# Amicus Curiae Brief — Ohio v. Wyandotte Chemicals Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0250%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1970 - **Citation:** 400 U.S. 963 ## Text — ee et ae ne eee Seat ae INDEX ; Page Rs an cncnnn sodccasccensdndcdsddsacescseses i Specctione gronsmted . . ... = 20 1.265 26ers ss ceeeeensnee 1 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) sear a rel — SPE ETON MEO Re ge BoB, Se ee rrr SCA Yer Hee eneS PROT ET LU ELE ETT RAP: BRN INET HY mete a ge ‘ Pag CI noc nncndndcanucsosdnadnnscancasentencase 34 Is a4 cxanantnanannsecnsacnénsednnss+cdshucsess 35 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. ......-. j ‘jad 42 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 44 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 ~ 45 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 a HL BLE REGS MEINE NT a ae sake para ae 46 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 47 (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. * * * + * . ty 4 ‘ 4 . 2) " 5 a U.S. GOVERNMENT PRINTING CFRFICE 1970 te aia --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0250%3A08. Public record. Not legal advice.