Rockaway Valley Regional Sewerage Authority v. Gorsuch

No. 81-2721 (D.N.J. September 14, 1981)

Following its denial of plaintiff's motion for injunctive relief, 11 ELR 21101, the district court stays further proceedings in an action seeking a $44 million federal construction grant for completion of a wastewater treatment facility, pending resolution of a related case in state court. The court rules that it is required to abstain from determining whether the New Jersey Department of Environmental Protection is obligated to grant plaintiff's project priority certification because the issue involves state law questions. Furthermore, the court lacks pendent jurisdiction over the state law issues since any federal question regarding the Environmental Protection Agency is dependent upon the outcome of the state law questions. In addition, the court denies numerous applications for intervention as the decision to stay the proceedings makes the question of intervention premature.

Counsel are listed at 11 ELR 21101.

[11 ELR 21101]

Biunno, J.:

Memorandum and Order

The application for preliminary injunction has been denied by Memorandum dated September 11, 1981, with October to be submitted. [11 ELR 21102] The court now turns to the other questions to be considered, on which it reserved ruling.

Jurisdiction and Abstention

The claims asserted by RVRSA are said to arise under the Clean Water Act, whose provisions are embodied in the statutes found at 33 U.S.C. § 1251, et seq. To that extent, jurisdiction is asserted under the "federal question" provisions of 28 U.S.C. § 1331.

It is also alleged that the Regional Administrator of EPA has incorrectly interpreted the regulations in taking the position that Judge Gascoyne's order of August 22, 1981 in the 1968 Superior Court suit is not effective to supersede the requirement for a public hearing on RVRSA's claim of entitlement to priority for FY-1981. This, it is argued, gives rise to jurisdiction under 28 U.S.C. § 1361 as an action in the nature of mandamus to compel an officer of an agency of the United States to perform a duty owed to the plaintiff.

The court has also examined 28 U.S.C. § 1346(a)(2), providing original jurisdiction concurrent with the Court of Claims, but that provision is limited to non-tort claims up to but not exceeding $10,000. The claim here involves $44 million and so that section does not apply.

The grant provisions of the Clean Water Act express a Congressional intent that the underlying programs, evaluations and determinations be made by State officials, i.e., in New Jersey by the Department of Environmental Protection. See, for example Manatee, etc. v. Train, 583 F.2d 179 [8 ELR 20851] (5th Cir. 1978), emphasizing the statutory expression that:

It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 and 1344 of this title.

33 U.S.C. § 1251(b), as amended 1977.

Also, EPA's duty to approve a grant (the specific action sought by RVRSA) follows, and is conditioned upon, a certification by the State agency (DEP), that the particular works are entitled to priority over other works in accordance with the applicable State plan, 33 U.S.C. § 1284(a)(3). The DEP has not made any such certification, and part of the suit is aimed at securing a ruling that DEP is obliged to make that certification. This issue involves State law questions. Is DEP's priority certification a ministerial act, warranting State mandamus, or is DEP obliged to consider the effect of the requested certification on other projects that would be "leapfrogged" if RVRSA's request were granted, in which case its determination would be reviewable by State certiorari to test whether it was arbitrary or capricious?

Any jurisdiction here to consider and decide such State law questions would exist only as a matter of "pendent" jurisdiction hanging on the existence of some federal jurisdiction on other issues. In this respect, it is of record that a State proceeding is in progress, with an appeal pending in the Superior Court, Appellate Division. And the analysis above indicates that any federal question in respect to EPA, the federal agency, is contingent on the outcome of the State law question.

The court was informed at the hearing that in the State appeal the DEP defendants have taken the position that Judge Gas-coyne lacked subject-matter jurisdiction over the matter since DEP action is reviewable only in the Appellate Division and not in a trial division under N.J. Court Rule 2:2-3. This position is obviously incorrect as a matter of State law, because N.J. CONST. 1947, by art. 6, § 5, par. 4 superseded all of the prerogative writs (such as mandamus, certiorari, quo warranto, prohibition and procedendo) and directed that "in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right . . . ."

The Superior Court is a single court, O'Neill v. Vreeland, 6 N.J. 158 (1951), it has general original jurisdiction throughout the State in all causes, and each judge exercises all the power of the court, State ex rel. Eckelmann v. Jones, 4 N.J. 374 (1950).

Thus, since the State constitution puts jurisdiction in the Superior Court in all causes, including suits in lieu of prerogative writ, there cannot be a lack of subject-matter jurisdiction. At most, there may be a matter of incorrect selection of a particular Division for the purpose of hearing and decision, a matter of assignment for which the correction is transfer not unlike matters of venue. Even this aspect, however, clear though it may be, is a State law matter.

Since the predicate to any federal jurisdiction will be the outcome of the State law aspects, it is obvious that the doctrines of Younger and Pullman properly require that this court abstain from proceeding further while the State law issues are resolved in the State courts.

The proper course is to order a stay until the State law issues have been resolved.

Intervention

A considerable number of municipalities, sewerage authorities, and the like have either filed applications for leave to intervene under Rule 24, FED. R. CIV. P., or were allowed at the hearing to make oral applications, Rule 7(b)(1), FED. R. CIV. P. A number of potential intervenors said on the record that they had not decided whether or not to seek intervention bur reserved the right to so apply in the future.

It is plain from the statements of other municipalities and agencies participating in the grant program that their major concern is with the question whether relief to RVRSA as requested, to the tune of $44 million, will cut off or reduce their access to aid grants for their own works. This determination, in turn, will depend in part on grant approvals made by EPA on the basis of certifications issued by DEP which are in the processing stage at this time, thus precluding any firm calculations.

Also, they express concern that if both DEP and EPA were to be restrained from issuing certifications of priority and grant authorizations to the extent of $44 million, there is no assurance that a lifting of the restraints after September 30th will actually release the $44 million involved. The legislative history, especially in connection with the 1980 amendments, does indicate a Congressional purpose to redistribute unused funds originally allocated to one State to other States whose projects have exhausted available funds.

In any event, the decision to abstain and stay the present action makes the question of intervention premature. Whatever funds potential intervenors might otherwise expend in participating in this suit can be put to more effective use toward completion of their works.

The submissions of all the requesting intervenors will be accepted as submissions amicus, but otherwise intervention is denied without prejudice to renewal after the stay is lifted.

Order

For the reasons stated in the foregoing Memorandum, it is on this 14th day of September, 1981,

ORDERED that:

1. Further proceedings in the cause are stayed until all State law aspects and issues have been finally resolved in the New Jersey courts, either in the pending Superior Court suit or in such other appropriate action to be brought promptly and expeditiously.

2. The foregoing stay shall also suspend the running of time within which to serve and file answer by any named defendant, or to serve and file any motion before answer; and the time for taking such steps shall not begin to run until set by order of this court at such time as the stay is terminated.

3. After final determination of State law issues in appropriate proceedings in the New Jersey courts, plaintiff may apply to the court on notice of motion in the usual course, for an order to terminate the stay and fix the time for service and filing of answers or motions addressed to the complaint. Such notice shall be served on the named defendants and on all entities having a potential interest in seeking intervention.

4. The written and oral applications for intervention are denied without prejudice to renewal after service and filing of the notice referred to in paragraph 3. Written and oral submissions so far made by putative intervenors will be considered as submissions amicus.

5. The stay set out in paragraph 1 shall not apply to the entry of an order denying preliminary relief in accordance with the Memorandum dated September 11, 1981.