Petition — Loveladies Property Owners Ass'n v. Raab

Supreme ¥.

PTL Re

MAR 4 1977

IN THE

Supreme Court of the United States

Octroser TERM, 197

No.

7 _ 6-129)

LOVELADIES PROPERTY OWNERS ASSOCIATION, INC., a

Corporation of the State of New Jersey, JOINT COUNCIL OF

TAXPAYERS OF SOUTHERN OCEAN COUNTY, INC., a

Corporation of the State of New Jersey and LONG BEACH

ISLAND CONSERVATION SOCIETY, INC., a Corporation of

the State of New Jersey,

Petitioners,

MAX RAAB, UNITED STATES ARMY CORPS OF ENCINEERS,

COL. C.A. SELLECK, JR., District Engineer, Philadelphia

District, United States Army Corps of Engineers, BG JAMES L.

KELLY, Division Engineer, North Atlantic Division, United

States Army Corps of Engineers, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY and GERALD

M. HANSLER, Regional Director, Region II, United States

Environmental Protection Agency,

Respondents.

Petirion For A Writ or CERTIORARI TO THE

Unitep States Court or APPEALS FOR THE THIRD Circurr

PETITION FOR WRIT OF CERTIORARI

STEPHEN B. PATRICK,

Counsel for Petitioners,

Northwest Boulevard,

P.O. Box 304,

Newfield, New Jersey 08344

N.J. Appellate Printing Co., Inc., South Plainfield, New Jersey (20!) 753-0200

TABLE OF CONTENTS

I oo 524 Cac eawentekadscaaekeneenes 1

ROP er rT re Pree ere rr rere 2

I Any ae RE BERR RELA? 2

ER rr aera INP RE yen 3

PEEP ALOT LE CPO OEE OO 21

REASONS FOR GRANTING WRIT

POINT I: The Administrative Procedure Act operates

to grant Federal jurisdiction in this case ........ 23

POINT II: The Court erred in determining that relief

by way of Mandamus was not appropriate ...... 28

RR ee ee ee re rer eee 31

Cases CITED:

Abbott Laboratories v. Gardner,

387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed. 681 (1967) 25

Aguayo v. Richardson,

472 F.2d 1090 (2d Cir. 1973) ................ 23

Arizona St. Dept. of Pub. W. v. Department of

Health, E. & W.,

499 F.2d 456 (9th Cir. 1971), certiorari denied,

405 U.S. 919, 2 S.Ct. 945, 30 L.Ed.2d 789 (1972) 23

Bradley v. Weinberger,

483 F.2d 410 (Ist Cir. 1973) ................ 24

Bramblitt v. Desobry,

490 F.2d 405 (6th Cir. 1974) ................ 23

Chournos v. United States,

335 F.2d 918 (10th Cir. 1964) ........0....... 23

TABLE OF CONTENTS

Cases CITED:

Deering Milliken v. Johnston,

205 F.2d 856 (4th Cir. 1961) ................ 24

Heikkila v. Barber,

345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953) .. 25

Local 542, International Union of Operating

Engineers, AFL-CIO v. N.L.R.B.,

Bs Ee Bt he Se . ) ee 23

National Resource Defense Council v. Callaway,

Civil No. 74-1242, D.D.C., March 27, 1975 ...... 28

Ove Gustaffson Contracting Co. v. Floete,

278 F.2d 912 (2d Cir. 1960) .............. 23, 25

Pickus v. United States Board of Parole,

OST PSe 167 (DK. Cle. BFE) .... ccc cees. 24

State of Washington v. Udall,

417 F.2d 1910 (9th Cir. 1969) ................ 23

Twin Cities Chippewa Tribal Council v. Minnesota

Chippewa Tribe,

370 F.2d 529 (8th Cir. 1967) ................ 23

STATUTES CITED:

kA a eee ee eae. wn 2, 3, 22

a oe ieee eee ae 3, 23, 24

EE ae a ee ee 7? 3 4, 24

RT Or 0 Fl eee 4, 24

| a ee eee 2

oi Fie ee se ae 2, 4, 6, 22

TABLE OF CONTENTS

STATUTES CITED:

a 4,5, 6

i 6

Se eee 6

83 U.S.C. §1251 ..... 0... eee ee. 2, 17, 19

a 17, 29

Se 7, 29

Of a 7, 29

I el oa 2, 7, 28

APPENDIX

Appendix A

Opinion of U.S. District Court ................ la

Appendix B

Order of U.S. Court of Appeals ................ lla

IN THE

SUPREME COURT OF THE UNITED STATES

Octroper TeRM, 1977

No.

LOVELADIES PROPERTY OWNERS ASSOCIATION, INC., a

Corporation of the State of New Jersey, JOINT COUNCIL OF

TAXPAYERS OF SOUTHERN OCEAN COUNTY, INC., a

Corporation of the State of New Jersey and LONG BEACH

ISLAND CONSERVATION SOCIETY, INC., a Corporation of

the State of New Jersey,

Petitioners,

DS.

MAX RAAB, UNITED STATES ARMY CORPS OF ENGINEERS,

COL. C.A. SELLECK, JR., District Engineer, Philadelphia

District, United States Army Corps of Engineers, BG JAMES L.

KELLY, Division Engineer, North Atlantic Division, United

States Army Corps of Engineers, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY and CERALD

M. HANSLER, Regional Director, Region I], United States

Environmental Protection Agency,

Respondents.

Peririon FoR A Writ or CerTiORARI TO THE

Unirep States Court or Arrests ror THE Tuinp Cincurr

The Petitioners pray that a Writ of Certiorari issue to

review the judgment of the United States Court of Ap-

peals for the Third Circuit, entered in the above case on

December 7, 1976.

OPINIONS BELOW

The opinion of the District Court for the District of

New Jersey is unreported. A copy appears at Appendix

A, infra, p. la. The United States Court of Appeals for

the Third Circuit affirmed the judgment of the United

States District Court without opinion.

JURISDICTION

The order of the United States Court of Appeals for

the Third Circuit was entered on December 7, 1976. This

petition for certiorari was filed less than 90 days from said

date. The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3).

QUESTIONS PRESENTED

The Petitioners’ complaint was dismissed on motion

for summary judgment on the grounds that the Admin-

istrative Procedure Act 5 U.S.C. §701, et seq., did not

grant U.S. District Court jurisdiction to review the actions

of the Corps of Engineers under the Rivers and Harbors

Act of 1899 33 U.S.C. §401, et seq. and that adequate

relief was afforded pursuant to the citizen suit provisions

of the Federal Water Pollution Control Act, 33 U.S.C.

§1365. The questions thereby arising are:

1. Whether the Administrative Procedure Act, 5

U.S.C. §701, et seq., grants original jurisdiction to permit

a Federal District Court to review the actions of the U.S.

Army Corps of Engineers, taken pursuant to the Rivers

and Harbors Act of 1899, 33 U.S.C. §401, et seq. in a

suit brought by private organizations.

2. Whether the Federal Water Pollution Control

Act, 33 U.S.C. §1251, et seq. affords adequate remedy

against the U.S. Army Corps of Engineers.

STATUTES INVOLVED

a. Administrative Procedure Act, 5 U.S.C. §701, et

seq.

§ 701. Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion

by law.

(b) For the purpose of this chapter—

(1) “agency” means each authority of the Govern-

ment of the United States, whether or not it is within

or subject to review by another agency, but does not in-

clude—

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or posses-

sions of the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the

parties or of representatives of organizations of the

parties to the disputes determined by them;

(F) courts martial and military commissions;

§702. Right of review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to

judicial review thereof.

4 Statutes Involved

§703. Form and venue of proceeding

The form of proceeding for judicial review is the

special statutory review proceeding relevant to the sub-

ject matter in a court specified by statute or, in the

absence or inadequacy thereof, any applicable form of

legal action, including actions for declaratory judgments

or writs of prohibitory or mandatory injunction or habeas

corpus, in a court of competent jurisdiction. Except to

the extent that prior, adequate, and exclusive opportunity

for judicial review is provided by law, agency action is

subject to judicial review in civil or criminal proceedings

for judicial enforcement.

