# Petition — Loveladies Property Owners Ass'n v. Raab > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1386%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 432 U.S. 906 ## Text 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.. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1386%3A1. Public record. Not legal advice.