Amicus Curiae Brief — Ohio v. Wyandotte Chemicals Corp.

Supreme Court brief1970

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INDEX

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Constitution, statutes and regulations involved_________- 2

Sesevent of the United States.......................... 2

Re ee ee Ee ee ee ee 3

Argument:

Introduction and summary of argument__-_________- +

I. This suit is within the original jurisdiction of this

Court because Ohio has an Interest as Proprietor

and as parens patriae for its citizens. ________- 7

Il. Ohio may apply its law to extra-territorial acts

which have effects within its boundaries in the

absence of federal law or treaty excluding states

from any regulatory role respecting those acts- 12

III. The state of Ohio is not precluded by any existing

treaty or federal statute from bringing an action

to abate a public nuisance of the type alleged _- 13

A. The Boundary Waters Treaty of 1909

does aot vest International Joint Com-

mission with immediate or exclusive

jurisdiction over cases or controversies

arising out of pollution of the boundary

acktatervnadeltnawa catenin acniees 13

B. Federal statutes do not preclude state

actions for the abatement of polluting

practices constituting a public nuisance _ 18

IV. This Court may exercise jurisdiction over a

foreign corporation if it has sufficient contacts

with the United States to satisfy concepts of

due process and is amenable to service of

int ocis ok nt nccianiiecapemanan titan 25

A. The issue whether personal jurisdiction

may be exercised over Dow-Canada

depends on the existence of sufficient

contacts with the United States to meet

the requirements of due process____ _- 26

B. Whether effective service may be had

upon Dow-Canada depends upon the

resolution of factual issues not appro-

priate for decision at this time ______- 32

410-632—70—_-1 (1)

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CITATIONS

Cases:

American Football League v. National Football League,

CF a aS i itie 33

Arrow River Tributaries Slide & Boom Co. Ltd., {1932}

No M

Arrowsmith v. United Press International, 320 F. 2d

Di tat oie nahh ng eae heen age a aaa 27

Beaty v. M.S. Steel Co., 401 F. 2d 157_-_-_-_-.

Bornze v. Nardis Sportswear, Inc., 165 F. 2d 33 ae 27

Bowman v. Curt G. Joa, Inc., 361 F. 2d 706_ ~~. 7

Chicago, M. & St. P. Ry. Co. v. United States, 244

0 RS Sk Se EOE tee gene - 10

Elkart Engineering Co. v. Dornier Werke, 343 F. 2d

Ecce 6 AS Anew andeh den ane bhanWiennwe an aednes 31

Erie R.R. v. Tompkins, 304 U.S. 64.-----_- 28

First Flight Co. v. National Carloading Corp., 209 F.

a RD tc re aR coca ce ak wh hkl 30

Foster and Elam v. Nielson, 2 Pet. 253______- 17, 28

Fraley v. Chesapeake & O. Ry. Co., 397 F. 2d 1 27

Georgia v. Pennsylrania R. Co., 324 U.S. 439_. 7,9, 11

Georgia v. Tennessee Copper Co., 206 U.S. 230_. 8, 10

Gkiafis v. Steamship ¥ iosonas, 342 F. 2d 546. - 27, 30

Goldberg v. Mutual Readers League, Inc., 195 F. Supp.

Wb ac oebues EE ee ene FP ee 27, 30

Guaranty Trust Co. v. York, 326 U.S. 99__-- 000... 7

Hess v. Pawlowski, 274 U.S. 352_..--- 22-2 ==. 31

Hofman, Alfred & Co. v. Karl Meyer Erste Hessisehe

Wirkmaschinenfabrik GMBH, 159 F. Supp. 77.... 31

International Shoe Co. v. Washington, 326 U.S. 310 25,

26, 30, 31

Kenny v. Alaska Airlines, 132 F. Supp. 838_ - 28

Lone Star Package Car Co. v. Baltimore & O. BR. Co.,

Es xe Adena ene dns neacean iene . 27

Massachusetts v. Mellon, 262 U.S. 447______- 27

McGee v. International Life Ins. Co., 355 U.S. 220... 31

Missouri v. Ill... is, 200 U.S. 496 __- S, 23

Moriarty, Edwe..! J. and Co. v. General Tire d& Rubber

Co., 289 F. Supp. 381_---- - - - iP eens 29

Cases—Continued Pore

National Gas Appliance Corp. v. AB Electrolus, 270

Py snasasubdesdusadncccessocascetecescss 31

Bees O, Bey 00 Gs BE GeO ccccccucscccocséscse 31

New Hampshire v. Louisiana v. New ) ork v. Louisiana,

Se nkicbbtcencndbasuanchbessscoséeans 8, 27

New Jersey v. New York, 283 U.S. 473_..... 8, 12, 17, 18, 23

New York v. New Jersey, 256 U.S. 296... ...-- . 19, 23, 24

North Dakota +. Minnesota, 263 U.S. 365_......... 8, 10, 11

Oklahoma v. Atchison, T. & S. F. Ry., 220 U.S. 277. 7,8, 10

Oklahoma v. Cook, 304 U.S. 387_...........------- 7,8, 10

Pacific Lanes, Ine. v. Bowling Proprietors Ass'n of

America, 248 F. Supp. 347... ......-...........- 33

Pennsyloania v. Wheeling Bridge Co., 54 US. 518___- 9

Pulson v. American Rolling Mill, 170 F. 2d 193... _ 24

Rayco Manufacturing Co. v. Chicopee Manufacturing

(o., 148 F. Supp. 588____- me AS Esha 30

Rice v. Santa Fe Elevator Corp., 330 U.S. 218. cased 13

Riverbank Labs. v. Hardwood Prods. Corp., 350 US.

Pb cbs abedbacudendbeaedbueudssobadcatecdcecs 28

Roberts v. Evans Case Co., 218 F. 2d 893 joncbekhuss 27

Reece v. Thompson, 223 U. SS Se eee oh i8

Sei Fujii v. State, 38 Cal. 2d 718... ..-.... 2.2... is

Seilon, Ine. v. Breme, S.A., 271 F. Supp. 516 oseceee 31

South Dakota v. North Careline, 108 US. 286........ 12

St. Clair v. Righter, 250 F. Supp. 148... 2. 27

United States v. Aluminum —— of America, 148

F. 2d 416. Fite 12

United States v. Interlake Steel Ci orp., 297 F. Supp. 912. 23

United States v. Pink, 315 US. 208... 2-2 Is

United States v. Scophony Corp. of America, 333 U Ss.

Dama G dnd duke tae iddeuisnne Mpiednoddaid ease 31

Uteh vl Inited States, 304 US. 80... ..........-.- 32

Wisconsin v. Duluth, 96 US. 379... 19

Constitution, Treaty, and statutes:

Constitution of the United States:

SN TI ban ck wos Cadbechidedccensunea 1,7, 35

Article V1. ee eiocheie Mich accented iraimaidlediataddaalala 13

Boundary W eters Treaty of 1909 between the United

States and Great Britain, 36 Stat. 2448_....._____ 5

IY Oo ce a ee 1,35

FE ae ee eee ee ee 20

33 USC. 461. ......-.<-. pac ipdnek Gierak abelian icine ita e ile 19, 20

CT rere oa a Oe 20

a bdeiter ts cdi itn een Es Me a dl Seach tk alia

A eR AED ET EEE OT RR «me

Federal Water Pollution Control Act, 33 U.S.C. 1151

et seq.:

Page

BPs Sisk nansadaptinndsdtaddaitdihinas 5, 17, 19, 36

Ee a nen nee 20, 36

gE EEE rae ae ee 18, 36

Se le Sc uiicecccndnesdndtdnbesbdstnseans 20, 36

Se I 5 nce euedhenedacecbwck wes 21

Sp ls ED Ancincn de mah aied tendo Slaeadhodacs 23

ES el eee aeee ae 29

SB UG. SSRN. ccccccaceses wena ibe ai adie dei ites dino 23

33 U.S.C. 1162_____- chbennres on csheundanhendsees GE

33 U.S.C. 1162(e)_.__._- i alah aks dt th tk ta toa ls tn 22, 45

33 US.C. 1163(e)........ dae idgtidanaada 23

a ee eats ican cece sca ath 22

ER a ee ee ee 19

Miscellaneous:

Se ict A I les i face dincidcdne nah niettea halen 16

ie Se I, Sct dcadtoscccabesscnecdecs 16

Annot., Federal or Statue Law as Controlling, in Di-

versity Action, Whether Foreign Corporation is

Amenable to Service of Process in State, 6 A.LL.R. 3d

Barry, The Evol ution of the Enforcement Provisions of the

Federal Water Pollution Control Act, 68 Mich. L.

Bs acne ititnda,snlinighial nash widen dna eaienbsdbenahio te ckis 21, 23, 24

Federal or State Law as Controlling, In Diversity Action,

Whether Foreign Corporation is Amenable to Service

of Process in State, 6 A.LL.R. 3d 1103_----- ~~~ --- 27

Foster, Judicial Economy, Fairness and Convenience

of Place of Trial: Long-Arm Jurisdiction in Distriet

CR Sr I Ein eht cnndcondecensanaeiinuadans 27, 28

Green, Federal Jurisdiction in Personam of Corpora-

tions and Due Process, 14 Vand. L. Rev. 967_______- 27, 28

Hines, Nor Any Drop to Drink: Public Regulation of

Water Quality, 52 lowa L. Rev. 186______-_---- 21, 23, 24

Moody, Industrial Manual, p. 1572_- ~~~ ---- see 33

2 Moore, Federal Practice:

REN OR ee yg Peep eee an marae y ep ay oe ae 33

GD, SS8wccccs ROR Se ee ee nee EL 32

Note, Doing Business as a Test of Venue and Jurisdie-

tion over Foreign Corporations +n the Federal Courts,

Oe: Be: a. ee, Ga os veccesccade tees 27

PE AIR NOLO I ELE TELE IEG

RC STR Lae CR CREAR ee F ee eee ee ee |

Miscellaneous—Continued

Note, Jurisdiction—Long-Arm _— Statutes-Corporate

Affiliation as a Basis for Assuming Jurisdiction, 14

RRA ee er er ae

Note, Jurisdiction of Federal Courts Over Foreign

Corporations, 69 Harv. L. Rev. 508___.__-__-_____-

Private Remedies for Water Pollution, 70 Colum. L.

