Petition — JOINT MEETING OF ESSEX & UNION COUNTIES v. NATIONAL SEA CLAMMERS ASSOCIATION (Nos. 79-1754, 79-1711)

ee

—P Court, U.& te

MAY 5 1980

IN THE

a | ICHAEL R

Supreme Court of the United eR CLERR

Ocroser Trem, 1979 “a

79-1754

THE JOINT MEETING OF ESSEX AND UNION COUNTIES,

Petitioner,

0.

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, individualiy 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-

CHESTER, DEPT. OF ENVIRONMENTAL FAC. and CITY OF LONG BEACH

AND CITY OF GLEN COVE,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

GEORGE J. MINISH,

Counsel for Petitioner, The Joint Meeting of

Essex and Union Counties,

P.O. Box 236, 614 Eagle Rock Avenue,

West Orange, New Jersey 07052.

(201) 736-9622

MINISH anv WILLIAMS,

Attorneys.

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

TABLE OF CONTENTS

Opinions BeLow

JURISDICTION

QuEsTIONS PRESENTED FOR REVIEW

CoNSTITUTIONAL AND StTatuToRY Provisions INVOLVED

STATEMENT OF THE CASE m

Reasons Fork GRANTING THE WRIT:

I—Certiorari should be granted to resolve conflicts

in principal among lower Courts

A. The holding of the Court of Appeals that

plaintiffs’ failure to comply with the notice

to sue provisions of the FWPCAA and the

MPRSA did not create an absolute bar to

plaintiffs’ suit to enforce the provisions of

the Acts conflicts with other Cireuit and Dis-

trict Court opinons thereby requiring review

by this Court

B. The holding of the Court of Appeals that a

private citizen had standing to maintain an

action based upon a federal common law of

nuisance theory under 28 U.S.C. Section 1331

for alleged damages sustained as a result of

ocean pollution conflicts with opinions of the

federal courts thereby rendering review by

this Court highly desirable ..........

12

il TABLE OF CONTENTS

PAGE

Ii—Certiorari should be granted where a Court of

Appeals has decided an important state issue in

conflict with applicable State Law 15

A. The holding of the Court of Appeals that the

plaintiffs’ failure to serve a New Jersey State

Sewerage Agency with timely notice of claim

pursuant to the New Jersey Tort Claims Act

does not immunize said State Sewerage

Agency from being sued in Federal Court

under an alternative federal, statutory or

common law basis is contra to the doctrine

of sovereign immunity addressed by said

State law, thereby calling for review by this

Court 15

CoNCLUSION , 19

Cases Cited

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

Cir. 1975) é 9-11

Committee for the Consideration of the Jones Falls

Sewerage System v. Train, 375 F. Supp. 1148

(D. Md. 1974), aff’d on other grounds, 539 F. 2d

1006 (4th Cir. 1976) ... 18-15

Tilinois v. City of Milwaukee, 406 U.S. 91 (1972) ....6, 12-14

Loveladies Property Owners Ass’n v. Raab, 430 F.

Supp. 276 (D.N.J. 1975), aff’d mem, 457 F. 2d 1162

(3d Cir. 1976), cert. den. 482 U.S. 906 (1977) ........ 8

McGowan v. Borough of Eatontown, 151 N.J. Super.

440 (App. Div. 1977) wre

Natural Resources Defense Council, Inc. v. Calloway,

524 F. 2d 79 (2d Cir. 1975) 9

ede

United States Constitution Cited

BOI BI Soins cctrket vnc iirddlcenin

TABLE OF CONTENTS ili

PAGE

Natural Resources Defense Council, Inc. v. Train,

510 F, 2d 692 (D. C. Cir. 1974) , 9

Parsell v. Shell Oil Company, 421 F. Supp. 1275

(D. Conn. 1976), aff’d without opinion sub nom.

East End Yacht Club, Inc. v. Shell Oil Company,

573 F. 2d 1289 (2d Cir. 1977) — 14

Pinckney v. City of Jersey City, 140 N.J. Super.

96 (Law Div. 1976) 18

Polyard v. Terry, 160 N.J. Super. 497 (App. Div.

