DECISION AND ORDER I. INTRODUCTION The above-captioned matter was commenced by plaintiff the State of New York (“the State”) in New York State court. Defendant the International Joint Commission (“the IJC”) removed the case to federal court on the basis of federal question jurisdiction. (Dkt. 1). The State has filed a motion to remand. (Dkt. 10). For the reasons discussed below, the Court denies the motion to remand because it finds that this is one of those rare cases where the state law claims asserted in the complaint necessarily raise a federal issue which is actually disputed, substantial, and capable of resolution in federal court without disrupting the federal-state balance approved by Congress. However, because this Decision and Order “involves a controlling question of law as to which there is substantial ground for difference of opinion” and “an immediate appeal from” this Decision and Order would potentially “materially advance the ultimate termination of the litigation,” 28 U.S.C. §1292(b), the Court will permit the State to seek an interlocutory appeal. II. BACKGROUND The State filed this action against the IJC in New York State Supreme Court, Monroe County, on November 15, 2019. (Dkt. 1 at 1). The IJC is a “binational U.S. — Canadian entity created by the U.S.-Great Britain Boundary Waters Treaty of 1909 (the Boundary Waters Treaty), 36 Stat. 2448,” and “is responsible for controlling the flow of water from Lake Ontario down the St. Lawrence River by directing the operation” of the Moses-Saunders Power Dam (the “Dam”), through which the border between Canada and the United States runs. (Dkt. 1-4 at
1, 4). The complaint seeks damages caused by “serious flooding on the south shores of Lake Ontario” in 2017 and 2019. (Id. at 2). The State alleges that the flooding was caused by the IJC’s failure to implement its flood relief protocol which required the IJC to increase outflows through the Dam. (Id.). The State further alleges that implementation of the flood relief protocol is a non-discretionary duty on the part of the IJC, as to how it is supposed to operate the Dam during periods of extremely high water levels in Lake Ontario. (Id. at 6). The State asserts four causes of action against the IJC: (1) negligence; (2) public nuisance; (3) private nuisance; and (4) trespass. (Id. at
