Respondents Brief — Tull v. United States

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Supreme Court, U.S,

FILED

No. 85-1259 OCT 8 1986

JOSEPH F. SPANIOL, JR.

Iu the Supreme Court of the United State“

OCTOBER TERM, 1986

EDWARD LUNN TULL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

CHARLES FRIED

Solicitor General

F. HENRY HABIcHutT II

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

CHARLES A. ROTHFELD

Assistant to the Solicitor General

ANNE 8S. ALMY

CLAIRE L. MCGUIRE

LEONARD H. SHEN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

FRANCIS S. BLAKE

General Counsel

Environmental Protection

Agency

Washington, D.C. 20460

QUESTION PRESENTED

Whether the Seventh Amendment guarantees a

right to a jury trial in an action brought by the

United States under the Clean Water Act, 33 U.S.C.

1251 et seg., seeking injunctive relief, restoration of

filled wetlands, and civil penalties.

(1)

TABLE OF CONTENTS

Page

Opinions below -2........2......-02-2eceee-eeenenneeeeeeeneeee- . l

Te ]

Constitutional and statutory provisions involved 2

RNR TT - 3

Summary of argument 10

Argument:

The Seventh Amendment does not confer a right

to a jury trial in enforcement actions under the

Clean Water Act ..... 15

A. The cause of action created by the Clean Wa-

ter Act is equitable in nature 18

B. The remedy created by the Clean Water Act

is equitable 24

C. A jury trial is not required even if the civil

penalty component of a Clean Water Act

judgment is thought to be legal in nature 36

Conclusion ................--.------ Sinessechibomsthbaamamannna inamnniai 43

TABLE OF AUTHORITIES

Cases:

Adley v. The Whitstable Co., 17 Ves. Jun. Supp.

I ssiiieiitlaceiasidaiaiiinianannieist setniesnaenninainies imaweese 23

lircrane, Inc. Vv. Butterfield, 369 F. Supp. 598 30

Albemarle Paper Co. v. Moody, 422 U.S. 405....29, 30, 32

Arber v. Essex Wire Corp., 490 F.2d 414, cert.

denied, 419 U.S. 830 32

Arizona Copper Co. V. Gillespie, 230 U.S. 46 23

Atlas Roofing Co. v. Occupational Safety & Health

Review Comm’n, 430 U.S. 442 15, 16, 18, 35, 36

Attorney General v. Hunter, 1 Dev. Eq. (N.C.)

12, 1 Ames Eq. Jur. 621 21, 23

Attorney General v. Johnson, 2 Wils. Ch. 87 22-23

(111)

Cases—Continued : Page

Attorney General v. Parmeter, 10 Price 378, aff'd,

SOD ae 22

Attorney General vy. Philpott, 8 Ch. 1 eal 23

Attorney General vy. Richards, 2 Anst. 603, 1

Ames Eq. Jur. 615 .......... OE en Ie 20, 21, 22, 23

Attorney General v. Tudor lee C. o., 104 Mass. 239.. 23

Avoyelles Sportsmen’s League, Ine. v. Marsh, 715

P.24 S07 .......... ai a a 6

Baines v. Baker, 3 Atk. 750, 1 Amb. 158 el 20

Baltimore & Carolina Line, Inc. v. Redman, 295

| BERR rem SAE RS Se Ro me NA 15

Beacon Theatres, pa Vv. Westeuar. 359 U.S. 500 “14, 38

39, 40, 41, 42

Board of Health v. Vink, 184 Mich. 688 ...... 23

Bond’s Case, Moore 238 20

Brown Vv. Swann, 35 U.S. (10 Pet.) 497 37

Bullen vy. Michel, 2 Price 399 ' 23

Bush v. Western, Prec. Ch. 530, 1 Ames Eq. Jur

PEE wets een eetT ere ne mC OE nem 21

Calcraft v. Gibbs, 5 Term. Rep. 19, in subsequent

proceedings from 4 Term Rep. 681 ..................... 34

California v. Sierra Club, 451 U.S. 287 18

Capital Traction Co. v. Hof, 174 U.S. 1 16, 23

Chaffee v. United States, 85 U.S. (18 Wall.) 516 35

Chesapeake Bay Foundation v. Gwaltney of Sm ith-

field, Ltd., 611 F. Supp. 1542, aff'd, 791 F.2d

304, petition for cert. pending, No. 86-473....27, 28, 30

Curtis Vv. Loether, 415 U.S. 189 15, 16, 17, 29,

32, 33, 34, 36

Dairy Queen, Inc. v. Wood, 369 U.S. 469 15, 34, 38,

39, 40, 41

Dawson Vv. Holcomb, 1 Ohio 135 wanes 33

Debs, In re, 158 U.S. 564 23

Dimick v. Schiedt, 293 U.S. 474 16

FAA v. Landy, 705 F.2d 624 30

Georgetown V. Alexandria Canal Co., 37 U.S. (12

I TO crinieis--ccsciieaniiieiitepntiiniuiias sesemenmmnastgnunensrawene 23

Georgia Vv. Tennessee Copper Co., 237 U.S. 474 23

Greenleaf Johnson Lumber Co. V. Garrison, 237

CeEBe TID ccccsesecescnssssscsmmmencemcessneseosssncs nstividitinantaiatilibantas 4

Cases—Continued : Page

Hepner v. United States, 213 S. 103 34, 35

Jacob Vv. United States, 13 F. Cas. 267 34

Jacob Hall’s Case, 1 Ventris 169, 1 Mod. 76 20

Katchen v. Landy, 382 U.S. 323 14, 15, 33, 36, 40, 42

Lees v. United States, 150 U.S. 476 35

Liberty Oil Co. v. Condon National Bank, 260

I ce ee pe 39

Lorillard v. Pons, 434 U.S. 575 .... | 27

Mayor of London y. Bolt, 5 Ves. 129 20

Middlesex County Sewerage . uthority v. National

Sea Clammers Ass’n, 453 U.S. 1 20, 25

Missouri v. Illinois & py th District, 180 U.S.

TALES Selene ae aR Ce senate a 37

Mitchell v. DeMario Je welry , 0., 361 U.S. 28 37, 40

Mugler v. Kansas, 123 U.S 23 11, 20, — 23, 24, 37

O’Connor v. Cook, 6 Ves. ton 665, aff’d, 8 Ves.

Jun. 536 " ST FT eR ene 23

Parklane Hosiery Co." V. Shove. 439 U.S. 399 15 16. 10, 42

Parsons V. Bedford, 28 U.S. (3 Pet.) 433 .. 15, 23

Payne Vv. Hook, 74 U.S. (7 Wall.) 425 23

Pernell v. Southall R-alty, 416 U.S. 363........10, 15, 16, 33

Pierce Vv. Vision Investments, Inc., 779 F.2d 302 32

Porter v. Warner Holding Co., 328 U.S. 395.13, 14, 32,

36, 37

Robinson v. Byron (Lord), 1 Bro. C.C. 588, 1 Ames

Eq. Jur. 566 ................ eae a arn 2]

Rodgers v. Waters, 2 Ala. 644 33

Ross Vv. Bernhard, 396 U.S. 531 15, 16, 39

Scott v. Neely, 140 U.S. 106 40

SEC v. Commonwealth Chemical Securities, Inc..

i coal 32

Setser v. Novack Inv. Co., 638 F.2d 1137, modified,

| 657 F.2d 962, cert. denied, 454 U.S. 1064 17, 32

Sherman vy. Upton, Inc., 242 N.W.2d 666 33

Simler v. Conner, 372 U.S. 221 15

Stansbury v. Patent Cloth Manufacturing Co., 5

IE I ek eee eee) f 33

State ex rel. Brown Vv. Dayton Malleable, Inc., 1

Ohio St.3d 151, 438 N.E.2d 120 30

Stockwell vy. United States, 80 U.S. (13 Wall.)

STL astiesdiuadabadiepuabeitaadiedilacbenthta asi ela a 34

Cases—Continued : Page

Stoddard v. Western Carolina Regional Sewer Au-

thority, 784 F.2d 1200 29

Student Public Interest Research Group V. AT&T

Bell Laboratories, 617 F. Supp. 1190 27, 28, 30

The King v. Betterton, 5 Mod. 142 20

Thomas v. Union Carbide Agricultural Products

Co., No. 84-497 (July 1, 1985) 18

Troy v. City of Hampton, 756 F.2d 1000, cert.

denied, No. 84-1898 (Oct. 7, 1985) 29

United States v. Akers, 785 F.2d 814, cert. denied,

No. 85-2130 (Oct. 6, 1986) 27

United States v. Allen, 24 F. Cas. 772 34

United States v. Ancorp National Services, Inc.,

516 F.2d 198 30

United States v. Bougher, 24 F. Cas. 1205 34

United States v. Duffy, 550 F.2d 533 _....................... 30

United States v. Georgeoff, 22 Env’'t Rep. Cas.

(BNA) 1601 32

United States v. ITT Continental Baking Co., 420

U.S. 223 Nerceeteo 30

United States v. J.B. Williams Co., 498 F.2d 414 30, 35

United States v. Mundell, 27 F. Cas. 23 34

United States v. Pennsylvania Industrial Chemical

Corp., 411 U.S. 655 3, 4

United States v. Phelps Dodge Industries, Inc.,

589 F. Supp. 1340 30

United States v. Regan, 232 U.S. 37 13, 34, 35

United States v. Rio Grande Irrigation Co., 174

U.S. 690 ae Re | 3

United States v. Riverside Bayview Homes, Inc.,

No. 84-701 (Dec. 4, 1985) 5,8

United States V. Tull, Civ. No. 84-186-N (E.D.Va.

June 26, 1985), appeal pending, Nos. 85-2041 (L)

and 85-2249 (4th Cir.) 6

I’nited States v. Tull, Civ. No. 85-649-N (E.D.

Va. May 15, 1986), appeal pending, No. 86-3067

(4th Cir.) 6

[’nited States v. Wonson, 28 F. Cas. 745 16

United States v. Zucker, 161 U.S. 475 35

United Steelworkers of America Vv. United States,

I a 11, 20, 23

VII

Cases—Continued :

Village of Pine City Vv.

N.W. 197

Weinberger Vv. Romero-Barcelo,

Whitehead v. Shattuck,

Munch,

138 U.S.

42 Minn.

156 U.S. 305

146

Constitution, statutes and regulations:

Page

342, 44

U.S. Const. Amend. VII ee _.. passim

Act of Mar. 3, 1903, ch. 1012, § 5, 32 Stat. 1215 35

Administrative Procedure Act, 5 U.S.C. Tul et

Ge ARS STNnU RIE ee oe RSD saline 6

Civil Rights Act of 1964, Tit. V IL, 42 U.S.C. 2000e

a 17

Clayton Act, 15 U.S.C. 15 39

Clean Air Act, 42 U.S.C. 7413 (b) 26

Clean Water Act, 33 U.S.C. 1251 et seq. 4

$ 101, 33 U.S.C. 1251 note................................... 4

§ 101 (a), 33 U.S.C. 1251 (a) 1, 28

§ 301, 33 U.S.C. 1311 4

§ 301 (a), 33 U.S.C. 1311 (a) 4,7

8 8 ee 2, 26, 29

§ 309(b), 33 U.S.C. 1319 (b) 4, 41

§ 309 (c), 33 U.S.C. 1319 (c) 5

§ 309(d), 33 U.S.C. 1319 (d) 1, 7, 29, 41

§ 404, 33 U.S.C. 1344 5, 7

§ 404(b), 33 U.S.C. 1344 (b) 6

§ 502(7), 33 U S.C. 1362 (7) 5

§ 505(a), 33 U.S.C. 1365 (a) 41

Federal Trade Commission Act § 5(/), 15 U.S.C.