1978) 17

Rao v. Port of New York Auth., 122 F. Supp. 595

(E.D.N.Y. 1954) aff’d 222 F, 2d 362 (2d Cir. 1955) 18

Richie v. Cahall, 386 F. Supp. 1207 (D.N.J. 1974) 18

Township of Long Beach v. City of New York, 445

F. Supp. 1203 (D.N.J. 1978) 9

United States v. Ira S. Bushey & Sons, Inc., 346 F.

Supp. 145 (D. Vt. 1972), 363 F. Supp. 110 (D. Vt.

1973), aff'd 487 F. 2d 1393 (2d Cir. 1973), cert.

den., 417 U.S. 976, 94 S. Ct. 3182, 41 L. Ed. 2d 1146

(1976) mn 13

United States v. Stoeco Homes, Inc., 489 F. 2d 597

(3d Cir, 1974), cert. den. 420 U.S. 927, 95 S. Ct.

1124, 43 L. Ed. 2d 397 (1975) ...... P 13

United States v. United States Steel Corp., 356 F.

Supp. 556 (N.D. Dl. 1973) - 13

iv ‘TABLE OF CONTENTS

PAGE

Statutes Cited

N.J.S.A. 40:63-68 4

N.J.S.A. 59:1-1 (New Jersey Tort Claims Act) ...... 3, 4, 6,

15-19

N.J.S.A. 59 :1-2 16

N.J.S.A. 59 :1-4 16

N.J.S.A. 59:8-8 i * 17

N.J.S.A. 59 :8-9 P 17

28 U.S.C. (Judicial Code) :

See. 1254(1) “ 2

See. 1291 2,5

Sec. 1331 ascctensunsny 45 O 12

Sec. 1331(a) 5, 12

Sec. 1333 5

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

amended) :

See. 1251 acashcin 3-5

Sec. 1356(e) .

Sec. 13865(a) (1) 7

See. 1365(b) 3,8

See. 1365(e) 3,8

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

aries Act):

See. 1401 3.5

Sec. 1415(g) 3,8

TABLE OF CONTENTS v

PAGE

42 US.C.:

See. 1983 4)

42 U.S.C. (Clean Air Act):

10

Sec. 7604

IN THE

Supreme Court of the Wnited States

Ocrosrer TERM, 1979

No.

a>.

——

THE JOINT MEETING OF ESSEX AND

UNION COUNTIES,

Petitioner,

Vv.

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 ENVIRONMENTAL CON-

SERVATION, OGDEN R. REID, individually and as

COMMISSIONER OF THE NEW YORK DEPART-

MENT OF ENVIRONMENTAL CONSERVATION,

NEW JERSEY DEPARTMENT OF ENVIRONMEN-

TAL PROTECTION, DAVID J. BARDIN, individually

and as COMMISSIONER OF NEW JERSEY DEPART-

MENT OF ENVIRONMENTAL PROTECTION, WEST

LONG BEACH SEWER DISTRICT, COUNTY OF

WESTCHESTER, DEPT. OF ENVIRONMENTAL

FAC. and CITY OF LONG BEACH AND CITY OF

GLEN COVE,

Respondents.

2

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

To The Honorable, the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States.

The Joint Meeting of Essex and Union Counties, the

petitioner herein, prays that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Third Circuit entered in this

matter on February 5, 1980.

Opinions Below

The February 5, 1980 opinion and judgment of the

United States Court of Appeals for the Third Cireuit

is unreported and is reprinted in the Appendix* hereto,

infra pp. la, et seq. and 37a et seq. respectively. The prior

opinion and judgment of the United States District Court

for the District of New Jersey, unreported is also re-

printed in the Appendix, hereto, infra pp. 49a et seq.

and 68a et seq. respectively.

Jurisdiction

The jurisdiction of the Court of Appeals was _ pur-

suant to 28 U.S.C. Section 1291. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. Section

1254(1).

* Appendix references are to Appendix accompanying the T’etition

for a Writ of Certiorari Re: Middlesex County Sewerage Authority,

et al. v. Natural Sea Clammers Associction, et al. filed in this Court

on April 29, 1980, No. 79-1711.

Questions Presented for Review

1. Whether plaintiffs are precluded from instituting

a civil action pursuant to the Federal Water Pollution

Control] Act as amended (FWPCAA), 33 U.S.C. Sec-

tion 1251 et seqg., and the Marine Protection Research

and Sanctuaries Act (MPRSA), 33 U.S.C. Section 1401

et seq., in light of their failure to give the statutory

sixty (60) day notice of intention to sue provided in

the said Acts, 33 U.S.C. Sections 1365(b) and 1415(g).

