Petition for Writ of Certiorari — Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp.

8 6 1 5 6 2 | Suprome Court, U.S,

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| Sara

MAR 1” 1987

SESE SEP weOL, JR. |

CLERK

In The

Supreme Court of the United States

October Term, 1986

o

PAWTUXET COVE MARINA, INC., et al.,

Petitioners,

CIBA-GEIGY CORPORATION, INC.

co)

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

>)

JEFFREY A. LANPHEAR

(Counsel of Record)

2100 Broad Street

Cranston, Rhode Island 02905

(401) 781-0180

March, 1987

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

ee on

QUESTIONS PRESENTED

1. Did court below err in holding that citizens suits

may be brought under the Clean Water Act only if the

plaintiff alleges a continuing likelihood of future viola-

tions of the act, contrary to the holdings of other circuit

courts? Hamker v. Diamond Shamrock Chemical Co., 756

F.2d 392 (C.A. 5, 1985), Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc., 791 F.2d 304 (C.A. 4,

1986), certiorari granted — U.S. —, 93 L.Ed.2d 827, 107

S.Ct. 872.

2. Did the court below base its decision on errors of

fact?

li

PARTIES TO THE PROCEEDING

In addition *te> the parties named in the caption, the

plaintiffs in the original action, and appellants in the

court of appeals were Russell R. Hunt, Jr., and Beverley

G. Hunt.

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PR PENIS He

TREE PY PWS) OPO ID RT ES OS eT ee

BR AIT

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Page

CasEs:

Acton Repair, Inc. v. American Broadcasting

Companies, 776 F.2d 143 (C.A. 7, 1985) 8

Conley v. Gibson, 355 U.S. 41, 2 L.Ed.2d 80,

78 S.Ct. 99 (1957) - {

Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Foundation, Inc., 791 F.2d 304 (C.A. 4,

1986) certiorari granted — U.S. —, 93

L.Ed.2d 827, 107 S.Ct. 872 Passim

Hamker v. Diamond Shamrock Chemical Co.,

756 F.2d 392 (C.A. 5, 1985) Passim

Roth Steel Products v. Sharon Steel Corp.,

705 F.2d 134 (C.A. 6, 1983) 8

Williams v. Gorton, 529 F.2d 668, affirmed

566 F.2d 1186 (C.A. 9, 1976) 8

STATUTES:

Clean Water Act of 1977 (33 U.S.C. § 1251

et seq.) 33 U.S.C. § 1365(a) 2, 4, 5, 7

28 U.S.C. § 1331 4

I ie a IU scenester 4

RvLEs:

aS ee re ee 8

Rule 20.2, Supreme Court Rules _..

28 U.S.C. § 2101(c) 5

28 U.S.C. § 1254(1) 7 R

a

°

In The

Supreme Court of the United States

October Term, 1986

°

PAWTUXET COVE MARINA, INC., et al.,

Petitioners,

CIBA-GEIGY CORPORATION, INC.

-)

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Pawtuxet Cove Marina, Inc., et al., petition for a writ

of certiorari to review the judgement of the court of ap-

peals for the first circuit in this case.

S

2 |

OPINIONS BELOW

The decision of the court of appeals is published at

807 F.2d 1089 (C.A.1, December 18, 1986). The various

decisions of the district court referred to herein are un-

published. For the convenience of the Court, petitioners )

refer to the Appendices I herein.

Ss

—

JURISDICTION

The judgement of the court of appeals was entered

on December 18, 1986. This Petition is filed in reliance

on Rule 20.2 of the Rules of the Supreme Court and under

28 U.S.C. § 2101(e). The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

Section 505(a) of the Clean Water Act, 33 U.S.C.

§ 1365(a), provides as follows (emphasis added) :

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)

eeemmsenieiiiiiiiiiii

3

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 dis-

cretionary with the administrator.

The district courts shall have jurisdiction, without re-

gard 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 Adminis-

trator to perform such an act or duty, as the case

may be, and to apply any appropriate civil penalties

under section 1319(d) of this title.

>...

—

STATEMENT OF THE CASE

The Pawtuxet Cove Marina, Inc., a Rhode Island

corporation, owned and operated a marina on the Paw-

tuxet Cove in Cranston, Rhode Island. Russell R. Hunt,

Jr., and Beverley G. Hunt owned a private residence on

the cove and managed the marina.

The Ciba-Geigy Corporation is a New York corpora-

tion doing business in Rhode Island. It owns and operated

a chemical processing plant less than two miles upstream

from the petitioners’ properties. The chemical company

manufactures and processes plastic additives, photograph-

i¢ materials and pharmaceuticals at this plant. The Ciha-

Geigy Corporation was granted a series of water discharge

permits by the United States Environmental Protection

Agency and the Rhode Island Department of Environmen-

tal Management. On August 1, 1983 the chemical company

**tied-in’’ most of its discharges into the sewerage treat-

4

ment system of the City of Cranston. Its direct discharges

were then limited to cooling water only. The chemical

company violated its permits by emitting pollutants on

several occasions. These emissions into the river included

one with 50,000 gallons of wastewater containing excessive

toluene, other known pollutants, and unknown matter on

September 7, 1983.

Petitioners allege that as a result of the chemical com-

pany’s water pollution violations and the resultant chem-

ical flow into the river and river sediment, the proposals

to dredge the Pawtuxet Cove were delayed and rejected.

Neighbors in the area feared that the discharged pollu-

tants in the sediment made the dredged material a hazard

to health and safety. They lobbied against the proposals,

to prevent the United States Army Corps of Engineers

from obtaining funding for the project. To date, the Paw-

tuxet Cove has not been dredged and the chemical

company’s waste, discharged in violation of their permits,

now lie on the shoreline and in the basin of the cove.

As a result of this contamination and the decision not

to dredge the cove, the marina lost profits, the value of

all petitioners’ properties decreased and the petitioners

suffered other harm.

Statutory notice of intent to file a citizens suit was

served upon the chemical company on July 1, 1983 pur-

suant to 33 U.S.C. § 1365. Petitioners filed a civil com-

plaint in the United States District Court for the District

of Rhode Island on November 16, 1983.! The complaint

‘jurisdiction of the district court was based on federal ques-

tion 28 U.S.C. § 1331, diversity of citizenship 28 U.S.C. § 1332,

and Clean Water Act jurisdiction 33 U.S.C. § 1365(a).

a Te

5

requested civil penalties and other relief in accord with

33 U.S.C. § 1365. The complaint also requested compen-

satory and punitive damages under state common law

theories.

On February 13, 1984 the chemical company moved

to dismiss the complaint alleging that the district court

did not have jurisdiction. In a memorandum dated May

17, 1984 Distriet Court Judge Bruce M. Selva granted the

motion to dismiss in part, holding that a continuing vio-

lation was a prerequisite to a claim under the citizens

suit provision under the Clean Water Act, 33 U.S.C.

§ 1365(a). On January 24, 1985 the petitioners moved to

reconsider this holding, citing decisions of other district

courts which found to the contrary. Judge Selya denied

this motion based on Hamker v. Diamond Shamrock Chem-

ical Co., 756 F.2d 392 (5th Cir., 1985).

The chemical company moved for summary judgement

on April 12, 1985 on the remaining state common law

counts. It attached an unsworn Statement of Material

Facts. Plaintiffs objected to the motion, and submitted

an alternative statement of facts which the plaintiffs con-

tended were disputed and should be litigated. Before the

district court decision, the plaintiffs submitted an addi-

tional memorandum to the court with exhibits proving

that material facts were indeed disputed and should be

litigated. On September 19, 1985 District Court Judge

Selya granted summary judgement in part, refusing to

allow the plantiffs to raise ‘‘lack-of-dredging’’ issues at

trial.

The district court judge did not limit his ‘‘lack-of-

dredging’’ analysis to any of the particular state common

6

law counts in the summary judgement decisions. At trial,

however, he foreclosed the introduction of any evidence

which linked the lack-of-dredging to petitioners’ damages.

Petitioners were allowed to amend their complaint to in-

dicate that they were only attempting to prove lack-of-

dredging damages. The district court then extended its

summary judgement to all common law counts and entered

final judgement for the chemical company. The case was

never submitted to a jury.