45 (1) iaaitcaingeiideniated ‘ 35

Resource Conserv ation and Recovery Act, 42

ts GD ic ccccicetcchercsnees 26

Rivers —_ Harbors Appropriations Act of 1890,

ch. 907, § 10, 26 Stat. 454 3, 24

tivers and Harbors Appropriations Act of 1899,

33 U.S.C. (& Supp. II) 401 et seq.:

BD Bi I I cacceccseeccsencessmsuccssenseoes 4,7

See ee ee 3

Ty MP RS I nce cncoceccccecccocaneces 4

Safe Drinking Water Act, 42 U. S, C. 300¢- 3 (c). 26

Vill

Constitution, statutes and regulations—Continued : Page

33 C.F.R.:

Letter from Jeffrey G. Miller and Marvin B.

Durning, EPA Assistant Administrator for En-

forcement, to Sen. Edmund S. Muskie (Dec. 14,

1977), reprinted in 123 Cong. Rec. 39190

Section 323.2 (c) 5

Section 325.2 (a) (6) 6

10 C.F.R.:

Pt. 122:

Section 122.2 5

Pt. 230 6

Miscellaneous:

1 H. Ballow, A Treatise of Equity (1835) 21

Slack’s Law Dictionary (Ath ed. 1968) 3:

1 W. Blackstone, Commentaries on the Laws of ,

England (T. Green ed. 1979) (ist ed. 1769) 19

123 Cong. Rec. 39190 (1977) 27, 31

CRS, Library of Congress, 93d Cong., Ist Sess.,

A Legislative History of the Water Pollution

Control Act Amendments of 1972 (Comm. Print

1973):

Vol. 1 -_ ssidnditiias - 25, 26

- Vol. 2 26

3 CRS, Library of Congress, 95th Cong., 2d Sess.,

A Legislative History of the Clean Water Act

of 1977: A Continuation of the Legislative His-

tory of the Federal Water Pollution Control Act

(Comm. Print 1978) 26

Devlin, Equity, Due Process and the Seventh

Amendment: A Commentary on the Zenith Case,

81 Mich. L. Rev. 1571 (1983) 17

D. Dobbs, Handbook on the Law of Remedies

(1973 29, 33

1 W. Hawkins, A Treatise on the Pleas of the

Crown (1724) ale = = 19

G. Keeton, An Introduction to Equity (6th ed.

RRSP ee oF serseer rs ae a 17

(1977) ...... sescusesosesensuntnntareninstnteninecmesineemsiosacatessseress 27, 31

Miscellaneous—Continued : Page

H. McClintock, Handbook of the Principles of

Equity (1948) os 29

McRae, The Development of Nedoanee { in » the Early

Common Law, 1 U. Fla. L. Rev. 27 (1948) 19

M >»morandum from Stanley W. Legro to EPA Re-

gional Administrators (June 3, 1977), reprinted

in 123 Cong. Rec. 39191 (1977) ........... 27-28, 31

J. Mitford, A Treatise on the Pleadings in Suits in

the Court of Chancery (Dublin 2d ed. 1789)

(London Ist ed. 1780) ASE SAS Te OD 17

Note, The Right to Jury Trial in Enforcement Ac-

tions Under Section 502(a)(1)(B) of ERISA,

96 Harv. L. Rev. 737 (1983) ... 17,18

Plater, Statutory Violations and Equitable Discre-

tion, 70 Calif. L. Rev. 524 (1982) 29

J. Pomeroy, A Treatise on Equity Jurisprudence :

TERRI EE ee 21

(5th ed. 1941):

i ee hed re SS ae 17, 18, 29

EEO een ee ee ae a ee D 18

5 J. Pomeroy, Equity Jurisprudence and Equitable

Se 36

W. Rodgers, Environmental Law (1977) 28

S. Rep. 92-414, 92d Cong., Ist Sess. (1971) 26

S. Rep. 99-50, 99th Cong., Ist Sess. (1986) 41

Stumpff, The Availability of Jury Trials in Copy-

right Infringement Cases: Limiting the Scope

of the Seventh Amendment, 83 Mich. L. Rev.

1950 (1985) . 40

A. Sutherland, Notes on 1 the Constitution (1904) .. 23

W. Walsh, A Treatise on Equity (1930)... 21, 22

Winner, The Chancellor’s Foot and Env ironmental

Law: A Call for Better Reasoned Decisions on

Environmental Injunctions, 9 Envtl. L. 477

SIE SEE SEER eer Sane eee 29

Wolfram, The Constitutional History of the ons,

enth Amendment, 57 Minn. L. Rev. 639 (1973). 16

In the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1259

EDWARD LUNN TULL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The judgment of the court of appeals (Pet. App.

la-25a) is reported at 769 F.2d 182. The opinion of

the district court (Pet. App. 30a-63a) is reported

at 615 F. Supp. 610.

JURISDICTION

The decision of the court of appeals was entered

on July 30, 1985. A petition for rehearing was de-

nied on October 30, 1985 (Pet. App. 26a-27a), and

November 4, 1985 (Pet. App. 28a-29a). The petition

for a writ of certiorari was filed on January 24,

1986, and was granted on May 27, 1986. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Seventh Amendment to the United States Con-

stitution provides:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and

no fact tried by a jury, shall be otherwise re-

examined in any Court of the United States,

than according to the rules of common law.

33 U.S.C. 1319 provides in relevant part:

(b) Civil actions. The Administrator [of the

Environmental Protection Agency] is authorized

to commence a civil action for appropriate relief,

including a permanent or temporary injunction,

for any violation for which he is authorized to

issue a compliance order under subsection (a)

of this section. Any action under this subsection

may be brought in the district court of the

United States for the district in which the de-

fendant is located or resides or is doing business,

and such court shall have jurisdiction to restrain

such violation and to require compliance. Notice

of the commencement of such action shall be

given immediately to the appropriate State.

* * * * *

(d) Civil penalties. Any person who violates

section 1311, 1812, 1816, 1317, 13818, 1328, or

1345 of this title, or any permit condition or

limitation implementing any of such sections in

a permit issued under section 1342 of this title

by the Administrator, or by a State, or in a

permit issued under section 1344 of this title by

a State, and any person who violates any order

issued by the Administrator under subsection

(a) of this section, shall be subject to a civil

penalty not to exceed $10,000 per day of such

violation.

STATEMENT

1. a. Although the sovereign’s power to prevent

the obstruction of navigable waterways has long ex-

isted in English and American law (see pages 18-24,

infra), it was not until 1890 that Congress created

a statutory prohibition to facilitate the exercise of

that power. Section 10 of the Rivers and Harbors

Appropriations Act of 1890 (the Act), prohibited the

creation of any obstruction to the navigable capacity

of any waters “not affirmatively authorized by law,”

and authorized the imposition of criminal penalties

for violations of its prohibitions. In addition, the At-

torney General was authorized to institute “proper

proceedings in equity” to seek removal of the obstruc-

tion (26 Stat. 454). See generally United States v.

Rio Grande Irrigation Co., 174 U.S. 690, 709 (1899).

In 1899, the entire Rivers and Harbors Appropria-

tions Act of 1890 was reenacted with minor modifi-

cations. See United States v. Pennsylvania Industrial

Chemical Corp., 411 U.S. 655, 656-657 (1973). The

authority of the Attorney General to seek removal of

unlawful obstructions was retained in Section 12 of

the Act, 33 U.S.C. 406."

1 Section 12, 33 U.S.C. 406, provides in pertinent part as

follows:

[T]he removal of any structures or parts of structures

erected in violation of the provisions of the said sections

may be enforced by the injunction of any district court

exercising jurisdiction in any district in which such

As amended in 1899, Section 10 of the Act, 33

U.S.C. 403, generally forbids the placing of fill into

or otherwise obstructing navigable waters “unless

the work has been recommended by the Chief of En-

gineers and authorized by the Secretary of the Army

prior to beginning the same.” The Act has been held

to prohibit both obstructions to navigation (see

Greenleaf Johnson Lumber Co. v. Garrison, 237 U.S.

251 (1915)), and (in Section 13, 33 U.S.C. 407) the

pollution of the Nation’s waters (see United States

v. Pennsylvania Industrial Chemical Corp., supra),

except under conditions approved by the Army Corps

of Engineers.

b. The Clean Water Act (CWA), 33 U.S.C. 1251

et seq., is a comprehensive statute designed “to re-

store and maintain the chemical, physical, and bio-

logical integrity of the Nation’s waters” (33 U.S.C.

1251(a)).? In Section 301(a) of the CWA, 33 U.S.C.

1311(a), Congress enacted an absolute prohibition

against the discharge of pollutants into navigable

waters, excepting only discharges made in compliance

with other sections of the CWA. Any violation of Sec-

tion 301 of the CWA may be challenged in district

court by the Environmental Protection Agency

(EPA) under Section 309(b), 33 U.S.C. 1319(b),

which authorizes the court to award “appropriate re-

lief, including a permanent or temporary injunction

** *” Section 309(d), 33 U.S.C. 13819(d), subjects

structures may exist, and proper proceedings to this end

may be instituted under the direction of the Attorney

General of the United States.

2 The statute originally was named the Federal Water Pollu-

tion Control Act. Congress changed the name of the statute

in 1977. 33 U.S.C. 1251 note. For convenience, we shall refer

to the statute by its new name throughout this brief.

a violator to civil penalties of up to $10,000 per day

for each violation.*

Pursuant to Section 404 of the CWA, 33 U.S.C.

1344, the United States Army Corps of Engineers

administers a permit program to regulate the dis-

charge of dredged or fill material into “navigable

waters.” The statute defines “navigable waters” as

“waters of the United States, including the territorial

seas” (33 U.S.C. 1362(7)). Pursuant to regulations

published in 1977,* the Corps’ jurisdiction under Sec-

tion 404 extends to certain “wetlands,” which are

defined to include: “those areas that are inundated or

saturated by surface or ground water at a frequency

and duration sufficient to support, and that under

normal circumstances do support, a prevalence of

vegetation typically adapted for life in saturated

soil conditions. Wetlands generally include swamps,

marshes, bogs and similar areas.” 33 C.F.R. 323.2(c).

Prior to issuance of a Section 404 permit, the Corps

determines not only the extent of the wetlands on

the property to be filled, but also the environmental

effect of the proposed filling on those wetlands. These

determinations are made by applying guidelines de-

8 Section 309(c) of the CWA, 33 U.S.C. 1319(c), authorizes

the imposition of criminal penalties for willful or negligent

violations of the CWA.

*The Corps’ current definition of “waters of the United

States,” including “wetlands,” is a reworded but substantively

unchanged version of the definition promulgated in 1977.

The 1977 definition was amended in 1982 to make it identical

to EPA’s definition of the same phrase (40 C.F.R. 122.2).

