Petition — City of New York v. National Sea Clammers Association (No. 79-1760)

Supreme Court, v.

FILED

MAY 5 1980

IN THE SUPREME COURT OF THE UNIT MACHR RS pax, IR., CLERR

October Term, 1979 ;

no. @9-1760

CITY OF NEW YORK, HONORABLE ABRAHAM BEAME,

Petitioners,

-V.=

NATIONAL SEA CLAMMERS ASSOCIATION and

GOSTA LOVGREN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

ALLEN G. SCHWARTZ

Corporation Counsel

of the City of New York

Attorney for Petitioners

100 Church Street

New York, N.Y. 10007

(212) 566-2091

L. KEVIN SHERIDAN,

STEPHEN P. KRAMER,

of Counsel.

INDEX

Page

Opinions DAO. bss Bb w6's BRAD ee ee l

rae

DUS TOGSCESOMs 6:6 b's 6 ck 6 E Oh ee hee eee

Other DOES IOS . oo odes 6c keen deseo

Questions Presented... ccccccvccsecs

un > WD W

Statement of the CGO «0 oie wb ae be oe OKs

Reasons for Granting the Writ

1. NEITHER THE FEDERAL COMMON

LAW NOR THE MARITIME LAW

ENCOMPASSES CLAIMS BY

FISHERMEN THAT REGULATED

POLLUTION OF INTERSTATE

OR NAVIGABLE WATERWAYS

CONSTITUTES A NUISANCE

OR IS DIMINISHING THE

PROFITS OF THEIR FISHING

BUSINESS... cccccccccccccccccccccces 14

2. NEITHER THE FEDERAL WATER

POLLUTION CONTROL ACT, NOR

THE MARINE PROTECTION,

RESEARCH AND SANCTUARIES

ACT, AUTHORIZES RIGHTS OR

REMEDIES OTHER THAN THOSE

EXPRESSLY PROVIDED FOR IN

EACH ACT... cccccrccccccccccccccccces 24

COMERUSLOR s 6 i066 decks ote eke been 30

CITATIONS

Page

Cases:

Arizona v. California, 373 U.S.

546 a 4) Beep ping pee SF eens 21-22

Byram River v. Village of Port

Chester, 394 F. Supp. 618

(S.D.N.Y. BEER i és Coad Phbee ks 644 CaweS 19

Cannon v. University of Chicago,

BOL OcBs 677... CLG TST iavad Gabticueuaen 29

CETA Workers Organizing Committee

v. Koch, F. 2d , Docket

_No. 79-7649, (2nd Cir. March 5,

gp ADE Soecedcvecseedseeedbecesecsdeatiaves 28

City of Evansville, Indiana v.

LS gels Sete Soap:

o cr. eeeevee 19,23,25

Committee for Consideration of

Jones Falls Sewage system v.

Train, - Supp. (D. Md.

1974), aff'd 539 F. 2d 1006 (4th

CARs BEPOdivccdeaes ah svedviceecadcent ea aevaeene

24

Connecticut Action Now, Inc. v.

Roberts Plating co., 457 F. 2d

BI (2nd Cir. 1 e*eeeee#e7#seoe#eee#e#eee#ee#ee#e?e#e?#* 16

Ellison v. Rayonnier, Inc., 156

F. Supp. 214 ts. MOSH s El eicsintins Oe

ii

CITATIONS cont'd.

Page

georgia v. Tennesee Copper Co.,

230 CRP Baio asks ok kb boas 17-18

Guthrie v. Alabama ByProducts Co.,

328 F. Supp. 1140 (ND. Ala. I97I)... 16

Illinois v. City of Milwaukee,

406 U.s. 91 PE Pe ty ge ee oe 8-10,

12,17,20

Illinois v. City of Milwaukee,

559 F. 2d 151, cert. granted ya

U.S. , 48 U.S.L.W. 3902 (March

SE SAR) 0h chek inc d6G RAR RES EA Senden:

Natural Resources Defense Council

_v. Calloway, 524 F. 2d 79 (2d Cir.

Sis aCe Oho S KO 6 ie ah 8s cas 26

Natural Resources Defense Council

v. Train, 166 U.S. ApDp..D.C. 313,

510 F. 2d 692 Lp. 3 SARE a ee 26

Parsell v. Shell Oil Co., 421 F.