Prior to the trial petitioners had moved to amend the

complaint by restoring the Clean Water Act count, al-

leging that the chemical company continued to violate its

permits even during litigation. They also moved for a

partial summary judgement on this Clean Water Act count,

submitting a Statement of Material Facts which indicated

that the violations were ongoing. The chemical company

objected to the motion, but never disputed the Statement

of Facts. Judge Selya denied the motions to amend for

partial summary judgement on September 19, 1985 never

reaching the merits of those two motions.

Petitioners appealed the district court decisions of

dismissal and summary judgement. Eight days after pe-

titioners’ circuit brief was filed, the Court of Appeals

for the Fourth Circuit decided Chesapeake Bay Founda-

tion, Inc. v. Gwaltney of Smithfield, Ltd, (1986), 791 F.2d

304 (C.A. 4, 1986), certiorari granted, — U.S. —, 93 L.Ed.

2d 827, 107 S.Ct. 872, which allowed private parties to

seek civil penalties for past violations of the act even if

violations are no longer ongoing. ‘his case was directly

contrary to the decision of Hamker v. Diamond Shamrock

Chemical Co., 756 F.2d 392 (C.A. 5, 1985). At oral argu-

ment before the first cireuit, the petitioners argued that

7

Gwaltney more closely followed the language and intent

of the Clean Water Act (33 U.S.C. § 1365). Petitioners’

circuit court appeal was denied with the court holding

that petitioners needed to show a likelihood of continuing

violations. 807 F.2d at 1094.

ra

Vv

ARGUMENT

A. The federal circuit courts of appeals are in

conflict on their interpretation of the Clean

Water Act.

This court granted certiorari to review the decision

of Gwaltney on January 12, 1987. It is currently under

review as case no. 86-473.

The case at bar involves the identical issue: the inter-

pretation of the citizens suit provision of the Clean Water

Act, 33 U.S.C. § 1865(a). The First Cireuit Court of Ap-

peals disputed the decisions of both Hamker and Gwaltney

in its opinion.

This court granted certiorari to hear Gwaltney, and

because this case involves the identical issue, petitioners

pray that certiorari be granted in the present case.

B. The decision of the circuit court was based on

incorrect assumptions of fact.

1. The motion to dismiss. The circuit court ignored

the fact that there were ongoing violations which occurred

even after the petitioners had filed the requisite statutory

notice to commence this litigation.?

These violations occurred after the tie-in to the municipal

sewerage treatment plant, which the first circuit believed to be

a significant date.

The Clean Water Act count was dismissed pursuant

to a motion to dismiss. In a motion to dismiss, under

Fed. R. Civ. P. 12(b)(6) the motion should not be granted

unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of its claim which would

entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45, 2

L.Ed.2d 80, 84, 78 S.Ct. 99, 102 (1957). Therefore, all

facts are to be viewed in a light most favorable to the

non-moving party. Acton Repair, Inc. v. American Broad-

casting Companies, 776 F.2d 143 (C.A.7, 1985), Roth Steel

Products v. Sharon Steel Corp., 705 F.2d 134 (C.A.6,

1983), Williams v. Gorton, 529 F.2d 668, affirmed 566 F.2d

1186 (C.A.9, 1976).

In the case at bar, the district court and the court of

appeals should have presumed that the chemical company

would continue to pollute, that its violations were ongoing,

and that the petitioners would be able to show a likelihood

of continuing violations. If they viewed the motion to dis-

miss with all facts taken in the light most favorable to

the non-moving party, the courts below should have as-

sumed future violations (which in fact, did occur). Not

doing so, both courts should have allowed petitioners leave

to amend the complaint so as to allow them to conform

to the court’s new interpretations of the statute.

2. The chemical company’s summary judgement mo-

tion. The First Circuit based its decision on an incorrect

supposition of facts in reviewing the summary judgement

decision. The First Circuit stated:

The principal impediment to maintenance dredging

was the cost; everyone being in favor of the project,

provided someone else paid. Appendix I, p. 3, 807

F.2d at 1091.

9

In reality, cost was no problem, as the United States Army

Corps of Engineers would pay all costs for dredging the

navigable waters of the cove. The only impediment was

locating an acceptable dumping site for the contaminated

dredging spoils. Offshore dumping was banned by the

Governor of Rhode Island. Therefore, the proposals for

the Pawtuxet Cove dredging suggested that the contam-

inated spoils be used to establish a marshland in the vi-

cinity of the cove. Fearing their health and safety, the

neighbors objected to these proposals, and no dredging

plan was ever approved.

Petitioners appealed the summary judgement decision

on the basis that the chemical company did not establish

(or even allege) the necessary facts. Material facts re-

mained in dispute. The district court simply assumed

that some facts had been established by the chemical com-

pany and were not in issue. It appears that the circuit

court has done worse: It relied upon facts which simply

were not true.

Petitioners pray that they be allowed to have their

case decided on an accurate finding of the facts.

CONCLUSION

Petitioners request that this Petition be granted.

Respectfully submitted,

Jerrrey A. LANPHEAR Esq.

(Counsel of Record)

2100 Broad Street

Cranston, Rhode Island 02905

(401) 781-0180

March, 1987

App. 1

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 86-1227

PAWTUXET COVE MARINA, INC., ET AL..,

Plaintiffs, Appellants,

v.

CIBA-GEIGY CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF RHODE ISLAND

{Hon. Bruce M. Selya, U.S. District Judge]

Before

Campbell, Chief Judge,

Aldrich and Coffin, Circuit Judges.

Jeffrey A. Lanvhear for appellants.

James Thornton on brief for Natural Resources De-

fense Council, Inc., amicus curiae.

Karen H. Edgecombe, Bruce J. Terris and Terris,

Edgecombe, Hecker & Wayne on brief for Friends of the

Earth, Sierre Club, Student Public Interest Research

Group of New Jersey and Atlantic States Legal Founda-

tion, amici curiae.

Katherine L. Rhyne, with whom Douglas E. Kliever,

John M. Bredehoft, Cleary, Gottlieb, Steen & Hamilton,

Michael P. DeFanti and Hinckley, Allen, Tobin & Silver-

stein were on brief for appellee.

December 18, 1986

ALDRICH, Senior Circuit Judge. In 1979 plaintiff

Pawtuxet Cove Marina, Inc. purchased a marina on a

;

:

App. 2

cove by the mouth of the Pawtuxet River in Rhode Island.

Plaintiffs Russell and Beverly Hunt, owners of a residence

on the cove, as well as officers and shareholders in Marina,

Inc., purchased a second marina on the cove and leased it

to Marina, Inc. In November 1983 plaintiffs sued defen-

dant Ciba-Geigy Corp., in part for civil penalties under

section 505 of the Clean Water Act, 33 U.S.C. § 1365, and

in part for damages due to violations of Rhode Island

common law. Defendant was located up river. From the

penalty standpoint it, allegedly, had violated its permit

under the National Pollutant Discharge Elimination Sys-

tem by discharging effluents containing excessive pollu-

tants. From the damage standpoint the presence of these

pollutants had, allegedly, prevented dredging to improve

access to plaintiffs’ properties, causing economic loss and,

in turn, stress-produced illnesses. On defendant’s motion

for summary judgment the court dismissed the penalty

action for lack of jurisdiction. Diversity jurisdiction

existed for the damage claims. However, upon plaintiffs’

stipulating during trial that these, unless for nominal

damages, which they waived, depended upon proof that

the dredging would have occurred but for defendant’s

polluting, the court ruled that plaintiffs had not made out

acase. Plaintiffs appeal. We affirm.

The Pawtuxet River area silts up. In the early 1960’s

an agreement was entered into whereby the Army Corps

of Engineers, funded by federal, state, and municipal con-

tributions, dredged it to a depth of six feet at mean low

water. A breakwater was built for protection, which,

unfortunately, increased siltation, and it was recognized

that substantial periodic dredging would be required for

maintenance. This expectation proved to be correct, but

App. 3

further dredging, though long needed, has not taken place.

Indeed, one of the municipalities did not even fulfill its

original obligations.