RR TE Se Rees ee a

Reorganization Pian No. 3 of 1970, effective December

2, 1970, 35 Fed. Reg. 15,623............________.

Restatement of the Foreign Relations Law of the

nT deawiawaane

Rule 4, Federal Rules of Civil Procedure._____--_ __ _-

Rule 9(2), Rules of the Supreme Court. ___-________-

Waite, The International Joint Commission—Its

Practice and Its Impact on Land Use, 13 Buffalo

Rs, bitin suicides Ronen Wate atnaena's

4 Wright & Miller, Federal Practice and Procedure:

I aad 6 Sra ele a laa ee ee ee

In the Supreme Court of the Wnited States

Octronen Term, 1970

No. 41 Original

Srate or Onto, Ex Rew. Pavi. W. Brown, Arrorney

GENFERAL OF OHIO, PLAINTIFF

Wryanporte CHEMICAIS CORPORATION, ET AL.

ON MOTION FOR LEAVE TO FILE COMPLAINT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Ohie’s motion for leave to file a complaint against

three corporations, incorporated respectively in Mich-

igan, Ontario, and Delaware, invokes the original

jurisdiction of this Court under Article TIT, Section

2 of the Constitution and 28 U.S.C. 1251, which confer

original jurisdiction over controversies between a

State and citizens of another State and between a

State and citizens of foreign countries.

1. Whether Ohio, individually or as parens patriae,

is the real party in interest as to the matters com-

plained of and the type of relief sought.

(1)

CRS on Cee reen yn te tren RED

2. Whether in the absence of federal statute or

treaty, Ohio would have a common law action to

abate pollution of boundary waters.

3. If so, whether that action is precluded either hy

treaty or federal statute.

4. Whether this Court must deny leave to file a

complaint as to one of the defendants, a Canadian

corporation which asserts, fundamentally on factual

grounds, that this Court has no jurisdiction with re-

spect to it.

5. Assuming there is no legal bar to filing of an

original complaint in this Court, whether leave to file

should be denied by this Court in its discretion.

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

INVOLVED

The pertinent Constitutional and statutory provi-

sions and Rules are set forth in Appendix A, infra,

pp. 35-47.

INTEREST OF THE UNITED STATES

On October 12, 1970, this Court invited the United

States to file a brief expressing its views and to par-

ticipate in oral argument, as amicus curiae, on the

question whether Ohio should be granted leave to file

this complaint.

This case involves a serious claim of pollution of

Lake Erie and its tributaries by mereury and mer-

eury compounds released by corporations operating

plants in Michigan and Canada. Such environmental

problems are of increasing concern to the federal

government, and it is attempting to assist in achiev-

ing a solution to them. It has not, however, sought to

displace state and local authority. An important issue

here is the allocation of responsibility between federal

and state governments in solving environmental prob-

lems which transcend state or national boundaries.

Specifically, this case raises the question of the proper

relationship among independent state activity, federal

legislation, and a treaty, all designed to help in curb-

ing pollution.

STATEMENT

The State of Ohio, on its own behalf and for its

citizens, seeks leave to file a complaint to initiate an

original action against Wyandotte Chemicals Corpo-

ration, a Michigan corporation, Dow Chemical of Can-

ada, a Canadian corporation (hereinafter ** Dow-Can-

ada’’), and Dow Chemical Company, a Delaware cor-

poration (hereinafter “Dow-United States’’). The com-

plaint alleges that the defendant companies have dis-

charged ** poisonous mercury or compounds thereof into

Lake Erie or tributaries thereto”’ in a negligent manner

(Complaint, p. 7) and that their actions have created ‘‘a

public nuisance which must be abated in order to protect

Lake Erie and the health and safety of the citizens

and inhabitants of Ohio’’ (Complaint, p. 8).’

Ohio alleges that it is the owner of Lake Erie from

the Ohio shore to the international bowndary be-

‘The complaint also appears to base Ohio's action on vio-

lations of federal statutes and a federal treaty, none of which

would support actions by a state as parens patriae for its

citizens. Massachusetts vy. Mellon, 262 U.S. 447; infra p. 9, n. 3.

Ohio's brief in support of its Motion, however, discusses only

the public nuisance theory, and we treat the complaint in that

light.

410-632—70—_3

~ —

aves

Le —

SAIS OP ME RENT GNU TCS PCAN AN 00. Ba

tween the United States and Canada,’ and that it also

owns all the fish within these bounds “to the extent

fish in their wild state can be owned” (Complaint,

p. 5). It contends that to the extent it does not own

Lake Erie in the ordinary proprietary sense, it holds

title “under the public trust doctrine” and is therefore

responsible, as parens patriae, to protect the interest

of its citizens in “navigation, commerce and fishing”

on Lake Erie, as well as their health and safety

(Brief, p. 8). Ohio prays for an injunction against

further introduction of ‘‘poisonous mereury or com-

pounds thereof into Lake Evie or tributaries thereto”

(Complaint, p. 9). Ohio further seeks an order re-

quiring defendants to remove mercury which already

has been introduced into Lake Erie or its tributaries,

because of the continuing deleterious effects if it re-

mains. Alternatively, Ohio seeks damages in a sum

sufficient to permit it to remove the mercury, “said

sum to be held in trust for and expended only for this

purpose by Plaintiff’? (7bid.). Finally, the state seeks

compensation **for the existing and future damages to

Lake Erie, the fish and other wildlife, the vegetation

and the citizens and inhabitants of Ohie”’ (7bid.).

ARGUMENT

INTRODUCTION AND SUMMARY OF ARGUMENT

Defendants have raised a number of objections in

opposition to the motion for leave to file the Com-

?The complaint appears to make no claim of ownership in

a proprietary capacity, but Ohio's brief in support of its mo-

tion establishes, pp. 1-6, that such a claim is made, and we

treat the complaint in that light.

plaint. These generally may be categorized as legal

arguments that this Court is without jurisdiction of

this suit and prudential arguments that this Court

should not, in its discretion, entertain this suit. The

primary legal arguments of defendants are: that the

State of Ohio is not the real party in interest, at least

with respect to claims for damages on behalf of its

citizens; that the Boundary Waters Treaty of 1909

between the United States and Great Britain, 36 Stat.

2448 (Dow-Canada, App. 2a-15a), and the Federal

Water Pollution Control Act, as amended, 84 Stat. 91,

33 U.S.C. 1151-1175 (App. A, infra, pp. 36-46), pre-

clude court action by states with respect to pollution

of interstate or international waters; and that there is

no basis for exercise by courts of the United States of

jurisdiction over Dow-Canada. Among defendants’ pru-

dential arguments are the assertions that the prayer for

injunctive relief is essentially moot because the com-

panies have already stopped discharging mercury com-

pounds into Lake Erie; that this Court could not fash-

ion and enforce an effective decree with respect to the

other relief sought in view of the difficulty of removing

mercury which already has been discharged and the un-

certain cost and effects of removal; and that the gen-

eral problems of pollution of Lake Erie and its tribu-

taries would, as a practical matter, be better solved

by cooperative efforts of the countries, states and prov-

inces involved, under federal statutes and the treaty,

than by litigation.

In this brief, we address ourselves only to the legal

issues regarding the filing of the Complaint. We ex-

press no opinion on the prudential matters raised or

memati: secre seats wR a

on certain factual assertions made in connection with

legal arguments regarding jurisdiction over and sery-

ice of process upon the Canadian corporation. We

conclude that there is no legal reason why this Court

should not permit the Complaint to be filed if, in its

discretion, it decides to do so.

At least with regard to its claim for an injunction

against further discharge of mercury into Lake Erie

and to require mercury already discharged to be re-

moved (or alternatively for damages sufficient to per-

mit it to conduct the removal), Ohio is a real party

in interest to this suit. It does not seek relief for par-

ticular citizens or groups of citizens but as parens

patriae.

Unless it is precluded by treaty or federal law, Ohio

may validly apply its common law to actors outside its

territory who create a public nuisance within its boun-

daries. Neither the Boundary Waters Treaty of 1909

nor existing federal legislation preclude Ohio from

independent action to deal with water pollution in its

territory. The Treaty provides a means for settling

disputes between the United States and Canada re-

garding pollution of international waters, but it is

not self-executing. The Federal Water Pollution Con-

trol Act also provides a mechanism for dealing with

pollution of interstate and international waters. But

that act, like other, Jess comprehensive, federal legis-

lation dealing with environmental problems, explicitly

indicates the government’s intention to leave primary

responsibility in this area to the states. Whether or

not resort to the procedures established by the Federal

Water Pollution Control Act would be the most desir-

(

able means for dealing with a situation such as this,

the Act manifestly does not preclude pursuit by a

state of alternative remedies. .

There is, finally, no legal reason for this Court to

deny leave to file the complaint on grounds of possible

problems concerning personal jurisdiction over Dow-

Canada. These issues are predominantly factual ones,

whether Dow-Canada has sufficient contacts with the

United States to permit assertion of jurisdiction over

it as a matter of due process and whether service on

Dow-Canada can be obtained. As such, these issues can

be resolved on a proper motion after the complaint has

been filed.

I. THIS SUIT IS WITHIN THE ORIGINAL JURISDIC-

TION OF THIS COURT BECAUSE OHIO HAS AN

INTEREST AS PROPRIETOR AND AS PARENS

PATRIAE FOR ITS CITIZENS

Under Article ITI, Section 2, this Court has original

jurisdiction in cases in which “a State shall be

Party.’’ However, in order to prevent excessive or im-

proper use of this provision, the Court has consistently

declined jurisdiction of- original cases where the State

merely “elects to make itself * * * a party plaintiff.”

Oklahoma v. Atchison, T. & S.F. Ry., 220 U.S. 277,

289. It has insisted that “the State must show a di-

rect interest of its own and not merely seek recovery

for the benefit of individuals who are the real parties

in interest.’’ Oklahoma v. Cook, 304 U.S. 387, 396.

The Court has thus permitted states to bring suits

against other states and private parties to protect its

own sovereign interests or to vindicate the interests

of its citizens as a whole, as parens patriac. E.g.,

Georgia Vv. Pennsylvania R. Co., 324 U.S. 439; New

mee eR

TOYS

RE PTI hs he ENS TERN

VO hey ee eer

PPT ROE REE OPI,

SANE PIPE BE ce AEE a A a OD TR AE NP ARLE A Ci PII a ON ANI EET

Jersey v. New York, 283 U.S. 473; Georgia v. Tennes-

see Copper Co., 206 U.S. 230. But the Court has re-

fused to permit original suits to be filed where the

relief is sought primarily on behalf of particular citi-

zens or particular classes of citizens. Oklahoma v. Cook,

supra; Oklahoma vy. Atchison, T. & SF. Ry., supra;

North Dakota v. Minnesota, 263 U.S 365; New Hamp-

shire v. Louisiana, New York vy. Louisiana, 108 U.S.

