Petition — Middlesex County Sewerage Authority v. National Sea Clammers Assn.

Supreme Court brief1981

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Text

APR 29 1980

Suprene Court of the Wnited| Btwkedocs., 12 oso»

Ocroper Term, 1979

IN THE

@9-1711

MIDDLESEX COUNTY SEWERAGE AUTHORITY, PASSAIC VALLEY SEWER-

AGE COMMISSIONERS, MIDDLETOWN SEWERAGE AUTHORITY, BERGEN

Morea ieee AUTHORITY and THE LINDEN ROSELLE SEWERAGE

Petitioners,

NATIONAL SEA CLAMMERS ASSOCIATION, GOSTA LOVGREN, CITY OF

NEW YORK, HONORABLE ABRAHAM BEAME, UNITED STATES EN-

VIRONMENTAL PROTECTION AGENCY, RUSSELL E. TRAIN, individually

and as ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, UNITED STATES ARMY CORPS OF ENGINEERS,

MARTIN R. HOFFMANN, individually and as SECRETARY OF THE UNITED

STATES DEPARTMENT OF THE ARMY, NEW YORK DEPARTMENT OF

ENVIRONMENTAL CONSERVATION, OGDEN R. REID, individually and as

COMMISSIONER OF THE NEW YORK DEPARTMENT OF ENVIRON-

MENTAL CONSERVATION, NEW JERSEY DEPARTMENT OF ENVIRON-

MENTAL PROTECTION, DAVID J. BARDIN, individually and as COMMIS-

SIONER OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PRO-

TECTION, WEST LONG BEACH SEWER DISTRICT, COUNTY OF WEST-

CHESER, DEPT. OF ENVIRONMENTAL FAC. CITY OF LONG BEACH

AND CITY OF GLEN COVE and THE JOINT MEETING OF ESSEX AND

UNION COUNTIES,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

WILENTZ, GOLDMAN & SPITZER, MILTON B. CONFORD,

A Professional Corporation, Counsel for Petitioner, Middlesex County

Attorneys, Sewerage Authority,

FRANCIS x JOURNICK, 900 Route 9,

MARVIN J. BRAUTH, Woodbridge, New Jersey 07095.

Of Counsel. (201) 636-8000

(Additional Counsel appear on the reverse side of this cover)

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

JOHN G. GILFILLAN, III,

Of Counsel.

MENELAOS W. TOSKOS,

Of Counsel.

FURMAN anv JENNINGS,

Attorneys.

CHARLES C. CARELLA,

Counsel for Petitioner, Passaic Valley

Sewerage Commissioners,

Gateway I, Suite 2404,

Newark, New Jersey 07102.

STEPHEN J. MOSES,

Counsel for Petitioner, Bergen County

Sewer Authority,

One Essex Street,

Hackensack, New Jersey 07601.

VINCENT J. JENNINGS,

Counsel for Petitioner, Township of Middle-

town Sewerage Authority,

110 Highway 35,

Red Bank, New Jersey 07701.

RAYMOND G. TOMASZEWSKI,

Counsel for Petitioner, The Linden Roselle

Sewerage Authority,

812 North Wood Avenue,

P.O. Box 626,

Linden, New Jersey 07036.

TABLE OF CONTENTS

SS EE Oh RA IEA SN ee a

GREAT RE Ghee eek Od SRO WER -

QUESTIONS PRESENTED FOR REVIEW ...W..........-.-:0+2-ce--0-000

CONSTITUTIONAL AND Statutory Provisions INVOLVED

nner ere Cae nas cccecsnecnsseencseccmcecntece

ARGUMENT—Petitioner advances the folowing reasons

for the allowance of certiorari:

A. The holding of the Court of Appeals that

failure of plaintiffs to give the statutory no-

tice of intention to institute a complaint based

on the Federal Water Pollution Control Act

(FWPCA) 33 U.S.C. Sees. 1251 et seq., 1365,

and on the Marine Protection, Research and

Sanctuaries Act (MPRSA) 33 U.S.C. Sees. |

1401 et seq., 1415, is not fatal to claims for

relief under those statutes, is erroneous; and

the Courts of Appeals are in conflict on the

issue, rendering review by this Court highly

SIDI. :isiashternonanuceacesinmepisinisiannsenihacbihaeicntcsbbonciosiinas

B. The holding of the Court of Appeals that a

private citizen may maintain an action under

28 U.S.C. See. 1331 against a state govern-

mental agency for pollution of ocean waters

on the basis of a federal common-law nuisance

theory is erroneous; and the federal courts

of appeals are now in conflict on the issue,

rendering review by this Court highly de.

IIIS 1.4 councsasasdgtuaselesopshuboiotaniaaiaseleninaeonnieebasicountsicaleinins

TABLE OF CONTENTS

1. Significance of Illinois v. Milwaukee .......

2. Any pre-existing theory of federal com-

mon-law nuisance by a private party

against a public sewerage agency should

be deemed pre-empted by the enactment

of the 1972 Amendments ot FWPCA, of

MPRSA as amended in 1977, and of the

administrative regulations adopted by

KPA pursuant to both acts 2.0...

3. Illinois v. Milwaukee authorizes only an

injunction, not damages ....................-.-...—...

C. Any tort claim for damages against the New

Jersey sewage disposal agencies, including

any based on a federal common-law nuisance

claim, is barred by the Eleventh Amendment

and/or the New Jersey Tort Claims Act since

those agencies by New Jersey law partake

of New Jersey’s sovereign immunity, and the

waiver of such immunity here is predicated

on conditions which plaintiffs have not satis-

fied. Due respect for States under appro-

priate principles of federalism bespeaks re-

view of this issue by this Court, the Court

of Appeals having resolved it erroneously ..

1. As to immunity under the New Jersey

Tort Claims Act, N.J.S.A. 59:1-1 et seq.

Bic Bie oD ec

2. As to sovereign immunity under the

Eleventh Amendment _.W...-.....-.-.-co---o.-0---

fe am eta Da A UNMET CORA ly ATCT ee a

TABLE OF CONTENTS ii

PAGE

APPENDIX:

Opinion of the Court of Appeals la

Judgment of the Court of Appeals 37a

Opinion of the District Court .. 40a

Ordler of the Thiwtriet Cre ancl dcatescteteee 68a

Constitutional Provision and Statutes Involved Tla

Eleventh Amendment to Constitution of the

United States .............-. ie rome §

28 U.S.C. See. 1254 ...W.......... wiinnaiiacesie Tla

ee ERIE “i iancatteaticlenimeennietelints Tla

Re Rese RO hibeisc codec sigue Tla

28 U.S.C. See. 13833 72a

ee Ee Ne I ciciinctinccesinaadelmeniaiagaa 72a

33 U.S.C. Sec. 1251 .. 73a

33 U.S.C. Sec. 13811 ..... 76a

33 U.S.C. See. 1816 82a

33 U.S.C. Sec. 1817 .... 84a

33 U.S.C. See. 1841 ._.. = 88a

Se Re Mc POD coiceincind te isocaatinen 93a

Be Ui SHOU, BUD siacirsninipepnnententnenciotens 95a

33 U.S.C. See. 1365 . 96a,

33 U.S.C. See. 1401 .... sabaninbbaieaiin 98a

LR GAR GS °° ) enero nce eee na One 99a

ee se Gs BUI ed cteeticeistesisdeeneiiennnioncs 100a

Se Wr: TOO BRIG serenttinceorsieganicomanins 103a

lv TABLE OF CONTENTS

PAGE

ao UBL. Gee. 106 os 104a

42 U.S.C. See. 7604 .... ‘4 ... 105a

N.JS.A. 5921-2 ... . 108a

N.J.S.A. 59:1-3 __. 109a

Mar TR in eda eee 109a

OE SF | SOM irre See nike 109a

Pas BM cisiacctbccmsnsslan 109a

pS Re SE ee eee a1 Oe 110a

Cases Cited

Byram River y. Village of Port Chester, 394 F.

Sepp. €i8 (DN.Y. 1076) 17

City of Highland Park y. Train, 519 F.2d 681 (7 Cir.

1975), cert. denied 424 U.S. 927 (1976) 15,17

Committee for Con. of Jones Falls Sewage System

v. Train, 375 F.Supp. 1148 (D. Md. 1974), affirmed

on other grounds consistent with that of the Dis-

trict Court on the instant issue, 539 F.2d 1006 (4

SOs TIED Sicceciscacmanoeanciadessaecslaeslart ae 17-20, 23

Conservation Soc. of S. Ver. Ine. v. Secretary of

Tran., 508 F.2d 927 (2 Cir. 1974) 15

Cort v. Ash, 422 U.S. 66 (1975) 12

Georgia v. Tennessee Copper Co., 206 U.S. 230

SOE? <ccuinstnnetvaiinsdntetiimnbascunibadiaaiaiaiacsn nanan SOmmee 17

Hinderlider v. La Plata R. & Cherry Creek Ditch

Ce, 3 OR OR (00 cect 18

Tilinois v. City of Milwaukee, 406 U.S. 91 (1972) ....8, 16-21,

23-25

TABLE OF CONTENTS v

PAGE

Lafayette v. Louisiana Power & ae Co., 435 U.S.

PP CRED. silscdithenteesensnnis ei 28

Lincoln County v. Luning, 133 U. S. 529 (1890) ........ 29

Moneil v, N.Y.C. Department of Puble Service, 436

U.S. 658. (4978) ............. REE MROOS IEC E. PRO 28

Mt. Healthy City Board of Ed. v. Doyle, 429 U.S.

Ne OED. Scacraksnabbcccgediiniiniion enipiteiiadinlsiiadihlaianie 28-30

Natural Resources Defense Council, Inc. v. Callaway,

524 F.2d 79 (2d Cir. 1975) .............. an taehaens 15

Natural Resources Defense Council, Ine. v. Train,

ee ti eet |); | re ee 15

New York v. New Jersey, 256 U.S. 296 (1921) .......... 29

Parsell v. Shell Oil Co., 421 F.Supp. 1275 (D. Conn.

1976), aff’d without opinion sub nom, East End

Yacht Club, Ine. v. Shell Oil Co., 573 F.2d 1289

2 a | Se eneernemaremnnsex on ewan tne Senor woe 17,19

Potomac Riv. Ass’n. Ine. v. Lundeberg Md. Sea. Sch.,

Inc., 402 F.Supp. 344 (D. Md. 1975) .......000...... 26

Richie v. Cahall, 386 F.Supp. 1207 (D, N.J. 1974) ...... 27

S. E. Friel Co. v. N.J. Turnpike Auth., 73 N.J. 107

NITE * osncaxccoetsceenscad sidelargishceniieiticcnebes Lapdissinag ahaa tabacum 27

Sierra Club. v. Morton, 405 U.S. 727 (1972) 0.0... 13, 14

Texas v. Pankey, 441 F.2d 286 (10 Cir. 1971) .00...... 17,19

Touche-Ross & Co. v. Redington, —— U.S. ——, 61

ik; I “My EEE slonaiinsatedantteiniensanineaessinsotaaenaeihcocgiass 12

Wade vy. NJ. Tpke. Auth. 182 NJ. Super, 92 (L.

ENN rk he es ie ee 28

TABLE OF CONTENTS

Eleventh Amendment

28 U.S.C.:

See.

Sec.

See.

FRR ORR ERO R EERE EOE EH EEE EERE EEE EE EE EERE SHEE ESSE eeeeeeeeeeee

PAGE

United States Constitution Cited

4, 25, 28-30

Statutes Cited

40 :14A-1 5,9

SNE, eihidaceetnrpcdincedicsseda kesuiietaieineaiineads 4,9

SRNR oN CORPO EEENL ETOCS RUM ETE See 9

MMIII, > Sccsthasestiatasd conimentadaaiahicome ries a Ao 9

cS ORD NI ae Carer Ceres aOR TAD ie eT ET eee 9

WP ICA ~- waiccortabpctslapiaielcesiicubbauiasteneomietaMbininlebaiaan ats 9

09:1-1 (New Jersey Tort Claims Act) ....3, 4, 9, 25

PEAT oid: nvstibiisciabutseniasinensabascesiienpajasinnsehiptabbeaitiaas cai 4, 28

PERNA isstuicshib ucthinnedesnsisiounndeaecdbeiaandiledsiacolaivndasen +

TEP SR I \ olalicdadarenexsioeieabiesonaslaialatseaiail 25

MUNEUIE Ow acini cdesicabbanibasovecainenn ehaiarancndleciie ndniesadaastic 4, 26

ee MT i RDO TERT ATS SOPOT COLA LEAT 4, 27

RUT ia dicdas sepreatanictuakirshec lanl bea cdo ckicabiostte aieeoaeaia 4, 27

TPAD wisceunnnssnclaiies Shi tastieapiahiasesecneieneettma ikea 27

by G : ) Sv ceenmumccuen kaonoerta Ne BASIN GAN OR rem 2

TUTTE aiusiiecasistlieatduscmebieinleibaie came vapaantiie iatteete dials cas 2

REE” salindupieisiedadiiinindeniamiaraiccielctedmmeniiacy ctr aot 3, 16

HIT: AID Ssisdneniebncdslacceenceaaidtidcaiaiicnaeia tess 2,4

1333 ...... 2,4

TABLE OF CONTENTS Vii

PAGE

33 U.S.C. (Federal Water Pollution Control Act, as

amended) :

TR BAI isicnsspnnnninsa nae ianso~cigiinmnnminciinaniiiaie 2-4, 7, 10

33 U.S.C. (Marine Protection Research and Sanc-

tuaries Act of 1972, as amended):

See. 1311 .... 22

NO, SURG Scho stiintnscinaeis es 21

See. 1811(h) ...... s 22

PIO, TAI -siccsuncaisecmastindgnideesrattanseehagedihdanteladadanalianess-diiae 22

ENE SIT . seen bcestieteninnn 22

CPU, RIM Aesinsnihivinicsinisnsacitguashincedanmsaatntaceneaadannalia tans 22

BOIDS: DIPIIEE cicnsichepibenincepisdeinsibide iaksltnatadi eatin 22

I) a, sncsissccatceniiisaenmneteiietaiecielitbei alae chaccalicaas amet 3, 10, 13

BE UIP TMD sais tasaciotsindagson tienen seknincpameniaa caaiaienaae 14

PUG CURD BO ice Ne ee 13

RO: RMI TID cael ccsacaisinigisctacenmbicechaiteamnediien eae Masia 12, 14

ek - Se Oe es eh eee 12, 14

ae SS, anne eee aa nen Sarthe DEAR we Aexbee Bors 7 14

en. Soar S08) TR Sa aeeeenen 14

BUD, TE uiccsciscetclongscancnsuasenaasensienpcaninaeniaiee 2-4, 7, 10

OU, TRIER,” susscssiniessecaiciesstndgandeseoiorcenpennertagieinlnaioenmaaannaa 22

TOO, BETTIE D wicinsncinnnevieessniccepeianieinaantanialemaaeatanaan 22

TEID.. DMRS -~ <ssacoseusidbnniunscteleiciideibdanichaeinticaneaslanmalaacaaaneenana 6, 23

WO. TIGRE wicieinsnicccitininliesenndaceseninenleiandaaaaeane 22

UG. TRE vcitacacsueeinipdeaanaaaeaee 3, 10, 13

me. 3660 tO) | ..wiacsdeieectinceee 12

Vili TABLE OF CONTENTS

PAGE

33 U.S.C. (Refuse Act, 1899):

RSS 5 RR TNF 6

42 U.S.C.;

I alk sedi eae se hedeases dcbicnnasssdasacnbdoisaatitdsccmibinstines 4,15

Regulation Cited

40 C.F.R.:

OE aol 7

Other Authorities Cited

Friendly, “In Praise of Erie—and the New Federal

Common Law,” 39 N.Y.Univ.L.Rev. (1964) :

DTS On AC a 18

S. Rep. No. 414, 92nd Cong., 1st Sess., Reported in

1972, U.S. Code Cong. & Ad. News 3668, 3746 ...... 13

USEPA, Environmental Impact Statement on the

Ocean Dumping of Sewage in the New York Bight

(Final Statement, September, 1978):

ES ES GES EArt 29.28 La Orcs AS

8 SS ADT ae 7

IN THE

Supreme Court of the United States

Ocroser Term, 1979

- =

—_

MIDDLESEX COUNTY SEWERAGE AUTHORITY,

PASSAIC VALLEY SEWERAGE COMMISSIONERS,

MIDDLETOWN SHEWERAGE AUTHORITY, BER-

GEN COUNTY SEWER AUTHORITY and THE LIN-

DEN ROSELLE SEWERAGE AUTHORITY,

Petitioners,

NATIONAL SEA CLAMMERS ASSOCIATION, GOSTA

LOVGREN, CITY OF NEW YORK, HONORABLE

ABRAHAM BEAME, UNITED STATES ENVIRON-

MENTAL PROTECTION AGENCY, RUSSELL E.

TRAIN, individually an as ADMINISTRATOR OF THE

UNITED STATES ENVIRONMENTAL PROTEC-

TION AGENCY, UNITED STATES ARMY CORPS

OF ENGINEERS, MARTIN R. HOFFMANN, indivi-

dually and as SECRETARY OF THE UNITED

STATES DEPARTMENT OF THE ARMY, NEW

YORK DEPARTMENT OF ENVIRONMEN TAL CON-

SERVATION, OGDEN R. REID, individually and as

COMMISSIONER OF THE NE W YORK DEPART-

MENT OF ENVIRONMENTAL CONSERVATION,

NEW JERSEY DEPARTMENT OF ENVIRONMEN-

TAL PROTECTION, DAVID J. BARDIN, individually

and as COMMISSIONER OF NEW JERSE 'Y DEPART-

MENT OF ENVIRONMENTAL PROTECTION, WEST

LONG BEACH SEWER DISTRICT, COUNTY OF

WESTCHESTER, DEPT. OF ENVIRONMENTAL

FAC., CITY OF LONG BEACH AND CITY OF GLEN

COVE and THE JOINT MEETING OF ESSEX AND

UNION COUNTIES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Petitioners, Middlesex County Sewerage Authority, Pas-

saic Valley Sewerage Commissioners, Middletown Sewer-

age Authority, Bergen County Sewer Authority and Lin-

den Roselle Sewerage Authority petition for the issuance

of a writ of certiorari to review a judgment of the United

States Court of Appeals for the Third Cireuit in this

case.

Opinions Below

The opinion of the Court of Appeals, filed February 5,

1980, is as yet unreported (App. pp. la, et seq.). The opin-

ion of the United States District Court for the District

of New Jersey, filed August 14, 1978, is unreported (App.

pp. 49a, et seq.). The judgments of the Court of Appeals

(App. p. 37a) and the District Court (App. p. 68a, et seq.)

are set forth in this Appendix.