2. Whether the citizens’ suit provisions of the FWP

CAA, 33 U.S.C. Section 1365(e) and the MPRSA, 33

U.S.C. Section 1415(g) provide an alternate basis for

suit by a private citizen in conjunction with 28 U.S.C.

Section 1331, the general federal question jurisdiction

of the Judicial Code, for the alleged injuries sustained

from ocean pollution based upon federal common law

nuisance against a state government agency engaged in

sewage disposal.

3. Whether a private citizen has standing to maintain

a federal common law nuisance action for alleged dam-

ages sustained resulting from ocean pollution as a gen-

eral federal question under 28 U.S.C. Section 1331.

4. Whether plaintiffs’ failure to serve a New Jersey

state sewerage agency with timely notice of claim as re-

quired by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1

et seq., precludes them from instituting a suit in federal

court under an alternative federal statutory or common

law basis.

4

Constitutional and Statutory Provisions Involved

The Constitutional and Statutory provisions involved

in this ease are as follows: The Eleventh Amendment to

the Constitution of the United States; the Federal Water

Pollution Control Act as amended, 33 U.S.C. Section 1251

et seq.; The Marine Protection Research and Sanctuaries

Act, 33 U.S.C. Section 1401 et seg.; The general federal

question jurisdiction of the Judicial Code, 28 U.S.C. See-

tion 1331 and the New Jersey Tort Claims Act, N.J.S.A.

59:1-1 et seq. The pertinent text of the constitutional

and statutory authorities is set forth in the Appendix,

hereto, infra pp. 71a, e¢ seq.

Statement of the Case

On January 14, 1977, plaintiffs, National Sea Clammers

Association and Gosta Lovgren, on their own behalf and

on behalf of a class of others allegedly similarly situated,

commenced the instant action against the Joint Meeting

of Essex and Union Counties (Joint Meeting), an assem-

bly of the members of the various municipalities com-

prising the counties of Essex and Union formed pursuant

to N.J.S.A. 40:63-68, and other defendants. Altogether,

there were twenty-one (21) entities named as defendants,

which included various Federal, State and local officials

and governmental departments that are charged with en-

vironmental protection and which are responsible for

sewerage treatment and disposal.

Essentially, plaintiffs alleged in their complaint that

the discharge of effluent and the dumping of sludge re-

sulting from sewerage treatment by the municipal defend-

ants had caused damage to the clam, oyster and lobster

beds in the Atlantic Ocean. The plaintiffs’ complaint al-

9)

leged that the Federal and State defendants have also

caused damage to said beds by failing to carry out a

series of statutory and constitutional duties designed to

maintain pollution within certain respectable limits. Plain-

tiffs additionally alleged that, since they are members

of the class and purport to represent a class comprised

of commercial fisherman engaged in the harvest of clams,

oysters, lobsters and fish in the Atlantic Ocean, they have

the requisite standing to bring such an action.

The jurisdictional grounds alleged by the plaintiffs

which have survived the Appellate review of the dismissal

of the complaint by the District Court are the Federal

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

tion 1251, et seq. (FWPCAA), the Marine Protection Re-

search and Sanctuaries Act of 1972, as amended, (MPR

SA), 33 U.S.C. Section 1401 et seqg., 28 U.S.C. Section

1331(a), 28 U.S.C. Section 1333 and 42 U.S.C. Section

1983. Jurisdiction over the appeal of the District Court

judgment to the Court of Appeals was pursuant to 28

U.S.C. Section 1291.

The allegations made by the plaintiffs in their com-

plaint against the petitioner, Joint Meeting, and which

have survived the Appellate review are essentially that

the Joint Meeting created and maintained a federal public

nuisance resulting from the discharge of effluent and the

dumping of sludge into New York Harbor and the At-

lantic Ocean and that the Joint Meeting operated outside

the scope of permits issued by various governmental au-

thorities in direct violation of the FWPCAA and MPRSA,

thereby allowing the plaintiffs to commence a citizens’

suit,

With respect to the aforesaid tort claims asserted

against them, the petitioner and the other defendants

moved to dismiss the plaintiffs’ claims for lack of subject

6

matter jurisdiction in light of the fact that plaintiffs’

failed to provide a notice of their claims to the defendants

as required by the FWPCAA, MPRSA and the New Jer-

sey Tort Claims Act. The defendants also urged that the

plaintiffs, as private citizens, lacked the requisite stand-

ing to institute that part of the instant action based upon

the federal common law of nuisance. The disposition of

the issues presented on defendants’ motions to dismiss by

the Courts below was as follows.

