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National Sea Clammers Ass'n v. New York, City of

ELR Citation: 10 ELR 20155
Nos. No. 79-1360, 616 F.2d 1222/15 ERC 1314/(3d Cir., 02/05/1980)

The Third Circuit Court of Appeals reverses the district court's dismissal of an action seeking relief from injuries to appellants' commercial shellfishing activities allegedly caused by appellees' dumping of sewage sludge into the Atlantic Ocean. The district court first erred in ruling that it lacked jurisdiction over appellants' claims under the Federal Water Pollution Control Act (FWPCA) because of their failure to give the opposing parties 60 days' notice of the suit pursuant to §505(b) of the Act. Section 505(b)'s notice requirement governs only actions brought under §505(a) and is inapplicable in cases such as this in which the plaintiffs have established an independent cause of action. Whereas §505(a) grants a cause of action to uninjured citizens suing much as private attorneys general, appellants in this case are suing to remedy a direct injury to themselves. The court rules that such a cause of action can be implied from the statute as a whole, finding that it is within the intent of Congress and consistent with the purposes of the FWPCA to permit appellants to invoke an implied private right-of-action to remedy such injuries. Thus, they need not invoke §505(a) nor be bound by the notice requirement of §505(b) and can establish the court's jurisdiction under the savings clause, §505(e). An identical analysis leads the court of appeals to conclude that a private right-of-action may also be implied on appellants' behalf under the Marine Protection, Research and Sanctuaries Act and that the district court was wrong to dismiss the claims brought under that statute. The court declines to interpret the Rivers and Harbors Act the same way, ruling that it may be enforced only through suits brought by United States attorneys. The court also validates appellants' claim under the federal common law of nuisance. Although the Supreme Court has never expressed an opinion as to whether this common law doctrine authorizes suits by private plaintiffs, the resolution of this issue in appellants' favor is compelled by the decisions of lower courts and the Restatement (Second) of Torts. The court expressly leaves open the question, however, of whether monetary relief may be obtained from federal defendants in the absence of a statutory provision waiving the government's sovereign immunity. The court goes on to rule that the district court improperly found itself without admiralty jurisdiction over the case, and that a claim sounding in maritime tort is adequately supported by appellants' factual allegations although not explicitly alleged in the complaint. As to appellants' claim under the Federal Tort Claims Act, the Third Circuit agrees with the district court that the claim cannot be heard due to appellants' failure to observe the required six months waiting period before presenting it. The court declines to resolve the issue of whether appellants may sue to enforce an alleged right to environmental purity under §101 of the National Environmental Policy Act because success on this claim would not entitle appellants to relief more extensive than that which they seek under the above-mentioned statutes. Finally, the court affirms the ruling below to the extent that it rejected the Eleventh Amendment defenses of several defendant municipal corporations and dismissed appellants' claims for relief under the Tort Claims Act of New York and New Jersey and the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution.

Counsel for Appellants
Edward C. German, Dean F. Murtagh, Robert P. Corbin
LaBrum & Doak
700 I.V.B. Bldg., 1700 Market St., Philadelphia PA 19103
(215) 561-4400

Counsel for Federal Appellees
Robert J. Del Tufo, U.S. Attorney; Ralph A. Jacobs, Ass't U.S. Attorney
P.O. Box 330, Newark NJ 17102
(201) 645-2155

Counsel for Appellee City of New York
Allen G. Schwartz, Corporation Counsel; Stephen P. Kramer, Anthony Z. Scher
100 Church St., Room 6-C-38, New York NY 10007
(212) 566-3929

Phillip R. Kaufman
3 Norwood Ave., Spotswood NJ 08884
(201) 251-4413

Joined by Higginbotham and Weiner,* JJ.