Jurisdiction

Jurisdiction of this Court is pursuant to 28 U.S.C. §1254

(1). Jurisdiction of the Court of Appeals was pursuant to

28 U.S.C. $1291.

The grounds of jurisdiction of the District Court in-

voked by plaintiffs, to the extent that they were sustained

by the Court of Appeals in reversing the dismissal of the

action by the District Court, are based upon the Federal

Water Pollution Control Act, as amended, 33 U.S.C. 41251,

et seq. (FWPCAA), the Marine Protection Research and

Sanctuaries Act of 1972, as amended (33 U.S.C. $1401 et

seq.) (MPRSA), 28 U.S.C. $1331 (a) and 28 U.S.C. §1333.

Questions Presented for Review

1. Whether the failure of a plaintiff to give the statu-

tory sixty-day notice of intention to institute a civil action

based on the Federal Water Pollution Control Act as

amended (FWPCAA), 33 U.S.C. §1251 et seq., §1365, and

on the Marine Protection Research and Sanctuaries Act

(MPRSA), 33 U.S.C. $1401 et seq., $1415, is not fatal to

a claim for relief under those statutes asserting damage

from ocean pollution.

2. Whether a private citizen may maintain a claim in

federal court under 28 U.S.C. $1331 against a state gov-

ernment agency engaged in sewage disposal for relief for

ocean pollution damage on the basis of a federal common-

law tort of nuisance; whether in any such suit the relief

may encompass pecuniary damages.

3. Whether any claim for pollution of ocean waters on

the basis of a federal common-law tort of nuisance, if

available to a private citizen, is not preempted by the

present comprehensive regulatory scheme in respect of

ocean pollution constituted by FWPCAA and MPRSA (in-

cluding ..s 1977 amendment) and administrative regula-

tions adopted thereunder.

4. Whether an action by New Jersey citizens for dam-

ages for tortious injury arising out of ocean pollution

against a New Jersey state sewerage agency is maintain-

able in a federal court, under either the maritime or ad-

miralty jurisdiction or under 28 U.S.C. $1331 founded on

a federal common-law tort of nuisance, if there has been

a failure on the part of the plaintiffs to serve the agency

with a timely notice of claim as required by the New Jer-

esy Tort Claims Act, N.J.S.A. 59:1-1 e¢ seq.

5. Whether any tort claim for damages against a New

Jersey sewage disposal agency, whatever the jurisdictional

basis for maintaining such an action in a federal court, is

not offensive to the Eleventh Amendment in light of the

sovereign immunity of such agencies as arms of the State

of New Jersey under the New Jersey Tort Claims Act,

N.J.S.A. 59:1-1 et seq., the limited waiver of such im-

munity by said statute and plaintiffs’ failure to comply

with the statutory conditions of such waiver.

Constitutional and Statutory Provisions Involved

The constitutional provision involved is the Eleventh

Amendment to the United States Constitution.

The statutoy provisions involved are the Federal Water

Pollution Control Act, as amended, 33 U.S.C. §1251, et. seq.

(FWPCAA), the Marine Protection Research and Sance-

tuaries Act of 1972, as ‘amended (MPRSA), (33 U.S.C.

§1401 et seq.), 28 U.S.C. $1831 (a), 28 U.S.C. $1333 and 42

U.S.C. $7604.

The New Jersey statutory provisions involved are the

New Jersey Tort Claims Act, N.J.S.A. 59:1-2, 3, N.J.S.A.

09 :2-1, N.J.S.A. 59:8-3, N.J.S.A. 59:8-8 and N.J.S.A. 40:

14A-7,

The text of the constitutional and s‘atutory provisions

involved is set forth in the Appendix (App. pp. 7la, et

seq.).

Statement of the Case

This petition for certiorari is filed by a number of

New Jersey public sewerage disposal agencies made de-

fendants in the action instituted in the District Court.

The petition seeks review of a judgment of the United

States Court of Appeals for the Third Circuit which re-

versed a judgment of the United States District Court

for the District of New Jersey (Honorable H. Curtis

Meanor) which dismissed on grounds either of absence

of jurisdiction or failure to state a claim upon which

relief can be granted the complaint of the plaintiffs seek-

ing both injunctive relief and damages against numerous

federal, New York and New Jersey state officials and

agencies concerned either with the public disposition of

sewage or the administrative regulation of the activities

of such agencies. Some of the defendant sewage disposal

agencies, including these petitioners, are constituted under

New Jersey state authority, others under New York.

The gravamen of the complaint, set forth in eleven

counts, is that defendants by acts of commission or omis-

sion have caused or permitted the pollution of the Atlantic

Ocean resulting in such damage to the marine environ-

ment as to have adversely affected plaintiffs’ commercial

business of fishing, clamming and lobstering in the waters

of the ocean.

Petitioners are public instrumentalities of New Jersey

created under and pursuant to N.J.S.A. 40:14A-1 et seq.,¥9-/V5-/e? Se

Petitioner Middlesex County Sewerage Authority (MCSA )ors¢:/-/ eZ '

is generally typical of the other petitioners in scope of

activity, some of them being smaller and others larger.

MCSA is responsible for the sewage disposal of 28 mu-

nicipalities in and adjacent to Middlesex County and a

number of large industries. The population it serves is

approximately 600,000. Its capital investment is about

$250,000,000 and its operating budget for 1980 is $14,-

874,000. Its operating expenses are met by local taxes

and sewer connection fees charged member municipali-

ties and industrial users. Several of petitioners are un-

dergoing a captial expansion program mandated by state

and federal environmental authorities and partially fi-

nanced by federal grants pursuant to FWPCAA and

MPRSA. In the case of MCSA, the expenses of ex-

pansion and rising operating costs have almost doubled

charges to users in the past year.

Kixisting regulations of the United States Department

of Environmental Protection (EPA) and the 1977 amend-

ment of MPRSA mandate cessation of ocean dumping ~

of sewage sludge by December 31, 1981, 33 U.S.C. §1412a.,

and petitioners are in the course of active transition from

ocean dumping to landbased alternatives for disposition

of such sewage sludge under an approved schedule of

interim permits issued by EPA designed to effect such a

shift by the stated termination date. Petitioners are

subject also to HPA permit control of their discharge of

sewage effluent into various stream and the ocean under

authority of FWPCAA.

In the instant class action, plaintiffs seek not only judi-

cial abatement of ocean dumping of sewage sludge by

petitioners, thereby disrupting the measured progress to-

ward that end now being effected administratively under

congressional mandate and direction, but also demand,

on behalf of members of the affected class, compenatory

damages of $250,000,000 and punitive damages of $250,-

000,000 from defendants.

Since 1924 municipal sewerage authorities in New York

and New Jersey and the Army Corps of Engineers have

dumped sewage sludge and dredged materials at a dump

site in the Atlantic Ocean approximately 12 miles from

New York City. See USEPA, Environmental Impact

Statement on the Ocean Dumping of Sewage in the New

York Bight (Final Statement, September, 1978, p. 17)

(“EIS”). Ocean dumping of wastes began to be regu-

lated federally in 1899, Refuse Act, 33 U.S.C. §407, and

under earlier versions of FWPCAA, z.e. Act of June 30,

1948, ec. 758. Such federal regulation was vastly expanded

during the last decade by the 1972 amendments of FWP

CAA, the adoption in 1972 of the MPRSA and the 1977

amendment of that act, noted above, mandating termina-

tion of dumping of sewage sludge in the ocean by Decem-

ber 31, 1981.

Under the Refuse Act, the Army Corps of Engineers

was authorized to grant dumping permits. But under

the more recent FPWCAA and MPRSA legislation the

permit-issuing authority was transferred to EPA and

specific criteria for the issuance of permits were established

administratively. 33 U.S.C. §1251 et seq., 33 U.S.C. $1401

et seq., 40 C.F.R. Parts 220 to 229.

In 1974 EPA undertook a study to determine whether

the sewage dumping site in the New York Bight (12 miles

off Ambrose Light) should be relocated. EIS, supra, p.

1. A draft Environmental Impact Statement was issued

in early 1976. In the summer of 1976 there was a fish

kill off the New Jersey coast which constitutes the basis

for the complaint of the plaintiffs herein. The fish kill

was the subject of comprehensive federal, state and local

investigations which concluded that ocean dumping of

sewage sludge was only a minor contributing factor.

EIS, supra, pp. 54-61. That isolated phenomenon led

EPA to make further studies on the ocean dumping sit-

uation, resulting in a new EIS in 1978. That reached the

conclusion that under all the attendant circumstances the

most advisable course of action was for the continuance

of ocean dumping of sewage sludge at the present site

but with encouragement for the construction of improved

sewage treatment plants to minimize marine damage.

KIS, supra, pp. 62-82, 203-207. Several of petitioners have

recently substantially improved their sewage treatment

processes.

Insofar as concerns these petitioners, the disposition of

the issues presented on defendants’ motions to dismiss by

the lower courts was as follows.

As to the claims asserted under FWPCAA and MPRSA,

the District Court held that the claims must be dismissed

because of failure of timely service of notice on the de-

fendants prior to institution of the action, as required

by the respective statutes (App. p. 56a). On this issue the

Court of Appeals reversed, holding that absence of notice

was not fatal because of the “savings clause” of the citi-

zens action provisions of the statutes which preserves any

existing right of action under statute or common law

(App. p. 10a). As to plaintiffs’ contention that, inde-

pendent of any right of action under the express citizens’

suit provisions of FWPCAA and MPRSA, they could

maintain the suit pursuant to (a) an implied right of ac-

tion under those statutes and (b) the theory of federal

common-law nuisance, relying primarily on Illinois v. City

of Milwaukee, 406 U.S. 91 (1972), the District Court held

that the latter remedy was available only in favor of

states, not private parties, and that the notice provisions

of the statutes remained applicable to any actions brought

under the “savings clause.” (App. p. 47a). The Court of

Appeals reversed these determinations, holding that a

private federal common-law nuisance claim was available

under the Illinois case and an implied claim under FWP

CAA and MPRSA as well. (App. pp. 28a-29a, 6a-14a).

As concerns plaintiffs’ reliance upon admiralty and mari-

time jurisdiction of the federal courts, the District Court

held that there was a failure to plead a cause of action

cognizable under such jurisdiction. The court alterna-

tively held that even if the complaint was read to encom-

pass a substantive claim under such jurisdiction, it would

have to be dismissed for failure of compliance with the

notice requirements of state tort claims statutes (except-

ing in the case of New York City). (App. pp. 62a, 63a).

The Court of Appeals held that a more liberal reading

of the complaint was required at the pleading stage and

that the asserted cause of action was viable although

essentially identical with the federal common-law tort

nuisance claim. (App. pp. 29a-31a). However, the Court of

Appeals failed to deal with the alternative rejection of

the maritime tort claim by the District Court based upon

failure to meet the notice requirements of the state tort

claims statutes.

Petitioners sought on appeal to sustain the judgment

of the District Court, insofar as the complaint demands

money damages, on grounds of sovereign immunity under

the Eleventh Amendment. That defense asserts that in and

by the enactment of the New Jersey Tort Claims Act,

N.J.S.A. 59:1-1 e¢ seq., the State had vested each of peti-

tioners as a “public entity” with conditional sovereign im-

munity and that plaintiffs had not met the statutory con-

ditions of pre-suit notice of claim for waiver of such im-

munity. The Court of Appeals summarily rejected the

sovereign immunity defense, citing no cases but only N.J.

S.A. 40:14B-4* and N.J.S.A. 58:14-2 and noting that the

defendants were municipal corporations (App. p. 36a).

* Petitioners are created pursuant to either N.J.S.A. 40:14A-1

et seq., N.J.S.A. 40:14B-1 et seq. or N.J.S.A. 58:14-1 et seq. All

have power to sue or be sued. The Court of Appeals may have

thought the suability of such an agency, see N.J.S.A. 40:14A-7,

settled the matter of sovereign immunity. We will demonstrate

infra, pp. 27-28, that New Jersey law is to the contrary.

ARGUMENT

Petitioner advances the following reasons for the

allowance of certiorari.

The holding of the Court of Appeals that failure of

plaintiffs to give the statutory notice of intention to insti-

tute a complaint based on the Federal Water Pollution

Control Act (FWPCA) 33 U.S.C. §§1251 et seq., 1365, and

on the Marine Protection, Research and Sanctuaries Act

(MPRSA) 33 U.S.C. §§1401 et seq., 1415, is not fatal to

claims for relief under those statutes, is erroneous; and

the Courts of Appeals are in conflict on the issue, rendering

review by this Court highi desirable.

In making the present point it will suffice to cite the

citizens suit provisions of FWPCAA since substantially

similar provisions are contained in MPRSA.

So far as pertinent to the instant dicussion, 33 U.S.C.

$1365 is to the following effect:

“(a) Except as provided in subsection (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 instru-

mentality or agency to the extent permitted by

the eleventh amendment to the Constitution) who

is alleged to be in violation of (A) an effluent

standard or limitation under this chapter or (B)

an order isued by the Administrator or a State

with respect to such a standard or limitation, or

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform

any act or duty under this chapter which is not

discretionary with the Administrator.

‘

The district court shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties, to enforce such an effluent stand-

ard or limitation, or such an order, or to order the

Administrator to perform such act or duty, as the

case may be, and to apply any appropriate civil

penalties under section 1319(d) of this title.

b) No action may be commenced—

(1) under subsection (a)(1) of this seection—

(A) prior to sixty days after the plaintiff has

given notice of the alleged violation (i) to the Ad-

ministrator, (ii) to the State in which the alleged

violation occurs, and (iii) to any alleged violator

of the standard, limitation, or order, or

(B) if the Administrator or State has com-

menced and is diligently prosecuting a civil or

criminal action in a court of the United States,

or a State to require compliance with the stand-

ard, limitation, or order, but in any such action

in a court of the United States any citizen 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, * * *

(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 enforce-

ment of any effluent standard of limitation or to

seek any other relief (including relief against the

Administrator or a State agency).”

The District Court held, and it is not disputed, that

plaintiffs failed to comply with the notice requirement of

paragraph (b) of the foregoing section in respect of any

petitioner. It is consequently clear that on the face of the

statute this action, to the extent that it purports to be

based on FWPCAA and MPRSA, is untenable as against

petitioners.

The Court of Appeals held that the action nevertheless

remained viable under these acts by virtue of the “sav-

ings clause” illustrated by paragraph (e) of §1365* which

states that nothing in the section “shall restrict any right

which any person * * * may have under any statute or

common law to seek enforcement of any effluent standard

or limitation or to seek any other relief * * *”,

Under that entry wedge the Court of Appeals drew an

implication of a general FWPCAA and MPRSA federal

cause of action on behalf of private parties, free of the

notice requirements of those acts, under the rationale of

the line of cases represented by Cort v. Ash, 422 U.S. 66

(1975) and Touche-Ross & Co. v. Redington, U.S.

» 61 L. Ed.2d 82 (1979) (App. pp. 14a-15a). As the

Court of Appeals conceded, however, the Touche-Ross deci-

sion subordinates the so-called four-part test of Cort v. Ash

in favor of seeking out the underlying congressional intent

as to whether a private remedy based upon the policy of

the statute was to be permitted. 61 L. Ed.2d at 95-96. We

submit that all of the available indicia of intent, both on

the face of the statutes and extrinsic thereto, render evi-

dent a contrary intent.

As to the evidence on the face of the statute, the error

in the Court of Appeals rationale is obvious. Paragraph

(e) does not purport to provide an additional remedy

under FWPCAA (or MPRSA) but merely to save from

any arguably preclusive effect of the remainder of the

* The parallel provision of §1415 is paragraph (g) (5).

section any cause of action for relief which a person might

have under any other statute or under common law.

Whether there is indeed any other statutory or common-

law right to relief available to plaintiffs against peti-

tioner, independent of FWPCAA and MPRSA, is a dis-

tinct question to be addressed under Reason B herein-

after. For present purposes, the point is that there is no

tenable hypothesis for positing congressional intent for

additional FWPCAA or MPRSA causes of action under

$1365 or $1415. Indeed, the Senate report on the FWP-

CAA bill explained, in reference to the savings clause:

“Tt should be noted * * * that the section would

specifically preserve any rights or remedies under

any other law.” (emphasis supplied)

S. Rep. No. 414, 92nd Cong., Ist Sess., Reported

in 1972, U.S. Code Cong. & Ad. News 3668, 3746.

The Court af Appeals alluded to this history but dis-

missed it with the conclusional observation that the court

was “not persuaded that this paraphrase of the wording

of the Act was intended to preclude the finding of a pri-

vate remedy under the Act.” (App. p. 16a) We respond:

Why not? The act fashions a specific citizens remedy

and saves any private remedies which may exist under

any other act or common law. What basis remains for

implying yet another remedy under the act itself?

To buttress its contention of a general private cause of

action under FWPCAA, the Court of Appeals labors to

establish a rationale of entitlement to an action by non-

imjured citizens under §1365 (a) (1) and of a companion

species of action by injured citizens under paragraph (e)

of the section. It bases the distinction upon legislative

history supposedly designed to meet the decision of this

court in Sierra Club v. Morton, 405 U.S. 727 (1972). (App.

p. 7a). But the thesis does not withstand scrutiny of

the statutory language. Concededly Sierra Club held

that review of federal agency action by parties who could

not show injury was not available under the Administra-

tive Procedure Act. However, the definition in $1365

(g) of a “citizen” who is permitted to institute a civil

action under paragraph (a) is “a person or persons hav-

ing an interest which is or may be adversely affected.”

That definition tracks the Sierra Club language concern-

ing injured persons (the suitor must show “that he is

himself adversely affected.” 405 U.S. at 740). It is thus

clear that section (a) actions may be brought only by

injured persons, contrary to the thesis of the Court of

Appeals, and the supposed distinction advanced to sup-

port its holding that there is a private action independent

of paragraph (a) does not stand up.

In Reason B hereinafter, in the course of refuting the

thesis of the Court of Appeals that §1365(e) contemplates

a residual federal common-law nuisance action for the

benefit of private plaintiffs, we have advanced additional

reasons why it is unsound to imply from the statute an

intent to permit a private cause of action under §1365

other than the specific citizens remedy afforded by para-

graph (a), requiring prior notice to the defendants. We

incorporate such argument under the present Reason by

reference.

It is earnestly submitted that the composite considera-

tion reflective of legislative intent militate against any

notion of a design to provide any private cause of action

based upon FWPCAA and MPRSA.

We consequently urge that to the extent++hatthe present

action is posited upon either of the federal environmental

statutes cited it must fall for failure to give the notice

required by paragraph (b) of FWPCAA and (g)(2) of

MPRSA.