§704. Actions reviewable

Agency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in a court are subject to judicial review. A pre-

liminary, procedural, or intermediate agency action or

ruling not directly reviewable is subject to review on the

review of the final agency action. Except as otherwise

expressly required by statute, agency action otherwise

final is final for the purposes of this section whether or

not there has been presented or determined an applica-

tion for a declaratory order, for any form of reconsidera-

tion, or, unless the agency otherwise requires by rule and

provides that the action meanwhile is inoperative, for an

appeal to superior agency authority.

b. Rivers and Harbors Act of 1899, 33 U.S.C. §§401,

403,

Section 401. Construction of bridges, causeways,

dams, or dikes generally.—It shall not be lawful to con-

struct or commence the construction of any bridge, dam,

Statutes Involved 5

dike, or causeway over or in any port, roadstead, haven,

harbor, canal, navigable river, or other navigable water

of the United States until the consent of Congress to the

building of such structures shall have been obtained and

until the plans for the same shall have been submitted to

and approved by the Chief of Engineers and by the Sec-

retary of War [Secretary of Army]: Provided, That such

structures may be built under authority of the legislature

of a State across rivers and other waterways the navigable

portions of which lie wholly within the limits of a single

State, provided the location and plans thereof are sub-

mitted to and approved by the Chief of Engineers and by

the Secretary of War [Army] before construction is com-

menced: And provided further, That when plans for any

bridge or other structure have been approved by the Chief

of Engineers and by the Secretary of War [Army], it shall

not be lawful to deviate from such plans either before or

after completion of the structure unless the modification

of said plans has previously been submitted to and re-

ceived the approval of the Chief of Engineers and of the

Secretary of War [Army]. (Mar. 3, 1899, c. 425, §9, 30

Stat. 1151.)

403. Obstruction of navigable waters generally—

Excavations and filling in—Authorization by Secretary of

Army.—The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of any

of the waters of the United States is hereby prohibited;

and it shall not be lawful to build or commence the build-

ing of any wharf, pier, dolphin, boom, weir, breakwater,

bulkhead, jetty, or other structures in any port, roadstead,

haven harbor, canal, navigable river, or other water of

the United States, outside established harbor lines, or

where no harbor lines have been established, except on

plans recommended by the Chief of Engineers and au-

6 Statutes Involved

thorized by the Secretary of War [Secretary of the Army];

and it shall not be lawful to excavate or fill, or in any

manner to alter or modify the course, location, condition,

or capacity of, any port, roadstead, haven, harbor, canal,

lake, harbor or refuge, or inclosure within the limits of

any breakwater, or of the channel of any navigable water

of the United States, unless the work has been recom-

mended by the Chief of Engineers and authorized by the

Secretary of War [Army] prior to beginning the same.

(Mar. 3, 1899, c. 425, §10, 30 Stat. 1151.)

406. Penalty for violations—Enforcement by injunc-

tion.—Every person and every corporation that shall violate

any of the provisions of sections nine, ten, and eleven of

this Act [§§401, 403, and 404 of this title], or any rule

or regulation made by the Secretary of War [Secretary of

Army] in pursuance of the provisions of said section eleven

[§404 of this title], shall be deemed guilty of a mis-

demeanor, and on conviction thereof shall be punished

by a fine not exceeding $2,500 nor less than $500, or by

imprisonment (in the case of a natural person ) not exceed-

ing one year, or by both such punishments, in the discre-

tion of the court. And further, the removal of any struc-

tures or part of structures erected in violation of the

provisions of the said sections may be enforced by the in-

junction of any district court exercising jurisdiction in any

district in which such structures may exist, and proper

proceedings to this end may be instituted under the direc-

tion of the Attorney General of the United States. (Mar. 3,

1899, c. 425, $12, 30 Stat. 1151; Feb. 20, 1900, c. 23,

§2, 31 Stat. 32).

411. Penalty for wrongful deposit of refuse—Use of

or injury to harbor improvements, and obstruction of navi-

gable waters generally.—Every person and every corpora-

Statutes Involved 7

tion that shall violate, or that shall knowingly aid, abet,

authorize, or instigate a violation of the provisions of sec-

tions thirteen, fourteen, and fifteen of this Act [§§407, 408,

409 of this title] shall be guilty of a misdemeanor, and

on conviction thereof shall be punished by a fine not exceed-

ing $2,500 nor less than $500, or by imprisonment (in the

case of a natural person) for not less than thirty days nor

more than one year, or by both such fine and imprisonment,

in the discretion of the court, one-half of said fine to be

paid to the person or persons giving information which

shall lead to conviction. (Mar. 3, 1899, c. 425, §16 in

part, 30 Stat. 1153).

c. Federal Water Pollution Control Act, 33 U.S.C.

§§1319, 1341, 1344, 1365

1319. Federal enforcement.—(a)(1) Whenever, on

the basis of any information available to him, the Admin-

istrator finds that any person is in violation of any condi-

tion or limitation which implements section 301, 302, 306,

307, or 308 of this Act [33 U.S.C.S. §§1311, 1312, 1316, 1317,

1318] in a permit issued by a State under an approved

permit program under section 403 of this Act [33 U.S.C.S.

$1342] he shall proceed under his authority in paragraph

(3) of this subsection or he shall notify the person in

alleged violation and such State of such finding. If beyond

the thirtieth day after the Administrator's notification the

State has not commenced appropriate enforcement action,

the Administrator shall issue an order requiring such per-

son to comply with such condition or limitation or shall

bring a civil action in accordance with subsection (b) of

this section.

(2) Whenever, on the basis of information avail-

able to him, the Administrator finds that violations of

permit conditions or limitations as set forth in paragraph

8 Statutes Involved

(1) of this subsection are so widespread that such viola-

tions appear to result from a failure of the State to enforce

such permit conditions or limitations effectively, he shall

so notify the State. If the Administrator finds such failure

extends beyond the thirtieth day after such notice, he

shall give public notice of such finding. During the per-

iod beginning with such public notice and ending when

such State satisfies the Administrator that it will enforce

such conditions and limitations (hereafter referred to in

this section as the period of “federally assumed enforce-

ment”), the Administrator shall enforce any permit con-

dition or limitation with respect to any person—

(A) by issuing an order to comply with such con-

dition or limitation, or

(B) by bringing a civil action under subsection (b)

of this section.

(3) Whenever on the basis of any information avail-

able to him the Administrator finds that any person is in

violation of section 301, 302, 306, 307, or 308 of this Act

[33 U.S.C.S. §§1311, 1312, 1316, 1317, 1318], or is in vio-

lation of any permit condition or limitation implementing

any of such sections in a permit issued under section 402

of this Act [33 USCS § 1342] by him or by a State, he

shall issue an order requiring such person to comply with

such section or requirement, or he shall bring a civil ac-

tion in accordance with subsection (b) of this section.

(4) A copy of any order issued under this subsection

shall be sent immediately by the Administrator to the

State in which the violation occurs and other affected

States. Any order issued under this subsection shall be

by personal service and shall state with reasonable spe-

cificity the nature of the violation, specify a time for

compliance, not to exceed thirty days, which the Ad-

ministrator determines is reasonable, taking into account

Te OED ea es ak

, Statutes Involved g

the seriousness of the violation and any good faith efforts

to comply with applicable requirements. In any case in

which an order under this subsection (or notice to a

violator under paragraph (1) of this subsection) is issued

to a corporation, a copy of such order (or notice) shall

be served on any appropriate corporate officers. An order

issued under this subsection relating to a violation of

section 308 of this Act [33 U.S.C.S. §1318] shall not take

effect until the person to whom it is issued has had an

opportunity to confer with the Administrator concerning

the alleged violation. ,

(b) The Administrator is authorized to commence

a civil action for appropriate relief, including a permanent

or temporary injunction, for any violation for which he

is authorized to issue a compliance order under subsection

(a) of this section. Any action under this subsection may

be brought in the district court of the United States for

the district in which the defendant is located or resides

or is doing business, and such court shall have jurisdic-

tion to restrain such violation and to require compliance.

Notice of the commencement of such action shall be given

immediately to the appropriate State.

(c)(1) Any person who willfully or negligently vio-

lates section 301 302, 306, 307, or 308 of this Act [33

U.S.C.S. §§1311, 1312, 1316, 1317, 1318], or any permit

condition or limitation implement any of such sections in a

permit issued under section 402 of this Act [33 U.S.C.S.

§342] by the Administrator or by a State, shall be

punished by a fine of not less than $2,500 nor more

than $25,000 per day of violation, or by imprisonment

for not more than one year, or by both. If the convic-

tion if for a violation committed after a first conviction

of such person under this paragraph, punishment shall

be by a fine of not more than $50,000 per day of viola-

10 Statutes Involved

tion, or by imprisonment for not more than two years,

or by both.

