California v. Davidson

No. C-70 487 SAM (3 ERC 1157) (N.D. Cal. January 19, 1971)

Where amendment to Federal Water Pollution Control Act requires any federal agency having jurisdiction over any real property or facility to comply with state and local water quality standards "consistent with the paramount interest of the United States as determined by the President," and where President has failed to indicate that noncompliance is in paramount interest of United States, the claim of sovereign immunity is no defense to action by California against Commanding General of Fort Ord Military Reservation for injunctive and monetary relief for pollution of Monterey Bay. Complaint states case of action. Action dismissed July 15, 1971 in accordance with Stipulation for Dismissal of Action entered into by parties.

Counsel for California:
Thomas C. Lynch former Attorney General
State Capitol
Sacramento, California 95814
(916) 445-9555

Counsel for Defendant:
James L. Browning U.S. Attorney
Rodney H. Hambling Assistant U.S. Attorney
Federal Building
458 Golden Gate Avenue
San Francisco, California 94102
(415) 556-1126

[1 ELR 20606]

MEMORANDUM AND ORDER

Weigel, J.:

In this action, the State of California seeks injunctive and monetary relief against the Commanding General of Fort Ord Military Reservation. The State alleges that the operation at Fort Ord pollutes Monterey Bay by emptying sewage near the beach in violation of applicable water quality standards and in the face of a cease and desist order issued by the appropriate state agency. Defendant has moved to dismiss on the basis of sovereign immunity and, also, for failure to state a claim.

For the past ten years, the California Regional Water Quality Control Board, Coastal Region, has undertaken to regulate the disposal of sewage at Fort Ord. On February 26, 1960, the Regional Board, pursuant to California Water Code § 13054 (now § 13263), adopted recommendations regarding the discharge of waste from Fort Ord. Investigations conducted by the Board from 1966-1969 led it to conclude that its recommendations were continuously violated. After giving proper notice, the Board conducted a hearing on December 12, 1969. It afforded representatives of the Fort and other interested parties an opportunity for hearing. Thereafter, the Board issued a cease and desist order pursuant to Water Code § 13060 (now § 13301). This action was filed in the Superior Court of the State of California on March 2, 1970. Shortly thereafter it was removed here on the petition of defendant.

The defense of sovereign immunity must prevail if it can be shown that the defendant acted within authority conferred by federal law. Larson v. Domestic and Foreign Corp., 337 U.S. 682 (1949); Malone v. Bowdoin, 369 U.S. 543 (1962). In the initial complaint, plaintiff failed to allege specific limitations upon defendant's authority. Defendant relied on this failure in moving to dismiss. Plaintiff subsequently moved for leave to amend the complaint to specify alleged limitations upon defendant's authority.

This motion of plaintiff should be considered before reaching the substantive issue presented by defendant's motion to dismiss.

The Federal Rules of Civil Procedure provide that leave to amend is to be "freely given when justice so requires." FED. R. CIV. P. 15(A). The Supreme Court has indicated that unless an amendment would be prejudicial to the other party, the mandate of Rule 15(a) is to be heeded and the amendment allowed. Foman v. Davis, 371 U.S. 178, 182 (1962). Defendant has indicated that he does not oppose plaintiff's motion and, in any case, it is clear that defendant will not be prejudiced by the amendment.Therefore, the motion for leave to amend is granted and the Court will consider the motion to dismiss, originally addressed to the initial complaint, as now addressed to the amended complaint. Stork v. Townsend, 1 F.R.D. 597 (S.D. Ohio 1940); Dickheiser v. Pennsylvania Railroad Co., 5 F.R.D. 5, 8 (E.D. Pa. 1945).

[1 ELR 20607]

Turning now to the motion to dismiss: As amended, the complaint must, of course, be construed to refer to the cited federal statutes as they stand at the time of amendments. See Buck v. New York Central Railroad, 275 F.2d 292 (7th Cir. 1960).

In opposing the motion to dismiss, the State maintains that defendant violated the limitations on his authority stemming from the Federal Water Pollution Control Act, 33 U.S.C. § 466(i). The State also relies upon two executive orders promulgated in furtherance of the statute, viz.: Executive Order No. 11288, issued by President Johnson on July 17, 1966, and Executive Order No. 11507, issued by President Nixon on February 4, 1970, both directing federal agencies to comply with federal legislation regarding water quality standards.

A recent amendment to the Federal Water Pollution Control Act makes it clear that defendant's reliance on sovereign immunity is not well taken. Prior to that amendment, § 466(i) read:

It is declared to be the intent of the Congress that any Federal department or agency having jurisdiction over any building, installation, or other property shall, insofar as practicable and consistent with the interests of the United States and within any available appropriations, cooperate with the Department of Health, Education, and Welfare, and with any State or interstate agency or municipality having jurisdiction over waters into which any matter is discharged from such property in preventing or controlling the pollution of such waters. (Emphasis added.)

The italicized language indicates that Congress intended to leave the executive branch with broad discretion to balance federal and state interests in determining where and when federal funds should be spent to combat pollution. Since neither of the Executive Orders added any limitations upon that discretion of federal officials, it follows that neither that statute as it then read nor those orders limited the discretion of federal officials in the relevant areas of their authority. Larson, supra; Malone, supra. If there were nothing more, defendant's motion to dismiss should prevail on grounds of sovereign immunity.

But there is more.

On April 3, 1970, Congress amended 33 U.S.C. § 466(i) to read:

Each federal agency . . . having jurisdiction over any real property or facility, . . . shall, consistent with the paramount interest of the United States as determined by the President, insure compliance with applicable water quality standards and the purposes of this Act. . . .

The language of the amendment is more restrictive than that of the original statute. As amended, § 466(i) [renumbered as 33 U.S.C. § 1171(a)] no longer provides for discretion based on the availability of appropriations. It now requires compliance by federal agencies with "applicable water quality" standards. The legislative history of the amendment indicates that "applicable" standards include both state and local regulations. House Report No. 91-127.

No evidence has been presented that the President has made a determination that noncompliance with the recommendations of the Regional Board is required by any paramount interest of the United States. The President plainly has the power so to determine. It may well be that the President has concluded that compliance with the regulations prohibiting pollution would in the best interest of the United States or it may be that the matter has not been brought to his attention. The former would appear to be consistent with recent presidential emphasis on protection of the ecology. In any event, unless and until the President may determine otherwise, any action by defendant in violation of state or local water pollution standards exceeds the specific limitation found in the amended § 466(i) [now § 1171 (a)] and renders him subject to suit.

Defendant's motion to dismiss on the ground that this is an unconsented suit against the sovereign is denied. Cf. State v. Udall, 417 F.2d 1310 (9th Cir. 1969).

Defendant has also moved to dismiss the complaint for failure to state a cause of action. California Water Code §§ 13301 (providing for cease and desist orders), 13350 (providing civil penalties for violations of these orders), and 13050 (defining persons covered by the statutory scheme), clearly provide remedies for defendant's alleged disregard of the cease and desist order. Accordingly, defendant's motion to dismiss for failure to state a cause of action is also denied.

ORDER DISMISSING ACTION

Weigel, J.:

In accordance with the Stipulation for Dismissal of Action entered into by Paul J. Richmond, Deputy Attorney General, on behalf of the State of California, and Rodney H. Hamblin, Assistant United States Attorney, on behalf of defendant,

IT IS HEREBY ORDERED that this case be dismissed without prejudice.

DATE: July 15, 1971