The best reasoned prior decision on the point is City

of Highland Park vy. Train, 519 F.2d 681 (7 Cir. 1975),

cert. denied 424 U.S. 927 (1976). While that case dealt

with the Clean Air Amendments of 1970, the decision is

in point because the Clear Air statute is essentially the

same as those here under consideration in respect of the

notice requirement. See 42 U.S.C. $7604. The court held

the failure to give statutory notice to be fatal to the ac-

tion there involved. It pointed out that although there

was clear indication of legislative intent to allow citizen

participation in the enforcement of the act, the legislative

history also demonstrated:

“that Congress intended to provide for citizens’

suits in a manner that would be least likely to clog

already burdened federal courts and most likely to

trigger governmental action which would alleviate

any need for judicial relief. It was in response to

these concerns that the statutory notice provisions

were included in section 304. Congress’s intention

would be frustrated if the statutory mandate of

section 304(b) were ignored.” (footnotes omitted)

519 F.2d at 690-691.

Concededly contrary decisions have been rendered by

two other Courts of Appeals. Conservation Soc. of 8.

Ver. Inc. v. Secretary of Tran., 508 F.2d 927, 938 (2 Cir.

1974); Natural Resources Defense Council, Inc. vy. Train,

510 F.2d 692 (D.C. Cir. 1975); Natural Resources Defense

Council, Inc. v. Callaway, 524 F.2d 79 (2d Cir. 1975). A

close reading of these opinions fails to reveal any satis-

fying rationale for an interpretation of the statutory sav-

ings clause which would depart from its plain facial sig-

nificance as reserving any other existing remedies rather

than, as held in these cases, creating another remedy un-

der and pursuant to the statute in which the savings pro-

visions were incorporated. This same observation is fully

applicable to the reasoning of the Court of Appeals in the

instant case.

In view of the highly significant public policy aim served

by the statutory requirement of notice, particularly in

relation to the federal officials charged with enforcement

of these comprehensive environmental statutes, and the

unwarranted deprecation of the notice requirement by the

determination of the Court of Appeals in this case, it is

eminently desirable that this Court take this case to re-

solve the conflict among the Courts of Appeals on the

issue.

The holding of the Court of Appeals that a private citizen

may maintain an action under 28 U.S.C. §1331 against a

state governmental agency for pollution of ocean waters on

the basis of a federal common-law nuisance theory is erron-

eous; and the federal courts of appeals are now in conflict

on the issue, rendering review by this Court highly de-

sirable.

1. Significance of Illinois v. Milwaukee.

The crux of the difference between the District Court

and the court of Appeals with respect to the issue stated

is whether this court in Illinois vy. Milwaukee, 406 U.S.

91 (1972), intended to announce a federal common-law

nuisance action for water pollution against publie sewer-

age agencies available under 28 U.S.C. §1331 to private

citizens as well as to states. It was the view of the Dis-

trict Court that the remedy was confined to states as plain-

tiffs; of the Court of Appeals, that it extended to private

complainants as well, This is an issue on which the

Court of Appeals is in conflict with other courts of ap-

peals.

In agreement with the District Court in this case are

the holdings in Committee for Con. of Jones Falls Sewage

System v. Train, 375 F.Supp. 1148 (D. Md. 1974), affirmed

on other grounds consistent with that of the District Court

on the instant issue, 539 F.2d 1006 (4 Cir. 1976) (en bane) ;

Parsell v. Shell Ou Co., 421 F.Supp. 1275 (D. Conn. 1976),

aff’d without opinien sub nom. East End Yacht Club, Inc.

v. Shell Ol Co., 573 F.2d 1289 (2 Cir. 1977); cf. Highland

Park v. Train, supra, (519 F.2d 681). The only contrary

view we have found, supportive of the Court of Appeals

in this case, is Byram River v. Village of Port Chester,

394 F.Supp. 618 (S.D.N.Y. 1975).

A careful analysis of Illinois v. Milwuakee is convincing

that the court’s declaration of the availability of a federal

common-law nuisance claim was actuated by the felt need

to afford the State of Illinois a remedy for pollution of

its waters emanating from beyond its borders. In de-

veloping its rationale the Court relied heavily upon the

comparable decisions in Georgia v. Tennessee Copper Co.,

206 U.S. 230 (1907) and Texas v. Pankey, 441 F.2d 236

(10 Cir. 1971). 406 U.S. at 100-104. In Illinois the Court

quoted with approval from Texas v. Pankey, supra (441

I’.2d at 240) as follows:

“As the field of federal common law has been

given necessary expansion into matters of federal

concern and relationship (where no applicable fed-

eral statute exists, as there does not here), the

ecological rights of a State in the improper im-

pairment of them from sources outside the State’s

own territory, now would and should, we think, be

held to be a matter having basis and standard in

federal common law and so directly constituting a

question arising under the laws of the United

States.”

406 U.S. at 99-100.

Federal common law necessarily evolves on a case-by-

ease basis.* Sound principles of judicial evolution of the

federal common law in the vital environmental area should,

we respectfully submit, proceed narrowly and avoid un-

toward conflict with or frustration of existing regulatory

legislation pertaining to the same subject matter. From

that point of view, Illinois v. Milwaukee should not at

this time be expanded beyond its apparent motivating

rationale—i.e., to afford a state or a litigant represent-

ing a state’s interest (cf. Hinderlider vy. La Plata R. &

Cherry Creek Ditch Co., 304 U.S. 92 (1938)) the legal

protection against pollution emanating from beyond the

state’s borders required by the inability of states in this

federal union otherwise to be relieved from such harm.

Insofar as affording citizens a remedy against the kinds

of harm sued for in this case (¢@.e. at the hands of pub-

lie sewerage agencies) the citizens’ suit provisions of

FWPCAA and MPRSA were envisaged by, Congress to

be both appropriate and adequate and the,’ ote © provi-

sions thereof to be integral to the remedy afforded. The

savings clauses in both of the cited statutes could well

have merely contemplated saving the continued avail-

ability of actions in state courts whether based on stat-

ute or common law or in federal courts on whatever

residual basis might exist not incompatible with the leg-

islative policies underlying these specific enactments.

In Committee for Con. of Jones Falls Sewage System

v. Train, supra, the court observed that the plaintiffs in the

two principal cases cited in Jilinois v. Milwaukee were

states and that each of those cases “indicates that the

character of the plaintiffs as governmental units was in-

tegral to the determination that a federal cause of action

* See Friendly, “In Praise of Erie—and of the New Federal

Common Law,” 39 N.Y.Univ.L.Rev. 383, 405. passim (1964),

existed.” 375 F.Supp. at 1153. Although affirming the

determination of the District Court in that case on other

grounds, the Court of Appeals for the Fourth Circuit on

appeal therefrom rendered its independent analysis of

Illinois v. Milwaukee and Texas v. Pankey as develop-

ing “Lo]f necessity** a body of federal common law for the

resolution of interstate pollution controversies when a

state sought extra-territrial relief on behalf of her citi-

zens.” 539 F.2d at 1008, The court further observed that:

“Perhaps with the exception of actions by the

United States to abate public nuisances created in

navigable waters by polluters, [citing cases] but

consistent with §1251(b) [FWPCAA] the doctrine

of Illinois v. Milwaukee has not been extended be-

yond the abatement of public nuisance in interstate

controversies where the complainant is a state and

the offenders are creating extra-territorial harm.”

(f.n. omitted) (per Haynsworth, C.J.)

539 F.2d at 1009.

Similarly emphasizing the significance of the character

of the plaintiff in Jllinots v. Milwaukee and in the cases

there relied upon is Parsell v. Shell Ou Co., 421 F.Supp. at

1280-1281 (aff’d without opinion, 573 F.2d 1289).

The Court of Appeals in the instant case lays stress

(App. p. 25a) upon footnote 6 in Illinois v, Milwaukee, 406

U.S. at 105, to the effect that:

“Thus, it is not only the character of the parties

that requires us to apply federal law**[W]here

there is an overriding federal interest in the need

for a uniform rule of decision or where the con.

troversy touches basic interests of federalism, we

have fashioned federal common law.”

The implication of the Court of Appeals is that the foot-

note indicates that a state party plaintiff is not essential

to the federal common-law nuisance action if the substan-

tive federal question implicated is one calling for doc-

trinal uniformity. That thesis was refuted in the Dis-

trict Court opinion in Committee for Con. of Jones Falls

Sewerage System vy. Train, supra, 375 F. Supp. 1148),

where the court in dealing with the same Jllmois footnote

said:

“it is not only the character of the parties that

requires us to apply federal law.’ This statement

can be read in at least two different ways. It could

mean a) that there were other considerations suf-

ficient in themselves to require application of fed-

eral law, or b) that there were other federal inter-

ests which in addition to the character of the par-

ties required the application of federal law although

those other interests in themselves would not have

been sufficient. In the view this Court takes of the

basis for the Supreme Court’s decision, the latter

interpretation is the proper one.”

375 F.Supp. at 1154, n. 12

We submit that the foregoing analysis should be ac-

cepted by this Court as a sound explanation of the mooted

footnote in Illinois. If the Illinois court had intended the

newly announced federal common-law nuisance action to

be available to private parties it is highly unikely that

the opinion would have failed so to state explicitly.

2. Any pre-existing theory of federal common-law nuisance

by a private party against a public sewerage agency

should be deemed pre-empted by the enactment of the

1972 Amendments of FWPCA, of MPRSA as amended

in 1977, and of the administrative regulations adc pted

by EPA pursuant to both acts.

In Illinois the Court made the prescient observation

that

“It may happen that new federal laws and new

federal regulations may in time pre-empt the field

of federal common law of nuisance. But until that

comes to pass, federal courts will be empowered to

appraise the equities of the suits alleging creation

of a public nuisance by water pollution.” 406 U.S.

at 107.

When Jilinois was decided the 1972 amendments of

FWPCA had not yet come into effect nor had Congress

enacted MPRSA. The present scope of these statutes and

of the extent and effect of the administrative regulations

adopted by EPA pursuant thereto effectively subjects peti-

tione? and similar potential water polluters to the closest

and most detailed scrutiny and oversight readily conceiv-

able. Every single pipe (“outfall”) which can discharge

pollutants into a navigable body of water must be ap-

proved by EPA. That agency also has the power and

duty to impose stringent limitations on the content of

those discharges and the manner in which they must be

treated. The FWPCA amendments declare unlawful the

discharge of any potential pollutant unless it complies

therewith. 33 U.S.C. §1311(a).

Prior to the 1972 amendments of FWPCA the Admin-

istrator was required to prove individual responsibility

for violations of water quality standards before establish-

ing criteria for discharges. The amendments mandated

that the Administrator establish discharge standards in the

first instance and take action against any point source in

violation. §§1311, 1316, 1317.

The 1972 amendments establish a comprehensive licens-

ing program under which no discharge into navigable body

of water, whether by a municipality or by others, is per-

mitted except pursuant to permit. §§1341, 1345. The

amendments create a timetable for the elimination of water

pollution. §1311. Municipal sewer systems must employ

the best practicable waste treatment technology by July 1,

1983. Limited discretion is given the Administrator to

modify requirements if specific stringent conditions are

met. §1311(h). There are various additional regulatory

modes and controls incorporated in the Act to achieve mini-

mal water pollution as soon as practicable.

MPRSA (also known as the Ocean Dumping Act) pro-

hibits the dumping of any material into ocean waters ex-

cept as authorized by permit. 33 U.S.C. $1411. Section

1412(a) authorizes the Administrator to issue permits for

the dumping of any material other than dredged material*

where he determines that such dumping will not unrea-

sonably degrade or endanger human health, welfare or

amenities or the marine environment, ecological systems,

or economic potentialities. The Administrator is directed

to consider, in these respects, the need for the proposed

dumping, the persistence and permanence of the effects

of the dumping, and appropriate locations and methods

of disposal, including land-based alternatives and the prob-

able impact thereof upon considerations affecting the pub-

lic interest. Ibid.

* §1413 establishes a dumping permit program for dredged ma-

terials under regulation of the Secretary of the Army.

We have seen above that by amendment of MPRSA in

1977 Congress decreed the termination of all ocean dump-

ing of sewage sludge after December 31, 1981. 33 U.S.C.

§1412a,

The act arms the Administrator with ample enforce-

ment powers including that of assessment of civil penal-

ties up to $50,000 for any violation and provides for ad-

ditional criminal sanctions.

As already noted, these petitioners are now conducting

ocean dumping of sewage sludge under interim permits

conditioned upon compliance with schedules for construc-

tion of land-based alternatives which call for cessation of

ocean dumping of sewage sludge by December 31, 1981.

In light of all the foregoing, it is earnestly submitted

that the preconditions for declaration of statutory pre-

emption of the putative federal common-law nuisance

action in this area, as envisaged by the statement in JJli-

nois v. Milwaukee qouted above, has arrived. It would

seem intolerable that a public agency so vitally serving

the publie health and welfare and so closely regulated in

all of its operations by both federal and state statutory

and administrative controls as these petitioners should be

subjected to the prospect either of a general equity injunc-

tion or that of an action for damages demanding many

millions of dollars at the instance of private claimants.

If these plaintiffs may sue, so may countless others.

The observations of Judge Haynsworth in Committee

for Con. of Jones Falls Sewerage System v. Tram, supra,

(5389 F.2d 1006) seem particularly cogent in this regard.

He stated:

“Indeed, it would be an anomaly to hold that

there was a body of federal common law which

proseribes conduct which the 1972 Act of Congress

legitimates. The defendants are in compliance with

the statute. They are operating under a permit

issued in accordance with the statute and the au-

thorization of the Environmental Protection Agency.

The Congress and the Executive Department, act-

ing through the Environmental Protection Agency,

have declared their conduct lawful until the time

for the application of more restrictive standards.”

Id. at 1009.

It is consequently submitted that Congress has by the

enactment of the amendments to FWPCAA and of

MPRSA and the creation of the comprehensive regulatory

scheme thereunder preempted any general federal tort

claim against petitioners in respect of conduct regulated

thereby. Certiorari should issue to settle this all-im-

portant public law question and furnish guidance to the

federal courts as to the present-day significance of Illinois

v. Milwaukee.

3. Illinois v. Milwaukee authorizes only an injunction, not

damages.

Whatever may be thought of the contentions advanced

in the two subpoints hereinabove, there can be no dispute

but that Jllinois v. Milwaukee, supra, is authority only for

a federal common-law nuisance action to abate a nuisance

and not for damages. Abatement of the nuisanece was

all the complaint demanded. 406 U.S..at 93. The entire

rationale of the decision was the need of a state for abate-

ment of pollution emanating from beyond the borders of

that state. The Court, in discussing the criteria for ad-

judication in such suits stated: “There are no fixed rules

that govern; these will be equity suits in which the in-

formed judgment of the chancellor will largely govern.”

406 U.S. at 107-108. Thus to the extent that Illinois v.

Milwaukee is authoritative in this litigation it does not

support the damages claims asserted by plaintiffs in this

ease. This Court should issue its writ both to reaffirm

that important principle, which has been misconceived by

the Court of Appeals, and to exercise its supervisory

function over the lower federal courts.

Cc.

Any tort claim for damages against the New Jersey

sewage disposal agencies, including any based on a federal

common-law nuisance claim, is barred by the Eleventh

Amendment and/or the New Jersey Tort Claims Act since

those agencies by New Jersey law partake of New Jersey’s

sovereign immunity, and the waiver of such immunity here

is predicated on conditions which plaintiffs have not satis-

fied. Due respect for States under appropriate principles

of federalism bespeaks review of this issue by this Court,

the Court of Appeals having resolved it erroneously.

1. As to immunity under the New Jersey Tort Claims Act.

N.J.S.A. 59:1-1 et seq. (L. 1972, c. 45).

To the extent that the instant action is one seeking

damages on any tort theory petitioners are public enti-

ties of New Jersey upon which the State of New Jersey

by the cited statute has conferred qualified immunity. The

Court of Appeals has erroneously rejected this contention

by the unsupported blanket assertion that “the State Tort

Claims Act may not pre-empt federal statutory or common-

law causes of action”. (App p. 35a, n. 49). We concede this

statement is true as to actions for an injunction but sub-

mit it is incorrect insofar as it concerns actions for dam-

ages. See N.J.S.A. 59:1-4, which restricts the effect of the

act to tort damages claims.

For present purposes, it makes no difference whether

plaintiffs’ claim in its damages aspect is posited upon the

theories of maritime tort*, federal common-law nuisance

or implied federal claim predicated upon FWPCAA or

MPRSA. Basically, all three are the same in substance.

The claim remains essentially one for damages on account

of conduct of defendants hypothesized to be wrongful as

a tort.

We are aware of no reported decision sustaining the

availability of a tort claim for damages, whether of the

federal common-law nuisance genus, implied from a fed-

eral regulatory statute or that constituted by the so-called

maritime tort, against a state public entity, as against an

affirmative legislative declaration of that state immunizing

the entity from libility for damages. The contrary hold-

ing by the Court of Appeals warrants the supervisory over-

sight of this Court in the interests of appropriate princi-

ples of federalism and due regard for states’ rights.

The New Jersey Tort Claims Act, N.J.S.A. 59:2-1, de-

clares that except as otherwise provided by the Act “a pub-

lic entity is not liable for an injury, whether such injury

arises out of an act or omission of the public entity

or public employee or any other person.” Although

the statute contains detailed provisions concerning cir-

cumstances in which the tort immunity of a public en-

tity is waived and an action against it is permissible, it

is nevertheless also provided that “no actions shall be

brought against a public entity under this Act unless the

claim upon which it is based shall have been presented in

* There is no liability premised on. maritime tort if the conduct

complained of is pursuant to official permit, as here. Potomac

Riv. Ass'n. Inc. v. Lundeberg Md. Sea. Sch., Inc., 402 F. Supp.

344, 357 (D. Md. 1975).

accordance with the procedure set forth in this Chapter”.

NJS.A, 59:8-3.

Claims are required to be presented to the public entity

sought to be sued not later than the 90th day after accrual

of the cause of action. N.J.S.A. 59:8-8. <A judge is per-

mitted to extend the time for filing of pre-suit notice with-

in one year after accrual of the claim. N.J.S.A. 59:8-9.

Absent notice of the claim within the time permitted, “the

claimant shall be forever barred from recovering against

a public entity”. N.J.S.A. 59:8-8.

In the present instance it is undisputed that proper

claims were not timely filed by plaintiffs with petitioners

and that no timely application for permission to make a

late filing was made to the Court. For this reason the

District Court declared that plaintiffs were forever barred

from bringing the tort claims under the admiralty or mari-

time jurisdiction of the federal court. (App. p. 63a). We

submit this decision was a correct one and that it should

extend to all plaintiffs’ theories of claim. Cf. Richie v.

Cahall, 386 F.Supp. 1207 (D. N.J. 1974), holding that un-

der the Tort Claims Act the state may not be impleaded

as a third party defendant in an auto accident suit in a

diversity case.