(2)Any person who knowingly makes any false state-

ment, representation, or certification in any application,

record, plan, or other document filed or required to be

maintained under this Act [33 U.S.C.S. §§1251-1376] or

who falsifies, tampers with, or knowingly renders inac-

curate any monitoring device or method required to be

maintained under this Act [33 U.S.C.S. §§1251-1376], shall

upon conviction, be punished by a fine of not more than

$10,000, or by imprisonment for not more than six months,

or by both.

(3) For the purposes of this subsection, the term

“person” shall mean, in addition to the definition con-

tained in section 502(5) of this Act [33 U.S.C.S. §1362

5)], any responsible corporate officer.

(d) Any person who violates section 301, 302, 306,

307, or 308 of this Act [33 U.S.C.S. §§1311, 1312, 1316,

1317, 1318], or any permit condition or limitation imple-

menting any of such sections in a permit issued under

section 402 of this Act [33 U.S.C.S. §1342] by the Ad-

ministrator, or by a State, and any person who violates

any order issued by the Administrator under subsection

(a) of this section, shall be subject to a civil penalty not

to exceed $10,000 per day of such violation.

(e) Whenever a municipality is a party to a civil

action brought by the United States under this section,

the State in which such municipality is located shall be

joined as a party. Such State shall be liable for payment

of any judgment, or any expenses incurred as a result of

complying with any judgment, entered against the mu-

nicipality in such action to the extent that the laws of

that State prevent the municipality from raising revenues

needed to comply with such judgment. (June 30, 1948,

Statutes Involved 1]

c. 758, Title III, §309, as amended, Oct. 18, 1972, P. L.

92-500, §2, 86 Stat. 859.)

1341. Certification ——(a)(1) Any applicant for a

Federal license or permit to conduct any activity includ-

ing, but not limited to, the construction or operation of

facilities, which may result in any discharge into the navi-

gable waters, shall provide the licensing or permitting

agency a certification from the State in which the dis-

charge originates or will originate, or, if appropriate, from

the interstate water pollution control agency having juris-

diction over the navigable waters at the point where the

discharge originates or will originate, that any such dis-

charge will comply with the applicable provisions of sec-

tions 301, 302, 306, and 307 of this Act [33 U.S.C.S. §§1311,

1312, 1316, 1317]. In the case of any such activity for

which there is not an applicable effluent limitation or

other limitation under sections 301(b) and 302 [33 USCS

§§1311(b), 1312], and there is not an applicable standard

under section 306 and 307 [33 U.S.C.S. §§1316, 1317],

the State shall so certify, except that any such certifica-

tion shall not be deemed to satisfy section 511(c) of

this Act [33 U.S.C.S. §1371]. Such State or interstate

agency shall establish procedures for public notice in the

case of all applications for certification by it and, to the

extent it deems appropriate procedures for public hear-

ings in connection with specific applications. In any case

where a State or interstate agency has no authority to

give such a certification, such certification shall be from

the Administrator. If the State, interstate agency, or

Administrator, as the case may be, fails or refuses to act

on a request for certification, within a reasonable period

of time (which shall not exceed one year) after receipt

of such request, the certification requirements of this sub-

section shall be waived with respect to such Federal ap-

12 Statutes Involved

plication. No license or permit shall be granted until

tne certification required by this section has been obtained

or has been waived as provided in the preceding sen-

tence. No license or permit shall be granted if certifica-

tion has been denied by the State, interstate agency, or

the Administrator, as the case may be.

(2) Upon receipt of such application and certifica-

tion the licensing or permitting agency shall immediately

notify the Administrator of such application and certi-

fication. Whenever such a discharge may affect, as deter-

mined by the Administrator, the quality of the waters of

any other State, the Administrator within thirty days of

the date of notice of application for such Federal license

or permit shall so notify such other State, the licensing or

permitting agency, and the applicant. If, within sixty

days after receipt of such notification, such other State

determines that such discharge will affect the quality of

its waters so as to violate any water quality requirement

in such State, and within such sixty-day period notifies

the Administrator and the licensing or permitting agency

in writing of its objection to the issuance of such license

or permit and requests a public hearing on such objection,

the licensing or permitting agency shall hold such a hear-

ing. The Administrator shall at such hearing submit his

evaluation and recommendations with respect to any such

objection to the licensing or permitting agency. Such

agency, based upon the recommendations of such State,

the Administrator, and upon any additional evidence, if

any, presented to the agency at the hearing, shall condi-

tion such license or permit in such manner as may be

necessary to insure compliance with applicable water

quality requirements. If the imposition of conditions

cannot insure such compliance such agency shall not

issue such license or permit.

ee

Statutes Involved 13

(3) The certification obtained pursuant to paragraph

(1) of this subsection with respect to the construction

of any facility shall fulfill the requirements of this sub-

section with respect to certification in connection with

any other Federal license or permit required for the oper-

ation of such facility unless, after notice to the certifying

State, agency, or Administrator, as the case may be, which

shall be given by the Federal agency to whom application

is made for such operating license or permit, the State,

or if appropriate, the interstate agency or the Adminis-

trator, notifies such agency within sixty days after receipt

of such notice that there is no longer reasonable assurance

that there will be compliance with the applicable provi-

sions of sections 301, 302, 306, and 307 of this Act [33

U.S.C.S. §§1311, 1312, 1316, 1317] because of changes since

the construction license or permit certification was issued

in (A) the construction or operation of the facility, (B)

the characteristics of the waters into which such discharge

is made, (C) the water quality criteria applicable to such

waters or (D) applicable effluent limitations or other re-

quirements. This paragraph shall be inapplicable in any

case where the applicant for such operating license or

permit has failed to provide the certifying State, or, if

appropriate, the interstate agency or the Administrator,

with notice of any proposed changes in the construction

or operation of the facility with respect to which a con-

struction license or permit has been granted, which

changes may result in violation of section 301, 302, 306,

or 307 of this Act [33 U.S.CS. §§1311, 1312, 1316, 1317].

(4) Prior to the initial operation of any federally

licensed or permitted facility or activity which may result

in any discharge into the navigable waters and with re-

spect to which a certification has been obtained pursuant

to paragraph (1) of this subsection, which facility or ac-

tivity is not subject to a Federal operating license or per-

14 Statutes Involved

mit, the licensee or permittee shall provide an opportu-

nity for such certifying State, or, if appropriate, the inter-

state agency or the Administrator to review the manner

in which the facility or activity shall be operated or con-

ducted for the purposes of assuring that applicable effluent

limitations or other limitations or other applicable water

quality requirements will not be violated. Upon notifica-

tion by the certifying State, or if appropriate, the inter-

state agency or the Administrator that the operation of

any such federally licensed or permitted facility or ac-

tivity will violate applicable effluent limitations or other

limitations or other water quality requirements such Fed-

eral agency may, after public hearing, suspend such li-

cense or permit. If such license or permit is suspended,

it shall remain suspended until notification is received

from the certifying State, agency, or Administrator, as

the case mav be, that there is reasonable assurance that

such facility or activity will not violate the applicable

provsiions of section 301, 302, 306, or 307 of this Act [33

U.S.C.S. §§1311, 1312, 1316, 1317].

(5) Any Federal license or permit with respect to

which a certification has been obtained under paragraph

(1) of this subsection may be suspended or revoked by

the Federal agency issuing such license or permit upon

the entering of a judgment under this Act [33 U.S.C.S.

§§1251-1376] that such facility or activity has been oper-

ated in violation of the applicable provisions’ of section

301, 302, 306, or 307 of this Act [33 U.S.C.S. §§1311, 1312,

1316, 1317].

(6) No Federal agency shall be deemed to be an

applicant for the purposes of this subsection.

(7) Except with respect to a permit issued under

section 402 of this Act [33 U.S.C.S. §1342], in any case

where actual construction of a facility"has been lawfully

permit issued without certifica-

April 3, 1973, unless prior to such

having such license or permit

which issued such license

(b) Nothing in this section shall be construed to

limit the authority of any department or agency pursuant

to any other provision of law to require compliance with

any applicable water quality requirements. The Adminis-

trator shall, upon the request of any Federal department

or agency, or State or interstate agency, or applicant,

provide, for the purpose of this section, any relevant in-

formation on applicable effluent limitations, or other limi-

tations, standards, regulations, or requirements, or water

quality criteria, and shall, when requested by any such

department or agency or State or interstate agency, or

comment on any methods to comply with such

limitations, standards, regulations, requirements, or cri-

teria.