76.

Ohio seeks three different forms of relief: an in-

junction against further discharge of mereury; an

order requiring defendants to remove mereury which

already has been intreduced into the lake, or, alter-

natively, a monetary award sufficient to permit it to

the harm to the lake.

1. There is no dispute that Ohio’s claim for injunctive

relief is properly within the original jurisdiction

which this Court has traditionally exercised. In

remove the substances; and compensatory damages for

Georgia v. Tennessee Copper Co., 206 US. 230, the

Court entertained a suit to abate a public nuisance

by Georgia against a Tennessee company which was

discharging noxious gas across the border mto Geor-

gia, and ultimately issued an mjunction. Similarly,

this Court has permitted suits by a state seeking in-

junctions against a gamut of practices, from dumping

of sewage in an interstate stream to the detriment of

the health and comfort of inhabitants (Missouri v.

IIlinois, 200 U.S. 496; see, New Jersey v. New York

City, 283 U.S. 473), to discriminatory freight rates, set

in violation of the antitrust laws, which damaged the

state’s economy generally and specifically affected its

es ore ees 4

em STE at ae SA RN IT TET OF PET CELLO MES

interest as proprietor of a railroad and various other

institutions in the State (Georgia v. Pennsylvania R.

Co., 324 U.S. 439).*

2. Orders requiring affirmative action to eliminate the

effects of a practice which persist after the practice

itself has been discontinued have not often been

sought or granted in original suits. Frequently, enjoin-

ing the continuation of an illegal practice is all, or

nearly all, that is necessary to prevent harmful effects

for the future. The nuisance abates when noxious odors

are no longer discharged. Or, the relative rapidity with

which sewage is decomposed or diffused to the point of

harmlessness renders the need for removal slight.

Where abatement of the nuisance has necessitated af-

firmative acts, however, this Court has given no indica-

tion it will refuse to consider requiring them. In Penn-

sylvania Vv. Wheeling Bridge Co., 13 Howard 518, the

Court ordered alteration, or removal, of a bridge

which was found to obstruct navigation on the Ohio

River. Similarly, here, there is no legal principle

which would preclude this Court from exercising tra-

ditionally flexible equitable powers to insure a com-

plete remedy where it is claimed that more than mere

discontinuation of a practice is essential. Such relief

is evidently for the benefit of the State and its citizens

as a Whole and not for particular individuals.

* Because Ohio has an independent interest, at least in in-

junctive relief, and since there is no conflict with federal policy

regarding pollution abatement of Lake Erie (see infra, pp. 13-24),

the state’s interest as parens patriae is not superseded by that

of the federal government. Cf. Massachusetts vy. Mellon, 262

The same reasoning establishes the propriety of

Ohio’s prayer, in the alternative, for a monetary

award keyed specifically to the cost of removal and

to be held in a specific account for that purpose. That

alternative, in fact, is one which ordinarily is avyail-

able to a court of equity if it is felt that payment to

the party complaining of a nuisance to permit him to

eliminate or ameliorate its effects would be preferable

to affirmative acts by the tortfeasor. See Chicago, M.

d& St. P. Ry. Co. v. United States, 244 U.S. 351; ef.

Georgia v. Tennessee Copper Co., supra.

The argument generally made against monetary

damages in original actions is that, as to them, the

state is not the real party in interest. ¥.g., Oklahoma

v. Cook, supra; Oklahoma v. Atchison, T. & S.F. Ry.,

supra. In North Dakota v. Minnesota, supra, there

were claims for both injunctive relief and dam-

ages. North Dakota sued to enjoin Minnesota’s drain-

ing water from land into an interstate river which

eaused that river to flood land in North Dakota. It

also claimed monetary damages of $5,000 for itself and

$1 million on behalf of farmers whose land was dam-

aged. This Court assumed jurisdiction of the claim

for equitable relief. It refused, however, to take juris-

diction over the damage claims. It pointed out that

farmers whose land had been damaged had contrib-

uted to a fund to defray the cost of maintaining the

suit and that it was agreed they would share any re-

covery in the proportion of the damage they had suf-

fered. The Court coneluded that the State would not

' a

GT hee Te eet . . = ¥

REE ATER aber IAC areca Ene ren ae omer ROBEY reign <<

a sr

have asserted the claim for damages except at the behest

of and directly on behalf of the farmers.

Where, as here, damages are sought for a sped

fund, to be used for what is preeminently a state or

public purpose, this line of reasoning lacks force.

True, even if restricted to use in removing mercury

from the lake or stabilizing it in the lake bottom, the

award might benefit some Ohioans more than others.

But the same would be true of the injunctive relief

which this Court has unquestioned authority to grant.

Those who would make greater use of the lake have

more to gain from whatever is done to improve it or

to prevent its further injury. The geverning factor in

this Court’s cases has been the directness of relief to

individuals, warranting the conclusion that it is

sought essentially for them. No such conelusion is

warranted here. There is nothing to suggest that the

differential impact of monetary payments to a special

fund, any more than injunctive relief, negates the

overriding interest which Ohio has in the well-being

of its citizens. See Georgia v. Pennsylvania R. Co.,

supra,

3. There remains the third form of relief Ohio seeks:

compensatory damage for harm already done to its

interests in the lake and to those of its citizens. It is

not possible to say with certainty here, as the Court

concluded in North Dakota v. Minnesota, supra, that

it is inconceivable that the state would have asserted

the claim but for the individual interests of lakeside

land owners, fishermen, and the like. Indeed, it is

uncertain how Ohio proposes to disburse any funds it

might receive under this claim; nor has any monetary

410-632—70—_3

value been put on the damage done to its proprietary

interests as distinct from those of its citizens. Quite

possibly the claim is made as a means of measuring

the funds which ought to be paid into the trust fund

for reelamation—a sum which otherwise could be

quite difficult to calculate. See Note, Private Remedies

for Water Pollution, 70 Colum. L. Rev. 734, 746-747

(1970). It is clear that the state may sue for damages

done to its own interests as proprietor. South Dakota

v. North Carolina, 192 U.S. 286. As to the remainder,

it would be appropriate to require Ohio to clarify the

purpose for which it seeks this relief; but as matters

presently stand, there is insufficient basis to conelude

that the parens patriae claim for compensatory dam-

ages falls outside this Court’s original jurisdiction.

Il. OHIO MAY APPLY ITS LAW TO EXTRA-TERRITORIAL ACTS

WHICH HAVE EFFECTS WITHIN ITS BOUNDARIES IN THE

ABSENCE OF FEDERAL LAW OR TREATY EXCLUDING STATES

FROM ANY REGULATORY ROLE RESPECTING THOSE ACTS

The mereury which Ohio contends has created a

common law nuisance within its territory was dis-

charged into Lake Erie or its tributaries in Michigan

and Canada. However, these acts may have caused ef-

fects within Ohio’s boundaries. It is well-established,

under American and international law, that a “state may

impose liabilities, even upon persons not within its

allegiance, for conduet outside its borders which the

state reprehends; and these liabilities other states will

ordinarily recognize.”’ United States v. Aluminum Co.

of America, 148 F. 2d 416, 443 (CA. 2) ; Restatement of

the Foreign Relations Law of the United States 2d, § 18;

New Jersey v. New York, supra. Thus, so long as the

federal government has not prescribed, by treaty or

statute, a system of regulation of water pollution

which precludes state action in this field, Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, Ohio may

apply its common law against those whose acts created

nuisance within the state.

il. THE STATE OF OHIO IS NOT PRECLUDED BY ANY EXIST-

ING TREATY OR FEDERAL STATUTE FROM BRINGING AN

ACTION TO ABATE A PUBLIC NUISANCE OF THE TYPE

ALLEGED

. THE BOUNDARY WATERS TREATY OF 1909 DOES NOT VEST THE IN-

TERNATIONAL JOINT COMMISSION WITH IMMEDIATE OR EXCLUSIVE

JURISDICTION OVER CASES OR CONTROVERSIES ARISING OUT OF

POLLUTION OF THE BOUNDARY WATERS

The Boundary Waters Treaty of 1909 is the su-

preme law of the United States, Const. Art. VI, and

has been implemented in Canada by Act of Parlia-

* Although a state has jurisdiction to prescribe a law which

applies to acts committed outside its territory, enforcement of a

remedy outside its territory will require action by the courts

of the foreign jurisdiction. Cf. Restatement of the Foreign

Relations Law § 20. In this case, it therefore might be neces-

sary for Ohio to seek enforcement of a decree in Canadian

courts, particularly if it is concluded that enforcement against

Dow-United States is inappropriate or inadequate. In such an

event, Ohio would stand before the Canadian courts as any

other suitor seeking to enforce a decree of a foreign court.

While uncertainty with regard to the enforcement of a decree

may be a factor in determining the nature of the decree, it

(oes not, in our view, prevent this Court from exercising juris-

diction over this case.

RE IE CE PS IY EDA ELEGANT SRY HE BE

LPR LEE IE IS.

FATE AI ORES UY Sigs CE AERA Ee IE i ea eerie

RAO Tach

ment.’ Article 4 of the Treaty provides that the “boun-

dary waters * * * shall not be polluted on either side

to the injury of health or property on the other.”

(36 Stat. 2450) But this general prohibition cannot be

said to provide the exclusive legal remedy for problems

of pollution in the boundary waters, for it is not self-

executing. No provision of the treaty grants a direct

remedy for its violation, and its enforcement depends

upon further action by one or both of the signatories.

Any remedy would flow through the International

Joint Commission established by Article 7 of the

Treaty. The Commission’s powers are defined in Ar-

ticles 8-10. None of these in itseif authorizes it to reach

binding determinations in pollution cases.