With respect to the plaintiffs’ failure to comply with

the notice requirements of the FWPCAA, MPRSA and

the New Jersey Tort Claims Act, the District Court held

that such failure deprived it of jurisdiction to entertain

the plaintiffs’ claims thereunder. The Court of Appeals,

while agreeing that strict adherence to the Acts’ notice

provisions was required, still held that the District Court

erred in holding that failure to comply with said notice

provisions created an absolute bar to plaintiffs’ suit to

enforce the provisions of the Acts. Relying upon the

“savings clauses” contained in the citizens’ suit pro-

visions of the Acts, the Court of Appeals reversed the

decision of the District Court holding that the absence of

notice was not fatal because the “savings clause” pre-

served any existing right of action under statute or com-

mon law.

Regarding plaintiffs’ contention that they could main-

tain the instant litigation independent of any right pur-

suant to the savings clauses of the FWPCAA and MPRSA

under the theory of federal common law nuisance, the

District Court held, relying primarily on Illinois v. City

of Milwaukee, 406 U.S. 91 (1972), that this avenue of

relief was not available to private citizens. The Court

of Appeals reversed the decision of the District Court

holding that the common law nuisance remedy was avail-

able in Federal Court suits by private parties.

7

Defendants’ contention that the plaintiffs’ failure to

comply with the notice requirements of the New Jersey

Tort Claims Act was also upheld by the District Court.

The Court of Appeals affirmed the determination of the

District Court but in doing so added that plaintiffs’ fail-

ure to comply with the requirements of the State Tort

Claims Statutes did not preclude them from bringing

suit if an alternative basis for suit against the defendants

was pleaded based upon its determination that State Tort

Claims Acts may not pre-empt federal statutory or com-

mon law causes of action.

REASONS FOR GRANTING THE WRIT

I

Certiorari should be granted to resolve conflicts in

principal among lower Courts.

A. The holding of the Court of Appeals that plaintiffs’

failure to comply with the notice to sue provisions

of the FWPCAA and the MPRSA did not create an

absolute bar to plaintiffs’ suit to enforce the provisions

.of the Acts conflicts with other Circuit and District

Court opinions thereby requiring review by this Court.

Under pertinently applicable provisions of the

FWPCAA, private citizens may commence a civil action

on their own behalf against anyone who fails to comply

with an effluent standard, limitation or order issued under

the Act. 33 U.S.C. Section 1365(a) (1). However, a private

citizen is precluded from the institution of such an an-

thorized civil action, unless notice specifying the standard,

limitation or order allegedly violated has been given at

least sixty (60) days prior to the commencement of the

action to the Administrator, the State in which the al-

8

leged violation occurs and to any alleged violator of the

standard, limitation or order. 33 U.S.C. Section 1365(b).

Substantially similar citizens’ suit provisions and notice

requirements are contained in the MPRSA. 33 U.S.C. Sec-

tion 1415(g).

in its opinion below, the District Court concluded that

the plaintiffs had failed to give notice to any defendant

which satisfied the FWPCAA or MPRSA requirements.

Any notice which may have been given, however, was

untimely and failed to specify any standard, limitation,

order or statutory section which were alleged to be vio-

lated. The District Court held that, pursuant to the deci-

sion in Loveladies Property Owners Ass’n v. Raab, 430

F. Supp. 276 (D.N.J. 1975), aff'd mem. 457 F. 2d 1162

(3d Cir. 1976), cert. den. 482 U.S. 906 (1977), strict com-

pliance with the notice provisions of the FWPCAA and

MPRSA was required and, therefore, the Court did not

have jurisdiction over any claims brought pursuant to the

citizens’ suit provisions of these Acts. The Court of

Appeals agreed that it should not depart from these hold-

ings.