(c) In order to implement the provisions of this

section, the of the Army, acting through the

Chief of Engineers, is authorized, if he deems it to be in

the public interest, to permit the use of spoil disposal

areas under his jurisdiction by Federal licensee or permit-

tees, and to make an charge for such use.

Moaseys received from such licensees or permittees shall

be deposited in the Treasury as miscellaneous receipts.

(d) Any certification provided under this section

thall set forth any effluent limitations and other limita-

“BEST COPY AVAILABLE

16 Statutes Involved

tions, and monitoring requirements necessary to assure

that any applicant for a Federal license or permit will

comply with any applicable effluent limitations and other

limitations, under section 301 or 302 of this Act [33 U.S.C.S.

§1311 or 1312], standard of performance under section

306 of this Act [33 U.S.C.S. §1316], or prohibition, effluent

standard, or pretreatment standard under section 307 of

this Act [33 U.S.C.S. §1317], and with any other appropri-

ate requirement of State law set forth in such certification,

and shall become a condition on any Federal license or

permit subject to the provisions of this section. (June

30, 1948, c. 758, Title IV, §401, as amended, Oct. 18, 1972,

P. L. 92-500, §2, 86 Stat 877.)

1344. Permits for dredged or fill material._—(a) The

Secretary of the Army, acting through the Chief of En-

gineers, may issue permits, after notice and opportunity

for public hearings for the discharge of dredged or fill

material into the navigable waters at specified disposal

sites.

(b) Subject to subsection (c) of this section, each

such disposal site shall be specified for each such permit

by the Secretary of the Army (1) through the application

of guidelines developed by the Administrator, in conjunc-

tion with the Secretary of the Army, which guidelines

shall be based upon criteria comparable to the criteria

applicable to the territorial seas, the contiguous zone, and

the ocean under section 403(c) [33 U.S.C.S. §1343(c)!

and (2) in any case where such guidelines under clause

(1) alone would prohibit the specification of a site,

through the application additionally of the economic im-

pact of the site on navigation and anchorage.

(c) The Administrator is authorized to prohibit the

specification (including the withdrawal of specification )

of any defined area as a disposal site, and he is authorized

to deny or restrict the use of any defined area for specifica-

Statutes Involved 17

tion (including the withdrawal of specification) as a dis-

posal site, whenever he determines, after notice and

opportunity for public hearings, that the discharge of

such materials into such area will have an unacceptable

adverse effect on municipal water supplies, shellfish beds

and fishery areas (including spawning and_ breeding

areas), wildlife, or recreational areas. Before making

such determination, the Administrator shall consult with

the Secretary of the Army. The Administrator shall set

forth in writing and make public hiefindings and his

reasons for making any determination under this subsec-

tion. (June 30, 1948, c. 758, Title IV, §404, as amended,

Oct. 18, 1972, P. L. 92-500, §2 86 Stat. 884. )

1365. Citizen suits.—(a) Except as provided in sub-

section (b) of this section, any citizen may commence

a civil action on his own behalf—

(1) against any person (including (i) the United

States, and (ii) any other governmental instrumentality

or agency to the extent permitted by the eleventh amend-

ment to the Constitution) who is alleged to be in viola-

tion of (A) an effluent standard or limitation under this

Act [33 U.S.C.S. §§1251-1376] or (B) an order issued by

the Administrator or a State with respect to such a stand-

ard or limitation, or

(2) against the Administrator where there is alleged

a failure of the Administrator to perform any act or duty

under this Act [33 U.S.C.S. §§1251-1376] which is not dis-

cretionary with the Administrator.

The district courts shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the

tion, or such an order, or to order the Administrator to

apply any appropriate civil penalties under section 309(d)

of this Act [33 U.S.C.S. §1319].

18 Statutes Involved

(A) prior to sixty days after the plaintiff has given

notice of the alleged violation (i) to the Administrator,

(ii) to the State in which the alleged violation occurs,

and (iii) to any alleged violator of the standard, limita-

tion, or order, or

(B) if the Administrator or State has commenced

and is diligently prosecuting a civil or criminal action in

a court of the United States, or a State to require com-

pliance with the standard, limitation, or order, but in

any such action in a court of the United States any citi-

zen may intervene as a matter of right.

(2) under subsection (a)(2) of this section prior

to sixty days after the plaintiff has given notice of such

action to the Administrator, except that such action may

be brought immediately after such notification in the case

of an action under this section respecting a violation of

sections 306 and 307(a) of this Act [33 U.S.C.S. §§1316,

1317(a)]. Notice under this subsection shall be given

in such manner as the Administrator shall prescribe by

regulation.

(c)(1) Any action respecting a violation by a dis-

charge source of an effluent standard or limitation or an

order respecting such standard or limitation may be

brought under this section only in the judicial district

in which such source is located.

(2) In such action under this section, the Adminis-

trator, if not a party, may intervene as a matter of right.

(d) The court, in issuing any final order in any ac-

tion brought pursuant to this section, may award costs

of litigation (including reasonable attorney and expert

witness fees) to any party, whenever the court determines

such award is appropriate. The court may, if a tempo-

rary restraining order or preliminary injunction is sought,

Statutes Involved 19

require the filing of a bond or equivalent security in ac-

cordance with the Federal Rules of Civil Procedure.

(e) Nothing in this section shall restrict any right

which any person (or class of persons) may have under

any statute or common law to seek enforcement of any

effluent standard or limitation or to seek any other relief

(including relief against the Administrator or a State

agency ).

(f) For purposes of this section, the term “effluent

standard or limitation under this Act” [33 U.S.C.S. §§1251-

1376] means (1) effective July 1, 1973, an unlawful act

under subsection (a) of section 301 of this Act [33 U.S.C.S.

§1311]; (2) an effluent limitation or other limitation

under section 301 or 302 of this Act 33 U.S.C.S. §1311 or

1312]; (3) standard of performance under section 306

of this Act [33 U.S.C.S. §1316]; (4) prohibition, effluent

standard or pretreatment standards under section 307 of

this Act [33 U.S.C.S. §1317]; (5) certification under section

401 of this Act [33 U.S.C.S. §1341]; or (6) a permit or

condition thereof issued under section 402 of this Act [33

U.S.C.S. §1342], which is in effect under this Act [33

U.S.C.S. §§1251-1376] (including a requirement pm

by reason of section 313 of this Act [33 U.S.C.S. §1323}).

(g) For the purposes of this section the term “citi-

zen means a person or persons having an interest which

is or may be adversely affected.

(h) A Governor of a State may commence a civil

action under subsection (a), without regard to the limita-

tions of subsection (b) of this section, against the Ad-

ministrator where there is alleged a failure of the Ad-

ministrator to enforce an effluent standard or limitation

under this Act the violation of which is occurring in

20 Statutes Involved

another State and is causing an adverse effect on the

public health or welfare in his State, or is causing a vio-

lation of any water quality requirement in his State.

(June 30, 1948, c. 758, Title V, §505, as amended, Oct. 18,

1972, P. L. 92-500, §2, 86 Stat. 888. )

=

~~

21

STATEMENT OF THE CASE

This Petition is brought as the result of the Order

of the United States Court of Appeals for the Third Cir-

cuit affirming the order of the United States District

Court for the District of New Jersey, George R. Barlow,

U.S.D.J., entered February 3, 1976, dismissing the

amended complaint of plaintiffs with prejudice as to the

claims brought under the Rivers and Harbors Act of 1899.

That dismissal was as a result of motions made by attor-

neys for defendant Raab and for the U.S. Government,

which were made prior to the filing of any answer to the

ainended complaint.

Factually, this case arose when defendant Raab

commenced filling operations on a certain piece of land

owned by him in the Loveladies Section of Long Beach

Township, Ocean County, New Jersey. That land was

located on the Barnegat Bay side of Long Beach Island.

Barnegat Bay has previously been determined to be a

navigable body of water. In the course of the filling

operations, several mosquito ditches, which were subject

to the daily tidal flow of waters, were filled. It is un-

contested that the basic level of the land, prior to the

filling operation, was 1.5 feet above the mean high water

mark and that the land was below the local extreme high

water mark, having been completely covered by water on

such occasions as the March, 1962, storm which struck the

east coast of the country.

These filling operations were commenced in the fall

of 1972. On December 11, 1972, the U.S. Corps of En-

gineers, through the District Engineer in Philadelphia,

(then COL Carroll D. Strider) directed that Raab cease

all filling operations and submit a proper application to

the Corps for a permit. This was done.

