Federal Common Law of Nuisance Reaches New High Water Mark as Supreme Court Considers Illinois v. Milwaukee II

To observe that the field of environmental law is prone to surges of rapid growth is to restate the obvious. Congress and state legislatures, spurred by the public to remedy unanticipated environmental problems, have responded quickly by establishing comprehensive regulatory schemes. As a result, the role of the courts in shaping this area of the law, while hardly lethargic, has been limited largely to fleshing out statutory ambiguities and giving effect to legislative intent. Rarely has the judiciary been able to claim credit for "innovation" in shaping environmental law.¹

Yet there is one region of judge-made environmental law that recently, at least according to its proponents, has undergone nothing short of revolutionary growth. The federal common law of nuisance, which was unknown at the time the National Environmental Policy Act was enacted, appears to be coming to the fore as a doctrine offering adaptable and effective relief to victims of pollution. Within the past two months, the United States Courts of Appeals for the Third and Seventh Circuits have applied the doctrine in rulings that could have enormous implications for pollution control law in general. Building on roughly a dozen previous decisions, they have redrawn the contours of the doctrine to permit suits by private plaintiffs to redress pollution of any "navigable" waters, regardless of whether the pollutants have crossed state borders. In light of rulings by other courts (1) allowing relief, including compensatory damages,² even where the offensive discharge has long since been abated³ and (2) suggesting the applicability of the theory to air pollution,⁴ these decisions, if read liberally and applied conjunctively, threaten to surpass the citizen suit provision in the Federal Water Pollution Control Act (FWPCA)⁵ as a litigative tool.

Alternatively, the decisions can be viewed merely as innovative thinking on the fringe of a largely undeveloped body of case law. Several other courts have previously considered the same questions involved in the latest decisions and reached opposite conclusions. Though the more restrictive decisions are somewhat dated, they frustrate any attempt to capsulize "where the law stands." Nevertheless, a brief review of the reported decisions on point provides a snapshot of the current state of the law as well as a benchmark from which to measure future changes.

In fact, the prospect of significant development looms in the near future. On March 17 of this year the United States Supreme Court granted certiorari to review the decision of the Seventh Circuit Court of Appeals in Illinois v. City of Milwaukee.⁶ Since the issues presented by the petitioners have a generally narrow focus,⁷ the Court may well decline to embark on a major reappraisal of its precedent-setting 1972 decision⁸ in the same litigation. On the other hand, in the intervening eight years the federal common law has evolved to the point where the Court can readily assess whether it has followed roughly the blueprint envisioned in 1972. Considering further the changes in the Court's composition since 1972, there may be support for a major reworking. If so, the limited scope of the questions presented for review in Illinois II is unlikely to deter the Court from giving new guidance to what it may view as errant lower courts.

Status of the Case Law

Character of the Plaintiff

Although the federal common law of nuisance was not formally recognized under that rubric until the 1970s, its roots go back to several Supreme Court decisions in the early part of this century.⁹ Those cases involved sovereign states on both sides of litigation concerning transboundary pollution and thus were heard by the Supreme Court under its original and exclusive jurisdiction. Similarly, the seminal decision in Illinois v. City of Milwaukee featured a state plaintiff and was decided by the Court under its original jurisdiction.

Although dictum in Illinois suggested strongly that the power to invoke the new cause of action should extend to plaintiffs other than states,¹⁰ this invitation was declined by many courts in the first few years thereafter.¹¹ [10 ELR 10102] Without exception, when these privately initiated causes of action were dismissed, the decisions were supported by simple citations to precedent rather than reasoned discussion as to why such plaintiffs should be excluded from the purview of the doctrine. It seems likely that these courts realized the potentially far-reaching consequences of a contrary result and thought it best to refrain from landmark decisions without more explicit guidance from above.