The District Court went on in its opinion to examine

the position of the plaintiffs that 28 U.S.C. Section 1331

provides an alternative basis for jurisdiction by virtue of

the savings clauses of the FWPCAA and MPRSA, 33

U.S.C. Section 1865(e) and 33 U.S.C. Section 1415(g),

respectively. Using 33 U.S.C. Section 1356(e) as a model,

the savings clauses of these Acts essentially 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).

9

Plaintiffs contend that the savings clauses of these Acts

implies a right of action for private citizens to enforce

these Acts without the necessity of complying with the

notice requirements contained therein.

In its opinion, the District Court noted that the Circuits

have differing opinions as to whether the citizens’ suit

provisions of the FWPCAA and MPRSA provide an ex-

clusive jurisdictional basis for private actions to enforce

the provisions of said Acts. The D.C, and Second Circuits

have held that the citizens’ suit provisions are not exclu-

sive, thereby allowing jurisdiction to be predicated alter-

natively on 28 U.S.C. Section 1331 without the necessity

of complying with the notice requirements attendant to

the citizens’ suit provisions. Natural Resources Defense

Council, Inc. v. Train, 510 F. 2d 692 (D. C. Cir. 1974),

Natural Resources Defense Council, Inc. v. Calloway, 524

F, 2d 79 (2d Cir. 1975). In City of Highland Park v.

Tram, 519 F. 2d 681 (7th Cir. 1975), the Seventh Cireuit

held that the citizens’ suit provisions of the Clean Air Act,

which parallel those of the FWPCAA and MPRSA, pro-

vided the sole jurisdictional basis for private actions to

enforce the environmental legislation. The District Court

also noted that a District of New Jersey case had fol-

lowed the lead of the D.C. and Second Circuits on this

issue. Township of Long Beach v. City of New York, 445

F. Supp. 1203 (D.N.J. 1978). Relying upon the Seventh

Circuit’s analysis and holding in Highland Park, supra,

the District Court concluded that the savings clause of the

citizens’ suit provisions in the FWPCAA and MPRSA

may allow an alternative basis for jurisdiction pursuant

to 28 U.S.C. Section 1331 but not to the extent that any

causes of action based thereon would not have to comply

with the notice requirements of the citizens’ suit provi-

sions.

10

In its opinion, the Court of Appeals agreed with the

parties and the District Court that there is a difference

of opinion among the various Federal Courts on the issue

of whether the “savings clauses” of the FWPCAA and

MPRSA establish a separate and distinct jurisdictional

basis for actions authorized pursuant to the citizens’ suit

provisions of those Acts. However, contrary to the opinion

of the District Court, the Court of Appeals considered the

holdings in the D.C. and Second Circuit to be more per-

suasively reasoned than that of the Seventh Circuit and,

therefore, held that such a separate and distinct jurisdic-

tional basis in fact existed.

It is interesting to note that while the Court of Ap-

peals based is conclusion upon “more persuasively rea-

soned cases”, it does not indicate why the reasoning of

those D.C. and Second Circuit cases justify and susbtan-

tiate its conclusion. Based upon the agreement of the

Court of Appeals that the citizens’ suit provisions of the

FWPCAA were modeled after the citizens’ suit provision

of the Clean Air Act, 42 U.S.C. Section 7604, (App. pp.

4a, nl), it would seem more logical that the Court of Ap-

peals would follow the reasoning in Highland Park, supra,

which specifically dealt with the relationship of the savings

clause and citizens’ suit provisions in the Clean Air Act.

Relying upon the legislative history of the Clean Air Act,

the Court in Highland Park, supra, pertinently noted that

the legislative history:

“Shows Congress’s determination that citizen parti-

cipation in the enforcement of standards and regu-

lations under the Clean Air Act of 1970 be estab-

lished. It also shows, however, that Congress in-

tended to provide for citizens’ suits in a manner

that would be least likely to clog already burdened

federal courts and most likely to trigger govern-

11

mental 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 frus-

trated if the statutory mandate of Section 304(d)

were ignored.” 519 F. 2d at 690-691.

The Court ultimately concluded that the savings clause of

the Clean Air Act

expressing the general intention of Congress not to

disturb existing rights to seek relief does not have

the affirmative effect of removing conditions which

existing law imposes upon the exercise of those

rights. 519 F. 2d at 693.