22 Statement of the Case

In the ensuing months, the Corps conducted the

required investigatio into such matters as environmental

impact and impact on navigation and, after a considerable

time, the Division Engineer (by then COL C.A. Selleck,

Jr.) forwarded the recommendations of his office to his

superior, the Division Engineer, BG James L. Kelly. The

recommendation was that the application be denied and

that Raab be directed to restore the site to its original

state.

It should be noted at this point that no specific basis

for the Corps’ involvement had been raised. BG Kelly,

in rendering his decision, apparently determined that the

Corps’ right to control this filling operation arose out of

the Rivers and Harbors Act of 1899, 33 USC §401, et seq.

BG Kelly determined that the Corps, in fact, had no

jurisdiction over the filling operation and directed that

Raab be so advised. This action then followed.

BASIS FOR FEDERAL JURISDICTION

This is one of the points at issue. It is Petitioners’

contention that the Administrative Procedure Act, 5 U.S.C.

§701, et seq. operates to grant federal jurisdiction in this

case.

23

REASONS FOR GRANTING WRIT

Point |

The Administrative Procedure Act operates to grant

Federal jurisdiction in this case.

At present, there is a disagreement among the sev-

eral circuits as to whether the Administrative Procedure

Act (APA) operates to expand the jurisdictional author-

itv of the Federal District Court.

Those circuits holding that jurisdiction is not ex-

tended by the APA generally rely on the phrase in Sec-

tion 703 of the APA which reads: “. . . in a court of

competent jurisdiction,” and hold that one must first see

if the court has initial jurisdiction to consider the matter

before considering the question of the relief actually

sought under the act. For example, Ove Gustaffson Con-

tracting Co. v. Floete, 278 F.2d 912 (2d. Cir. 1960) (but

see Aguayo v. Richardson, 472 F.2d 1090 (2d Cir. 1973)

in which the Second Circuit stated: “In Mills v. Rich-

ardson . . . we said the question whether the APA was

an independent jurisdictional grant has not been decided

in this circuit.” ); Local 542, International Union of Oper-

ating Engineers, AFL-CIO v. N.L.R.B., 328 F.2d 850 (3d

Cir. 1964); Bramblitt v. Desobry, 490 F.2d 405 (6th Cir.

1974); Twin Cities Chippewa Tribal Council v. Minne-

sota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967); Ari-

zona St. Dept. of Pub. W. v. Department of Health, E. &

W.. 499 F.2d 456 (9th Cir. 1971), certiorari denied, 405

U.S. 919. 92 S.Ct. 945, 30 L.Ed.2d 789 (1972) (but see

State of Washington v. Udall, 417 F.2d 1310, 1319 (9th

Cir. 1969) which was neither expressly overruled nor even

commented upon by Arziona St. Dept. of Pub. W. v. De-

partment of Health, E. & W.); ¢ *hournos v. United States,

335 F.2d 918 (10th Cir. 1964).

24 Reasons for Granting Writ

Other circuits have held that the APA does confer

jurisdiction, e.g., Bradley v. Weinberger, 483 F.2d 410

(Ist Cir. 1973); Deering Milliken v. Johnston, 295 F.2d

856 (4th Cir. 1961); Pickus v. United States Board of

Parole, 507 F.2d 1107 (D.C. Cir. 1974). Those courts

finding a jurisdictional grant rely on such statutory lan-

guage as: “A person . . . adversely affected or aggrieved

by agency action... is entitled to judicial review

thereof.” (5 U.S.C. §702) Or “. . . final agency action for

which there is no other adequate reimedy in a court . . .’

(5 U.S.C. §704).

The crux of the matter appears to be in the meaning

of the first sentence of 5 U.S.C. §703, which says:

The form of proceeding for judicial review is the

special statutory review proceeding relevant to the

subject matter in a court specified by statute or,

in the absence or inadequacy thereof, any applicable

form of legal action, including actions for declaratory

judgments or writs of prohibitory or mandatory in-

junction or habeas corpus, in a court of competent

jurisdiction. (emphasis added )

The emphasized portion is the section at issue here.

The courts finding no expansion of jurisdiction, when

they have analyzed the language of the act, appear to

fix first on the phrase “in a court of competent jurisdic-

tion,” considering that they must first examine the normal

jurisdiction of the court. Then, if that barrier is passed,

go on to consider aspects of the case applicable to the act.

Those courts finding that the APA merely codified proce-

dures for review without granting jurisdiction, have not

commented at all on what changes were actually wrought

by the act; that is, how the procedure differed after the

APA vas adopted from what it was prior to its adoption.

os eee. 6 ed

Reasons for Granting Writ 25

Ove Gustaffson Contracting Co. v. Floete, supra, said “The

purpose of §10 is to define the procedures and manner

of judicial review of agency action . . .” but there is no

indication that the procedures followed by the courts

prior to the adoption of the APA were substantially dif-

ferent from those followed later. That raises the ques-

tion of what purpose, then, the act really accomplished

if there was no meaningful difference before and after

adoption of the APA.

While it is conceded that there is no express state-

ment, either in the APA or in any Supreme Court opinion

to the effect that the APA creates expanded federal juris-

diction, it is suggested that the Supreme Court has done

everything short of making that express statement.

In Heikkila v. Barber, 345 U.S. 229, 232, 73 S.Ct. 603,

605, 97 L.Ed. 972 (1953) the Court, commenting on the

legislative history of the APA said:

The spirit of these statements together with the

broadly remedial purposes of the Act counsel a judi-

cial attitude of hospitality toward the claim that §10

greately expanded the availability of judicial review.

Moreover, it is suggested that in Abbott Laboratories

v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681

(1967) the Supreme Court did squarely deal with the

issue and resolved it in favor of expanded jurisdiction.

Although the Court did not announce that the found ex-

panded jurisdiction in so many words, the case has a very

distorted meaning if it is construed otherwise. None of

the cases decided since 1967 in any of the Circuits which

have held that the APA did not expand jurisdiction have

mentioned Abbott Laboratories. It is only those circuits

which have found such jurisdiction which deal with the

case.

26 Reasons ffor Granting Writ

The jperttinent part of tthe Abbett Laboratories opim-

iio :

he «question iis phrased im tterms cif “jprdhihition”

irtther tthan “authorization” Ihecause a survey af our

cases Shows tthat judicial mewiew of .a final agency action

hy an aggrieved person will met Ihe cut aff umiless tthene

iiS A [persuasive measen tto Ibdlieve tthat sucdh war tthe

[purpose af Congress. ||citdtions omitted] Earhy cases

im which tthis ttype af jjudicidl meview was entertained,

eg. Shidlds w. Utah iidho Central R. Ca, 305 US.

IT; Stark w. Widkord, 221 US. 288, have been

reitttoreed tby tthe «enactment «ff tthe Administrative

Rrocedure Adt, whidh enibodies tthe Ihasic presumption

(if jjudicidl meview tto ane “siffering legal waeng be

cause df agency .udtion, or adversdly affected or ag-

grieved Iby agency action within tthe meaning «f ‘the

tdlevarit statute.” 5 US(C. $702, so llong .as mo statute

jpredludes ssudh idli¢f cor tthe action iis mat ne com-

imitted by llaw to .agency discretion. 5 USC. $70l(2).

‘Whe Administrative Precedure ‘ct provides specificully

mat orily ‘for.a meview if “fal]gency action made review-

dble thy sstatute” Ibut dlso ffor .a review of “final agency

.adction {for which tthere iis mo « a adequate remetly

iin .a court,” 5 USC. $704. ‘Whe !legidlative materiel

¢lucidating ‘that seminal .act manifests a congressional

\interition (that iit over .a !broad spectrum of .admini-

‘Strative actions, .and tthis Court |has «dhoed tthat ‘theme

lhy inoting tthat ‘the Administrative [Rrecedlure Act's

“generous review |provisions: :must lhe given .a Thospit-

able” (interpretation. [citations omitted] Again, iin

Musk w. (Gortt., supra, att 379-380, tthe Court |hdld (that

(orily \ypon .a showing df “‘dlear .andl onvineing evi-

lence” df .a contrary legislative jintent should tthe

‘courts :restriet .aceess ‘to |juilicidl review.