The first crack in the dam came in United States v. Ira S. Bushey & Sons, Inc.,¹² in which the United States was permitted to maintain a common law nuisance action. Recognizing that no previous case had involved a nonstate plaintiff,¹³ Judges Oakes nevertheless felt that the emphasis within Illinois on the overriding federal interest in interstate waters implied more than that federal courts have jurisdiction over nuisance cases. Noting further the established right of the United States to bring suit to remedy pollution of interstate or navigable waters,¹⁴ the judge concluded that the common law should be no more restrictive and granted the government's request for relief.Once raised, the issue of the federal government's right to invoke the federal common law was immediately resolved as later courts fell solidly in behind Ira S. Bushey & Sons.¹⁵

At roughly the same time two federal courts suggested, without ruling directly, that private parties could invoke the federal common law of nuisance.¹⁶ In fact, one case involved a river as the lead plaintiff.¹⁷ Yet it was not until 1978 that a court specifically upheld the right of a nonsovereign entity to maintain such a cause of action. In Township of Long Beach v. City of New York¹⁸ a municipality on the coast of New Jersey sought declaratory and injunctive relief regarding the dumping by New York City of sewage sludge into the Atlantic Ocean. Although finding no indication within Illinois that only states could sue to abate interstate pollution, the court relied on the governmental status of the plaintiff municipality as a conceptual stepping stone to extend the reach of the doctrine. In dictum, the court added that it saw no reason not to extend it further. The Seventh Circuit faced a similar situation in City of Evansville v. Kentucky Liquid Recycling, Inc.¹⁹ While taking full advantage of the municipal status of the plaintiff, the court keyed on language in Illinois indicating that the new common law doctrine sprang not from the nature of the parties before the courts but from the federal interest in interstate waters.²⁰

The final impediment to the full availability of federal nuisance law was brushed aside on February 5 of this year by the Third Circuit when, in National Sea Clammers Association v. City of New York,²¹ it extended the reach of the doctrine to private plaintiffs. In National Sea Clammers plaintiffs had sought compensatory and injunctive relief concerning the same discharge at issue in Township of Long Beach: New York's barging of sludge out to sea. Their claim was that the nutrient-laden and toxic sludge had destroyed shellfish and other marine life on which they depended for their livelihood.

After inferring from the FWPCA and the Marine Protection, Research and Sanctuaries Act²² private rights of action to enforce their provisions,²³ the court evaluated plaintiffs' status vis-a-vis the common law. Looking even beyond the Supreme Court's decision in Illinois, Judge Gibbons noted that any "unreasonable interference with a right common to the general public" has long been actionable under common law as a public nuisance. Moreover, the right to bring a public nuisance action was traditionally available to private plaintiffs provided that they had suffered injury from the nuisance which in some way was distinguishable from that of the public generally. Finding that the damage to the plaintiffs' commercial clam beds satisfied this requirement, the court validated the cause of action.²⁴

[10 ELR 10103]

The ThirdCircuit did not break this new ground, however, without paying obeisance to Illinois. While agreeing with the court in Township of Long Beach that the source of the new federal common law was the inherent federal interest in the interstate body of water, the court also pointed to dictum in Illinois referring to the need for uniformity of legal standards in such cases. In the court's view, to relegate the plaintiffs to the courts of either New York or New Jersey would undermine the Supreme Court's mandate to federalize the standards applicable to interstate waters. Moreover, the court implied, once a body of federal common law has been developed, a broad-ranging cause of action should be created to permit private citizens, much like private attorneys general, to sue to enforce its requirements:

In order to give full effect to the federal common law nuisance recognized in Illinois, private parties should be permitted, indeed encouraged, to participate in the abatement of such nuisances.²⁵

Character of the Body of Water

Much as Illinois and the early twentieth century interstate pollution cases had involved states, so had the resources in dispute been interstate bodies of water. There was thus no reason to consider whether any of the principles employed in those cases would be apposite in a dispute over a body of water located wholly within a state.

The Seventh Circuit first broached the question in Stream Pollution Control Bd. v. United States Steel Corp.²⁶ Although the posture of that case made it unnecessary to resolve the issue definitively, Judge (now Justice) Stevens observed that the language of Illinois "may well imply that the federal common law of nuisance extends to all of our navigable waters, and perhaps to all tributaries of interstate waters."²⁷ A diametrically opposite view was presented in Massachusetts v. United States Veterans Administration,²⁸ where the court, in the midst of a decision affirming the dismissal of a federal common law nuisance case on other grounds, found it "doubtful" that the doctrine extended beyond interstate waters.²⁹ In Parsell v. Shell Oil Co.³⁰ plaintiffs' federal common law cause of action was dismissed on several grounds. In an aside, the court noted that the federal courts undoubtedly had the power (under the Commerce Clause) to adjudicate the quality of all "navigable waters." Yet the court felt the need for "clearer guidance" from the Supreme Court before taking such a giant step. Thus, as of the first of this year, the precise geographical scope of the doctrine had never been adjudicated directly, and dicta pointed in opposite directions.

