Petition for Writ of Certiorari — Froebel v. Meyer

Supreme Court, u.8.

F I LE D

00 696 0CT 26200

No.

or Ree OFTHE CLERK —

In The

Supreme Court of the United States

+

KURT F. FROEBEL,

Petitioner,

GEORGE E. MEYER, et al.,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

.

PETITION FOR A WRIT OF CERTIORARI

¢

WiuiaM S. Rousn, Jr.*

Counsel for the Petitioner

Kurt F. Froebel

Davis & KUELTHAU, S.c.

111 East Kilbourn Avenue

Suite 1400

Milwaukee, WI 53202

(414) 276-0200

*Counsel of Record

nm a ert NR FET on mR RR TY ROR a

Deenhhahdd altho thiheinintaan dae

QUESTIONS PRESENTED

The United States Court of Appeals for the Seventh

Circuit held that Petitioner’s Clean Water Act claim for

injunctive relief under 33 U.S.C. § 1365 could have been

asserted in a prior state administrative hearing proceed-

ing or the administrative appeal from that proceeding in

state court, even though the Administrative Law Judge

and the Wisconsin Court of Appeals found that they had

no jurisdiction or statutory authority to grant him relief.

The Seventh Circuit then held that Petitioner’s claim was

barred by the doctrine of “claim preclusion.” It also held

that the owner of the property on which an alleged point

source of pollutants is located could not be held responsi-

ble for the ongoing discharges of pollutants from the

point source.

The questions presented for review are:

1. Does a state administrative law judge or state

court conducting administrative judicial review proceed-

ings, whose jurisdiction is defined by state statutes, have

concurrent jurisdiction to entertain a claim for injunctive

relief under 33 U.S.C. § 1365?

2. Was the doctrine of “claim preclusion” properly

applied in this case when, at the time Petitioner was

pursuing his state administrative remedies, no split in

authority between the Circuits existed, and the legal pre-

cedents held that jurisdiction of “citizen suits” under

federal environmental laws was vested exclusively in the

federal courts?

3. Can a person who merely acquires ownership

and control of a point source of ongoing pollutant dis-

charges be held responsible for the ongoing pollutant

discharges under the Clean Water Act?

li

STATEMENT NAMING

ADDITIONAL PARTIES

The parties to the proceedings below who are not

reflected in the caption include William Sturtevant, a dam

safety engineer employed by the Wisconsin Department

of Natural Resources, and Waukesha County, a political

subdivision of the State of Wisconsin. The Wisconsin

Department of Natural Resources was originally a party-

defendant in the District Court, but it was dismissed by

stipulation and did not participate in the proceedings

before the Court of Appeals.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................... i

STATEMENT NAMING ADDITIONAL PARTIES.... ii

TABLE OF CONTENTS............................ iii

TABLE OF AUTHORITIES......................... iv

PETITION FOR A WRIT OF CERTIORARI ......... 1

a 1

JURISDICTIONAL STATEMENT.................... 2

CONSTITUTIONAL AND STATUTORY PROVI-

NN fa ls ic okk vous vi e'du cuss... 2

STATEMENT OF THE CASE....................... 4

ARGUMENTS IN FAVOR OF GRANTING THE WRIT

SPPPTARECSSUGRG4 866966 054665640 60d000606b45 005. 9

I. There Is a Split of Authority in the Circuits

Regarding the Exclusivity of Federal Jurisdic-

tion of Environmental Citizen Suits........_.. 11

Il. The Court of Appeals’ Decision is Contrary to

Prior Decisions of This Court and Its Own Deci-

GP ka bh eeececks hE Ter TUTE rer Tere 21

III. The Court of Appeals Improperly Resolved Dis-

puted Facts in an Appeal From a Judgment

Entered Upon Motions Pursuant to Fed.R.Civ.P.

REPU MUIOND Se vccsccccccdnccoeciuus 28

ES Aina orathirs eat ee: 30

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d

ae Gat Ge, Be a Sh Uae oda cv eedisenenvccdinssines 7

Blue Legs v. United States Bureau of Indian Affairs,

867 F.2d 1094 (8th Cir. 1989)................... 14, 15

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d

CO BOUND Know tnnccbocscnsseddawadcosseavénecnaes's 13

City of Chicago v. International College of Surgeons,

Fe Se TP Gi 6 kinase ctencincgsiaenesacsnces 19

Committee To Save Mokelumne River v. East Bay

Mun. Util. Dist., 13 F.3d 305 (9th Cir. 1993)..... 8, 28

Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984). ..21, 22

Davis v. Sun Oil Co., 148 F.3d 606 (6th Cir. 1998)

pd abs nee eeeunebeesbesuendskbaskbeekunenenel 15, 16, 19

Driscoll v. Adams, 181 F.3d 1285 (11th Cir. 1999)...8, 30

Du Bois v. United States Dep’t of Agriculture, 102

POE BES CUGG GO, FO is os cccssccrvacccnssacacese 8

England v. Louisiana State Bd. of Med. Exam’r, 375

CE Se CHE 2 b% dccccanendecnsncechasntneneesie ns 13

Fair Assessment in Real Estate Assn. v. McNary, 454

CREE: BE NE hha ose anctncssnecaigccsivesvecane cs 24

Fletcher v. United States, 116 F.3d 1315 (10th Cir.

PN ons 6 cebesnss seneesudceresedasudecusecéerpsdacn 14

Froebel v. Meyer, 217 F.3d 928 (7th Cir. 2000)

paueabhsnegaxevetsesaduatensubhsetser 1, 8, 9, 22, 27, 28

Froebel v. Meyer, 13 F. Supp.2d 843 (E.D. Wis.

PP cnbcccddtvdangncasunesiebutsdensisicvauscent 17, 29

General Elec. Capital Corp. v. Lease Resolution Corp.,

op @ ge be | eer err rrr rer 29

Vv

TABLE OF AUTHORITIES - Continued

Page

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473

ate LEA Er TOE ORE Cah GN 20

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 2 STA eee testis 12, 17

Heck v. Humphrey, 512 U.S. 477 ee re ae ae 18

Kerr-McGee Corp. v. Farley, 115 F.3d 1498 (10th Cir.

sated ET ee eT tee 14

Marrese v. American Academy of Orthopedic Sur-

geons, 470 U.S. 373 (1985)...:.............. 18, 23, 26

Missouri ex rel. Ashcroft v. Department of the Army,

672 F.2d 1297 (8th Cir. 1982)...................... 28

Middlesex County Bd. of Freeholders v. State of N.J.

Dept. of Envtl. Protection, 645 F. Supp. 715

BANG WW he heii cas hucere we ee 13, 14

National Wildlife Fed’n v. Consumers Power Co., 862

Pe TO CR WO inks cracks dass 28

National Wildlife Fed’n v. Gorsuch, 693 F.2d 156

catia sll mise LCE RE TT 28

Natural Resources Defense Council v. California Dep't

of Transp., 96 F.3d 420 (9th Cir. a POC TOT 10, 20

Patzer v. Board of Regents, 763 F.2d 851 (7th Cir.

WOO <sdh vb de thesabndastetivasetae Ee oe 27

Reservation Tel. Co-op. v. Three Affiliated Tribes, 76

ee eee Oa 14

Rybachek v. United States Envtl. Protection Agency,

904 F.2d 1276 (9th Cir. 1990)....................... 7

Staats v. County of Sawyer, 220 F.3d 511 (7th Cir.

MON hs bs di itAnded duevideds eee 9, 25, 26, 27

vi

TABLE OF AUTHORITIES - Continued

United States v. Deaton, 209 F.3d 331 (4th Cir. 2000) .

United States v. M.C.C. of Florida, Inc., 772 F.2d

BGOE CRBs Che, TOG cc cctcccacccccccccccscsdes

Waid v. Merrill Area Public Schs., 91 F.3d 857 (7th

Gon, BOO ccccennsdnedanséssuadskenueueeesse

White & Brewer Trucking, Inc v. Donley, 952 F. Supp.

R3BG CED. T. QUGED cc ccccccccessccsictsannsast

State Cases

American Brass Co. v. State Bd. of Health, 245 Wis.

GED CIDER) oo ccccccccccccsesvcndcaceccannesesace

Badger Paper Mills, Inc. v. Wisconsin Dep't of Natu-

ral Resources, 452 N.W.2d 797 (Wis. App. 1990) ....

Cudahy v. Department of Revenue, 224 N.W.2d 570

CUUERs BOFGED cccccoccccosccecccsecesecssesebesese

Froebel v. Wisconsin Dep't of Natural Resources, 579

N.W.2d 774 (Wis. App. 1998) .............. 12,

Hanlon v. Town of Merton, 612 N.W.2d 44 (Wis.

BERD. oncnceccascancsndecntnsenseansetassabanas

Hogan v. Musolf, 471 N.W.2d 216 (Wis. 1991) .....

Jocz v. L.I.R.C., 538 N.W.2d 588 (Wis. App. 1995) .

Kimberly-Clark Corp. v. Neenah, 329 N.W.2d 143

COMRe. BOGRD oc cnc vcvecsccctveccectesccasecsbaens

North Lake Management Dist. v. Wisconsin Dep't of

Natural Resources, 513 N.W.2d 703 (Wis. App.

RR ES PSs

Northern States Power Co. v. Bugher, 523 N.W.2d 723

CURE. WUGS <0 vdinecctucckucévetievesseosuonee

vii

TABLE OF AUTHORITIES - Continued

Page

Sewerage Comm'n v. Department of Natural

Resources, 307 N.W.2d 189 (Wis. 1981)............. 17

Sopha v. Owens-Corning Fiberglas Corp., 601 N.W.2d

er, GO Peta cesnsnkicineadwtaacescec..cc i... 23

State ex rel. Frederick v. Cox, 330 N.W.2d 603 (Wis.

OO Se nes Bhindi detyinieeesttes dao. 17

State Public Intervenor v. Department of Natural

Resources, 503 N.W.2d 305 (Wis. App. 1993)....... 16

Wisconsin Patients Compensation Fund v. Wisconsin

Health Care, 547 N.W.2d 578 (| ee 16

Docxetep Cases

In re Removal of Funks Dam, No. 3-SE-92-322, 1996

WL 263059 (Wis. Div. Hig. App. Feb. 21, 1996)

°°GOS040466Ch0ns6 so ehetnoceensesanseceeaai 2, 6, 23, 24

FEDERAL STATUTES

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PP nn TE a sina bh 6nd ebicdsuvedoccceccn.s ck A

Oe Ne I osecsegiseansseviesec.cc. 200 7,9

Vili

TABLE OF AUTHORITIES - Continued

Page

TB UGA. © UGB oc ccccnccccccccccescctovscsscuse passim

By Ree Oe GUD a koe eccccencesccececusssens i ia a

By Ts WF PEE os cdc béecces ccocscnaeniosnsaa 2, 12

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Oe Us Bo nc s bcc cictaesct bcescchasncssnseas 11

Bt Sot Ff | Oper rer ere rT 11, 13, 14, 16, 19

Ge PEs Bh Finn bho cad saunusisbersacéscacskenxons 11

GE UB... B BE. og vacas be ndeassucavesetctattessces 11

FepeRAL Rutes or Crvi. PROCEDURE

POL AE: BREED 6 2.6s.0ddccccesndceusseovens 7, 28, 29

kee! Be errr rrr re 7, 28, 29

StaTe STATUTES

Wile. Giak. © DEB? 6 svccsesccccnvensrs 4, 6, 20, 21, 22

Willa. Gant: B BER acco cecnccttecsdcdannetcatsaseuese 26

Win. SURE, BS Fre cccecccccdacentvassdusieusssuaeean 17

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, Kurt F. Froebel (hereinafter “Froebel”),

a private individual, respectfully prays that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Seventh Circuit,

entered in the above-entitled proceeding on June 28, 2000,

and with respect to which an order denying a petition for

rehearing and suggestion for rehearing en banc was

entered on July 28, 2000.

OPINIONS BELOW

The decision of the United States Court of Appeals for

the Seventh Circuit is reported at Froebel v. Meyer, 217 F.3d

928 (7th Cir. 2000), and appears in the Appendix at la-21a.

The decision and order of the United States District Court

for the Eastern District of Wisconsin is reported at Froebel

v. Meyer, 13 F. Supp.2d 843 (E.D. Wis. 1998), and appears in

the Appendix at 23a-88a. The decision of the district court

on Froebel’s motion for reconsideration is not reported,

but it appears in the Appendix at 89a-96a. The decision of

the Wisconsin Court of Appeals is reported at Froebel v.

Wisconsin Department of Natural Resources, 579 N.W.2d 774

(Wis. App. 1998)1, and appears in the Appendix at

97a-117a. The decision and order of the state administra-

tive law judge, Jeffrey D. Boldt, is unpublished, but is

’ A somewhat related case regarding whether it was

necessary for DNR to conduct a hearing concerning the need to

prepare an Environmental Impact Statement is reported at North

Lake Management District v. Wisconsin Department of Natural

Resources, 513 N.W.2d 703 (Wis. App. 1994).

available on Westlaw at In re Removal of Funks Dam, Case

No. 3-SE-92-322, 1996 WL 263059 (Wis. Div. Hrg. App. Feb.

21, 1996), and appears in the Appendix at 118a-140a.

,%

Vv

JURISDICTIONAL STATEMENT

The United States Court of Appeals entered its final

judgment in this matter on the same day that it issued its

decision, June 28, 2000. See App. 22a. Its order denying

Froebel’s Petition for Rehearing and Suggestion for

Rehearing En Banc was entered on July 28, 2000. App.

141a. This petition is filed within ninety (90) days of that

order pursuant to 28 U.S.C. § 2101(c), and this Court has

jurisdiction of this matter pursuant to 28 U.S.C. §§ 1254(1)

and 2106. |

,

_

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Clean Water Act, 33 U.S.C. § 1331(a)

(a) Except as in compliance with this section

and sections 302, 306, 307, 318, 402 and 404 of

this Act, the discharge of any pollutant by any

person shall be unlawful.

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

(a) Except as provided in subsection (b) of this

section, and section 1319(g)(6) of this title, any

citizen may commence a civil action on his own

behalf —

3

(1) against any person (including (i) the

United States, and (ii) any other govern-

mental instrumentality 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 lim-

itation under this chapter or (B) an order

issued by the Administrator or a State with

respect to such a standard or limitation, or

(2) against the Administrator where there

is alleged a failure of the Administrator to

perform any act or duty under this chapter

which is not discretionary with the Adminis-

trator.

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an

effluent standard or limitation, or such an order,

or to order the Administrator to perform such act

or duty, as the case may be, and to apply any

appropriate civil penalties under section 1319(d)

of this title.

(b) No action may be commenced -

(1) under subsection (a)(1) of this section -

(A) prior to sixty days after the plaintiff has

given notice of the alleged violation (i) to the

Administrator, (ii) to the State in which the

alleged violation occurs, and (iii) to any

alleged violator of the standard, limitation,

C¢ order, or

(B) if the Administrator or State has com-

menced and is diligently prosecuting a civil

or criminal action in a court of the United

States, or a State to require compliance with

the standard, limitation, or order, but in any

such action in a court of the United States

any citizen may intervene as a matter of

right.

Wisconsin Statutes, § 31.187(1)

(1) The department may remove or cause to be

removed, in such manner as it deems fit, old and

abandoned dams in streams in this state, upon

giving 60 days’ notice in writing to the owner

thereof, if the owner can be found. If the owner

of the dam is unknown or cannot, by due dili-

gence, be found, the department shall publish a

class 3 notice, under ch. 985, in the county in

which the dam is situated.

2

Vv

STATEMENT OF THE CASE

Funks Dam is located on the Oconomowoc River,

approximately one mile upstream from North Lake, in

Waukesha County, Wisconsin. It was built in approxi-

mately 1850. Behind Funks Dam is the Dam Impound-

ment, or flowage, containing all of the silt and sediment

that accumulated behind the dam over the course of 150

years.

In 1992, the Wisconsin Department of Natural

Resources (“DNR”) decided to remove the dam. However,

the DNR did not remove Funks Dam. Acting under the

auspices of George Meyer (“Meyer”), the Secretary of

DNR, and William Sturtevant (“Sturtevant”), a dam safety

engineer employed by DNR, Funks Dam was merely

breac red. .

With each ensuing large storm event, incredible

amounts of accumulated silt and sediment in the Dam

Impoundment were scoured from the bottom of the Dam

impoundment and discharged through the breach in

Funks Dam to the Oconomowoc River and North Lake.

The result was the formation of large silt and muck bars in

the riverbed and a delta at the mouth of the river in North

Lake. The flora and fauna that previously inhabited the

river environment were buried, in situ, literally killing the

river habitat below the dam. Additional silt “pulses” have

continued to emanate from the Dam Impoundment,

through the breach in Funks Dam, with each major storm

event. Waukesha County currently owns and controls the

property on which Funks Dam is located.

Seeking redress for the ongoing damage to the river

and lake he had used for hunting and fishing for decades,

Froebel initially intervened in a state administrative hear-

ing proceeding. The State Administrative Law Judge

(“ALJ”), however, concluded that his jurisdiction and

authority were limited and that he had no power to grant

Froebel any relief.

This case has a unique and extensive procedural

posture that raises serious issues as to the furis-

diction and authority of the ALJ. This case was

not noticed as an enforcement action or as a

hearing on the reasonableness or necessity for

any remedial actions by the Department or its

contractor. There is no specific statutory author-

ity for the ALJ to Order remedial actions by the

Department or its contractor in light of the Divi-

sion’s conclusion that the failure to follow the

drawdown and removal plan contributed to the

release of sediment into the waters of the state.

Under these circumstances, the ALJ believes the

best course is to remand the case back to the

Department to take such actions as the DNR sees

fit under the circumstances.

In re Removal of Funks Dam, 1996 WL 263059, App.

130a-31a.

Froebel then pursued an administrative appeal of the

State ALJ’s decision pursuant to the Wisconsin Adminis-

trative Procedure Act, Chapter 227, Wis. Stats., and during

the pendency of those proceedings, on May 8, 1996, he also

served his Notice of Intent to file a Clean Water Act

“citizens suit” in federal district court pursuant to 33

U.S.C. § 1365. App. 142a-49a.