As pointed out by the New Jersey Supreme Court in

S. BE. Friel Co. v. NJ. Turnpike Auth., 73 N.J. 107, 114

n.3 (1977), prior to the adoption of the New Jersey Tort

Claims Act in 1972 it had been held in New Jersey that

the legislative empowerment of a public agency to sue or

be sued constituted a consent to suits, including tort claims,

against any agency so empowered. The Tort Claims Act,

however, superseded that rule and restored immunity for

such agencies except under the conditions for liability set

forth in the act. Ibid. The fact that petitioner is a suable

public entity does not deprive it of the qualified immunity

of the Tort Claims Act. Wade v. N.J. Tpke. Auth., 132

N.J. Super. 92 (L. Div. 1975), approved in S. E. Friel Co.

v. N.J. Tunpike Auth., supra, 73 N.J at 115-116

Thus, independent of any other contention set forth in

this petition, the holding in by the Court of Appeals of

petitioner on claims for tort damages was erroneous, with-

in any theory of federal jurisdiction, and this Court should

issue its writ ot review to settle this novel question for the

federal judiciary.

2. As to sovereign immunity under the Eleventh Amend-

ment

As shown in subpoint 1 above, it is evident that the

State of New Jersey has undertaken to vest petitioners

as public entities with qualified immunity from suits for

damages. That immunity partakes of the sovereign im-

munity of the state. It has no other conceptual basis. See

N.J.S.A. 59:1-2, by which the Legislature of New Jersey

in enacting the New Jersey Tort Claims Act recognized

the “inherently unfair and inequitable results which occur

in the strict application of the traditional doctrine of sov-

ereign immunity”, but went on to declare it to be the publie

policy of the state “that public entities shall only be liable

for their negligence within the limtations of this act * * *.”

Petitioners are cognizant of the reiteration in recent

years by this Court of the rubric that 1nunicipalities and

political subdivisions or agencies of states do not enjoy

tort immunity for purposes of the Eleventh Amendment.

See Monell v. N.Y.C. Department of Public Service, 436

U.S. 658, 690, n.54 (1978); Lafayette v. Louisiana Power

& Light Co., 485 U.S. 389, 412 (1978); Mt. ITealthy City

Board of Ed. v. Doyle, 429 U.S. 274, 280 (1977). How-

ever none of these cases explains why an instrumentality

or arm of a state should not partake of the immunity

of the state itself from actions by its citizens or those of

other states ordained by the Eleventh Amendment, when

the State expressly confers its immunity on the instru-

mentality.* Instead all such asseverations cite as dis-

positive authority the case of Lincoln County v. Luning,

133 U.S. 529 (1890). In that case, however, the action

involved a suit on a county bond, and in its ratio decidendi

the Court cited provisions of the Nevada constitution

permitting the issuance of such bonds by municipal cor-

porations and the institution of actions thereon. Jd. at

031. The case was therefore a clear one of state waiver

of immunity. The further implication in the opinion that

municipalities and counties did not generally constitute

the state was not supported except by reference to the

incidence of prior suits where the question of immunity

was not raised or decided. The holding in Lincoln County

appears not to go beyond the proposition that where a

state permits one of its instrumentalities to be sued on

one of its authorized obligations sovereign immunity has

been waived,

In Mt. Healthy City Board of Ed. v. Doyle, supra, in

passing upon the question as to whether a municipal

board of education was entitled to the bar of the Eleventh

Amendment as against an action for damages by a citizen

in a federal court, this Court said it would look to state

law to see whether “the nature of the entity” was more

*It would seem anomalous that although a local sewerage auth-

ority of a state is deemed an arm of the state for purposes of re-

sponsibility of the state to another state for water pollution, New

York v. New Jersey, 256 U.S. 296, 301-302 (1921), such agency

should be denied the sovereign immunity of the state in respect

of litigation concerning such pollution.

like a political subdivision or municipal corporation than

like “an arm of the state”. 429 17.S. at 280. Resort to

Ohio law in that case led to the conclusion that the de-

fendant board was not deemed an arm of the state. We

submit that resort to New Jersey state law establishes

that, whatever the semantic characterization of these pub-

lie entities, the New Jersey Tort Claims Act has con-

ferred upon them the aegis of state sovereignty and con-

sequently state immunity from tort suit except within the

conditions expressly specified in the statute for waiver of

such immunity. No proper application of the rule of

federal supremacy, or any other principle, warrants fed-

eral abrogation of such immunity.

We submit that the matter of availability of the Eleventh

Amendment as a defense to federal damage suits against

New Jersey municipalities invested with the state’s sov-

ereign immunity warrants reconsideration by this Court

in the light of the argument hereinabove set forth and

considerations of due regard for appropriate relationships

between federal and state authorities:

ee OM ee ee

CONCLUSION

We respectfully submit that the petition for certiorari

should be granted. The legal problems implicated are

of the highest degree of public importance. Petitioners

as public sewage disposal agencies are performing a pub-

lic health service of the highest magnitude. Under ever

increasing financial and technological difficulties, they are

endeavoring to meet their public responsibilities under

a scheme of state and federal administrative regulations,

authorized by statute, which is far reaching, comprehen-

sive and designed to achieve the maximum freedom from

pollution of the interstate waters in the New York metro-

politan area by an early date.

Harassment of these agencies at the instance of private

parties and organizations in such suits as this one obvi-

ously militates against the pursuit by these agencies of

the public health and environmental objectives envisaged

by the controlling legislation and the administrative reg-

ulations adopted and being enforced thereunder.

In these circumstances it is urgently in the publie in-

terest that this Court assume jurisdiction of this case

and determine whether the federal environmental legis-

lation involved herein does not fairly contemplate that

such public sewage disposal agencies as petitioners be

free from federal suit except under the precise terms and

conditions specified in the legislation for actions by pri-

vate parties against such agencies, particularly that of

pre-suit notice of claim.

Respectfully submitted,

Wientz, Gotpman & Sprrzer, Mitton B. Conrorp,

A Professional Corporation, Counsel for Petitioner, Middlesex

Attorneys. County Sewer Authority.

Francis X. JOURNICK,

Marvin J. Bravuts,

Of Counsel.

Cuaries C. CARELLA,

Counsel for Petitioner, Passaic

Valley Sewerage Commisstion-

ers.

JoHn G. Grrimuay, III,

Of Counsel.

STEPHEN J. Mosss,

Counsel for Petitioner, Bergen

County Sewer Authority.

Menextacs W. Toskos,

Of Counsel.

Vincent J JENNINGS,

Counsel for Petitioner, Township

of Middletown Sewerage Au-

thority.

FURMAN AND JENNINGS,

Attorneys.

Raymonp G. TomaszewskI,

Counsel for Petitioner, The Lin-

den Roselle Sewerage Author-

ity.

APPENDIX

Opinion of the Court of Appeals

(Filed—February 5, 1980)

UNITED STATES COURT OF APPEALS

For THE Tuirp Circuit

No. 79-1360

—

NATIONAL SEA CLAMMERS ASSOCIATION and

GOSTA LOVGREN,

Appellants,

CITY OF NEW YORK, HONORABLE ABRAHAM

BEAME, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, RUSSELL E. TRAIN,

individually and as ADMINISTRATOR OF THE

UNITED STATES ENVIRONMENTAL PROTEC-

TION AGENCY, UNITED STATES ARMY CORPS

OF ENGINEERS, MARTIN R. HOFFMANN, indi-

vidually and as SECRETARY OF THE UNITED

STATES DEPARTMENT OF THE ARMY, NEW

YORK DEPARTMENT OF ENVIRONMENTAL

CONSERVATION, OGDEN R. REID, individually

and as COMMISSIONER OF THE NEW YORK

DEPARTMENT OF ENVIRONMENTAL CONSER-

VATION, NEW JERSEY DEPARTMENT OF

[la]

Opinion of the Court of Appeals

—.

—_—

ENVIRONMENTAL PROTECTION, DAVID J.

BARDIN, individually and as COMMISSIONER OF

NEW JERSEY DEPARTMENT OF ENVIRON-

MENTAL PROTECTION, BERGEN COUNTY

SEWER AUTHORITY, THE JOINT MEETING OF

ESSEX AND UNION COUNTIES, PASSAIC VAL-

LEY SEWERAGE COMMISSIONERS, MIDDLE-

SEX COUNTY SEWERAGE AUTHORITY, THE

LINDEN ROSELLE SEWERAGE AUTHORITY,

MIDDLETOWN SEWERAGE AUTHORITY, WEST

LONG BEACH SEWER DISTRICT, COUNTY OF

WESTCHESTER, DEPT. OF ENVIRONMENTAL

FAC., CITY OF LONG BEACH AND CITY OF

GLEN COVE.

(D.C. Civil No. 77-0126)

Gispons, Circuit Judge.

This case comes before us on an appeal by plaintiffs

National Sea Clammers Association and Gosta Lovgren

from a final order dismissing their complaint. Plaintiffs

are an association whose members make their living

harvesting fish and shellfish from the water and ocean

beds of the Atlantic Ocean near New York and New Jer-

sey, and an individual similarly employed. They sue on

behalf of themselves and a class comprising all others

similarly situated. Defendants are various federal, state,

and local officials and governmental departments that

are charged with environmental protection or that are

responsible for sewage treatment and disposal.

Plaintiffs’ complaint alleged that defendants discharged

or permitted the discharge of certain nutrient-rich sew-

Opinion of the Court of Appeals

age and toxic wastes into the Atlantic Ocean or its tribu-

taries. It further alleged that in 1976 these discharges

caused a massive and rapid growth of algae from Long

Island to Cape May and extending from a few miles to

twenty miles offshore. When this algae mass bloomed

and died it allegedly settled on the ocean’s floor, and its

subsequent decomposition created an anoxia, an oxygen

deficiency, in the water near the ocean’s floor, which

caused death and other adverse effects on marine life,

particularly on those life forms, such as shellfish, ill

able to flee the afflicted area, Plaintiffs alleged viola-

tions of the National Environmental Pelicy Act of 1969,

42 U.S.C. §§4821-4361 (1976), the -Federal Water Pol-

lution Control Act, 33 U.S.C. §§1251-1376 (1976 & Supp.

I), the Marine Protection Research and Sanctuaries Act

of 1972, 33 U.S.C. $$1401-1444 (1976), the Rivers and

Harbors Act of 1899, 33 U.S.C. §407 (1976), the New York

Iinvironmental Conservation Law, N.Y. Environ. Con-

serv. §1-0101 (McKinney 1973), the New Jersey Con-

servation and Development Law, N.J.S.A. 13:10-1 (1968),

the federal common law of nuisance, and the fifth, ninth,

and fourteenth amendments to the Constitution. Defend-

ants moved for dismissal of all claims on the grounds

that the court lacked subject matter jurisdiction, see

Fed. R. Civ. P. 12(b)(1), or that the plaintiffs had failed

to state a claim on which relief could be granted, see

ed. R. Civ. P. 12(b)(6). The complaint seeks injunc-

tive relief, damages, mandamus to compel compliance

with statutory duties, the imposition of fines and penalties

for certain violations, the award to plaintiffs of one half

of the fines assessed, and attorneys’ fees. The trial court,

holding that the submission of affidavits converted the

motions into motions for summary judgment, granted

defendants’ motions as to each cause of action alleged.

Opinion of the Court of Appeals

The complaint was dismissed, with prejudice, on all claims

except for two said to arise under state law which were

dismissed without prejudice. This appeal followed. We

discuss separately the various legal theories which were

pleaded and rejected.

1. The Federal Water Pollution Control Act

The district court held that plaintiffs’ failure to com-

ply with the notice requirements of the Federal Water

Pollution Control Act (FWPCAA)! deprived it of juris-

diction to entertain plaintiffs’ claim that defendants vio-

lated their duties under that Act. Section 505(a) of the

FWPCAA grants to any private citizen the right to sue to

enforce compliance with effluent standards or limitations,

33 U.S.C. §1365(a)(1), or to compel the Administrator

of the Environmental Protection Agency to perform non-

discretionary duties. Id. §1365(a)(2). Section 505(b) re-

quires that in suits brought pursuant to subsection (a),

60 days’ notice be given to specified parties to the suit.

The Federal Water Pollution Control Act, 33 U.S.C. §§1251-

1376 (1976 & Supp. I) was patterned after the Clean Air Act,

42 U.S.C. §§7401-7642 (1976). As originally enacted it was se-

riously deficient as a comprehensive regulatory scheme and was

substantially amended in 1972. Federal Water Pollution Control

Act Amendments of 1972, Pub. L. No. 92-500, reprinted in [1972]

U.S. Code Cong. & Ad. News 951, codified in 33 U.S.C. §§1251-

1376 (1976); see W. Rodgers, Environmental Law §4.2 (1977).

The 1972 amendments created the private right of action here in

issue. Although the Act was further amended in 1977, those changes

are not relevant to this litigation.

Opinion of the Court of Appeals

Id. §1365(b).? Regulations promulgated by the Adminis-

trator define the type and specificity of the notice required.

40 C.F.R. §135.3(A) (1979).

The district court held that the notice provision of

section 505(b) was a jurisdictional prerequisite to suit,

such that plaintiffs’ failure to give notice barred suit un-

der section 505(a), 33 U.S.C. §1365(a). This court has

rejected the theory that substantial compliance with the

notice requirement suffices to give the court jurisdiction

under section 505(a). We require instead strict adher-

ence to the Act’s notice provisions for suits brought pur-

suant to section 505(a). Loveladies Property Owners

Ass'n, vy. Raab, 430 F. Supp. 276, 280-81 (D.N.J. 1975),

affd mem., 457 F.2d 1162 (3d Cir. 1976), cert. denied,

432 U.S. 906 (1977). We do not depart from that hold-

ing. We note, however, that it would be entirely permis-

sible for this court to adopt the pragmatic approach to in-

terpreting the 60-day notice provision by which we would

merely require that sixty days elapse prior to district

* Numerous environmental protection statutes contain citizens’

suit provisions, each of which also contains a notice requirement

similar to that found in section 505(b), 33 U.S.C. §1365(b). E.g.,

Toxic Substances Control Act, §§20, 21, 15 U.S.C. §$2619, 2620

(1976); Surface Mining Control and Reclamation Act of 1977,

§520, 30 U.S.C. §1270 (1976 & Supp. I); Marine Protection, Re-

search and Sanctuaries Act of 1972, §105, 33 U.S.C. §1415 (1976) ;

Deepwater Port Act of 1974, §16, 33 U.S.C. §1515 (1976); Safe

Drinking Water Act, §2(a), 42 U.S.C. §300j-8 (1976 & Supp I);

Noise Control Act of 1972, §12, 42 U.S.C. §4911 (1976); Resource

Conservation and Recovery Act of 1976, §2, 42 U.S.C. §6972 (1976

& Supp. I); Clean Air Amendments of 1970, §12(a), 42 U.S.C.

§7604 (1976 & Supp. I).

Opinion of the Court of Appeals

court action on the complaint.2 The purpose behind the

notice provision, as the legislative history makes clear,

was to afford the Environmental Protection Agency an

opportunity to remedy the alleged violation prior to ju-

dicial action.* Thus, in the instant case, we could adopt

the position that the failure of the Administrator to take

remedial action during the sixty days after receiving no-

tice of the suit permitted the suit to go forward in dis-

trict court. We need not pass upon this proposition, how-

ever, because of our analysis of the independent signifi-

cance of section 505(e), 33 U.S.C. §1365(e), the savings

clause of the citizens’ suit provision.

The district court erred in holding that failure to comply

with section 505(b), 33 U.S.C. §1365(b), created an abso-

lute bar to plaintiffs’ suit to enforce the provisions of the

Act. The citizens’ suit provision of the FWPCAA was

modeled on a similar provision in the Clean Act Act. Com-

pare Clean Air Act $304, 42 U.S.C. $7604 (1976) with Fed-

eral Water Pollution Control Act $505, 33 U.S.C. §1365

’ See H.R. Conf. Rep. No. 92-1236, 92d Cong., 2d Sess. 145-46

(1972), reprinted in Legislative History of the Water Pollutiom

Control Act Amendments of 1972, at 328-29 (1973) (hereinafter

Legislative History) (Senate version, adopted in relevant part by

Conference Committee, would require that “no action on a suit

may begin for 60 days following notification”). Thus, it appears

that the Senate bill envisioned filing of a Complaint prior to the

passage of 60 days and intended only to defer action on such a

suit.

*S. Rep. No. 92-414, 92d Cong., Ist Sess. 79-80 (1972), re-

printed in Legislative History at 1497-98, see W. Rodgers, En-

vironmental Law §1.13 (1976) (discussing prototype citizens’ suit

provision of Clean Air Act).

Opinion of the Court of Appeals

(1976 & Supp. I). The slight difference in wording of

the citizens’ suit provision of each act reflects only the

attempt by Congress to ensure that the FWPCAA would

comply with the holding of the Supreme Court in the then-

recent case of Sierra Club v. Morton, 405 U.S. 727 (1972).

The Senate version of the bill would have permitted any

person to sue to enforce the terms of the Act. The House

bill would have limited citizens’ suits narrowly to suits

brought by two types of plaintiffs, citizens of the geo-

graphic area who were directly affected by the alleged vio-

lation, or groups of persons who, because actively engaged

in the administrative process, had shown an interest in

®In Sierra Club, the Supreme Court analyzed the requirement

of standing in the context of litigation by environmental groups

pursuant to section 10 of the Administrative Procedure Act. 5

U.S.C. §702 (1976). The Court held that such an environmental

group would have standing if it could allege an adverse effect on

its interests, whether economic, aesthetic, conservational or recrea-

tional. 405 U.S. at 738. The legislative history of the FWPCAA

is replete with references to the Sierra Club decision and the issue

of whether the general language of the Clean Air <Act’s citizens’

suit provision would withstand judicial scrutiny. See notes 8-9

infra and accompanying text.

® The Senate bill provided that “any person” could commence a

civil action to enforce the terms of the Act “without regard to the

amount in controversy or the citizenship of the parties.” S. 2770,

92d Cong., Ist Sess. §505(a) (1971), reprinted in Legislative His-

tory at 1703-04. The accompanying committee report likewise em-

ployed broad phrasing. See S. Rep. No. 92-414, 92d Cong., 1st

Sess. 79 (1971), reprinted in Legislative History at 1497 (“anyone

may initiate a civil suit against” specified parties for specific vio-

lations).

Opinion of the Court of Appeals

the area or the controversy.’ The Conference Committee

chose a middle path, limiting the section 505(a) remedy

to citizens, but defining citizen broadly in section 505(g).°

The intent of Congress was thus to provide generally for

citizens’ suits which would not be subject to the jurisdic-

tional amount requirement and yet would provide for pri-

The House bill provided

Sec. 505.(a) . . . any citizen may commence a civil action

on his own behalf...