Supp. 1275 (D. Conn. 1976),

aff'd sub nom East End Yacht

Club Inc. v. Shell Oil Co.,

S73 F. 24: 1289 (and Cir ,* 2977). ove. 19

Potomac River Ass'n v. Lundeberg

Maryland Steamship School Inc.,

4 F. re | 44 (D. Md. UE os chek sn 20

Red Star Towing & Transportation

Co. v. Department of Transpor-

tation, 153 F. 20g 104 (3raq Cir,

IV PRE eC KC REA RC Re here e kak eabe saws 16

iii

CITATIONS cont'd.

Page

Touche-Ross & Co. v. Redington,

442 U.s. 560 CEU TOR GN GE is 5 eae Wine 06660: 4 26

Township of Long Beach v. Cit

of New York, 445 F. Supp. 1305

(Ds Beas 5 RES RES A RRS RT aaa ae 19

Transamerica Mortgage Advisors v.

Lewis, U.S. oP ss re. ee

242 PEs ka kw eels Ciba dk eee dees 26-28

United States v. Pennsylvania

Industrial Chemical Corp., 41l

U.S: 655 rips) REPS eyes owe eee 9,16

“United States v. Republic Steel

Corp., 362 Cams 4 e*eeeeeee#ee#e#e¢ 16

Willamette Iron roryie CO. ¥.

Hatch, 12 eWe eeereeeeeeeeee 8,14-

16

iv

Page

Statutes and Other Authorities:

33 U.S.C. §407

(Rivers and Harbors Act of 1889)....... 15-16

33 U.S.C. (Federal Water Pollution

Control Act, as amended):

Sec.

L225 Le wccccccccccccccccecs 5,7

1311-1316... cece cccceeee 10,11

1319. ccc rccccvcccccccces 12

L342. cc ccrcccccccccccess 11

L365. ce cececcccccccccccse 1,24,

27

33 U.S.C. (Marine Protection,

_Research and Sanctuaries Act

of 1972, as amended):

Sec.

L401. cc cccccccccccccccce 5,7

L4ll io cccccccccccccccccee 10,13

BEL. cess ecpesabdesawens 13

L414. ccc ccccccvccccccces 13

L415. cccccccccccccccccce 8,13,

24,27

L4LJ cw cccccccccccccccces 13

42 U.S.C. §§1857a et Seg.

(Clean Air Amendments of 1970)......... 26

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1979

CITY OF NEW YORK, HONORABLE ABRAHAM BEAME,

Petitioners,

- V.=

NATIONAL SEA CLAMMERS ASSOCIATION and

GOSTA LOVGREN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals

dated February 4, 1980 is not reported,

and is reproduced at page la of the Appendix

to the petition filed in Middlesex County

Sewerage Authority, et al., v. National

Sea Clammers Ass'n, Case No. 79-1711, filed

in this Court on April 29, 1980 (hereafter

vy

the “Middlesex Appendix").* The opinion of

the Court of Appeals was accompanied by an

unpublished Judgment dated February 5,

1979, which is reproduced in the Middlesex

Appendix at 37a. The opinion of the District

Court dated August 14, 1978, is not offi-

cially reported and is reproduced in the

Middlesex Appendix at 40a. A copy of the

District Court order which accompanied

_ the opinion is reproduced in the Middlesex

Appendix at 68a. The relevant provisions

of the Federal Water Pollution Control Act,

33 U.S.C. §1251 et seg. and the Marine

Protection, Research and Sanctuaries Act,

33 U.S.C. §1401 et seg. are reproduced in

the Middlesex Appendix at 73a.

*Petitioners herein will rely on the

Middlesex Appendix and will not file

a separate appendix.

2

JURISDICTION

The judgment of the Court of Appeals

was entered on February 5, 1980. This pe-

tition for certiorari has been filed within

90 days of that judgment. This Court's

jurisdiction is invoked under the provi-

sions of 28 U.S.C. §1254(1) and Rule 22(3)

of the Supreme Court Rules.