On March 28 the Seventh Circuit, in Illinois v. Outboard Marine Corp.,³¹ became the first court to hold that the federal common law of nuisance applies to intrastate as well as interstate waters. The court was faced with a lower court's dismissal, for failure to state a claim, of the state's request for damages and injunctive relief (including cleanup measures) regarding the dumping of toxic wastes into the North Ditch, a navigable water wholly within the State of Illinois but one which feeds into a tributary of Lake Michigan. Obviously, the court could have relied on this link to extend the federal common law, but it chose not to do so. Rather, as it had in Stream Pollution Control Board, it placed great weight on the several references in Illinois to "interstate or navigable waters," adding that

we are not so bold as to assume that Mr. Justice Douglas might have been careless in his choice of words and that other members of the Court failed to notice implications of the term "navigable waters."³²

In a somewhat strained reading of two decisions by the Fourth³³ and Eighth³⁴ Circuits, the court stated that those courts had ruled explicitly that federal common law applied only to interstate bodies of water and added that the instant case could be distinguished on the ground that the pollution of North Ditch had led to some effects on Lake Michigan. But it declined to make that distinction. In the court's view the Fourth and Eighth Circuits were simply wrong.

The court noted that the FWPCA also applies to "interstate or navigable waters" and that the Supreme Court has instructed lower courts to look to congressional enactments for policy guidance in developing the new common law. The reach of the common law should parallel that of the statutory law, the court concluded. In addition, the court noted that natural resources do not respect political boundaries³⁵ and that pollution of any major navigable body of water will inevitably have interstate effects. The court thus reversed the trial court's dismissal of the case.

Relationship of the Parties

Another issue that emerges from the cases, though infrequently, is whether the federal common law may be invoked by one party against a resident of the same state.It arises in the not uncommon case where pollution of an interstate body of water affects those living near and within the same state as the discharger. Until recently, no court had upheld a federal common law action between citizens of the same state.

The Eighth Circuit was the first to address this issue. In Reserve Mining Co. v. EPA³⁶ the United States and several states sought to obtain an order ceasing the discharges [10 ELR 10104] by a Minnesota firm of carcinogenic substances into Lake Superior, an international as well as interstate body of water. Based on the trial court's finding that the discharges were not adversely affecting public health outside of Minnesota, the court of appeals dismissed this count of the complaint. The rationale was contained within the less than satisfying assertion that "federal nuisance contemplates, at a minimum, interstate pollution of air or water."³⁷ The Eighth Circuit added that Minnesota was entitled to bring an action against Reserve under state law in state court.

Similar reasoning is evident in Committee for the Consideration of the Jones Falls Sewage System v. Train,³⁸ where the Fourth Circuit affirmed the dismissal of the complaint on several grounds, among them that the controversy itself was intrastate, as the parties were all citizens of Maryland. In Judge Haynesworth's view, it was preferable to resolve the dispute under state rather than federal law.

Once again, the Seventh Circuit has staked out the most advanced position. In Stream Pollution Control Bd. v. United States Steel Corp.³⁹ it found federal jurisdiction to consider a federal common law nuisance suit between citizens of Indiana, thereby implying that the underlying claim was not "wholly insubstantial or frivolous."⁴⁰ Recently, however, in Illinois v. Outboard Marine Corp.⁴¹ it followed this dictum in a ruling on the merits, holding that federal nuisance suits may be maintained between residents of the same state.

Although the court did not present its reasoning with absolute clarity, it did offer several practical reasons for permitting such suits. First, it posed a hypothetical situation in which pollution from dischargers located on opposite sides of an interstate river injured residents on both banks. Under a restrictive view of the federal common law, a plaintiff could go only against the responsible party in the other state, leading possibly to difficulties with respect to burdens of proof and joinder of indispensable parties. Second, unless a state could prosecute instate polluters, it would be powerless to join in similar nuisance actions initiated by the United States. Third, in light of the Supreme Court's expressed goal of uniformity of national standards, the court wished to bring all nuisance cases into federal court in order to avoid the situation in which individual states would develop divergent pollution control requirements and thereby encourage forum shopping by industry seeking new facility sites.

