# Petition for Writ of Certiorari — Froebel v. Meyer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1075

## Text

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 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

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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

¥ RS: SEGA WINS AG PP eh

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1261%3A1. Public record. Not legal advice.