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United States v. Confederate Acres Sanitary Sewage & Drainage Sys.

ELR Citation: 22 ELR 20091
Nos. No. 90-6072, 935 F.2d 796/33 ERC 1603/(6th Cir., 06/11/1991)

The court holds that the district court did not abuse its discretion in refusing to strike from its opinion any implication that a private wastewater treatment plant may have actionable takings claims arising from the court's remedy in a Federal Water Pollution Control Act (FWPCA) action or in declining to address those claims. The district court held that the plant violated the FWPCA. In fashioning a remedy, the district court ordered a public sewer district, which was joined as a defendant, to divert wastewater from the private treatment plant into its treatment system. The district court refused to decide whether such a diversion would constitute a taking, noting that the issue is more appropriate for state courts. The court first concludes that the district court's statement concerning the possibility that the public sewer district would be liable for a taking of private property is mere dicta. Thus, the court holds that the district court's refusal to strike the statement is not erroneous. The court next holds that the district court properly decided not to address the private treatment plant's potential takings claims. These claims were never raised in the district court, and even if they were, the district court had discretion not to hear them.

Counsel for Plaintiff-Appellee
Jeffrey Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Appellee
Richard Masters
Evans, Bishop, Masters & Mullins
1012 S. 4th St., Louisville KY 40203
(502) 582-2900

Counsel for Defendant-Appellant
Charles Merz
Pedley, Ross, Zielke, Gordinier & Porter
450 S. 3rd St., Louisville KY 40202
(502) 589-4600

Before: JONES and SUHRHEINRICH, Circuit Judges, and FEIKENS, Senior District Judge.*