The (Court, by way df ffootmote supporting iits position,

cited aj portion df tthe rqport throm tthe House, iin whidh tthat

lhatly stated :

BEST COPY AVAILABLE

ee oe ee

Fe ce re ee et —

Reasons for Granting Writ 27

To preclude judicial review under a bill a statute, if

not specific in withholding such review, must upon

its face give clear and convincing evidence of an

intent to withhold it. The mere failure to provide

specifically by statute for judicial review is certainly

no evidence of intent to withhold review.

H.R. Rep. No. 1980, 79th Cong., 2d. Sess., 41 (1946)

It is curious to call an act which some Circuits have

held to merely codify and organize the procedure for review

a “seminal act,” as the Supreme Court did the APA. More-

over, it is apparently impossible to reconcile the Supreme

Court's position in Abbott Laboratories that the act under

which review is sought must either expressly bar review

or bar it clearly by implication and that failing such bar

the aggrieved person is entitled to review, with the view

that there must also be a jurisdictional hurdle crossed be-

fore one can avail himself of the APA. Taking the instant

case, the Rivers and Harbors Act of 1899 does not afford

any provision for review and the District Court has there-

fore held that it has no jurisdiction to review the Corps of

Engineers’ actions under that act which means, in effect,

that all of the actions of the Corps of Engineers under that

act are immune from review based on any citizen's com-

plaint. This circular reasoning hardly accords with the

view taken in Abbott Laboratories as to the purpose of the

APA and it can only make sense if one holds that the APA

does operate as a grant of jurisdiction. As was pointed out

by the court itself, in oral argument before the Court of

Appeals, if the APA does not operate to grant jurisdiction,

the Corps of Engineers could potentially declare the Missis-

sippi River unnavigable and no one would be able to chal-

lenge their determination because there would be no juris-

diction to review that determination.

28 Reasons for Granting Writ

The current state of affairs is that there does exist a

difference of opinion among the circuits as to the impact

of the APA. This obviously promotes forum shopping.

Had this same suit been brought in the District of Colum-

bia, jurisdiction would have been found and the case would

have been heard on its merits. A clear example is the

case of National Resources Defense Council v. Callaway,

Civil No. 74-1242, D.D.C., March 27, 1975. It is a case

upon which petitioners intended to rely rather heavily in

avy plenary hearing of the matter. In Callaway plaintiffs

expressly cited the APA as a principal source of jurisdic-

tion and in fact each point of jurisdiction raised by plain-

tiffs in Callaway has been raised in the instant case. In

Callaway’s case it was successful. Here, to date, it has

been unsuccessful and the only difference is the court in

which the suit was originally brought.

In summary, it is urged that this difference between

the circuits is not a desirable one, especially on such an

imiportant question as whether an act grants original juris-

diction to bring a case in a Federal Court and for that

reason a Writ of Certiorari is sought so that the matter can

be decided with some finality and uniformity.

Point II

The Court erred in determining that relief by way

of Mandamus was not appropriate.

The District Court denied relief by way of mandamus

on the grounds that adequate relief is available elsewhere.

Specifically, the court was referring to the citizen suit pro-

visions of the Federal Water Pollution Control Act

(FWPCA), 33 U.S.C. $1365.

A review of the Rivers and Harbors Act of 1899 re-

veals no means by which a citizen can obtain redress for

wee ee ae

Reasons for Granting Writ 29

an abuse of discretion by the Corps of Engineers, unless

via the route sought in Point I.

Undoubtedly the FWPCA overlaps the Rivers and

Harbors Act to some extent. However, even the FWPCA

gives no direct right of relief against the Corps of Engineers.

The Corps is given re powers under the FWPCA, see,

e.g., 33 U.S.C. §§1341(c), 1344 and although the Corps

was apparently acting i its Rivers and Harbors Act

authority in the instant case, an argument could be made

that in fact it was acting under some sort of dual authority.

Still, the FWPCA affords a citizens action against the Ad-

ministrator of the Environmental Protection Agency and

against no one else. 33 U.S.C. §1365(a)(2). However,

that suit can only be brought when the Administrator has

failed to perform a non-discretionary act. There is no

provision for the review of any flagrant abuse of discretion

on his part.

A review of the FWPCA shows that there is little

that the Administrator could do to compel some action by

the Corps of Engineers and less that the Administrator

could be forced to do by way of a citizens’ suit. The Ad-

ministrator can, pursuant to §1319(a)(3) of the FWPCA,

issue an order requiring compliance with any section of

the FWPCA deemed violated or can commence suit, under

§1319(b) of the FWPCA to injoin further action by the

alleged polluter. Since Mr. Raab has already ceased his

filling operations, short of directing him to remove the fill,

there is nothing which the Administrator could do in the

instant case. The worst damage was done by the actually

filling in destroying those wet lands. The current damage

would consist only of erosion off the fill into the surrounding

waters and, relatively, that would be of lesser impact and

could probably not be stopped in any event since it now

becomes an act of nature.

30 Reasons for Granting Writ

Moreover, while plaintiffs might prevail in a citizen

suit, the type of relief obtainable is clearly not a guarantee

of adequate relie?. The most the court can actually compel

the Administrator to do is investigate the matter. It is

Petitioners’ position that Mr. Raab lacked the authority in

the first instance to emplace the fill and that he should not

be permitted to present a fait accompli to both govern-

mental and private entities. Of course only a plenary

hearing would determine the validity of such allegations

but assuming for the moment that they are correct, the

FWPCA affords no means to compel Mr. Raab to remove

the fill because the Administrator must first determine that

there has been some violation and that is a matter of judg-

ment and discretion. There is no guarantee that the Ad-

ministrator will or must reach the same conclusion that

the Division Engineer reached—that the fill ought to be

removed and an application for permit to fill should be

denied. Unless an action can at least potentially result in

that type of relief, lesser relief is not adequate. Of course,

there is the separate question of whether a court would

reach the conclusion that it was an appropriate remedy to

compel this removal but if the FWPCA does not even

permit a court to consider this, then it does not afford a

means to obtain adequate relief.

For these reasons it is submitted that the District

Court erred in holding that the FWPCA afforded adequate

remedy in this matter.

ee ee

On ent Be ee is SO

RO Ot om ty tan A Ae Rae na ee

31

CONCLUSION

In essence, this is a situation where there was an act

done which arguably should not have beer. done. If the

District Court and Circuit Court are correct, it is a wrong

without a remedy—but only if an action is brought in the

districts encompassed by the Third Circuit. If brought in

another circuit, the suit would proceed to a ruling on its

merits. This situation is unnecessary and can readily be

rectified on way or the other by this Court granting Cer-

tiorari and making a formal determination as to the scope

of the APA vis-a-vis the question of jurisdiction.

If the lower courts are correct, the plaintiffs are left

to face a wrong without a remedy, which is almost

anachronistic.

Respectjymy submitted,

/

Oe ey Hisar KO CZ ~

S

STEPHEN B. PATRICK

Northwest Boulevard

P.O. Box 304

Newfield, New Jersey 08344

Counsel for Petitioners

Lk

la

APPENDIX

APPENDIX A

OPINION OF US. DISTRICT COURT

(Filed November 24, 1975)

Stephen B. Patrick, Esquire

Northwest Boulevard,

P.O. Box #304

Newfield, New Jersey 08344

(Attorney for Plaintiffs )

Garry J. Roettger, Esquire

Messrs. Hiering, Grasso, Gelzer & Kelaher

Hiering Building

Courthouse Square

Toms River, New Jersey 08753

(Attorney for Defendant Raab)

A. Patrick Nucciarone, Esquire

Assistant United States Attorney

Federa! Building

Federal Square

Newark, New Jersey 07101

(Attorney for remaining Defendants )

RE: LOVELADIES PROPERTY OWNERS ASSOCIA-

TION, INC., a corporation of the State of New

Jersey; JOINT COUNCIL OF TAXPAYERS ASSO-

CIATIONS OF SOUTHERN OCEAN COUNTY,

INC., a corporation of the State of New Jersey; and

LONG BEACH ISLAND CONSERVATION SO-

CIETY, INC., a corporation of the State of New

Jersey v. MAX RAAB, UNITED STATES ARMY

CORPS OF ENGINEERS, COL. C. A. SELLECK,

JR., District Engineer, Philadelphia District, United

2a Appendix A

States Army Corps of Engineers, BG JAMES L.