Articles 8 empowers the Commission to “pass

upon all cases involving the use or obstruction or

diversion of the waters with respect to which under

Articles 3 and 4 * * * the approval of this Commis-

sion is required’’ (36 Stat. 2451). Those Articles

specifically describe the types of projects for which

approval is required. For example, Article 4 states

that the “Parties * * * will not permit the construe-

* A treaty in Canada is “enforceable by the Courts only where

the treaty has been implemented or sanctioned by legislation

rendering it binding upon the subject * * *.” Re Arrow Ricer

& Tributaries Alide & Boom Co. Ltd. [1932] 2 D.L.R. 200,

260 (Supreme Court of Canada). The Boundary Waters Treaty

has beer: expressly confirmed by Canadian Act of Parliament,

Statutes of Canada, 1-2 George V, ch. 28, May 19, 1911 (An

Act relating to the establishment and expenses of the Inter-

national Joint Commission under the Waterways Treaty of

January the eleventh, nineteen hundred and nine).

tion or maintenance * * * of any remedial or

protective works or any dams or other obstruc-

tions * * * the effect of which is to raise the natural

level of waters on the other side of the boundary,

unless * * * approved by the * * * Commission”

(36 Stat. 2450). Significantly, the proscription of pol-

jution, which immediately follows this provision in Arti-

cle 4, does not mention approval or action by the Inter-

national Joint Commission.

Articles 9 and 10 provide for reference to the

Commission of “other questions or matters of dif-

ference’’ between the parties. Under Article 9, a

matter may be referred by either government for

study and recommendations, *‘subjeet * * * to any

restrictions or exceptions which may be imposed with

respect thereto by the terms of the reference”’ (36 Stat.

2452). Reports under the Article “shall not be regarded

as decisions * * * either on the facts or the law, and shall

in no way have the character of an abitral award”’

(ibid). It follows that no binding determination of a

pollution problem could be had under Article 9; reli-

ance upon its procedures could produce no assurance

of remedy."

*The only dispute between the United States and Canada

with regard to pollution ever referred to the International Joint

Commission was the case of the Trail Smelter, relied upon by

defendants as an example of practice under the Treaty (£.z.,

Dow-Canada Brief, p. 41). Fumes from a smelter at Trail,

British Columbia, were alleged to have damaged property in

the state of Washington. The matter was referred by both

Governments under Article 9 to the International Joint Com-

mission in 1928, with the reference specifically noting that no

binding decision was sought. The Commission rendered a report

in 1951, recommending a monetary settlement for claims up to

ee ~ . — ee ee

Article 10 does vest the Commission with power to

render binding decisions on matters referred by con-

sent of both Parties, subject again to “any restrictions

or exceptions * * * imposed * * * by * * * the ref-

erence” (36 Stat. 2453). But the Article states that any

joint reference “on the part of the United States * * *

will be by and with the advice and consent of the Senate,

and on the part of His Majesty's Government with the

consent of the Governor-General in Couneil” (bid),

Perhaps beesuse of these requirements, there has never

been a reference for binding arbitration under Article

10.

Article 8, then, is the only self-executing provision

for enforcement of treaty rights. Since pollution is

clearly not within its scope, see Bloomfield & Fitz-

gerald, Boundary Water Problems of Canada and the

United Stqes, 20, consideration of problems and en-

forcement of rights under the Treaty requires specific,

additional executive or legislative action by the Gov-

1931. The proposal was in fact accepted, but there was never

any certainty that it would be. A separate commission was sub-

sequently established by a special convention to arbitrate claims

for post-1931 damages. See Bloomfield & Fitzgerald, Boundary

Waters Problems of Canada and the United States, 39, 137-

138; The Trail Smelter Arbitral Decisions, 33 Am. J. Intl. Law

182 (1939), 35 Am. J. Intl. Law 684 (1941).

Under Article 9, the parties have several times requested the

Commission to investigate and report generally on problems of

water pollution. A technical board of advisors which reports

semi-anually has also been established; its recommendations,

too, are merely precatory. See generally, Bloomfield & Fitz-

gerald, supra; Waite, The /nternational Joint Commission—Its

Practice and Its Impact on Land Use, 13 Buffalo L. Rev. 93

(1963).

)

ernments; the acts necessary to produce a binding

adjudication amount to the execution of a separate

treaty. There is, moreover, no indication of an intent,

much less a practice, of the parties to make the re-

ferral mechanism the sole means for handling pollu-

tion problems. To the contrary, the governments con-

tinue to take independent action in this field. The

Federal Water Pollution Control Act, as amended (33

U.S.C. 1151-1175), upon which defendants also rely, is

an example. That Act, which applies to the Great

Lakes along with other “interstate waters,” provides

machinery for dealing with water pollution problems

which is much more elaborate and certain than that

provided by the Treaty. In these circumstances, this

Court need not defer to the Treaty. See Foster and

Elam v. Neilson, 2 Pet. 253.

2. The Treaty discusses only the rights of the

United States and Canada and permits only them to

refer matters to the International Joint Commission.’

'The only reference to individual rights is in Article 2. That

Article specifies that individuals who suffer injury as a result

of interference with or diversion of waters flowing across the

boundary shall have “the same rights and * * * legal remedies

as if such injury took place in the country where such diver-

sion or interference occurs * * *, 36 Stat. 2449. This pro-

vision assures that, as to the subject treated, litigants will

not experience the enforcement problems which might otherwise

arise out of the necessity of proceeding, at some point, in a

foreign tribunal. See n, 4. sepra. Such assurance of enforcement is

hot given as to other problems, such as the pollution problem

here. But the United States does not believe that Article 2, by

implication, negates the settled principle of liability for the

international consequences of one’s acts as to such problems.

Cf. Vew Jersey v. New York City, 283 U.S. 473, 482-483.

;

OE ELT LATE OGLE LLIES, LENE TEL NM SPO ITE NETTIE ERIE. SETS

MOET Beh SemngnaE rp

It does not, however, evince a purpose on the part of

the national governments to exclude their states and

provinces from an independent role in responding to

problems of boundary water pollution. As a general

rule “treaties * * * [are] carefully construed so as not

to derogate from the authority and jurisdiction of

the States of this nation unless clearly necessary to

effect the national policy” United States v. Pink, 315

U.S. 317. See, also, Rocca v. Thompson, 223 U.S. 317,

Where a treaty is not self-executing, even local laws

which are inconsistent with its terms are not super-

seded until there is implemen-ing legislation. Sei Fujii

v. State, 38 Cal. 2d 718, 242 P. 2d 617 (Sup. Ct. Cal.).

Action on the part of a State in pollution matters con-

flicts neither with the terms of the treaty nor with the

policy of the United States. Indeed, the nation’s policy,

as expressed in the Federal Water Pollution Control

Act, appears to be exactly the opposite. Section 1(¢) of

that Act states:

Nothing in this Act shall be construed as im-

pairing or in any manner affecting any right or

jurisdiction of the States with respect to the

waters (including boundary waters) of such

States. [33 U.S.C. § 1151(¢) ; Emphasis added. ]

B. FEDERAL STATUTES DO NOT PRECLUDE STATE ACTIONS FOR THE

ABATEMENT OF POLLUTING PRACTICES CONSTITUTING A PUBLIC

NUISANCE

While federal action affirmatively encouraging the

defendants’ conduct might foreclose Ohio’s cause of

8 SLES VY NAEP a RU Se ca ae ee ae ee |

action,” the defendants claim no such federal license

here. Rather, assuming that the condition their plants

produce is one which might require a remedy, they

insist that federal statutes—notably, the Federal Water

Pollution Control Act, as amended, 33 U.S.C. 1151-

1175 °—provide the exclusive remedy. The Water Pol-

lution Control Act is by far the most comprehensive

®In Wisconsin v. Duluth, 96 U.S. 379, this Court dismissed

an original action brought by Wisconsin against the city of

Duluth, Minnesota, for diversion of waters upon finding that

the federal government had taken possession and control of

the diversion project. On the other hand, in New Jersey’s suit

against New York City regarding the effect of the city’s prac-

tice of dumping garbage seaward of the state’s beaches, it was

held te be no defense that the city dumped the garbage at

places designated by the harbor supervisor acting under a fed-

eral statute specifically designed to regulate such activities. 33

| U.S.C. 441 et seg.; New Jersey v. New York City, 283 U.S.

473. “There is nothing in the Act that purports to give one

dumping at places permitted by the supervisor immunity from

liability for damage or injury thereby caused to others or to :

deprive one suffering injury by reason of such dumping of :

relief that he otherwise would be entitled to have. There is no

reason why it should be given that effect.” /d. at 482-483. Nor

did the existence of a “contract” between the federal govern-

ment and a New Jersey sewage district regarding the manner

in which sewage would be treated before discharge into New

York Bay foreclose, of its own weight, a suit by New York

State to enjoin the discharge; the Court carefully examined

the evidence and the remedies given under the contract before

concluding, on the merits, that the state had not established

that a public nuisance would be created. Vew York v. New

MENS TERA TEM Axe

Jersey, 236 U.S. 296, 312-313. :

° The Act is set out in the 1964 edition at Sections 466—-466k, :

and was amended and renumbered by an Act of April 3, 1970,

P.L. 91-224, 84 Stat. 91. Recent amendments were also made :

in 1965 (79 Stat. 903) and 1966 (80 Stat. 1246). And see n. 25,

infra, p. 37.

410-632—70——_4

federal statute dealing with pollution of the inter-

state or navigable waters of the United States.” But

like other enactments in the area of environmental con-

trol,’ the act makes clear that the role of federal

law is to supplement rather than to supplant state ae-

tion. Section 1(b) of the Act declares that “the policy

ot Congress [is] to recognize, preserve, and protect

the primary responsibilities and rights of the States

in preventing and controlling water pollution * * *,”

33 U.S.C. 1151(b).

This motif is carried forward in Section 10 of the

Act, 33 U.S.C. 1160, which provides for the develop-

ment and enforcement of water quality standards for

interstate and navigable waters and their tributaries.

The section specifically states that except where the

Attorney General has actually obtained a court order

Tn addition to statutes regarding pollution of particular

waterways, ¢.g., 33 U.S.C. 441 et seq.. n. 8, supra, the federal

statutes of general application to water pollution are Section 13

of the Rivers and Harbors Act of 1899, 33 U.S.C. 407, com-

monly known as the Refuse Act, which prohibits the discharge

or dumping of any refuse matter into navigable waterways;

and the Oil Pollution Act of 1961, 33 U.S.C. 1001 et seq., deal-

ing with oil pollution at sea. Quite properly, it is not suggested

that either of these Acts preempts Ohio here.

