gannett.com