National Wildlife Federation v. Laubscher

No. G-86-37 (S.D. Tex. February 23, 1987)

A magistrate rules that decisions made by the Environmental Protection Agency (EPA) and the Corps of Engineers whether to apply the Federal Water Pollution Control Act (FWPCA) to isolated wetlands are discretionary, and thus FWPCA § 505 does not provide a private right of action to challenge such decisions. EPA and the Corps decided not to require a permit under § 404 for the filling of an isolated pond in Texas. Noting that, pursuant to the Supreme Court's decision in Middlesex County Sewerage Authority v. National Sea Clammers Association, 11 ELR 20684, there are no private rights of action under the FWPCA other than those specifically enumerated in § 505, the citizen suit provisions, the court holds that § 505 does not provide the right to challenge the agencies' discretionary decisions. Moreover, a suit alleging a violation of the FWPCA can only be brought under § 505 and cannot be maintained under the federal question statute. The court rules that the agencies' decision not to require a permit for filling navigable waters is discretionary.

[The complaint from this litigation is digested at ELR PEND. LIT. 65890.]

Counsel for Plaintiff
Jerry Jackson
National Wildlife Federation
1412 6th St. NW, Washington DC 20036
(202) 637-3736

Counsel for Defendants
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2281

[17 ELR 20891]

Smith, J.:

Memorandum and Recommendation

Statement of the Case

The non federal defendants, Delta Lake Irrigation District, F. G. Knapp, J. A. Knapp, Rio Farms, Inc., Averyt S. Knapp, F. M. Knapp, Bessie Knapp, and G. K. Knapp (collectively referred to hereafter as "Delta"), in this case are landowners and an Irrigation District created under Texas Law. "Pond 12" is an area of approximately 30 acres in Willacy County, Texas near Kingsville in South Texas owned by the defendants and within the District. After obtaining a grant from the Federal Government to reclaim the farmland, the Irrigation District drained the Pond after the EPA and Corp informed them that no permit would be required. In so doing fill material from the excavation was deposited in the water of the pond. The EPA and Corp had determined that Pond 12 was not included in the definition of "navigable waters of the United States." The defendants "Delta" contend this pond area was farmland and the pond formed when a natural drain stopped up and their action in digging a new drain at a cost of about 1.5 million dollars merely reclaimed the farmland. The pond is not connected to any other body of water.

The Plaintiffs brought this case contending that "Pond 12" is included in the definition of "navigable waters" and that in fact, all ponds are included. They contend the EPA and Corp have a mandatory duty under CWA to assert jurisdiction over "Pond 12" and all other ponds in the whole United States as selective exclusion effects commerce on a cumulative basis and therefore is prohibited and regulations contra are invalid.

The Federal defendants contend they have discretionary authority in applying the CWA and this Court has no jurisdiction in this case to grant the relief requested by Plaintiffs, as their action or inaction is within their discretion and it is not mandatory that all waters be regulated.

While the case has been pending the EPA and Corp redefined their criteria and reversed their prior decision about "Pond 12." They now assert that "Pond 12" is included as "navigable waters of the United States." From this position the Federal defendants contend that the case is therefore moot and should be Dismissed as to this issue.

Memorandum Opinion

The National Wildlife Federation premises its complaint on the citizen suit provision of section 505(a) of the Clean Water Act which in relevant part, allows an action:

(2) against the Administrator [of EPA] 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.

33 U.S.C. § 1365(a) (1982).

NWF's broad allegation that there has been a "policy or practice" of misapplication of the CWA does not establish a cause of action or federal court jurisdiction. There is no private right of action under the CWA other than what is encompassed within the specific citizen-suit provision in section 505(a). The Supreme Court reached this conclusion in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 [11 ELR 20684] (1981). In that case, an organization whose members harvest fish and shellfish off the coast of New Jersey and New York sued various government entities, alleging damage to fishing grounds caused by discharges and ocean dumping of sewage and other waste. The plaintiff sought injunctive and declaratory relief and monetary damages under a number of legal theories, including a claim under the CWA although section 505(a) was not applicable. In considering whether an implied right of action exists under the CWA, the Court noted the "unusually elaborate enforcement provisions" of the Act including section 309, 33 U.S.C. § 1319 (authorizing the EPA Administrator to respond to violations of the Act with compliance orders and civil suits) and section 509(b), 33 U.S.C. § 1369(b) (authorizing interested persons to seek judicial review of various actions of the EPA Administrator). 453 U.S. at 13-14. The Court noted that these enforcement provisions are supplemented by the citizen suit provisions in § 505(a), 33 U.S.C. § 1365(a). The Court then stated:

In view of these elaborate enforcement provisions it cannot be assumed that congress intended to authorize by implication additional judicial remedies for private citizens suing under . . . FWPCA. As we stated in Transamerica Mortgage Advisors, [444 U.S. 11 (1979)], "it is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." 444 U.S. at 19. See Also Touche Ross & Co. v. Redington, [442 U.S. 560 (1979)], at 571-574. * In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.

U.S. at 14-15 (emphasis added).

