Goodyear v. LeCraw

No. 280-35 (S.D. Ga. June 27, 1980)

The court rules that § 404(s) of the Federal Water Pollution Control Act (FWPCA) confers a discretionary and not a mandatory duty on the Corps of Engineers to enforce compliance with the statute's permit requirements. Looking to the actual language of § 404(s) to determine congressional intent, the court holds that the presumption of a mandatory intent created by use of the word "shall" may be overridden by contrary evidence revealed by the statute's purpose and legislative history, and by agency interpretation of the statute. The court then follows the Fifth Circuit's lead in Sierra Club v. Train, which interpreted the parallel enforcement provisions of FWPCA § 309(a) to be discretionary, rather than mandatory. Since § 309(a) and § 404(s) of the Act have substantially identical language, purposes, and legislative histories, and have been given similar agency interpretations, and since the Sierra Club decision did not depend on the context in which the issue arose, the court applies the Fifth Circuit's interpretation of § 309(a) to § 404(s), and holds that the Corps' enforcement authority under FWPCA § 404(s) is discretionary. Accordingly, the court dismisses plaintiff's claim against the Corps for failure to state a claim upon which relief can be granted.

Counsel for Plaintiff
Michael K. Jablonski
Savell, Williams, Cox & Angel
2300 The Equitable Bldg., 100 Peachtree St., Atlanta GA 30043-6201
(404) 521-1282

Austin E. Catts
The Garland Firm (formerly Garland, Nuckolls, Kadish, Martin & Catts, P.C.)
92 Luckie St. NW, Atlanta GA 30303
(404) 577-2225

Counsel for Defendant
David Buente
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

[15 ELR 20847]

Alaimo, J.:

Order

In this case the plaintiff, an owner of beachfront property on Sea Island, Georgia, is suing the United States Army Corps of Engineers and several private individuals and entities for placing, or allowing to be placed, certain rock revetments on Sea Island beach. The purpose of the rock revetments is to prevent further erosion of beach and upland property. The case is presently before the Court on the motion to dismiss by the United States Army Corps of Engineers for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Having considered the briefs submitted by the parties in support and in opposition to the motion, the Court concludes that the motion should be granted.

In 1972, Congress enacted the Federal Water Pollution Control Act Amendments, Pub. L. No. 92-500, 86 Stat. 816, 33 U.S.C. § 1251 et seq., with the objective of restoring and maintaining "the chemical, physical, and biological integrity of the Nation's waters." Section 101(a), 33 U.S.C. § 1251(a). To reach that goal, section 301, 33 U.S.C. § 1311, provides that "[e]xcept as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act [33 U.S.C. §§ 1312, 1316, 1317, 1328, 1342, 1344], the discharge of any pollutany by any person shall be unlawful." The term "pollutant" includes "dredged . . . rock [and] sand . . . discharged into water." Section 502(6), 33 U.S.C. § 1362(6).

Sections 402 and 404 of the Act, 33 U.S.C. §§ 1342 & 1344, authorize the Administrator of the Environmental Protection Agency and the Secretary of the Army, respectively, to issue permits for the discharge of certain pollutants. Section 404, which is at issue in the instant case, empowers the Secretary, acting through the Chief of the Corps of Engineers, to "issue permits, after notice and opportunity for public hearings[,] for the discharge of dredged or fill material into the navigable waters at specified disposal sites" established according to "guidelines" set by the Secretary and the Administrator.

By regulation, the Corps administers its 404-permit system by issuing three types of permits. Some activities subject to section 404 may be conducted routinely on a national basis without specific prior authorization from the government. These activities are conducted under a "nationwide permit." See 33 C.F.R. §§ 323.4; and 323.4-2 (1979). The Corps also authorizes certain types of activity to be conducted routinely on a regional or local basis under a "general permit." See 33 C.F.R. §§ 323.2(p); 323.3(c). All other activities subject to section 404 must be covered with "individual permits" issued on a case-by-case basis. See 33 C.F.R. §§ 323.2(o); 323.4-4.

In the case at bar, the plaintiff asserts that the private defendants' construction activities are not covered by the Corps' "nationwide permit" program, and that the private defendants have not obtained an "individual permit" for their activities. Complaint, paras. 44 & 46. In this lawsuit, plaintiff seeks to compel the Corps to investigate defendants' activities, issue cease and desist orders, and remove the materials already placed on the beach. The Corps contends that plaintiff's claim against it should be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.

The Corps' challenge to jurisdiction rests on the "citizen suit" provision of the Act, 33 U.S.C. § 1365, which states:

"[A]ny citizen may commence a civil action on his own behalf —

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator."

Special procedural rules and venue requirements accompany the provision. 33 U.S.C. § 1365(b)-(d). The Corps contends that plaintiff has an adequate remedy at law under this provision to enforce the requirements of the Clean Water Act, thereby excluding resort to any other basis of federal jurisdiction. See City of Highland Park v. Train, 519 F.2d 681 [5 ELR 20408] (7th Cir. 1975).

The plaintiff, in response, contends that section 1365(c) of the Act, the "savings clause," which provides that "[n]othing is [section 1365] shall restrict any right which any person . . . may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief . . .," preserves alternative sources of jurisdiction to enforce the Act, such as the federal courts' jurisdiction over cases presenting a "Federal question," 28 U.S.C. § 1331, and the federal courts' ability to compel the performance of certain official acts, 28 U.S.C. § 1361. See National Sea Clammers Association v. City of New York, 616 F.2d 1222 [10 ELR 20155] (3d Cir. 1980); Natural Resources Defense Council v. Train, 510 F.2d 692, 699-700 [5 ELR 20046, 20696] (D.C. (D.C. Cir. 1974).