Froebel commenced his Clean Water Act citizen suit

on June 6, 1997, while the state court litigation was then

pending before the Wisconsin Court of Appeals. On March

4, 1998, the Wisconsin Court of Appeals issued its deci-

sion, concluding that it too was bound by the unique terms

of § 31.187 of the Wisconsin Statutes, quoted ante at 4, and

was powerless to grant Froebel any relief with respect to

the ongoing harm to the Oconomowoc River and North

Lake:

The ALJ’s and the circuit court’s authority is

limited by statute. See Jocz, 196 Wis.2d at 291, 538

N.W.2d at 593.2 The statutes pertaining to the

regulation of dams and bridges affecting naviga-

ble waters are premised upon the powers of the

DNR to oversee their construction and mainte-

nance. See § 31.02, Stats. However, the statutes do

not provide for the regulation of the DNR itself

in this role, nor do they provide a manner in

which the DNR may be enjoined to take specific

2 Jocz v. L.I.R.C., 538 N.W.2d 588 (Wis. App. 1995).

7

remedial action. The ALJ, the circuit court, and

now this court cannot lawfully grant Froebel’s

request for relief because we are bound by the

statutes.

We join in the ALJ’s criticisms of the DNR’s

practices in this case. We would expect the DNR,

as the protector of this state’s natural resources

and the chief enforcer of our laws protecting

those assets, to abide by the rules which it

imposes and enforces on others. We also would

expect it to abide by the promises and represen-

tations it makes to the public regarding its own

activities. These expectations may perhaps

explain why the legislature has not deemed it

necessary to create laws which make the DNR

subject to the requirements imposed on others.

However, we cannot rewrite the existing laws to

accommodate Froebel’s legitimate complaints.

His arguments and his criticisms are more prop-

erly directed to the legislature.

Froebel, 579 N.W.2d at 783.

On July 30, 1998, the district court issued a lengthy

decision granting the defendants’ motions to dismiss the

complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), because

the sediment being scoured from the Dam Impoundment

and discharged through the breach in Funks Dam did not

constitute the discharge of a “pollutant” subject to regula-

tion under Section 402 of the Clean Water Act, 33 U.S.C.

§ 1342, and because the silt and muck bars forming in the

riverbed and at the mouth of the Oconomowoc River in

North Lake did not constitute “dredged or fill material”

subject to regulation under Section 404 of the Clean Water

Act, 33 U.S.C. § 1344. Froebel v. Meyer, 13 F. Supp.2d 843

(E.D. Wis. 1998). The district court subsequently denied

Froebel’s motion for reconsideration on October 23, 1998.

App. 89a-96a.

Because he believed the district court’s decision was

contrary to the decisions in Du Bois v. United States Depart-

ment of Agriculture, 102 F.3d 1273 (1st Cir. 1996); Committee

To Save Mokelumne River v. East Bay Municipal Utility Dis-

trict, 13 F.3d 305 (9th Cir. 1993); Rybachek v. United States

Environmental Protection Agency, 904 F.2d 1276 (9th Cir.

1990); United States v. M.C.C. of Florida, Inc., 772 F.2d 1501,

1506 (11th Cir. 1985); Avoyelles Sportsmen’s League, Inc. v.

Marsh, 715 F.2d 897, 923 (5th Cir. 1983),3 Froebel pursued

his appeal to the United States Court of Appeals for the

Seventh Circuit.

As to Meyer and Sturtevant, the Seventh Circuit held,

purporting to apply Wisconsin claim preclusion law, that

Froebel Could have, should have, but failed to assert his

claim under 33 U.S.C. § 1365 in the proceedings before the

State ALJ or the administrative appeal proceedings before

the Wisconsin courts and, accordingly, his claim under 33

U.S.C. § 1365 was legally barred by judicial doctrine of

“claim preclusion.” Froebel, 217 F.3d at 935-36 (7th Cir.

2000).*

3 The district court’s decision also appears to be

inconsistent with two more recent decisions in United States v.

Deaton, 209 F.3d 331 (4th Cir. 2000) and Driscoll v. Adams, 181

F.3d 1285 (11th Cir. 1999).

4 Nineteen days later, on July 17, 2000, while Froebel’s

petition for rehearing was still pending before the court, the

same Judge, writing for a different panel of the Seventh Circuit,

issued a decision purporting to apply the same Wisconsin rules

of claim preclusion in a case arising under the Americans with

Disabilities Act, 42 U.S.C. § 1201, et seq., reaching precisely the

As to Waukesha County, the Seventh Circuit held that,

since the County was not engaged in any active conduct, it

could not be held responsible for the pulses of silt being

discharged through the breach in Funks Dam. Id. at 939.5

Froebel’s petition for rehearing was subsequently denied

on July 28, 2000. App. 141a.

+

ARGUMENTS IN FAVOR

OF GRANTING THE WRIT

This case presents some extremely important issues

that deserve the immediate attention of the Court. There is

a split of authority in the Circuit Courts of Appeal as to

whether federal jurisdiction of “citizen suits” is exclusive

or shared concurrently with state courts. In this case, the

Seventh Circuit held that claims under the Clean Water

Act, 33 U.S.C. § 1365, may be brought in state courts and

may even be asserted in state administrative hearing pro-

ceedings before state Administrative Law Judges (“State

ALJs”). Because, according to the Seventh Circuit, Froebel

apparently could have but failed to bring his Clean Water

Act citizen suit claim in a state administrative proceeding

opposite result. Staats v. County of Sawyer, 220 F.3d 511 (7th Cir.

2000). There is no basis for reconciling the two decisions

applying the same law but reaching the opposite result.

> Contrary to the Seventh Circuit's decision, Froebel never

conceded that Waukesha County was not subject to Sections 402

or 404 of the Clean Water Act, 33 U.S.C. §§ 1342, 1344. What was

conceded was that Waukesha County had nothing to do with

breaching Funks Dam, that it was not engaged in any active

conduct, and that it was doing nothing to eliminate the ongoing

sediment discharges.

10

or the administrative appeal from the final decision ren-

dered in that proceeding, the Seventh Circuit held that the

citizen suit he brought in federal court was legally barred

by the judicial doctrine of “claim preclusion.”

If the intent of Congress to enlist the aid of citizen suit

plaintiffs to enforce the uniform, minimum standards of

federal environmental laws is to be fulfilled,® it is

extremely important for citizen suit plaintiffs to know

when, where and how to invoke the rights given to them

by Congress. At present, they are left to guess, or they are

compelled to forego pursuit of state administrative

remedies in order to preserve their federal rights.” It is

equally important for State ALJs and state courts to know

that they actually have broader powers and jurisdiction to

enforce federal statutes and regulations, conferred upon

them by Congress, rather than being constrained by the

state statutes and regulations which would otherwise

define the limits of their jurisdiction and authority.

Additionally, since the same statute creating the same

claim that the Seventh Circuit held could have been

brought in the state administrative hearing proceeding or

state court in this case, also authorizes citizen suits against

the Administrator of U.S. EPA to compel her to perform

6 See Natural Resources Defense Council v. California Dep't of

Transp., 96 F.3d 420, 424 (9th Cir. 1996), quoting, S. Rep. No. 414,

92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3668,

3746.

7 Such a result is completely contrary to the plain terms of

33 U.S.C. § 1365(e), which preserves “any right which any

person (or class of persons) may have under any statute or

common law... .”

Lineman

11

her mandatory duties, the Seventh Circuit's decision, if

followed, would indicate that Congress intended to confer

upon every state court of general jurisdiction and every

State ALJ the authority to entertain and adjudicate claims

against the Administrator of U.S. EPA. It is doubtful that

Congress intended such a result.

I. There Is a Split of Authority in the Circuits Regard-

ing the Exclusivity of Federal Jurisdiction of Environ-

mental Citizen Suits.

The Clean Water Act (“CWA”), the Resource Conser-

vation and Recovery Act (“RCRA”), and the Clean Air Act

(“CAA”) all have substantially similar “citizen suit” provi-

sions. 33 U.S.C. § 1365; 42 U.S.C. § 6972; 42 U.S.C. § 7604.8

Each of these statutes contain similar language to 33 U.S.C.

§ 1365:

(a) Except as provided in subsection (b) of this

section, and section 1319(g)(6) of this title, any

citizen may commence a civil action on his own

behalf -

(1) against any person (including (i) the

United States, and (ii) any other govern-

mental instrumentality or agency to the

extent permitted by the eleventh amendment

to the Constitution) who is alleged to be in

® Other examples of “citizen suit” statutes can be found in

the Emergency Planning and Community Right-to-Know Act of

1986 (“EPCRA”), 42 U.S.C. § 11046, the Endangered Species Act

(“ESA”), 16 U.S.C. § 1540(g), the Noise Control Act of 1972

(“NCA”), 42 U.S.C. § 4911, and the Surface Mining Control and

Reclamation Act of 1977 (“SMCRA”), 30 U.S.C. § 1270.

12

violation of (A) an effluent standard or lim-

itation under this chapter or (B) an order

issued by the Administrator or a State with

respect to such a standard or limitation. . . .

* * *

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an

effluent standard or limitation, or such an order,

or to order the Administrator to perform such act

or duty, as the case may be, and to apply any

appropriate civil penalties under section 1319(d)

of this title.

33 U.S.C. § 1365(a) and (b) (emphasis added).

As required by this Court’s decision in Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S.

49 (1987), Froebel served his Notice of Intent to pursue a

claim for injunctive relief under 33 U.S.C. § 1365 on May 8,

1996, after the decision of the State ALJ was issued on

February 21, 1996, but more than seven months before the

final judgment was entered in the state court judicial

review proceedings on December 27, 1996, and almost two

years before the Wisconsin Court of Appeals issued its

decision in the case on March 4, 1998. Froebel v. Wisconsin

Department of Natural Resources, 579 N.W.2d 744 (Wis. App.

1998). The Complaint was filed in federal district court on

June 6, 1997, while the appeal was still pending before the

Wisconsin Court of Appeals. At no time after the Notice of

Intent was served, and before the complaint was filed in

federal district court, did anyone ever argue or suggest

13

that Froebel could have or should have brought his 33

U.S.C. § 1365 claim in the state courts.9

The reason none of the Parties to the state court

proceedings suggested that Froebel bring his § 1365 claim

in state court was the fact that, at the time, all of the

relevant federal authorities uniformly held, either directly

or inferentially, that federal jurisdiction of claims under

the virtually identical language of the RCRA citizen suit

Statute, 42 U.S.C. § 6972, was exclusively federal:

Here, plaintiff could not have raised its RCRA

claim in the Superior Court of New Jersey. 42

U.S.C. § 6972(a)(1)(B)(2) provides in relevant

part:

“Any action under paragraph (a)(1) of this

subsection shall be brought in the district

court for the district in which the alleged

violation occurred or the alleged endanger-

ment may occur.”

This provision constitutes a grant of exclusive

jurisdiction over citizens’ suits pursuant to

RCRA to the United States Courts.

Middlesex County Bd. of Freeholders v. State of N.J. Dept. of

Env. Protection, 645 F. Supp. 715, 719 (D.N.J. 1986).

° See England v. Louisiana State Bd. of Med. Exam'r, 375 US.

411 (1964) (holding that plaintiff could reserve his right to

return to federal court under 42 U.S.C. § 1983 after exhausting

his rights in state administrative proceedings); Bradley v.

Pittsburgh Bd. of Educ., 913 F.2d 1064, 1072-73 (3d Cir. 1990)

(holding that the subsequent federal claim was not precluded

because the opposing party in the state claim had notice of the

plaintiff’s reservation of a federal right and did not object).

14

The reasoning of the court in Middlesex County was

followed by the United States Court of Appeals for the

Eighth Circuit in Blue Legs v. U.S. Bureau of Indian Affairs,

867 F.2d 1094, 1098 (8th Cir. 1989): “The RCRA places

exclusive jurisdiction in federal courts for suits brought

pursuant to section 6972(a)(1) of the Resource Conserva-

tion and Recovery Act.” See also Reservation Tel. Co-op. v.

Three Affiliated Tribes, 76 F.3d 181, 185 (8th Cir. 1996),

distinguishing Blue Legs based on the exclusivity of federal

jurisdiction under RCRA; Kerr-McGee Corp. v. Farley, 115

F.3d 1498 (10th Cir. 1997), similarly distinguishing Blue

Legs based on the exclusivity of federal jurisdiction under

RCRA; and Fletcher v. United States, 116 F.3d 1315, 1327

(10th Cir. 1997), similarly distinguishing Blue Legs based

on the exclusivity of federal jurisdiction under RCRA.

In refusing to abstain in a RCRA citizen suit, yet

another court had held: “It is because the RCRA Citizen

Suit is exclusively a federal cause of action that the Court

finds Burford abstention to be inappropriate in the case at

bar.” White & Brewer Trucking, Inc. v. Donley, 952 F. Supp.

1306, 1312 (C.D. Ill. 1997).

Froebel submits it was reasonable for him to rely on

the foregoing federal authorities to conclude that jurisdic-

tion of his Clean Water Act claim under 33 U.S.C. § 1365

was exclusively vested in the federal courts, and that he

could pursue his Clean Water Act claim in federal court

after having exhausted whatever remedies were available

to him under state law in the state administrative proceed-

ings. In fact, to the best of Froebel’s knowledge, after

exhaustive research, the decision of the Seventh Circuit in

this case is the first case in the nation to hold or even

15

suggest that a State ALJ or a state court conducting admin-

istrative judicial review proceedings, or any state court for

that matter, has jurisdiction to entertain a claim under 33

U.S.C. § 1365.

It was not until June, 1998, a year after Froebel com-

menced his action in the federal district court, that a split

in authority in the Circuit Courts of Appeal developed

regarding the exclusivity of federal court jurisdiction of

citizen suits under the comparable language of the RCRA

citizen statute, 42 U.S.C. § 6972. A divided panel of the

Sixth Circuit Court of Appeals issued its decision in Davis

v. Sun Oil Co., 148 F.3d 606, 611-12 (6th Cir. 1998), rejecting

the Eighth Circuit’s decision in Blue Legs and other prior

precedents, and holding that state courts of general juris-

diction had concurrent jurisdiction to entertain claims

under 42 U.S.C. § 6972.10

There is still no decision, other than the Seventh Cir-

cuit’s in this case, that stands for the Proposition that state

courts of general jurisdiction, much less State ALJs or state

courts conducting administrative judicial review proceed-

ings in an appellate capacity, have jurisdiction to entertain

claims under 33 U.S.C. § 1365. Nevertheless, it is very

important to address the divergence of authority concern-

ing the exclusive/concurrent jurisdiction dichotomy now.

If the problem is not addressed and resolved, citizen

suit plaintiffs in the position of Froebel are left to guess

where, when and how they are supposed to exercise their

1° Significantly, the Sixth Circuit did not address whether

the statutory scheme of RCRA would plainly be disrupted by

the exercise of concurrent state court jurisdiction because the

appellants never made the argument. Id. at 612 n.5.

OC

16

rights under 33 U.S.C. § 1365, or the RCRA citizen suit

statute, 42 U.S.C. § 6972, or other, comparable citizen suit

statutes. As Judge Boggs wrote in Davis, concurring in part

and dissenting in part:

The difficulty for the Davises was compounded

by the fact that no court, so far as I can tell, had

ever held that RCRA cases could be brought in

state court, and that numerous courts had either

held or assumed that jurisdiction was exclusively

federal. Nor do we find any report of a RCRA

citizens action ever being brought in an Ohio

court.

Id. at 614-15."

Applying the reasoning of the Seventh Circuit, and

assuming that State ALJs and agencies continue to follow

the black letter rule of Wisconsin law that they have only

such powers as are expressly conferred on them by state

statutes,!2 citizen suit plaintiffs will likely be forced to

choose between exercising their rights under state law or

federal law.

11 It was fortunate for the Davises, unlike Froebel in this

case, that the Ohio state court was competent to grant them

virtually all the relief they were seeking in federal court, with

the exception of the assessment of penalties, including: (a) an

injunction to clean up the property, with a surety bond to secure

performance; (b) money damages equal to the costs the Davises

had already incurred; and (c) punitive damages for the fraud

perpetrated by Sun Oil Company. Id. at 608.

12 See, e.g., Wisconsin Patients Compensation Fund v.

Wisconsin Health Care, 547 N.W.2d 578, 582 (Wis. 1996); accord

State Public Intervenor v. Department of Natural Resources, 503

N.W.2d 305 (Wis. App. 1993), and Kimberly-Clark Corp. v. Neenah,

329 N.W.2d 143 (Wis. 1983).

17

Most administrative appeal and hearing rights expire

after thirty or sixty days days, see § 227.53, Wis. Stats.,13

most likely long before the expiration of the mandatory

sixty (60) day notice period under 33 U.S.C. § 1365. See

Gwaltney, 484 U.S. 49. It is also well established that judi-

cial review under the Wisconsin Administrative Procedure

Act, Chapter 227, Wis. Stats., is the exclusive remedy for

Wisconsin citizens seeking relief from final, state agency

decisions. State ex rel. Frederick v. Cox, 330 N.W.2d 603 (Wis.

App. 1982) (affirming dismissal of attempted quo warranto

action). Since judicial review proceeding must be initiated

within thirty days, § 227.53, Wis. Stats., and since 33 U.S.C.

§ 1365 requires a 60-day notice it was impossible for

Froebel to bring the administrative judicial review pro-

ceedings as a pendant state claim in federal court.

Forcing citizens to give up their rights under state law,

or risk losing their rights under federal law due to claim

preclusion, is plainly contrary to the terms of 33 U.S.C.

§ 1365(e):

(e) Nothing in this section shall restrict any

right which any person (or class of persons) may

have under any statute or common law to seek

13 See Sewerage Commission v. Department of Natural

Resources, 307 N.W.2d 189, 193-95 (Wis. 1981) (declaratory

judgment action was properly dismissed where Commission

failed to pursue administrative remedies in a timely fashion);

Cudahy v. Department of Revenue, 224 N.W.2d 570 (Wis. 1974)

(failure to timely file and serve petition for judicial review

within thirty days of agency decision deprives a reviewing

court of subject matter jurisdiction).

18

enforcement of any effluent standard or limita-

tion or to seek any other relief (including relief

against the Administrator or a State agency).