KELLY, Division Engineer, North Atlantic Division,

United States Army Corps of Engineers, UNITED

STATES ENVIRONMENTAL PROTECTION

AGENCY, and GERALD M. HANSLER, Regional

Director, Region II, United States Environmental

Protection Agency. (Civil Action No. 74-1549)

Gentlemen:

This case arises out of land-filling operations conducted

by defendant Max L. Raab on property located on the

edge of Barnegat Bay in Long Beach Township, New Jer-

sey. The filling was performed between October and

December of 1972. Raab received no prior authorization

for his activities from the Environmental Protection Agency

(hereinafter “EPA”) or the Army Corps of Engineers

(hereinafter “COE”). Plaintiffs, which are three associa-

tions of taxpayers and property-owners in the Long Beach

Island area, contend that Raab’s non-approved filling opera-

tions were violative of the Rivers and Harbors Act of 1899,

33 U.S.C. §401, et seqg., and the Federal Water Pollution

Control Act Amendments of 1972 (hereinafter “FWP

CAA”), 33 U.S.C. §1251, et seq. In the present action,

plaintiffs seek to compel the EPA and COE to determine

whether Raab’s activities were proper and should be ap-

proved.

The procedural background of this case is significant.

In late 1972, COE personnel observed Raab’s filling opera-

tions. Colonel Carroll Strider, Chief of the COE’s Philadel-

phia office, wrote to Raab and directed him to cease all

filling activity, and to apply to the COE for an after-the-

fact permit. Raab had already completed his filling opera-

tions by the time he received Colonel Strider’s letter. He

did submit an application for an after-the-fact permit in

early 1973. Upon a more thorough investigation, the COE

ee ee ee ee

Appendix A 3a

determined that the filling operations occurred above the

“mean high water line” and, therefore, were beyond what

the COE conceives to be its statutory jurisdiction. But see

United States v. Holland, 373 F.Supp. 665 (M.D. Fla.

1974). Accordingly, COE did not rule on the merits of

Raab’s application for a permit, even though considerable

opposition to the grant of a permit had been received from

individuals, organizations, and state and federal agencies.

The COE’s determination was communicated to Raab in

October, 1974. The EPA apparently was requested to

exercise its jurisdiction, but refused to do so. Accordingly,

plaintiffs initiated the present lawsuit.’ The case is now

before the Court on defendants’ motions to dismiss the

complaint and on the parties’ cross-motions for summary

judgment.

The federal statutory scheme regarding the discharge of

fill materials into United Statts waters may be briefly sum-

marized as follows: Section 404 of the FWPCAA, 33 U.S.C.

§1344, authorizes the Secretary of the Army, acting through

the COE, to issue permits to persons desiring to discharge

fill materials into the navigable waters of the Unittd States.

Section 301(a) of the FWPCAA, 33 U.S.C. §1311(a),

makes the discharge of fill material, without a permit, un-

lawful. Finally, §309(3) of the FWPCAA, 33 U.S.C. §1319

(3), requires the Administrator of the EPA to issue an

order requiring compliance or to institute a civil action

1. Plaintiffs’ original complaint named only Raab and the United States

of America as party-defendants. The United States moved to dismiss on the

grounds of sovereign immunity, lack of subject matter jurisdiction, and failure

to state a claim upon which relief may be granted. Plaintiffs then consented

to a dismissal of their suit against the United States, and subsequently filed

an amended complaint naming as defendants the EPA, the COE, and various

officials thereof. These defendants contend that the dismissal of the complaint

against the United States should bar the present action against United States

agencies and employees on the ground of res judicata. We are not satisfied

that the res judicata doctrine is applicable here. In any event, in light of our

dismissal of this case on other grounds, we need not consider that argument.

2. This section supplements a similar permit provision in the Rivers and

Harbors Act of 1899, see 33 U.S.C. §403.

da Appendix A

once he determines that a person has discharged fill mate-

rials without a permit, in violation of 33 U.S.C. §1311. In

the present case, the COE and the EPA have refused to act

undtr this statutory framework—apparently concluding that

Raab did not deposit fill in the navigable waters of the

United States.’ Plaintiffs, of course, vigorously contest this

conclusion. With this background in mind, we proceed to

the motion presently before us.

At the outset, the defendants contend that the plaintiff

organizations lack standing to bring this complaint. In

Association of Data Processing Service Organizations v.

Camp, 397 U.S. 150 (1970), the Supreme Court set forth a

twofold test for determining whether particular plaintiffs

have standing to challenge administrative action. Under

the Data Processing test, the court must inquire: (1)

whether plaintiff suffered injury-in-fact from the challenged

action, 397 U.S. at 152; and (2) “whether the interest

sought to be protected by the complainant is arguably

within the zone of interests to be protected or regulated

by the statute or constitutional guarantee in question,” 397

U.S. at 153. Without doubt the second Data Processing

requirement is satisfied by the plaintiffs here—at least inso-

far as the complaint arises under the FWPCAA.* The in-

3. The FWPCAA defines “navigational waters” broadly as “the waters of the

United States,” 33 U.S.C. §1362(7). The United States District Court for

the Middle District of Florida has concluded that the term “navigational

waters,” thus defined, provides no jurisdictional limitation on the reach of

the FWPCAA. United States v. Holland, 373 F. Supp. 665 (M.D. Fla. 1974).

1. However, plaintiffs probably do not have standing under the Rivers and

Harbors Act of 1899, 33 U.S.C. §401, et seq. This Act was intended to pro-

tect the navigability of the nation’s waterways. See Discussion of 1899 Act.

infra. Plaintiffs here make no allegation that Raab’s activities affect their in-

terest in navigable waters. Rather, their concern seems to be purely environ-

mental. Thus, they are not arguably “within the zone of interests” intended

to be protected by the Rivers and Harbors Act. Moreover, as we later point

out in this opinion, see Discussion of 1899 Act, infra, a private right of action

cannot be implied from the Rivers and Harbors Act. The Supreme Court has

pointed out the considerable overlap between the “standing” issue and the

“implied right of action” issue. See National Railroad Passenger Corp. v.

National Association of Railroad Passengers, 414 U.S. 453, 456 (1974).

Oe tens a ren ee

2 AO: Sat nal wi als

Appendix A Sa

clusion of a “citizen suits” provision in the FWPCAA, 33

U.S.C. §1365, indicates that Congress specifically intended

that the interests of private citizens be protected by the

Act.

The issue remaining, then, is whether plaintiffs in the

yresent case have alleged sufficient injury-in-fact to main-

tain their challenge to Raab’s activities. In Sierra Club v.

Morton, 405 U.S. 727 (1972), the Supreme Court discussed

at length the injury-in-fact requirement:

“The trend of cases arising under the APA and other

statutes authorizing judicial review of federal agency

action has been toward recognizing that injuries other

than economic harm are sufficient to bring a person

within the meaning of the statutory language, and

toward discarding the notion that an injury that is

widely shared is ipso facto not an injury sufficient to

provide the basis for judicial review. We noted this

development with approval in Data Processing, 39%

U.S., at 154, in saying that the interest alleged to have

been injured ‘may reflect “aesthetic, conservational,

and recreational” as well as economic values. But

broadening the categories of injury “that may be

alleged in support of standing is a different matter from

abandoning the requirement that the party seeking

review must himself have suffered an injury.

“Some courts have indicated a willingness to take

this latter step by conferring standing upon organiza-

tions that have demonstrated ‘an organizational interest

in the problem’ of environmental or consumer protec-

tion. Environmental Defense Fund v. Hardin, 138

U.S. App. D. C. 391, 395, 428 F.2d 1093, 1097. It is

clear that an organization whose members are injured

may represent those members in a proceeding for judi-

cial review. See, e. g., NAACP v. Button, 371 US.

6a Appendix A

415, 428. But a mere ‘interest in a problem,’ no matter

how longstanding the interest and no matter how

qualified the organization is in evaluating the problem,

is not sufficient by itself to render the organization ‘ad-

versely affected’ or ‘aggrieved’ within the meaning of

the APA....” 405 U.S. at 738-9 (footnotes omitted ).

Upon applying these principles in Sierra Club, the Supreme

Court held that the Sierra Club did not have standing to

challenge a proposed commercial development in Mineral

King Valley, California, because the Club did not allege

that its members used the Mineral King area for recre-

ational, aesthetic, or other purposes. 405 U.S. at 735, 739-

40.

The allegations in the present case differ substantially

from the Sierra Club allegations. Here, the plaintiffs do not

merely allege that they have a generalized interest in con-

servation and the environment. Compare Sierra Club v.