See United States v. Riverside Bayview Homes, Inc., No. 84-

701 (Dec. 4, 1985), slip op. 2. Thus, the two agencies define

“waters of the United States”—and hence the scope of fed-

eral regulatory jurisdiction—in the same way for all Clean

Water Act programs.

veloped by the Administrator of the EPA in conjunc-

tion with the Secretary of the Army. Section 404(b),

33 U.S.C. 1344(b). See generally 40 C.F.R. Pt. 230.

The resulting permit decision is thus supported by

an administrative record (see generally 33 C.F.R.

325.2(a)(6)), and is subject to review in a district

court pursuant to the Administrative Procedure Act,

5 U.S.C. 701 et seg. See Avoyelles Sportsmen’s

League, Inc. v. Marsh, 715 F.2d 897, 905 (5th Cir.

1983) (collecting cases).

2. Petitioner is engaged in the business of filling

and developing residential resort properties on the

island of Chincoteague, Virginia (Pet. App. 2a).°

Four of these properties are the subject of this liti-

gation—the Ocean Breezes subdivision (consisting of

the Ocean Breeze Mobile Home Sites and Ocean

Breeze Mobile Home Sites Sections B and C), the

Mire Pond Camper sites (Mire Pond I and II), Eel

Creek, and Fowling Gut Extended.

Beginning in 1975, petitioner developed the Ocean

Breezes subdivision as a mobile home site (Pet. App.

5 Petitioner repeatedly has been sued for violating the

Clean Water and Rivers and Harbors Acts in his commercial

activity on Chincoteague Island. In 1975, the United States

unsuccessfully sought to prevent petitioner from filling areas

behind a bulkhead in a development known as the Inlet View

Campground (C.A. App. 1374-1380). In 1985, the United

States successfully prosecuted petitioner for the construction

of a 296-foot oyster shell road in a wetlands area. United

States v. Tull, Civ. No. 84-186-N (E.D. Va. June 26, 1985),

appeal pending, Nos. 85-2041(L) and 85-2249 (4th Cir.). In

1986, petitioner was successfully prosecuted for filling wet-

lands in an area known as Ocean Breeze Section D, and for

blocking tidal channels in an effort to dry out wetlands in the

same area. United States v. Tull, Civ. No. 85-649-N (E.D. Va.

May 15, 1986), appeal pending, No. 86-3067 (4th Cir.).

4a). Development of the area required the placing

of approximately 20,000 cubic yards of fill, mostly

sand, at the site (id. at 39a). Petitioner developed

the Mire Pond Camper Sites beginning in 1978 (id.

at 4a, 39a). That development required the placing

of fill to a depth of approximately three feet (ibid.).

Fowling Gut Extended, a 40-foot-wide canal (id. at

48a), was filled by petitioner beginning in 1976 (id.

at 4a, 50a). Fill was placed on the Eel Creek site in

1980 (id. at 4a). Petitioner did not apply for either

a Section 10 or Section 404 permit from the Corps

for any of this filling (Pet. App. 4a).

On July 1, 1981, the United States filed a com-

plaint against petitioner, charging him with viola-

tions of the Clean Water Act. As amended on Octo-

ber 5, 1982 (Pet. App. 67a-73a), to include a charge

that he violated the Rivers and Harbors Act, the com-

plaint alleged that petitioner had discharged pollut-

ants into waters of the United States, without a per-

mit from the Corps of Engineers, in violation of 33

U.S.C, 403, 13811(a) and 1344 (Pet. App. 69a-70a).

The complaint alleged that the fill had been dis-

charged into wetlands at the Ocean Breezes subdi-

vision (id. at 68a), the Mire Pond Camper Sites (id.

at 69a), the Eel Creek site (id. at 70a), and into ad-

ditional wetlands owned or controlled by petitioner

(id. at 71a). The United States sought an order en-

joining petitioner from committing further viola-

tions, directing removal of fill and restoration of

affected areas, assessing civil penalties in accordance

with Section 309(d) of he CWA, and granting “such

other relief as the Court may deem just and proper”

(Pet. App. 72a). In an order issued on September 9,

1981 (J.A. 80-81), the court denied petitioner’s re-

quest for a jury trial, finding the relief requested by

the United States to be “in every instance, equitable

in nature * * *” (id. at 81).

A 15-day bench trial was held between July 27

and November 24, 1982.° Contrary to his current

assertion (Br. 3), petitioner did not contest the al-

legation that he placed sand and other fill material

onto the properties that were the subject of the com-

plaint (Pet. App. 38a-39a), nor did he claim that he

ever had applied for a permit from the Corps prior

to the filling (id. at 54a). The trial thus was pri-

marily concerned with petitioner’s argument that the

properties he filled were not wetlands subject to the

jurisdiction of the Corps.’ The district court heard

the evidence of 26 witnesses, including 12 expert

witnesses called by the United States and one expert

called by the district judge himself.

In its opinion, the district court found “substan-

tial, credible evidence” (Pet. App. 40a) that peti-

tioner had filled wetlands at the Ocean Breezes, Mire

Pond and Eel Creek sites (id. at 40a-46a). The

court also found that Fowling Gut Extended “was

navigable in fact and was utilized by boat traffic

®The district court rejected petitioner’s arguments that

the Clean Water Act and the regulations promulgated pur-

suant to that Act either effected a taking of his property or

were unconstitutionally vague (Pet. App. 54a-55a). The

court also rejected petitioner’s claim that the government

should be equitably estopped from enforcing the law against

him (id. at 56a-57a). The court of appeals affirmed these

holdings (id. at 6a-8a, 10a-12a), and these issues are not

before this Court for review.

7 As a question of regulatory and statutory interpretation

(see United States v. Riverside Bayview Homes, Inc., No. 84-

701 (Dec. 4, 1985), slip op. 2), the issue whether the Corps had

jurisdiction over petitioner’s property as “adjacent wetlands”

was decided by the court.

subsequent to 1963 and prior to the time when [pe-

titioner] filled in this waterway without applying

for or obtaining any permit from the Army Corps

of Engineer[s]” (id. at 49a). Once having filled the

canal, the court found, petitioner sold lots at the site

“that were actually a filled navigable waterway” and

“profited by his sale of [those] lots * * *” (id. at

50a). The court concluded that petitioner had shown

“secant respect for the preservation of waters of the

United States” (id. at 60a).

To remedy these violations, the district court as-

sessed a civil penalty of $35,000 for the filling at

Ocean Breezes (Pet. App. 60a), $35,000 for the fill-

ing at Mire Pond (ibid.), and $5,000 for the filling

at Eel Creek (ibid.). Petitioner also was ordered to

remove the fill that he had placed on five lots at

Ocean Breeze Section C (id. at 61a), to convert two

upland lots at Mire Pond II to wetlands (ibid.),* to

restore all filled areas of Eel Creek to wetlands (id.

at 62a), and to refrain from further filling activi-

ties without applying for a Corps of Engineers per-

mit (ibid.). The court established the penalty for

the filling of Fowling Gut Extended in the alterna-

tive: it directed petitioner either to pay a civil pen-

alty of $250,000 or to “restore the extension of Fowl-

ing Gut to its former navigable condition * * *” (id.

at 6la).

3. In affirming, the court of appeals rejected peti-

tioner’s claim that he erroneously had been denied

his constitutional right to a trial by jury. Determin-

ing that the penalties the government sought “are

within the district court’s discretion” (Pet. App. 9a),

8’ These lots were to be converted to wetlands as compensa-

tion for the wetlands lots in Mire Pond I that are now filled

and occupied by third parties.

the court explained that “the government is not suing

to collect a penalty analogous to a remedy at law,

but is asking the district court to exercise statutorily

conferred equitable power in determining the amount

of the fine” (ibid.). Distinguishing the assessment

of penalties from punitive damages actions at law,

the court held that (id. at 9a-10a (footnote omitted) )

the assessment of penalties intertwines with

the imposition of traditional equitable relief.

The district court fashions a “package” of reme-

dies, one part of the package affecting assess-

ment of the others. This combined relief serves

several goals, including environmental preserva-

tion and fairness to third party property buyers

as well as deterrence. In such circumstances, the

seventh amendment is inapplicable.

SUMMARY OF ARGUMENT

This Court’s test for the availability of a jury un-

der the Seventh Amendment is well-settled: a party

may demand a jury if the “rights and remedies” at

issue in the suit are of the sort that were tried to a

jury in common law courts in 1791. Pernell v. South-

all Realty, 416 U.S. 368, 381 (1974). Under

this analysis, a jury trial is constitutionally guar-

anteed only if both the remedy and the cause of ac-

tion were treated as “legal” in nature by the English

courts in 1791. If either the right or the remedy had

been viewed as equitable, Chancery would have taken

jurisdiction and a jury trial would have been unavail-

able. In this case, petitioner cannot prevail because

both the cause of action pursued by the United States

and the remedy awarded by the court are equitable

in nature.

A. By far the closest historical analogue to the

cause of action created by the Clean Water Act was

one to cure a “public” or “common” nuisance. In

1791, it was recognized that the sovereign could

bring such an action to enjoin the obstruction of pub-

lic waters or to abate offensive trades that polluted

the environment. Both of these types of nuisance ac-

tions fell squarely within the jurisdiction of the

courts of equity. See Mugler v. Kansas, 123 U.S.

623, 672-673 (1887); United Steelworkers of Amer-

ica v. United States, 361 U.S. 39, 60 (1959) (Frank-

furter, J., concurring). Because public nuisances

were inherently of a continuing or recurring nature

and affected large numbers of people, refusing equity

jurisdiction in such cases would have made it neces-

sary for many private plaintiffs to bring repeated

suits for damages. And even a host of damage ac-

tions could not have fully protected the continuing

interest of the public in, for example, the mainte-

nance of a harbor unobstructed by illegal filling. In

these circumstances, courts of law were seen as

wholly inadequate to vindicate the public rights im-

plicated in common nuisance actions.

Given the English precedents on this point, it is

not surprising that recognition of the power of equity

courts to enjoin public nuisances has been a “com-

monplace of jurisdiction in American judicial his-

tory.” Steelworkers, 361 U.S. at 61 (Frankfurter,

J., concurring). And this Court has expressly held

that the Seventh Amendment has no application in

such suits. Mugler, 123 U.S. at 673. Under the first

prong of the Seventh Amendment test, then, peti-

tioner cannot prevail.

B. While the equitable character of the Clean

Water Act cause of action is enough to dispose of

petitioner’s claim, that claim also is foreclosed by the

second prong of the Court’s historical test: the rem-

edy available under the Act is equitable in nature.

The injunctive relief sought by the government

plainly was equitable. And the civil penalties made

available under the Clean Water Act—which are

awarded at the district court’s discretion, and which

in large part are designed to force a violator to dis-

gorge improper profits—are of a sort traditionally

viewed as equitable.

1. The civil penalties authorized by the Clean

Water Act are not a fixed sum. To the contrary,

those penalties are set at the discretion of the court,

after the weighing of an array of equitable factors.