The principal impediment to maintenance dredging

was the cost; everyone being in favor of the project, pro-

vided someone else paid. While discussions still continue,

no money has ever been appropriated, federal or other-

wise, nor have plaintiffs shown any appreciable prospect

thereof. The problem was aggravated by a Rhode Island

regulation passed in the early 1970’s forbidding dumping

of dredged materials in offshore waters. Since then a

lack of disposal space has precluded almost all Rhode

Island dredging, even of needed terminal facilities, let

alone of recreational areas. It is true that some neighbors

of possible disposal sites have objected to defendant’s

pollutants, but we agree with the district court that as a

matter of law on the overall record this was an insignifi-

cant, and in no sense a ‘‘but for’’ factor. Brodeur v.

Desrosiers, 505 A.2d 418, 423 (R.I. 1986); Salk v. Alpine

Ski Shop, Inc., 115 R.I. 309, 312-13, 342 A.2d 622, 625

(1975). Twenty years of negative history, quite apart

from defendant’s pollutants, with no indication of any

change, left plaintiffs with nothing but hope. This was

clearly insufficient to make out a case against defendant.

In this circumstance we need not consider plaintiffs’

other common law obstacle, that actions for negligence gen-

erally require proof of physical, as distinguished from mere

economic, harm. Cf. Barber Lines A/S v. M/V Donau

Maru, 764 F.2d 50 (1st Cir. 1985); Louisiana ex rel. Guste

v. M/V Testbank, 752 F.2d 1019 (5th Cir. 1985), cert.

denied, 106 S. Ct. 3271. But cf. Burgess v. M/V Tamano,

370 F. Supp. 247 (D. Me. 1973), aff’d without opinion, 559

App. 4

F.2d 1200 (1st Cir. 1977) (permitting fishermen to recover

for pecuniary losses caused by oil spill).

We turn to the more open question, the district court’s

ruling that plaintiffs, as private citizens, could not main-

tain a Clean Water Act action simply to enforce penalties

with respect to violations that had already ceased. Plain-

tiffs’ complaint was, of necessity, limited to the past (‘‘has

discharged effluents’’), because of the fact that, prior to

its filing, defendant had completed a tie-in with a munici-

pal treatment facility and had ceased operating under the

permit. Plaintiffs, accordingly, did not and could not, at

least prima facie, trace the statutory language, which is

addressed to the present.

See. 505(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... who is alleged to be

in violation of (A) an efficient standard or limita-

tion under this Act.... .

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an efflu-

ent 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-

& A citizen is defined in subsection (g) as a “person or

persons having an interest which is or may be affected.” Since

we dismiss on other grounds, post, we need not decide whether

plaintiffs succeed in showing such. See discussion in Chesa-

peake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp.

440 (D.Md. 1985).

App. 5

priate civil penalties under section 309(d) of this

Act. (emphasis added)

While this failure might seem a short and conclusive an-

swer, plaintiffs cite district court cases, culminating with

the recent case of Chesapeake Bay Foundation, Inc. v.

Gwaltney of Smithfield, Lid., 791 F.2d 304 (4th Cir. 1986),

holding that the court not only may assess penalties for

past violations in a citizen’s suit (which, in itself, we do

not question), but may entertain a suit seeking only that

relief. Plaintiffs also cite language by Senator Muskie,

post, one of the proponents of the Act, purportedly indi-

cating the same intent.

We find it apparent, not only from this, but from a

study of the statute as a whole, that its draftsmanship

leaves something to be desired, in part, perhaps, because

of the scope of the problems. We affirm the district court,

but we think the proper interpretation of the statute lies

somewhere between an absolute, literal, application of its

language and the unlimited meaning adopted by the Fourth

Circuit.

The Gwaltney court found the key statutory language

—‘‘is ... in violation’’—ambiguous, and hence encompass-

ing all past, as well as present, violations. The court rea-

soned that one ‘‘continues to be ‘in violation’ by having

‘violated.’ ... [T]he taint of a past violation is continu-

ing.’’ 791 F.2d at 309 (quoting Student Public Interest

Research Group v. Monsanto Co., 600 F. Supp. 1474, 1476

(D.N.J. 1985)). For this it analogized the case of a tax-

payer who underpaid one year, but did not the next, point-

ing out that, until he paid, he continued to be ‘‘in viola-

tion.’”? We find the argument forced, and the analogy

App. 6

inapt. In the case of the taxpayer, the violation was the

non-payment, and it, of course, continued until the obliga-

tion was met. A ceased improper discharge does not ‘‘con-

tinue.’’ Moreover, the ‘‘violation’’ defined by the statute

is not the non-payment of the penalty.

Nor does the statute speak in terms of ‘‘taint.’’ This

might be arguable if it had read ‘‘is a violator,’’ but ‘‘is

. in violation’’ speaks in terms of activity. The clear

import of section 505(a) is that citizens are empowered to

seek injunctive relief against a polluter that ‘‘is in viola-

tion’’ of the Act, and that in connection with such an action

the district court is authorized to award ‘‘any appropri-

ate’’ civil penalties. With great respect to the Fourth Cir-

cuit, we find its conclusion of ambiguity unpersuasive, par-

ticwarly when it would have been so easy for Congress to

have said ‘‘has violated,’’ instead of ‘‘is . . . in violation’’

if the former was its intention, and with the difference

being so conspicuous.

We note, too, that ‘‘effluent standard or limitations,’’

ante, is defined in section 505(f)(6) as a ‘‘permit or con-

dition thereof issued under section 402 of this Act, which

is in effect under this Act .. .’’ (emphasis added), a clear

use of the present. It is true that under section 505(f)

(1’s) definition of *‘effluent standard or limitation’’ the

incorporation of other sections by reference produces

grammatical confusion, but, in sum, in speaking of any

‘‘discharge’’ not otherwise excepted, there is no retreat

from the present tense.

This use does not seem inconsistent, historically, with

the enforcement emphasis of the anti-pollution acts. The

Clean Air Act, from which the Clean Water Act took the

App. 7

phrase ‘‘is .. . in violation,’’ see 42 U.S.C. § 7604(a), pro-

vided for injunctive relief only. Alertness of concerned

citizens, see § 505(g), n.1, ante, was of moment, but of

secondary importance; even when, in enacting the Clean

Water Act, Congress added penalties, such were to go to

the government. There was no change in purpose. Rath-

er, House and Senate Reports on the Clean Water Act

characterize the addition of civil penalties as simply a

modification of the citizen’s action for injunction author-

ized under the Clean Air Act.2 Thus we cannot share the

Gwaltney court’s reliance upon the fact that if the words

‘is ... in violation’’ require a showing of a violation at

the time of suit, many past violations would be immune

to citizens’ suits. Some immunity was an originally con-

templated circumstance; the court uncovered no unique

lacunae. No amount of discovering ambiguity in the

quoted words can escape the fact that, with respect to

alleged violations of permits, § 505(f)(6), ante, no action

2. See S. Rep. No. 414, 92d Cong., 1st Sess. 79 (1971), re-

printed in 1972 U.S. Code Cong. & Admin. News 3668, 3745:

The Committee has established a provision in the bill that

would provide citizen participation . . . modeled on the

provision enacted in the Clean Air Amendments of 1970.

As in that Act the provision in this bill is carefully restricted

to actions where violations of standards and regulations

or a failure on the part of officials to act are alleged. One

modification would allow the Courts to impose civil penal-

ties provided as a result of actions brought by citizens.

See also H.R. Rep. No. 911, 92d Cong., 2d Sess. 133 (1972)

(“Section 505 closely follows the concepts utilized in . . . the

Clean Air Act. However, this legislation authorizes the courts

to impose civil penalties, as well as injunctive relief.”). Further

support for this view may be found in congressional references

to citizen suit provisions as a means of “abating” ongoing vio-

lations of the Act. See, e.g., S. Rep. No. 414 at 79-82, reprinted

in 1972 U.S. Code Cong. & Admin. News at 3745-47.

App. 8

ean lie for past violations unless the ‘‘permit. . . is in ef-

fect.’’ This consistently corresponds with the reference

to violations in the present tense; past permit violations

are relevant to the extent that they cast light on the pro-

priety of an injunction, no longer appropriate if theve is no

longer a permit.’

