Amicus Curiae Brief — Ohio v. Wyandotte Chemicals Corp.

INDEX

Page

CITATIONS slotting ee

BRIEF AMICUS CURIAE aad piepiptied 1

Statement of Interest in the Motion 2

Jurisdiction 3

The Subject Matter is Appropriate for the

Exercise of Jurisdiction 3

Lack of an Appropriate Alternative Forum 4

Conclusion 6

CERTIFICATE OF SERVICE 65

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CITATIONS

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Cases:

Georgia v. Pennsylvania R.R. (1945), 324 U.S. 43895

wiry v. Tennessee — Co. (1907),

Michigan v. Wisconsin (1926), 270 U.S. 295 _ 4

Michigan v. Wisconsin (1926), 272 U.S. 398 . _ 4

Missouri v. Illinois (1901), 180 U.S. 208 __ - a

New Jersey v. City of New York (1931),

283 U.S. 473 _.......... aan

New York v. New Jersey (1921), 256 U.S. 296 3

North Dakota v. Minnesota (1923), 263 U.S. 365 3

Pennsylvania v. Wheeling and Belmont Bridge Co.

(1851) 54 U.S. (13 How.) 556 _- 3

Postal Telegraph Cable Co. v. Alabama (1894),

155 U.S. 462 cageanananenod ee

Wisconsin v. Illinois (1929), 278 U.S. 426 = 4

Wisconsin v. Illinois (1930), 281 U.S. 179 4

Other:

Constitution of the United States, Article ITI,

ea TREE IE

United States Supreme Court Rule 42(4) -...__. 2

28 U.S.C. §1251 3

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

LESLIE TNRI RY POS SCRE Baa 5978

———- é

No. 41, ORIGINAL

STATE OF OHIO, EX REL., PAUL W. BROWN, ;

Attorney General of Ohio, State House Annex, f

Columbus, Ohio 43215,

Plaintiff,

v.

WYANDOTTE CHEMICALS CORPORATION, A corpora-

tion existing under the laws of Michigan, located at 1609

Biddle Avenue, Wyandotte, Michigan,

and

DOW CHEMICAL COMPANY OF CANADA, LIMITED,

A corporation existing under the laws of the Dominion

of Canada, located at Sarnia, Ontario, Canada,

and

THE DOW CHEMICAL COMPANY, A corporation exist-

ing under the laws of Delaware, located at Midland,

Michigan,

Defendants.

————E

BRIEF OF THE STATE OF MICHIGAN

AS AMICUS CURIAE IN SUPPORT OF

MOTION FOR LEAVE TO FILE COMPLAINT

This is a brief amicus curiae by the State of Michigan

by its Attorney General, Frank J. Kelley, in favor of a

— ie

Motion for Leave to File a Complaint by the State of Ohio

against a Michigan corporation, a lelaware corporation

and a Canadian corporation. This brief amicus curiae js

brought pursuant to Supreme Court Rule 42(4) without

the express consent of the parties. The State of Michigan

concedes that this brief amicus curiae supporting the State

of Ohio comes late. The State of Michigan presents this

brief amicus curiae upon the information and belief that

the Defendants have been given an extended time for reply

to the State of Ohio’s Motion and, thus, also to this brief.

The State of Michigan notified Defendants to this effect

by letters dated July 15, 1970. Advanced typewritten copies

of this brief amicus curiae were mailed to the Defendants

on July 16, 1970.

STATEMENT OF INTEREST IN THE MOTION

The State of Michigan urges this Court to grant the

State of Ohio’s Motion for Leave to File a Complaint.

The State of Michigan is firmly convinced that this Court’s

jurisdiction in the ease rests on a sound, fundamental basis.

Additionally, the State of Michigan believes that only this

Court can render the quality of judgment which best serves

the needs of the Great Lakes community as a whole. Ac-

ceptance of jurisdiction will wisely respond to that need.

Particularly, the State of Michigan is increasingly con-

cerned with the ecological balance and well-being of all the

natural resources which comprise the Great Lakes. Mich-

igan’s concern is easily understood. It is the only state

whose entire population and territory lie within the Great

Lakes Basin. Not surprisingly, Michigan holds in trust

the largest portion of the Great Lakes waters, fish, vege-

—

tation and bottomlands. This trusteeship extends to Lakes

Superior, Michigan, Huron, St. Clair and Erie.

JURISDICTION

This is an action brought by a state against citizens of

other states. Judicial power and original jurisdiction in

this case are vested in this Court by virtue of Article ITi,

Section 2, Clause 2 of the Constitution of the United States

and Title 28 U.S.C., Section 1251.

THE SUBJECT MATTER IS APPROPRIATE

FOR THE EXERCISE OF JURISDICTION

Nuisance abatement has long been a subject matter which

this Court has accepted under original jurisdiction. Mis-

sourt v. Illinois (1901), 180 U.S. 208 (sewage pollution of

the Mississippi River Basin). New York v. New Jersey

(1921), 256 U.S. 296 (sewage pollution of New York harbor

area). North Dakola v. Minnesota (1923), 263 U.S. 365

(hazardous drainage into interstate waters).