In making penalties available, Congress endorsed the

Environmental Protection Agency’s penalty calcula-

tion policy. This policy looks first to the economic

benefit that the violator obtained from violating the

law. From there, the final penalty is determined by

using a range of discretionary considerations to

modify that amount: the environmental impact of

the violation; the effect of the violation on the regu-

latory system; the state of mind of the violator; the

violator’s history of compliance with the Clean Water

Act; and the violator’s ability to pay. The discretion

that infuses the court’s assessment of penalties also

is made manifest by the role of civil penalties as part

of a package of equitable relief that may be awarded

under the Act in a manner that provides the most

efficacious and equitable remedy. This sort of discre-

tionary calculation, turning on a balancing of statu-

tory, policy, technical and particularized equitable

factors, historically would have been performed by a

court sitting in equity.

2. The nature of the factors taken into account by

the court in setting a Clean Water Act civil penalty

also demonstrates the equitable character of the pen-

alty remedy. Under the EPA penalty policy endorsed

by Congress in 1977, the most important single cri-

terion in setting a penalty is the economic benefit ob-

tained by the polluter by virtue of his noncompliance

with the statute. In their calculation and effect, civil

penalties therefore are closely analogous to the classic

equitable remedy of disgorgement. As such, they are

integral parts of an equitable remedy that “differs

greatly from * * * damages.” Porter v. Warner Hold-

ing Co., 328 U.S. 395, 402 (1946).

3. Petitioner disregards these considerations in ar-

guing that all actions to collect statutorily-created

penalties are iegal in nature. This contention fails to

take account of the different types of money judg-

ments rendered by the courts. An action to collect a

statutory penalty may be analogous to a legal action

for debt when—as in, for example, a contract action

—the suit is for “‘a sum certain * * * due to the

plaintiff, or a sum which can readily be reduced to a

certainty.’” United States v. Regan, 232 U.S. 37, 41

(1914) (citation omitted). Virtually all of the cases

cited by petitioner involved attempts to collect fixed

penalties of that sort. But however analogous such

penalties may be to debts at law, they differ funda-

mentally from penalties assessed under the Clean

Water Act. Because the amount of a Clean Water

Act penalty turns on an exercise of the judge’s dis-

cretion—and involves an assessment of the serious-

ness of the offense, the efficacy of other forms of re-

lief, and the like—it plainly is neither a “sum cer-

tain” nor “a sum which can readily be reduced to a

certainty.” Indeed, to the extent that Clean Water

Act civil money penalties have an objectively-calcula-

ble component, it is measured by the violator’s profit,

an amount equivalent to “equitable” disgorgement

rather than to “legal” debt.

C. Finally, even if the civil penalties at issue here

somehow were deemed to be legal in nature, petitioner

still would not be entitled to a jury trial. It has long

been settled that where “the equitable jurisdiction of

the court has properly been invoked for injunctive

purposes, the court has the power to * * * award com-

plete relief even though the decree includes that which

might be conferred by a court of law.” Porter, 328

U.S. at 399. In both the public nuisance and other

contexts, the Court accordingly has indicated that an

equity court may award any remedy necessary to

provide complete relief. Here, of course, the govern-

ment properly invoked the equitable jurisdiction of

the district court for injunctive purposes. In these

circumstances, the court was empowered to award

monetary penalties as an adjunct to equitable relief to

provide a complete remedy.

It is true, as this Court explained in Beacon

Theatres, Inc. v. Westover, 359 U.S. 500 (1959), that

when independent legal and equitable claims are

joined in a single suit, the legal claim must ordi-

narily be tried first to preserve the right to trial by

jury on that claim; if the equitable claim is first re-

solved by a judge, a subsequent trial of related issues

before a jury would be barred by collateral estoppel.

But this doctrine has no application in a case—such

as this one—that involves only a single cause of

action seeking both equitable and (arguably) legal

relief. Indeed, since rendering the decision in Beacon

Theatres, the Court has expressly reaffirmed the

proposition that a court sitting in equity may award

legal relief when necessary to provide a complete

remedy. Katchen v. Landy, 382 U.S. 323, 339-340

(1966). In any event, even if the Beacon Theatres

doctrine otherwise had relevance here, the Court, as

a prudential matter, properly should decline to apply

it to avoid “dismember|[ing] a scheme which Congress

has prescribed.” Katchen, 382 U.S. at 339.

ARGUMENT

THE SEVENTH AMENDMENT DOES NOT CONFER

A RIGHT TO A JURY TRIAL IN ENFORCEMENT

ACTIONS UNDER THE CLEAN WATER ACT

The Seventh Amendment provides that, “[i]n Suits

at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall

be preserved.” As this Court repeatedly has ex-

plained, “[t]he phrase ‘Suits at common law’ has

been construed to refer to cases tried prior to the

adoption of the Seventh Amendment in courts of law

in which jury trial was customary as distinguished

from courts of equity * * * in which jury trial was

not.” Atlas Roofing Co. v. Occupational Safety &

Health Review Comm’n, 480 U.S. 442, 449 (1977).

“The right of trial by jury thus preserved is the

right which existed under the English common law

when the Amendment was adopted.” Baltimore &

Carolina Line, Inc. v. Redman, 295 U.S. 654, 657

(1935). See generally Parklane Hosiery Co. v. Shore,

439 U.S. 322, 333 (1979); Curtis v. Loether, 415

U.S. 189, 193 (1974); Ross v. Bernhard, 396 U.S.

531, 538 n.10 (1970); Simler v. Conner, 372 USS.

221, 223 (1963); Dairy Queen, Inc. v. Wood, 369

U.S. 469, 470-471 (1962); Parsons v. Bedford, 28

U.S. (3 Pet.) 433, 445-448 (1830).

Under the Court’s historical approach, a party is

entitled to trial by jury only if he establishes that

the “rights and remedies” at issue are of the sort

that traditionally were tried to a jury in courts of

law. Pernell vy. Southall Realty, 416 U.S. at 381.

This inquiry focuses on the practice in 1791, at the

time of the adoption of the Amendment. See Park-

lane Hosiery Co., 439 U.S. at 333; Dimick v. Schiedt,

293 U.S. 474, 496 (1935); Wolfram, The Constitu-

tional History of the Seventh Amendment, 57 Minn.

L. Rev. 639, 642 & n.8 (1973). And, as Justice

Story explained in one of the earliest interpretations

of the Amendment, the jury trial inquiry is concerned

principally with “the common law of England, the

grand reservoir of all our jurisprudence.” United

States v. Wonson, 28 F. Cas. 745, 750 (D. Mass.

1812) (No. 16,750). See Pernell, 416 U.S. at 371-

374, 376-379; Capital Traction Co. v. Hof, 174 U.S.

1, 8 (1899); Wolfram, supra, 57 Minn. L. Rev. at

641.

When, as in this case, the rights and remedies in-

volved are created by a statute enacted after the

adoption of the Seventh Amendment, jury trial is

available if the statutory action “serves the same

essential function” as an action triable to a jury at

common law. Pernell, 416 U.S. at 375. Determining

whether the statutory action does so requires “fitting

the [modern] cause into its nearest historical anal-

ogy.” Ross, 396 U.S. at 543 n.1 (Stewart, J., dis-

senting). Cf. Curtis, 415 U.S. at 194.°

While petitioner focuses his historical inquiry al-

most entirely on the remedy sought by the govern-

® Amicus Washington Legal Foundation ignores this his-

torical test when it argues (Br. 9) that, even where it could

constitutionally be withheld, the jury trial right “cannot

be denied unless expressly negated [by Congress].” Indeed,

amicus’s view would sweepingly expand the reach of the Sev-

enth Amendment in the precise context—congressionally cre-

ated public rights—where this Court has held that a jury trial

is not required. See Atlas Roofing Co., 430 U.S. at 455.

ment in this case (see Pet. Br. 18-25), under this

Court’s analysis a jury trial is constitutionally guar-

anteed only if both the remedy and the cause of action

were treated as legal by the English courts in 1791.

If either the right or the remedy had been viewed

as equitable in nature in 1791, Chancery would have

taken jurisdiction and a jury trial would have been

unavailable. Because the remedial powers of law

courts were strictly limited, parties were forced to

seek the assistance of courts of equity—and thus to

forgo a jury trial—when they attempted to vindicate

legal rights with equitable remedies.” See 1 J.

Pomeroy, A Treatise on Equity Jurisprudence § 127,

at 169; § 139, at 191-192 (5th ed. 1941); G. Keeton,

An Introduction to Equity 237 (6th ed. 1965);

Devlin, Equity, Due Process and the Seventh Amend-

ment: A Commentary on the Zenith Case, 81 Mich.

L. Rev. 1571, 1572-1573 (1983) (citing J. Mitford,

A Treatise on the Pleadings in Suits in the Court of

Chancery (Dublin 2d ed. 1789) (London Ist ed.

1780)); Note, The Right to Jury Trial in Enforce-

ment Actions Under Section 502(a)(1)(B) of ERISA,

96 Harv. L. Rev. 737, 741, 753-754 n.127 (1983).

Similarly, the rigidity of the common law courts made

10 This is illustrated in a modern context by the unavail-

ability of a jury trial in employment discrimination actions

brought under Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seg. While the substantive right to be free

from discrimination gives rise to an action at law (see Curtis,

415 U.S. at 195-196 n.10), the backpay remedy provided by

Title VII is equitable. See Setser v. Novack Inv. Co., 638

F.2d 1137, 1141 (citing cases), modified on other grounds,

657 F.2d 962 (8th Cir.), cert. denied, 454 U.S. 1064 (1981).

The equitable nature of the remedy makes the Seventh

Amendment guarantee inapplicable. See generally Curtis, 415

U.S. at 197; Note, supra, 96 Harv. L. Rev. at 747-748 & n.80.

it impossible for them to entertain equitable causes of

action, even when the litigant sought a legal remedy.

See generally 1 J. Pomeroy, supra, § 108, at 139; 4

id. § 1420, at 1076; Note, supra, 96 Harv. L. Rev. at

748." In this case, petitioner can.ot prevail because

both the cause of action pursued by the United States

and the remedy awarded by the court are equitable.”

A. The Cause Of Action Created By The Clean Water

Act Is Equitable In Nature

1. At the outset, the right to a jury trial is in-

applicable here because the cause of action created

by the Clean Water Act is essentially equitable in

nature. While the permit and regulatory apparatus

created by the CWA was of course unknown at com-

11 The Court has declined to decide whether the Seventh

Amendment has any “application to Government litigation

and leaves solely to the Sixth Amendment the function of

interposing a jury between the Federal Government and an

individual from whom it wishes to exact a fine.” Atlas Roof-

ing Co., 430 U.S. at 450 n.6. Because, as we explain below,

the Seventh Amendment is inapplicable here under the tradi-

tional historical test, this case likewise does not require the

Court to resolve that question.

12 Correspondingly, petitioner would not have been entitled

to a jury trial had he sought and been denied a permit to

conduct filling activities. In those circumstances, his claim

initially would have been assessed by the Corps, with judicial

review in the district court based on the administrative

record (see page 6, supra). Where a determination of pub-

lic rights—such as those involved under the Clean Water

Act and Rivers and Harbors Act (cf. California v. Sierra

Club, 451 U.S. 287, 295 (1981); Thomas v. Union Carbide

Agricultural Products Co., No. 84-497 (July 1, 1985), slip op.

19)—is committed to an administrative agency, the Seventh

Amendment’s guarantees are inapplicable. See Atlas Roofing

Co., 430 U.S. at 455, 458-459.

mon law, by far the closest historical analogue to

an action under the CWA was one to cure a “pub-

lic” or “common” nuisance. “Common nuisances are

a species of offenses against the public order and

economical regimen of the state; being either the

doing of a thing to the annoyance of all the king’s

subjects, or the neglecting to do a thing which the

common good requires.” 4 W. Blackstone, Commen-

taries on the Laws of England 167 (T. Green ed.