"FE .g.. Section 202(b) of the Environmental Quality Im-

provement Act of 1970, 84 Stat. 114:

“(1) The Congress declares that there is a national policy for

the environment which provides for the enhancement of en-

vironmental quality. This policy is evidenced by statutes here-

tofore enacted relating to the prevention, abatement, and con-

trol of environmental pollution, water and Jand resources, trans-

portation, and economic and regional development.

(2) The primary responsibility for implementing this policy

rests with State and local governments.”

of pollution abatement on behalf of the United States

after following the procedures set out in the Section,

“State and interstate action to abate pollution of in-

terstate or navigable waters * * * shall not * * * be

displaced by Federal enforcement action.’’ Section

10(b), 33 U.S.C. 1160(b).

The procedures of Section 10 are complex and

perhaps unnecessary to set out im exrtenso.” Very gen-

erally, two different modes of federal enforcement are

possible. Where water quality standards and enforce-

ment plans have been established by the states, or by

the Administrator of the Knvironmental Protection

Agency upon state default, the Administrator may re-

quest the Attorney General to bring an abatement

action 180 days after finding that the standards are

being violated and notifying the violators of the viola-

tion (Section 10(¢)). Or, where pollution creates a

danger to health or welfare, the Administrator may

convene a conference of relevant state and interstate

pollution control agencies (Section 10(d)) and recom-

mend remedial action (Section 10(e)). If after six

months a pollution danger remains, he may then con-

vene a public hearing; once the hearing Board’s

recommendations are made known, at least six months

more must be allowed to implement them (Section

10(1)). If the danger remains he may then request

the Attorney General to bring an abatement action

“They are well explained in Barry, Zhe Evolution of the

Enforcement Provisions of the Federal Water Pollution Con-

trol Act, 68 Mich. L. Rev. 1103 (1970); see also, Hines,

Nor Any Drop to Drink: Public Regulation of Water Quality,

52 Towa L. Rev. 186, 432, 799 (1966-1967).

BB RDI NCE AGENT MDT ACP OW Te in A) em aA

0 Mertens ere SL RT ee oe

(Section 10(g)). It is quite clear that the actual

bringing of a judicial enforcement action, in either

‘ase, is entirely discretionary with the Attorney Gen-

eral. It is undoubtedly for this reason that Congress

was so careful to state in Section 10(b) that other

remedies are not ordinarily precluded.

Section 12 of the Act, 33 U.S.C. 1162, deals specifi-

‘ally with pollution by “hazardous substances,’’ a cate-

gory to which mercury and its compounds belong. Al-

though it calls for a Presidential report,” Section 12

provides no effective means for federal control of

such pollution (other, that is, than the procedures of

Section 10; compare Section 11, 33 U.S.C. 1161, deal-

ing with oil pollution). Rather, it explicitly preserves

a right of action “to any person or agency under any

provision of law for damages to any publicly or pri-

vately-owned property resulting from a discharge of

any hazardous substance or from the removal of any

such substance.”’ Section 12(e), 33 U.S.C. 1162(e).

In contrast to these provisions, Section 13(f), 33

U.S.C. 1163(f), explicitly provides for federal pre-

emption of state controls over standards for marine

(shipboard) sanitation devices. Similarly, regulation

of pollution by federal installations is made an exelu-

sively federal concern. Barry, op. cit. supra, 68 Mich.

L. Rev. at 1118. The conclusion is inescapable that

despite its stress on federal-state cooperation as a

means of dealing with pollution of interstate waters,

the Federal Water Pollution Control Act has reserved

* Under the statute the report was to have been filed Novem-

ber 1, 1970; we are informed that in all probability it will not

be filed until mid-February, 1971.

SOR AOA Oe WO Neste MN UE

to the states intact their traditional remedies. Ibid. ;

Hines, op. cit., supra, 52 Lowa L, Rev. at 800; ef. United

States v. Interlake Steel Corp., 297 F. Supp. 912 (N.D.

Tll.).

We believe this conclusion is valid in this case even

though the pollution which Ohio seeks to control orig-

inates outside its borders. Again, this Court’s cases

make clear that the states have a remedy for such pol-

jution, albeit they may have to meet a special standard

of proof in order to establish their rights. Missouri v.

Illinois, 200 U.S. 496, 520-521; New York v. New Jer-

sey, supra; New Jersey v. New York City, supra.

While it is certainly true that Congress has done

much to encourage joint action, there is no evidence

| that it meant to foreclose the extraterritorial “nui-

sance” remedy or to limit its approving reference to

local and state control to situations where those con-

trols were exercised intrastate. Even apart from

the wholly discretionary nature of the federal abate-

ment action under Section 10, the remedy provided

by that Section is deficient in several respects: it

makes no provision for monetary awards for dam-

ages done during the pendency of the swit (ef. Barry,

op. cit. supra, 68 Mich. L. Rey. at 1121); it is at best

uncertain whether a monetary award to compensate

for the expense of removing the pollutant can be ob-

tained (compare Sections 10(h) and 12(e), 33 U.S.C.

1160(h), 1163(e) with Section 11(f), 33 U.S.C.

1161(f)); and unless the discharge is in violation of an

NS BT RL aap

Pee) ahr aan ree Mee

OEE NEES OAR NE RT ERE RR A Se

PCAN:

AAEM LLORES LE NOPE LILIES LIBEGE! NAP

established water quality control standards “ a Section

10 remedy cannot be obtained in less than fourteen

months."* Such a remedy is poorly suited to an emer.

gency situation such as Ohio alleges in its complaint,"

Compare Barry, op. cit. supra, 68 Mich. L. Rev. 1108-

1109, 1119.

“Only Texas has an approved water quality control standard

with specific limits for mercury and its compounds, While al]

states, including Ohio and Michigan, have catch-all provisions in

their approved standards forbidding pollution by toxic or hazard.

ous substances, the uncertainty of these general clauses makes it

unlikely that they could be enforced through the relatively speedier

procedures of Section LO(¢).

'® Where violation of an established standard can be shown,

Section 10(c) permits the Administrator to request suit 180

days after giving notice of the condition and seeking its abate.

ment. Pp, 21-22, supra. But otherwise, there must be a three-

week notice of conference; a conference and its report: a six-

month period for abatement: if abatement does not occur, a

three-week notice of hearing; a hearing and report; and a

second six-month period for compliance before court action can

be requested. /bid.

That this Court's procedures are unlikely to be speedier,

absent a showing justifying emergency relief, might be a con-

sideration warranting refusal, in its discretion, to entertain the

: , “~~

complaint, ef. New York v. New Jersepy, supra, 256 U.S. at

313-314; Hines, op. c/t. supra, 52 Iowa 1. Rev. at 196-207, 434,

although the federal remedy is deficient, as noted, in respects

other than simple delay. Since this matter, however, is one of

discretion rather than jurisdiction of the complaint, we do not

address it.

Iv. THIS COURT MAY EXERCISE JURISDICTION OVER A FOR-

EIGN CORPORATION IF IT HAS SUFFICIENT CONTACTS

WITH THE UNITED STATES TO SATISFY CONCEPTS OF DUE

FROCESS AND IS AMENABLE TO SERVICE OF PROCESS

Defendants contend that this Court is without ju-

risdiction over Dow-Canada, a non-resident alien. We

believe, however, that there is a legal basis for obtain-

ing jurisdiction over Dow-Canada depending upon

the resolution of factual questions upon which we ex-

press no opinion and which this Court need not re-

solve prior to the filing of a complaint.

It is important at the outset to distinguish between

the questions whether personal jurisdiction may be

exercised, and whether service of process can be ob-

tained. One may readily imagine cases in which there

would be sufficient basis for this Court to entertain an

original action, but personal or appropriate substitute?

service of the proposed defendants could not be ned.

There might also be cases in which service would

he possible, but the relationship of the defendant to

the forum would be so remote that “maintenance of

the suit [would] offend traditional notions of fair

play and substantial justice.” International Shoe Co.

v. Washington, 326 U.S. 310, 316. We address each

of these issues in turn.

A. THE ISSUE WHETHER PERSONAL JURISDICTION MAY BE EXER-

CISED OVER DOW-CANADA DEPENDS ON THE EXISTENCE of

SUFFICIENT CONTACTS WITH THE UNITED STATES TO MEET

THE REQUIREMENTS OF DUE PROCESS

The problem of personal jurisdiction over a non-

resident alien corporation in an original action in this

Court is apparently one of first impression. Dow-

Canada asserts that, in the absence of a long-arm or

similar statute, the “minimum contacts”’ test of “doing

business,”’ developed by International Shoe Co. v. State

of Washington, supra, and subsequent cases largely in

the context of such statutes, cannot be applied as the

basis for the exercise of jurisdiction. Rather, it contends,

the more stringent test of “doing business’’ employed

prior to International Shoe is appropriate. But long-

arm statutes are essentially concerned with service of

process, not the basis of jurisdiction. If service issues

are put aside, the only barrier to this Court’s exercise

of jurisdiction over a case apparently within its

original jurisdiction would be the existence of facts

making that exercise fundamentally unfair, within the

meaning of the Due Process Clause of the Fifth

Amendment.

The development of the due process concept of

personal jurisdiction in the United States has been

treated in depth by courts and legal commentators

alike, and needs no general exposition here. See, ¢.g.,

International Shoe Co. vy. State of Washington, 326

U.S. 310 (1945) ; Note, Jurisdiction of Federal Courts

Over Foreign Corporations, 69 Harv. L. Rev. 508

(1956). Of special importance to the present diseus-

sion, however, is the developing recognition by lower

federal courts that where federal jurisdiction of the

ER SER ARON sea ps patel ES

SD ES A EEE EID OA Be BB EN i TT I I ES ae OE em

subject matter is founded on other than the diverse

citizenship of the parties, a federal district court will

have personal jurisdiction over any properly-served

defendant within the permissible limits of the due

process clause of the Fifth Amendment. See, e.g.,

Fraley v. Chesapeake & O. Ry. Co., 397 F. 2d 1 (C.A.

3); Lone Star Package Car Co. v. Baltimore & O. R.

(o., 212 F. 2d 147 (C.A. 5). See, also, 4 Wright & Miller,

Federal Practice and Procedure, § 1075.