There is, however, a more serious problem if the con-

cept of a present violation requires proof of its occurring

at the instant of suit. A violation may last only ten min-

utes. Moreover, section 505(b)(1)(a) requires a sixty-day

notice before suit is brought, so that even a persistent

violator may, temporarily, ‘‘clean up his act.’’ We there-

fore think that the words ‘‘is . . . in violation’’ should be

sufficiently liberally construed to comport with the in-

junctive purpose of the Act—conduct indicative of con-

tinuing or renewed violations justifying an injunction, as

3. Plaintiffs and amici rely on the remarks of Senator Muskie,

one of the Act’s principal sponsors. Senator Muskie stated, in

art, that “[cJitizen suits can be brought to enforce against

th continuous and intermittent violations” and that

[the] 60-day provision was not intended .. . to cut off

the right of action a citizen may have to violations that

took place 60 days earlier but which may not have been

continuous. As in the original Senate bill, a citizen has a

right under section 595 to bring an action for an appro-

priate remedy in the case of any person who is alleged

to be, or to have been, in violation, whether the violation

be a continuous one, or an occasional or sporadic one.

118 Cong. Rec. 33693, 33700 (1972). With due respect to Sena-

tor Muskie, we do not think an ambiguity is to be created out

of whole cloth by his individual remarks. Moreover, the ap-

proach adopted in this opinion addresses what appears to be

one of the Senator's principal a if only “con-

tinuous” violations are deemed to be covered under the Act,

even persistent polluters may utilize the notice provisions to

avoid liability.

\ App. 9

distinglished from matters over and apparently done with,

that would not warrant one. We find this possible in the

fact that the statutory phrase is not the three words we

have heretofore considered, but is ‘‘is alleged to be in

violation.’’ It is far less of a streteh to interpret these

words as applicable to a present continuing intent than

to take the Gwaltney court’s encompassing a single past

act. We would give the full phrase the practical con-

struction that is given to the $10,000 requirement for

jurisdiction in a diversity case. There jurisdiction is not

necessarily lost if, in the final analysis, a lesser sum is

involved; a reasonably held allegation is sufficient. See

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.

283, 288-89 (1938). We think the analogy excellent, and

that the same construction is warranted, not only from

the statutory wording, but also from its functional pur-

pose. If a defendant’s history of past violations is such

that it is reasonable to believe that misconduct will con-

tinue, not only is it reasonable to allege a continuing vio-

lation, but this is precisely the showing that would induce

a court to issue an injunction. See, e.g., SEC v. Bonastia,

614 F.2d 908, 912 (3d Cir. 1980). Such a construction

corresponds both with the statutory language and with the

statutory purpose.‘

We accordingly hold that an action under 33 U.S.C.

§ 1365 may go forward if the citizen-plaintiff fairly al-

leges a continuing likelihood that the defendant, if not

enjoined, will again proceed to violate the Act. In review-

4. The Gwaltney court recognized this possible construction,

but, without comment, chose not to adopt it. See 791 F.2d at

308 n.9.

App. 10

ing actions under this standard, the district court should

consider, among other things, the isolated or recurrent

nature of the infraction, the degree of scienter on the

part of the defendant, and the sincerity of its assurances

against future violations. C/. Bonastia, 614 F.2d at 912.

We thus agree with the result in Hamker v. Diamond

Shamrock Chemical Corp., 756 F.2d 392 (5th Cir. 1985),

in which the court held the plaintiff’s allegation of a

single, past violation to be insufficient. We do not, how-

ever, agree with the reasoning which, apparently, led the

Louisiana district court, following the Hamker decision,

to dismiss a number of actions simply because no viola-

tions occurred on the dates the complaints were filed. See

Sierra Club v. Copolymer Rubber & Chemical Corp., 621

F.Supp. 1018, 1015 (M.D. La. 1985). <A plaintiff who

makes allegations warranting injunctive relief in good

faith, judged objectively, may recover a penalty judgment

for past violations even if the injunction proves un-

obtainable.

In the case at bar, plaintiffs alleged violations of a

permit that limited defendant’s discharges of process

wastewater. At the time plaintiffs brought suit, however,

the defendant had ceased operating under this permit

because of its completion of a tie-in arrangement with a

municipal treatment facility. Under these circumstances,

there was no reasonable likelihood that defendant’s al-

leged infractions would continue, and the district court

correctly determined that the action should be dismissed.

Finally, there was no abuse of the court’s discretion

in denying plaintiffs’ August 1985 motion to amend their

complaint (a second time) to add a Clean Water Act

App. 11

claim after the court had ordered dismissal. The new

incidents had been disclosed to plaintiffs long before they

had filed their motion. Furthermore, they apparently

concerned matters not even within the scope of section

505(a). Plaintiffs had been given much consideration, and

the court was well warranted in not reopening the case.

Affirmed.

App. 12

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

PAWTUXET COVE MARINA, INC.

et al.

v. C. A. No. 83-0740 S

CIBA-GEIGY CORPORATION

MEMORANDUM AND ORDER

BRUCE M. SELYA, United States District Judge.

This case was initially referred to a United States

Magistrate for consideration pursuant to 28 U.S.C.

§ 636(b)(1)(B) in respect to Ciba-Geigy Corporation’s

alternative motion to dismiss the complaint or for a more

definite statement. On April 30, 1984, the magistrate, in

a detailed report and recommendation (Report), suggest-

ed that the motion to dismiss be granted, with limited

leave to amend. The plaintiffs have interposed an objec-

tion to the Report. This court has considered the matter

de novo, see Local Rule 32(c)(2), and has concluded, for

the reasons outlined below, that the Report is worthy of

acceptance, subject to modification as limned hereby.

The plaintiffs raise four points of contention vis-a-vis

the Report. These relate solely to the magistrate’s ruling

anent Section V of the complaint (the so-called ‘‘federal’’

statement of claim), and in no wise implicate those por-

tions of the Report dealing with the several] state law

claims. Any and all other arguments previously made to

the magistrate are deemed to be waived and need not be

studied anew. Jd. Thus, the court need not independently

pass upon the Report insofar as it treats with the state

law allegations (Report at 7-9), but will merely accept the

App. 13

same without further ado. The court will, however, briefly

address in combination the four grounds of objection (all

of which have, as noted above, a common federal focus).

The magistrate concluded that, in the absence of any

allegation that the defendant was currently engaged in

ongoing violation(s) of effluent discharge standards or

limitations, no private action would lie under the Federal

Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251

et seq., and specifically, under 33 U.S.C. § 1365(a). Re-

port at 45. He further held that there is no implied pri-

vate right of action for damages within the interstices of

the FWPCA, Report at 5; that civil penalties may only

be assessed in accordance with 33 U.S.C. § 1319(d), and if

so assessed, are payable to the government (not to private

parties-plaintiff), Report at 5-6; and that no sufficient

showing has been made out upon which general federal

question jurisdiction, 28 U.S.C. § 1331, may be postulated.

The aggregate effect of the plaintiffs’ objection is to chal-

lenge each and all of these observations.

The magistrate cites respectable authority for his

holdings; and, save only for an anfractuous reading of an

isolated bit of legislative history, the plaintiffs’ remon-

strances do little to undermine this support. There is

nothing in § 1365(a) which would confer jurisdiction upon

a district court to enjoin, presumably as a matter of his-

torical interest, FWPCA effluent discharge violations pre-

viously abated and no longer onging. Thus, the magis-

trate’s insistence upon a continuing violation as a pre-

requisite to the grant of a §1365(a) restraining order

appears inexpugnable. As this court has remarked in

another context:

App. 14

When all is said and done, ‘‘the sole function of an

action for injunction is to forestall future violations,

not to exact retribution for past wrongs.’’

Home Placement Service, Inc. v. Providence Journal Co.,

573 F.Supp. 1423, 1428 (D.R.I. 1983), quoting United States

v. Oregon State Medical Society, 343 U.S. 326, 333 (1952).