1979) (1st ed. 1769). See 1 W. Hawkins, A Treatise

on the Pleas of the Crown 197 (1724). As an annoy-

ance to the “whole community in general,” common

nuisances were a cause of action available only to the

Attorney General or the Crown, and could not be

brought by private plaintiffs. 4 W. Blackstone,

supra, at 167.

Two species of common nuisance actions that were

well-developed in 1791 are directly analogous to suits

brought under present-day environmental regulations.

The sovereign could bring a claim for a so-called

“nurpresture” to enjoin, fine, or order the repair of

an enclosure or obstruction of public waters or rivers;

alternatively, the sovereign could enjoin or fine “of-

fensive trades and manufactures” that polluted the

environment. 4 W. Blackstone, supra, at 167.** Com-

pare Weinberger v. Romero-Barcelo, 456 U.S. 305,

314 n.7 (1982) (“The objective of this [Clean Wa-

ter Act] statute is in some respects similar to that

18 Indeed, the particular form of nuisance most directly

analogous to the filling of wetlands alleged in the instant case

—the diverting of public watercourses or raising or lowering

of a pond—was one of the earliest forms of nuisance recog-

nized in medieval law. See McRae, The Development of

Nuisance in the Early Common Law, 1 U. Fla. L. Rev. 27,

37 & nn.62, 64 (1948) (citing cases).

sought in nuisance suits”). Cf. Middlesex County

Sewerage Authority v. National Sea Clammers Ass'n,

453 U.S. 1, 22 (1981) (the federal common law of

nuisance in the water pollution area is preempted by

the CWA).

2. Both species of common nuisances fell clearly

within the jurisdiction of the courts of equity. Al-

most 100 years ago, this Court endorsed Justice

Story’s observation that “‘[in] regard to public nui-

sances,’ * * * ‘the jurisdiction of courts of equity

seems to be of a very ancient date, and has been dis-

tinctly traced back to the reign of Queen Elizabeth.

The jurisdiction is applicable not only to public

nuisances, strictly so called, but also to purprestures

upon public rights and property.’” Mugler v. Kan-

sas, 123 U.S. 623, 672-673 (1887) (citations omit-

ted). Accord, United Steelworkers of America v.

United States, 361 U.S. 39, 60 (1959) (Frankfurter,

J., coneurring) (citing Bond’s Case, Moore 238

(1587); Jacob Hall’s Case, 1 Ventris 169, 1 Mod. 76

(1671); The King v. Betterton, 5 Mod. 142 (1696);

Baines v. Baker, 3 Atk. 750, 1 Amb. 158 (1752);

and Mayor of London v. Bolt, 5 Ves. 129 (1799)).

“This old, settled law was summarized in 1836 by

the Lord Chancellor in the statement that * * * ‘a

court of equity has a well established jurisdiction,

upon a proceeding by way of information, to prevent

nuisances to public harbours and public roads; and,

in short, generally, to prevent public nuisances.’ At-

torney-General v. "orbes, 2 M. & C. 123, 133.” Steel-

workers, 361 U.S. at 60 (Frankfurter, J., concur-

ring). See Mugler, 123 U.S. at 673."

14 See, e.g., Bond’s Case, supra (enjoining operation of a

pigeonhouse causing a public nuisance) ; Attorney General v.

Richards, 2 Anst. 603, 1 Ames Eq. Jur. 615 (1795) (enjoining

The foundation of equity jurisdiction in this cate-

gory of cases was the probability that public nui-

sances would cause irreparable injury that could not

be remedied adequately with pecuniary compensation,

and that they would lead to a multiplicity of suits at

law by injured parties. See 1 H. Ballow, A Treatise

of Equity 3 n.* (1835). Because public nuisances

were inherently of a continuing or recurring nature

and affected large numbers of people, refusing equity

jurisdiction would have made it necessary for many

private plaintiffs to bring repeated suits for damages,

the only course of action available in a court of law.

Furthermore, even a host of individual damage ac-

tions could not have fully vindicated the continuing,

unquantifiable interest of the public at large in, for

example, the maintenance of a harbor unobstructed

by illegal filling. In those circumstances, courts of

law were seen as wholly inadequate to vindicate the

public rights implicated in common nuisance actions,

in accord with the principle that equity would inter-

vene to protect from common nuisances. W. Walsh,

the filling of shoreline and erection of key and docks, and

ordering restoration of harbor to prior status) ; Attorney Gen-

eral Vv. Hunter, 1 Dev. Eq. (N.C.) 12, 1 Ames Eq. Jur. 621

(1826) (damming of mill-pond caused “exhalations” that

were unhealthy) ; J. Pomeroy, A Treatise on Equity Jurispru-

dence 830 (1907) (citing cases); W. Walsh, A Treatise on

Equity 198 (1930) (“There is no question about the ending

of purprestures by negative or mandatory injunction as the

case may require’). See also Robinson v. Byron (Lord), 1

Bro. C.C. 588, 1 Ames Eq. Jur. 566 (1785) (equity court

ordered injunction against obstruction of public waters) ;

Bush v. Western, Prec. Ch. 530, 1 Ames Eq. Jur. 553 (1720)

(equity court granted injunction in private suit arising out of

obstruction of watercourse).

A Treatise on Equity 199-200 (1930). See Mugler,

123 U.S. at 672-673.

8. As the preceding discussion makes clear, public

nuisa.ice actions were understood to be equitable in

nature at the time of the adoption of the Seventh

Amendment. Indeed, in 1795—almust contempora-

neously with the ratification of the Amendment in the

United States—the English Attorney General, on be-

half of the Crown, brought a nuisance suit in Chan-

cery on facts remarkably similar to those giving rise

to this action. Attorney General v. Richards, 2 Anst.

603, 1 Ames Eq. Jur. 615 (1795). The Attorney

General alleged that the defendants had filled shore-

line and built docks and buildings between the high

and low « .ter marks in a harbor, thus threatening

“damage to the harbour, by preventing the free cur-

rent of the water to carry off the mud” (1 Ames Eq.

Jur. at 615). The Attorney General sought to enjoin

further filling or building, and the restoration of the

harbor “to its ancient situation” (ibid.).

The Chancellor unequivocally held that “where the

king claims and proves a right to the soil, where a

purpresture and nuisance have been committed, he

may have a decree to abate it.” 1 Ames Eq. Jur. at

617. Although there were disputed factual issues—

the defendant claimed to hold the filled waterfront

under letters-patent that permitted his activities (see

id. at 615)—the Chancellor in Richards expressly af-

firmed his authority to decide the case without a

jury (id. at 617). Indeed, the English equity courts

continued during the ensuing decades to enjoin pur-

prestures in public waterways. See, ¢e.g., Attorney

General v. Parmeter, 10 Price 378 (1811), aff’d by

the House of Lords, 10 Price 412 (1812) (enjoining

obstruction of Portsmouth Harbor) ; Attorney General

v. Johnson, 2 Wils. Ch. 87 (1819) (enjoining ob-

struction of the Thames River) .”

Given the English precedents, it is not surprising

that recognition of the power of equity courts to en-

join or fine public nuisances has been a “common-

place of jurisdiction in American judicial history.”

Steelworkers, 361 U.S. at 61 (Frankfurter, J., con-

curring).** Indeed, Congress specifically provided that

suits to enforce the original predecessor to the CWA,

the Rivers and Harbors Appropriations Act of 1890

—the first federal statute aimed at preventing the

‘5 Although the Chancellor in equity could at his discretion

“issue” or impanel advisory juries or commissions of lawyers

“to inform the conscience of the court,” Parsons v. Bedford,

28 U.S. at 446 (see, e.g., Bullen vy. Michel, 2 Price 399, 488-

489 (1816); O’Connor v. Cook, 6 Ves. Jun. 665, 667, 671

(1802), aff’c on this ground, 8 Ves. Jun. 536 (1803); At-

torney General v. Philpott, 8 Ch. 1 (cited in Attorney General

Vv. Richards, 1 Ames. Eq. Jur. at 616 (“commission” appointed

to determine existence of a purpresture) ), this was not the

equivalent of a common law jury whose fact finding could be

set aside only as against the law or the evidence. See Capi-

tal Traction Co. v. Hof, 174 U.S. at 39; A. Sutherland,

Notes on the Constitution 669-670 (1904) ; Attorney General

v. Hunter, 1 Ames. Eq. Jur. 621 (1826); Bullen v. Michel, 2

Price at 319; Adley v. The Whitstable Co., 17 Ves. Jun. Supp.

478 (1815) (reserving to equity court the ultimate determina-

tion of matters sent to advisory jury).

16 See, e.g., Georgia v. Tennessee Copper Co., 237 U.S. 474

(1915) (air pollution from copper smelter) ; Arizona Copper

Co. Vv. Gillespie, 230 U.S. 46 (1918) (steam pollution) ; Jn re

Debs, 158 U.S. 564 (1895); Mugler v. Kansas, supra; Payne

Vv. Hook, 74 U.S. (7 Wall.) 425, 480 (1868); Georgetown v.

Alexandria Canal Co., 37 U.S. (12 Pet.) 91, 98 (1838):

Attorney General v. Tudor Ice Co., 104 Mass. 239, 244 (1870) ;

Board of Health v. Vink, 184 Mich. 688, 151 N.W. 672 (1915) ;

Village of Pine City v. Munch, 42 Minn. 342, 344, 44 N.W.

197-198 (1890).

filling or obstruction of the Nation’s waterways—

should be brought in courts of equity (26 Stat. 454).

And this Court has expressly held that the Seventh

Amendment has no application in public nuisance

suits. In Mugler v. Kansas, supra, an action involv-

ing a statute prohibiting the manufacture and sale of

intoxicating liquors without a permit, the Court noted

the “salutary jurisdiction” of an equity court to hear

public nuisance cases (123 U.S. at 673). In response

to the claim that a trial by jury nevertheless was nec-

essary, the Court held that “it is sufficient to say

that such a mode of trial is not required in suits in

equity brought to abate a public nuisance” (ibid.).

In sum, the closest historical analogue to the cause

of action here, common nuisance in general and pur-

presture in particular, was incrntrovertibly available

in equity.” Under the first prong of the Seventh

Amendment test, petitioner accordingly cannot claim

a right to a jury trial.

B. The Remedy Created By The Clean Water Act Is

Equitable

While the equitable nature of the Clean Water Act

cause of action is enough to dispose of petitioner’s

claim, that claim also is foreclosed by the second

prong of the Seventh Amendment’s historica! test:

17 While these public nuisance cases brought in equity gen-

erally sought injunctive relief without civil penalties, the

cases establish that the cause of action of public nuisance was

available in equity courts, thus satisfying the first prong of

the historical test. In contrast to this large body of English

and American law, we have found no instances in the years

preceding or contemporaneous with the passage of the Sev-

enth Amendment in which a law court entertained a public

nuisance cause of action brought by the sovereign.

the remedy available under the Act is equitable in

nature, Petitioner evidently acknowledges (Pet. Br.