Each of the several federal court cases Dow-Canada

cites in support of its contrary proposition “ are cases

where the jurisdiction of the federal court rested on

diversity of citizenship. The courts of appeal are in

general agreement that a defendant in a diversity case

is amenable to the personal jurisdiction of the court

only if he would be so amenable in the courts of the

State in which the district court is sitting.” The ra-

tionale for this proposition is similar to the outeome-

determinative test promulgated by Guaranty Trust

* Beaty vy. M.S. Steel Co.. 401 F. 2d 157, 161 (C.A. 4, 1968),

certiorari denied, 89 S. Ct. 686; Bowman yv. Curt G. Joa Ine., 361

F.2d 706, 714 (CLA. 4, 1969) ; Roberts v. Evans Case Co., 218 F, 2d

893 (CLA. 7.1955) : Pulson v. American Rolling Mill, 170 F, 2d 193,

195 (CLA. 1, L948): Bornze vy. Nardis Sportswear Inc., 165 F. 2d 33

(CLA. 2, 1948). See Dow-Canada Br. 18 and 22.

“See Arrowsmith v. United Press International, 320 F. 2d

219 (CLA. 2, 1963); Foster, Judicial Economy; Fairness and

Convenience of Place of Trial: Long-Arm Jurisdiction in Dis-

trict Courts, 47 F.R.D. 73, 96 n. 75 (1968); Annot., Federal or

State Law as Controlling. in Diversity Action, Whether Foreign

Corporation is Amenable to Service of Process in State, 6

A.L.R. 3d 1103, 1109, 1114 (1966). But see Arrowsmith v.

United Press International, supra, pp. 234-244 (dissenting opin-

ion of Clark, C.J.) ; St. Clair v. Righter, 250 F.Supp. 148 (N.D.

Va. 1966): Green, Federal Jurisdiction In Personam of Corpo-

rations and Due Process, 14 Vand. L. Rev. 967 (1961): Note,

Co. v. York, 326 U.S. 99 (1945): (1) a State is not

required by federal constitutional provisions to open

its courts to a transitory action arising out of State,

Kenny v. Alaska Airlines, 132 F.Supp. 838 (S.D. Cal,

1955) (removal case); (2) “[s]tate statutes deter.

mining what foreign corporations may be sued, for

what, and by whom * * * represent a balancing of var-

ious considerations—for example, affording a forum

for wrongs connected with the state and conveniencing

resident plaintiffs, while avoiding the discouragement

of activity within the state by foreign corporations,”

Arrowsmith vy. United Press International, supra, p.

226; (3) the purpose of diversity jurisdiction is to

provide a more suitable forum for what are primarily

state cases but which involve citizens of different

states, id. pp. 226-227; and (4) there is “* * * no fed-

eral policy that should lead federal courts in diver-

sity cases to override valid state laws as to the sub-

jection of foreign corporations to suit, in the absence

of direction by federal statute or rule,” id. p. 226.

The rationale for limiting federal courts exercising

diversity jurisdiction to state notions of personal

Doing Business ax a Test of Venue and Jurisdiction orce For-

eign Corporations in the Federal Courts, 4 Colum. L.QRev. 34

(1956) : Note, Juriadiction of Federal Courts Over Foreian Cor-

porations, supra,

* Of course, it is generally conceded that the doctrine of Ere

RR. v. Tompkins, WA US. 64 (1938), does not prohibit Congress

from broadening the ability of federal district courts exervis-

ing diversity jurisdiction to obtain personal jurisdiction over

defendants not personally amenable in the courts of the forum

state. Arrowsmith v. United Press International, supra, p. 26:

see Riverbank Labs. v. Hardwood Prods, Corp, 30 US. 108

(1956), opinion amended, 350 U.S. 1012 (1956); Green, supra,

p. 980; Foster, supra, pp. 80-81 & n. 18.

jurisdiction is not relevant, however, where subject

matter jurisdiction is present on a basis other than

diversity. In a relatively recent Sherman Act case in

the federal district court in Ohio, Edward J. Moriarty

& Co. v. General Tire & Rubber Co., 289 F. Supp. 381,

389-390 (S.D. Ohio 1967), the judge reasoned:

It is this Court's opinion that at first blush,

it should be irrelevant whether or not [one of

the potential defendants’] activities in Ohio

meet the tests set out in [the Ohio long arm

statute]. It is our opinion that a federal dis-

trict court may acquire jurisdiction over the

person of a defendant incorporated under the

laws of a foreign country without regard to

contacts of the corporation with the state where

the courts sits. This is especially true ina case

where the cause of action rests upon a feder-

ally-created right, such as this one, and where

national uniformity in enforcing that right

should be the true guideline.

A court is a part of the judicial branch of

the government of some state or nation. That

government may have undertaken to give the

court power to entertain a certain action or ac-

tions, but, in order for the court to have juris-

diction, the state or nation must have judicial

jurisdiction over the parties.

Thus, in our view, the judicial jurisdiction

over the person of the defendant does not re-

late to the geographical power of the particular

court which is hearing the controversy, but to

the power of the unit of government of which

that court is a part. The limitations of the con-

cept of personal jurisdiction are a consequence

of territorial limitations on the power of the

SS were wee om — —— 2 o .

4 . .* owe 7. Ste 4 © ; ’

e 7 OT RETAINS HS” Os I

EP PLT IIIS IE ee A NPR OT

respective forums. Thus, as applied to the states,

the constitutional test for personal jurisdic.

tion involves a determination as to whether the

defendant has certain minimal contacts with the

forum state, such that the maintenance of the

suit does not offend traditional notions of fair

play and substantial justice. International Shoe

Co. v. State of Washington, 326 U.S. 310, 66

S. Ct. 154, 90 L. Ed. 95 (1945). [Emphasis in the

original. |

By the same token, we feel that the appro-

priate inquiry to be made in a federal court

where the suit is based upon a federally ere-

ated right is whether the defendant has certain

minimal contacts with the United States, so as

to satisfy due process requirements under the

Fifth Amendment. * * * [Emphasis added. ]

See also Gkiafis v. Steamship Yiosonas, 342 F. 546,

549 (C.A. 4, 1965); First Flight Co. v. National Car-

loading Corp., 209 F. Supp. 730 (E.D. Tenn. 1962) ;

Goldberg v. Mutual Readers League, Inc., 195 F. Supp.

778, 781 (E.D. Pa. 1961); Rayco Manufacturing Co. v.

Chicopee Manufacturing Co., 148 F. Supp. 588, 590-

591 (S.D. N.Y. 1957).

We can perceive no reason why the test of personal

jurisdiction in this Court should be any more re-

strictive than the Constitution requires. The Consti-

tution appoints this Court as the forum for resolution

of controversies between a State and citizens of other

states or foreign countries. Its jurisdiction over those

controversies is as broad as the Constitution permits.

It is in no sense a substitute forum which ought for

reasons of comity to follow restrictions on jurisdic-

tion which may have been imposed on state courts.

PRL AOL APES TNL LIE REO INE Na 0 i OREN Se Ra i pe —

As already set out, international law recognizes the

liability of individuals for the extra-territorial conse-

quences of their acts; no reason of state requires that

this Court adopt a more restrictive theory of juris-

diction over foreign corporations charged with pro-

ducing such consequences in the United States than

the Constitution commands as to all defendants in

federal courts.” In sum, no federal policy demands

that this Court’s power to subject defendants to its .

jurisdiction be limited by anything save the Fifth ‘

Amendment of the United States Constitution.

There remains the issue whether the requirements ;

of due process would be met if jurisdiction were exer-

cised in this ease. Cases beginning with Jnternational

Shoe, supra, which have developed the “minimum con-

tacts” doctrine suggest two possible bases for the exer-

cise of jurisdiction. First, Dow-Canada’s sales and other

business in the United States, as well as the fact that it

is wholly owned by an American corporation, may just-

ify jurisdiction. See e.g., McGee v. International Life

Ins. Co., 355 U.S. 220. Second, jurisdiction might also i

be based on the alleged commission of tortious acts in t

the United States. See e.g., Hess v. Pawloski, 274 U.S.

352; Elkart Engineering Co., v. Dornier Werke, 343 F.

2d 861 (C.A. 5) ; Nelson v. Miller, 11 Til. 2d 378, 143 N.E.

2d 673. See, also, 4 Wright & Miller, supra, §§1066- |

FF eS

* See, ¢.g.. United States vy. Scophony Corp. of America, 333

US. 795: National Gas Appliance Corp. y. AB Electrolux, 270

PF, 2d 472 (C.A. 4); Seilon, Inc. v. Breme S.P.A., 271 F. Supp. |

‘

516 (N.D. Ohio); Alfred Hofman & Co. y. Karl Meyer Erste

Hessische Wirkmaschinen fabrik GMBH, 159 F. Supp. 77

(D.N.J.).

p mamataniys Sey Ana ibaa Ze CK PRIA SRK ea abe TRS Als,

ite APRA iat fe

| + eee ee

1069; 2 Moore, Federal Practice {1 4.25, 4.41 [1]-[3].

What is important to note, however, is that the critical

issue is a factual one. While the United States takes no

position on that question,” we see no reason why, as a

factual question, it ought not to be resolved after the

complaint has been filed, in accordance with the usual

practice.

B. WHETHER EFFECTIVE SERVICE MAY BE HAD UPON DOW-CANADA

DEPENDS UPON THE RESOLUTION OF FACTUAL ISSUES Nor aAp-

PROPRIATE FOR DECISION AT THIS TIME

Assuming that jurisdiction may be obtained, the

Rules of this Court provide an appropriate proce-

dural vehicle for service upon Dow-Canada. Rule

9(2) provides that the Federal Rules of Civil Proee-

dure, *** * * where their application is appropriate,

may be taken as a guide to procedure in original

actions in this court’’. See Utah v. United States,

394 U.S. 89, 94 (1969) .”

Rule 4 of the Federal Rules of Civil Procedure goy-

erns service of process in federal district courts. Rule

4(d)(3) provides for personal service upon a foreign

corporation “by delivering a copy of the summons and

21 Ohio alternatively contends that personal jurisdiction over

Dow-Canada may be obtained through Dow-United States,

which allegedly “controls the actions” of Dow-Canada. We express

no opinion concerning the ultimate resolution of this issue, since it

too depends in part on a factual determination. See, Note, J urisdic-

tion—Long-Arim Ntatutes—Corporate Affiliation as a Basis for

Assuming Jurisdiction 14 Wayne Li, Rey. 1228 (1968).