The recent First Circuit decision in Conner v. Aerovoz,

Inc., No. 83-1169 (1st Cir. March 28, 1984), plainly indi-

cates that, in this circuit, implied rights of action will not

be read blithely into the FWPCA, e.g., id., slip op. at 8; and

further, Conner, e.g., id. at 8-9, adopts an interpretation

of the landmark case ef Middlesex Ceunty Sewerage Au-

thority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981)

which runs diametrically opposite to what the plaintiffs!

would have this court read into that opinion. There is no

cause of action such as the plaintiffs envision arising by

statutory implication. And, a fair reading of the statutes,

of Sea Clammers, and of the circuit court decisions in

Conner, Illinois v. Outboard Marine Corp., 680 F.2d 473

(7th Cir. 1982), Marquez-Colon v. Reagan, 668 F.2d 611

(1st Cir. 1981) and Matter of Oswego Barge Corp., 664

F.2d 327 (2d Cir. 1981) leaves little room to doubt the

efficacy of FWPCA preemption as to claims sounding in

any theory of ‘‘federal common law.’ Thus, except as

they may be brought in accordance with authorization ex-

pressly conferred by FWPCA, plaintiffs’ federally-

grounded claims are baseless.

'Plaintiffs’ Memorandum In Support Of Objection (Memo-

randum), at 3.

2See also Milwaukee v. Illinois, 451 U.S. 304 (1981).

App. 15

The magistrate, then, was correct in concluding that

the only federally-grounded remedies available to these

plaintiffs are as set out in 33 U.S.C. § 1365. That statute,

in turn, provides not for monetary damages,’ but for (1)

enforcement of effluent standards and limitations and (11)

civil penalties. It cannot seriously be questioned that the

latter remedy, although permissible ancillary to a citizen

suit, refers to penalties which, if levied, are to be payable

to the government. This is apparent both from the lan-

euage and context of the Act, see 33 U.S.C. § 1319(d), and

from the legislative history. E.g., H.R. Rep. 92-911, 92d

Cong., 2d Sess. 133 (1972). So, unless the magistrate erred

in his view of the enforcement aspect of plaintiff’s federal

statement of claim, the Report should be accepted as

authored.

This court, see text ante at 2-3, agrees with the magis-

trate’s conclusion, Report at 5, that FWPCA’s citizen

suit provision only reaches ongoing—not past—violations

of effluent discharge standards. Yet, on a motion to dis-

miss, the burden is on the movant to establish that the

plaintiffs can prove no set of facts which would entitle

them to maintain their theory of relief. Harper v. Cserr,

544 F.2d 1121 (1st Cir. 1976). The plaintiffs’ version of

the facts, as pleaded, must be taken as gospel. Seveney

v. United States Dept. of the Navy, 550 F.Supp. 653 (D.R.I.

1982). And, although the plaintiffs’ allegations are incon-

3insofar as the plaintiffs’ claim of entitlement to money

damages in a private action under the FWPCA rests on legisla-

tive history, e.g., Memorandum at 3, it is unpersuasive. !n point

of fact, the Supreme Court has found that the legislative history

of FWPCA points in a very different direction from that shown

by the plaintiffs’ compass. Sea Clammers, 453 U.S. at 17.

ee

App. 16

sistent and confusing at best, they do allege (Complaint,

| 12) that ‘‘the defendant ... 7s discharging effluents into |

the Pawtuxet River.’’ (Emphasis added). This assevera- .

tion has not been abandoned; the plaintiffs argue here,

Memorandum at 3, that the violations are ongoing. While -

the court may, given an overview of the facts, be skeptical )

(as was the magistrate, Report at 5) as to whether a con- |

tinuing discharge violation can be proven, the plaintiffs )

should not be cut off at this particular pass without a fair |

opportunity to document their claim. Similarly, the prac- |

tical aspects of the situation elucidated by the magistrate |

(Report, n.1 and n.2), while potent evidence as to the

facts, cannot control for Fed. R. Civ. P. 12(b)(6) pur-

poses. As this court has lately observed in an analogous

context: ‘‘After all, doubt, no matter how wellfounded

or how deeply rooted, does not, in the absence of omni-

science, rise to the level of certainty.’’ Linder v. Berge,

577 F.Supp. 279, 282 (D.R.I. 1983). The magistrate was

technically correct in pointing out that the complaint, as

framed, lacks a precise averment that the ‘‘defendant

is presently in violation of any effluent standard or limi-

tation.’’ Report at 5. But, this omission could well have

been inadvertent if one credits the language of paragraph

12 of the complaint.

The complaint, in respect to the federa! statement of

claim, likewise fails to allege compliance with the statutory

notice provisions, 33 U.S.C. § 1365(b)(1). This, too, is a

fatal flaw, Biederman v. Scharbath, 483 F.Supp. 809 (E.D.

Wis. 1980), but one which the plaintiffs say can be recti-

App. 17

fied.4 The interests of justice require, in these cireum-

stances, that some leeway be given in permitting amend-

ments.

Because of the inconsistencies and imprecisions which

plague the federal statement of claim as it now stands,

the defendant’s motion is well taken. This statement of

claim must be repleaded, consonant with the teachings

hereof and devoid of the thrust for compensatory and-or

punitive damages under any federaily-grounded theory.

It is assumed, of course, that any repleading of the federal

statement of claim will, if facts are pleaded sufficient to

make out a FWPCA claim, comply fully with the mandate

of Fed. R. Civ. P. 11.

The motion to dismiss is granted; without prejudice

to the plaintiffs’ right to file, within 20 days from the

date hereof, an amended complaint (i) for FWPCA en-

forcement of ongoing effluent standard violations (and

civil penalties ancillary thereto, payable to the United

States) and (ii) for state law claims in conformity with

the Report.

So ordered.

/s/ Bruce M. Selya

BRUCE M. SELYA

United States District Judge

May 17, 1984

‘The magistrate appropriately noted that the injunctive relief

sought by the plaintiffs oversteps the bounds of FWPCA. Report

at 6. In and of itself, this would not, however, appear to be

grounds for dismissal (although good practice would favor tailor-

ing the remedy sought to that available by law or in equity).

The courts have become hardened to the ways of pleaders

who pray for the sun, the moon and all the stars, knowing full

well that they are at most entitled to one of the lesser con-

stellations.

App. 18

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

PAWTUXET COVE MARINA, INC., et al

v. C.A. 83-0740(S)

CIBA-GEIGY CORPORATION

MEMORANDUM AND ORDER

BRUCE M. SELYA, District Judge.

Plaintiffs have moved to strike the defendant’s no-

tice of appeal from a magistrate’s recommendation (Re-

port) suggesting that plaintiffs’ claim for civil FWPCA

penalties, 33 U.S.C. § 1365, be reinstated.' (The claim was

previously dismissed by this court in a Memorandum and

Order dated May 17, 1984, 21 E.R.C. 1393, hereinafter

‘*Pawtuzxet I’’).

The docket reflects that the Report, though dated May

7, 1985, was not filed by Magistrate Hagopian until May

9. The appeal clock arguably began to tick at that june-

ture. The objector, however, had 10 days within which to

file, but the 10 days in reality began to run only after the

defendant was served with a copy of the Report. See Fed.

R. Civ. P. 72(b). Since mail was employed, receipt couid

1The plaintiffs have taken no cross appeal from the con-

comitant recommendation, Report at 3-4, that Ciba-Geigy’s al-

leged past (noncontinuing) violations of FWPCA effluent dis-

charge standards do not give rise to any suit for injunctive re-

lief under FWPCA.

App. 19

have occurred no earlier than May 10. The 10-day period

would, therefore, have expired on May 20 at the soonest.”

All of that, however, overlooks Fed. R. Civ. P. 6(e),

which intones:

(e) Additional Time After Service by Mail.

Whenever a party has the right or is required to do

some proceedings within a prescribed period after the

service of a notice or other paper upon him and the

notice or paper is served upon him by mail, 3 days

shall be added to the prescribed period.

Since service was effected by mail in this instance, and

since the notice of appeal was filed on May 22 (which, by

last reckoning, was within 3 days next following May 20),

the motion to strike is without foundation. The court,

therefore, need not comment on the additional fact that, at

a May 14 chambers conference in this matter, opposing

counsel (and the court) acquiesced in the suggestion that

the protest of the Report would be filed within 10 days

thereafter.

