Aiple Towing Co., Inc. v. Voight

71-C-88 (W.D. Wis. April 5, 1971)

Request for interim relief from state prosecution under Wisconsin statute which regulates pollution of the Mississippi River by boats denied, because record inadequate to support finding that application of statute to plaintiff would constitute (1) violation of equal protection clause of the fourteenth amendment to the Constitution, (2) unreasonable burden upon interstate commerce, or (3) that by enactment of the Water Quality Improvement Act of 1970 Congress has pre-empted the field of regulation of the discharge of sewage from boats operating on navigable waters.

Counsel for Plaintiff:
Lloyd E. Wheeler
25 W. Main Street
Madison, Wisconsin 53703
(608) 255-7277

Counsel for Defendant:
Paul J. Gossens
Assistant Attorney General
State Capitol
Madison, Wisconsin 53702
(608) 266-1212

[1 ELR 20179]

Doyle, J.

Plaintiffs have moved for a temporary restraining order to prevent defendants from enforcing Section 30.71(1), Wis. Stat., and Chapter H 80, Wisconsin Administrative Code, against them and against others in the class which plaintiffs undertake to represent. The motion is based on a complaint, verified by two affiants, each of whom is an officer of one of the plaintiff corporations, and on an affidavit embodying certain additional allegations.

The complaint and the motion for a temporary restraining order rest on several asserted grounds: (1) that the application of § 30.71(1) and H 80 to plaintiff's tug boats and tow boats operating on the Mississippi River violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States because similar requirements with respect to toilet wastes are not imposed upon boats operating in similar waters and because municipalities, industries and other persons are permitted to discharge sewage wastes into the Mississippi River; (2) that the application of § 30.71 and H 80 to plaintiffs' boats in the Mississippi River is an unreasonable burden on interstate commerce; and (3) that by the enactment of the Water Quality Improvement Act of 1970 (Act of April 3, 1970, P.L. 91-224, Title I, § 102, 84 Stat. 100), Congress has pre-empted the field of regulation of the discharge of sewage from boats operating on navigable waters of the United States, including the Mississippi River.

Plaintiffs have submitted a number of allegations bearing upon the expense and difficulty involved in complying with § 30.71(1) and H 80, and upon the irreparable harm which would flow from multiple fines and possible imprisonment of officers or employees and possible seizure of the boats. Plaintiffs have requested the opportunity to offer further evidence on these aspects of the case, and they are prepared to post a bond for damages which may result from the entry and subsequent vacation of a restraining order. I will assume for the purposes of this opinion and order, without deciding the point, that the injury to the plaintiffs will be irreparable if the temporary restraint is not imposed.

I will also assume, without deciding, that jurisdiction is present under either 28 U.S.C. § 1331 or 28 U.S.C. § 1337.

Section 29.01, Wis. Stat., defines the terms "outlying waters" and "inland waters." Section 30.71(1) regulates the retention of wastes on boats operated on inland waters, and Section 30.71(2) on boats operated on outlying waters. Section 30.71(2) excludes boats engaged in interstate commerce. Section 30.71(1) did exclude boats operating on "the Mississippi river," but in 1970, by a statute which became effective January 1, 1971, this exclusion was removed from the statute. L. 1969, c.471, § 1. Uncertainty arises whether Section 30.71 presently applies to boats engaged in interstate commerce while operating on the Mississippi river. Plaintiffs contend that the statute does not apply, and this contention has been raised in defense in some pending prosecutions in the state courts. Since it may be that the controversy underlying the action now pending in this court may be resolved by a construction of Sections 29.01 and 30.71 of the Wisconsin Statutes by the state courts, I conclude that the plaintiffs have not as yet demonstrated that they enjoy a reasonably good chance of ultimate success in persuading this court that it should not abstain. No First Amendment rights are involved which might persuade a federal district court to act before an ambiguity in state statutes can be resolved by the state courts. See Askew v. Hargrave, No. 573, October Term, 1970, Supreme Court of the United States, opinion entered March 8, 1971; Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941).

Nor have plaintiffs established a reasonably good chance of ultimate success in establishing that it is arbitrary and unreasonable for the legislature to distinguish between boats operating in interstate commerce on the lower Fox river and on the Mississippi river, or to distinguish between the nature and timing of measures to control human waste disposal by boat operators and by municipalities, industries and other persons. I do not intend to foreclose or to limit the plaintiffs in attempting to show that these classifications are arbitrary and unreasonable, but only to conclude that on the present record the factual setting for such classifications has not been explored in any degree. Similarly, plaintiffs have not established a reasonably good chance of ultimate success in establishing that Section 37.01(1) and H 80 impose an unreasonable burden on interstate commerce. Whether the burden is unreasonable remains to be determined after a balancing of the seriousness of the evil sought to be remedied, the efficacy of the remedy, the cost of the remedy, the alternative remedies, and similar factors. See Huron Cement Co. v. Detroit, 362 U.S. 440 (1960).

Plaintiffs' remaining contention enjoys greater persuasive force. It appears that the Water Quality Improvement Act of 1970 does reflect a Congressional intention to pre-empt the field of regulating the disposal of human wastes on boats operating on navigable waters of the United States. However, it also is clear that the pre-emption is not expressly provided for until the Secretary of the Interior promulgates certain regulations and that he has not as yet done so. Plaintiffs suggest that it would be unreasonable to decide that the states have been left free to impose certain requirements on boat owners for a relatively brief time, when the Secretary's requirements as promulgated in the near future may then differ and may demand new and expensive changes. However, this suggestion is undercut to a degree by the provision that a boat owner who is complying with applicable state regulations will enjoy five years within which to comply with inconsistent federal standards. 33 U.S.C. § 1163(c)(1).

For the reasons stated, and upon the basis of the entire record herein, the plaintiffs' motion for a temporary restraining order is hereby denied.