OTHER PARTIES

The other parties named as appellees

in the court below were the 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. Hoffman, individually

and as Secretary of the United States

Department of the Army; Bergen County Sewer

Authority; The Joint Meeting of Essex and

Union Counties; Passaic Valley Sewerage

Commissioners; Middlesex County Sewerage

Authority; The Linden Roselle Sewerage

Authority; Middletown Sewerage Authority;

the City of Glen Cove; and the City of Long

Beach. Others named as parties in the

District Court were the New York Department

of Environmental Conservation; Ogden R. Reid,

individually and as Commissioner of the New

~ York Department of Environmental Conserva-

tion; New Jersey Department of Environmental

Protection; David J. Bardin, individually

and as Commissioner of New Jersey Department

of Environmental Protection; County of West-

chester Department of Environmental Facili-

ties; and the West Long Beach Sewer District.

QUESTIONS PRESENTED

1. Under the federal common law of

nuisance or maritime tort law, may fisher-

men maintain an action for damages or

equitable relief?

2. Does either the Federal Water

Pollution Control Act, 33 U.S.C. 1251 et

seqg., or the Marine Protection, Research

and Sanctuaries Act, 33 U.S.C. §1401 et seq.,

authorize an implied right of action other

than that expressly provided for in each act?

STATEMENT OF THE CASE

Respondent National Sea Clammers

Association is an association whose members

make their living harvesting fish and shell-

fish from the water and ocean beds of the

Atlantic Ocean near New York and New Jersey.

Respondent Lovgren is an individual similarly

employed. Petitioners City of New York and

Beame,* and the other parties in the District

*Edward 1. Koch replaced Abraham Beame as

Mayor of the City of New York on January l,

1978.

Court, are various federal, state and local

officials and governmental departments that

are charged with environmental procection

Or that are responsible for sewage treatment

and disposal.

Plaintiffs allege that defendants dis-

charged or permitted the discharge of cer-

tain nutrient-rich sewage and toxic wastes

into the Atlantic Ocean or its tributaries.

They further allege that in 1976 these dis-

charges caused death and other adverse

effects on marine life, and, as a result,

they had business losses.

The complaint was dismissed by the

District Court, with prejudice, on all

Claims except for two said to arise under

State law which were dismissed without

prejudice. The Court of Appeals reversed

dismissal of those claims based upon the

Federal Water Pollution Control Act, 33

6

U.S.C. §§1251-1376 (hereafter the “FWPCA")

the Marine Protection, Research and Sanctu-

aries Act 33 U.S.C. §§1401-1444 (hereafter

the “MPRSA"), the federal common law of

nuisance, and the maritime tort law.

The Court of Appeals held that although

these plaintiffs could not avail themselves

of the express remedies provided for in the

statutes, as they had not complied with the

Statutory preconditions for institution of

a lawsuit, the complaint offered numerous

avenues for relief. The Court of Appeals

held that plaintiffs alleging “special

damages" to their means of livelihood could

seek enforcement of the water pollution

control statutes, and damages, under an

“implied" cause of action theory. The Court

found private rights to be implied in the

statute and that these implied rights had

been saved under 33 U.S.C. §1365(e) of the

7

FWPCA and 33 U.S.C. §1415(g)(5) of the

MPRSA. These two sections provide that the

express statutory remedies shall not re-

strict the availability of other statutory

Or common law rights and remedies a person

may have. The Court of Appeals also found

remedies for these plaintiffs in the federal

common law of nuisance, and the maritime

tort law.

None of the remedies authorized has

precedent in decisions of this Court; indeed

they contradict what had been unquestioned

law for almost a century. In Willamette

Iron Bridge Co. v. Hatch, 125 U.S. 1°(1888),

this Court held that private parties had no

cause of action under federal common or mari-

time law for property damage arising out of

nuisances in navigable waters. Illinois v.

City of Milwaukee, 406 U.S. 91 (1972), upon

which the Court of Appeals relied, did not

8

overrule Willamette - indeed Willamette has

been extensively discussed by this Court

subsequent to the decision in Illinois v.

Milwaukee with no indication that it has

lost its validity. See United States v.

Pennsylvania Industrial Chemical Corp.,

411 U.S. 655, 663 (1973). Illinois v.

Milwaukee stands only for the proposition

that states, alleging infringement of their

sovereign interests by interstate polluters,

" may invoke the power of the federal district

courts to seek relief. But there is no pre-

cedent in this Court to support a private

party's claim for lost profits on the ground

that federally regulated pollution violates

federally protected property interests.