Accordingly, the court turns to the merits of the ap-

peal. In so doing, the court again observes that, inasmuch

as the motion for reconsideration can be seen as a ‘‘non-

dispositive’? motion, Fed. R. Civ. P. 72(a), it is at least

2It is possible that, despite the magistrate’s entry of a rec-

ommendation instead of an order, the applicable standard

should be that for nondispositive motions. Fed. R. Civ. P. 72(a).

The period for filing would, if that were the case, be “10 days

after the entry of the order’. /d. Inasmuch as the order was

entered on May 9, counting in such fashion brings one to May

19. But, the 1-day difference is immaterial; May 19 was a Sunday,

so the period self-extended “until the end of the next day”.

Fed. R. Civ. P. 6(a). Thus, viewed from either perspective,

May 20 was the appointed day.

App. 20

conceivable that the defendant, disenchanted with the

magistrate’s view that the claim for civil penalties should

be reinstated, might better have proceeded via an objection

rather than an appeal. Compare id. with Fed. R. Civ. P.

72(b). The distinction could, of course, make a dif-

ference, as Rule 72(a) superimposes a ‘‘clearly errone-

ous’’ standard of review which is not applicable in the

milder climes where Rule 72(b) holds sway.’ The magis-

trate, however, has characterized the Report as a ‘‘recom-

mendation’’ only, e.g., Report at 1, 3, and has alluded spe-

cifically to 28 U.S.C. § 636(b)(1)(B) (the statutory font of

Rule 72(b)). Under such circumstances, the court should

defer to the author’s characterization of his own work

product, see Advance Financial Corp. v. Isla Rica Sales,

Inc., 747 F. 2d 21, 26 & n. 10 (1984), and treat the de-

fendant’s supplication as a Rule 72(b) appeal.

The merits of the appeal need not long detain this

court. It was plainly foreease in Paxturet I that § 1365

‘fonly reaches ongoing—not post—violations of effluent

discharge standards’’. Though the magistrate has now

suggested to the contrary vis-a-vis civil penalties, he did

not have before him the very recent decision of the Fifth

Cireuit in Hamker v. Diamond Shamrock Chemical Co.,

756 F. 2d 392 (5th Cir. 1985). Hamker flatly held that

FWPCA ‘‘does not authorize citizen suits seeking . . . im-

position of civil penalties where the defendant is not al-

3The difference is, in this case, more apparent than real. No

matter which standard of review applied, this court’s decision

would in this instance be unaffected. See text post. In any event,

the denomination of the document is not controlling, so long

as it is timely filed and clearly apprises the court of the oppon-

ent’s position. See Cockayne v. Heckler, C.A. No. 84-0096-S,

slip op. at 1 n. 1 (D.R.1. May 23, 1985).

—EEE

App. 21

leged to be in [present] violation of an effluent standard,

limitation, or order’’. Id. at 396. Consequently, civil penal-

ties are appropriate ‘‘only as prospective relief’’. Id.

at 398.

Hamker is good law; and, it is on all fours with this

ease (in which the plaintiffs do not allege any ongoing

violation). If the magistrate had been afforded the bene-

fit of Hamker, the court does not doubt that his ultimate

recommendation would have tracked its teachings. In any

event, Hamker controls the instant appeal and completely

undermines the plaintiff’s motion.

The motion to strike is denied.

The defendant’s appeal is sustained. The Report is ac-

cepted and approved only insofar as it suggests that the

court eschew reconsideration of the claim for injunctive

redress. See n. 1 ante. The recommendation favoring rein-

statement of the plaintiffs’ claim for civil penalties is re-

jected. The motion for reconsideration is, therefore, de-

nied in its totality.

So ordered.

ENTER:

/s/ BRUCE M. SELYA

UNITED STATES DISTRICT JUDGE

JUNE 7, 1985

App. 22

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Pawtuxet Cove Marina, Inc., et al.,

Plaintiffs,

v. C.A. No. 83-740-S

Ciba-Geigy Corporation,

Defendant.

MEMORANDUM DECISION

BRUCE M. SELYA, United States District Judge.

Beverly and Russell Hunt, former owners of the Paw-

tuxet Cove Marina, together with their captive corpora-

tion, Pawtuxet Cove Marine, Inc. (PCMI), filed tiis suit

against the Ciba-Geigy Corporation (C/G), claiming that

the chemical manufacturing company’s discharge of ef-

fluents into the Pawtuxet River had damaged their proper-

ty. The plaintiffs originally filed a claim pursuant to the

citizen-suit provision of the Federal Water Pollution Con-

trol Act, (FWPCA), 33 U.S.C 4 1365(a), alleging that

C/G had violated permits issued under Section 1344 of

that Aci. In addition to their federal claims, the plaintiffs

included several state common law counts sounding in

negligence, nuisance, strict liability and trespass. This

court has independent jurisdiction over the state law claims

under 28 U.S.C. § 1332, inasmuch as the parties are of di-

verse citizenship and (so the plaintiffs allege) the requisite

amount is in controversy.

In February 1984, the defendant moved to dismiss

under Fed. R. Civ. P. 12(b)(6), focussing upon the plain-

tiffs’ perceived failure to state a claim under the FWPCA.

The key issue at that point was whether the FWPCA pro-

a

a

App. 23

vided a right of action for past violations of effluent stan-

dards. On April 30, 1984, the magistrate concluded that

it did not, and recommended that the FWPCA claim be dis-

missed. The plaintiffs objected. This court affirmed the

magistrate’s recommendation, but allowed the plaintiffs

leave to amend if ongoing effluent standard violations

were in evidence. The amended complaint did not cure the

malaise; the magistrate again recommended dismissal of

th FWPCA count; and, on September 10, 1984, this court

adopted the recommendation. The plaintiffs, nothing

daunted, moved on January 24, 1985 for reconsideration.

The magistrate, facing the question for the third time,

gave them half a loaf. But, on June 7, 1985, this court

finally doused whatever embers of the FWPCA claim re-

mained.

The federa! statutory claim has thus been disposed

of, thrice and for all. But see plaintiffs’ newest motion to

amend, discussed infra at 11. After discovery closed, C/G

moved for summary judgment on the state law claims.

Fed. R. Civ. P. 56. The motion was referred to the magis-

trate for consideration pursuant to 29 U.S.C. § 636(b)(1)

(B): he issued his report (Report) on July 24, 1985,

recommending that the motion be granted in part and de-

nied in part. Inasmuch as both parties objected to those

portions of the magistrate’s report which were adverse to

them, the Report has been challenged in its entirety. Those

cross-objections are now before this court.

4

The copious filings before the court indicate plainly

the basic factual scenario. Mr. and Mrs. Hunt own a resi-

dence which fronts on Pawtuxet Cove in Cranston, Rhode

App. 24

Island. PCMI, a Rhode Island corporation formed in 1979

and dissolved in December 1984, previously owned a marina

business and real property on Paxtuxet Cove. Russell

Hunt owned a 30% equity interest in the corporation and

a majority of the voting shares. In 1982, he acquired the

Edgewood Marina, and rented its facilities to PCMI. The

plaintiffs asserverate that C/G, which operated a chemi-

cal manufacturing plant situated upstream from the Cove,

discharged effluents into the Pawtuxet River and dam-

aged the plaintiffs’ properties.

II.

Even in its latest incarnation, the complaint is no

model of precision or clarity. It asserts, at most, only

the bare essentials of the state law claims. To a large ex-

tent, the contours of the plaintiffs’ case have been fleshed

out in discovery, augmented by the briefs and arguments

of counsel. Wher the defendant sought summary judg-

ment, the plaintiffs’ remaining contentions appeared to be

as follows:

1) That the defendant’s act of pollution frightened

residents and local government bodies so that the Cove

could not be dredged, causing the plaintiffs’ business to

suffer.

2) That the defendant’s emissions trespassed on

the plaintiffs’ preperty.

3) That the defendant’s discharge of toxic chemicals

constituted a nuisance.

4) That the defendant engaged in ultra hazardous

activity, rendering it strictly liable to the plaintiffs.

—

App. 25

5) That the defendant’s violation of its National

Pollutant Discharge Elimination System (NPDES) permit

evidenced negligence on its part.