And, as Justice Scalia wrote in Heck v. Humphrey, 512 U.S.

477, 488 n.9 (1994):

The federal rules on the subject of issue and

claim preclusion, unlike those relating to exhaus-

tion of state remedies, are “almost entirely judge-

made.” [citations omitted] And in developing

them the courts can, and indeed should, be

guided by the federal policies reflected in con-

gressional enactments.

Given the clear terms of § 1365(e), it certainly isn’t federal

policy to induce potential citizen suit plaintiffs to forfeit

their state law rights in order to avoid the application of

claim preclusion. Froebel’s pursuit of his exclusive

remedies under state law is entirely consistent with and

appropriate under § 1365(e).

The Seventh Circuit’s application of claim preclusion

in this case is not consistent with the statute or the holding

of this Court that:

We therefore reject a judicially created exception

to § 1738 that effectively holds as a matter of

federal law that a plaintiff can bring state law

claims initially in state court only at the cost of

foregoing subsequent federal antitrust claims.

Marrese v. American Academy of Orthopedic Surgeons, 470

U.S. 373, 386 (1985). Given the explicit findings of the State

ALJ and the Wisconsin Court of Appeals, regarding the

strict limitations on their jurisdiction and authority, the

Seventh Circuit has done precisely what this Court refused

to do.

19

With the divergence of authority in the Circuit Courts,

there are also substantial policy and statutory interpreta-

tion questions that are raised by the Seventh Circuit’s

decision, which should be addressed promptly by the

Court. If Congress intended State ALJs and state courts to

have concurrent jurisdiction of claims for injunctive relief

under 33 U.S.C. § 1365(a)(1), it must have similarly

intended to-confer concurrent jurisdiction on State ALJs

and state courts to entertain claims against the Adminis-

trator of U.S. EPA under § 1365(a)(2). Subjecting the

Administrator to the jurisdiction of a wide variety of state

administrative tribunals, with widely divergent procedural

rules, as well as every state court of general jurisdiction in

over fifty states and territories is a serious matter. 14

The prospect of the removal to federal court of large

numbers of state administrative proceedings and permit-

ting decisions, based on federal question jurisdiction and

putative claims under 33 U.S.C. § 1365 or other citizen suit

Statutes, should also be a substantial cause for concern. See

City of Chicago v. Intern. College of Surgeons, 522 U.S. 156

(1997). Given the plain language of § 1365 that “the district

courts shall have jurisdiction” of such claims, it is difficult

to argue against federal removal jurisdiction when there is

an issue regarding federal effluent limitations or an

allegedly unperformed mandatory duty on the part of the

Administrator.

This is not a situation in which a federal cause of

action is created for awarding individual money damages

4 This same problem also arises with respect to the Sixth

Circuit’s construction of RCRA, 42 U.S.C. § 6972, in Davis v. Sun

Oil Co., 148 F.3d 606, 611-12 (8th Cir. 1998).

20

in an action comparable to a common law tort. see Gulf

Offshore Co. v. Mobil Oil Corp, 453 U.S. 473, 483-84 (1981).

Congress clearly intended the Clean Water Act and other

environmental protection statutes to establish uniform,

baseline federal standards, and there is a substantial fed-

eral interest in the uniform enforcement of those minimum

federal standards. See Natural Resources Defense Council v.

California Dep't of Transp., 96 F.3d 420, 424 (9th Cir. 1996),

quoting S. Rep. No. 414, 92d Cong., 2d Sess. (1972),

reprinted in 1972 U.S.C.C.A.N. 3668, 3746. The fact of the

matter is that federal judges, who do not face the political

pressures of being elected after forcing a local industry to

comply with a federal effluent limitation, are in a better

position to enforce those minimum federal standards on a

uniform basis. As shown by what transpired in this case,

and the truly unique terms of § 31.187, Wis. Stats., it is

problematic to ask State ALJs and state courts to disregard

state laws and regulations in favor of enforcing federal

laws and standards.

All of these are relevant concerns in determining

whether jurisdiction under 33 U.S.C. § 1365 should be

exclusively federal or concurrent with State ALJs and state

courts. Froebel further submits that, even in the absence of

the plain language of § 1365(e), citizen suit plaintiffs

should be encouraged to pursue administrative remedies

under state law, rather than be discouraged or foreclosed

from pursuing state law remedies due to specter of claim

preclusion.

21

II. The Court of Appeals’ Decision is Contrary to

Prior Decisions of This Court and Its Own Deci-

sions.

There were several problems that the State ALJ and

the Wisconsin Court of Appeals had to wrestle with in this

case. First, the State ALJ found that he had very limited

jurisdiction. Although he could evaluate the reasonable-

ness of the initial decision to remove Funks Dam, he found

that he had no jurisdiction to consider the manner in which

it was “removed” or the consequences of the manner in

which it was “removed.” The Wisconsin Court of Appeals

had no more jurisdiction than the State ALJ, and it was

further forced to follow the state Statutes and conclude

that the unique terms of § 31.187, Wis. Stats., allowing

DNR to remove dams “in such manner as it deems fit,”

essentially trumped all of the other Statutory standards

and prohibitions that might have otherwise been applica-

ble. As the district court noted, Meyer and Surtevant did

not enjoy any such special exemption from the federal

standards and effluent limitations in the Clean Water Act.

When different legal standards are applicable to dif-

ferent proceedings, this Court has refused to apply claim

preclusion in the subsequent Proceeding. A case in point is

Cooper v. Federal Reserve Bank of Colorado, 467 U.S. 867

(1984). In that case, the Court considered the preclusive

effect of a judgment rendered in a class action, where the

test was whether there was an established general pattern

or practice of racial discrimination within the class, upon

subsequent individual claims brought by members of the

class, in which the test was whether the employer had

22

intentionally discriminated against the individual in mak-

ing the individual employment decision. This Court con-

cluded that claim preclusion was inappropriate.

That judgment (1) bars the class members from

bringing another class action against the Bank

alleging a pattern or practice of discrimination

for the relevant time period and (2) precludes the

class members in any other litigation with the

Bank from relitigating the question whether the

Bank engaged in a pattern and practice of dis-

crimination against black employees during the

relevant time period. The judgment is not, how-

ever, dispositive of the individual claims the Bax-

ter petitioners have alleged in their separate

action.

Id. at 880. The same test should apply here. The fact that

Meyer and Sturtevant may have had authority under

§ 31.187, Wis. Stats., to “remove” Funks Dam in any man-

ner they deemed fit, does not mean that the manner they

deemed fit to remove Funks Dam, or the state that they

left it in, did not violate the statutory prohibition of the

Clean Water Act in 33 U.S.C. § 1331(a):

(a) Except as in compliance with this section

and sections 302, 306, 307, 318, 402 and 404 of

this Act, the discharge of any pollutant by any

person shall be unlawful.

As even the Seventh Circuit noted, the Wisconsin

Legislature cannot authorize or sanction a violation of

federal law. Froebel, 217 F.3d at 937. The Seventh Circuit's

statement that the State ALJ or the state courts would have

refused to follow state law, “if Froebel had given them the

chance,” id., is sheer speculation and contrary to the clear

23

language in the decisions of the State ALJ and the Wiscon-

sin Court of Appeals, concluding that they were compelled

to follow state law despite their dissatisfaction with the

consequences. In re Removal of Funks Dam, 1996 WL 263059,

App. 64a-65a; Froebel, 579 N.W.2d at 783; quoted ante at 5-7.

The Seventh Circuit’s decision in this case is also

inconsistent with the rule enunciated by Justice O’Conner

in Marrese, 470 U.S. at 383:

To the extent that state preclusion law indicates

that a judgment normally does not have claim

preclusive effect as to matters that the court

lacked jurisdiction to entertain, lower courts and

commentators have correctly concluded that a

State court judgment does not bar a subsequent

federal antitrust claim.

Jurisdictional competency is, in fact, one of the essential

elements of the rules of claim preclusion in Wisconsin:

Under the doctrine of claim preclusion, a subse-

quent action is barred when the following three

factors are present: (1) identity between the Par-

ties or their privies in the prior and present suits;

(2) prior litigation resulted in a final judgment on

the merits by a court with jurisdiction; and (3)

identity of the causes of action in the two suits.

Sopha v. Owens-Corning Fiberglas Corp., 601 N.W.2d 627, 637

(Wis. 1999). In this case there was a specific finding by the

ALJ that he lacked jurisdiction to grant the relief requested

by Froebel.

The ALJ concludes that the Division does not

have authority to order the Department to draw

up a remedial action plan to address the sedi-

ment loading in the Oconomowoc River and

24

North Lake. Administrative agencies have only

such powers as are expressly granted to them or

necessarily implied and any power sought to be

exercised must be found within the four corners

of the statute under which the agency proceeds.

American Brass Co. v. State Bd. of Health, 245 Wis.

440 (1944).

In re Removal of Funks Dam, 1996 WL 263059, App.

135a-36a. Given the explicit conclusions of the State ALJ

and the Wisconsin Court of Appeals regarding their lim-

ited jurisdiction and authority, Wisconsin would clearly

not apply claim preclusion in this case.

The case relied on by the Seventh Circuit, Northern

States Power Co. v. Bugher, 523 N.W.2d 723 (1995) is com-

pletely inapposite to this case. Northern States involved a

claim under 42 U.S.C. § 1983, seeking recoupment of taxes

under an allegedly unconstitutional state taxation scheme.

Id. at 547-48. As such, the action could not have been

brought in federal court because it would have run afoul

of the Tax Injunction Act, 28 U.S.C. § 1341. See Hogan v.

Musolf, 471 N.W.2d 216 (Wis. 1991). More importantly, in

Hogan, the Wisconsin Supreme Court had already con-

cluded that the administrative remedy before the Wiscon-

sin Tax Appeals Commission was “plain, adequate and

complete.” Id. at 223; citing Fair Assessment in Real Estate

Assn. v. McNary, 454 U.S. 100, 116 (1981). And, unlike this

case, the Wisconsin Supreme Court had also concluded

that the Tax Appeals Commission had limited jurisdiction

to consider the constitutionality of continuing a state taxa-

tion scheme.

25

Where the United States Supreme Court has held

that another state’s taxing scheme, which is sub-

stantially similar to Wisconsin’s, violates federal

law or the constitution, we conclude that the

Department and the Commission have the

authority to determine whether the continued

application of the Wisconsin taxing scheme also

violates federal law or the constitution.

Hogan, 471 N.W.2d at 224.

Based on these holdings, the Wisconsin Supreme

Court in Hogan held that a § 1983 action could not be

commenced until after the available administrative

remedies had been exhausted. The problem for Northern

States was that it could not exhaust its administrative

remedies because it had failed to raise the constitutional

issue before Tax Appeals Commission in a timely fashion,

thereby depriving the reviewing court of the ability to

consider the issue. Northern States, 525 N.W.2d at 547. The

~ case does not support the application of claim preclusion

where, as here, the State ALJ and the Wisconsin Court of

Appeals concluded that they had no jurisdiction or author-

ity to afford Froebel any relief.

Finally, the patent error of the Seventh Circuit’s deci-

sion in this case is demonstrated by the fact that the same

judge, Judge Wood, writing for a different panel of the

same court, applying the same Wisconsin law, in a case

where the administrative agency actually had jurisdiction

to grant meaningful relief, reached exactly the opposite

conclusion as the panel in this case. On July 17, 2000, while

Froebel’s petition for rehearing was still pending before

the Seventh Circuit, the court issued its decision in Staats,

220 F.3d 511, reversing the district court’s application of

26

claim preclusion in a case arising under the Americans

with Disabilities Act, 42 U.S.C. § 1201, et seq.

The procedural history in Staats involved a County

employee who suffered from bipolar disorder. The County

eliminated his position of employment, and he filed a

discrimination claim under the Wisconsin Fair Employ-

ment Act (“WFEA”), § 111.31, Wis. Stats. The case was

heard by an ALJ, who ruled in his favor, but the ALJ was

reversed on appeal to the Labor and Industry Review

Commission (“LIRC”), which found no violation of the

WFEA. The employee timely sought judicial review in the

state circuit court under Chapter 227, Wis. Stats., and the

circuit court affirmed the decision of the LIRC, based on

the administrative record. Id. at 513.

At the same time as he was pursuing his administra-

tive remedies under the WFEA, the employee filed a claim

with the Equal Employment Opportunities Commission

(“EEOC”), asserting that he had been discriminated

against on the basis of his medical condition. The EEOC

issued a “right to sue” letter, and the employee filed his

complaint in federal district court. The County moved to

dismiss the complaint on the ground that the prior judg-

ment in the state circuit court barred the subsequent fed-

eral lawsuit. The district court agreed with the County and

dismissed the Complaint on the basis of claim preclusion.

Id. at 514.

The Seventh Circuit reversed, citing its own decision

in Waid v. Merrill Area Public Schools, 91 F.3d 857 (7th Cir.

1996) and this Court’s decision in Marrese as support for

the proposition that claim preclusion was inappropriate.

Staats, 220 F.3d at 516. The Seventh Circuit also rejected the

iteen ee

27

notion that the employee could have commenced two

separate actions in state court and then move to have them

consolidated. Id. at 517; citing Hanlon v. Town of Merton, 612

N.W.2d 44, 48-9 (Wis. 2000) (holding that failure to join a

42 U.S.C. § 1983 claim with a certiorari proceeding under

Chapter 68, Wis. Stats., did not result in the § 1983 claim

being precluded).

Froebel submits that it is impossible to reconcile the

decision in this case with the decision in Staats, or the

Seventh Circuit’s decisions in Waid and Patzer v. Board of

Regents, 763 F.2d 851, 855 (7th Cir. 1985). Although the

Seventh Circuit speculated that the jurisdiction of the State

ALJ or the Wisconsin Court of Appeals might have been

broad enough to entertain Froebel’s claim under 33 U.S.C.

§ 1365, Froebel, 217 F.3d at 936,15 Staats, 220 F.3d at 517,

such speculation was clearly inconsistent with the State

ALJ's and the Wisconsin Court of Appeals’ construction of

their own, very limited jurisdiction.

The seemingly random application of claim preclusion

by the Seventh Circuit is inconsistent with the prior deci-

sions of this Court. It also frustrates the Purpose of 33

U.S.C. § 1365 and other statutes creating federal rights and

causes of action. Potential plaintiffs should know when,

where and how to assert those rights and causes of action

without risking claim preclusion if they unwittingly chose

the wrong forum. The Court should accept review of this

‘5 A cursory review of the case cited by the Seventh Circuit

for this proposition, Badger Paper Mills, Inc. v. Wisconsin

Department of Natural Resources, 452 N.W.2d 797, 800 (Wis. App.

1990), will demonstrate that it doesn’t stand for the proposition

for which it was cited.

28

case to clearly establish when claim preclusion is appropri-

ate in these circumstances.

III. The Court of Appeals Improperly Resolved Dis-

puted Facts in an Appeal From a Judgment Entered

Upon Motions Pursuant to Fed.R.Civ.P. 12(b)(1) and

12(b)(6).

The Seventh Circuit found that it could not rely on

claim preclusion to affirm the dismissal of the claim

against Waukesha County. Froebel, 217 F.3d at 934. The

Seventh Circuit acknowledged that other Circuits had con-

sidered when a dam can be a point source of pollutants, id,

at 937,16 but it relied on the “facts” of this case to distin-

guish the decisions of other circuits.

Our case, at least as far as Waukesha County

goes, presents a very different problem. Funk’s

Dam is mostly gone, and the supposed “point

source” is really nothing more than the hole

through which the Oconomowoc River flows

unrestrained.

Id. at 937. These are disputed facts. Funks Dam is not

“mostly gone.” It is still there, albeit with a hole in it. Nor

does the Oconomowoc River flow through the dam “unre-

strained.” The carrying capacity or flow capacity of the

hole in the dam is not sufficient to handle the flow of the

river after large storm events. As a result, the river backs

16 The court cited to Committee to Save Mokelumne River, 13

F.3d at 308; National Wildlife Fed’n v. Consumers Power Co., 862

F.2d 580, 584 (6th Cir. 1988); National Wildlife Fed’n v. Gorsuch,

693 F.2d 156, 165 n.22 (D.C.Cir. 1982); Missouri ex rel. Ashcroft v.

Department of the Army, 672 F.2d 1297, 1304 (8th Cir. 1982).

———— Ee

29

up behind the dam, the churning waters scour more accu-

mulated sediment from the bottom of the Dam Impound-

ment, and another pulse of silt and sediment is discharged

through the hole in the dam to the riverbed and lake

downstream. 17

The complaint was dismissed on the basis of motions

filed pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6). The

district court correctly recognized that it was bound to

accept all well pleaded facts in the complaint as true,

drawing all reasonable inferences in favor of the plaintiff,

and only grant the motion if the plaintiff could prove no

set of facts entitling him to relief. Froebel, 13 F. Supp.2d at

848; citing General Elec. Capital Corp. v. Lease Resolution

Corp. 128 F.3d 1074, 1080 (7th Cir. 1997). Froebel submits

that the Seventh Circuit should have followed the same

rules. It should not have resolved factual issues to fit its

decision.

Counsel for Froebel did not concede that the Clean

Water Act cannot apply to a passive owner of a point

source of pollutants. What was conceded was that Wau-

kesha County had not been actively involved in breaching

Funks Dam and that Waukesha County was not engaged

in any active conduct, including doing anything to miti-

gate or stop the sediment discharges from the Dam

Impoundment. However, just because you are merely a

Passive owner of a building with a Pipe discharging pollu-

tants to a river, doesn’t mean you don’t have a legal

17 The hydraulic mechanics of the situation were explained

in the affidavit and report of Dr. Jerry Kaster, which was

submitted to the district court in support of Froebel’s motion for

reconsideration in the district court. See App. 90a.

30

obligation to stop the discharge or get a permit for it. See,

e.g., Driscoll, 181 F.3d at 1290-91.

¢

CONCLUSION

The Seventh Circuit’s decision in this case is anoma-

lous in its holding that a State ALJ, with limited statutory

jurisdiction, and a state court conducting a limited admin-

istrative judicial review proceeding, nonetheless have

jurisdiction to entertain a citizen suit under 33 U.S.C.