Moreover, the status of the type of

common law cause of action authorized in

Illinois v. Milwaukee is in considerable

doubt. This Court has recently granted

9

certiorari to determine whether the FWPCA --

which differs markedly from the predecessor

statute construed in Illinois v. Milwaukee

-- preempts the federal common law enun-

ciated in that case. See Illinois v. City

of Milwaukee, 599 F. 2d 151, cert. granted

__—ioUS. ___, - 48 U.S.L.W. 3902 (March 18,

1980). There is an inherent tension between

judicially created standards of conduct and

~a detailed regulatory program in which Con-

gress has authorized the discharge of pol-

lutants under specific conditions.

The FWPCA and the MPRSA set forth a

comprehensive scheme for reguiating water

pollution. All discharges of pollution are

forbidden except those which are explicitly

authorized. 33 U.S.C. §§1311, 1411 (a).

Every single pipe ("outfall") which can dis-

charge pollutants into a navigable body of

water must be approved by and receive a per-

10

|» |

mit from the United States Environmental

Protection Agency ("EPA") or a duly desig-

nated state agency (§§1311-1316; 1342). EPA

also has the power to impose stringent limi-

tations on what is contained in those dis-

charges and how those discharges shall be

treated.

The FWPCA mandates national standards

for all direct and indirect discharges and

‘makes violation of these standards action-

able. (Under prior law, it was necessary to

prove individual responsibility for viola-

tions of water quality standards before a

statutory remedy could be invoked.) The

statute establishes a timetable for eli-

mination of water pollution (§1311). Muni-

cipal sewage systems (publicly owned treat-

ment works) must achieve secondary treatment

by July 1, 1977, and, subject to certain

limited exceptions, must employ the best

ll

practicable water treatment technology by

July 1, 1983.

The Administrator may sue directly

for the violations of any permit (§1319).

He no longer is limited to requesting the

commencement of an abatement action -

something he was able to do only after

what was characterized by the Supreme

Court as a “long-drawn-out procedure."

Illinois v. Milwaukee, supra, 406 U.S. at

103. The statute provides for citizen suits

to enforce the requirements of the FWPCA

(§1365) if the citizen notifies the EPA

Administrator and the polluter of a vio-

‘lation and the Administrator fails to seek

abatement within 60 days.

The MPRSA sets up a parallel scheme

regulating ocean pollution. The MPRSA

prohibits the dumping of any material into

ocean waters except as authorized by permit

12

(§1411). Section 1412 (a) authorizes the

EPA Administrator to issue a permit for

the dumping of any material other than

dredged material where he "determines that

such dumping will not unreasonably degrade

Or endanger human health, welfare or ameni-

ties, or the marine environment, ecological

systems, or economic potentialities", and

specifically requires inquiry into the im-

pact of ocean dumping on fishing and shell-

fishing resources. Ocean dumping permits

include conditions which regulate the type

and amount of material which can be dumped,

locations of dumping, provisions for moni-

toring and surveillance, as well as any

other conditions and provisions which the

Administrator deems appropriate (§1414).

Permit conditions may be enforced by assess-

ment of civil and criminal penalties, or by

citizen suits (§§1415 and 1417) upon compli-

13

ance with the statutory notice requirements.

REASONS FOR GRANTING THE WRIT

1. NEITHER THE FEDERAL COMMON LAW NOR THE

MARITIME LAW ENCOMPASSES CLAIMS By

FISHERMEN THAT REGULATED POLLUTION OF

INTERSTATE OR NAVIGABLE WATERWAYS CON-

STITUTES A NUISANCE OR IS DIMINISHING

THE PROFITS OF THEIR FISHING BUSINESS.

In Willamette Iron Bridge Co. v.

Hatch, 125 U.S. 1 (1888), the Court held

that a private citizen could not challenge

a nuisance or obstruction in a navigable

waterway under the "federal common law."

There the owner of a wharf sued to prevent

the construction of a bridge which would

have impeded boat access to his waterfront

property. The Court dismissed the suit,

stating:

The power of Congress to pass

laws for the regulation of the

navigation of public rivers,

and to prevent any and all ob-

structions therein, is not ques-

tioned. But until it does pass

some such law, there is no com-

14

mon law of the United States

which prohibits obstructions

and nuisances in navigable

rivers, unless it be the mari-

time law, administered by the

courts of admiralty and mari-

time jurisdiction. No prece-

dent, however, exists for the

enforcement of any such law....