(g) For the purposes of this section the term ‘citizen’

means (1) a citizen (A) of the geographic area and (B)

having a direct interest which is or may be affected, and

(2) any group of persons which has been actively en-

gaged in the administrative process and has thereby shown

a special interest in the geographic area in controversy.

H.R. 11896, 92d Cong., 2d Sess. §§505(a), 505(g) (1972), re-

printed in Legislaiive History at 1073, 1077.

* The final form of the bill reflects the Conference Committee’s

changes. See 33 U.S.C. §1365(g). The Conference Report notes

that the change complies with the Sierra Club requirements. S.

Conf. Rep. No. 92-1236, 92d Cong., 2d Sess. 145-46 (1972), re-

printed in Legislative History at 328-29. Senator Muskie’s some-

what fuller description of the Conference agreement noted that:

The Conference agreed to define a citizen, for purposes

of the citizen suit section of the water bill, as a “person or

persons having an interest which is or may be adversely

affected.”

1 Legislative History at 179 (prepared statement of Sen. Muskie)

(Oct. 4, 1972).

Opinion of the Court of Appeals

vate attorney general enforcement to the maximum degree

permitted by the Courts Sierra Club decision.®

t is clear, however, from the legislative history that

the section 505(a) remedy is not exclusive. That section

was intended to give federal courts jurisdiction over suits

by private atorneys general seeking to enforce the pro-

visions of the Act. Thus, the notice provision of section

905(b) only applies when a non-injured member of the

public sues to enforce the Act. For the purposes of such

a suit, Congress created the section 505(a) remedy, per-

mitting suit not subject to the normally required mini-

mum jurisdictional amount. See W. Rodgers, Environ-

mental Law $1.13 (1977) (discussing prototype citizens’

suit provisions of Clean Air Act). The section 505(a)

remedy, however, is not the exclusive vehicle for enforce-

ment of the FWPCAA by private citizens. A private

® The legislative history reveals numerous examples of this intent

of Congress. £.g., S. Conf. Rep. No. 92-1236, 92d Cong., 2d

Sess. 145-46 (1972), reprinted in Legislative History at 328-29;

‘TI8 Cong. Rec. 33752, reprinted in Legislative History at 179 (pre-

pared statement of Sen. Muskie) (Oct. 4, 1972); 118 Cong. Rec.

33756, reprinted in Legislative History at 249-50 (remarks of Rep.

Dingell) (Oct. 4, 1972). Moreover, although the passage of the

House version preceded the Sierra Club decision, some representa-

lives argued that the private attorney general theory intended to be

adopted called for wording of the section identical to that found in

the Clean Air Act. H.R. Rep. No. No-92-911, 92d Cong., 2d Sess.

407-09, reprinted in Ligiitise stor at 876-78 (additional. views

of Rep. Bella S..Abzug_and Rep. Charles B. Rangel) (describing

House version as 1

reprinted-in LeGislative History at 671-73 (remarks of Rep. Mc-

Closkey “Mar. 29, 1972) (offering amendment similar to-fat ulti-

iatety adopted at Conference); see H.R Rep. Na92- 911, 92d

-—Eong., 2d Sess. 133-34, reprinted in Legislative-History at 820-21

€cessarily limited) ; 118 Cong. Rec. 10771-72,—

10a

Opinion of the Court of Appeals

party who is injured by the alleged violation, as these

plantiffs allege they were, has an alternate basis for suit

under section 505(e), 33 U.S.C. §1365(e), and the general

federal question jurisdiction of the Judicial Code. 28°

U.S.C. $1331 (1976). Section 505(e) is a savings clause

that preserves all rights to enforce the Act or seek relief

against the Administrator.’? Coupled with the general fed-

eral question jurisdiction it permits this suit to be brought

by the parties.’ Moreover, unlike the private attorneys

general provision of section 505(a), section 505(e) pro-

vides an independent remedy for injured parties unbur-

dened by the notice requirements of section 505(b).

All parties and the court below acknowledge that the

federal courts differ on the issue of whether section 505(e)

authorizes private enforcement of the Act alternate to

that authorized in section 505(a). The more persuasively

reasoned cases, however, support our conclusion that sec-

tion 505(e) was intended to preserve the rights of injured

parties to sue to enforce the terms of the Act notwith-

standing the expansion of remedies to non-injured parties

10 Section 505(e) provides:

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).

33 U.S.C. §1365(e).

11 Under the section 505(e) and 28 U.S.C. §1331 analysis, the

plaintiffs, of course, remain subject to the jurisdictional amount

requirement except with respect to their claim for injunctive relief

against federal officers.

lla

Opinion of the Court of Appeals

contained in section 505(a). They recognized that the

effect of section 505(a) is to give the district court juris-

diction over a new class of plaintiffs, while section 505(e)

preserves jurisdiction over the pre-existing right of in-

jured parties to sue to enforce the Act.? By relying on

the Clean Air Act, Congress made clear its intention to

involve citizens in the enforcement of the Act.

The Second Circuit, in an opinion written by Judge

Adams of this court sitting by designation, relied upon

the Act’s legislative history to support its conclusion that

12 Natural Resources Defense Council, Inc. v. Train, 510 F.2d

692, 699-700 (D.C. Cir. 1974); see Natural Resources Defense

Council v. Callaway, 524 F.2d 79, 83-84 (2d Cir. 1975) (60-day

notice provision’ is not absolute bar to suit); Conservation Soc’y

of S. Vt., Inc. v. Sec’y of Transp., 508 F.2d 927, 938 & n.61, 938-39

(2d Cir. 1974) (same; provision intended to create additional

remedy), vacated, 423 U.S. 809 (1975) (vacated and remanded

for consideration of effect of statutory amendments on issue of

preparation of environmental impact statement) ; Township of Long

Beach v. City of New York, 445 F. Supp. 1203, 1208-10 (D.N.j.

1978) (finding jurisdiction under 28 U.S.C. §1331 gives effect to

savings clause).

We therefore decline to follow the Seventh Circuit’s opinion in

City of Highland Park v. Train, 519 F.2d 681, 690-91 (7th Cir.

1975), on which the district court relied. The Highland Park court's:

strict reading of the 60-day notice requirement of the Clean Air

Act’s citizens’ suit provision does not persuade us with respect to

our savings clause analysis. See id. at 693 (rejecting Clean Air

Act citizens’ suit provision’s savings clause analysis); cf. West

Penn Power Co. v. Train, 522 F.2d 302, 307 & n.20 (3d Cir. 1975)

(district court’s literal reading of Clean Air Act’s 60-day notice

requirement not raised on appeal). We recognize instead the intent

of Congress to create a remedy for a new class of plaintiffs while

preserving in section505(e)those preexisting rights of injured indi-

viduals to enforce the Act.

12a

Opinion of the Court of Appeals

failure to give notice was not an absolute bar to suit un-

der the FWPCAA." Moreover, prior to the district court’s

opinion in the instant matter, Chief Judge Clarkson

Fisher had adopted the section 505(e) jurisdiction analysis

as well. In Township of Long Beach v. City of New York,

445 F. Supp. 1203 (D.N.J. 1978), Chief Judge Fisher held

that plaintiffs who had failed to comply with the section

505(b) notice requirement could sue in district court under

section 505(e) and the general federal question jurisdic-

tion, because they were injured parties suing on their own

behalf and alleged damage in excess of the normal juris-

dictional amount. Jd. at 1209-10. We must therefore re-

verse the holding of the district court that it lacked juris-

diction to entertain plaintiffs’ claims under the FWPCAA.

We turn now to the issue of whether plaintiffs have a

cause of action independent of that created in section

505(a) on which they may bring suit under section 505(e).

18 Conservation Soc’y of S. Vt. v. Sec’y. of Transp., 508 F.2d

927, 938 & n.62, 938-39 (2d Cir. 1974) (§ 1365(b) absolute bar

analysis is “crabbed construction . . . which . . . fails to account

for § 1365(e)”), vacated, 423 U.S. 809 (1975) (vacated for con-

sideration of statutory issue of preparation of environmental im-

pact statement). The court assumed arguendo that it had section

505(e) jurisdiction but denied relief on the merits. Jd.

Nor does our affirmance of the Loveladies decision bar to-

day’s holding. See Loveladies Property Owners Ass'n v. Raab,

430 F. Supp. 276, 280-81 (D.N.J. 1975), aff'd mem., 457 F.2d

1162 (3d Cir. 1976) (failure to give notice bars suit under §505(a) ),

cert. denied, 432 U.S. 906 (1977). As Chief Judge Fisher noted

in Township of Long Beach, the section 505(e) argument was not

raised in Loveladies, and it is questionable whether the plaintiff

there had suffered damage in excess of the required $10,000 amount.

See Township of Long Beach v. City of New York, 445 F. Supp.

at 1209 n&.

13a

Opinion of the Court of Appeals

In Cort v. Ash, 422 U.S. 66 (1975), the Supreme Court

established a four part test for finding an implied private ©

cause of action. Since Cort, the Supreme Court has fur-

ther refined the test to be applied in determining whether

a private right of action arises under any given federal

statute."© In Cannon y. University of Chicago, 441 U.S.

677 (1979), the Court broadened the Cort test and held

that Congress’ failure expressly to consider private reme-

dies did not preclude a holding that Congress intended

to imply one. Jd. at 694. More recently, in Touche Ross &

Co. v. Redington, U.S. ——, No. 78-309 (U.S. June 18,

1979), the Court noted that the Cort factors are merely

relevant to the inquiry of whether a private remedy is

implicit. Id. at , Slip op. at 15. There, the Court stated

that in Cort v. Ash,

15422 U.S. at 78. The factors referred to in Cort are:

First, is the plaintiff ‘one of the class for whose especial

benefit the statute was enacted,’ . . . that is, does the statute

create a federal right in favor of the plaintiff? Second, is

there any indication of legislative intent, explicit or implicit,

either to create such a remedy or to deny one? . . . Third,

is it consistent with the underlying purposes of the legis-

lative scheme to imply such a remedy for the plaintiff? .. .

And finally, is the cause of action one traditionally relegated

to state law, in an area basically the concern of the States,

so that it would be inappropriate to infer a cause of action

based solely on federal law?

Id. (emphasis in original).

16 Transamerica Mortgage Advisors, Inc. v. Lewis, U.S.

, No. 77-1645 (U.S. Nov. 13, 1979); Touche Ross & Co. v.

Redington, U.S. ——, No. 78-309 (U.S. June 18, 1979);

Cannon v. University of Chicago, 441 U.S. 677 (1979).

l4a

Opinion of the Court of Appeals

the Court did not decide that each of these factors

is entitled to equal weight. The central inquiry re-

mams whether Congress intended to create, either

expressly or by implication, a private cause of

action.

Id. (emphasis added). Thus, the Court noted, the Cort

factors are simply designed to guide the courts in deter-

mining legislative intent. Finally, this Term in Trans-

america Mortgage Advisors, Inc. v. Lewis, —— U.S. ;

No. 77-1645 (U.S. Nov. 13, 1979), the Court applied the

Touche Ross test, noting that the issue of “whether a stat-

ute creates a cause of action, either expressly or by im-

plication, is basically a matter of statutory construction.”

Id. at , slip op. at 4. It held that once legislative in-

tent is discovered, countervailing considertion arising from

strict application of the Cort factors become irrelevant.

Id. at , slip op. at 11-12. Bearing in mind that the

single relevant inquiry is the intent of Congress, we turn

to the Cort v. Ash factors to guide our analysis of the

legislative intent.

Applying these factors to the instant case, we hold that

a private cause of action is available to these plaintiffs

under the FWPCAA.” First, we have already held that

one of the purposes behind the passage of the FWPCAA

was the protection of individuals from injury caused by

17 We have already held that the district court had jurisdiction

to entertain plaintiffs’ suit pursuant to section 505(e) of the Acct,

33 U.S.C. §1365(e), and the general federal question jurisdiction,

28 U.S.C. §1331. Separate analysis of jurisdiction and the merits

of the cause of action is required by cases such as Bell v. Hood,

327 U.S. 678 (1946), and Bivens v. Six Unknown Named Agents

of the ed. Bur. of Narcotics, 403 U.S. 388 (1971).

15a

Opinion of the Court of Appeals

the polluting activities of others, Thus, although the Act

specifically grants a remedy to non-injured persons suing

on behalf of the public, it is clear that the “class for

whose especial benefit the statute was enacted” must have

been individuals likely to suffer actual injury by the pol-

lution."* Jurisdiction over suits by them is preserved by

the savings clause. Although section 505(a) of the Act

permits suit by private attorneys general who have suf-

fered no direct economic harm, the statute clearly was in-

tended to protect this particular class of actually injured

persons as well. Plaintiffs are members of a class that

takes its living from the sea and that is especially hurt by

pollution. The general purpose clause of the Act includes

a statement that the national goal shall be the attainment

of that “water quality which provides for the protection

and progagation of the fish, shellfish, and wildlife.” 33

U.S.C. §1251(a)(2). Although such protection will of

course benefit the public at large, the general purpose

clause supports our conclusion that the statute was in-

tended to benefit the class of which plaintiffs are a part,

and that a private remedy was intended to be created in

their behalf.

As to the second factor in the Cort analysis, nothing

in the legislative history suggests that the section 505(a)

remedy created on behalf of private attorneys general was

intended to be exclusive. Indeed, the savings clause

broadly preserves all rights to sue “under any statute,”

language which given the legislative history of the sec-

tion supports the existence of alternate remedies under

18 In Cannon, the Court looked to the language of the statute

to identify the class intended to be benefitted by the legislation, con-

trasting such a statute with those intended to benefit the public at

large. Cannon v. Univ. of Chicago, 441 U.S. 677, 690 (1979).

l6a

Opinion of the Court of Appeals

the Act.” We reject the argument that the legislative his-

tery precludes finding an implied private right of action

under the FWPCAA. The Report that accompanied the

Senate’s original version of the bill noted that the savings

clause preserved the rights to sue “under any other law.”

S. Rep. No. 92-414 at 81, Legislative History at 1499.2

We are not persuaded that this paraphrase of the word-

ing of the Act was intended to preclude the finding of a

private remedy under the Act. The wording of the say-

ings clause itself makes clear Congress’ intent to preserve

the rights of individuals to sue under any statute or the

common law.

The third Cort factor was expanded by the Supreme

Court last Term in Cannon. There the Court noted that

when [a private right of action] remedy is neces-

sary or at least helpful to the accomplishment of the

purpose the court is decidedly receptive to its im-

plication under the statute.

We are not persuaded that exclusivity of the section 505 (a)

remedy is supported by the Senate’s rejection of a class action

mechanism. S. Rep. No. 92-414 at 81, Legislative History at 1499

(§505 does not authorize class actions; intended to avoid Fed. R.

Civ. P. 23 problems) ; see City of Evansville v. Ky. Liquid Re-

cycling, 604 F.2d 1008, 1014 (7th Cir. 1979) (§505 does not auth-

orize class action or suit for damages).

*0The Seventh Circuit, addressing the issue of whether there

was an implied private cause of action for damages under the

FWPCAA, was persuaded that the Senate Report evidenced Con-

gress’ intent that no remedy other than that provided for in section

505(a) be implied from the FWPCAA. City of Evansville v. Ky.

Liq. Recycling, Inc., 604 F.2d 1008, 1018-19 (7th Cir. 1979). We

are not persuaded that the language of the Senate Report establishes

that the savings clause precludes finding an implied private cause

of action under the Act on behalf of these plaintiffs.

17a

Opinion of the Court of Appeals

441 U.S. at 703. Although not necessary to the accom-

plishment of the purposes of the “WPCAA, implying a

private remedy on behalf of these plaintiffs certainly

would be “helpful” to the effectuation of those purposes.

Moreover, under the Cort analysis, a private remedy would

be consistent with the purposes of the Act in general and

with the purpose of protecting and encouraging propaga-

tion of marine life in particular. See 33 U.S.C. §1251(a)

(2) (general purpose clause).

Finally, the fourth inquiry in the Cort analysis also

points to Congress’ intent to permit this private cause of

action. Far from being an area of traditional state con-

cern, water pollution of the Atlantic Ocean is an inter-

state phenomenon of federal concern as to which an im-

plied private remedy in the federal courts should not be

denied.”

Thus, using the Cort factors as a guide, we have exam-

ined the statute and its legislative history in order to dis-

cover the legislative intent. See Transamerica Mortgage

Advisors, Inc. v. Lewis, USS. » No. 77-1645, slip

op. at 4 (Nov. 18, 1979). We therefore hold that Con-

gress intended to permit the federal courts to entertain

a private cause of action implied from the terms of the

FWPCAA, preserved by the savings clause of the <Aet,

on behalf of individuals or groups of individuals who

21In Illinois v. Milwaukee, 406 U.S. 91 (1972), a unanimous

Supreme Court recognized that there is a federal common law

cause of action to abate pollution of interstate ambient water not-

withstanding the relief available under the FWPCAA. /d. at 103-05.

In Part IV, infra, we address this reliance on the federal common

law of nuisance in the water pollution context.

18a

Opinion of the Court of Appeals

have been or will be injured by pollution in violation of

its terms.

Having so held, we reject the federal government de-

fendants’ sovereign immunity argument. The 1976 amend-

ments to section 1331 of title 28 make clear that sovereign

immunity has been waived in all suits by plaintiffs seek-

ing injunctive relief against federal agencies or officers.”

Whether damages can be recovered from the federal gov-

ernment is a separate question to which the Federal Tort

Claims Act speaks. See Part VII, infra. We must there-

fore reverse the district court’s dismissal of the FWPCAA

claims.

II. The Marine Protection, Research & Santuaries Act

The Marine Protection, Research & Sanctuaries Act,

33 U.S.C. § 1401-1444 (1976) (MPRSA or Ocean Dump-

ing Act) regulates the transporting and dumping of cer-

tain material into the open waters of the ocean. Id.

§ 1401. The Act defines the prohibited material to include

dredged material, solid waste, sewage and sewage sludge,”

and provides for an absolute cessation of dumping of

22. See Act of October 21, 1976, Pub. L. No. 94-574, currently

codified at 5 U.S.C. §§702, 703 (1976) and 28 U.S.C. §$§1331,

1391 (1976).

*3 33 U.S.C. §1402(b). The Act also defines “ocean waters”

as “those waters of the open seas lying seaward of the base line

from which the territorial sea is measured.” Jd. §1402(c). The Act

does not apply to outfall structures regulated by the FWPCAA or

the Refuse Act. Jd. §1402(f).

19a

Opinion of the Court of Appeals

sewage sludge by December 31, 1981.** Plaintiffs allewed

four separate violations of the MPRSA,® all of which

were dismissed on the ground that plaintiffs’ failure to

give notice barred suit in district court.