§ 1365. Its application of claim preclusion in this case is

plainly inconsistent with the prior decisions of this Court,

Wisconsin rules of claim preclusion, and the Seventh Cir-

cuit’s own decisions. The disposition respecting Waukesha

County substantially undercuts an important federal envi-

ronmental protection statute.

Based on the foregoing points and authorities, Froebel

urges the Court to grant this petition, accept review of this

matter and reverse the decision of the Court of Appeals.

Respectfully submitted,

WituiaM S. Rousu, Jr.

Counsel of Record

Davis & KUELTHAU, S.C.

111 East Kilbourn Avenue

Suite 1400

Milwaukee, WI 53202

(414) 276-0200

la

In the

United States Court of Appeals

for the Seventh Circuit

No. 98-3925

Kurt FROEBEL

Plaintiff-Appellant,

GEORGE E. MEYER, ET AL.,

Defendants-Appellees. ;

Appeal from the United States District Court

for the Eastern District of Wisconsin

No. 97-C-654 — Lynn Adelman, Judge.

ARGUED May 14, 1999 — Decipep JuNE 28, 2000

BerorE FLauM, EASTERBROOK, and DIANE P. Woop, Cir-

cuit Judges.

Diane P. Woop, Circuit Judge. In 1992, the Wisconsin

Department of Natural Resources (“WDNR”) completed

the process of destroying Funk’s Dam, which had blocked

the Oconomowoc River for nearly 150 years. After the

dam was removed, silt and sediment that had built up

over nearly 150 years damaged the river downstream

from the former dam. Kurt Froebel believed that these

actions violated state environmental laws, so he sought a

Wisconsin administrative order requiring the defendants

to fix the problem. His efforts were stymied both there

and on appeal to the Wisconsin courts.

2a

Froebel then turned to federal court, where he filed

the complaint in this action under the citizen suit provi-

sion of the Clean Water Act (“CWA”), 33 U.S.C. § 1365

(1994). The district court held that Froebel’s suit was not

barred by claim preclusion, but that his complaint should

be dismissed for failure to state a claim. We agree that

dismissal was proper, but for largely different reasons.

Froebel’s claims, except those against Waukesha County,

are indeed barred by claim preclusion. We agree that

Froebel has not stated a claim against the county, and we

therefore affirm the district court’s judgment in its

entirety.

i

Funk’s Dam was built in 1850. It dams the

Oconomowoc River near the town of Merton, Wisconsin.

Over the next 115 years, it was rebuilt twice, but in 1965 it

washed out and was not repaired. In 1971, WDNR

informed the dam’s owner, Gerald Quinn, that it needed

to be fixed, but Quinn refused and in 1975 the dam

washed out again. Quinn again failed to comply with the

agency’s orders, prompting WDNR in 1982 to declare the

dam unsafe and abandoned. At that point, the agency

indicated that it intended to remove the dam. However,

WDNR did not have access to the funds necessary for

removal until nearly ten years later.

Finally, in August 1992, WDNR began the drawdown

process and conducted hearings concerning the dam’s

removal. On October 2, removal began. In devising its

removal strategy, WDNR relied on two studies conducted

by its employees. The first was a 1986 sediment survey

3a

conducted by employee Mike Bozek. The goal of the

Survey was to try to predict the amount of silt and soft

sediment that would be sent down the river after the dam

was removed. Based on his study, Bozek recommended

that WDNR construct a sediment pit upstream from the

dam. The other study was a drawdown plan prepared by

WDNR Assistant Dam Safety Engineer William Sturte-

vant. Sturtevant’s plan recommended pumps and siphons

to remove sediment, as well as traps both upstream and

downstream from the dam. Based on the minimal conse-

quences to the river if these plans were followed, WDNR

decided that an environmental impact analysis would be

unnecessary.

Unfortunately, the dam removal did not proceed in

nearly as orderly a fashion as it would have if either

Bozek’s or Sturtevant’s plan had been followed. WDNR

officials and contractors concluded that Sturtevant’s rec-

ommendations were not feasible given the conditions

surrounding Funk’s Dam, but they do not appear to have

spent a great deal of time developing alternatives. No

upstream sediment trap was put in place, and the down-

stream trap was inadequate for the task (though this may

be because Bozek’s study severely underestimated the

likely sediment flow after removal). Moreover, there is at

least some indication that WDNR’s contractor took silt

from the downstream trap and, rather than transporting

it down river, pumped it right back into the channel near

the dam. The consequences of all of this for the

Oconomowoc River were severe — muck and silt bars

replaced the gravel spawning grounds for indigenous

fish and much of the local flora was buried under a foot

of silt.

4a

Meanwhile, the North Lake Management District

(“District”) filed a petition for a contested case hearing to

challenge WDNR’s actions. Froebel, an area resident who

frequently used that region of the river for hunting and

fishing, intervened. The District and WDNR settled, leav-

ing Froebel as the sole plaintiff against WDNR. The first

step was an administrative hearing before Wisconsin

Administrative Law Judge Jeffrey Boldt. Froebel

requested an order requiring WDNR to undertake reme-

dial steps to repair damage done to the river. However,

ALJ Boldt concluded that WDNR had acted within the

discretion conferred by Wisconsin statutes and refused to

order any remedial actions. Under Wisconsin’s adminis-

trative review statute, Froebel’s next stop was the circuit

court (Wisconsin’s first level of courts) for Waukesha

County. That court affirmed the ALJ’s conclusions, also

finding that a provision of Wisconsin’s dam removal code

conferred upon WDNR the discretion to remove the dam

as it saw fit. Froebel appealed to the Wisconsin Court of

Appeals, which also affirmed. Froebel v. Wis. Dept. of

Natural Resources, 579 N.W.2d 774 (Wis. Ct. App. 1998).

The appellate court reasoned that since Froebel did not

show that WDNR had acted contrary to any Wisconsin

statute, the circuit court could not order injunctive relief

against it.

Having no luck in Wisconsin courts, Froebel then

brought a citizen’s suit under the CWA. See 33 U.S.C.

§ 1365. He sued WDNR, as well as Sturtevant and WONR

Secretary George Meyer (collectively, the “state defen-

dants”), alleging that WDNR’s actions violated both Sec-

tion 402, 33 U.S.C. § 1342, and Section 404, 33 U.S.C.

§ 1344, of the CWA. Section 402 establishes the National

5a

Pollutant Discharge Elimination System (“NPDES”),

which creates a permitting program for the discharge of

pollutants. Froebel contends that the silt that was sent

through the dam is a pollutant and that WDNR thus

violated Section 402 by failing to comply with the permit

requirement. Section 404 regulates the discharge of fill

materials into navigable waters and creates a permitting

scheme administered by the U.S. Army Corps of Engi-

neers. Froebel argues that the removal of Funk’s Dam led

to a discharge of fill materials for which WDNR should

have sought a permit.

_ Additionally, Froebel added a new defendant in his

federal complaint, Waukesha County. The county was not

involved in the removal of Funk’s Dam, but it owned the

property on which the dam was located at the time

Froebel brought his federal suit. Froebel concedes that

Waukesha County had nothing to do with the events of

1992, but he argues that the county continues to violate

Sections 402 and 404 because the particles that naturally

flow down the river past the point where the dam used to

be constitute both a pollutant and fill material.

The district court dismissed WDNR on sovereign

immunity grounds. In Froebel’s favor, it ruled both that

the action against Meyer and Sturtevant was a proper

application of Ex parte Young, 209 U.S. 123 (1908), and that

the Wisconsin judgment did not have the effect of pre-

cluding Froebel’s federal claims. Having won these bat-

tles, Froebel nonetheless lost the war: the district court

ultimately ruled that Froebel had failed to state a claim

under either Section 402 or Section 404. Froebel now

appeals everything except the dismissal of WDNR.

6a

II

Since Wisconsin courts have already rendered a judg-

ment in an action between Froebel and WDNR, claim

preclusion is an obvious concern. By not having raised

his CWA claims before either the Wisconsin administra-

tive law judge or the Wisconsin courts, Froebel may now

be precluded from asserting a Clean Water Act violation

in conjunction with the very same dam removal that

formed the basis of his earlier Wisconsin action.

A

Before we examine claim preclusion, however, we

must first address a waiver problem created by the defen-

dants’ briefing strategy. On appeal, only Waukesha

County raises a preclusion argument. The state defen-

dants dedicate their entire brief to the merits of Froebel’s

Section 402 and 404 claims, as well as their argument that

they enjoy sovereign immunity. Ordinarily, this would be

a substantial proble.n, since arguments not raised in a

brief are usually deemed waived. See, e.g., Hentosh v.

Herman M. Finch University of Health Sciences/The Chicago

Medical School, 167 F.3d 1170, 1173 (7th Cir. 1999); Finance

Investment Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526,

531 (7th Cir. 1998); Smith v. Marsh, 194 F.3d 1045, 1052 (9th

_ Cir. 1999). The state defendants did not even coordinate

their briefing with that of the county and indicate that

they were adopting the county’s preclusion argument by

reference, as they might have done. See Fed. R. App. P.

28(i); Bruner Corp. v. R.A. Bruner Co., 133 F.3d 491, 498 n.7

(7th Cir. 1998). Under the circumstances, we think it

7a

inappropriate to extend the County’s preclusion argu-

ments to the state defendants.

Nonetheless, the fact that the district court ruled in

the defendants’ favor, and explicitly addressed the pre-

clusion issue, saves them from themselves. Because their

position on appeal seeks only to maintain the status quo,

we apply “a degree of leniency” to the state defendants’

failure to raise all possible grounds for affirming the

lower court. See Schering Corp. v. Illinois Antibiotics Co., 89

F.3d 357, 358 (7th Cir. 1996) (noting that “[t]he urging of

alternative grounds for affirmance is a privilege rather

than a duty”). This means that so long as the state defen-

dants did not waive their preclusion argument by failing

to present the issue to the district court, we may consider

it. Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d

169, 173 (7th Cir. 1996).

From that standpoint, the state defendants are on

firm ground: they raised their preclusion argument

before the district court. In addition, our consideration of

this point vis 4 vis the state defendants (as opposed to the

County) will not prejudice Froebel. The fact that Wau-

kesha County raised the argument on appeal means that

Froebel was prepared to meet the point. Indeed, he

addresses it in his reply brief, where he makes the erro-

neous point that the County would have had to file a

cross-appeal to preserve the right to attack the district

court’s ruling on this issue. No cross-appeal is necessary

unless the appellee wants the court of appeals to alter the

judgment, not just the reasoning, of the district court. See

Stone Container Corp. v. Hartford Steam Boiler Inspection &

Ins. Co., 165 F.3d 1157, 1159 (7th Cir. 1999).

8a

Under 28 U.S.C. § 1738, federal courts must give the

judgments of state courts the same full faith and credit

that those judgments would receive in the rendering

state’s courts, as long as the state judgment satisfied

constitutional due process requirements. Kremer v. Chemi-

cal Constr. Corp., 456 U.S. 461, 481-82 (1982). See also

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373

(1996); Marrese v. American Academy of Orthopaedic Sur-

geons, 470 U.S. 373, 380 (1985). Even if the state court

formally would not have had jurisdiction to hear the later

claim, because it fell within the exclusive jurisdiction of

_the federal courts, § 1738 requires the federal court to

analyze the case by asking what preclusive effect the state

would give the first judgment in analogous circum-

stances. Marrese, 470 U.S. at 380. The question for us is

therefore whether the Wisconsin courts would find the

CWA action Froebel has brought precluded by his prior

litigation. We conclude that they would.

The Wisconsin Supreme Court recently summarized

its approach to deciding when a subsequent action is

barred in Sopha v. Owens-Corning Fiberglas Corp., 601

N.W.2d 627 (Wis. 1999). There the court indicated that

three factors had to be present in order to preclude the

later action:

(1) identity between the parties or their privies

in the prior and present suits; (2) prior litigation

resulted in a final judgment on the merits by a

court with jurisdiction; and (3) identity of the

causes of action in the two suits.

9a

Id. at 637. See also Northern States Power Co. v. Bugher, 525

N.W.2d 723, 728 (Wis. 1995).

The first question is therefore whether the parties

here are the same, legally speaking, as the parties who

Participated in the Wisconsin proceedings. The answer is

yes, because of the way Wisconsin treats challenges to

administrative action. While the Wisconsin action named

only WDNR, Froebel’s current action is targeted at not

only WDNR but also Meyer (in his official capacity),

Sturtevant (in his individual capacity), and Waukesha

County. Under Wisconsin Preclusion law, Meyer and

Sturtevant are viewed as identical to WDNR since

Froebel’s complaints against them concern only their

actions as employees of the agency. See Northern States

Power, 525 N.W.2d at 728 (finding identity of parties in

prior suit against agency and action against officers act-

ing in their official capacities); Lindas v. Cady, 499 N.W.2d

692, 699 (Wis. Ct. App. 1993) (holding that a suit against

an employer generally precludes subsequent suits against

the employees, even in their individual capacities, when

the conduct forming the basis of the complaint was part

of the employees’ job functions), aff'd. on other grounds,

515 N.W.2d 458 (Wis. 1994).

Waukesha County is different. There is no indication

from the record that Waukesha County (which is a party

to this case only because it owns the land on which

Funk’s Dam used to sit) had anything to do with either

the decision to remove the dam or Froebel’s litigation in

the Wisconsin courts. It is therefore unlikely that if

Froebel were to bring a suit solely against the county in

Wisconsin court that the court would dismiss his case on

claim preclusion grounds. Moreover, the county and

10a

~

WDNR defendants were represented by different counsel

both in the district court and on appeal, a fact that the

Wisconsin Supreme Court suggests is important in eval-

uating whether parties are identical for preclusion pur-

poses. See Northern States Power, 525 N.W.2d at 728.

Because the County cannot satisfy the first factor,

Froebel’s claims against it are not barred; we discuss

them below.

The third factor - identity of the causes of action — is

also satisfied under Wisconsin’s transactional approach to

claim preclusion. Under this approach, “the claim extin-

guished includes all rights of the plaintiff to remedies

against the defendant with respect to all or any part of

the transaction, or series of connected transactions, out of

which the action arose.” Northern States Power, 525

N.W.2d at 729, quoting Restatement (2d) of Judgments

§ 24(1) (1982). The Wisconsin courts focus on facts, not

legal theories, to determine whether an action is pre-

cluded. See Northern States Power, 525 N.W.2d at 729

(“{T]he number of substantive theories that may be avail-

able to a plaintiff is immaterial — if they all arise from the

same factual underpinnings they must all be brought in

the same action or be barred from future consideration.”).

Here, Froebel is complaining about the procedures

employed in the 1992 removal of Funk’s Dam, just as he

did before the Wisconsin ALJ and courts. The two cases

arise out of the same transaction or series of transactions.

We have saved the second factor for last because it

presents additional complications. The Wisconsin pro-

ceedings plainly ended in a final judgment on the merits

of Froebel’s challenge to WDNR’s conduct in removing

Funk’s Dam. The fact that Froebel’s first case began in an

lla

administrative setting does not change this fact. Acharya

v. Am. Fed’n of State, County, and Municipal Employees, 432

N.W.2d 140, 142 (Wis. Ct. App. 1988). Compare City of

Chicago v. Intern. College of Surgeons, 522 U.S. 156 (1997)

(supporting removal jurisdiction in a case that began as

an administrative proceeding, that was appealed to the

state circuit court where-federal claims were added to the

administrative review issues, and that was then removed

to federal court). On the other hand, the judgment must

have been rendered “by a court with jurisdiction.” That

phrase implicates one of the exceptions to the rule against

claim splitting recognized by the Restatement (Second) of

Judgments, which the Wisconsin Supreme Court nor-

mally follows. See, e.g., Sopha, 601 N.W.2d at 637. Section

26 of the Second Restatement outlines exceptions to the

general rule against claim splitting, and one of those

exceptions is as follows:

(c) The plaintiff was unable to rely on a certain

theory of the case or to seek a certain remedy or

form of relief in the first action because of the

limitations on the subject matter jurisdiction of

the courts or restrictions on their authority to

entertain multiple theories or demands for mul-

tiple remedies or forms of relief in a single

action, and the plaintiff desires in the second

action to rely on that theory or to seek that

remedy or form of relief... .

Restatement (2d) Judgments § 26(1)(c).

Froebel argues that this was precisely his problem in

the Wisconsin proceedings: he is now presenting a federal

Clean Water Act claim that, he says, would not have been

12a

entertained in the state proceedings because of limita-

tions on the authority of those tribunals. If that were true,

then it is our best guess that Wisconsin itself would

permit this later suit, and thus it could proceed in federal

court. Compare Crossroads Cogeneration Corp. v. Orange &

Rockland Utilities, Inc., 159 F.3d 129, 140 (3d Cir. 1998)

(finding that New York courts, which also follow the

transactional approach to claim preclusion, would so

rule). But, unlike the litigant in Crossroads, Froebel never

even asked the Wisconsin administrative or judicial tribu-

nals to entertain his CWA claims, and it appears to us

that, had he asked, they could have done so.

The first indication that this is true comes from

Northern States Power, in which the Supreme Court of

Wisconsin considered a claim preclusion problem similar

to the one presented in this case. There, a Wisconsin

taxpayer failed to raise a federal constitutional challenge

to a decision by the Wisconsin Department of Revenue

denying a claimed deduction, instead relying solely on its

interpretation of the governing Wisconsin statute. North-

ern States Power, 525 N.W.2d at 726. The taxpayer then

brought a claim under 42 U.S.C. § 1983 against various

state officials, alleging that the state tax was unconstitu-

tional as applied to its case. The Wisconsin Supreme

Court held that the Section 1983 suit was barred by claim

preclusion because the taxpayer failed to raise the federal

constitutional issue before either the state administrative

agency or the reviewing courts. This, of course, is a

precise parallel to Froebel’s case: after failing to raise any

Clean Water Act issues in state proceedings, he now

wishes to vindicate federal rights in a subsequent suit.