The magistrate recommended that the defendant’s mo-

tion for summary judgment be granted as to the first is-

sue, but suggested denial of the motion as to the four

remaining initiatives. Because the motion was referred

to the magistrate pursuant to 28 U.S.C. § 636(b)(1)(B),

this court is required to review the matter de novo, and is

empowered to accept, reject, or modify, in whole or in part,

the recommendations of the magistrate.

The summary judgment standard, which applies to the

instant motion, is well elucidated in the Report, e.g.. Re-

port at 2-3, and it would be pleonastie to repeat it anew.

ITT.

A. The gravamen of the plaintiffs’ main claim (harm

caused by interference with putative dredging) is that

C/G was careless in discharging pollutants into the Cove,

thus adversely affecting public opinion. In consequence of

this negative ambience, the plaintiffs’ thesis runs, public

pressure mounted on the local political bodies, which there-

by prevented the dredging of the Cove. And, the lack of

dredging injured the plaintiffs’ business economically. As

the First Cireuit has indicated, however, ‘‘controlling case

law denies that a plaintiff can recover damages for negli-

gently caused financial harm, even when foreseeable, ex-

cept in special cireumstances.’’ Barber Lines A/S v. M/V

Donau Maru, 764 F.2d 50, 51 (1st Cir. 1985). The lack of

dredging does not meet the criterion of the special cir-

cumstances outlined by that court: ‘‘There is present here

neither the most common such special circumstance—

App. 26

physical injury to the plaintiffs or to their property—nor

any other special feature that would permit recovery.’ Id.

Furthermore, it is not at all clear that the defendant’s

conduct-—even if negligent—caused the plaintiffs’ injur-

ies. See generally Salk v. Alpine Ski Shop, Inc., 115 R.1I.

309, 342 A.2d 622 (1975). Though the defendant has

served up a potpourri of materials demonstrating that the

dredging of the Cove has long been hampered by a variety

of political and regulatory obstacles, the plaintiffs have

offered nothing but the merest of vellieties: they eschew

any present tender of proof, but mouth empty assurances

that they will (somehow) prove the ‘‘but for’’ connection

at a trial. Such generalized assurances are manifestly in-

sufficient to blunt the blade of a properly-honed Rule 56

axe. See, e.g., Thyssen Plastik Anger KG v. Induplas, Inc.,

576 F.2d 400 (1st Cir. 1978).

The voluminous record in this case is entirely barren

of any evidence (or even the hint of any evidence) from

which a rational factfinder could deduce that pollution

emanating from C/G’s factory proximately caused Paw-

tuxet Cove to remain undredged. Or, put another way, the

plaintiffs have failed to offer a fact-based predicate, suf-

ficient, even when examined in the light most favorable to

the plaintiffs, to support the conclusion that the Cove

would have been dredged but for C/G’s shortcomings. In

the absence of any genuine issue of material fact on the

issue, the defendant is plainly entitled to brevis disposi-

tion as a matter of law. The magistrate’s recommenda-

tion is accepted in this respect. Summary judgment on

the issue shall enter in the defendant’s favor.

B. The questions raised anent the remaining counts

are much more problematic. The trespass issue is illus-

eee

App. 27

trative. As the magistrate correctly noted, the only land

in which the plaintiffs have a possessory interest for the

purpose of finding a trespass here would be that above the

mean high-tide level. See State v. Ibbison, 448 A.2d 728

(R.I. 1982). The plaintiffs state that the defendant’s dis-

charge of chemicals did trespass on their land above the

mean high-tide level by sending microscopic substances on-

to it. Though the caselaw elsewhere seems to be in some

disarray, it cannot be gainsaid that the question of whether

the entry of microscopic substances onto the land of an-

other can constitute an actionable trespass has not yet been

decided in Rhode Island.

The same sort of uncertainty pervades the strict lia-

bility count. Rejected in a real property context by the

state supreme court a half-century ago, see Rose v. Socony-

Vacuum Corp., 54 R.I. 411, 173 A.627 (1934), the issue has

recently been left entirely open. See Wood v. Picillo, 443

A.2d 1244 (R.I. 1982). And, the private nuisance inquiry!

is necessarily fact-intensive; the ‘‘unreasonableness’’ of

the resultant injury, inter alia, must be assayed. Braun v.

Tannotti, 54 R.I. 469, 175 A. 656 (1934).

It appears likely that certification of some or all of

the state law issues to the state supreme court may be de-

sirable. If this is so, however, such certification would

be most facilely accomplished on a full-blown trial record.

And, judicial resources would ultimately be conserved

‘According to the Rhode Island Supreme Court, private

nuisance is an “interference with the use and enjoyment of land”,

which “includes a material interference with the ordinary physi-

cal comfort or the reasonable use of one’s property.” Wood,

supra.

App. 28

thereby, for a trial would put the plaintiffs to their met-

tle: if, viewing all the evidence and the reasonable in-

ferences therefrom in the light most flattering to the

claimants and adopting the views of unsettled points of

state law most hospitable to their cause, no case sufficient

to reach the jury is presented, then this court will be

spared the chore of vaticinating state law, and the certifi-

cation engine need not be ignited.

This court, in confronting analogous situations, has

not balked at spurning ‘‘hasty and reflexive conclusions’’

where the fact/law environment is ‘‘tenebrous’’. Lawton

v. Abbott Laboratories, C. A. No. 80-0556-S, slip op. at 5

(D.R.I. Feb. 4, 1985). The precepts enunciated in Lawton,

slip op. at 3-4, have substantial cogency in respect to the

case at bar:

It is settled beyond peradventure that summary judg-

ment should be used sparingly in cases involving com-

plicated issues of fact and law. Kennedy v. Silas

Mason Co., 334 U.S. 249, 256-57 (1948): Anthony

Grace & Sons. Inc. v. United States, 170 Ct. Cl. 688,

345 F.2d 808, 810 (1965), rev’d on other grounds, 384

U.S. 424 (1966). See generally 6 Moore, Federal Pro-

cedure, §56.15[6], at 2158-59 (2d ed. 1953). And,

where the legal issues are of great significance, or

particularly complex, or where the issues are such

that logic dictates that they be resolved on a plenary

factual record, disposition in advance of trial is often

contraindicated. Anthony Grace & Sons, Inc. 345 F.2d

at 810; Pacific American Fisheries, Inc. v. Mullaney,

191 F.2d 137, 141 (9th Cir. 1951). Evolutionary

changes in the governing law, currently in progress,

counsel especial hesitation. Cf. Bento v. I.T.0. Corp.

of Rhode Island, C. A. No. 83-100-S, slip op. (D.R.I.

Nov. 11, 1983) (Memorandum and Order Denying Mo-

tion to Dismiss). ‘‘The principles governing summary

a ae

App. 29

judgment procedure should be applied in a common

sense manner to the realities of the litigation at

hand.’’ Williams v. Howard Johnson’s Inc. of Wash-

ington, 323 F.2d 102, 105 (4th Cir. 1963). As the

Kighth Cireuit has lately observed:

‘‘[A] district court in passing on a Rule 56 mo-

tion performs what amounts to what may be called

a negative discretionary function. The court has

no discretion to grant a motion for summary

judgment, but even if the court is convinced that

the moving party is entitled to such a judgment

the exercise of sound judicial discretion may dic-

tate that the motion should be denied, and the

ease fully developed.”’

McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1978)

(emphasis original). See also National Screen Ser-

vice Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651

(5th Cir. 1962). See generally 10 C. Wright & A. Mil-

ler, Federal Practice & Procedure, § 2728, at 552 et seq.

As was true in Lawton, slip op. at 3, ‘‘this is neither

the typical issue nor the typical case.’’ Whatever deci-

sion eventuates on the thorny state law questions which

are raised can, from aught that appears at this juncture,

best be made on a fully-developed factual record. Accord-

ingly, the court will exercise the ‘‘negative’’ discretion of

which McLain, 612 F.2d at 356, speaks, and will at this

time withhold brevis disposition of the remaining issues

postulated by C/G’s Rule 56 motion. Cf. Cortes Quinones

v. Neitleship, No. 84-2014, slip op. at 12 (1st Cir. Sept. 13,

1985) (per curiam) (summary judgment inappropriate

where ‘‘plaintiffs have raised sufficient unanswered ques-

tions to require [the] case to go forward with more com-

plete development of the facts’’); Harnhardt v. Puerto

Rico, 691 F.2d 69, 73 n.1 (1st Cir. 1982) (emphasizing im-

App. 30

portance of exhuming facts when issues are novel, un-

settled, and/or rooted in a changing area of the law).