(125: 0.8. at 8.)

While Willamette concerned an interstate

bridge crossing a navigable waterway, the

Court made it clear that it was the pri-

vate chracter of the parties and the non-

‘sovereign interests they represented which

precluded relief under federal common law

Or maritime law. The court noted (at 125

U.S. 13-14) that if this nuisance inter-

fered with the operations of the federal

government, it would indeed be actionable.

Congress's response to the Court's de-

cision in Willamette Iron Bridge was a

series of laws that were later re-enacted

as the Rivers and Harbors Act of 1899, 33

15

U.S.C. §407 (1976). See generally, United

States v. Pennsylvania Industrial Chemical

Corp., supra, 411 U.S. at 663; United States

v. Republic Steel Corp., 362 U.S. 482, 488

(1960). No private rights were, however,

created. Enforcement is limited by its terms

to enforcement by the United States Attor-

neys. 33 U.S.C. §413 (1976). See Red Star

Towing & Transportation Co. v. Dept. of

Transportation, 423 F. 2d 104, 105 (3rd

Cir. 1970); Connecticut Action Now, Inc.

v. Roberts Plating Co., 457 F. 2d 81, 90 n.

16 (2nd Cir. 1972); Guthrie v. Alabama By-

Products Co., 328 F. Supp. 1140, 1147

(N.D. Ala. 1971).

Congress's refusal to create private

rights when it responded to Willamette Iron

Bridge should not be judicially overruled

by creation of the very common law right

rejected in Willamette. Certainly such pri-

16

|

vate federal rights cannot be based upon the

decision in Illinois v. Milwaukee, 406 U.S.

91 (1972), upon which the Court below relied.

Illinois v. Milwaukee held that “federal com-

mon law" authorized a claim by a state that

pollution of navigable waters was creating

a public nuisance. Virtually all of the

pollution cases relied upon in Illinois

v. Milwaukee involved claims by a sovereign

_that its sovereign interests were being in-

fringed upon by activities of persons in

another state. The Court quoted extensively

from Georgia v. Tennessee Copper Co., 206

U.S. 230, 237 (1907), where the philosophy

behind development of a federal common law

of nuisance was enunciated -- that a forum

to peacefully adjudicate disputes between

formerly sovereign states was a necessary

corollary to the federal system:

17

be

When the States by their union

made the forcible abatement of

outside nuisances impossible to

each, they did not thereby agree

to submit to whatever might be

done. They did not renounce

the possibility of making reason-

able demands on the ground of

their still remaining quasi-

sovereign interests; and the

alternative to force is a suit

in this court. Missouri v.

Illinois, 180 U.S. 208, 241.

These considerations do not support

creation of federal common law rights in

_private parties. Respondents here pursue

no sovereign interests -- they claim only

lost profits from fishing in the terri-

torial waters of the United States. And

the paramount sovereign interest in these

waters has been expressed in the water

pollution control statutes themselves.

See infra, pp. 20-21.

Other federal courts have for the most

part rejected the notion that private par-

ties raising no sovereign interests can sue

18

under the federal common law for relief

from water pollution in navigable waterways.

See Parsell v. Shell Oil Co., 421 F. Supp.

1275, 1281 (D. Conn. 1976), aff'd mem. sub

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

Co., 573 F. 2d 1289 (2d Cir. 1977); Com-

mittee for Consideration of Jones Falls

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

1153-1154, (D. Md. 1974), aff'd on differ-

ent but not inconsistent grounds, 539 F.

2d 1006 (4th Cir. 1976); cf. City of

Evansville, Indiana v. Kentucky Liquid

Recycling Corp., 604 F. 2d 1008 (7th Cir.

1979); Township of Long Beach v. City of

New York, 445 F. Supp. 1203 (D.N.J. 1978);

contra, Byram River v. Village of Port

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

Hence, the third circuit stands alone with

one district court in allowing a private

party to invoke federal common law.