It is respectfully submitted that the rationale applied in

Highland Park, supra, is extremely applicable to the simi-

lar provisions of the FWPCAA and MPRSA and is much

more persuasively reasoned than those cases relied upon by

the Court of Appeals.

Notwithstanding the contention herein that the Court

of Appeals erroneously concluded that plaintiffs’ failure

to comply with the notice to sue provisions of the FWP

CAA and the MPRSA did not create an absolute bar to

the institution of suit to enforee the provisions of the

Acts, the evident public policy implications of such a deci-

sion and the recognized conflicting opinions among the

Courts of Appeals on this issue provides a more than suf-

ficient basis for this Court to grant the writ of certiorari

requested herein.

12

B. The holding of the Court of Appeals that a private

citizen has standing to maintain an action based upon

a federal common law of nuisance theory under 28

U.S.C. Section 1331 for alleged damages sustained as a

result of ocean pollution conflicts with opinions of the

federal courts thereby rendering review by this Court

highly desirable.

In complete reliance on the holding of the Supreme

Court in Illinois v. City of Milwaukee, 406 U.S. 91 (1972),

the District Court emphatically and unhesitatingly held

that private parties do not have a right to institute an

action in federal common law of nuisance for water pol-

lution, thereby depriving the instant plaintiffs of stand-

ing to raise their federal common law of nuisance claim

against the petitioner. Contrary to the holding in the Dis-

trict Court and in conflict with the decisions of other

Courts of Appeais and federal courts as well, the Third

Cireuit held that a cause of action in federal common law

of nuisance for water pollution did extend to private par-

ties. |

The principle issue before the Court in Illinois v. City

of Milwaukee, supra, was “whether pollution of interstate

or navigable waters creates an action arising under the

‘laws’ of the United States within the meaning of Section

1331(a).” 406 U.S. 91 at 99. In holding that such an

action does arise pursuant to Section 1331(a), thereby

affording the State of Illinois a remedy for pollution of

its waters emanating from beyond its borders, the Court

pertinently stated:

As the field of federal common law has been given

necessary expansion into matters of federal con-

cern and relationship (where no applicable federal

statute exists, as there does not here), the eco-

logical rights of a State in the improper impairment

of them from sources outside the State’s own ter-

13

ritory, 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.

The holding above did not allow for such a cause of

action brought by plaintiffs other than a state.

Several cases subsequent to Illinois v. Milwaukee, supra,

have extended the federal common law of nuisance action

beyond actions brought by state plaintiffs to include those

brought by the United States. See, e.g., United States v.

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

363 F. Supp. 110 (D. Vt. 1973), aff'd 487 F. 2d 1393 (2d

Cir. 1973), cert. den., 417 U.S. 976, 94 S. Ct. 3182, 41 L.

Ed. 2d 1146 (1976); United States v. Umted States Steel

Corp., 356 F. Supp. 556 (N.D. Ill. 1973); United States v.

Stoeco Homes, Inc., 489 F. 2d 597 (8d Cir. 1974), cert.

den. 420 U.S. 927, 95 S. Ct. 1124, 43 L. Ed. 2d 397 (1975).

However, in the case of Committee for the Consideration

of the Jones Falls Sewerage System v. Train, 375 F. Supp.

1148 (D. Md. 1974), aff’d on other grounds consistent with

that of the District Court on the instant issue, 539 F. 2d

1006 (4th Cir. 1976), the Court concluded that an in-

dividual citizen could not bring an action based upon the

theory of federal common law of nuisance. The District

Court clearly indicated that a cause of action in Federal

common law of nuisance was found to exist in JIlinois vy.

Milwaukee, swpra, because of the “character of the plain-

tiffs as governmental units.” 375 F. Supp. at 1153. Solidi-

fying the holding of the District Court, the Court of Ap-

peals for the Fourth Circuit pertinently noted:

Perhaps with the exception of actions by the United

States to abate public nuisances created in navi-

gable waters by polluters, (citations omitted) but

14

consistent with Section 1251(b) [FWPCAA] the

doctrine of Illinois v. Milwaukee has not been ex-

tended beyond the abatement of public nuisance in

interstate controversies where the complainant is

a state and the defenders are creating extra ter-

ritorial harm. 539 F. 2d at 1009.