Like the FWPCAA, the MPRSA provides that citizens’

suits may be brought after giving 60 days’ notice** and

contains a savings clause preserving all other rights to

** 71d. §1412a(a) (1976 & Supp. I). The Act defines sewage

sludge to include

any solid, semisolid, or liquid waste generated by a municipal

waste water treatment plant the ocean dumping of which

may unreasonably degrade or endanger human health, wel-

fare, amenities, or the marine environment, ecological sys-

tems, or economic potentialities.

Id. §1412a(b).

*° Count I of the Complaint alleged that federal defendants En-

vironmental Protection Agency (EPA) and Army Corps of Engi-

neers (ACE) failed to enforce the provisions of the Act, that the

Secretary of the Army and the ACE negligently conducted dredg-

ing and dumping operations, and that the state defendants trans-

ported and dumped sewage in violation of the Act. Count III

alleged that EPA and the Administrator of EPA and ACE and

the Secretary of the Army failed to carry out their duties under

the Act.

*8 The citizens’ suit section of the MPRSA, 33 U.S.C. §1415(g),

provides in relevant part that, subject to the notice requirement,

id. §1415(g)(2), “any person may commence a civil suit on his

own behalf to enjoin any person” acting in violation of the terms

of the Act. Jd. Other limitations upon the instituting of citizens’

suits are directed toward the avoidance of duplicative litigation and

are not relevant to this suit. See id. §1415(g) (2).

20a

Opimion of the Court of Appeals

seek relief.*7 Although the wording of the citizens’ suit

provision of the MPRSA differs slightly from the FWP

CAA provision, the jurisdictional analysis is the same.”

Thus, because these plaintiffs have not complied with the

notice requirement of the citizens’ suit provision, their

suit under section 1415(g)(1), which governs private at-

torney general suits by non-injured persons, is barred.

However, because they allege that they have suffered di-

rect injury by virtue of the defendants’ violations of the

Act, jurisdiction over their suit to enforce the provisions

of the MPRSA is preserved by the savings clause. More-

Over, a private cause of action to enforce the terms of

the Act may be implied with respect to these injured

plaintiffs. For the purposes of this analysis, the statu-

tory provisions and legislative histories of the MPRSA

and FWPCAA are virtually indistinguishable.2® Thus

7 Id. §1415(g)(5). The savings clause provides

(5) The injunctive relief provided by this subsection shall

not restrict any rights which any person ¢ r class of persons

may have under any statute or common la, to seek enforce-

ment of any standard or limitation or to seek any other

Id.

*° Compare 33 U.S.C. §1365(a) (any citizen may sue) with id.

$1415(g)(2) (any person may sue). The legislative history of

the MPRSA is less clear than that of the FWPCAA, although

the citizens’ suit provision appears to have been patterned on the

Clear Air Act formulation, as was the provision found in the FW

PCAA.

*° Indeed, the MPRSA language, if anything, is broader than

that of the FWPCAA. See Part I supra (legislative history and

Statutory analysis of FWPCAA). Other courts, including the dis-

(Footnote continued on following page)

21a

Opinion of the Court of Appeals

we hold that the district court had jurisdiction to enter-

tain this suit by these plaintiffs pursuant to the savings

clause of the MPRSA and that a private cause of action

to enforce the terms of the Act may be implied on be-

half of these injured parties. We must therefore reverse

the judgment of the district court dismissing the plain-

tiffs’ MPRSA claims.

Ill. The Rivers and Harbors Act (Refuse Act)

Plaintiffs also allege that federal defendant Army Corps

of Engineers (ACE) and the state defendants violated

section 13 of the Rivers and Harbors Act of 1899, 33

U.S.C. § 407 (1976) (The Refuse Act). The Refuse Act

makes it unlawful to discharge or permit to be discharged

“any refuse matter of any kind or description whatever

other than that flowing from streets and sewers into any

navigable water of the United States or any tributary

thereof.” Jd. The district court dismissed this part of

the complaint. We affirm.

The Rivers and Harbors Act is limited by its terms to

enforcement by the United States Attorneys. 33 U.S.C.

§ 413 (1976). The majority of courts, and the courts of

this circuit that have addressed this issue, have held that

the Act precludes private suits and have thus refused to

(Footnote continued from preceding page)

trict court which ruled on this case do not analyze the MPRSA

and I'WPCAA separately, holding that the Acts are virtually iden-

tical in this regard. E.g., Township of Long Beach v. City of New

York, 445 F. Supp. 1203, 1210-11 (D.N.J. 1978) ; Save Our Sound

Fisheries Ass'n v. Callaway (SOSF II), 429 F. Supp. 1136, 1140-42

(D.R.I. 1977).

22a 7

Opinion of the Court of Appeals

find an implied private cause of action. Red Star Towing

& Transp. Co. v. Dept. of Transp., 423 F.2d 104, 105 (3d

Cir. 1970) (Act enforced by penal sanctions only); Town-

ship of Long Beach vy. City of New York, 445 F Supp.

1203, 1211-12 (D.N.J. 1978) (rejecting private cause of

action) ; see Connecticut Action Now, Inc. v. Roberts Plat-

ing Co., 457 F.2d 81, 85-87 (2d Cir. 1972) (§ 413 delegates

enforcement to Department of Justice; private party may

not force prosecution under § 407); Parsell v. Shell Oil

Co., 421 F. Supp. 1275, 1279-80 (D. Conn. 1976) (Act pro-

tects public at large rather than private group of indi-

viduals), aff’d mem. sub nom. East End Yacht Club, Inc.

v. Shell Ou Co., 573 F.2d 1289 (2d Cir. 1977); Anderson

v. Norfolk & Western Ry., 349 F. Supp. 121, 122 (W.D.

Va. 1972) (§ 413 delegates enforcement to United States

Attorneys; Act precludes qui tam enforcement). We ad-

here to the view that enforcement of the Refuse Act is

limited to action by the United States Attorneys.®° There-

5° We reject the argument that the court should imply a private

cause of action in cases in whici: the United States Attorney is not

in a position to enforce the terms of the Act. See NRDC v. Grant,

355 F. Supp. 280, 290 (E.D.N.C. 1973) (finding private cause of

action because U.S. Attorney serving as counsel for defendants).

The NDRC v. Grant decision, finding an implied private cause of

action because the United States Attorney was involved as counsel

for the federal government defendants, does not persuade us that

a private remedy should be implied. That decision was based upon

an analogy to two provisions of the Rivers and Harbors Act which

have generally been interpreted to permit a private cause of ac-

tion. Jd. The argument that the conflicting enforcement and de-

fense roles of the United States Attorney support the implied pri-

vate remedy has been explicitly rejected by this court. Red Star

(Footnote continued on following page)

| /

aie: Bon 23a

Opinion of the Court of Appeals

fore the dismissal of plaintiffs’ refuse Act claims must be |

affirmed. , eae

——

- -

——

In Illinois v. City of Milwaukee, 406 U.S. 91 (1972), a

unanimous Supreme Court recognized that there is a fed-

eral common law cause of action to abate poliuition of

interstate ambient water, notwithstanding any relief avail-

able under the FWPCAA* and held that such a cause

(Footnote continued from preceding page)

Towing & Transp. Co. v. Dept. of Transp., 423 F.2d 104, 105 (3d

Cir. 1970); see Township of Long Beach v. City of New York,

445 F. Supp. 1203, 1211-12 (D.N.J. 1978) (no private remedy

even if federal government is defendant; rejecting Grant analysis) ;

Loveladies Property Owners Ass'n v. Raab, 430 F. Supp. 276, 281

(D.N.J. 1975) (no implied private remedy under §407; relying on

Red Star Towing), aff'd mem. 547 F.2d 1162 (3d Cir. 1976), cert.

denied, 432 U.S. 906 (1977).

31406 U.S. at 103-05. The court held that the relief available

under the FWPCAA is not an exclusive remedy. Jd. at 104. In

the private enforcement context, this holding probably is statutorily

compelled. The FWPCAA provides for injunctive relief and the

assessment of civil penalties, but does not create a cause of action

tor damages. The savings clause of the citizens’ suit provision,

which preserves all rights of litigants to sue under any statute or

common law, has the effect of preserving these plaintiffs’ rights

to sue for damages under the remedy created in J/linois v. City of

Milwaukee. See 33 U.S.C. §1365(e).

Since Jilinois v. City of Milwaukee was decided, the FWPCAA

has been amended twice, but these amendments do not suggest

that Congress intended to preempt the federal nuisance remedy.

The Seventh Circuit, in deciding an appeal from the remand of

(Footnote continued on following page)

ei ae 24a

—_

ee Opinion of the Court of Appeals

of action presented a federal question over which the dis-

trict courts had section 1331 jurisdiction.**- The district

court refused\to extend the cause of action to private

litigants and dismissed plaintiffs’ common law nuisance

claim. In so holding, the court relied on holdings by other

federal district courts that only governmental agencies

can sue for relief from a public nuisance.** We hold that

(Footnote continued from preceding page)

the Jllinois case, analyzed the amended act to permit a claim for

nuisance independent of the FWPCAA remedies. [JlIlinois vy. City

of Milwaukee, 599 F.2d 151, 162 (7th Cir. 1979) (Act “suggests,

if it does not require, the conclusion that Congress did not intend

to preempt the federal common law of nuisance’), petition for cert.

filed, 48 U.S.L.W. 3155 (U.S. Sep. 11, 1979) (No. 79-408) ; see

33 U.S.C. §1370 (state authority to enforce more stringent limita-

tions) ; id. §1371 (chapter shall not be construed to limit or impair

authority of officers or agencies). Moreover,the Seventh Circuit re-

lied upon the explicit language of the savings clause in reaching

that conclusion. That clause preserves all remedies under “any

statute or common law.” 33 U.S£. §1365(e) ; see S. Rep. No. 93.

414 at 81 reprinted in Legislative History at 1499 (“Compliance with

[the] . . . Act would not be a defense to a common law nuisance

action for damages.’”’). There is no suggestion that “common law”

was intended to be limited to state rather than federal common

law. We thus agree that the amended Act does not preclude an

independent nuisance remedy. Pe

$2406 U.S. at 105; 28 U.S.C. §1331-(1976) ; see Illinois v. City

of Milwaukee, 599 F.2d 151, 162-63 (7th Cir. 1979), petition for —_

cert. filed, 48 U.S.L.W. 3155 (U.S. Sep. 11, 1979) (No,_ZS ).

83 See Parsell v. Shell Oil Co., 421

Conn. 1976), aff'd mem. sub

Shell Oil Co., 573 F.2

Supp. 1275, 1281 (D.

> East End Yacht Club Inc. v.

2d Cir. 1977) ; Committee for Consid.

of Jones Falls Sew. Sys. v. Train, 375 F. Supp. 1148 (D. Md. 1974),

aff'd on different but not inconsistent grounds, 539 F.2d 1006 (4th

Cir. 1976). 7

25a

Opinion of the Court of Appeals

the common law nuisance remedy recognized in Illinois v.

City of Muwaukee is available in suits by private parties.

The Court stated explicitly in J/linois that although both

parties to that suit were governmental, “it is not only the

character of the parties that requires us to apply federal

law.” Illinois v. City of Milwaukee, 406 U.S. at 105 n.6.

Rather, the Court noted that “where there is an overrid-

ing federal interest in the need for a uniform rule of

decision ... we have fashioned federal common law.” Jd.

In the instant case, plaintiffs are suing for damages to

interstate ambient water, an issue as to which there is

a clear and overriding federal interest in uniformity.**

There is no question but that the interstate pollution here

alleged is a problem calling for the application of a uni-

form federal standard. Relegating these litigants to pos-

sibly conflicting New York and New Jersey nuisance

standards would ignore the clear intent of the Supreme

Court to federalize those standards and would undermine

that federal uniformity. These plaintiffs have sufficiently

alleged pollution of interstate waters.” In order to give

**In reaching the conclusion that federal common law may be

fashioned to deal with federal rights, and that ambient air or water

are interstate problems as to which there is a federal common

law remedy, the Supreme Court relied upon Textile Workers v.

Lincoln’ Mills, 353 U.S. 448, 457 (1957) and Texas v. Pankey,

441 F.2d 236, 240-41 (10th Cir. 1971). Tilinois v. City of Mil-

waukee, 406 U.S. at 103 & nS.

®° Failure sufficiently to allege interstate effects has proved fatal

to plaintiffs seeking to base their suits on the federal common law

nuisance remedy. Reserve Mining Co. v. EPA, 514 F.2d 492,

920 (8th Cir. 1975); Committee for Consid. of Jones Falls Sew.

(Footnote continued on following page)

26a

Opinion of the Court of Appeals

full effect to the federal common law of nuisance recog-

nized in Illinois, private parties should be permitted, and

indeed encouraged, to participate in the abatement of such

nuisances. Courts have already extended the Tilinois

remedy to the federal government* and to municipalities,*”

and one district court has applied it on behalf of private

litigants.** The effectuation of the purposes of the JIli-

(Footnote continued from preceding page)

Sys. v. Train, 539 F.2d 1006, 1009 (4th Cir. 1976). In Illinois

v. City of Milwaukee, the immediate issue of concern was the need

to apply uniform federal law where the polluting activities of one

state caused harm to another state. The need for uniformity, how-

ever, is no less a concern where individuals are harmed by the

polluting activities of states or their subdivisions. To hold that

plaintiffs may not avail themselves of this remedy is to leave open

the possibility that this pollution will continue unabated and that

the damages suffered by these individuals will be unremedied. Such

result was surely not intended by the unanimous Court in JIlinois

v. City of Milwaukee.

8° United States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3d

Cir. 1974), cert. denied, 420 U.S. 927 (1975); United States v.

Ira S. Bushey & Sons, 346 F. Supp. 145, 149-50 (D. Vt. 1972),

aff'd mem., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S.

976 (1974).

37 City of Evansville v. Ky. Lig. Recycling, Inc., 604 F.2d 1008,

1018-19 (7th Cir. 1979),

38 In Byram River v. Village of Port Chester, 394 F. Supp. 618

(S.D.N.Y. 1975), the court extended the Jilinois v. City of Mil-

waukee remedy to (1) Byram River, (2) a private corporatic >

Byram River Pollution Abatement Association, (3) the Town o

Greenwich, a municipal corporation, and (4) a private individual

owning land on the river’s bank. Jd. at 622 (relying on Jilinois

v. City of Milwaukee and 28 U.S.C. §1331).

(Footnote continued on following page)

27a

Opinion of the Court of Appeals

nois v. City of Milwaukee remedy and the fulfillment of

the Supreme Court’s intent in creating that remedy lead

us to conclude that it is available to these private litigants

who have been injured by the effects of the polluting ac-

tivities of these defendants. While Jllinois v. City of

Milwaukee did not address this specific issue, we are

convinced that the Court would apply the mode of analy-

sis of Lincoln Mills® and would look to the Restatement

formulation as an appropriate source for a federal rule.

These plaintiffs have alleged sufficient individual damage

to permit them to recover damages for this essentially

(Footnote continued from preceding page)

In Stream Pollution Control Poard v. United States Steel Corp.,

512 F.2d 1036 (7th Cir. 1975), the Seventh Circuit held that com-

mon law relief is available to a pollution control board, but denied

the motion of a private individual to intervene on the ground that

the federal common law nuisance suit was not a suit commenced to

enforce compliance with an FWPCAA “standard, limitation or

order.” Jd. at 1039-41, 1040 n.9; see 33 U.S.C. §1365(b) (1) (B)

(governing intervention). The court did not address the avail-

ability of the Jilimois remedy to a private individual, but held that

the remedy extended to the pollution control board because the

“complaint raises substantial questions which only a federal court

may finally answer.” 512 F.2d at 1040. Although the Seventh

Circuit has since questioned the analysis of the FWPCAA permit

system. in Stream Pollution, see United States Steel Corp. v. Train,

356 F.2d 822, 830 n.3 (7th Cir. 1977), that affects only the issue

of whether under the Act, the private individual could intervene.

In Potomac River Association v. Lundeberg Md. Seamanship School,

402 F. Supp. 344 (D. Md. 1975), the court permitted private

plaintiffs to sue for the maritime tort of nuisance without reference

to a federal common law nuisance claim. Jd. at 358-59; see Part V,

infra.

39 Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957).

28a

Opinion of the Court of Appeals

public nuisance, The Restatement (Second) of Torts de-

fines a public nuisance as “an unreasonable interference

with a right common to the general public.” Restatement

(Second) of Torts § 821B (1979). A private party may

recover damages for a public nuisance if, while exercising

the common right, he has suffered damages different in

kind from those suffered by the public. 7d. § 821C. The Re-

statement for formulation encompasses the injury alleged

in this case. In Burges v. M/V Tamano, 370 F. Supp.

247 (D. Me. 1973), the court held that

it would be incongrous to say that a man engaged

in commercial fishing or clamming, and dependent

thereon for his livelihood, who may have had his

business destroyed by the tortious acts of another

should be denied any right to recover for his pecuni-

ary loss on the ground that his injury is no differ-

ent in kind from that sustained by the general pub-

lie.

Id. at 250. Thus, these plaintiffs, who have a right under

federal common law to abate the pollution of interstate

waters, have also suffered sufficient individual harm to

sue for damages arising from that public nuisance. We

therefore hold that the federal common law of nuisance

may be enforced by private plaintiffs and that these plain-

*° Illustration 11, explicitly included within the different in kind

test, is indistinguishable from the facts of this suit. It states:

11. A pollutes public waters, killing all of the fish. B. who

has been operating a commercial fishery in these waters,

suffers pecuniary loss as a result. B can recover for the

public nuisance.

Restatement (Second) of Torts §821C, Illustration 11 (1979).

29a

Opinion of the Court of Appeals

tiffs have sufficiently alleged individual harm to permit

recovery of damages for the public nuisance. Thus we

must reverse the trial court’s dismissal of the plaintiffs’

federal common law nuisance claim.

V. Admiralty Jurisdiction and Maritime Torts

Plaintiffs also listed the federal admiralty law as an

alternate basis for their tort claims. See U.S. Const. art

IIT, §2; 28 U.S.C. §1333 (1976); 46 U.S.C. §740 (1976).

The Supreme Court’s traditional test for the existence of

admiralty jurisdiction is two-fold; first, the traditional ele-

ment of a maritime locality must be established; and

second, a significant relationship to a traditional maritime

activity must be proven. Executive Jet Aviation, Inc. v.

Cleveland, 409 U.S. 249 (1972). The situs test may be

no longer signficant. See P.C. Pfeiffer Co. v. Ford, ——

USS. » 48 US.L.W. 4018, 4019 (U.S. Nov. 27, 1979);

Sea-Land Serv. v. Director, Office of Workers’ Compens.,

040 F.2d 629, 635-39 (3d Cir. 1976). That need not con-

cern us here for both elements are satisfied by the allega-

tions of the complaint. The situs of the algal bloom was

the high seas. The nexus to maritime commerce is plain.