Morton, supra, 405 U.S. at 735, 739. Instead, the plaintiff

organizations allege that their members are “directly af-

fected” by the ecological system of Barnegat Bay; that they

enjoy the area’s aesthetic benefits; that they use the area

for recreational activities: and that the value of the proper-

ties they own in the area would be adversely affected by a

deterioration in the environmental quality of the Bay.

Clearly, these allegations of specific injury are sufficient to

confer standing on the plaintiffs under the standards set

forth in Sierra Club. See United States v. Students Chal-

lenging Regulatory Agency Procedures (SCRAP), 412 U.S.

669, 683-90 (1973); Montgomery Environmental Coalition

v. Fri, 366 F.Supp. 261, 263-4 (D.D.C. 1973).

While the plaintiffs thus have standing under the

FWPCAA, their challenge to Raab’s filling operations must

nonetheless be dismissed for failure to comply with the

ante

avnnetcttnatit. ‘diner «1 0 ctctbnsnill sided il

Appendix A Ta

procedural requirements of the Act's “citizen suits” pro-

vision, 33 U.S.C. §1365. Section 1365 provides, inter alia,

that an action against the EPA Administrator for failure to

fulfill his duties may not be commenced prior to sixty (60)

days after notice of the action has been given to the Ad-

ministrator, 33 U.S.C. §1365(b)(2). Similarly, an action

against a private violator of the Act may not be commenced

prior to sixty (60) days after notice of the action has been

given to the Administrator, to the state in which the alleged

violation occurs, and to the alleged vioiator, 33 U.S.C.

§1365(b)(1). The EPA has published regulations spe-

cifically detailing who should receive the notice and what

information should be contained in the notice. See 40

C.F.R. §§135.2 and 135.3. The plaintiffs herein have not

complied with the notice provisions of §1365 nor with the

provisions of the EPA’s regulations. Indeed, the Admin-

istrator of the EPA is not even named as a party to the

lawsuit—even though §1365 clearly contemplates that suits

against the EPA should be directed at the Administrator.

Plaintiffs contend that the technical requirements of

§1365 should be ignored in the present case because the

“spirit” of the requirements has been satisfied. Plaintiffs

point out that they did notify the Regional Director of

EPA more than sixty (60) days before filing their amended

complaint. However, this Court is not at liberty to ignore

the requirements of federal statutes and regulations—“tech-

nical” though they may appear to be. Where Congress

provides a statutory method for obtaining review of ad-

ministrative decisions, that method must be strictly ad-

hered to. See Weinberger v. Salfi, 43, U.S.L.W. 4985,

4987-90 (U.S., June 26, 1975); United States v. Ruzicka,

329 U.S. 287 (1946); SEC v. Andrews, 88 F.2d 441 (2d

Cir. 1937). The plaintiffs’ failure to do so here compels the

Court to dismiss their action under the FWPCAA. Com-

8a Appendix A

pare Pinkney v. Ohio Environmental Protection Agency,

375 F. Supp. 305, 307-9 (N.D. Ohio 1974); City of High-

land Park v. Train, 374 F. Supp. 756, 765-67 (N.D. III.

1974).°

As jurisdictional alternatives to the FWPCAA, the plain-

tiffs seek to rely on the Rivers and Harbors Act of 1899, 33

U.S.C. §401, et seq., the Administrative Procedure Act, 5

U.S.C. §551, et seq., and $701, et seg., and the federal man-

— statute, 28 U.S.C. §1361. All of these claims must

ail.

While this Court may have jurisdiction to hear plaintiffs’

claim insofar as it “arises under the Rivers and Harbors

Act, see 28 U.S.C. §§1331 and 1337, the claim under that

Act must nonetheless be dismissed for failure to state a

claim upon which relief may be granted. In substance,

the Rivers and Harbors Act provides for the assessment of

civil and criminal penalties against persons or corporations

who, without authorization, perform some activity which

might impede the navigability of the nations waterways.

The Act contains no express authorization of private civil

actions. Nor can such a private remedy fairly be implied

from the text and purpose of the Act. See Red Star Towing

and Transportation Co. v. Department of Transportation of

New Jersey, 423 F.2d 104, 105-6 (3d Cir. 1970); cf. Guthrie

v. Alabama By-Products Co., 328 F.Supp. 1140, 1144-9

(N.D. Ala. 1971), affd, 456 F.2d 1294 (5th Cir. 1972): n. 4,

supra.

a are aware that —— courts have held that the FWPCAA's “citizen

suits provision is not an exclusive remedy, and that claims arisi

FWPCAA also may be brought to the dao federal question p Be ote

provision, 28 U.S.C. §1331—thereby avoiding the procedural requirements of

the “citizen suits” provision. See, ¢.g., Natural Resources Defense Council v

Train, 510 F.2d 692, 698-704 (D.C. Cir. 1975); Conservation Society of

Southern Vermont t. Secretary of Transportation, 508 F.2d 927, 938-9 (2d Cir

1974), cf. City of Highland Park c. Train, supra, 374 F. Su >. at 767. This

position finds support in the so-called “savings clause” of the citizen suits

provision, see 33 USC. $1365(e). However, plaintiffs in the present case

do “¢ my > ae ae federal question jurisdiction, and, in any

event, would be hard-pressed to sati » § jurisdictions

iterate: # cues af tisfy the $10,000. jurisdictional amount re-

oe

Appendix A 9a

Similarly, plaintiffs cannot maintain this action on the

authority of the Administrative Procedure Act. While the

various circuits are irreconcilably split on the issue, com-

pare, e.g., Twin Cities Chippewa Tribal Council v. Minne-

sota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967) with

Pickus v. United States Board of Parole, 507 F.2d 1107

(D.C. Cir. 1974) the clear law in the Third Circuit is that

the, Administrative Procedure Act does not create an inde-

pendent jurisdictional basis for suits challenging govern-

ment agency actions. Chaudoin v. Atkinson 494 F.2d 1323,

1328 (3d Cir. 1974); Zimmerman cv. United States, 422

F.2d 326, 330-32 (3d Cir. 1970), cert. denied, 399 U.S. 911

(1970).

Finally, the plaintiffs attempt to invoke federal manda-

mus jurisdiction, 28 U.S.C. §1361,° also must fail. Manda-

mus is an extraordinary remedy, available only in situations

where government officials clearly have failed to perform

nondiscretionary duties. See Carter v. Seamans, 411 F.2d

767, 773 (5th Cir. 169), cert. denied, 397 U.S. 941 (1969).

Moreover, mandamus is not available when an alternative

adequate remedy exists. See Ex parte Republic of Peru,

318 U.S. 578, 584 (1943), Richardson v. United States, 465

F.2d 844, 849 (3d Cir. 1972), rev'd on other grounds, 418

U.S. 166 (1974); Carter v. Seamans, supra.

In the present case, plaintiffs obviously have an alter-

native adequate remedy—that is, an action under the “citi-

zen suits” provision of the FWPCAA. Such an action, if

successful, would result in an order requiring the EPA to

exercise jurisdiction over Raab’s filling activities. In effect,

6. This statute was enacted in 1962. The statute was not intended to en-

large the scope of mandamus relict, but, rather, was intended to make the

remedy more readily available in districts outside the District of Columbia.

See Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir. 1970), Carter v. Seamans,

411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941 (1969). See

generally Byse & Fiocea, Section 1361 of the Mandamus and Venue Act of

1962 and “Nonstatutory” Judicial Review of Federal Administrative Action, 31

Harv. L. Rev. 208 ( 1967).

10a Appendix A

plaintiffs would receive the complete relief sought in the

present action. Where Congress establishes a statutory

method for reviewing administrative action, as here, an

aggrieved party cannot avoid compliance with the statutory

process by bringing a mandamus action. See Wilmot v.

Doyle, 403 F.2d 811, 816 (9th Cir. 1968).

In accordance with this opinion, defendants’ motions to

dismiss the complaint are granted. Plaintiffs’ motion for

summary judgment is denied. An appropriate order will

be submitted.

Very truly yours,

/s/ George H. Barlow

GEORGE H. BARLOW

United States District Judge

GHB/ebj

lla

APPENDIX B

ORDER OF US. COURT OF APPEALS

Argued November 30, 1976

Before ROSENN, KALODNER and GARTH,

Circuit Judges.

JUDGMENT ORDER

After consideration of the contentions raised by appel-

lant, it is

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

Costs taxed against appellant.

By the Court,

/s/ Max Rosenn

Circuit Judge

Attest:

/s/ M. Elizabeth Ferguson

Chief Deputy Clerk

DATED: December 7, 1976 c..