19

| |

77>

Moreover, in the present statutory

framework where Congress has prohibited

the discharge of all pollutants except in

compliance with detailed regulations, it

is anomalous to conclude that the federal

common law or maritime law sets standards

of conduct different from those set forth

in the statutes. See Illinois v. Milwaukee,

supra, 406 U.S. at 107. See also Committee

~for Jones Falls Sewage System v. Train,

supra, 539 F. 2d at 1009; see also Potomac

River Ass'n Inc. v. Lundeberg Maryland

Steamship School, Inc., 402 F. 2d 344 (D.

Md. 1975); Ellison v. Rayonnier, Inc., 156

F. Supp. 214 (D. Wash. 1975). Specific

Congressional standards by their own force

preempt common law standards. Nor are

there statutory "interstices" which need

be filled, out of which a common law could

be formed. Congress has regulated every

20

source Of water pollution in the nation.

This Court has recognized that federal

legislation replaces previously applicable

federal common law principles in Arizona v.

California, 373 U.S. 546 (1963). Arizona v.

California dealt with the allocation of

water in the Colorado River between the

various states that border on that river.

Congress had passed a statute which provided

for a method and formula for allocation of

those waters. California argued that the

apportionment of the water in the Colorado

River should be controlled by the common

law doctrine of equitable apportionment

which the Supreme Court had applied in

earlier cases involving disputes between

the various states. The Supreme Court re-

jected California's argument, noted that

a federal statute was involved, and said:

21

It is true that the Court has

used the doctrine of equitable

apportionment to decide river

controversies between States.

But in those cases Congress

had not made any statutory

apportionment. In this case,

we have decided that Congress

has provided its own method

for allocating among the Lower

Basin States the mainstream

water to which they are en-

titled under the Compact.

Where Congress has so exer-

cised its constitutional

power over waters, courts

have no power to substitute

their own notions of an

‘equitable apportionment'

for the apportionment chosen

by Congress. (373 U.S. at 565)

This important question of federal

law impacting upon interstate and navigable

waters should be settled. Regulated pollu-

tion should be immune from challenges under

the maritime or common law, particularly in

cases brought by private parties. Indeed

the MPRSA standard for the EPA to apply

in considering ocean dumping is precisely

the same that a judge would apply in a case

22

|

.

arising under the maritime or common law -

dumping is allowed where it will not have

an unreasonable impact on water quality

standards. 33 U.S.C. §1412(a). Practical

and economic reality dictate that dischar-

gers required to expend huge sums of public

funds know that the applicable standards

are fixed, final, and immune from col-

lateral attack.

While it is true that both the FWPCA

and the MPRSA contain a savings clause which

preserves common law rights and remedies,

these clauses do not themselves authorize

creation of new federal standards of conduct

and private rights did not previously exist.

See City of Evansville, Ind. v. Kentucky

Liquid Recycling Corp., supra, 604 F. 2d

1008, 1014 (7th Cir., 1979). The fourth

circuit has held that this clause was meant

Only to preserve rights under state law.

23

Committee for Jones Falls Sewage System v.

Train, supra, 539 F. 2d at 1009, n. 9. The

extent of the common law in this thoroughly

regulated field should be delineated.

2. NEITHER THE FEDERAL WATER POLLUTION

CONTROL ACT, NOR THE MARINE PROTEC-

TION, RESEARCH AND SANCTUARIES ACT,

AUTHORIZES RIGHTS OR REMEDIES OTHER

THAN THOSE EXPRESSLY PROVIDED FO

IN EACH ACT. a

The FWPCA contains a provision granting

“any private citizen the right to sue to en-

force compliance with effluent standards or

limitations, or to compel the Environmental

Protection Agency to perform non-discre-

tionary duties, upon compliance with a re-

quirement that 60 days' notice be given to

specified parties to the lawsuit. 33 U.S.C.

§1365(a)(1) and §1365(b). The MPRSA contains

virtually identical provisions. 33 U.S.C.

§1415(g). Plaintiffs herein did not comply

with these notice requirements. The Court of

24

Appeals found, however, that this failure

did not bar plaintiffs from asserting a

claim under the Acts, holding that plain-

tiffs who claim special injury from viola-

tions of the Acts have an "implied cause of

action" to enforce the terms of the Acts

which is not conditioned upon reliance with

the notice requirements.