Overview

Until the Supreme Court drops the other shoe in Illinois II, it is worth noting that the federal common law of nuisance has come a long way since Illinois I. Generally, the cases reflect the basic import of that decision and at some point have made use of most of its fertile dicta. The dominant thesis of Illinois was that there is an overriding federal interest in regulating navigable waters. This thesis is inconsistent with the notion that only states or municipalities may invoke the doctrine or that the federal courts should protect only interstate waterways. Indeed, in the FWPCA Congress has conferred analogous rights of action on citizens and a much broader jurisdictional mandate upon the federal courts.⁴² Similarly, suits between citizens of the same state do not appear to run afoul of the thrust of Illinois.

Yet no attempt has ever been made to articulate precisely how "overriding" the federal interest is. The Supreme Court will undoubtedly have something to say on the matter next Term. As of now, the Seventh and Third Circuits, in their apparent rivalry to expand the limits of federal nuisance to the maximum permitted under Illinois, appear to be of the view that its reach is bounded only by the limitations on federal power under the Commerce Clause.

In Outboard Marine, however, the Seventh Circuit may have overreached itself in its determination to expand the bounds of the federal common law. True, there is strong support for extending the doctrine to encompass private plaintiffs, navigable rather than interstate waters, and suits between citizens of the same state. But to do so simultaneously may exceed the principles expressed in Illinois and may prove unpalatable from a practical standpoint.

Acceptance of all three propositions might well permit federal litigation, for example, between one neighbor and another where the septic tank of the latter overflows into a stream on the property of the former. Of course, the stream would have to satisfy the test of "navigability" and the jurisdictional amount requirement would have to be met. But it is evident that to extend the implications of Outboard Marine to their reasonably foreseeable limits portends a specter of wholesale substitution of federal law for state law and federal courts for state courts. From an environmental point of view, this may be a desirable development, as it promotes enforcement of pollution control law and inevitably deters pollution. At the same time, however, the picture painted is one of unprecedented federal court intervention into affairs traditionally reserved to the states, a picture that may not be pleasing to the Supreme Court. In addition, it might be viewed by Congress as an assertion of broader jurisdiction than it intends the federal judiciary to have.

A fair compromise between all of the competing interests might be to authorize federal nuisance suits by private parties as well as suits to protect navigable rather than interstate waters, but to restrict suits between citizens of a single state to disputes over interstate waters. This would avoid the neighbor vs. neighbor situation and similar parochial litigation in the federal courts. It would also address the principal practical concern raised by Judge Wisdom in Outboard Marine: pollution victims could sue polluters on any or all sides of interstate bodies of water. Although a state would be unable to join in a federal common law suit concerning a discharge witin its borders, this seems a small problem given the many avenues for state input into federal enforcement litigation. Third, the states will always be able to develop stringent pollution controls in any event.

[10 ELR 10105]

One of the fundamental themes of the FWPCA is the establishment of minimum nationwide limitations on effluent discharges; above the federal minima, states are free to impose stricter standards. However, the Act's minimum national standards approach was arrived at only as part of a grand compromise in which the federal government bartered to the states the opportunity to assume primary control over administration and enforcement of the statutory scheme. For the courts, via the common law, unilaterally to impose more stringent national standards to the exclusion of state and local standards might strike some as an unwarranted intrusion into state affairs.

Conclusion

Notwithstanding the difficulties that might crop up in the progeny of Outboard Marine, such difficulties are speculative and may well be sidestepped as judges confront real situations. In the meantime, the odminant impact of the Seventh Circuit's decision, like that of the Third Circuit in National Sea Clammers, is to open new avenues of relief in the federal courts where pollution has harmed (1) nongovernmental entities and (2) navigable rather than interstate waters. One of the more significant effects likely to flow from Outboard Marine involves the federal government's incipient litigation campaign against abandoned hazardous waste dumps. One of the legal mainstays of the several dozen suits filed to date is the federal common law of nuisance. Since Outboard Marine tends to obviate the need for a showing that chemical leachates have reached interstate waters, the decision may extend the reach of this enforcement tool significantly. At the same time, National Sea Clammers seems to open the courthouse door to "private attorneys general."