Furthermore, original jurisdiction has been allowed to

states seeking to abate nuisances caused by citizens of other

states. In the case of Pennsylvania v. Wheeling and Bel-

mont Bridge Co. (1851), 54 U.S. (13 How.) 556, this Court

took cognizance of Pennsylvania’s claim that a bridge built

by a Virginia bridge company was a public nuisance be-

cause it obstructed navigation on the Ohio River. In the

case of Georgia v. Tennessee Copper Co, (1907), 206 U.S.

230, the Court again took cognizance of an action to abate

a nuisance causing air pollution. Mr. Justice Holmes speak-

ing for the Court in that case said:

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The caution with which demands of this sort, op

the part of a State, for relief from injuries analogous

to torts, must be examined, is dwelt upon in Missoyy;

v. Illinois, 200 U.S. 429, 420, 521. But it is plain that

some such demands must be recognized, if the grounds

alleged are proved. When the States by their union

made the forcible abatement of outside nuisance jm.

possible to each, they did not thereby agree to submit

to whatever might be done. They did not renounce

the possibility of making reasonable demands on the

ground of their still remaining quast-sovereign inter.

ests; and the alternative to force is a suit in this court.

Missouri v. Illinois, 180 U.S. 208, 241. (at 237)

In the case of New Jersey v. City of New York (1931), 283

U.S. 473, this Court heard New Jersey’s claim that New

York City’s practice of deep sea garbage disposal con-

stituted a public nuisance.

In addition, this Court has exercised original jurisdic.

tion over a number of water diversion and water boundary

disputes. Wisconsin v. Illinois (1929), 278 U.S. 426 and

(1930), 281 U.S. 179, and Michigan rv. Wisconsin (1926),

270 U S. 295 and (1926), 272 U.S. 398 are but two examples

relating to the Great Lakes. The State of Michigan realizes

that the State of Ohio is making no such claims. However,

Ohio’s complaint has boundary and water law implications

which, according to our federal system, should be tried

in a federal forum.

LACK OF AN APPROPRIATE,

ALTERNATIVE FORUM

Central to this Court’s cognizance of claims under orig-

inal jurisdiction is the lack of an appropriate, adequate

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alternative forum. Georgia v. Pennsylvania R.R. (1945),

394 U.S. 439, 464.

The appropriateness and the need for federal judicial

guidance is as apparent as the vastness of the Great Lakes

Basin and its attendant problems. The Basin itself stretches

the length of America’s industrial heartland. Nearly one

fourth of the nation’s manufactured goods are produced

in this region. Over thirty million Americans make their

homes and livelihoods within this region. These citizens

reside in eight states. All but one of the Great Lakes forms

a major boundary between the United States of America

and the Dominion of Canada.

The inherent interstate, indeed international, character

of the Great Lakes cannot be minimized. Legal develop-

ments—especially of a precedent setting nature—are of

interest to all who live within the Basin. This interest on

the part of states is augmented by the frank admission

that the neglect of the Great Lakes is due in large part to

the neglect of states to advocate and formulate a solid body

of common law which fits experiences unique to great lakes

(as opposed to rivers).

Only a federal forum can appropriately and impar-

tially consider the interstate and international implications

of this litigation. But this Court in Postal Telegraph Cable

Co. v. Alabama (1894), 155 U.S. 482, 487 stated:

A State is not a citizen. And, under the Judiciary

Acts of the United States, it is well settled that a suit

between a state and a citizen or a corporation of an-

other State is not between citizens of different States;

and that the Circuit Court [now district court] of the

United States has no jurisdiction of it, unless it arises

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under the Constitution, laws or treaties of the United

States. Ames v. Kansas, 111 U.S. 449; Stone v. Sous,

Carolina, 117 U.S. 430; Germania Ins. Co. v. Wisconsin,

119 U.S. 473.

Thus, without a ‘federal question’ Ohio cannot bring jit,

suit under normal federal district jurisdiction. There jx

a considerable doubt that Ohio’s complaint arises under

the Constitution, laws or treaties of the United States.

CONCLUSION

Original jurisdiction is necessary and proper for the

efficient, speedy and just resolution of the issues raised by

Ohio’s Complaint. Therefore, the State of Ohio’s Motion

for Leave to File a Complaint should be granted.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Robert A. Derengoski

Solicitor General

M. Robert Carr

Assistant Attorney General

July, 1970

CERTIFICATE

I, Robert A. Derengoski, Solicitor General of the State

of Michigan and a member of the Bar of the Supreme Court

of the United States, hereby certify that on July 16, 1970,

I served typewritten copies of the foregoing Brief Amicus

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Curiae on the defendants by mailing typewritten copies

ina duly addressed envelope with proper postage pre-paid

to: J. Donald McLeod, DAHLBERG, MALLENDER and

GAWNE, 1022 Ford Building, Detroit, Michigan 48226,

attorney for defendant Wyandotte Chemical Corporation;

Milton Kunen, KAYE, SCHOLER, FIERMAN, HAYS and

HANDLER, 425 Park Avenue, New York, New York 10022;

Harley J. McNeal, MCNEAL and SCHICK, 520 Williamson

Building, Cleveland, Ohio 44114, attorneys for defendant

Dow Chemical; and Paul W. Brown, Attorney General,

State of Ohio, Columbus, Ohio 43215.

Robert A. Derengoski /s/

Solicitor General

State of Michigan

Lansing, Michigan 48913