The Court of Appeals' analysis of

~whether these statutes contain an implied

cause of action does not comport with the

analysis required by the numerous Supreme

Court cases which have recently addressed

that issue. Moreover, the Court of Appeals'

decision virtually reads the notice provi-

sions out of the statutes. Finally, the

decision is in direct conflict with the

interpretation of the statutes enunciated

by the Seventh Circuit Court of Appeals

in City of Evansville, Indiana v. Kentucky

25

Recycling Corp., supra, 604 F. 2d 1008;

but see Natural Resources Defense Council

v. Callaway, 524 F. 2d 79 (2d Cir. 1975);

Natural Resources Defense Council v. Train,

166 U.S. App. D.C. 313, 510 F. 2d 692

(1975). This conflict over the meaning of

provisions of major environmental legis-

lation - provisions which are also found

virtually verbatim in the Clean Air Act,

42 U.S.C. §1857a et seg. -- should be

resolved.

In Touche Ross & Co. v. Redington,

442 U.S. 560, 568 (1979), this Court held

that the central inquiry in determining

whether a statute contains an implied

cause of action is one of congressional

intent. See also, Transamerica Mortgage

Advisors v. Lewis, U.S. + ane es

Ct. 242 (1979). In the statutes at bar,

Congress clearly intended a private remedy

26

-- it authorized injunctive relief and

civil penalties explicitly in section 1365(a)

of the FWPCA and section 1415(g) of the

MPRSA upon compliance with specific notice

requirements. The question remains whether

additional remedies, supplementing the ex-

press ones, were intended.

In finding that additional remedies are

implied in these statutes, the Court of

Appeals ignored the basic tenet of statutory

construction: expressio unius est exclusio

alterius. As this court admonished in

Transamerica, supra, 100 S. Ct. at 245, in

a statement dealing with the ver. issue of

supplemental remedies presented here:

it is an elemental canon of

statutory construction that

where a statute expressly

provides a particular remedy

Or remedies, a court must be

chary of reading others into

it. “When a statute limits

a thing to be done in a par-

ticular mode, it includes

27

the negative of any other

mode." Botany Mills v.

United States, 275 U.S. 282,

- See [National

Association of Railroad

peeeengese? 417 0.S. 453,

458]; Securities Protection

Investors Corp. v. Barbour,

U.S. ; ©.1.M.E., anc.

v. United States, 359 U.S.

464, 471.

The Seventh Circuit rejected an im-

plied right of action under the FWPCA

supplementing the expressly authorized

remedy. In City of Evansville, Indiana v.

Kentucky Liquid Recycling, Inc., supra,

604 F. 2d at 1015, the court held: "Con-

gress, having thus specifically addressed

the subject of private remedies, it is

reasonable to conclude that it said all

it intended on that subject." Cf. CETA

Workers Organizing Committee v. Koch,

ry. 2a , Docket No. 79-7649,

(2nd Cir. March 5, 1980). The notice

provisions may not be read out of the

28

statute by finding a supplementary "implied"

remedy.

The analysis of the court below also

does not comport with that enunciated in

Cannon v. University of Chicago, 441 U.S.

677 (1979}. Cannon explicitly distinguished

between a statute, such as the one there in

issue, which grants rights to individuals

("no person ... shall, on the basis of sex,

~be excluded from participation ... in [an]

activity receiving federal funding"), and

Statutes such as the ones at hand which

regulate conduct:

There would be far less reason to

infer a private remedy in favor of

individual persons if Congress,

instead of drafting a Title Ix

with an unmistakable focus on the

benefited class, had written it

simply as a ban on discriminatory

conduct by recipients of federal

funds or as a prohibition against

the disbursement of public funds

to educational institutions engaged

in discriminatory conduct.

29

-*

Cannon, supra, 441 U.S. at 690-693. Hence,

even though the FWPCA and the MPRSA were

intended to benefit users of the waterways,

it cannot be fairly said that these stat-

utes confer a set of private rights in a

particular class -- rather they regulate

conduct and intend to benefit the public

at large.

CONCLUSION

For the foregoing reasons, the petition

for a writ of certiorari should be granted.

Respectfully submitted,

ALLEN G. SCHWARTZ,

Corporation Counsel

Attorney for Petitioners

100 Church Street

(212) 566-2192

New York, N.Y. 10007

By

~ STEPHEN P. KRAMER

Assistant Corporation Counsel

30