C. For the reasons stated herein, the magistrate’s

Report is accepted and approved. The various objections

thereto are overruled. Partial summary judgment is

granted in the defendant’s favor as to the lack-of-dredging

issue. Summary redress is denied as to the remaining

prongs of the Rule 56 motion, in each instance without pre-

judice to the renewal, when appropriate, of C/G’s sundry

theories.

IV.

The plaintiffs, during the currency of these proceed-

ings, have filed three neoteriec motions. None of them war-

rant extended comment. All pivot off an oil spill which

supposedly occurred on March 7, 1984. The plaintiffs’

motion for leave to conduct additional discovery anent

same is well out of time: the spill was disclosed by C/G

to the plaintiffs on March 4, 1985; discovery closure un-

der the February 1984 pretrial order has occurred; no

good cause has been shown for the delay in deciding to

embark upon discovery; and, the isolated (rather minor)

incident is, at best, tenuously related to the merits sub

judice. Further discovery in this wise would paint the

lily; it would be unduly burdensome and unnecessary.

The motion is DENIED.

The plaintiffs’ motion for partial summary judgment

can best be described as captious. That motion is totally

devoid of any trappings indicative of the absence of gen-

uine issues of material fact and/or that the plaintiffs, on

any one or more issues in the case, are entitled to judgment

as a matter of law. A partial summary judgment such as

ss oa te iepimans

App. 31

the plaintiffs seek would be wholly inappropriate? That

motion, too, is DENIED.

The plaintiffs’ motion to file a further amended com-

plaint is a closer call. Amendments are liberally to be

granted, where the interests of justice require. Yet, this

particular motion comes late in the day; it is predicated

upon the ‘‘oil spill’’ information, see supra, long known to

the movants; and it confuses casual spill incidents with

ongoing effluent standard violations. These have much

different legal ramifications. Compare 33 U.S.C. § 13821

with id., § 1365(f). Moreover, the Rule 15 motion repre-

sents the fourth attempt by the plaintiffs to inject the

(phantom) ongoing violation issue into the case. The line

must be drawn somewhere. In a comparable context, this

court previously observed:

It is said that hope springs eternal; but litigation

premised on hope alone need not last eternally.

Gleason v. Merchants Mutual Ins. Co., 589 F. Supp. 1474,

1479 (D.R.I. 1984).

As the proposed amendment comes too late and clearly

bears the hallmark of yet another exercise in abject futil-

ity, the motion to amend is likewise DENIED.

2Even if, as the plaintiffs argue, C/G has not timely objected

to this motion, it cannot be granted unless their ‘moving pa-

pers were sufficient to entitle them to summary judgment.”

Cortes Quinones, slip op. at 2. And, their moving papers were

hopelessly inadequate to pass this test.

App. 32

¥.

Counsel for the defendant shall prepare and present

for entry a suitable form of order consonant with the

foregoing.

Enter:

/s/ BRUCE M. SELYA

United States District Judge

September 19, 1985

App. 33

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

PAWTUXET COVE MARINA, INC., e¢ al.,

Plaintiffs,

Vv. Civil Action No. 83-0740

CIBA-GEIGY CORPORATION, Judge Selya

Defendant.

ORDER

This Court having considered the Motion of Defendant

CIBA-GEIGY Corporation For Summary Judgment and

the various supporting and opposing memoranda relating

thereto, and in acesrdance with this Court’s Memorandum

Decision of September 19, 1985, it is hereby ordered that:

1. Defendant’s Motion for summary judgment is

GRANTED with respect to claims of any nature based on

failure to dredge Pawtuxet Cove.

2. Defendant’s Motion for summary judgment is

DENIED, without prejudice to the renewal when appro-

priate of the underlying arguments, with respect to:

a) the claim based on the allegation that de-

fendant’s discharge on microscopic substances on to

plaintiffs’ property above the mean high-tide level

constituted trespass;

b) the claim based upon the allegation that de-

fendant’s discharge of chemical process wastewater

constituted a nuisance;

ec) the claim based upon the allegation that de-

fendant engaged in ultrahazardous activities; and

1 App. 34

d) the claim for physical injury to plaintiffs or

their property based upon the allegation that any vio-

lation by defendant of its National Pollutant Dis-

charge Elimination System permit evidences negli-

gence on its part.

In addition, after due consideration of the following

motions and of the various supporting and opposing

memoranda relating thereto, it is also hereby ordered that:

1. Plaintiffs’ Motion For Leave to Conduct Further

Discovery is DENIED.

2. Plaintiffs’ Motion for Partial Summary Judgment

is DENIED.

3. Plaintiffs’ Motion to Amend The Complaint is

DENIED.

ENTERED:

/s/ Lorraine Kizior

BY ORDER:

/s/ Bruce M. Selya

United States District Judge

Dated: Oetober 4, 1985

CERTIFICATE

I hereby certify that on this — day of —————, 1985,

I have sent a copy of the within Order by United States

first class mail, postage prepaid to:

Jeffrey A. Lanphear, Esq.

2139 Broad Street

Cranston, Rhode Island 02905

September —, 1985

App. 35

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

PAWTUXET COVE MARINA, INC.,

et al

VS. C. A. NO. 83-0740-S

CIBA-GEIGY CORPORATION

ORDER

This matter came before the court on plaintiffs’ oral

motion to amend their complaint in the course of trial and

to dismiss their trespass action, and after consideration

and for the reasons stated ore tenus, it is hereby

ORDERED

1. The motion to amend the complaint to add para-

graphs 33A, 46A, and 51A which identically state:

The plaintiffs allege that these acts led to the

frustration of any meaningful or timely attempt to

dredge Pawtuxet Cove, and that this lack of dredg-

ing, in turn, was the sole, direct and proximate cause

of each and all of the losses, damages, injuries and

harm of which the plaintiffs’ complain in this action.

is granted. The amended complaint shall be filed within

three days.

2. The motion to dismiss the trespass claim is granted

and said dismissal is with prejudice.

3. The defendant is granted summary judgment on

all remaining claims in the amended complaint.

4. The clerk shall enter judgment for defendant on

all claims including those disposed of by this and previous

orders of the court.

App. 36

ENTERED as an order of this court this — day of

February, 1986.

BY ORDER:

ENTER:

CERTIFICATION

TO: Jeffrey A. Lanphear, Esq.

2139 Broad Street

Cranston, RI 02905

I hereby certify that I mailed a true copy of the with-

in order to the attorney of record, as set forth above, on

the 4th day of February, 1986.

/s/ Donna M. Hweige

App. 37

JUDGMENT IN A CIVIL CASE

UNITED STATES DISTRICT COURT

DISTRICT RHODE ISLAND

CASE TITLE

PAWTUXET COVE MARINA, INC.

v.

CIBA-GEIGY CORPORATION

DOCKET NUMBER 83-0749-S

NAME OF JUDGE OR MAGISTRATE

BRUCE M. SELYA

[ ] Jury Verdict. This action came before the Court

and a jury with the judicial officer named above

presiding. The issues have been tried and the jury

has rendered its verdict.

[X] Decision by Court. This action came to trial or hear-

ing before the Court with the judge (magistrate)

named above presiding. The issues have been tried

or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

Judgment entered for the defendant.

/s/ Carmella Accioli

Deputy Clerk

Date Feb. 5, 1986

App. 38

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 86-1227.

PAWTUXET COVE MARINA, INC., ET AL.,

Plaintiffs, Appellants,

V.

CIBA-GEIGY CORPORATION,

Defendant, Appellee.

JUDGMENT

Entered: December 18, 1986

This cause came on to be heard on appeal from the

United States District Court for the District of Rhode

Island, and was argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The judgment of the

District Court is affirmed.

By the Court:

/s/Francis F. Seigllano,

fec: Messrs. Lanphear, Clerk.

Thornton and Ms. Edge- /s/ By Richard W. Gordon

combe and Ms. Rhyne] Chief Deputy Clerk

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