27) that the injunctive relief sought by the govern-

ment was equitable, but insists that the civil penalty

awarded by the court amounted to legal relief. In

fact, however, the civil penalty at issue here, which

was awarded at the district court’s discretion and

which was designed in large part to force petitioner

disgorge his improper profits, is of the sort tradi-

nally viewed as equitable. Congress authorized the

award of such penalties, moreover, as part of a pack-

age of remedies designed to afford complete relief

against violators of the CWA—that is, as part of the

sort of comprehensive package of remedies tradition-

ally awarded by courts of equity.

1. The civil penalties made available under the

Clean Water Act are not a fixed sum certain equiva-

lent to the amount sought in a common law action

for debt. To the contrary, those penalties are set at

the discretion of the court, after the weighing of an

array of equitable factors.”

The discretionary nature of the civil penalty rem-

edy is first made clear by the factors that shape a

CWA case even before it reaches district court. The

legislative history of the 1972 and 1977 Clean Water

Act amendments shows that Congress intended to

give the United States broad discretion regarding

when to bring an action and how to frame the re-

quest for relief. See 1 CRS, Library of Congress, 93d

Cong., 1st Sess., A Legislative History of the Wa-

ter Pollution Control Act Amendments of 1972, at

18 Amicus U.S. Chamber of Commerce’s attempt to char-

acterize Clean Water Act civil penalties as punitive damages

(see Br. 8) cannot be reconciled with this Court’s holding

that punitive damages are not available under the Act. Cf.

Middlesex County Sewerage Authority, 453 U.S. at 16-17.

174 (Comm. Print 1973) [hereinafter cited as Leg.

Hist.]; 1 Leg. Hist. 315; see also 2 Leg. Hist. 1482;

id. at 1235 (comments of Rep. Terry). In 1972,

Congress made it clear that civil penalties and injunc-

tive relief could be sought concurrently and inter-

changeably in any case, at the government’s discre-

tion. 1 Leg. Hist. 802. In doing so, it adopted the

Administration’s suggestion that “Section 309(b),

as much as possible to avoid any unintended distinc-

tions being drawn between violations subject to in-

junctive relief, criminal and civil penalties.” 1 Leg.

Hist. 848.

This flexibility of remedies was continued in the

1977 amendments to Section 309, which extended the

provision’s coverage over industrial discharges of

pollutants. As Congress emphasized, “[t]hese rem-

edies are all at the discretion of the Administrator.

No discharger has any right to compel the Admin-

istrator to provide a particular remedy. These rem-

edies are in addition to and not exclusive of existing

remedies.” 3 CRS, Library of Congress, 95th Cong.,

2d Sess., A Legislative History of the Clean Water

Act of 1977: A Continuation of the Legislative His-

tory of the Federal Water Pollution Control Act 464

(Comm. Print 1978).

Once a violation is adjudicated, Congress envi-

sioned that the courts also would perform highly dis-

cretionary calculations in awarding civil penalties.”

When it enacted the 1977 amendments, Congress ex-

19 In this respect, the Clean Water Act is similar to other

environmental protection statutes, which leave the amount of

civil penalties to the judge’s discretion. See, e.g., Clean Air

Act, 42 U.S.C. 7413(b) ; Resource Conservation and Recovery

Act, 42 U.S.C. 6928(g) ; Safe Drinking Water Act, 42 U.S.C.

300g-3 (c).

LL ———

pressly endorsed EPA’s then-existing penalty calcula-

tion policy (see 123 Cong. Rec. 39190 (1977) (re

marks of Sen. Muskie)),” which remains substan-

tialiy the same today.” In setting a penalty, this

policy—-which was developed to guide EPA negotia-

tors in reaching settlements with violators of the

CWA—looked first to the economic benefit that the

violator obtained from failing to comply with the

CWA. From there, the final penalty would be deter-

mined by using a range of discretionary considera-

tions to modify the amount of the improper benefit:

the environmental impact of the violation; the effect

of the violation on the regulatory system; the state

of mind of the violator; the violator’s history of com-

pliance with the CWA; and the violator’s ability to

pay. See Letter from Jeffrey G. Miller and Marvin

B. Durning, EPA Assistant Administrator for En-

forcement, to Sen. Edmund S. Muskie (Dec. 14, 1977),

reprinted in 123 Cong. Rec. 39190 (1977); Mem-

orandum from Stanley W. Legro to EPA Regional

Administrators (June 3, 1977), reprinted in 123

2° Congress had a detailed knowledge of EPA’s existing

penalty policy (see Letter from Jeffrey G. Miller and Marvin

B. Durning, EPA Assistant Administrator for Enforcement,

to Sen. Edmund S. Muskie (Dec. 14, 1977), reprinted in 123

Cong. Rec. 39190 (1977) ) ; even in the absence of an express

statement to that effect, Congress accordingly should be pre-

sumed to have endorsed the Agency’s approach. See generally

Lorillard v. Pons, 434 U.S. 575, 580-581 (1978).

21 Courts interpreting the Clean Water Act have looked to

the EPA Penalty Policy in setting the amount of civil penal-

ties. See, e.g., Chesapeake Bay Foundation v. Gwaltney of

Smithfield, Ltd., 611 F. Supp. 1542, 1556-1557 (E.D. Va.

1985), aff’d, 791 F.2d 304 (4th Cir. 1986), petition for cert.

pending, No. 86-473; Student Public Interest Research Group

v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1201 (D.N.J.

1985). See also United States v. Akers, 785 F.2d 814, 823

(9th Cir. 1986), cert. denied, No. 85-2180 (Oct. 6, 1986).

Cong. Rec. 39191 (1977). See generally Chesapeake

Bay Foundation v. Gwaltney of Smithfield, Ltd., v11

F. Supp. 1542, 1557 (E.D. Va. 1985), aff’d, 791 F.2d

304 (4th Cir. 1986), petition for cert. pending, No.

86-473: Student Public Interest Research Group v.

AT&T Bell Laboratories, 617 F. Supp. 1190, 1201

(D.N.J. 1985).

As the court of appeals explained, the discretion

that infuses a court’s choice of a given money penalty

also is made manifest by the role of civil penalties

as part of a package of equitable relief that may be

awarded under the Clean Water Act. The “objec-

tive of the [CWA] is to ‘restore and maintain the

chemical, physical and biological integrity of the Na-

tion’s waters.’” Romero-Barcelo, 456 U.S. at 314

(quoting 33 U.S.C. 1251(a)). This purpose, the

Court has noted, “is in some respects similar to that

sought in nuisance suits, where courts have fully ex-

ercised their equitable discretion and ingenuity in

ordering remedies” (456 U.S. at 314 n.7). Not sur-

prisingly, then, the CWA “permits the district court

to order that relief it considers necessary to secure

prompt compliance with the Act” (id. at 320). A

court adjudicating a CWA case therefore is free to

make use of whatever combination of injunctive re-

lief and civil penalties will most efficaciously and

equitably remedy a violation (see id. at 314)—“to

mould each decree to the necessities of the particular

case” (id. at 312). See generally W. Rodgers, En-

vironmental Law § 4.6, at 404 (1977). That process

is well-illustrated here, where the court awarded the

larger part of the civil money penalties to induce

petitioner to restore the Fowling Gut Extended water-

way to its former condition.”

22 Petitioner challenged this penalty before the lower courts

(see C.A. Br. 21-22) by asserting that the portion of the

tT te

This sort of discretionary calculation, turning on

a balancing of statutory, policy, technical, and par-

ticularized equitable factors, historically would have

been performed by a court sitting in equity. Thus,

where the court retains “substantial discretion” about

the amount of money to award,” “the nature of the

jurisdiction which the court exercises is equitable,

and under [this Court’s] cases neither party may

demand a jury trial.” Albemarle Paper Co. v. Moody,

422 U.S. 405, 443 (1975) (Rehnquist, J., concur-

ring). See Curtis, 415 U.S. at 197; Troy v. City of

Hampton, 756 F.2d 1000, 1003 (4th Cir. 1985), cert.

denied, No. 84-1898 (Oct. 7, 1985); D. Dobbs, Hand-

book on the Law of Remedies § 2.1, at 28 (1973);

H. McClintock, Handbook of the Principles of Equity

96 (1948); Plater, Statutory Violations and Equit-

able Discretion, 70 Calif. L. Rev. 524, 533 (1982);

Winner, The Chancellor’s Foot and Environmental

Law: A Call for Better Reasoned Decisions on En-

vironmental Injunctions, 9 Envtl. L. 477, 480 (1979).

See also 1 J. Pomeroy, supra, § 60, at 77.

government’s complaint directed at the filling of Fowling Gut

Extended alleged a violation only of the Rivers and Harbors

Act, which contains no provision for the assessment of

civil penalties. This argument was rejected by both courts

below (see Pet. App. 10a n.4; id. at 3la (noting that relief

for the filling of Fowling Gut was requested under both the

Rivers and Harbors Act and 33 U.S.C. 1319)), and was not

renewed in the petition for certiorari.

*8 Because Section 309(d) provides that a person who

violates the CWA “shall be subject to a civil penalty,” some

penalty, even if only a nominal one, ordinarily is assessed in

every case. See Stoddard v. Western Carolina Regional Sewer

Authority, 784 F.2d 1200, 1208-1209 (4th Cir. 1986).

* Accordingly, under other statutes establishing discre-

tionary penalty schemes, the determination of the amount

2. The nature of the factors taken into account by

the court in setting CWA civil penalties also demon-

strates the equitable character of the penalty rem-

edy. As we explain above, under the EPA penalty

of civil penalties has been committed to the informed dis-

cretion of the district judge. See, e.g., United States v.

ITT Continental Baking Co., 420 U.S. 223, 229 n.6 (1975)

(Federal Trade Commission Act); United States v. Duffy,

550 F.2d 533, 534 (9th Cir. 1977) (Federal Aviation Act) ;

United States v. Ancorp National Services, Inc., 516 F.2d 198,

202 (2d Cir. 1975) (Federal Trade Commission Act) ; United

States v. J.B. Williams Co., 498 F.2d 414, 438 n.28 (2d

Cir. 1974) (same); United States v. Phelps Dodge Indus-

tries, Inc., 589 F. Supp. 1340, 1862 (S.D.N.Y. 1984) (same) ;

Aircrane, Inc. v. Butterfield, 369 F. Supp. 598, 613 (E.D. Pa.

1974) (Federal Aviation Act). Indeed, even where statutes

expressly provide for a trial by jury, determination of civil

penalties is left to the trial judge. See FAA v. Landy, 705

F.2d 624, 635 (2d Cir. 1983); Duffy, 550 F.2d at 534. See

also J.B. Williams, 498 F.2d at 438 n.28. Thus, even if peti-

tioner were entitled to a jury trial on the question of liability

here, it would remain the province of the district court judge

to assess appropriate relief. Petitioner cites no authority for

his contrary assertion (Br. 34-35) that the jury should de-

termine the amount of the civil penalty in a CWA proceed-

ing. In fact, in the context of environmental enforcement

actions, district judges universally have performed the cal-

culation of civil penalties, often with reference to the recom-

mendation of the EPA Administrator. See, e.g., Chesapeake

Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F. Supp.

1542, 1556-1557 (E.D. Va. 1985), aff’d, 791 F.2d 304 (4th Cir.