See, e.g., Moore v. Hampton Roads Sanitation Dist.

Conm’n, 557 F.2d 1030, 1034 (4th Cir. 1976) (harvesting

oysters and clams, like fishing, is traditional maritime

activity meeting nexus test of Executive Jet), cert. denied,

434 U.S. 1012 (1978); Union Oil Co. v. Oppen, 501 F.2d

008, 561 (9th Cir. 1974) (fishing industry is part of mari-

time activity); Potomac River Ass’n vy. LTnandeberg Md.

Seamanship School, 402 F. Supp. 344, 358 (D. Md. 1975)

(injury to commercial fishing meets tests of Executive

Jet). 'Thus, this suit by plaintiffs for the tort nuisance

30a

Opinion of the Court of Appeals

committed in the navigable waters and injuring those en-

gaged in maritime commerce falls within the admiralty

jurisdiction of the district court.*!

Having held that the district court had jurisdiction in

admiralty over plaintiffs’ claims, we turn to whether plain-

tiffs have sufficiently alleged a cause of action sounding

in maritime tort. One district court has recognized that

a suit by clammers and fishermen for damages caused

by an oil spill sounded in maritime tort and that recovery

could be had for damages suffered by private plaintiffs

alleging tortious invasions different from those suffered

by the general public. Burgess v. M/V Tamano, 370 F.

Supp. 247, 249-50 (D. Me. 1973). The court held that the

pollution was an interference with plaintiffs’ direct exer-

cise of a public right to fish and dig for claims and thus

caused them damages different in kind from those suffered

by the general public. Jd. at 250.

The district court dismissed this claim on the ground

that plaintiffs’ Complaint was insufficient to allege a cause

of action sounding in maritime tort. To the extent that

plaintiffs have attempted to allege a mariitme tort, it must

be found in Count I of their Complaint. That Count seeks

recovery based on a theory of federal common law nuis-

*! We need not consider plaintiffs’ assertion that the court had

jurisdiction independently under the Extension of Admiralty Act,

46 U.S.C. §740 (1976). That Act was intended to broaden juris-

diction to cases over which jurisdiction would not have existed

under the strict locality test employed prior to Executive Jet. The

Act extends admiralty jurisdiction to injuries caused by a vessel

on navigable waters the effects of which are felt on land.

3la

Opinion of the Court of Appeals

ance, rather than alleging specifically a maritime tort.‘

But the facts which support a Burgess-type admiralty

tort claim are sufficiently alleged, and thus judged by the

standards applicable to motions under Fed. R. Civ. P.

12(b)(6) the Complaint is sufficient. Probably the sub-

stantive legal standards applicable to the maritime nuis-

ance tort and the federal common law nuisance tort recog-

nized in Illinois vy. City of Milwaukee are the same, al-

though on this record we need not fully explore that ques-

tion. Nor need we decide whether the plaintiffs must at

some point elect between admiralty and non-admiralty

remedies. Finally, the district court did not, and thus we

do not reach the question of whether the Limitation of

Liability Act, 46 U.S.C. §§181-195 (1976), would be avail-

able to limit liability of the federal and municipal govern-

ment defendants for damages to the value of the vessels

used to barge the sewage and dredge spoils to the various

dumping sites. We do hold that it was error to dismiss

plaintiffs’ maritime tort claims against all defendants at

the pleading stage.

*° The confusion arises because the nuisance claim also requires

a showing that these private individuals have suffered damages

different in kind from those suffered by the general public. See

Part LV, supra. In Burgess, the court held that the tort of nuisance

could be a maritime tort and analyzed the Complaint under an

admiralty theory. See 370 F. Supp. at 250. The plaintiffs in

Burgess did not raise, and the court did not address, the federal

common law nuisance issue. Thus, the Burgess opinion does not

persuade us that an allegation of the tort of nuisance as to which

recovery is expressly based on the doctrine of federal common

law nuisance may not also be liberally read as sounding in mari-

time tort.

32a

Opinion of the Court of Appeals

VII. Federal Tort Claims Act

The district court held that the cause of action against

federal agencies based on maritime tort was barred by

plaintiffs’ failure to comply with the requirements of the

Federal Tort Claims Act, 28 U.S.C. §§2671-2680 (1976)

(FTCA). The terms of the FTCA define the limits of

the Court’s jurisdiction to hear suits brought pursuant to

the Act. United States v. Sherwood, 312 U.S. 584, 586

(1941) ; Rosario v. American Export Isbrandsten Lines, 531

F.2d 1227, 1231 (3d Cir.), cert. denied, 429 U.S. 857 (1976).

Under the Act, claims must first be presented to the ap-

propriate federal agency and no suit may be filed until

six months thereafter. 28 U.S.C. §2675. Regulations

promulgated pursuant to the Act require that each claim

so presented contain a demand for a sum certain. 28

C.F.R. $14.2 (1978). These requirements were intended to

create a system of prelitigation administrative considera-

tion in order to settle claims and avoid unnecessary liti-

gation.** Plaintiffs failed to observe the six months’ wait-

ing period. The district court held and we agree that

it did not have jurisdiction to entertain the plaintiffs’

*8 See 28 U.S.C. §2675 (six months must elapse following pre-

sentation of claim to federal agency before suit may be filed); 28

C.F.R. §14.2 (1978) (claim must demand sum certain in dam-

ages).

** Bialowas v. United States, 443 F.2d 1047, 1049-50 (3d Cir.

1971) ; see Pennsylvania v. Nat'l Ass’n of Flood Insurers, 520 F.2d

11, 19 (3d Cir. 1975) (sum certain requirement) ; Ryan v. United

States, 457 F. Supp. 400, 402 (W.D. Pa. 1978) (same).

33a

Opinion of the Court of Appeals

claims under the FTCA.“ This precludes a money dam-

age recovery against federal agencies based on state law.

Since we are remanding the federal common law nuisance

claim we leave open the question, not addressed by the

parties to this appea!, whether absent a reference in some

statute waiving sovereign immunity for federal common

law torts, monetary relief against the federal defendants

is unavailable.

VIII. The National Environmental Policy Act (NEPA)

The plaintiffs allege that the Environmental Protection

Agency has violated the Nationa! Environmental Poliey

Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4361 (1976 &

Supp. I), by failing to develop, plan, and coordinate fed-

eral functions, programs, and resources to the end that

the Atlantic Ocean might exist without degradation, and

that those who use the marine environment would be pro-

tected from risk to health or safety or other undesirable

consequences. The district court held that the complaint

failed to state a cause of action under NEPA. The issue

is one of considerable complexity. The preparation of

an environmental impact statement is required for every

“major federal action significantly affecting the quality

of the human environment.” 42 U.S.C. § 4332(2)(C) (1976).

The Administrator of the Environmental Protection

Agency, however, is statutorily exempt from the environ-

*° We express no view as to whether the sum requested by plain-

tiffs was sufficiently certain, sce Fallon v. United States, 405 F.

Supp. 1320, 1322 (D. Mont. 1976), or whether plaintiffs’ claims

against federal agencies and officials for negligent enforcement of

various federal acts would be barred by the FTCA’s exception for

discretionary functions. See 28 U.S.C. §2680(a) (1976).

34a

Opinion of the Court of Appeals

mental impact statement requirement. 33 U.S.C. § 1371

(c)(1) (1976). Whether other substantive provisions of

NEPA would afford relief is not entirely clear.*® Further

complicating the application of NEPA is the fact that

some actions of the Agency are discretionary, 42 U.S.C.

§ 4331, and are reviewable only pursuant to the Admin-

istrative Proceduce Act, 5 U.S.C. § 706 (1976). See En-

vironmental Def. Fund v. Corps of Eng., 470 F.2d 289,

298 n. 14, 298-300 (8th Cir. 1972), cert. denied, 412 U.S.

931 (1973). Because it does not appear at this stage of

the case that a cause of action based upon NEPA would

afford to the plaintiffs and the class they seek to repre-

sent any relief different from or more extensive than the

relief which would be available under the claims we have

already discussed, we decline at this time to pass upon

the merit of the rather complex issues posed by NEPA.

The district court will be free to reconsider the NEPA

contentions in the light of the record developed on remand.

IX. State Tort Claims Acts

Moreover, to the extent that plaintiffs also failed to

comply with the requirements of the New Jersey*? and

*° Courts differ, for example, on the question of whether sec-

tion 101 of NEPA, setting forth Congress’ declaration of pur-

pose, would afford such relief. Compare Calvert Cliffs’ Coord.

Comm. v. AEC, 449 F.2d 1109, 114 (D.C. Cir. 1971) (§101 of

NEPA is substantive) with Shifflin v. Schlesinger, 548 F.2d 96,

100-01 (3d Cir. 1977) (§101 lacks independent substantive im-

pact).

*7 New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to*12-2 (1972).

The statute provides that public entities may only be sued if a claim

is presented within 90 days after the cause of action accrues and

no court suit may be instituted prior to six months thereafter. Jd.

59:8-8. The trial judge has discretion under the statute to ex-

pand the filing time from 90 days to one year if no substantive

prejudice results. Jd. 59:8-9,

35a

Opinion of the Court of Appeals

New York** tort claims acts, the dismissal of their claims

under those acts must be affirmed. We do so, however,

without prejudice to present compliance with the require-

ments of those statutes and suit thereunder in the future.*®

X. Constitutional Claims

Plaintiffs also alleged violation of their fifth, ninth, and

fourteenth amendment rights. They argued that there is

a constitutional right to a pollution-free environment and

that, by virtue of their special relationship to the envir-

onment, they can enforce this right. The district court

rejected the constitutional argument and we affirm that

holding. It is established in this circuit and elsewhere

that there is no constitutional right to a pollution-free

environment. See, ¢.g., Township of Long Beach vy. City

of New York, 445 F. Supp. 1203, 1212-13 (D.N.J. 1978)

(citing cases rejecting constitui.onal analysis). We hold

that the district court properly rejected the plaintiff's

constitutional claims.

#8 N.Y. General Municipal Law (McKinney) §50-e (1977). The

statute provides that notice of a claim must be filed within 90 days

after the cause of action accrues, id., that suit may not be filed

until 30 days have elapsed after the filing of the notice, id. §50-i(1),

and that no suit may be brought more than one year and 90 days

after the accrual of the cause of action. Jd. §50-i(1)(c). <A suit

within the admiralty jurisdiction, however, is not subject to the

requirements of the New York Tort Claims Act. Rogers v. City

of New York, 259 N.Y.S.2d 604, 608-09 (N.Y. Sup. Ct. 1965).

49 Pjaintiffs’ failure to comply with the requirements of the state

tort claims statutes, however, only bars suit under those statutes.

It does not preclude suit if an alternative basis for suit against

the defendants is pleaded. The state tort claims acts may not pre-

empt federal statutory or common law causes of action.

36a

Opinion of the Court of Appeals

XI. Other Contentions

Defendants Passaic Valley Sewerage Commission

(PVSC), Linden Roselle Sewerage Authority, and Middle-

sex County Sewerage Authority as separate grounds for

affirmance plead that suits against them must be dis-

missed on eleventh amendment-grounds. We reject that

contention. These defendants are municipal corporations

as to whom sovereign immunity under the eleventh amend-

ment does not apply. See N.J.S.A. 40:14B-4 (1957);

N.J.S.A. 58:14-2 (1957).

XII. Conclusion

The judgment dismissing the Complaint will be reversed

to the extent that it dismissed plaintiffs’ claims under the

Federal Water Pollution Control Act, the Marine Pro-

tection, Research and Sanctuaries Act, their common law

nuisance claims and their maritime tort claims. The dis-

trict court’s dismissal of the Refuse Act claim, the Fed-

eral Tort Claims Act and the state tort claims act claims,

and the constitutional claims will be affirmed. The dis-

trict court’s dismissal of the National Environmental Pol-

icy Act claim will be vacated and that claim remanded

for consideration of the record developed on remand. The

case will be remanded to the district court for further

proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

37a

Judgment of the Court of Appeals

(Filed—February 5, 1980)

Unrvrep States Court or APPEALS

For tHe Turirp Crrcurr

No. 79-1360

- =

<_p-

NATIONAL SEA CLAMMERS ASSOCIATION and

GOSTA LOVGREN,

Appellants,

CITY OF NEW YORK, HONORABLE ABRAHAM

BEAME, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, RUSSELL E. TRAIN,

individually and as ADMINISTRATOR OF THE

UNITED STATES ENVIRONMENTAL PROTEC-

TION AGENCY, UNITED STATES ARMY CORPS

OF ENGINEERS, MARTIN R. HOFFMANN, indi-

vidually and as SECRETARY OF THE UNITED

STATES DEPARTMENT OF THE ARMY, NEW

YORK DEPARTMENT OF ENVIRONMENTAL

CONSERVATION, OGDEN R. REID, individually

and as COMMISSIONER OF THE NEW VORK

DEPARTMENT OF ENVIRONMENTAL CONSER-

VATION, NEW JERSEY DEPARTMENT OF

—

38a

Judgment of the Court of Appeals

ENVIRONMENTAL PROTECTION, DAVID J.

BARDIN, individually and as COMMISSIONER OF

NEW JERSEY DEPARTMENT OF ENVIRON-

MENTAL PROTECTION, BERGEN COUNTY

SEWER AUTHORITY, THE JOINT MEETING OF

ESSEX AND UNION COUNTIES, PASSAIC VAL-

LEY SEWERAGE COMMISSIONERS, MIDDLE-

SEX COUNTY SEWERAGE AUTHORITY, THE

LINDEN ROSELLE SEWERAGE AUTHORITY,

MIDDLETOWN SEWERAGE AUTHORITY, WEST

LONG BEACH SEWER DISTRICT, COUNTY OF

WESTCHESTER, DEPT. OF ENVIRONMENTAL

FAC., CITY OF LONG BEACH AND CITY OF

GLEN COVE.

(D.C. Civil No. 77-0126)

»™

On APPEAL FROM THE Unirep States District Court

FOR THE Disrricr or New JERSEY

Present: Gipspons and Hiccinsoruam, Circuit Judges and

Werner, District Judge*

J UDGMENT

This cause came on to be heard on the record from the

United States District Court for the District of New Jer-

sey and was argued by counsel on October 16, 1979.

On consideration whereof, it is now here ordered and

* Honorable Charles R. Weiner, United States District Judge

for the Eastern District of Pennsylvania, sitting by designation.

39a

Judgment of the Court of Appeals

adjudged by this Court that the judgment of the said Dis-

trict Court filed January 9, 1979, be, and the same is

hereby affirmed as to that portion of the said judgment

dismissing the Refuse Act claim, the Federal Tort claims

Act and state tort claims act claims, and the constitu-

tional claims; that part of the judgment dismissing the

complaint is reversed to the extent that it dismissed plain-

tiffs’ claims under the Federal Water Pollution Control

Act, the Marine Protection, Research and Sanctuaries Act,

their common law nuisance claims and their maritime tort

claims; that portion of the judgment dismissing the Na-

tional Environmental Policy Act claim is vacated and that

claim is remanded for consideration of the record devel-

oped on remand. It is further ordered that the cause is

hereby remanded to the district court for further pro-

ceedings, consistent with the opinion of this Court.

ATTEST:

Tuomas F. Quinn

Clerk

February 5, 1980

Certified as a true copy and issued in lieu

of a formal mandate on March 21, 1980.

Test: M. (Illegible)

Chief Deputy Clerk,

United States Court of Appeals

for the Third Cireuit

40a

Opinion of the District Court

(Filed—August 14; 4978) 78)

Unrrgp- Status District Court

_-— Disrricr or New Jzrsry

ae Crvm Action No. 77-126

—_-

NationaL SEA CLamMeErs Association, ete., et al.,

Plaintiffs,

Vv.

Crry or New York, etce., et al.,

Defendants.

Meanor, District Judge.

This matter comes before the court on motions by 14

defendants to dismiss the complaint for lack of jurisdic-

tion and/or failure to state a claim upon which relief may

be granted. Because the parties rely on material outside

the pleadings, these motions will be treated as ones for

summary judgment.

Plaintiffs are the National Sea Clammers Association

(NSCA), an incorporated association with its principal

place of business in Absecon, New Jersey, and Gosta Lov-

gren, a member of NSCA and a New Jersey resident. They

have brought this class action on behalf of those who

4la

Opinion of the District Court

harvest the waters and sea beds of the Atlantic Ocean

for a living against 16 governmental agency and individ-

ual defendants. Said defendants are municipal, county or

federal governmental bodies, and employees thereof,

charged with responsibility for sewage disposal and dredg-

ing operations on or abcut the New York-New Jersey sea-

coast. They may be classified as New York, New Jersey

or federal. The New York defendants are: City of New

York; Abraham Beame, Mayor of the City of New York;!

West Long Branch Sewer District ;? County of Westches-

ter;* City of Long Beach and City of Glen Cove. The

New Jersey defendants are: Bergen County Sewer Au-

thority; The Joint Meeting of Essex and Union Counties;

Passaic Valley Sewerage Commissioners; Middlesex

County Sewerage Authority; Linden-Roselle Sewerage

Authority; and Middletown Sewerage Authority. The fed-

eral defendants are the United States Environmental Pro-

tection Agency (USEPA); Russell E. Train, individually

and as Administrator of USEPA: the United States Army

Corps of Engineers (USACE); and Martin R. Hoffman,

individually and as Secretary of the United States De-

partment of the Army.

Plaintiffs allege that the defendants, by commission or

omission, have caused or permitted the pollution of the

1 Since the filing of this complaint, Edward Koch has replaced

Mr. Beame as Mayor of New York City.

2 The West Long Beach Sewer District has never been served

with summons and complaint in this action.

3 The County of Westchester was apparently served with sum-

mons and complaint on January 26, 1977, but it has yet to file

‘an answer.

42a

Opinion of the District Court

Atlantic Ocean by sewage and other wastes and debris,

which pollution has directly or indirectly resulted in dam-

age to the marine environment and destruction of ocean

life and the clamming industry. The only damage pre-

cisely described in terms of location and date is the alle-

gation that defendants’ polluting activities resulted in a

massive growth of algae covering the Atlantic Ocean from

a few to 20 miles offshore over an area from southwest

Long Island, New York to due east of Cape May, New

Jersey. This algal bloom is alleged to have occurred in

the summer of 1976.

Plaintiffs predicate their 11 count complaint‘ on a

myriad of federal and state grounds: The Federal Water

Pollution Control Act Amendments of 1972 (FWPCAA),

33 U.S.C. § 1251 et seg. (Supp. 1977); The Marine Pro-

tection, Research, and Sanctuaries Act of 1972 (Ocean

Dumping Act or MPRSA), 33 U.S.C. § 1401 et seg. (Supp.