Finally, the most important remaining question is whether the rationales of the Seventh and Third Circuits will prove convincing to other circuits and the Supreme Court. On a superficial level there is no reason why they should not; federal nuisance theory seems an objectionable cause of action that undeniably promotes equity by providing relief to tort victims. On the other hand, the First and Fourth Circuits have balked at departing from precedent in order to promote equity in this fashion. The Supreme Court is similarly unlikely to approach the issue from a purely theoretical viewpoint, given the high economic stakes involved and the possibility of increasing the authority and caseload of the federal courts.

1. A notable exception to the rule is found in the case law under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009. The federal courts are properly credited with preventing the Act from languishing as a "paper tiger" and transforming it into a "vital … part of the decision process" of the federal agencies. See, e.g., Calvert Cliffs Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971); F. ANDERSON, NEPA IN THE COURTS at v (1973).

2. City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979).

3. Id.

4. Washington v. General Motors Corp., 406 U.S. 109, 2 ELR 20183 (1972); accord, United States v. Reserve Mining Co., 380 F. Supp. 11, 4 ELR 20573 (D. Minn.), injunction stayed, 498 F.2d 1073, 4 ELR 20598 (8th Cir.), modified on other grounds and remanded sub nom. Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1974). See also Board of Supervisors of Fairfax Cty. v. United States, 408 F. Supp. 556 (E.D. Va. 1976) (denial of motion to dismiss for failure to state a claim on which relief can be granted), appeal dismissed, 551 F.2d 305 (4th Cir. 1977).

5. FWPCA § 505, 33 U.S.C. § 1365, ELR STAT. & REG. 42147.

6. 599 F.2d 151, 9 ELR 20347 (7th Cir. 1979), cert. granted sub nom. City of Milwaukee v. Illinois, No. 79-408, 48 U.S.L.W. 3602 (Mar. 18, 1980).

7. See summary of issues presented for review, 48 U.S.L.W. 3279 (1980); see generally, Comment, Illinois v. City of Milwaukee Revisited: Seventh Circuit Charts Important Role for Federal Common Law of Nuisance, 9 ELR 10087 (1979).

8. Illinois v. City of Milwaukee, 406 U.S. 91, 2 ELR 20201 (1972). See generally, Comment, Federal Common Law and the Environment: Illinois v. Milwaukee, 2 ELR 10168 (1972).

9. See Comment, Seventh Circuit Interprets Federal Common Law of Nuisance to Authorize Municipalities to Sue for Damages, 9 ELR 10168, 10170 (1979).

10. See 406 U.S. 91 at 103, 2 ELR 20201 at 20204: "When we deal with air or water in their ambient or interstate aspects, there is a federal common law." See also 406 U.S. at 105 n.6, 2 ELR at 20204 n.6 ("it is not only the character of the parties that requires us to apply federal law.").

11. See Committee for the Consideration of the Jones Falls Sewage System v. Train, 375 F. Supp. 1148, 1153 (D. Md. 1974), aff'd, 439 F.2d 1006, 1013, 6 ELR 20703, 20705 (4th Cir. 1976); Michie v. Great Lakes Steel Division, Nat'l Steel Corp., 495 F.2d 213, 216 n.2, 4 ELR 20324, 20326 n.2 (6th Cir. 1974) (dictum); Parsell v. Shell Oil Co., 421 F. Supp. 1275, 1281, 7 ELR 20149, 20151 (D. Conn. 1976), aff'd mem. sub nom. East End Yacht Club v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); United States v. Lindsay, 357 F. Supp. 784, 794 (E.D.N.Y. 1973) (dictum).

12. 346 F. Supp. 145, 2 ELR 20557 (D. Vt. 1972).

13. But see United States v. Reserve Mining Co., 380 F. Supp. 11, 4 ELR 20573 (D. Minn. 1974), in which the United States amended its complaint within weeks after the Supreme Court's decision in Illinois to include a common law count.

14. 346 F. Supp. at 149-150, 2 ELR 20559. See also Rivers and Harbors Act of 1899 § 17, 33 U.S.C. § 413, ELR STAT. & REG. 41143.