1986) (Clean Water Act), petition for cert. pending, No. 86-

473; Student Public Interest Research Group v. AT&T Bell

Laboratories, 617 F. Supp. 1190, 1201 (D.N.J. 1985) (Clean

Water Act). See also State ex rel. Brown v. Dayton Malleable,

Inc., 1 Ohio St. 3d 151, 488 N.E.2d 120, 124 (1982). Of course,

appellate review is available to assure that a court’s exercise

of discretion comports with governing legal standards. Albe-

marle Paper Co., 422 U.S. at 416.

policy endorsed by Congress in 1977, the “starting

point”—as well as “the most important single crite-

rion”’—in setting a penalty is the economic benefit

achieved by the polluter because of his noncompliance

with the statute. Memorandum from Stanley W.

Legro to EPA Regional Administrators (June 3,

1977), reprinted in 123 Cong. Rec. 39191 (1977).

Under this policy, penalties obtain their deterrent ef-

fect by “at least remov[ing] an, economic gain

achieved by non-compliance.” Letter from Jeffrey G.

Miller and Marvin B. Durning, EPA Assistant Ad-

ministrator for Enforcement, to Sen. Edmund S.

Muskie (Dec. 14, 1977), reprinted in 123 Cong. Rec.

39190 (1977)\\ Thus Senator Muskie, Conference

Committee chairman and chief co-sponsor of the 1977

Clean Water Act amendments, emphasized that “the

[EPA’s] current enforcement policy is to seek court

imposed penalties for noncompliance with Clean

Water Act requirements in amounts commensurate

with the economic benefit of delayed compliance,

among other factors. This policy embodies congres-

sional intent on the criteria that should be considered

by courts in imposing civil penalties under existing

provisions of the act.” 123 Cong. Rec. 39190 (1977)

(remarks of Sen. Muskie).

In their calculation and effect, Clean Water Act

civil money penalties therefore are closely analogous

to the classic equitable remedy of disgorgement.”

There is a “seeming unanimity of judicial thinking”

* Petitioner conceded at trial (Tr. 2104) that he profited

from the sale of the lots created by his fill activity. He testi-

fied that, if allowed to continue to fil! his lots at Mire Pond,

his profit from the sale of each lot there would be $2,130

(id. at 3336). A lot at his Eel Creek property would bring him

a profit of approximately $13,000 (id. at 3341).

that such non-damages remedies are equitable in na-

ture. Setser v. Novack Inv. Co., 688 F.2d 1137, 1141

(8th Cir.), modified on other grounds, 657 F.2d 962,

cert. denied, 454 U.S. 1064 (1981). And the Court

repeatedly has made clear that restitution and dis-

gorgement are “integral part[s] of an equitable rem-

edy” (Curtis, 415 U.S. at 197) that “differs greatly

from * * * damages and penalties.” Porter v. Waruer

Holding Co., 328 U.S. 395, 402 (1946). See Albemarle

Paper Co., 422 U.S. at 416-418; Pierce v. Vision In-

vestments, Inc., 779 F.2d 302, 308-309 (5th Cir.

1986) (disgorgement and restitution in vindication

of a public right is “clearly equitable” in nature) ;

SEC v. Commonwealth Chemical Securities, Inc., 574

F.2d 90, 95-96 (2d Cir. 1978) (in SEC disgorgement

action court “exercis[es] the chancellor’s discretion

to prevent unjust enrichment’); Arber v. Essex

Wire Corp., 490 F.2d 414, 420 (6th Cir.), cert. de-

nied, 419 U.S. 830 (1974); ef. United States v.

Georgeoff, 22 Env’t Rep. Cas. (BNA) 1601, 1602

(1984). For this reason as well, civil penalties of

the sort authorized by the Clean Water Act histori-

cally would have been awarded by an equity court,

rather than a court of law.

3. Petitioner disregards these considerations in

arguing that all actions to collect statutorily-created

penalties are legal in nature. This contention simply

fails to take account of the different types of money

judgments rendered by the courts.” It undoubtedly

is true that “ ‘where an action is simply for the re-

covery and possession of specific real or personal prop-

26 In any event, as we explain above, the equitable nature

of the cause of action here would defeat petitioner’s claim

for a jury trial even if the CWA’s civil penalty remedy were

characterized as legal.

erty, or for the recovery of a money judgment, the

action is one at law.’” Pernell, 416 U.S. at 370

(quoting Whitehead v. Shattuck, 138 U.S. 146, 151

(1891)). At the same time, however, the Court has

flatly rejected the proposition that “any award of

monetary relief must necessarily be ‘legal’ relief.”

Curtis, 415 U.S. at 196. See Katchen, 382 U.S. at

336; D. Dobbs, supra, § 4.1, at 222-223. Nor is every

pecuniary remedy created by statute “legal” within

the meaning of the Seventh Amendment; the backpay

awarded under Title VII, to give just one familiar

example, is equitable in nature. See page 17 note 10,

supra. In fact, petitioner’s simplistic assertion rests

on a basic misreading of the cases.”"

*? Although petitioner claims that civil penalties are closely

analogous to “amercements” (Br. 19 & n.7), amercements in

fact were “assessed by the peers of the delinquent, or the

affeerors, or imposed arbitrarily at the discretion of the court

or the lord.” Black’s Law Dictionary 107 (4th ed. 1968).

Because a judge was empowered to assess the amercement

without the aid of a jury, the practice associated with the

levying of amercements provides no support for petitioner.

Furthermore, although petitioner discusses amercements as

they existed at the time of the Magna Carta in 1215 (Br.

19), it is clear that over the following 500 years amercements

underwent a radical transformation. Specifically, amerce-

ments in postmedieval times involved fines imposed by the

judge—without the assistance of a jury—on sheriffs or offi-

cers of the c ‘rt for failure to perform their official duties.

See Sherman v. Upton, Inc., 242 N.W. 2d 666, 667 (S.D.

1976) ; Rodgers v. Waters, 2 Ala. 644 (1841); Dawson vy.

Holcomb, 1 Ohio 185 (1824); Stansbury v. Patent Cloth

Manufacturing Co., 5 NJ.L. 488 (1819). These special-

ized fines, imposed on officers of the court, hardly can be

considered a close analogue to the civil penalties assessed

against violators of the Clean Water Act.

It is established that actual and punitive dam-

ages are “the traditional form[s] of relief offered in

the courts of law” (Curtis, 415 U.S. at 196 (footnote

omitted) ), along with money remedies in “action[s]

on a debt allegedly due under a contract.” Dairy

Queen, 369 U.S. at 477. The courts accordingly have

suggested that an action to collect a statutory penalty

is analogous to a legal action for debt when—as in a

contract action—the suit is for “‘a sum certain * * *

due to the plaintiff, or a sum which can readily be

reduced to a certainty.’” United States v. Regan, 232

U.S. 37, 41 (1914) (quoting Stockwell v. United

States, 80 U.S. (13 Wall.) 531, 542 (1871)). See

Hepner v. United States, 213 U.S. 103, 106 (1909).

Virtually all of the decisions relied upon by petitioner

for the proposition that statutory penalty actions

should be tried to a jury (see Br. 19-24) accordingly

involved attempts to collect fixed penalties of that

sort; the amounts of the penalties in those cases were

certain, either because they were statutorily set or

because they were readily calculable from a fixed

formula.” For example, the dictum in Regan and

28 See Calcraft v. Gibbs, 5 Term. Rep. 19 (1792), in subse-

quent proceedings from 4 Term. Rep. 681 (1792) (fixed pen-

alty under the statute of Anne); United States v. Mundell,

27 F. Cas. 23 (D. Va. 1795) (No. 15,834) (cited by petitioner

as United States v. Mulvaney, Pet. Br. 20) (seeking fixed

amounts) ; United States v. Allen, 24 F. Cas. 772 (D. Conn.

1810) (No. 14,431) (statute set penalties and forfeitures at

multiple of the value of smuggled goods); Jacod v. United

States, 13 F. Cas. 267 (E.D. Va. 1821) (No. 7,157) (imposing

$500 penalty for each offense of repossessing stills from gov-

ernment revenue collector) ; United States v. Bougher, 24 F.

Cas. 1205 (D. Ohio 1854) (No. 14,627) (failure to obtain

license for operation of steamboat triggers penalty of $100 for

each offense) ; Stockwell v. United States, 80 U.S. (13 Wall.)

531, 542-548 (1871) (statute imposes penalty for double the

value of the goods illegally received under anti-smuggling stat-

Hepner about the availability of a jury trial in statu-

tory penalty actions,” upon which petitioner prin-

cipally relies (see Pet. Br. 23-24), involved attempts

to collect a penalty fixed by statute at $1000. See

Regan, 232 U.S. at 47; Hepner, 213 U.S. at 104-

105.”

ute) ; Lees v. United States, 150 U.S. 476, 478 (1893) (statu-

torily fixed penalty of $1,000). Petitioner also cites (Br. 22)

two cases in which the Court evidently concluded that the

statutory penalty was criminal in nature. United States v.

Zucker, 161 U.S. 475 (1896) ; Chaffee v. United States, 85 U.S.

(18 Wall.) 516, 536-537 (1873). Such decisions, of course,

cannot control the interpretation of Seventh Amendment jury

trial rights. See Atlas Roofing Co., 430 U.S. at 460 n.15. In

any event, the statutory penalty was set in those cases at the

value of smuggled goods. See Chaffee, 85 U.S. (18 Wall.)

at 538 (“The action of debt lies for a statutory penalty, be-

cause the sum demanded is certain’).

The only case cited by petitioner that required a jury

trial when the penalty involved a discretionary determination

was United States v. J.B. Williams Co., 498 F.2d 414 (2d

Cir. 1974), where a divided panel of the Second Circuit

found a jury necessary in an action for civil penalties under

Section 5(l) of the Federal Trade Commission Act, 15 U.S.C.

45(l). But that decision relied in substantial part on con-

gressional intent (see 498 F.2d at 425-427), and, in particu-

lar, made no other response to the government’s argument

that the Seventh Amendment is inapplicable when the civil

penalty is left to the court’s discretion (see id. at 427 n.15).

** The Court subsequently has characterized that language

of Regan and Hepner as dictum (see Atlas Roofing Co., 480

U.S. at 449), and expressly has declined “to decide whether

the dictum in these cases correctly divines the intent of the

Seventh Amendment” (id. at 449 n.6).

* Indeed, the statute at issue in Hepner specifically pro-

vided that suits for the statutory penalty would proceed “ ‘as

debts of like amount are now recovered in the courts of the

United States’ ” (213 U.S. at 105 (quoting Act of Mar. 3, 1903,

ch. 1012, § 5, 32 Stat. 1215)).

However analogous a penalty of that sort may be

to a debt at law, penalties assessed under the Clean

Water Act fundamentally differ from statutorily-

fixed sums. Because, as we explain above, the amount

of a CWA penalty turns on an exercise of the judge’s

discretion—and thus involves an assessment of the

seriousness of the offense, the efficacy of other forms

of relief, and the like—it plainly is neither a “sum

certain” nor “a sum which can readily be reduced

to a certainty.” Indeed, to the extent that CWA

money penalties have an objectively-calculable com-

ponent, it is measured by the violator’s profit. And

that amount, as we have explained, is equivalent to

“equitable” disgorgement rather than to “legal” debt.