Similar support for precluding private citizens from in-

stituting causes of action based upon the federal common

law of nuisance is evident in Parsell v. Shell Oil Company,

421 F. Supp. 1275 (D. Conn. 1976), aff’d, without opinion

sub nom. East End Yacht Club, Inc. v. Shell Oil Company,

573 F. 2d 1289 (2d Cir. 1977).

In its holding that the instant private plaintiffs were

not precluded from instituting a cause of action based

upon federal common law of nuisance, the Court of Ap-

peals relied heavily upon footnote 6 in Illinois v. Mil-

waukee, 406 U.S. at 105, which stated in pertinent part:

Thus it is not only the character of the parties that

requires us to apply federal law ... [WJhere there

is an overriding federal interest in the need for a

uniform rule of decision or where the controversy

touches basic interest of federalism, we have

fashioned federal common law.

In essence, the Court of Appeals opined that the language

of said footnote would allow a non-sovereign to institute

a federal common law of nuisance action if the substan-

tive federal question to be considered requires federal

uniformity. The contra holding in Committee for the Con-

sideration of the Jones Falls Sewerage System v. Train,

supra, regarding the same footnote, “that there were other

federal interests which in addition to the character of the

parties required the application of federal law although

those other interests in themselves would not have been

15

sufficient”, 375 F. Supp. at 1154 n. 12, is the more persua-

sive analysis of the intent of the Jdlinois Court.

It is respectfully submitted that the foregoing analysis

not only serves as a more persuasive basis that the in-

stant plaintiffs lack standing to institute a cause of action

based upon federal common law of nuisance, but also

points out a glaring conflict of opinion among the Federal

Courts regarding this question which should be scrutinized

and settled by this Court.

II

Certiorari should be granted where a Court of Appeals

has decided an important state issue in conflict with

applicable State Law.

A. The holding of the Court of Appeals that the plaintiffs’

failure to serve a New Jersey State Sewerage Agency

with timely notice of claim pursuant to the New Jersey

Tort Claims Act does not immunize said State Sewerage

Agency from being sued in Federal Court under an

alternative federal, statutory or common law basis is

contra to the doctrine of sovereign immunity addressed

by said State law, thereby calling for review by this

Court.

Plaintiffs’ failure to give notice to the petitioner re-

garding its intent to sue pursuant to the dictates of the

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

resulted in the conclusion of the District Court that the

plaintiffs are forever barred from bringing their tort

claims against the petitioner. The Court of Appeals af-

firmed the decision of the District Court but only to the

extent that plaintiffs’ failure to comply with the notice

requirements of the Act only precluded them from bring-

ing suit pursuant to the Act. The Court of Appeals

16

concluded that the New Jersey Tort Claims Act “may

not pre-empt federal, statutory or common law causes

of action”. It is conceded that this conclusion of the

Court of Appeals is correct only to the extent that it

applies to actions seeking injunctive relief which are not

protected by the New Jersey Tort Claims Act, as actions

for damages are. See N.J.S.A. 59:1-4.

In order to provide for the compensation of injuries

negligently caused by public entities, the Legislature en-

acted the New Jersey Tort Claims Act, N.J.S.A. 59:1-1

et seq. The basic policy expression of the Tort Claims

Act is contained in N.J.S.A. 59:1-2 which provides in full

as follows:

The Legislature recognizes the inherently unfair and

inequitable results which occur in the strict appli-

cation of the traditional doctrine of sovereign im-

munity. On the other hand, the Legislature recog-

nizes that while a private entrepreneur may readily

be held liable for negligence within the chosen am-

bit of his activity, the area within which govern-

ment has the power to act for the publie good is

almost without limit and therefore government

should not have the duty to do everything that

might be done. Consequently, it is hereby declared

to be the public policy of this State that public

entities shall only be liable for their negligence with-

in the limitations of this Act and in accordance

with the fair and uniform principles established

herein. All of the provisions of this Act should

be construed with a view to carry out the above

legislative declaration.

Pursuant to the inherent policy provisions of the New

Jersey Tort Claims Act, “recovery against a public entity

17

may be had, but only within the strict authority and polli-

cies guiding its interpretation. Polyard v. Terry, 160

N.J. Super. 497, 506 (App. Div., 1978) and cases cited

therein. Thus, there can be “no liability except as pro-

vided by the Act”. McGowan y. Borough of Eatontown,

151 N.J. Super. 440, 446 (App. Div. 1977) and cases

cited therein.