13a

The district court concluded that Northern States

Power was distinguishable from Froebel’s situation

because it believed that the Wisconsin administrative tri-

bunal and courts in Northern States Power had the author-

ity to grant the requested relief, whereas here the

Wisconsin Court of Appeals indicated that neither the

administrative agency nor the state lower court could

grant Froebel’s request for an injunction. As a result of

this conclusion, the district court thought that it would be

fundamentally unfair to apply preclusion to Froebel’s

current claim because of the limits on the Wisconsin

courts’ remedial powers. The district court was right to

raise these equitable considerations, since “Wisconsin law

does not treat res judicata as an ironclad rule which must

be implacably applied whenever its literal requirements

are met, regardless of any countervailing considerations.”

Sopha, 601 N.W.2d at 638, quoting Patzer v. Board of

Regents, 763 F.2d 851, 856 (7th Cir. 1985). See also McCourt

v. Algiers, 91 N.W.2d 194, 196 (Wis. 1958) (indicating that

res judicata may not apply where relitigation is necessary

to prevent unfairness).

That said, we believe that the district court misin-

terpreted the Wisconsin courts’ reasons for disposing of

Froebel’s claim. Wis. Stat. § 227.57(9), which prescribes

the procedures for judicial review of agency actions,

allows the reviewing court “to provide whatever relief is

appropriate irrespective of the original form of the peti-

tion.” In the Wisconsin litigation, Froebel contended that

this section granted the reviewing court the power to

enjoin WDNR and compel a restoration of the affected

region of the Oconomowoc river. The court of appeals

rejected this claim, but did so because “the circuit court

l4a

found that the ALJ had correctly interpreted the law and

found no other grounds upon which to set aside or mod-

ify the agency decision.” Froebel, 579 N.W.2d at 780-81. In

other words, the Wisconsin circuit court could not enjoin

the defendants because it found no legal basis for doing

so. Along the same lines, the court of appeals held that

Wis. Stat. § 227.57(2) requires a reviewing court to affirm

an agency decision “unless the court finds a ground” for

setting it aside or modifying it. Id. So, the reason that

WDNR could not be enjoined was that Froebel had not

presented a legal basis for doing so.

The federal Clean Water Act might have provided

such a basis. Other Wisconsin cases indicate that it is

permissible to raise federal environmental law in state

administrative litigation. See, e.g., Badger Paper Mills, Inc.

v. Wis. Dept. of Natural Resources, 452 N.W.2d 797, 800

(Wis. Ct. App. 1990) (requiring party to raise Clean Water

Act arguments before ALJ prior to seeking state judicial

review). Supposing that Froebel’s claim that the state

defendants had violated the Clean Water Act is correct,

ALJ Boldt may have concluded that WDNR was acting

illegally. Froebel could have further argued this point to

the Wisconsin state courts. Under yet another section of

the Wisconsin administrative review provisions, Wis.

Stat. § 227.57(8), a reviewing court “shall reverse or

remand the case to the agency if it finds that the agency’s

exercise of discretion . . . is otherwise in violation of a

constitutional or statutory provision.” There is no reason

to think that Froebel could not have argued to both the

ALJ and the circuit court that the Wisconsin provisions as

interpreted by WDNR violated the federal Clean Water

Act. If he prevailed, then the Wisconsin courts would

15a

have concluded that WDNR’s removal of Funk’s Dam

was “otherwise in violation of a constitutional or statu-

tory provision.” That would have offered a basis in law to

modify the ALJ’s decision and, under § 227.57(9), fashion

appropriate relief.

Furthermore, the Wisconsin courts’ reasoning in dis-

posing of Froebel’s claim makes it clear that the outcome

of his state case could have been very different had he

chosen to raise the Clean Water Act arguments that he

makes here. Both the Wisconsin circuit and appellate

courts upheld WDNR’s actions by reference to Wis. Stat.

§ 31.187(1), which provides:

The department may remove or cause to be

removed, in such manner as it deems fit, old

and abandoned dams in Streams in this state,

upon giving 60 days’ notice in writing to the

owner thereof, if the owner can be found.

The court of appeals concluded that the authority to

remove dams “as it deems fit” confers on WDNR nearly

unfettered discretion with respect to dam removal.

Froebel, 579 N.W.2d at 781.

However, there is no doubt that Wisconsin cannot

give discretion to its administrative agencies to violate

federal law, since such a statute would run contrary to

the Supremacy Clause. See U.S. Const. Art. VI, § 2. If

Froebel’s substantive claim — that WDNR violated both

Section 402 and Section 404 of the Clean Water Act - is

correct, then Wis. Stat. § 31.187 cannot extend to WDNR

the complete discretion that the Wisconsin courts found.

See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 158

(1978) (“[A] state statute is void to the extent that it

l6a

actually conflicts with a valid federal statute.”). We pre-

sume that Wisconsin officials and courts would have

faithfully applied federal standards if Froebel had given

them the chance. Idaho v. Coeur d'Alene Tribe of Idaho, 521

U.S. 261, 274 (1997). So, if Froebel is right on the merits,

we doubt that the Wisconsin courts would have inter-

preted Wis. Stat. § 31.187 to give the agency the authority

to act anyway.

In short, Northern States Power indicates that Froebel’s

present action against the state defendants could have

been entertained in the earlier Wisconsin proceeding. For

those who are keeping score, we note that we have now

made equivalent findings with respect to this aspect of

claim preclusion for each of the three states within the

circuit. See Button v. Harden, 814 F.2d 382 (7th Cir. 1987)

(Illinois law); confirmed by Stratton v. Wenona Community

Unit Dist. No. 1, 551 N.E.2d 640, 646-47 (Ill. 1990); Leal v.

Krajewski, 803 F.2d 332, 335 (7th Cir. 1986) (Indiana law);

Atkins v. Hancock County Sheriff's Merit Board, 910 F.2d 403

(7th Cir. 1990) (Indiana law, following Leal). Here, we find

that all three requirements of Wisconsin’s rule for claim

preclusion are satisfied, and Froebel’s new suit is barred.

Il

Finally, we consider Froebeis claims against Wau-

kesha County. Unfortunately for Froebel, the same lack of

county involvement in the dam removal that saved his

case from preclusion also undercuts both of the CWA

theories that he presented in his complaint.

Froebel’s first CWA claim is based on Section 402 of

the CWA, requiring a permit for “the discharge of any

17a

pollutant, or combination of pollutants.” 33 U.S.C.

§ 1342(a)(1). “Discharge of a pollutant,” in turn, is

defined as “any addition of any pollutant to navigable

waters from any point source.” 33 U.S.C. § 1362(12)(A).

“Point source” is also a defined term; it means “any

discernible, confined, and discrete conveyance, including

but not limited to any pipe, ditch, channel, tunnel, con-

duit, well, discrete fissure, container, rolling stock, con-

centrated animal feeding Operation, or vessel or other

floating craft, from which pollutants are or may be dis-

charged.” 33 U.S.C. § 1362(14).

We have not specifically decided whether and when a

dam can serve as a point source, but several other circuits

have dealt with this issue and all have concluded that, at

least under some circumstances, a dam can meet the

Statutory definition of point source. Committee to Save

Mokelumne River v. East Bay Municipal Utility District, 13

F.3d 305, 308 (9th Cir. 1993); National Wildlife Federation v.

Consumers Power Co., 862 F.2d 580, 584 (6th Cir. 1988);

National Wildlife Federation v. Gorsuch, 693 F.2d 156, 165

n.22 (D.C. Cir. 1982); Missouri ex rel. Ashcroft v. Department

of the Army, 672 F.2d 1297, 1304 (8th Cir. 1982). In con-

cluding that a dam is a “point source,” these other courts

have looked at the outlets from the dam itself, such as

spillways, pipes, and valves. See, e.g., Committee to Save

Mokulumne River, 13 F.3d at 308, Gorsuch, 693 F.2d at 165.

Our case, at least as far as Waukesha County goes,

Presents a very different problem. Funk’s Dam is mostly

gone, and the supposed “point source” is really nothing

more than the hole through which the Oconomowoc

River now flows unrestrained. Froebel’s theory is that the

18a

former dam impoundment and a portion of a river chan-

nel can constitute a “point source” just because there

used to be an artificial structure at that spot. Such a

reading, however, has a number of problems. The first

and most obvious is that the definition of “discharge of a

pollutant” requires that the pollutant flow “to navigable

waters from any point source.” The most natural reading

of this language is that the point source is distinct from

navigable water.

The structure of the CWA’s definition of “point

source” (a “discernible, confined, and discrete

conveyance . . . from which pollutants are or may be

discharged”) connotes the terminal end of an artificial

system for moving water, waste, or other materials. See

United States v. Plaza Health Laboratories, 3 F.3d 643, 646

(2d Cir. 1993) (noting that the definition “evoke[s] images

of physical structures and instrumentalities that system-

atically act as a means of conveying pollutants from an

industrial source to navigable waterways”). If, for exam-

ple, Waukesha County were precipitating silt from the

impoundment into a pile on the riverbank, then pumping

it back into the waterway using a pipe, the pipe would be

a point source. Whether there would be an addition as

understood in Section 402 we need not decide.

Finally, our reading is further reinforced by the fact

that we apply a broad construction to the term “navigable

water.” United States v. Riverside Bayview Homes, Inc., 474

U.S. 121, 133 (1985); Village of Oconomowoc Lake v. Dayton

Hudson Corp., 24 F.3d 962, 964 (7th Cir. 1994). Compare

Solid Waste Agency of Northern Cook County v. U.S. Army

Corps of Engineers, 191 F.3d 845 (7th Cir. 1999), cert.

granted 68 U.S.L.W. 3719 (U.S. May 23. 2000) (No. 99-1178)

19a

(raising the question, not at issue here, whether the navi-

gable waters encompass all areas used as habitat by

migratory birds). The broad reach of “navigable waters”

pushes the natural reading of “point source” back to the

point at which an artificial mechanism introduces a pollu-

tant. If, for example, an industrial polluter operated a

facility that dumped waste into a pond that feeds a

tributary to a river that flows to the ocean, the facility

would be the point source. Otherwise, any point at which

one waterway empties into another could be construed as

a “point source,” subjecting unsuspecting owners of these

confluences to liability when pollutants flow down-

stream.

Froebel’s other CWA claim against the county is

based on Section 404, 33 U.S.C. § 1344, which establishes

a permitting system for discharging dredged or fill mate-

rial. He argues that the removal of the dam, as well as the

ongoing scouring action of the river water as it Passes

through what used to be the Funk’s Dam impoundment,

constitutes a discharge of dredged or fill material that

requires a permit.

The problem with Froebel’s theory is that there is

nothing in either the regulations or the case law interpret-

ing Section 404 that indicates that a landowner can fall

within the permit requirement for a “discharge” by doing

absolutely nothing at all. A “discharge of dredged mate-

tial” refers to “any addition of dredged material . . . inc-

‘luding redeposit of dredged material other than

incidental fallback” into navigable water. 33 C.E.R.

§ 323.2(d)(1). Similarly, a “discharge of fill material” is

“the addition of fill material into waters of the United

States.” 33 C.ER. § 323.2(f). The reference to “addition”

20a

and “redeposit” strongly suggest that a Section 404 per-

mit is required only when the party allegedly needing a

permit takes some action, rather than doing nothing

whatsoever (as Waukesha County has done here).

Froebel’s theory is that as water passes through the

opening where Funk’s Dam used to be, it scours silt off of

the bottom of the impoundment (the dredging), then

deposits it downstream (the discharge or, alternatively,

the fill for which Section 404 mandates a permit). It is not

at all difficult to imagine that water could be used to

dredge or fill a riverbed when a person directs the water

for that purpose. However, Froebel presents no authority

for the proposition that dredging can be a purely passive

activity. He relies heavily on United States v. M.C.C. of

Florida, Inc., 772 F.2d 1501, 1506 (11th Cir. 1985). But

M.C.C. just holds CWA is not limited to a narrow concep-

tion of dredging or filling — active, purposeful digging. In

M.C.C., it was the churning action caused by the defen-

dant’s boat operations that was the source of the dredg-

ing that the court found to fall within Section 404. But the

point is that the defendant was doing something. So, while

it is possible that the state defendants have engaged in

unlawful dredging by removing Funk’s Dam and allow-

ing the Oconomowoc River to clean out the impound-

ment, Waukesha County has not.

Section 404, its underlying regulations, and cases

applying its terms all have a common element that is

lacking in Froebel’s claims against Waukesha County -

active conduct that results in the discharge of dredged or

fill material. If the county were to pile silt on the river-

bank and deliberately allow rainfall to wash it into the

stream, then Section 404 might become relevant. Here,

2la

however, Froebel’s claim would essentially require Wau-

kesha County to seek a permit to do nothing but continue

to own the land. As even Froebel conceded at oral argu-

ment, that cannot be a correct interpretation of Section

404.

IV

Because Froebel’s suit against the state defendants is

barred by the judgment in the prior Wisconsin proceed-

ings and his complaint does not state a cause of action

against Waukesha County, the judgment of the district

court is

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

22a

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT - WITH ORAL ARGUMENT

Date: June 28, 2000

BEFORE: Honorable JOEL M. FLAUM, Circuit Judge

Honorable FRANK H. EASTERBROOK,

Circuit Judge

Honorable DIANE P. WOOD, Circuit Judge

No. 98-3925

KURT F. FROEBEL,

Plaintiff - Appellant

V.

GEORGE E. MEYER, WILLIAM D. STURTEVANT,

WAUKESHA COUNTY, et al.,

Defendants - Appellees

Appeal from the United States

District Court for the Eastern

District of Wisconsin

No. 97 C 654, Lynn Adelman,

Judge

The judgmert of the District Court is AFFIRMED,

with costs, in accordance with the decision of this

court entered on this date.

(1061-110393)

"ee

23a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

KURT F. FROEBEL,

Plaintiff, Case No. 97-C-654

v.

GEORGE E. MEYER, et al.,

Defendants.

DECISION AND ORDER

(Filed July 30, 1998)

_ Plaintiff Kurt Froebel brings this action under the

citizen suit provision of the Federal Water Pollution Con-

trol Act, commonly called the Clean Water Act (“CWA”

or “Act”), codified as amended at 33 U.S.C. §§ 1251-1387.

Froebel alleges that defendants, who include the Wiscon-

sin Department of Natural Resources (“DNR”), two DNR

officials and Waukesha County, violated and continue to

violate the Act by discharging pollutants into the

Oconomowoc River and North Lake without the requisite

permits, as a result of the DNR’s poorly executed removal

of Funk’s Dam in 1992.

This case and the defendants’ motions to dismiss

raise several novel and thorny legal issues including: (1)

the viability of the Ex parte Young doctrine in the context

of CWA violations after two recent Supreme Court deci-

sions on sovereign immunity}; (2) the DNR’s potential

1 See Idaho v. Coeur d'Alene Tribe of Idaho, 117 S.Ct. 2028

(1997); and Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114 (1996).

24a

accountability under a federal statute such as the CWA

for non-enforcement actions performed under discretion-

ary authority granted by Wisconsin law; and (3) the

application of the relevant CWA permitting provisions, 33

U.S.C. §§ 1342 and 1344, to a fact situation involving dam

removal, rather than dam construction or operation.

Count I of plaintiff's complaint alleges that defen-

dants failed to secure a permit under 33 U.S.C. § 1342 or

the analogous state permit provisions, Wis. Stat.

§ 283.31-.63, for the removal of Funk’s Dam in 1992, or for

the consequent and ongoing redeposit of silt and sedi-

ment into the downstream waters of the Oconomowoc

River and North Lake. The plaintiff alleges that this shift-

ing of sediment constitutes a “discharge of [a] pollutant”

under 33 U.S.C. § 1311, or an “addition of [a] pollutant to

navigable waters from [a] point source” as defined in

§ 1362(12)(A), requiring defendants to obtain the neces-

sary permits.

Count II of plaintiff's complaint alleges that defen-

dants failed to secure a permit under 33 U.S.C. § 1344 for

the 1992 dam removal or for the same resulting transfer

of sediment downstream, which allegedly continues to

occur. The plaintiff claims that this transfer constitutes a

“discharge of dredged or fill material” under § 1344

requiring defendants to obtain a permit from the Army

Corps of Engineers, the entity that issues and administers

this permit provision. See 33 U.S.C. § 1344(d).

All defendants filed motions to dismiss. The state

defendants raise defenses of sovereign immunity, claim

preclusion growing out of prior state administrative pro-

ceedings, and failure to state a claim upon which relief

ee

25a

can be granted. Accordingly, they move to dismiss both

counts under Rule 12(b)(1), for lack of subject matter

jurisdiction; and Rule 12(b)(6), for failure to state a claim.

See Fed. R. Civ. P. 12(b). Waukesha County, which pur-

chased the riparian property abutting Funk’s Dam and

the dam impoundment in December 1993, also moves to

dismiss both counts under Rule 12(b)(6), for failure to

state a claim upon which relief can be granted. Id. Based

on the following analysis, I will grant the Wisconsin

defendants’ 12(b)(1) motion to dismiss because of sover-

eign immunity as to the DNR, but deny it as to the DNR

officials. The remaining defendants’ 12(b)(6) motions to

dismiss will be granted on both counts.

I. FACTUAL BACKGROUND

The following facts are taken from the complaint and

from the factual findings of Administrative Law Judge

Jeffrey D. Boldt (“ALJ Boldt”), incorporated into the com-

plaint by reference. See In re Removal of Funk’s Dam, No.

3-SE-92-322 (Div. of Hearings and Appeals Feb. 21, 1996)

(“ALJ Decision”).

Funk’s Dam sits approximately one mile upstream of

North Lake on the Oconomowoc River in Waukesha

County. Originally built in 1850 and later rebuilt several

times, the dam first washed out in 1965. In 1971, the DNR

notified the dam owner, Gerald Quinn, that the dam was

in poor condition and needed repairs. The dam failed

again in March 1975, prompting the DNR to issue an

order requiring Quinn to repair the dam. Quinn refused

to comply. In 1982, the DNR issued a determination that

the dam was unsafe and had been abandoned and gave

26a

notice of the agency’s intention to remove it. Quinn chal-

lenged the DNR determination. Although the challenge

was ultimately dismissed by the Wisconsin Court of

Appeals in 1985, dam removal was delayed.