C. A Jury Trial Is Not Required Even If The Civil Pen-

alty Component Of A Clean Water Act Judgment Is

Thought To Be Legal In Nature

1. Finally, even if the civil penalties here some-

how were deemed legal in nature, petitioner still

would not be entitled to a jvry trial. It has long been

settled that where “the equ‘table jurisdiction of the

court has properly been invoxed for injunctive pur-

poses, the court has the power to * * * award com-

plete relief even though the decree includes that

which might be conferred by a court of law.” Porter,

328 U.S. at 399. See Atlas Roofing Co., 430 U.S. at

453 n.10; Curtis, 415 U.S. at 196; Katchen, 382 U.S.

at 338. The availability of legal relief as an incident

to an equitable judgment is rooted in a long tradition,

in both the public nuisance and other contexts. See

generally 5 J. Pomeroy, Equity Jurisprudence and

Equitable Remedies § 536, at 920 (1905) (“in ad-

dition to an injunction, damages for the past nui-

sance will be awarded” when necessary to provide

complete relief). And as the Court has noted,

“Tw]hen Congress entrusts to an equity court the

enforcement of prohibitions contained in a regulatory

enactment, it must be taken to have acted cognizant

of the historic power of equity to provide complete

relief in light of the statutory purposes.” Mitchell

v. DeMario Jewelry Co., 361 U.S. 288, 291-292

(1960). See Brown v. Swann, 35 U.S. (10 Pet.) 497,

503 (1836). Where the public interest is directly

implicated by the operation of a regulatory statute,

the power to provide complete relief “‘assume[s] an

even broader and more flexible character than when

only a private controversy is at stake.’” Mitchell,

361 U.S. at 291 (quoting Porter, 328 U.S. at 398).

That the award of such complete relief “is within

the recognized power and within the highest tradi-

tion of a court of equity” (Porter. 328 U.S. at 402)

repeatedly has been acknowledged -n the specific con-

text of public nuisances resulting from water pollu-

tion. See Missouri v. Illinois & Chicago District, 180

U.S. 208, 244 (1901) (citation omitted) (resort to

equity justified since court of law “ ‘could not remedy

the whole mischief?” and equity could provide “ ‘a

more efficacious and complete remedy’”). See also

Mugler, 123 U.S. at 673 (collecting cases on public

nuisances). And in other regulatory contexts, the

Court has held that an equity court may compel

the disgorgement of profits acquired in violation of

statutory restrictions—even if such relief would have

been available in a court of law. Porter, 328 U.S. at

398-399.

Here, the government plainly did invoke the equi-

table jurisdiction of the court for injunctive purposes.

Like all suits under the CWA, this action ultimately

was brought to “restore and maintain the * * * integ-

rity of the Nation’s waters.” As we explain above

(at 19-22), jurisdiction historically lay in courts of

equity to entertain such actions. And notwithstand-

ing petitioner’s assertion to the contrary (see Pet.

Br. 16), at trial the government presented a compre-

hensive restoration plan addressing all of the filled

properties (see Tr. 2220-2227)." In these circum-

stances, the district court was empowered to include

a monetary award as an adjunct to equitable relief

in an effort to provide a complete remedy.

2. Petitioner nevertheless insists (Br. 25-28) that,

if CWA civil penalties are deemed to be “legal” rem-

edies that are awarded as part of a package designed

to provide complete relief, their availability must be

determined by a jury prior to the award of equitable

relief by a judge. Petitioner relies on the doctrine of

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

(1959), and Dairy Queen, Inc. v. Wood, supra. That

doctrine, however, is inapposite here: it was devel-

31 The plan was designed to yield maximum environmental

benefits through use of restoration and mitigation, while at

the same time avoiding any adverse effect on innocent third-

party purchasers (Tr. 2221). For the Eel Creek and Mire

Pond II sites, which had not yet been developed, the govern-

ment proposed excavation of the filled areas down to the

original elevation so that the wetlands would reestablish

themselves (ibid.). For the violations at the Ocean Breezes

sites, where development had occurred, the government pro-

posed extensive mitigation in an adjacent area, including

excavation, elimination of obstructions to tidal waterways,

creation of a bridge-like structure spanning a waterway, re-

moval of fill, cutting of a connection to an isolated pocket of

marsh, and creation of a new tidal connection for the unlaw-

fully filled 40-foot-wide waterway, Fowling Gut Extended.

Petitioner presented no restoration plan of his own at trial.

Thus, the government had formulated, presented at trial, and

sought to have implemented a plan calling for substantial

injunctive relief.

oped as a response to problems that arose when dis-

tinct legal and equitable claims were litigated to-

gether.

Prior to the merger of law and equity in 1938,

when a case presented both legal and equitable claims

the equitable claim could be tried first—even though

the decision of the judge on issues raised in the equi-

table claim would collaterally estop the litigation of

common issues raised in a subsequent legal action.

See, e.g., Liberty Oil Co. v. Condon National Bank,

260 U.S. 235 (1922). In 1959, however, this Court

held in Beacon Theatres that when a prospective anti-

trust defendant sought a declaratory judgment to

establish its innocence, and the prospective plaintiff

counterclaimed for treble damages under the Clayton

Act, 15 U.S.C. 15, the legal claim for treble damages

would have to be tried first to preserve the right to

trial by jury on that claim. 359 U.S. at 510-511.

This Court reaffirmed Beacon Theatres three years

later in Dairy Queen, where it explained that “legal

claims involved in [an] action must be determined

prior to any final court determination of * * * equi-

table claims.” 369 U.S. at 479 (footnote omitted).

See also Ross, 396 U.S. at 537-538. Under both deci-

sions, however, the district judge retained a limited

discretion to decline to order a jury trial before the

bench trial of common issues. See 359 U.S. at 510.

As this Court has explained, these decisions were

premised on the proposition that, when a case encom-

passes two causes of action, one legal and one equi-

table, the trial of any common issues before a judge

sitting in equity would collaterally estop a subsequent

trial of those issues before a jury hearing the legal

claim. “Recognition that an equitable determination

could have collateral-estoppel effect in a subsequent

legal action was the major premise of * * * Beacon

Theatres, Inc. v. Westover.” Parklane Hosiery Co.,

439 U.S. at 333. See Beacon Theatres, 359 U.S. at

504. Thus, neither Dairy Queen nor Beacon Theatres

purported to control the situation where only a single

cause of action had been brought, but where both

equitable and arguably legal relief was available. See

Stumpff, The Availability of Jury Trials in Copyright

Infringement Cases: Limiting the Scope of the Sev-

enth Amendment, 83 Mich. L. Rev. 1950, 1969 n.144

(1985).*° Indeed, since rendering the decision in

Beacon Theatres, the Court has expressly reaffirmed

the proposition that a court sitting in equity may

award legal relief when necessary to provide a com-

plete remedy. See Katchen, 382 U.S. at 339-340;

Mitchell, 361 U.S. at 291-292."

In the instant case, there is but a single cause of

action under the Clean Water Act *—premised on

82 Similarly, this Court’s decision in Scott v. Neely, 140 U.S.

106 (1891), upon which Dairy Queen was in part premised,

held that an equity court lacked jurisdiction where “ ‘a claim

properly cognizable only at law is united in the same plead-

ings with a claim for equitable relief.’” Dairy Queen, 369

U.S. at 471 (quoting Scott, 140 U.S. at 117).

88 Amicus Washington Legal Foundation contends (Br. 5)

that the district court improperly relied on the “equitable

cleanup” doctrine in this case, which it claims was repudi-

ated in Beacon Theatres. This argument, however, confuses

the cleanup doctrine with the authority of an equity court

to award complete relief. The former doctrine goes to the

equity court’s jurisdiction to decide a legal cause of action

or issues common to legal and equitable claims; the latter

concerns an equity court’s authority to award legal relief solely

as an incident to remedying an equitable claim.

% The government’s second complaint also stated a cause

of action under the Rivers and Harbors Act. Because that

the charge that petitioner discharged fill material

into navigable waterways without a permit—for

which Congress has provided both injunctive relief

and civil penalties. See 33 U.S.C. 1319(b) and (d).

Because there is only one cause of action, there can

be no second claim in this case in which collateral

estoppel effects will be felt. See S. Rep. 99-50, 99th

Cong., Ist Sess. 26 (1986) (specifying, in reau-

thorization of the Clean Water Act, that “if EPA

seeks both civil penalties and injunctive relief, one

judicial action should be filed’). Thus, the doctrine

of Beacon Theatres and Dairy Queen is inapplicable

here.” As a result, in an essentially equitable Clean

Water Act action, a court need not empanel a jury

claim sought only injunctive relief (see J.A. 60) —indeed, the

Rivers and Harbors Act does not specifically provide for

civil penalties—there is no contention here that it was any-

thing but equitable.

®° Petitioner’s suggestion (Pet. Br. 28-30) that the Clean

Water Act creates two distinct causes of action finds no

support in the plain language of the statute. Section 309(d),

the provision allowing for civil penalties, merely states that

a violator shall be subject to a civil penalty not to exceed

$10,000 per day. 33 U.S.C. 1319(d). Standing alone, this

provision supplies no cause of action. Section 309(d) only

has meaning if it is incorporated into Section 309(b) (or into

Section 505(a), 33 U.S.C. 1365(a), which authorizes certain

citizen suits to enforce the CWA), which authorizes the EPA

Administrator actually to “commence a civil action for ap-

propriate relief, including a permanent or temporary injunc-

tion * * *” (33 U.S.C. 1319(b)). In any event, two causes

of action can hardly be read into a statute that removes any

distinction between the circumstances under which civil pen-

alties and injunctive relief may be sought. See Romero-

Barcelo, 456 U.S. at 320 (various forms of relief available

interchangeably, subject to the discretion of the district

court).

before awarding civil penalties (even if we assume

that those penalties are legal in nature) as part of a

package designed to provide complete relief against

the violator.

In any event, even if the Beacon Theatres doctrine

had relevance here—and if we again assume that

CWA civil penalties are a form of legal relief—as a

prudential matter it would be appropriate to decline

to apply the doctrine. The Court has made it clear

that the requirement that legal claims be tried be-

fore equitable ones is no “more than a general pru-

dential rule.” Parklane Hosiery Co., 439 U.S. at 334.

“Both Beacon Theatres and Dairy Queen recognize

that there might be situations in which the Court

could proceed to resolve the equitable claim first even

though the results might be dispositive of the issues

involved in the legal claim.” Katchen, 382 U.S. at

339-340. This case presents such a situation. Requir-

ing a jury trial on the availability of civil penalties

prior to a determination of the propriety of equitable

relief “is not consistent with the equitable purposes

of” the Clean Water Act. Jd. at 339. Because the

court must determine in every CWA case what mix

of remedies will provide the most efficacious relief,

holding a prior jury trial directed only to civil penal-

ties would “dismember a scheme which Congress has

prescribed” (ibid.) . These circumstances would thus,

in any event, call for a departure from the Beacon

Theatres approach.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F. HENRY HABICHT IT

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

CHARLES A. ROTHFELD

Assistant to the Solicitor General

ANNE 8S. ALMY

CLAIRE L. MCGUIRE

LEONARD H. SHEN

Attorneys

FRANCIS S. BLAKE a

General Counsel

Environmental Protection

Agency

OCTOBER 1986

WZ UG. &. GOVERNMENT PRINTING OFrice; 1966 491507 40030

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