Through the New Jersey Tort Claims Act, the Legis-

lature re-established the concept of sovereign immunity

but granted a waiver of that immunity pursuant to the

circumstances and conditions set forth in the Tort Claims

Act In establishing these conditions, the Legislature re-

quired that in order for an action to be brought against

a public entity under the Act, notice of a claim must

be given to the public entity by the claimant within ninety

(90) days of the accrual of the cause of action. N.J.S.A.

59:8-8. In addition thereto, the Legislature provided a

discretionary right on the part of the Superior Court

to permit the filing of a late notice of claim any time

within one (1) year after the accrual of a cause of ac-

tion for good cause shown, provided that the public entity

has not been substantially prejudiced thereby. N.J.S.A.

59:8-9. However, if a notice of claim still has not been

filed within the discretionary one (1) year period, then

“the claimant shall be forever barred from recovering

against the public entity.” N.J.S.A. 59:8-8.

There can be no dispute that plaintiffs’ claim for dam-

ages pursuant to theories of maritime tort, federal com-

mon law of nuisance or other federal claims arising under

the FWPCAA or MPRSA are substantively equivalent

and all represent claims for damages as a result of al-

leged tortious conduct. There is also no dispute that no

notice of claim was provided to the petitioner at any time

whatsoever by the plaintiff and no timely application for

18

leave to file a late claim was made at any time either

within one (1) year after the cause of action accrued or

thereafter. For these reasons, then, the District Court con-

cluded that the plaintiffs were forever barred from bring-

ing their tort claims against the petitioner. The District

Court’s decision was not limited to actions arising under

the New Jersey Tort Claims Act, but encompassed all

plaintiff’s claims based upon the alleged tortious conduct

of the petitioner. This conclusion is consistent with Richie

v. Cahall, 386 F. Supp. 1207 (D.N.J. 1974), wherein the

Court held that pursuant to 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 previously noted, the Legislature in the Tort Claims

Act re-established sovereign immunity but then granted

conditioned waivers thereto. “It is a firmly established

rule in American jurisprudence that acts in derogation of

sovereign immmunity are to be strictly construed and that

provisions which are conditions which the sovereign at-

taches to the waiver of immunity are jurisdictional”.

Pinckney v. City of Jersey City, 140 N.J. Super. 96, 100

(Law Div. 1976). The Court in Pimckney, concluded that

it was without jurisdiction to entertain a claim against the

City of Jersey City where a claim was not filed within

ninety (90) days of the accident and leave to file late

notice was not sought until more than one (1) year after

the accident. As a basis for its conclusion, the Court

therein relied on a federal court case, Rao v. Port of New

York Auth., 122 F. Supp. 595 (E.D.N.Y. 1954) aff’d 222

F. 2d 362 (2d Cir. 1955), wherein the Court granted a

motion to dismiss by the Port Authority due to plaintiff’s

failure to comply with the statutory conditions under

which the Port Authority consented that it may be sued.

In light of the foregoing analysis, then, it is respect-

fully submitted that the conditions for the filing of suit

19

prescribed by the New Jersey Tort Claims Act apply to

any and all types of alleged tortious conduct on the part

of the public entity, regardless of whether those claims

arise under State or federal statutory or common law.

Compliance with the preconditions for suit under the New

Jersey Tort Claims Act are jurisdictional and failure to

comply therewith forever bars suit against the public en-

tity. It is difficult to conceive how the Court of Appeals

can preclude a cause of action for failure to comply with

the notice provisions of the New Jersey Tort Claims Act

on the one hand but allow suit against the same public en-

tity under federal, statutory and common law theories for

the same tortious acts of the public entity on the other

hand. It is for this reason that this Court is respectfully

requested to issue its writ to review and settle this con-

flict of analysis of State Law and sovereign immunity.

CONCLUSION

Wherefore, petitioner respectfully prays that a writ

of certiorari be granted.

Respectfully submitted,

Gerorce J. Mrnisu,

Counsel for Petitioner, The Joint

Meeting of Essex and Union

Counties.