The Wisconsin legislature appropriated funds for

removing abandoned dams in August 1991, and the DNR

began preparations to remove Funk’s Dam. On August

17, 1992, the DNR began a drawdown of the reservoir, or

impoundment, behind the dam in anticipation of

removal. On the following day, a public notice was

issued, requesting comments on the dam removal and

seeking input on the DNR’s related Environmental

Assessment (“EA”). A public informational hearing was

held on September 9, 1992 regarding the imminent

removal of the dam. At the hearing, DNR representatives

assured the public that the agency’s removal plan would

guard against a significant or harmful environmental

impact to downstream waters. In its EA, the DNR did

observe that “an increase in sediment load to the lake is

expected during drawdown.” An Environmental Impact

Statement (“EIS”) on the dam removal project was never

prepared, however, as the DNR determined that one was

not needed. See North Lake Management Dist. v. Wisconsin

Dep’t of Natural Resources, 182 Wis.2d 500, 503 (Ct. App.

1994).

On October 2, 1992, the DNR contractor began the

physical removal of the dam. At that time, Funk’s Dam

consisted of several 3-foot section gates, a 60-foot emer-

gency spillway, and a 350-foot earthen embankment. No

one disputes that the dam was unsafe and a menace to

life, health, and property. The DNR’s foremost concern

was the potential for flooding due to dam failure. In

27a

addition, the agency believed dam removal would reduce

sediment transport by stabilizing the impoundment bot-

tom. ALJ Boldt subsequently found that a clear prepon-

derance of the evidence established that the DNR’s

decision to remove the dam was reasonable, given the

serious concerns about public safety and sediment trans-

port. ALJ Decision, Findings at ] 10.

Plaintiff Froebel cites poor implementation of the

decision to remove the dam rather than the decision itself

as the source of the environmental consequences giving

rise to this litigation. In 1986, the DNR had conducted a

Study on the depth and distribution of the sediment

upstream of Funk’s Dam, with the object of predicting the

relative consequences of dam removal and dam failure. In

addition, DNR Assistant Dam Safety Engineer William

Sturtevant, a named defendant in this action, prepared a

formal drawdown plan in 1992. Both the 1986 study and

the Sturtevant plan recommended certain steps be taken

to ensure that the sediment transport triggered by dam

removal was minimized.

Again, no one disputes that the DNR did not follow

these recommendations in significant respects during

dam removal. Specifically, no sediment basin or sediment

barrier was placed upstream of the dam; downstream

sediment traps were too small and were not properly

pumped during removal; no pumps or siphons were

installed along the embankment prior to drainage; and

the dam itself was only partially removed, although the

DNR’s own EA had warned that partial removal would

create instability and exacerbate sediment shifting.

28a

The DNR has argued that on-site conditions, engi-

neering problems, and other factors made it infeasible to

follow all the recommendations made prior to removal.

Heavy rains also plagued the drawdown, requiring addi-

tional drainage and producing more sediment transport

than anticipated. While ALJ Boldt credited some of the

DNR’s explanations, he ultimately found as follows:

[I]t is not at all clear from the record why [the

extenuating] conditions were not foreseeable to

Department personnel. . .. The Department was

well aware of public concerns relating to the

release of sediment at the time of dam removal.

The record is replete with concerns on this exact

issue expressed well prior to design of the

drawdown plan. . . . The record does not ade-

quately explain why [alternative measures]

could not be implemented. Further, if larger sed-

imentation basins could not have been con-

structed, the Department should not have

- represented to the public that it would build

them, nor that the DNR’s efforts to collect sedi-

ment would be adequate to protect the naviga-

ble waters of the river and North Lake.

A preponderance of the credible evidence

supports a finding that a large amount of sedi-

ment was discharged into the Oconomowoc

River and North Lake as a result of the partial |

removal of the Funk’s Dam. The record taken as

a whole also establishes that these navigable

waterways have been detrimentally impacted by

the manner in which the partial dam removal

was undertaken. . . . The DNR had sound rea-

sons for removal of the dam; the Department

29a

Properly planned for removal of the dam. How-

ever, as the dam was removed, the Department

was too quick to throw out its drawdown and

removal plans as being impossible to per-

en...

AL] Decision, Findings at {J 14, 19 (citations omitted).

The plaintiff alleges that silt, sediment and ongoing

erosion continue to be discharged downstream through

the channelized structure formed by the partially

removed dam. As a result, large muck and silt bars which

did not exist prior to removal have formed in the

Oconomowoc River and at the river mouth in North

Lake. The excess sediment transfer and silt deposits con-

tinue to impair the navigability of the river and lake and

to damage the natural habitat of many species.

Prior to filing this action, plaintiff Froebel Originally

intervened in the state administrative review proceeding

surrounding the removal of Funk’s Dam, initiated by the

North Lake Management District (“District”). See North

Lake, 182 Wis.2d 500. In October 1992, the District filed a

petition for a contested case hearing challenging the

DNR’s decisions to remove the dam and not to obtain an

EIS regarding the project.2 The DNR granted the District’s

2 The dam removal hearing was stayed while Wisconsin

courts determined whether § 227.42, Wis. Stat., confers a right to

a contested case hearing on the need for an EIS. The Wisconsin

Court of Appeals found no such right. North Lake at 506. In

reaching this conclusion, the court relied on Wisconsin’s Envtl.

Decade, Inc. v. Wisconsin Dep't of Natural Resources, 115 Wis.2d

381 (1983), which held that the decision whether to hold a

contested case hearing on the need for an EIS is within the

DNR’s sound discretion, as long as an opportunity for public

30a

request for a hearing on the dam removal but not on the

need for an EIS. Id. Froebel was permitted to intervene

before the District ultimately withdrew its request, leav-

ing the plaintiff and the DNR as the remaining litigants in

a contested case hearing on the issue of dam removal. See

Froebel v. Wisconsin Dep't of Natural Resources, __. Wis.2d

__, __, 1998 WL 88355, *1 (Ct. App. March 4, 1998).

Specifically, Froebel sought to obtain an injunction order-

ing the DNR to halt the sediment discharge from the

partially removed dam and to perform other remedial

actions. Id.

The contested case hearing was held on March 6-8,

1995 in Milwaukee and April 4, 1995 in Waukesha. On

February 21, 1996, ALJ Boldt issued his factual findings

and legal conclusions, along with an order to remand the

matter to the DNR for such actions as the agency in its

discretion found appropriate. See ALJ Decision, Order.

Froebel appealed to Waukesha County Circuit Court and

then to the Wisconsin Court of Appeals. Both Wisconsin

courts affirmed ALJ Boldt’s findings and conclusions and

concurred in this significant respect: Froebel’s request for

relief was rejected because Wisconsin law does not allow

a state administrative or judicial authority to issue an

injunction against the DNR. See, e.g., Froebel, at *1.

The plaintiff filed this action in federal court on June

6, 1997, seeking to hold the DNR and riparian owner

Waukesha County accountable for the faulty removal of

Funk’s Dam and for the resulting transport of sediment

participation exists and a reviewable record is assembled. North

Lake at 505.

3la

under the citizen suit provision of the federal Clean

Water Act, 33 U.S.C. § 1365. The plaintiff seeks injunctive

relief to prevent further sediment transport through the

remainder of the dam and to remedy current sediment

accumulation in the Oconomowoc River and North Lake,

attributable to dam removal. The plaintiff also requests

that civil penalties be imposed on defendants, pursuant

to 33 U.S.C. § 1365(a) and § 1319(d). The court now turns

to the defendants’ motions to dismiss.

II. ANALYSIS

Two propositions underlie my analysis of this

unusual fact situation. First, the actions for which the

DNR and agency officers are being sued - namely, the

manner in which the DNR removed Funk’s Dam and the

agency's subsequent inaction in the face of volume sedi-

ment shifting - are not enforcement actions. Removing a

dam is an activity which private parties undertake, as

well as, on occasion, state regulatory agencies. While the

Scope of agency discretion remains relevant to this action

in many respects and is discussed below, the mere asser-

tion of agency discretion in this context does not carry the

same weight as it would in a classic enforcement setting.

See, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985) ( “[A]n

agency’s decision not to prosecute or enforce, whether

through civil or criminal Process, is a decision generally

committed to an agency’s absolute discretion.”); and Vil-

lage of Menomonee Falls v. Michelson, 104 Wis.2d 137, 145

(Ct. App. 1981) (overturning civil enforcement decision

requires proving “intei.tional, Systematic and arbitrary

discrimination”).

322

Second, the significance of permit requirements

under the CWA or any environmental regulatory scheme

is that the process of obtaining a permit generally

requires an applicant to comply with certain common

procedural safeguards — such as, for example, meaningful

public notice requirements or requirements to monitor

and report pollutant discharge. See, e.g., Wis. Stat.

§ 283.39 and § 283.55. Thus, the fact that one of Froebel’s

claims suggests that the DNR was required by federal law

to issue itself a permit is not, on its face, nonsensical. The

gravamen of such a claim is simply that the agency

should have followed its own procedural safeguards,

which presumably would have prevented or minimized

the alleged pollutant discharge.

I turn now to defendants’ dispositive motions. In

reviewing a complaint pursuant to any motion to dismiss

I assume all well-pleaded facts to be true, and draw all

reasonable inferences from those facts in favor of the

plaintiff. Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th

Cir. 1997). This court will dismiss an action pursuant to a

12(b)(6) motion for failure to state a claim if, under this

generous standard, the plaintiff can prove no set of facts

that would entitle him to relief. General Elec. Capital Corp.

v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.

1997); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

al

The following analysis first addresses the state defen-

dants’ assertion of sovereign immunity, then determines

the preclusive scope of the state administrative proceed-

ings and judicial review, and finally discusses the remain-

ing defendants’ 12(b)(6) motions to dismiss with respect

to both counts.

33a

A. Sovereign Immunity

The Wisconsin defendants - a state agency and two

officers of that agency - have moved to dismiss this

action againt themselves based on Eleventh Amendment

sovereign immunity. The Eleventh Amendment States:

The Judicial power of the United States shall not

be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by Citizens of another State, or

by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. The above text restricts only Arti-

cle III diversity jurisdiction. The Supreme Court, how-

ever, has consistently construed the Amendment to bar

federal question jurisdiction over suits brought against

unconsenting states by their own citizens, thus enacting a

blanket immunity for states from privately initiated suits

in federal court. See, e.g., Edelman v. Jordan, 415 U.S. 651,

662-63 (1974) (citing Hans v. Louisiana, 134 USS. 1 (1890),

and progeny). The Hans interpretation of sovereign

immunity has been roundly criticized by jurists and

scholars as textually unwarranted and fundamentally at

odds with two bedrock constitutional principles: that

every right has a remedy and that federal judicial power

is coextensive with the supremacy of federal law. See

generally Vicki C. Jackson, The Supreme Court, the Eleventh

Amendment, and State Sovereign Immunity, 98 Yale LJ. 1,

3-13 (1988), and Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425, 1466-92 (1987) (both citing

inter alia Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803));

see also J. Brennan's dissenting opinion in Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 247-304 (1985).

34a

Federal courts have circumvented the severe restric-

tion on federal jurisdiction implied by this understanding

of sovereign immunity in a number of ways. Principally,

courts will find that a state has waived immunity and

consented to suit; that Congress has effectively abrogated

state sovereign immunity; and, finally, that citizens may

sue state officials for prospective injunctive relief when

the officials remain in violation of the Constitution or

federal law, by pretending that the state itself is not the

defendant in those instances. The plaintiff here relies

solely on this last method of overcoming sovereign

immunity, the so-called Ex parte Young exception. Ex parte

Young, 209 U.S. 123 (1908), established the legal fiction

iat when state officers in their official capacity act ultra

vires to the Constitution or federal law, they cannot repre-

sent the state because the state qua state cannot authorize

unconstitutional or illegal conduct. However, the Ex parte

Young exception, to the extent available, will only subject

individual state officers to suit, but does-not overcome

Eleventh Amendment immunity for state agencies such

as the DNR. See, e.g., Puerto Rico Aqueduct and Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (”.. . [Ex

parte Young] has no application in suits against the States

and their agencies, which are barred regardless of the

relief sought... ”). Therefore, in order for the DNR to.

remain a defendant in this action, the agency’s immunity

must be overborne in some other fashion.

1. Congressional Abrogation

Froebel does not assert that the DNR has consented

to suit or that the CWA citizen suit provision, 33 U.S.C.

BOF BOUNTY Ctr er eM MSEC

or pike DCR Se tee ected ert eee tet eee

ORR renee:

eden ye hee

35a |

§ 1365, represents a valid congressional abrogation of

state sovereign immunity. And, indeed, after Seminole

Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), the abro-

gation claim for an environmental statute such as the

CWA appears difficult, if not impossible, to maintain.

Seminole Tribe established a two-part test for determining

whether a federal statute effectively abrogates the states’

Eleventh Amendment shield. Id. at 1123. Section 1365 of

the Act fails both tests, though not without troubling

implications for environmental citizen suits in general.

a. Clear intent to abrogate

Under Seminole Tribe, a court must first determine if

the statutory language clearly and unequivocally

expresses Congress’ intent to abrogate sovereign immu-

nity and subject states to suit. Id. Section 1365 of the Act,

which plaintiff claims affords him the right to sue the

DNR, states:

- +. any citizen may commence a civil action on

his own behalf -

(1) against any person (including (i) the

United States, and (ii) any other govern-

mental instrumentality or agency to the

extent permitted by the eleventh amendment to

the Constitution) who is alleged to be in viv-

lation of (A) an effluent standard or limita-

tion under this chapter or (B) an order

issued by the Administrator or a State with

respect to such a standard or limitation. . .

33 U.S.C. § 1365(a) (emphasis added). The definition of

“person” as used in the Act includes states. 33 U.S.C.

36a

§ 1362(5). While enigmatic, Congress’ reference to the

Eleventh Amendment in § 1365 can hardly be said to

constitute the necessary “clear legislative statement” of

an intent to dispel sovereign immunity in citizen suit

actions under the CWA. Seminole Tribe at 1123. This — and

the fact that states have rarely been sued under the Act

once it was established that state enforcement actions are

not subject to suit, see, e.g., O'Leary v. Moyer’s Landfill,

Inc., 523 F. Supp. 642, 648 (E.D. Pa. 1981) - may account

for the dearth of cases interpreting the § 1365 “to the.

extent permitted by ...” language. Nevertheless, the

plainest meaning of this language is that, far from being

abrogated, the Eleventh Amendment retains some pre-

sumptive force under the Act.

b. Valid exercise of power

More importantly, Seminole Tribe established a second

line of inquiry to determine whether sovereign immunity

3 In this context, “ . . . to the extent permitted by the

eleventh amendment to the Constitution . . . ” can mean that

Congress intended citizens to sue either: (A) any “person”

under the Act, but not states; or (B) any “person” under the Act,

including states, but only in certain situations. The second

possibility appears likely, since Congress could have simply

said “excluding states” if it meant the jurisdictional bar to be

applied without exception. The latter reading implies a sort of

sovereign immunity continuum, which notion is consistent not

with the Eleventh Amendment itself but with the contours of

the Ex parte Young exception and other judicial constructions of

sovereign immunity. Indeed, the Supreme Court has suggested

that the CWA’s citizen suit provision “implicitly authorized suit

under Ex parte Young.” See Seminole Tribe at 1133 n. 17.

37a

has been validly abrogated by statute: the statute itself

must have been passed “pursuant to a valid exercise of

power.” Seminole Tribe at 1124. And Seminole Tribe goes on

to conclude that the Interstate Commerce Clause no

longer constitutes the necessary grant of authority to

Congress to abrogate state immunity. Id. at 1125-28. A

majority of five justices in Seminole Tribe overruled the

plurality opinion in Pennsylvania v. Union Gas Co., 491

U.S. 1 (1989), which seven years earlier upheld a congres-

sional abrogation of sovereign immunity in the Compre-

hensive Environmental Response, Compensation, and

Liability Act of 1980, 42 U.S.C. §§ 9601 et seq., as

amended by the Superfund Amendments and Reauthor-

ization Act of 1986 (“CERCLA”). In Union Gas, the Court

held both that the legislature had clearly stated its inten-

tion that states be held liable for cleanup costs under

CERCLA, along with private parties; and that the Inter-

state Commerce Clause authorized Congress to enact a

Statute to that effect. Union Gas at 5.

Seminole Tribe, which involved a suit against the State

of Florida under the federal Indian Gaming Regulatory

Act (“IGRA”), expressly overruled Union Gas as to the

latter holding, finding instead that Congress had no

power to abrogate state sovereign immunity under the

Interstate Commerce Clause.4 U.S. Const., art. I, § 8, cl. 3.

4 The IGRA was actually passed under the Indian

Commerce Clause, also found at U.S. Const., Art. I, § 8, cl. 3.

While noting that “[iJf anything, the Indian Commerce Clause

accomplishes a greater transfer of power from the States to the

Federal Government than does the Interstate Commerce

Clause,” the Supreme Court essentially conflates the two in its

analysis, finding that neither confers the necessary power to

38a

After Seminole Tribe, Section 5 of the Fourteenth Amend-

ment remains the only valid basis upon which Congress

can override sovereign immunity. See Fitzpatrick v. Bitzer,

427 U.S. 445, 456 (1976) (“We think that Congress may, in

determining what is “appropriate legislation” for the pur-

pose of enforcing the provisions of the Fourteenth

Amendment, provide for private suits against States or

state officials which are constitutionally impermissible in

other contexts.”) Seminole Tribe’s contraction of Congress’

abrogation authority thus deflates citizen suit jurisdiction

under not only § 1365 of the CWA, but numerous envi-

ronmental citizen suit provisions, all presumably passed

pursuant to the Interstate Commerce Clause. See, e.g., the

abrogate Eleventh Amendment immunity. See Seminole Tribe at

1126, 1125-28.