2 Supreme Court Rule 33(1) provides for service of “any

pleading, motion, notice, brief, or other document” upon op-

posing counsel, either personally or by mail. Since this Rule

does not provide for service directly on adverse parties, it would

appear inapplicable as a guide to means for original service of

] rocess,

of the complaint to an officer, a managing or general

agent, or to any other agent authorized by appointment

or by law to receive service of process * * *.’’ * Ohio

contends that the Directors of Dow-Canada, a majority

of whom reside within the United States at Midland,

Michigan, are appropriate persons for service under

this rule.* The contention, again, raises essentially fac-

tual questions which, like the issue regarding the suf-

ficiency of contacts for assertion of jurisdiction, ap-

propriately may be resolved after a complaint is filed.

** Alternative methods provided by Rules 4(d)(7) and (e)

are not appropriate because they are tied to particular state

rules or federal statutes. There are none which apply to this

Court’s original jurisdiction.

“* The general standard is that “service should be made upon a

representative so integrated with the organization that he will

know what to do with the papers.” American Football Leaque v.

Natioval Football Leaque, 27 F.R.D, 264, 269 (D. Md.). It has

been held that service upon a director is not adequate under Rule

4(d) (3), where the director served was one of 200 members of the

hoard and was not an officer. Pacific Lanes, Inc. v. Bowling Pro-

prictors Ass'n of America, 248 F. Supp. 347 (D. Ore.). But where

a director has other corporate responsibilities such that he is suffi-

ciently “integrated” into the corporation, service on him would

seem to be sufficient. See, generally, 4 Wright & Miller, supra,

nunber of directors may be satisfactory to meet the requirements

of the Rule. There is no indication here whether any of the direc-

tors of Dow-Canada who reside in Midland, Michigan, are also

oflicers of that corporation. However, the total number of directors

is 12. Ohio Br., App. 13a. Of the seven living in Midland, six were

also directors (and four of them were officers) of Dow-United

States as of December 31, 1969. See Moody, /idustrial Marual,

pp. 1972-1573.

CONCLUSION

For the reasons stated, there is no legal bar to this

Court’s granting Ohio’s motion for leave to file the

complaint in this original action.

Respectfully submitted.

Erwin N. GrIsworp,

Solicitor General.

SHIRO KASHIWA,

Assistant Attorney General,

PETER L. STRAUSS,

JOHN F. DIENELT,

Assistants to the Solicitor General.

THomas C. LEE,

JAMES R. Moore,

Attorneys.

DECEMBER 1970.

APPENDIX

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

United States Constitution, Article 3, § 2:

The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitu-

tion, the Laws of the United States, and Treaties

made, or which shall be made, under their Au-

thority; —to all Cases affecting Ambassadors,

other public Ministers and Consuls;—to all

Cases of admiralty and maritime Jurisdiction—

to Controversies to which the United States

shall be a Party;—to Controversies between

two or more States ;—hetween a State and Citi-

zens of another State—between Citizens of dif-

ferent States;—between Citizens of the same

State claiming Lands under Grants of different

States, and between a State, or the citizens

thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other pub-

lic Ministers and Consuls, and those in which a

State shall be Party, the Supreme Court shall

have original Jurisdiction. In all the other

Cases before mentioned, the Supreme Court

shall have appellate Jurisdiction, both as to Law

and Fact, with such Exceptions, and under such

Regulations as the Congress shall make.

* * * * * *

98 U.S.C. 6 1251:

* * * * * * *

(b) The Supreme Court shall have original

but not exclusive jurisdiction of :

* * * - . 7

(35)

LPR Fhe ee se

ie a

(3) All actions or proceedings by a State

against the citizens of another State or against

aliens.

Section 1 of the Federal Water Pollution Control

Act, 33 U.S.C. 1151

(a) The purpose of this chapter is to en-

hance the quality and value of our water re-

sources and to establish a national policy for

the prevention, control, and abatement of water

pollution.

(b) In connection with the exercise of juris-

diction over the waterways of the Nation and

in consequence of the benefits resulting to the

public health and welfare by the prevention

and control of water pollution, it is declared

to be the policy of Congress to recognize, pre-

serve, and protect the primary responsibilities

and rights of the States in preventing and con-

trolling water pollution, to support and aid

technical research relating to the prevention

and control of water pollution, and to provide

Federal technical services and financial aid to

State and interstate agencies and to munici-

palities in connection with the prevention and

control of water pollution. * * *

(¢) Nothing in this chapter shall be con-

strued as impairing or in any manner affecting

any right or jurisdiction of the States with re-

spect to the waters (including boundary

waters) of such States.

Section 10 of the Federal Water Pollution Control

Act, 33 U.S.C. 1160:

(a) The pollution of interstate or navigable

waters in or adjacent to any State or States

(whether the matter causing or contributing to

such pollution is discharged directly into such

waters or reaches such waters after discharge

into a tributary of such waters), which endan-

gers the health or welfare of any persons, shall

be subject to abatement as provided in this

chapter.

(b) Consistent with the policy declaration of

this chapter, State and interstate action to

abate pollution of interstate or navigable waters

shall be eneouraged and shall not, except as

otherwise provided by or pursuant to court or-

der under subsection (h) of this section, be dis-

placed by Federal enforcement action.

(c)(1) If the Governor of a State or a State

water pollution control agency files, within one

year after October 2, 1965, a letter of intent

that such State, after public hearings, will be-

fore June 30, 1967, adopt (A) water quality

criteria applicable to interstate waters or por-

tions thereof within such State, and (B) a plan

for the implementation and enforcement of the

water quality criteria adopted, and if such

criteria and plan are established in accordance

with the letter of intent, and if the Secretary *

determines that such State criteria and plan

are consistent with paragraph (3) of this sub-

section, such State criteria and plan. shall

thereafter be the water quality standards ap-

plicable to such interstate waters or portions

thererof.

(2) If a State does not (A) file a letter of in-

tent or (B) establish water quality standards in

accordance with paragraph (1) of this subsee-

tion, or if the Secretary or the Governor of any

State affected by water quality standards estab-

lished pursuant to this subsection desires a re-

Vision in such standards, the Secretary may,

after reasonable notice and a conference of rep-

resentatives of appropriate Federal depart-

ments and agencies, interstate agencies, States,

municipalities and industries involved, prepare

regulations setting forth standards of water

quality to be applicable to interstate waters or

portions thereof. If, within six months from the

date the Secretary publishes such regulations,

*° Under Reorganization Plan No. 3 of 1970 the functions of the

Secretary have been transferred to the Administrator of the Envi-

ronmental Protection Agency, effective December 2, 1970, 35 Fed.

Reg. 15,623 (Oct. 16, 1970).

FER ee re RE Oe

ee OE aOR OT,

UENO

optus a

wry PR

ENC ALR T Se

Sat yee

the State has not adopted water quality stand-

ards found by the Secretary to be consistent

with paragraph (3) of this subsection, or a peti-

tion for public hearing has not been filed under

paragraph (4) of this subsection, the Secretary

shall promulgate such standards.

(3) Standards of quality established pur-

suant to this subsection shall be such as to pro-

tect the public health or welfare, enhance the

quality of water and serve the purposes of this

chapter. In establishing such standards the See-

retary, the Hearing Board, or the appropriate

State authority shall take into consideration

their use and value for public water supplies,

propagation of fish and wildlife, recreational

purposes, and agricultural, industrial, and other

legitimate uses. In establishing such standards

the Secretary, the hearing board, or the appro

priate State authority shall take into considera-

tion their use and value for navigation.

(4) If at anv time prior to 30 davs after

standards have been promulgated under para-

graph (2) of this subsection, the Governor of

any State affected by such standards petitions

the Secretary for a hearing, the Secretary shall

eall a public hearing, to be held in or near one

or more of the places where the water quality

standards will take effect, before a Hearing

Board of five or more persons appointed by the

Secretary. Each State which would be affected

by sueh standards shall be given an opportunity

to select one member of the Hearing Board. The

Department of Commerce and other affected

Federal departments and agencies shall each be

given an opportunity to select a member of the

Hearing Board and not less than a majority of

the Hearing Board shall be persons other than

officers or emplovees of the Department of the

Interior. * * * Notice of such hearing shall be pub-

lished in the Federal Register and given to the

State water pollution control agencies, inter-

state agencies and municipalities involved at

least 30 days prior to the date of such hearing.

On the basis of the evidence presented at such

hearing, the Hearing Board shall make findings

as to whether the standards published or pro-

mulgated by the Secretary should be approved

or modified and transmit its findings to the Sec-

retary. If the Hearing Board approves the

standards as published or promulgated by the

Secretary, the standards shall take effect on re-

ceipt by the See retary of the Hearing Board's

recommendations. If the Hearing Board reeom-

mends modifications in the standards as pub-

lished or promulgated by the Secretary, the

Secretary shall promulgate revised regulations

setting forth standards of water quality in ae-

cordance with the Hearing Board’s recommen-

dations which will become effective immediately

upon promulgation.

(5) The discharge of matter into such inter-

state waters or portions thereof, which reduces

the quality of such waters below the water

quality standards established under this sub-

section (whether the matter causing or contrib-

uting to such reduction is discharged directly

into such waters or reaches such waters after

discharge into tributaries of such waters), i

subject to abatement in accordance with the

provisions of paragraph (1) or (2) of subsee-

tion (g) of this section, except that at least 180

days before any abatement action is initiated

under either paragraph (1) or (2) of subsee-

tion (g) of this section as authorized by this

subsection, the Secretary shall notify the viola-

tors and other interested parties of the violation

of such standards. In any suit brought under

the provisions of this subsection the court shall

receive in evidence a transcript of the proceed-

ings of the conference and hearing provided for

in this subsection, together with the recom-

mendations of the conference and Hearing

Board and the recommendations and standards

promulgated by the Seeretary, and such addi-

tional evidence, including that relating to the

alleged violation of the standards, as it deems

ie ey POY? Mert PY SAP eh IEAM LAPORTE IS TRESS TR EERE 8 y's =

baie ig <A, RST! pw

necessary to a complete review of the standards

and to a determination of all other issues Te-

lating to the alleged violation. The court, givin

due consideration to the practicability and to

the physical and economic feasibility of eom-

plying with such standards, shall have juris-

diction to enter such judgment and orders en-

fereing such judgment as the publie interest

and the equities of the case may require.