15. See United States v. Reserve Mining Co., 380 F. Supp. 11, 4 ELR 20573 (D. Minn.), Modified and remanded sub nom. Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1974); United States v. Stoeco Homes, Inc., 359 F. Supp. 672, 3 ELR 20722, vacated on other grounds, 498 F.2d 597, 4 ELR 20390 (3d Cir. 1974); United States ex rel. Scott v. United States Steel Corp., 356 F. Supp. 556, 3 ELR 20204 (N.D. Ill. 1973). But cf. United States v. Lindsay, 357 F. Supp. 784, 794 (E.D.N.Y. 1973) (dictum).

16. Stream Pollution Control Bd. v. United States Steel Corp., 412 F.2d 1036, 5 ELR 20261 (7th Cir. 1975); Byram River v. Village of Port Chester, 394 F. Supp. 618, 4 ELR 20816 (D. Conn. 1974).

17. Byram River v. Village of Port Chester, 394 F. Supp. 618, 4 ELR 20816 (D. Conn. 1974). Cf. Sierra Club v. Morton, 405 U.S. 727, 741-42, 2 ELR 20192, 20196-99 (1972) (Douglas, J., dissenting); Stone, Should Trees Have Standing? Towards Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972).

18. 445 F. Supp. 1203, 8 ELR 20453 (D.N.J. 1978).

19. 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979).

20. See note 10, supra.

21. __ F.2d __, 10 ELR 20155 (3d Cir. 1980).

22. 33 U.S.C. §§ 1401-1444, ELR STAT. & REG. 41821.

23. 10 ELR at 20159-60.

24. This appears to be the first decision to tie so closely the doctrinal elements of state and federal nuisance. It may well be inappropriate to infer from it that the state and federal causes of action should automatically parallel one another in substantive respects, however. The Supreme Court in Illinois stressed that federal nuisance actions are equity suits in which the informed judgment of the court rather than any fixed set of rules will govern. See 406 U.S. at 106-07, 2 ELR at 20205. Nevertheless, if this is the direction of the Third Circuit it is a cause for some concern. It was largely because of the inadequacies of "poor old nuisance," see United States v. Ira S. Bushey & Sons, Inc., 346 F. Supp. 145, 149 n.6, 2 ELR 20557, 20559 n.6 (D. Vt. 1972), that nationwide pollution control statutes were deemed necessary. Moreover, state common law nuisance is encrusted with various substantive limitations that may be inapposite to federal law. For example, in order to make out a case in public nuisance it was traditionally necessary to show that the discharge in question was "unreasonable" as well as harmful.See W. PROSSER, LAW OF TORTS § 87 at 580-582 (4th ed. 1971); W. RODGERS, ENVIRONMENTAL LAW § 2.2 at 102 (1977).

25. 10 ELR at 20161.

26. 512 F.2d 1036, 5 ELR 20261 (7th Cir. 1975).

27. 512 F.2d at 1040, 5 ELR at 20262.

28. 541 F.2d 119, 6 ELR 20666 (1st Cir. 1976).

29. 541 F.2d at 123, 6 ELR at 20669.

30. 421 F. Supp. 1275, 7 ELR 20149 (D. Conn. 1976), aff'd mem. sub nom. East End Yacht Club v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977).

31. __ F.2d __, 10 ELR 20323 (7th Cir. Mar. 28, 1980).

32. 10 ELR at 20325.

33. Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006, 6 ELR 20703 (4th Cir. 1976).

34. Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975).

35. "Fish swim." 10 ELR at 20326.

36. 514 F.2d 492, 5 ELR 20597 (8th Cir. 1975).

37. 514 F.2d at 520, 5 ELR at 20607.

38. 539 F.2d 1006, 6 ELR 20703 (4th Cir. 1976).

39. 512 F.2d 1236, 5 ELR 20261 (7th Cir. 1975).

40. See Bell v. Hood, 327 U.S. 678, 682-83 (1946).

41. __ F.2d __, 10 ELR 20323 (7th Cir. Mar. 28, 1980).

42. SeeFWPCA §§ 505, 509, 33 U.S.C. §§ 1365, 1369, ELR STAT. & REG. 42147, 42148-49.