5 Seminole Tribe has spurred litigation over the source of

Congress’ authority in enacting legislation. See cases cited in

footnote 53 in Vicki C. Jackson, Seminole Tribe, the Eleventh

Amendment, and the Potential Evisceration of Ex parte Young, 72

N.Y.U. L.Rev. 495, 508 n. 53 (1997). Generally, these cases have

involved claims by plaintiffs that a given federal statute was, or

at least could have been, passed pursuant to Congress’ powers

under the Fourteenth Amendment, since that finding alone can

preserve an otherwise valid legislative abrogation of sovereign

immunity. The Equal Protection, Due Process, and Privileges

and Immunities Clauses have all been invoked, with mixed

success, to assert Fourteenth Amendment authorization for an

array of federal statutes, including the Age Discrimination in

Employment Act, the Americans with Disabilities Act, the Fair

Labor Standards Act, and even copyright, trademark, patent

and bankruptcy statutes. Id. See, e.g. Chavez v. Arte Publico Press,

139 F.3d 504, 508-12 (5th Cir. 1998) (finding abrogation of

sovereign immunity in Copyright/Lanham Act unjustified by

Fourteenth Amendment); but see College Savings Banks v. Florida

Prepaid Postsecondary Educ. Expense Bd., -_ F.3d __, __, 1998

39a

Toxic Substances Control Act, 15 U.S.C. § 2619; the

Endangered Species Act, 16 U.S.C. § 1540(g); the Noise

WL 348012, *3-10 (Fed. Cir. June 30, 1998) (finding Patent

Remedy Act validly abrogated sovereign immunity under the

Fourteenth Amendment).

As courts have discovered, Congress does not always make

its basis for action clear. But in the wake of Seminole Tribe, the

Seventh Circuit has concluded that the appropriate question is

not whether Congress did in fact enact a statute pursuant to the

Fourteenth Amendment, but whether the objectives of the

statute are within Congress’ theoretical Fourteenth Amendment

power. See Doe v. University of Ill., 138 F.3d 653, 660 (1998).

Applying this standard, the Seventh Circuit held that Title IX, 20

U.S.C. §§ 1681 et seq., in conjunction with the Equalization Act,

was enacted under Congress’ Fourteenth Amendment

antidiscrimination imperative, although prior cases had

determined that the statute was a product of congressional

power under the Spending Clause. Id. at 659-60.

Similarly, at least one writer Suggests that environmental

citizen suits to vindicate property interests are in some sense

“authorized” by the Equal Protection and Due Process Clauses

of the Fourteenth Amendment. See FJ. “Rick” Dindinger II,

Seminole Tribe's Impact on the Ability of Private Plaintiffs to Bring

Environmental Suits Against States in Federal Court, 75 Denv. ULL.

Rev. 253 (1997). However, the Supreme Court’s opinion in City of

Boerne v. Flores, 117 S. Ct. 2157 (1997), clarified the substantive

scope of Congress’ power under the Fourteenth Amendment in

such a way that litigation strategies of this type are likely to fail.

A recent district court decision in Alabama distilled the import

of Boerne as follows: “The teaching of Boerne is that there must

be a substantial constitutional hook: the principal object of the

legislation must be to address rights that are judicially

recognized [as prohibited by the Fourteenth Amendment. ]”

Reynolds v. Ballard, _ FE. Supp. __, __, 1998 WL 286010, *16

(M.D. Ala. June 1, 1998). Considered in this light, environmental

statutes such as the Clean Water Act cannot pass the Boerne test,

and the claim of Fourteenth Amendment authority for their

enactment appears specious.

e 40a

Control Act, 42 U.S.C. § 4911; the Resource Conservation

and Recovery Act, 42 U.S.C. § 6972; the Clean Air Act, 42

U.S.C. § 7604; and CERCLA, 42 U.S.C. § 9659. In light of

Seminole Tribe, the Ex parte Young exception, discussed

below, assumes greater importance, as the only way for

citizens to sue state defendants for injunctive relief under

many environmental statutes. See generally Courtney E.

Flora, An Inapt Fiction: The Use of the Ex parte Young

Doctrine for Environmental Citizen Suits Against States After

Seminole Tribe, 27 Envtl.L. 935 (1997).

As the above analysis makes clear, congressional

abrogation fails to vitiate the defendants’ immunity in

this action. Therefore, the Wisconsin defendants’ motion

to dismiss based on sovereign immunity is granted as to

the DNR, and the agency is dismissed from this action.

2. The Ex parte Young Exception

The plaintiff's complaint also includes George Meyer,

Secretary of the DNR, and Sturtevant,® the DNR assistant

dam safety engineer, as defendants in this action. The

plaintiff alleges that, in their capacity as DNR officials,

Meyer and Sturtevant violated and continue to violate the

Act by causing or allowing the impermissible and permit-

less discharge of pollutants from Funk’s Dam. Under the

judicial doctrine established by Ex parte Young, a suit

alleging that a state officer violated federal law is not

6 The compiaint caption identifies Sturtevant as “an

individual,” rather than by his DNR title. Throughout the

pleadings, however, Sturtevant is implicated for actions taken

as a dam safety engineer for the DNR.

4la

considered a suit against the State, and thus is not barred

by the Eleventh Amendment. The theory of Young was

that, since a state cannot authorize unconstitutional or

illegal conduct, the officer’s action is ultra vires and

“stripped of [its] official or representative character.”

Young, 209 U.S. at 160. The Supreme Court has modified

and limited Young’s basic holding and rationale over the

years, but the Ex parte Young doctrine remains an essen-

tial mechanism by which citizens can seek relief against

State actors in federal court.

a. Edelman and other limitations on Young

Edelman v. Jordan, 415 U.S. 651 (1974), represents the

most significant qualification on the Young exception to

sovereign immunity. Edelman held that Fx parte Young

permits only prospective injunctive relief against state

officers. Id. at 677. Awards of retroactive monetary relief

against state officers, even if equitable in nature, will

necessarily be paid out of the state treasury, so the Young

fiction that the suit is not against the state collapses. Id. at

666-67. As a threshold matter, then, the plaintiff’s request

that civil penalties be assessed against Meyer and Sturte-

vant under 33 U.S.C. § 1319(d) is barred. The irony, of

course, which courts have recognized, is that compliance

with injunctive orders properly issued under Ex parte

Young will often have dramatic fiscal consequences for

States. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970)

42a

(enjoining New York City welfare officials from terminat-

ing welfare benefits without a hearing).”

Another implication of the Edelman restriction to pro-

spective injunctive relief under Ex parte Young is that the

unconstitutional or illegal action complained of must be

ongoing in some sense, or capable of being prospectively

enjoined. As it happens, this requirement dovetails with a

prerequisite for citizen suit jurisdiction under the CWA.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987), held that the § 1365(a) language allow-

ing citizens to sue “any person... who is alleged to be in

violation” under the Act required that citizen-plaintiffs

allege “a state of either continuous or intermittent viola-

tion - that is, a reasonable likelihood that a past polluter

will continue to pollute in the future.” Gwaltney at 57.

Thus, Froebel must allege that both Meyer and Sturte-

vant, as well as Waukesha County, continued to violate

the Act at the time he filed his complaint, in order to

overcome sovereign immunity and secure citizen suit

jurisdiction. He does.

7 In some fact situations the result of Edelman’s distinction

is especially ironic:

Federal courts may enjoin state officials in their

official capacity to pay money out of the state

treasury for future obligations, but may not order

them to charge the public fisc to make whole victims

of past constitutional wrongdoing. Perversely, a state

government that spends money to avoid violating the

Constitution ends up financially worse off that one

that cynically flouts higher law until ordered into

prospective compliance.

Amar, supra, at 1479.

43a

The state defendants attempt to read another limita-

tion into the Ex parte Young doctrine, so as to nullify its

use for the plaintiff. The defendants argue that the pro-

spective injunctive relief authorized by Young must also

be passive and involve no affirmative action on the part

of the state. In making this claim, the defendants rely on

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682

(1949), and Wisconsin Hosp. Assoc. v. Reivitz, 820 F.2d 863

(7th Cir. 1987).

In Reivitz, the plaintiff hospitals wanted to enjoin

State officials from considering a Wisconsin statute -—

which temporarily froze Medicaid rate increases to hospi-

tals — in calculating as-yet-unpaid reimbursements to hos-

pitals for already-rendered services. Id. at 867. The

Seventh Circuit held that such an injunction could not be

considered prospective in nature because it essentially

dictated a form of retroactive monetary relief and was

thus barred by the Eleventh Amendment. Id. This court

finds that the facts of Reivitz are inapposite to the present

case, and that the injunction was denied not because it

required affirmative action by the state but because the

requested relief involved make-whole payments from the

State treasury.

The defendants also cite note 11 in Larson, which

States:

Of course, a suit may fail, as one against the

sovereign, even if it is claimed that the officer

being sued has acted unconstitutionally or

beyond his Statutory powers, if the relief

requested cannot be granted by merely ordering

the cessation of the conduct complained of but

will require affirmative action by the sovereign

44a

or the disposition of unquestionably sovereign

property.

Larson, 337 U.S. at 691 n.11. Referring to this as “Larson’s

famous and debatable footnote 11,” the Seventh Circuit

has followed the lead of other circuits in declining to read

the above language as “clos[ing] the courthouse doors to

litigants solely because affirmative action may be

required on the part of the government.” Schlafly v. Volpe,

495 F.2d 273, 278, 279 (7th Cir. 1974). Rather, the Seventh

Circuit construed Larson’s footnote as potentially barring

a suit in only exceptional cases, “where to do otherwise

would impose an intolerable burden on government func-

tions, outweighing any consideration of private harm.”

Id. at 280 (internal quotation marks omitted). Contrary to

defendants’ suggestion, Schlafly is still good law in this

circuit, and rather than being diminished by recent

Supreme Court rulings on the Ex parte Young doctrine is,

in fact, echoed by the prevailing rationale in Idaho v.

Coeur d’Alene Tribe of Idaho, 117 S. Ct. 2028 (1997). See infra

discussion. In any event, I find that the remedial actions

requested by plaintiff would not impose an “intolerable

burden on government functions,” such as contemplated

by Larson. See, e.g., Committee to Save Mokelumne River v.

East Bay Mun. util. Dist., 13 F.3d 305 (9th Cir. 1993)

(finding that action against members of state water qual-

ity control board was not barred although it requested

remedial actions to remove and dispose of contaminated

sediment).

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45a

b. Young after Seminole Tribe and Coeur

d’Alene

Seminole Tribe and the more recent Coeur d'Alene -

decided just after the plaintiff filed this action — whittle

away at the scope of the Ex parte Young exception still

further. Neither decision, however, impacts the availabil-

ity or application of the Young doctrine in the present

_action.

In addition to finding that Congress lacks power to

abrogate the states’ sovereign immunity through legisla-

tion passed pursuant to the Commerce Clause, Seminole

Tribe held that the Ex parte Young mechanism for circum-

venting sovereign immunity may be unwarranted when

the statute at issue already prescribes a “detailed reme-

dial scheme for the enforcement against a State of a

Statutorily created right.” Seminole Tribe, 116 S. Ct. at

1132. Of course, under the Supreme Court's initial hold-

ing in Seminole Tribe, such a remedial scheme will fail to

subject a state to suit if the legislation was a Commerce

Clause enactment, because that abrogation of state immu-

nity is now invalid. The Court's reasoning, somewhat

counterintuitive, was that the presence of a complex

remedial scheme directed at states was evidence of Con-

gress’ desire to limit the liability of states under the

statute, rather than expose tliem to the potentially greater

risks of Ex parte Young litigation. Id. at 1133 (“By contrast

with this quite modest set of sanctions, an action brought

against a state official under Ex parte Young would expose

that official to the full remedial powers of the federal

court, including, presumably, contempt sanctions.”) Thus,

although the remedial scheme itself is ineffective against

46a

the state under Seminole Tribe, suits under Ex parte Young

are also precluded, in order to hew as closely as possible

to perceived congressional intent. The ironic result is that,

with respect to the very statutes in which Congress has

shown its desire to subject states to suit, not only will

abrogation fail, but the Young exception will also be

unavailable to plaintiffs.§

However, footnote 17 in Seminole Tribe saves consid-

ering the relative complexity of the CWA’s remedial

scheme as directed at states. The note states:

[W]e do not hold that Congress cannot authorize

federal jurisdiction under Ex parte Young over a

cause of action with a limited remedial scheme

....In this regard, [the IGRA] stands in contrast

to the statutes cited by the dissent as examples

where the lower courts have found that Con-

gress implicitly authorized suit under Ex parte

Young. Compare 28 U.S.C. § 2254(e) [sic] (Fed-

eral court authorized to issue an “order directed

to an appropriate state official”); . . . 33 U.S.C.

§ 1365(a) (authorizing a suit against “any person”

8 See supra Jackson, 72 N.Y.U.L.Rev. at 510-30, who argues

that the reasoning of Seminole Tribe rests on the mistaken

assumption that Ex parte Young always affords a free-standing

remedy that is somehow broader than a statutory enforcement

scheme:

Logically, the Court’s reasoning is flawed because it

conflates the implied cause of action aspect of Ex parte

Young, arguably of no relevance in a case involving a

statutory cause of action and clear congressional

intent for federal courts to help enforce the states’

duty to [comply with the IGRA], with the Eleventh

Amendment avoidance aspect of Ex parte Young.

Id. at 520.

Spey, TE TERRE PLATE RRNA Cena ear iat sa 358; eat tetas .

47a

who is alleged to be in violation of relevant water

pollution laws).

Id. at 1133 n. 17 (latter emphasis added). Thus, the

Supreme Court indicated its belief that the reasoning of

Seminole Tribe does net bar Ex parte Young suits under the

CWA.

Although Coeur d’Alene also restricts the scope of the

Young exception, the extraordinary factual context of the

decision limits its holding to a narrow exception to the

Young doctrine. In that case, the Coeur d’Alene Indian

Tribe alleged ownership in the submerged lands and bed

of Lake Coeur d’Alene and its tributaries and sought a

declaratory judgment establishing the invalidity of all

Idaho laws, customs, or usages regulating those lands,

and an injunction Prohibiting Idaho state officers from

taking any action in violation of the Tribe’s rights in the

lands. Coeur d’Alene, 117 S. Ct. at 2030. The Tribe claimed

the right to sue the Idaho state officers under Ex parte

Young, to enjoin ongoing violations of privileges secured

by federal law.

The Supreme Court denied all requested relief, con-

cluding that Young did not apply in this context and the

Tribe’s clain’s were therefore barred by Eleventh Amend-

ment immunity. But the Court’s reasoning was quite nar-

rowly drawn:

[T]his case is unusual in that the Tribe’s suit is

the functional equivalent of a quiet title action

which implicates special sovereignty inter-

ante MOE

.. . [S]ubstantially all benefits of ownership

and control would shift from the State to the

Tribe. This is especially troubling when coupled

48a

with the far-reaching and invasive relief the

Tribe seeks, relief with consequences going well

beyond the typical stakes in a real property

quiet title action. The suit seeks, in effect, a

determination that the lands in question are not

even within the regulatory jurisdiction of the

State.The requested injunctive relief would bar

the State’s principal officers from exercising

their governmental powers and authority over

the disputed lands and waters. The suit would

diminish, even extinguish, the State’s control

over a vast reach of lands and waters long

deemed by the State to be an integral part of its

territory.

Id. at 2040. Although there is some disagreement between

the lead opinion (signed by two justices) and the plurality

opinion (signed by three justices) as to the proper inquiry

in evaluating a claim for relief under Ex parte Young,?

both camps arrive at the same conclusion that the extraor-

dinary relief requested by the Tribe made it impossible to

maintain the Young fiction in this instance: “Where a

plaintiff seeks to divest the State of all regulatory power

9 Justice Kennedy’s principal opinion advocates a “case-by-

case” balancing approach to the invocation of Ex parte Young, in

which federal courts should weigh the availability of prompt

relief in a state forum and the relative importance of the federal

right being vindicated before allowing a suit to proceed under

Young. See Coeur d’Alene at 2035-40. Justice O’Connor’s plurality

opinion, arguably controlling, rejects the case-by-case analysis

as unnecessarily complicating and narrowing the Young

jurisprudence. Id. at 2045. Instead, the plurality reaffirms the

validity of Ex parte Young’s “straightforward inquiry into

whether a complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.” Id. at

2047.

PLEIN crew

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49a

over submerged lands . .. it simply cannot be said that -

the suit is not a suit against the State.” Id. at 2047.

The Wisconsin defendants suggest that Coeur d'Alene

controls here because Froebel’s claims in this action also

implicate the state’s sovereign interest in its navigable

waters. The court, however, does not find the comparison

persuasive. The discrete remedial actions sought by the

plaintiff in this case would not amount to the expansive

and permanent incursion on sovereign interests indicated

by the injunctive relief sought in Coeur d’Alene. Therefore,

Coetir d’Alene also does not affect the plaintiff’s recourse

to Ex parte Young in this action.

c. Relevance of Pennhurst to this action

Based on the above analysis, it would appear that

Meyer and Sturtevant are subject to suit under the Young

exception to sovereign immunity. Before reaching that

conclusion, however, I raise one more potential limitation

on the application of the Young doctrine in this case, this

time arising out of Pennhurst State Sch. & Hosp. v. Halder-

man, 465 U.S. 89 (1984). Pennhurst essentially recast the

rationale for Young as a matter of the supremacy of fed-

eral law rather than the “non-state” nature of ultra vires

actions by state officers. See Jackson, 72 N.Y.U.L. Rev.,

supra, at 512. Under this rationale, Prospective relief —

enjoining violations of state rather than federal law fell

outside the scope of the Young exception to Eleventh

Amendment immunity. Thus, Pennhurst held that citizens

could not sue state officials in federal court for violations

of state law, regardless of the relief sought. Pennhurst at

106.

50a

Pennhurst involved a pendent state claim, which is

not at issue here. This case obviously alleges violations of

a federal statute, so it may seem unusual to invoke the

Pennhurst rule in this context. However, plaintiff's first

count alleges a failure to obtain a permit for the discharge

of pollutants pursuant to 33 U.S.C. § 1342, the provision

establishing a National Pollutant Discharge Elimination

System (“NPDES”). Under § 1342(b) and (c), the Environ-

mental Protection Agency (“EPA”) may cede authority to

devise and administer NPDES permits to state regulatory

agencies, such as the DNR. Once a state permitting pro-

gram is approved by the EPA, federal permitting author-

ity under § 1342(a) is suspended. 33 U.S.C. § 1342(c)(1).

Wisconsin’s version of the NPDES permitting scheme,

duly sanctioned by the EPA, is found at Wis. Stat.

§§ 283.001-.95 and establishes a superceding Water Pollu-

tant Discharge Elimination System (“WPDES”). See

§ 283.31, Wis. Stat. WPDES permits are issued, paradox-

ically given our present fact situation, by the Wisconsin

DNR, the state’s environmental regulatory agency.