W¥7); The National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. § 4321 et seq. (1977); Section 13 of

the Rivers and Harbors Act of 1899 (Refuse Act), 33

U.S.C. § 407 (1970); article VI, clause 2 of the Constitu-

tion of the United States and the fifth, ninth and four-

teenth amendments; the Civil Rights Act, 42 U.S.C. § 1983

(1974); the Extension of Admiralty and Maritime Juris-

* As originally filed, the complaint contained 13 counts against

20 defendants. On April 26, 1977, the complaint was dismissed

as to four New York and New Jersey state defendants: The New

York Department of Environmental Cpnservation (NYDEC);

Ogden R. Reid, individually and as Commissioner of NYDEC:

the New Jersey Department of Environmental Protection (NJ

DEP) ; and David J. Bardin, individuatiy and as Commissioner of

NJDEP. At that time, counts V and VI, which pertain only to

the dismissed defendants, were dismissed.

43a

Opinion of the District Court

dictional Act, 46 U.S.C. § 740 (1975); the Federal Tort

Claims Act, 28 U.S.C. § 1346(b) (1976) and 28 U.S.C.

§ 2671 et seg. (1965); The Administrative Procedure Act

(APA), 5 U.S.C. § 701 et seq. (1977); federal common

law nuisance; New York Environmental Conservation

Law, N.Y.Environ.Consery. § 1-0101 et seg. (McKinney

1973); New Jersey Conservation and Development Law,

N.J.S.A. 13:10-1 et seg. (1968); and state common law

trespass and nuisance. Plaintiff allege jurisdiction under

28 U.S.C. $§ 1331 (1966), 1333 (1966); 1343 (1976); 1346

(b) (1976), 1837 (1976) and 1361 (1976).° Plainitffs seek

$250 million in compensatory damages, $250 million in

punitive damages, fines, an injunction and other relief.

The instant action was filed on January 14, 1977. With

the exception of the federal defendants and West Long

Beach Sewer District, service was effected on the defend-

ants between January 25, 1977 and February 1, 1977. While

the summons and complaint were served on USACE, Hoff-

man, USEPA and Train on January 27, 1977, service

against the four federal defendants was not perfected

pursuant to F.R.Civ.P. 4(d)(4) (Supp. 1977) until Decem-

ber 2, 1977 with the service of the Attorney General of

the United States and the U.S. Attorney for the District

* Plaintiffs have also attempted to predicate jurisdiction on two

clearly inapprepriate bases, to wit, 28 U.S.C. § 1332 (diversity )

and the APA, 5 U.S.C. § 701 et seq. Because plaintiffs and sev-

eral defendants are residents of New Jersey, plaintiffs have failed

to show the complete diversity required for jurisdiction under 28

U.S.C. § 1332. Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267

(1806); Quaker State Dyeing & Finishing Co. v. Cally, 528 F.2d

470, 473 (3d Cir. 1975). The APA does not provide an independ-

ent jurisdictional base for a suit challenging governmental action.

Califano v. Sanders, 430 U.S. 99 (1977).

toa

Opinion of the District Court

of New Jersey. West Long Beach Sewer District was

never served. A number of the defendants have filed

crossclaims against the other defendants alleging that the

crossclaimants have complied with applicable federal and

state permits and, therefore, any liability on their part

is attributable to the conduct of others.

Some of the defendants received, in addition to the

complaint, special notice of plaintiffs’ claims. Said notice

was in the form of a letter* from Edward German, on

° The letter was essentially a form letter with appropriate modi-

fications for each addressee. The following is the text of the letter

sent to the City of New York:

PLEASE TAKE NOTICE, that I, Edward C. German, on be-

half of the National Sea Clammers’ Association and the class

of claimants representing clamdiggers, lobstermen, and fisher-

men, hereby claim damages in excess of the sum of $250

n,llion, against the City of New York, for injuries and dam-

ages to, and the destruction of the property specified in the

statement below, and unless such claim is adjusted and paid

within the time specified by law, I shall commence an action

against said City of New York, to enjoin the complained

of conduct, to require the City to take corrective action and

to recover damages in excess of $250 millicn and please take

further notice

THAT said property has been damaged day by day since

approximately on or before September of 1976 in the At-

lantic Ocean in an area ranging from approximately the

southwest portion of Long Island, New York, to a point

approximately due east of Cape May, New Jersey, and ex-

tending from a few miles off shore to more than twenty

(20) miles out to sea and further

THAT said damage has been inflicted upon claimants’ clam

beds, lobster beds, and fishing grounds when such clam beds,

Footnote continued on following pa e)

9 pag

45a

Opinion of the District Court

behalf of NSCA, claiming damages caused by pollution

to marine environment and life of the Atlantic in an

amount “in excess of 250 million dollars.” The letter

stated further that the property damaged, the value thereof

and the cost of repair “cannot be specifically itemized

and estimated at this time.” This letter was served on

the City of New York on November 29, 1976, on Train,

Hoffman and USACE on January 3, 1977, and on the

cities of Glen Cove and Long Beach on March 25, 1977.

The record contains conflicting sworn statements as to

whether plaintiffs served the Middlesex, County Sewerage

Authority with letter notice. Plaintiffs claim to have made

service on March 25, 1977, but Middlesex denies receipt.

In addition, on or about March 22, 1977 USEPA was

served with a formal claim filed pursuant to the Federal

Tort Claims Act, 28 U.S.C. § 2671 et seg. The amount

of the claim was stated to be “in excess of $250,000,000.”

The rest of the defendants received no notice of the

plaintiffs’ claims other than the complaint itself.

With the exception of West Long Beach Sewer Dis-

trict and the County of Westchester, all the defendants

(Footnote continued from preceding page)

lobster beds, and fishing grounds were destroyed by and

through the sewage systems owned, operated, and controlled

by the City of New York, by which sludge and sewage efflu-

ent was dumped directly by ship into the ocean and by which

sewage effluent was carried into the ocean by outfall pipes

maintained by the City of New York and further

THAT a statement in detail of the property damaged and/or

destroyed and the value thereof, as well as the specific cost

of repair to claimants’ damage property cannot be specific-

ally itemized and estimated at this time.

46a

Opinion of the District Court

have joined in the instant motions for summary judg-

ment on the complaint. Because of the number and vari-

ety of the movants and the number of issues raised, I

shall consider the contentions of the parties essentially

on a count-by-count basis.

Discussion

Count I charges that the New York and New Jersey

defendants have released sewage effluent and dumped

dredgings and toxie materials into the Atlantic with the

approval and direction of the federal defendants. These

polluting activities are claimed to have fed an algal bloom

in the Atlantic during the summer of 1976, destroyed

marine life, caused the collapse of the fishing industry

and created noxious sights and smells. The creation of

this harm and nuisance is specifically alleged to raise a

federal question. Thus, Count I sounds in federal com-

mon law nuisance.

The defendants assert that private parties, such as the

plaintiffs, have no standing to raise a Gaim in federal

common law auisance. The authorities support defend.

ants’ position. In Illinois v. M ilwaukee, 496 U.S. 91 (1972),

the Supreme Court held that the States could sue on a

theory of federal common law nuisance to abate the pollu-

tion of interstate waters. The Court cited Georgia v.

Tennessee Copper Co., 206 US. 230 (1907), which spoke

of the necessity of allowing to states an avenue for judi-

cial resolution of interstate disputes because when the

states joined the Union, they gave up their right to forei-

bly abate nuisances created in other states. Tilinois y,

47a,

Opinion of the District Court

Milwaukee, supra, at 104. The opinion quoted further

language from the same case to the effect that the Court

found it reasonable to enforce a sovereign’s demand to

be protected from pollution from an extra-state source,

notwitnstanding the Court’s hesitancy to hear a suit be-

tween private parties predicated on a federal common law

theory. Jd. at 104-05. Lower courts have refused to extend

a right of action in federal nuisance to private parties.

Parsell y. Shell Oil Co., 421 F.Supp. 1275 (D. Conn. 1976) ;

Committee for the Consideration of the Jones Falls Sewer-

age System v. Train, 375 F.Supp. 1148 (D. Md. 1974),

afd on different but not inconsistent grounds, 539 F.2d

1006 (4th Cir. 1976). Plaintiffs have cited no eases to

the contrary. It appears that plaintiffs have no stand-

ing to raise their federal common law nuisance claim, and

Count I must ke dismissed.

Count II charges the New York and New Jersey de-

fendants and USACE with dumping into the Atlantie and

the Hudson River refuse other.than that flowing from the

streets and sewers in a liquid state in violation of section

13 of the Rivers and Harbors Act of 1899. (Refuse Act),

33 U.S.C. § 407. The defendants take the position that

there is no private action under the Refuse Act. Plain-

tiffs argue that the purpose of the Refuse Act woald be

advanced by a “private attorney general” action and that

such actions have been permitted at least against federal

defendants.

The enforcement of the Refuse Act is specifically dele-

gated to the United States, 33 U.S.C. § 413, and it has

generally been held that there is no implied private right

48a

Opinion of the District Court

of action thereunder. See, e.g., Connecticut Action Now,

Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972);

Loveladies Property Owners Association vy. Raab (Love-

ladies), 430 F.Supp. 276, 281 (D.N.J. 1975), aff’d mem.,

O47 F.2d 1162 (3d Cir. 1976); Township of Long Beach v.

City of New York (Township of Long Beach), 445

F.Supp. 1203, 1211 & cases cited therein (D.N.J. 1978).

However, some courts have found a private right of action

under the Refuse Act against federal defendants, Natural

Resources Defense Council v. Grant, 355 F.Supp. 280 (E.D.

N.C. 1973); People of State of Illinois ex rel. Scott v.

Hoffman, 425 F.Supp. 71 (S.D. Ill. 1977), on the theory

that where the violator is federal, the U.S. Attorney is

in no position to enforce the act because he is also charged

with the responsibility of defending the violator. Natural

Resources Defense Council v. Grant, supra, at 290.

The rule in this circuit appears to be that there is no

private right of action under the Refuse Act regardless

of the identity of the defendant. I deduce this from the

fact that in Loveladies, supra, the Third Circuit affirmed

the dismissal of a private cause of action under the act

brought against federal and other defendants. Accord,

Township of Long Beach, supra, at 1212; Base Angler

Sportsman Society v. United States Steel Corp., 324 F.

Supp. 412, 416 (D. Ala.), aff'd per curiam sub nom., Bass

Anglers Sportsman Society v. Koppers Co., 447 F.2d 1304

(Sth Cir. 1971). Cf., Red Star Towing and Transportation

Co. v. Department of Transportation of State of New Jer-

sey, 423 F.2d 104, 106 (3d Cir. 1970). Thus, plaintiffs’

claims in Count II must fall.

49a

Opinion of the District Court

Ill

In Counts III, IV, VI!) and IX, the various defend-

ants are cha rged with violations of IWPCAA and/or

MPRSA. Count III alleges that the federal defendants

have violated MPRSA. Count IV charges USEPA and

Train with violations of FWPCAA. Cove! VIII alleges

that the New York and New Jersey defe» sats have vio-

lated FWPCAA, MPRSA, New York Environmental Con-

servation Law, New Jersey Conservation and Development

Law and permits issued by USEPA, USACE or NYDEC.

Count IX charges the federal defendants with negligently

carrying out their discretionary functions under FWPC

AA, MPRSA and NEPA and further alleges that USACE

conducted its dredging activities negligently.

Private actions to enforee FWPCAA and MPRSA are

authorized by citizens’ suit provisions in each act, 33 U.S.C.

§1365(a), (b) and (c) * and 33 U.S.C. § 1415(g)8 respec-

733 U.S.C. § 1365 provides:

(a) Except as provided in subsection (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

chapter or (B) an order issued by the Administrator or

a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged

a failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the

Administrator.

(Footnote continued on following page)

50a

Opinion of the District Court

(Footnote continued from preceding page)

The district courts shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the parties,

to enforce such an_ effluent standard or limitation, or such

an order, or to order the Administrator to perform such

act or duty, as the case may be, and to apply any appro-

priate civil penalties under section 1319(d) of this title.

(b) No action may be commenced—

(1) under subsection (a) (1) of this section—

(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

compliance with the standard, limitation, or order, but

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

citizen 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 0. 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 1316 and 1317(a) of this

title. Notice under this subsection shall be given in such

manner as the Administrator shall prescribe by regulatin.

source of an effluent standard or limitation or an order re-

specting such standard or limitation may be brought under

this section only in the judicial district in which such source

is 1ocated.

(Footnote continued on following page)

5la

Opinion of the District Court

(Footnote continued from preceding page)

(2) In such action under this section, the Administrator,

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

* * x

833 U.S.C. § 1415(g) provides:

(g)(1) Except as provided in paragraph (2) of this

subsection any person may commence a civil suit on his own

behalf to enjoin any person, including the United States

and any other governmental instrumentality or agency (to

the extent permitted by the eleventh amendment to the Con-

stitution), who is alleged to be in violation of any prohibi-

tion, criterion, or permit established or issued by or under

this subchapter. The district courts shall have jurisdiction,

without regard to the amount in controversy or the citizen-

ship of the parties, to enforce such prohibition, limitation,

criterion, or permit, as the case may be.

(2) No action may be commenced—

(A) prior to sixty days after notice of the violation

has been given to the Administrator or to the Secretary,

and to any alleged violator of the prohibition, limitation,

criterion, or permit; or

(B) if the Attorney General has commenced and is

diligently prosecuting a civil action in a court of the

United States to require compliance with the prohibition,

limitation, criterion, or permit; or

pose a penalty pursuant to subsection (a) of this sec-

tion, or if the Administrator, or the Secretary, has ini-

tiated permit revocation or suspension proceedings under

subsection (f) of this section; or

(D) if the United States has commenced and is dili-

gently prosecuting a criminal action in a court

52a

Opinion of the District Court

tively. The two citizens’ suit provisions are substantially

the same. Each contains a notice clause providing that

no actions may be commenced under the citizens’ suit

provision except upon giving notice to the alleged viola-

tor of the act in compliance with the terms of the act

and regulations thereunder.

All the defendants argue that plaintiffs have failed to

give the requisite notice that therefore this court has no

jurisdiction over plaintiffs’ WFPCAA and MPRSA claims.

Plaintiffs retort that service of the complaint constitutes

substantial compliance with the notice provision. Further,

they argue that the court has alternative jurisdiction over

these citizens’ claims under 28 U.S.C. § 1331, and that in

a § 1331 citizens’ suit the notice provisions of 33 U.S.C.

§§ 1365 and 1415 do not apply. Because the questions of

the sufficiency of notice and the availability of alternative

jurisdiction without the requirement of notice are thres-

hold issues common to Counts III, IV, VIII and ee

shall treat those counts together. I shall first consider the

FWPCAA claims, then the MPRSA claims, and finally any

remaining issues in each of the four counts.

Under FWPCAA, citizens’ actions may be brought

against anyone who fails to comply »with an effluent stand-

ard, limitation or order issued under the act, 33 U.S.C.

§ 1365(a)(1), or against the USEPA Administrator for

“failure to perform a non-discretionary duty mandated by

the act, 33 U.S.C. § 1365(a)(2). No citizens’ action may

be commenced without prior notice to the alleged act vio.

lator in accordance with USEPA regulations, and, except

in circumstances not here relevant, notice must be given

at least 60 days before the commencement of the action.

33 U.S.C. § 1365(b). Notice to the alleged violator in a

§ 1365(a)(1) suit must specify the standard, limitation or

53a

Opinion of the District Court

order allegedly violated. 40 C.F.R. § 135.3 (1977). Notice

to the USEPA Administrator in a § 1365(a)(2) suit must

specify the statutory provision claimed to have been trans-

gressed. Id. Plaintiffs have failed to give notice to any

defendant which satisfies FWPCAA requirements. To the

extent notice was given at all, it was untimely and failed

to specify any standard, limitation, order or statuory sec-

tion purportedly violated. Since strict compliance with the

notice provisions of 33 U.S.C. $ 1365 is required, Love-

ladies, supra, this court does not have jurisdiction of any

FWPCAA claims under 33 U.S.C. § 1365.

Plaintiffs take the position that 28 U.S.C. § 1331 pro-

vides an alternative basis for jurisdiction. They base their

argument on the savings clause of FWPCAA, 33 U.S.C.

§ 1865(e), which provides:

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 enforce-

ment of any effluent standard or limitation or to

seek any other relief (including relief against the

Administrator or a State agency).

They urge that the only interpretation of FWPCAA which

gives proper effect to the savings clause is on that finds

an implied right of action for private parties to enforce

FWPCAA unfettered by the notice requirements of § 1365

(b) which right may be exercised by grounding jurisdic

tion on the “arising under” jurisdictional statute.

There is a split among the circuits on the issue whether

the virtually identical citizens’ suit provisions of FWP

CAA, MPRSA and the Clean Air Act, as amended, 42

U.S.C. § 1857 et seg. (1969), 42 U.S.C. § 1857h-2 (Supp.

1977), are the exclusive jurisdictional base for private

d4a

Opinion of the District Court

actions to enforce said environmental legislation. The

D.C. and Second Circuits have held that the FWPCAA

provision is not exclusive, and jurisdiction may be predi-

cated alternatively on 28 U.S.C. § 1331 without compliance

with the citizens’ suit notice requirement. Natural Re-

sources Defense Council, Inc. v. Train (NRDC v. Train),

010 F.2d 692 (D.C. Cir. 1974), as modified, (D.C. Cir.

1975); Natural Resources Defense Council, Inc. v. Calla-

way, 524 F.2d 79 (2d Cir. 1975). The Seventh Circuit has

held squarely to the contrary with regard to the citizens’

suit provisions of the Clean Air Act. Ctiy of Highland

Park v. Train, (Highland Park), 519 F.2d 681 (7th Cir.

1975). Another court in this district has followed the lead

of the D.C. and Second Circuits on this issue in a FWP

CAA and MPRSA context. Township of Long Beach,

supra (Fisher, J.).

In Highland Park, supra, Judge Tone, writing for the

court, noted that

[t]he legislative history of section 304 [42 U.S.C.

§ 1857h-2 (citizens’ suit provision)] shows Con-

gress’s determination that citizen participation in

the enforcement of standards and regulations under

the Clean Air Act of 1970 ke established. It also

shows, however, that Congress intended to provide

for citizens’ suits in a manner that would be least

likely to clog already burdened Federal Courts and

most likely to trigger governmental action which

would alleviate any need to for judicial relief. It

was in response to these concerns that the statutory

notice provisions were included in section 304.

Congress’s intention would be frustrated if the statu-

tory mandate of section 304(b) were ignored.

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Opinion of the District Court

Id. at 690-91. Later, in discussing NRDC v. Train, supra,

which is cited without analysis as persuasively precedent

in Natural R

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