For the moment, however, this Court may pass over defendant's challenge to its jurisdiction, for even assuming, arguendo, that this Court has jurisdiction to entertain a claim against the Corps based on either 28 U.S.C. § 1331 or 28 U.S.C. § 1361, plaintiff has yet failed to state a claim upon which relief can be granted against the Corps. Whether the plaintiff seeks relief against the Corps in the nature of mandamus under 28 U.S.C. § 1361 or based on a cause of action implied under 33 U.S.C. § 1251, he cannot compel the Corps to perform an act which Congress has entrusted to the Corps' discretion.

If the Corps owes a duty to the plaintiff, it must be found in the provisions of the Clean Water Act. On its face, that Act appears to mandate enforcement action by the Corps. Section 404(s), 33 U.S.C. § 1344(s), which sets forth the Corps' enforcement authority, provides:

(1) Whenever on the basis of any information available to him the Secretary finds that any person is in violation of any condition or limitation set forth in a permit issued by the Secretary under this section, the Secretary shall issue an order requiring such person to comply with such condition or limitation, or the Secretary shall bring a civil action in accordance with paragraph (3) of this subsection.

(3) The Secretary is authorized to commence a civil action for appropriate relief, including a permanent or temporary injunction for any violation for which he is authorized to issue a compliance order under paragraph (1) of this subsection. Any action under this paragraph may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance.

(Emphasis added.) The regulations promulgated under this section also seem to indicate that the Corps' duties under the Act are mandatory, not discretionary. For example, section 326.2, 33 C.F.R. § 326.2, provides: "When the District Engineer becomes aware of any unauthorized activity which is still in progress, he shall immediately issue acease and desist order to all persons responsible for and/or involved in the performance of the activity." (Emphasis added.) Similarly, section 326.3, 33 C.F.R. § 336.3, relating to investigations, provides that "the District Engineer shall commence an immediate investigation of all unauthorized activities brought to his attention to ascertain the facts surrounding the activity." (Emphasis added.)

On the other hand, the regulations appear to leave the decision whether to recommend or initiate legal action to the "guided" discretion of the Corps. 33 C.F.R. § 326.4. Moreover, the Corps interprets its regulations as permitting the exercise of discretion.

"In interpreting statutes," the Fifth Circuit Court of Appeals recently reminded, "a court's function 'is to give effect to the intent of Congress.'" Sierra Club v. Train, 557 F.2d 485, 489 [7 ELR 20670] (5th Cir. 1977) (quoting United States v. American Trucking Associations, 310 U.S. 534, 542 (1939)). The most telling guide to congressional intent is the wording of the statute itself. Use of the word "shall" generally indicates a mandatory intent. C. Sands, Sutherland's Statutory Construction § 25.04 (4th ed. 1973). However, the presumption of a mandatory intent created by the use of "shall" [15 ELR 20848] may be overridden by contrary evidence revealed by the purpose of the statute, its legislative history, and the agency's interpretation of the statute. See Train v. Colorado Public Interest Research Group, 426 U.S. 1 [6 ELR 20549] (1976); Exxon Corp. v. Train, 554 F.2d 1310, 1322 [7 ELR 20594] (5th Cir. 1977); United States v. St. Regis Paper Co., 355 F.2d 688 2d Cir. 1966).

In Sierra Club v. Train, 557 F.2d 485 [7 ELR 20670] (5th Cir. 1977), the Court of Appeals, interpreting the parallel enforcement provisions of section 309(a) of the Act, 33 U.S.C. § 1319(a), which applies to the Administrator of the EPA, held that the agency's duty to enforce the provisions of the Act by issuing an order of abatement or bringing a civil action is discretionary, not mandatory.¹ The language, purpose, legislative history, and agency interpretation of section 309(a) are substantially the same as the language, purpose, legislative history, and agency interpretation of section 404(s). As explained in the Conference Report which added section 404(s) to the bill proposing the 1977 amendments to the Clean Water Act, "[n]ew subsection (s) of section 404 provides similar enforcement authority with respect to permits issued by [the Corps] as is provided to the Administrator in Section 309 of the Act. . . ." Senate Committee on Environment and Public Works, A Legislative History of the Clean Water Act of 1977, vol. 3, at 287. Although the precise issue before the Court of Appeals in Sierra Club was not identical to the issue now before this Court, the Court of Appeals' interpretation of the parallel statutory provision did not depend on the context in which the question arose, and therefore this Court considers itself fairly bound to apply the Court of Appeals' interpretation of section 309 to the provision sub judice.² Accordingly, the Court finds that section 404(s) of the Act, 33 U.S.C. § 1344, confers a discretionary and not a mandatory duty on the Corps to enforce compliance with the permit requirements of the Act. Neither mandamus under 28 U.S.C. § 1361 nor a mandatory injunction based on an implied cause of action under 33 U.S.C. § 1251 lies to compel the Corps to enforce the Act. Consequently, plaintiff's claim against the Corps must be dismissed for failure to state a claim upon which relief can be granted. The Clerk is directed to enter an appropriate judgment.

1. Several district courts, in cases decided both before and after Sierra Club, have interpreted § 309 differently. See South Carolina Wildlife Federation [v. Alexander], 457 F. Supp. 118, 127-134 [8 ELR 20757] (D.S.C. 1978); Illinois v. Hoffman, 425 F. Supp. 71 (S.D. Ill. 1977); United States v. Phelps Dodge Corp., 391 F. Supp. 1181 [5 ELR 20308] (D. Ariz. 1975).

2. In Sierra Club, the issue was whether suit for failing to enforce the Act would lie against the Administrator under § 1365(a)(2), which allowed a "citizen's suit" against the Administrator "where there is alleged a failure of the Administrator to perform any act or duty under [the Act] which is not discretionary with the Administrator."