Under the Act's federalist allocation of authority, the

EPA and state regulatory agencies share concurrent

enforcement authority over violations of state-issued per-

mits. See 33 U.S.C. § 1319. Similarly, the discharge of ©

pollutants without a permit is unlawful under both 33

U.S.C. § 1311(a) and Wis. Stat. § 283.31(1). However,

Congress clearly intended the states to take the leading

role in issuing and enforcing the NPDES system. See, e.g.,

District of Columbia v. Schramm, 631 F.2d 854, 863 (D.C.Cir.

1980) (“The state courts are the proper forums for resolv-

ing questions about state NPDES permits, which are, after

all, questions of state law.”); and State of California v.

5la

United States Dep’t of the Navy, 845 F.2d 222, 225 (9th Cir.

1988) (finding that, once approved, state programs are

administered under state law). Thus, the question of

whether a permitless discharge of pollutants by the DNR,

such as plaintiff alleges, violates state or federal law for

the purpose of applying Pennhurst is a potentially compli-

cated question that touches on federal supremacy, institu-

tional practice and agency discretion. These issues are

addressed more fully in the following sections.

As a general principal, however, the court rejects the

suggestion that state permitting authority divests federal

courts of jurisdiction to hear citizen suit complaints alleg-

ing CWA violations by state officials. Although the effect

of Pennhurst in this context appears unclear, other federal

courts have entertained citizen actions alleging violations

of the Act’s permit Provisions by state officers without

addressing this question. See, e.g., Natural Resources -

Defense Council v. California Dep’t of Transp., 96 F.3d 420

(9th Cir. 1996); Committee to Save Mokelumne River v. East

Bay Util. Dist., 13 F.3d 305 (9th Cir. 1993); Mancuso v. New

York State Thruway Auth., 909 F. Supp. 133 (S.D.N.Y. 1995);

Pennsylvania Envtl. Defense Found. v. Mazurkiewicz, 712 F.

Supp. 1184 (M.D.Pa. 1989).

Accordingly, I find that Pennhurst does not bar the

application of Ex parte Young to plaintiff’s claim that

Meyer and Sturtevant were required to obtain a state

WPDES permit. Thus, the DNR Officials are subject to suit

on both counts under the Young exception to sovereign

immunity.

52a

B. Scope of Claim/Issue Preclusion

Meyer and Sturtevant argue that both counts must be

dismissed against them under the doctrine of claim pre-

clusion. The defendants’ assertion of claim preclusion

arises out of the administrative decision and order issued

by ALJ Boldt and subsequently affirmed by a Wisconsin

circuit court and the Wisconsin Court of Appeals.

1. Summary of State Administrative Proceed-

ings and Judicial Review

The ALJ Decision, issued pursuant to Wis. Stat.

§ 227.47, followed a contested case hearing on the

removal of Funk’s Dam. The contested case hearing was

granted on a petition filed by the District, challenging the

DNR’s decisions to remove the dam and not to obtain an

EIS regarding the project. Froebel at *1. By the time of the

hearing, Froebel intervened and the District withdrew,

leaving the DNR and Froebel as the contesting parties. Id.

Whatever may have been the initial focus of the District’s

challenge to the agency, the ALJ Decision identified the

central issue at the hearing stage as “whether the Depart-

ment’s implementation of its decision to remove the

Funk’s dam was reasonable, necessary and appropriate

based upon information foreseeable to the DNR at the

time of dam removal.” ALJ Decision, Findings at { 11.

Petitioner Froebel specifically sought an order from

ALJ Boldt, pursuant to Wis. Stat. § 30.03,!° enjoining the

10 Section 30.03(2), Wis. Stat., authorizes the district

attorney or the attorney general (if requested by the DNR) to

53a

DNR to perform remedial actions with respect to Funk’s

Dam and sediment loading in the surrounding waters.

AL] Boldt determined that the cited provision “does not

provide legal authority for the Division to Order specific

remedial actions in this matter.” ALJ Decision, Conclu-

sions at 46. Although ALJ Boldt does not discuss the state

permitting program for water pollutant discharge in any ~

length or detail, the last paragraph of his decision states:

The DNR in seeking the removal of the

Funk’s Dam was not “the owner or operator of a

point source discharging Pollutants into the

waters of the state” within the meaning of [Wis.

Stat. § 283.37(1)]. No WPDES permit is neces-

sary in connection with either removal of the

dam or any continuing sediment transport ema-

nating from the Funk’s Dam.

ALJ Decision, Conclusions at 18.

Froebel appealed the administrative decision to state

circuit court, challenging ALJ Boldt’s legal conclusions (1)

that Wisconsin law did not provide legal authority for an

administrative law judge to order the DNR to perform

specific remedial actions; and (2) that Wis. Stat.

§ 283.37(1)11 did not require the DNR to obtain a WPDES

“abate any nuisance committed under this chapter.” Section

30.03(4)(a), Wis. Stat., gives the DNR the authority to “request

the hearing examiner to issue an order directing the responsible

parties to perform or refrain from performing acts in order to

fully protect the interests of the public in the navigable waters.”

1! The Wisconsin Statutes were renumbered while Froebel’s

appeal was pending in state courts. This opinion uses current

section numbering throughout.

54a -

permit in connection with Funk’s Dam. Froebel v. Wiscon-

sin Dep't of Natural Resources, No. 96-CV-623, slip op. at 2

(Waukesha County Cir. Ct. Dec. 27, 1996) (“Cir. Ct. Deci-

sion”). The circuit court reviewed Froebel’s legal chal-

lenges de novo. Loomis v. Wisconsin Personnel Comm’‘n, 179

Wis.2d 25, 30 (Ct. App. 1993). Affirming both legal con-

clusions, the court held that the remedial actions

requested by Froebel “are not within the ALJ’s power to

order nor are they within the court’s powers within the

context of a Chapter 227 review.” !2 Cir. Ct. Decision at 8.

Although the circuit court accepted ALJ Boldt’s factual

finding that the Oconomowoc River and North Lake had

been harmed by the dam removal, it opined: “Petitioner

is in the wrong forum and this court is without power or

jurisdiction to grant the relief requested.” Cir. Ct. Deci-

sion at 9, 4. "

\~_Froebel appealed to the Wisconsin Court of Appeals,

which considered the same legal questions, again under a

de novo standard. The court of appeals affirmed, devot-

ing much of its analysis to the statutory authority of the

ALJ and the reviewing court: “The primary issue in this

case is whether the DNR may be ordered, by either the

ALJ or the circuit court, to take specific remedial actions

Pints

encasement:

12 Chapter 227 is Wisconsin's codification of administrative

procedure and review. Wis. Stat. § 227.57 establishes the scope

of review of a decision by an agency hearing examiner or

administrative law judge. In general, the reviewing court is

confined to the administrative record, it must find a specific

ground for modifying or setting aside an agency order, and it

should not substitute its judgment for that of the ALJ on

discretionary matters. See Barnes v. Wisconsin Dep’t of Natural

Resources, 184 Wis.2d 645, 661-62 (1994).

55a

based on findings made in the context of an administra-

tive hearing under ch. 227, Stats.” Froebel, at *3. The

appellate court discussed and rejected each Statutory

authority to enjoin the DNR asser itioner. 13

On the issue of whether the DNR was required to

obtain a WPDES permit for the removal of Funk’s Dam,

the court of appeals emphasized the importance of Wis.

Stat. § 31.187, a section which Meyer and Sturtevant

continue to stress in today’s litigation. Section 31.187

States: “The department may remove or cause to be

removed, in such manner as it deems fit, old and aban-

doned dams in streams in this state, upon giving 60 days’

notice in writing to the owner thereof, if he can be

found.” Wis. Stat. § 31.187(1). According to the court of

appeals, this provision governs dam removal by the DNR

to the virtual exclusion of other Wisconsin Statutory pro-

visions, including Wis. Stat. § 283.31(1), setting forth the

basic terms and conditions of the WPDES permitting

scheme. See Froebel, at *6. The court identified the follow-

ing reasons for this conclusion: (1) Sturtevant and

another DNR official testified before the ALJ that the

DNR does not require a WPDES permit for dam removal;

(2) Wis. Stat. § 31.185, which requires private parties to

obtain a permit before removing a dam, is the only rele-

vant permit provision and does not apply to the DNR;14

13 These were, variously, Wis. Stat. § 30.03(4)(A),

§ 227.57(5), § 227.57(8), and § 227.57(9).

case to préserve public rights in navigable waters, to promote

safety, and to protect life, health and property.” Wis. Stat.

§ 31.185(5).

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56a

and (3) Wis. Stat. § 283.31(1) does not specifically mention

dam removal or its potential consequences and thus is

trumped by § 31.187(1) under the rules of statutory con-

struction. Id.

Finally, the court of appeals had this to say about the

DNR’s actions in connection with Funk’s Dam:

We join in the ALJ’s criticism’s of the DNR’s

practices in this case. We would expect the

DNR, as the protector of this state’s natural

resources and the chief enforcer of our laws

protecting those assets, to abide by the rules

which it imposes and enforces on others. We

would also expect it to abide by the promises

and representations it makes to the public

regarding its own activities. . . . However, we

cannot rewrite the existing laws to accommo-

date Froebel’s legitimate complaints.

Froebel, at *6-7.

2. Claim Preclusion .

Under the Full Faith and Credit Clause, U.S. Const.

art. IV, § 1, a federal court must afford a state court

judgment “the same preclusive effect as would be given

that judgment under the law of the State in which the

judgment was rendered.” Migra v. Warren City Sch. Dist.

Bd. of Educ., 465 U.S. 75, 81 (1984). See also 28 U.S.C.

§ 1738. Thus, Wisconsin law governs my assessment of

the claim preclusive effect of the administrative decision

and review in this matter. Starzenski v. City of Elkhart, 87

F.3d 872, 877 (7th Cir. 1996). In Wisconsin, “a final judg-

ment is conclusive in all subsequent actions between the

same parties [or their privies] as to all matters which

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57a

were litigated or which might have been litigated in the

former proceedings.” Northern States Power Co. v. Bugher,

189 Wis.2d 541, 550 (1995). The following factors must be

present in order for prior Proceedings to bar a subsequent

claim: (1) an identity between the parties or their privies

in the prior and subsequent suits; (2) an identity between

the causes of action in the two suits; and (3) a final

judgment on the merits in a court of competent jurisdic-

tion. Id. at 551.

The present facts clearly satisfy the first and third

factors. Meyer and Sturtevant are, for the purposes of

party identity, indistinguishable from the DNR, see id. at

951-52; and two levels of Wisconsin courts have rendered

final judgments on the legal merits of Froebel’s claims.

Although these were appeals of an administrative deci-

sion, the reviewing courts addressed legal questions de

novo, and, in any event, the ALJ Decision itself may carry

preclusive effect, see Acharya v. American Fed’n of State,

County & Mun. Employees, 146 Wis.2d 693, 697 (Ct. App.

1988); and Patzer v. Board of Regents of the Univ. of Wis.

Sys., 763 F.2d 851, 858 (7th Cir. 1985) (“In general, a

judgment affirming an administrative decision is res judi-

cata as to the claims adjudicated, no less than a judgment

entered after a trial on the merits.”)

A more difficult call is the second factor - identity

between causes of action. Wisconsin follows a transac-

tional approach to determining whether two suits involve

the same cause of action. DePratt v. West Bend Mut. Ins.

Co., 113 Wis.2d 306, 311 (1983). Under the transactional

view of the dimensions of a cause of action, drawn from

the Restatement (Second) of Judgments, courts generally

view claims in factual terms, “regardless of the number of

nl

58a

substantive theories, or variant forms of relief flowing

from those theories, that may be available to the plain-

tiff.” Restatement (Second) of Judgments § 24 cmt. a

(1982). The factual basis for plaintiff’s claims in this

forum is clearly the same as that in the state administra-

tive proceedings; indeed, the plaintiff incorporates ALJ

Boldt’s factual determinations by reference in his com-

plaint.

However, courts recognize certain exceptions to the

rule of claim preclusion. The Restatement (Second) of

Judgments § 26 compiles a number of these exceptions,

one of which appears relevant to the facts at hand. The

transactional approach to determining identity of claims

will not extinguish a subsequent cause of action if

[t]he plaintiff was unable to rely on a certain

theory of the case or to seek a certain remedy or

form of relief in the first action because of the

limitations on the subject matter jurisdiction of

the courts or restrictions on their authority to

entertain multiple theories or demands for mul-

tiple remedies or forms of relief in a single

action, and the plaintiff desires in the second

action to rely on that theory or to seek that

remedy or form of relief.

Restatement (Second) of Judgments § 26(c) (1982). See also

Marrese v. American Academy of Orthopaedic Surgeons, 470

U.S. 373, 382 (1985). As the comment to § 26(c) explains,

the transactional claim preclusion rule is predicated on

the assumption that the forum in which the first judg-

ment is rendered put no barriers in the way of the plain-

tiff presenting his entire claim, including any demands

for relief available to him under applicable law. When

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such barriers exist and worked against the plaintiff, to

preclude him from a second action would be fundamen-

tally unfair. Restatement (Second) of Judgments § 26 cmt.

c (1982).

Wisconsin state courts can exert jurisdiction over a

citizen suit under the Clean Water Act and order neces-

Sary injunctive relief, even against the DNR. See, e.g.,

Kerns v. Dukes, 707 A.2d 363, 368-69 (Del. 1998) (finding

State court jurisdiction over CWA citizen suit against

members of Delaware Department of Natural Resources).

But the same cannot be said for the state division of

hearings and appeals, the administrative forum to which

Froebel’s initial claims were addressed. The authority and

power of a state administrative agency is created by

statute and defined solely by the legislature. Jocz v. Labor

& Indus. Review Comm'n, 196 Wis.2d 273, 292 (Ct. App.

1995). The unequivocal conclusion of the administrative

decision in this matter, as well as the Wisconsin review-

ing courts, was that ALJ Boldt did not have the statutory

authority to enjoin the DNR to perform remedial actions.

In addition, the circuit court and the Wisconsin court of

appeals concluded that state courts, when reviewing an

appeal of an administrative decision, are likewise con-

Strained by statute. Section 227.57, Wis. Stat., sets out the

scope of judicial review of agency decisions. Froebel

asserted no fewer than three Provisions of § 227.57 as

potential statutory bases to order injunctive relief against

the DNR. Each one was rejected. While each tribunal

acknowledged the merits of Froebel’s underlying claim

for relief, his central request for relief was barred because

none of the courts had the authority to grarit it.

60a

In this respect, I find the plaintiff’s predicament dis-

tinguishable from, for example, that of the petitioner in

Northern States Power Co. v. Bugher, 189 Wis.2d 541 (1995).

The question in that case was whether Northern States

Power Company (“Northern”) was barred by claim pre-

clusion from pursuing its 42 U.S.C. § 1983 claim relating

to the constitutionality of a state tax because it had

already challenged its tax liability under the questioned

provision before the Wisconsin Tax Appeals Commission,

and then appealed an unfavorable decision there to state

courts. The Wisconsin Supreme Court held that claim

preclusion operated to bar further litigation under § 1983,

although the issue of constitutionality had not been

raised in the prior administrative proceedings. Id. at 545.

Although in its § 1983 action Northern sought an order

enjoining the Department of Revenue “from collecting the

unconstitutional taxes,” the company’s underlying claim

remained its own entitlement to a tax deduction. Id. at

547, 554. “Throughout the entire proceedings, Northern

sought the same relief - a deduction from payment of its

franchise taxes, based on the same incident -— the DOR’s

determination that Northern was not entitled to the

deduction.” Id. at 555. Unlike the state administrative

forum adjudicating Froebel’s claims for relief in this case,

the Tax Appeals Commission was presumably fully able

to grant the deduction from tax liability sought by peti-

tioner in Northern States, had the Commission found the

deduction warranted on the merits.

The essence of the remedy sought by Froebel has

always been and remains injunctive relief. In addition,

the essence of the right granted by the CWA’s citizen suit

6la

provision is the individual's ability to enjoin non-compli-

ant parties to abide by the strictures of the Act. The court

finds that it would be “fundamentally unfair” to evisce-

rate this federal right of action because of prior state

proceedings that could not have granted the requested

remedy under any circumstances. Therefore, the doctrine

of claim preclusion does not bar Froebel’s claims against

Meyer and Sturtevant. See also Brye v. Brakebush, 32 F.3d

1179, 1185 (7th Cir. 1994) (“Wisconsin law does not treat

res judicata as an iron clad rule which must be implacably

applied whenever its literal requirements are met, regard-

less of any countervailing considerations.”)

3. Issue Preclusion

My analysis of the preclusive effect of the ALJ Deci-

sion and judicial review does not end with a discussion of

claim preclusion, however. The doctrine of issue preclu-

sion also prevents relitigation of an issue of fact or law

previously determined by a valid final judgment in an

action between the same parties. Allen v. McCurry, 449

U.S. 90, 94 (1980); Heggy v. Grutzner, 156 Wis.2d 186, 192

(Ct. App. 1990). A party who was not involved in the

prior action may also assert issue preclusion offensively,

in order to prevent relitigation of an issue conclusively

resolved against another party. Id. at 193. Thus, both

Meyer and Sturtevant as well as Waukesha County, which

was not involved in the state administrative proceedings

and review, may potentially assert issue preclusion aris-

ing from the ALJ Decision and judicial review.

The factual findings of ALJ Boldt do not appear

disputed and are accepted as true at this Stage, as they

62a

form part of the pleadings. Much of the legal analysis and

conclusions of the administrative law judge and the

reviewing courts concerned their own statutory authority

to enjoin the DNR, which is not relevant to the plaintiff's

substantive claims under the Clean Water Act. However,

one paragraph of ALJ Boldt’s Conclusions of Law, later

affirmed in both the Wisconsin circuit court and court of

appeals decisions, appears directly pertinent to today’s

litigation. Specifically, the administrative law judge found

as a matter of law that the DNR, in connection with

Funk’s Dam, was not the owner or operator of a point

source discharging pollutants into the navigable waters

of the state. S

This text is long and has been trimmed here. Open the source document for the complete record.