- ~ + 7 *

(d) (1) Whenever requested by the Gover-

nor of any State or a State water pollution

control ageney, or (with the concurrence of

the Governor and of the State water pollution

control agency for the State in which the mu-

nicipality is situated) the governing body of

any municipality, the Seeretary shall, if such

request refers to pollution of waters which is

endangering the health or welfare of persons

in a State other than that in which the dis-

charge or discharges (causing or contributing

to such pollution) originates, give formal notifi-

cation thereof to the water pollution control

agency and interstate agency, if any, of the

State or States where sich discharge or dis-

eharges originate and shall call promptly a eon-

ference of such agency or agencies and of the

State water pollution contrel agency and inter-

state agency, if any, of the State or States, if

any, which may be adversely affected hy such

pollution. Whenever requested hy the Governor

of any State, the Secretary shall. if such re-

quest refers to pollution of interstate or naviga-

ble waters which is endangering the health or

welfare of persons only in the reqnesting State

in which the diseharge or discharges (causing

or contributing to such pollution) origimate,

give formal notification thereof to the water

pollution control ageney and interstate ageney,

if any. of such State and shall promp*ty calla

conference of such agency or agencies, unless,

in the judgment of the Secretary, the effect of

such pollution on the legitimate uses of the wa-

ters is not of sufficient significance to warrant

exercise of Federal jurisdiction under this sec-

tion. The Secretary shall also call such a con-

ference whenever, on the basis of reports, sur-

veys, or studies, he has reason to believe that

any pollution referred to in subsection (a) of

this section and endangering the health or wel-

fare of persons in a State other than that in

which the discharge or discharges originate is

occurring; or he finds that substantial economic

injury results from the inability to market

shellfish or shellfish products in interstate com-

merece because of pollution referred to in sub-

section (a) of this section and action of Fed-

eral, State, or local authorities.

(2) Whenever the Secretary, upon receipt

of reports, surveys, or studies from any duly

constituted international agency, has reason to

beheve that any pollution referred to in sub-

section (a) of this section which endangers the

health or welfare of persons in a foreign coun-

try Is ocearring, and the Secretary of State re-

quests him to abate such pollution, he shall give

formal notification thereof to the State water

pollution control agenev of the State in whieh

such discharge or discharges originate and to

the interstate water pollution control ageney,

if he believes that such pollution is occurring

in sufficient quantity to warrant such action.

The Secretary, through the Seereti rs of State,

shall invite the foreign country which may be

adversely affected by the pollution to attend and

participate in the conference, and the repre-

sentative of such country shall for the purpose

of the conference and any further proceeding

resulting from such conference, have all the

rights of a State water pollution control agency.

This paragraph shall apply only to a foreign

country which the Secretary determines has

given the United States essentially the same

rights with respect to the prevention and con-

trol of water pollution occurring in that coun-

©.

‘jad

try as is given that country by this paragraph.

Nothing in this paragraph shall be construed

to modify, amend, repeal, or otherwise affect

the provisions of the 1909 Boundary Waters

Treaty between Canada and the United States

or the Water Utilization Treaty of 1944 be.

tween Mexico and the United States (59 Stat.

1219), relative to the control and ahatement of

water pollution in waters covered by those

treaties.

(3) The agencies called to attend such con-

ference may bring such persons as they desire

to the conference. In addition, it shall be the

responsibility of the chairman of the conference

to give every person contributing to the alleged

pollution or affected by it an opportunity to

make a full statement of his views to the con-

ference. Not less than three weeks’ prior notice

of the conference date shall be given to such

agencies.

(4) Following this conference, the Secretary

shall prepare and forward to all the water pol-

lution control agencies attending the conference

a summary of conference discussions including

(A) occurrence of pollution of interstate or

navigable waters subject to abatement under

this chapter; (B) adequacy of measures taken

toward abatement of the pollution: and (C)

nature of delays, if any, being encountered in

abating the pollution.

(e) If the Secretary believes, upon the con-

clusion of the conference or thereafter, that ef-

fective progress toward abatement of such pol-

lution is not being made and that the health or

welfare of any persons is being endangered, he

shall recommend to the appropriate State water

pollution control agency that it take necessary

remedial action. The Secretary shall allow at

least six months from the date he makes such

recommendations for the taking of such recom-

mended action.

=p ee or ee — ee eee a ee

(f)(1) Tf, at the conclusion of the period so

allowed, such remedial action has not been taken

or action which in the judgment of the Sec-

retary is reasonably calculated to secure abate-

ment of such pollution has not been taken, the

Secretary shall call a public hearing, to be held

in or near one or more of the places where the

discharge or discharges causing or contributing

to such pollution originated, before a Hearing

Board of five or more persons appointed by the

Secretary. Each State in which any discharge

causing or contributing te such pollution origi-

nates and each State claiming to he adversely

affected by such pollution shall be given an op-

portunity to select one member of the Hearing

Board and at least one member shall be a repre-

sentative of the Department of Commerce, and

not less than a majority of the Hearing Board

shall be persons other than officers or emplovees

of the Department of the Interior. At least

three weeks’ prior notice of such hearing shall

be given to the State water pollution control

agencies and interstate agencies, if any, called

to attend the aforesaid hearing and the alleged

polluter or polluters. It shall be the responsi-

hility of the Hearing Board to give every per-

son contributing to the alleged pollution or af-

fected by it an opportunity to make a full state-

ment of his views to the Hearing Board. On the

hasis of the evidence presented at such hear-

ing, the Hearing Board shall make findings as

to whether pollution referred to in subsection

(a) of this section is ocenrring and whether

effective progress toward abatement thereof is

being made. If the Hearing Board finds such

pollution is occurring and effective progress

toward abatement thereof is not being made it

shall make recommendations to the Secretary

concerning the measures, if any, which it finds

mere FOR ag? ae

to be reasonable and equitable to secure abate-

ment of such pollution. The Secretary shall send

such findings and recommendations to the per-

son or persons discharging any matter causing

or contributing to such pollution, together with

a notice specifying a reasonable time (not less

than six months) to secure abatement of such

pollution, and shall also send such findings and

recommendations and such notice to the State

water pollution control agency and to the inter-

state agency, if any, of the State or States

where such discharge or discharges originate.

* * * 7. *

(g) If action reasonably caleulated to secure

abatement of the pollution within the time

specified in the notice following the public

hearing is not taken, the Seeretary—

(1) in the case of pollution of waters which

is endangering the health or welfare of persons

in a State other than that in which the dis-

charge or discharges (eausing or contributing

to such pollution) originate, may request the

Attorney General to bring a suit on behalf of

the United States to secure abatement of pol-

lution, and

(2) in the ease of pollution of waters which

is endangering the health or welfare of persons

only in the State in which the discharge or dis-

charges (causing or contributing to such pollu-

tion) originate, may, with the written consent

of the Governor of such State, request the At-

torney General to bring a suit on behalf of the

United States to secure abatement of the pollu-

tion.

(h) The court shall receive in evidence in

any such suit a transcript of the proceedings

hefore the Board and a copy of the Board’s

recommendations and shall receive such fur-

ther evidence as the court in its discretion

ss ~

deems proper. The court, giving due consid-

eration to the practicability and to the physical

and economic feasibility of securing abatement

of any pollution proved, shall have jurisdiction

to enter such judgment, and orders enforcing

such judgment, as the public interest and the

equities of the case may require.

7 * * os *

Section 12 of the Federal Water Pollution Con-

trol Act, 33 U.S.C. 1162:

(a) The President shall, in aeeordance with

subsection (b) of this section, develop, promul-

gate, and revise as may be appropriate, regula-

tions (1) designating as hazardous substances,

other than oil as defined in section 1161 of this

title, such elements and compounds which,

when discharged in any quantity into or upon

the navigable waters of the United States or

adjoining shorelines or the waters of the con-

tiguous zone, present an imminent and substan-

tial danger to the publie health or welfare, in-

cluding, but not limited to, fish, shellfish, wild-

life, shorelines, and beaches; and (2) establish-

ing, If appropriate, recommended methods and

means for the removal of such substances.

* * * * .

(e) Nothing in this section shall affect or

modify in any way the obligations of any own-

er or operator of any vessel, onshore or off-

shore facility to any person or agency under

any provision of law for damages to any pub-

liely- or privately-owned property resulting

from a discharge of any hazardous substance

or from the removal of any such substance.

* * * * *

(g) The President shall submit a report to

the Congress, together with his reeommenda-

tions, not later than November 1, 1970, on the

HL BLE REGS MEINE NT

a ae sake

para ae

need for, and desirability of, enacting levisla-

tion to impose liability for the cost of removal

of hazardous substances discharged from. ves-

sels and onshore and offshore facilities subject

to this section including financial responsibil-

itv requirements. In preparing this report, the

President shall conduct an accelerated study

which shall include, but not be limited to. the

method and measures for controlling hazardous

substances to prevent this discharge, and the

most appropriate measures for (1) enforee-

ment (including the imposition of civil and

criminal penalties for discharges and for fail-

ure to notify) and (2) recovery of costs in-

curred by the United States if removal is un-

dertaken by the United States. In carrying out

this study, the President shall consult with the

interested representatives of the various public

and private groups that would be affected by

such legislation as well as other interested per-

sons.

Rule 9(2) of the Rules of the Supreme Court:

The form of pleadings and motions in origi-

nal actions shall be governed, so far as may he,

by the Federal Rules of Civil Procedure, and

in other respects those rules, where their ap-

plication is appropriate, may be taken as a

enuide to procedure in original actions in this

court.

Rule 4 of the Federal Rules of Civil Procedure:

PROCESS

(a) Summons: Issuance. Upon the filing of

the complaint the clerk shall forthwith issue a

summons and deliver it for service

~ *

* * * *

(d) Summons: Personal Service. The sum-

mons and complaint shall be served together.

* * * Service shall be made as follows:

* ~ * * ¥

DCN NRT a CTH I ee OR SOIR parry

(3) Upon a domestic or foreign corporation

or upon a partnership or other unincorporated

association which is subject to suit under a

common name, by delivering a copy of the sum-

mons and of the complaint to an officer, a man-

aging or general agent, or to any other agent

authorized by appointment or by law to receive

service of process and, if the agent is one au-

thorized by statute to receive service and the

statute so requires, by also mailing a copy to

the defendant.

* * * + *

‘

U.S. GOVERNMENT PRINTING CFRFICE 1970

te aia

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.