The Court in National Sea Clammers found no "strong indicia of a contrary congressional intent." Rather, based upon the structure of the CWA and legislative history supporting the view that Congress intended the limitations imposed on citizen suits to apply to all private suits under the act, id. at 17, the Court held:

Congress intended that private remedies in addition to those expressly provided should not be implied. Where, as here, Congress had made clear that implied private actions are not contemplated, the Courts are not authorized to ignore this legislative judgment.

453 U.S. at 18. The Supreme Court's decision in National Sea Clammers specifically vacated the contrary holding of the Third Circuit in National Sea Clammers Association v. City of New York, 616 F.2d 1222, 1225-31 [10 ELR 20155] (3d Cir. 1980), that a private right of action can be implied under the FWPCA.

Further, it has also been held that under National Sea Clammers a suit alleging a violation of the CWA can only be brought under the citizen-suit provision of the Act and cannot be maintained under 28 U.S.C. § 1331. National Wildlife Federation v. Ruckelshaus, 21 Env't Rep. Cas. (BNA) 1776, 1779 [15 ELR 20845] (D.N.J. 1983), aff'd on other grounds, 744 F.2d 963 (3d Cir. 1984). See also City of Las Vegas Nevada v. Clark County, Nevada, 755 F.2d 697, 703 [15 ELR 20353] (9th Cir. 1985) (National Sea Clammers precludes suits brought under 28 U.S.C. § 1331); Davis v. United States, 722 F.2d 1157, 1158 [14 ELR 20616] (4th Cir. 1983), cert. denied, 104 S. Ct. 2151 (1984).

Further, in order to maintain a citizen's suit against the Administrator under CWA § 505, it must be properly alleged that EPA has failed to take some action clearly mandated by a particular provision [17 ELR 20892] of the Act. Sierra Club v. Train, 557 F.2d 485, 488 [7 ELR 20670] (5th Cir. 1977); Caldwell v. Gurley Refining Co., 533 F. Supp. 252 [12 ELR 20759] (E.D. Ark. 1982). Cf. National Resources Defense Council v. Environmental Protection Agency, 512 F.2d 1351, 1355 [5 ELR 20323] (D.C. Cir. 1975) (Clean Air Act), State of New York v. Thomas, 613 F. Supp. 1472, 1479 [15 ELR 20748] (D.D.C. 1985), appeal pending, No. 85-5970, 5972, 5994 (Clean Air Act). Section 505 of the CWA was on § 304 of the Clean Air Act. The CAA and CWA are construed in pari materia, Lubrizol Corp. v. Train, 547 F.2d 310 [7 ELR 20106] (6th Cir. 1976).

The citizen's suit provision, in other words, is not intended to be used as a vehicle for obtaining judicial review of EPA's exercise of its broad discretionary powers. District of Columbia v. Schramm, 631 F.2d 854, 859 n.10 [10 ELR 20520] (D.C. Cir. 1980); Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1351-53 [8 ELR 20373] (9th Cir. 1978) (Clean Air Act); Kentucky ex rel. Hancock v. Ruckelshaus, 497 F.2d 1172, 1177 [4 ELR 20484] (6th Cir. 1974), aff'd, 426 U.S. 167 [6 ELR 20555] (1976) (Clean Air Act); Committee For Consideration of Jones Falls Sewage System v. Train, 387 F. Supp. 526, 529-30 (D. Md. 1975), aff'd, 539 F.2d 1006 [6 ELR 20703] (4th Cir. 1976) (en banc) (Clean Water Act); Corrace v. Butterfield, 387 F. Supp. 446, 448 (E.D.N.Y. 1975) (Noise Control Act); Council of Commuter Organizations v. MTA, 683 F.2d 663 [12 ELR 20784] (2d Cir. 1982) (Clean Air Act). Such suits may only be brought where EPA has failed to take some step clearly required by statute, not where its actions are allegedly misguided. NRDC v. EPA, 512 F.2d at 1355; Scott v. Hammond, 741 F.2d 992 [14 ELR 20359] (7th Cir. 1984).

The duties imposed by § 12(a)(3) on the EPA Administrator are discretionary. Dismissal for lack of jurisdiction is proper. Sierra Club v. Train, 557 F.2d 485. The CWA's delegation of authority to the EPA and the Corp clearly meets the test of sufficiently definite in light of the complexity of the area at which legislation is directed. The Fifth Circuit followed Sierra Club v. Train and held that enforcement of the CWA is not a mandatory duty (Note 11 page 902). Avoyelle Sportsman League Inc. v. Marsh, 715 F.2d 897.

There is a degree of agency discretion involved in deciding whether to assess a penalty against a particular polluter, or, even before that stage, whether to investigate a particular source to access compliance; or, even before that stage, whether immediately to issue a particular regulation; or, even before that stage, whether to investigate a particular pollutant or activity as a possible subject for regulation. Responsibility of Regulatory Agencies Under Environmental Laws, Vol. 24, Houston Law Review 97, The Honorable Antonin Scalia.

The Supreme Court has recently said concerning the decision not to move against or not to investigate a particular violator the following:

This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion . . . . This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement. Heckler v. Chaney, 105 S. Ct. 1649, 1656 [15 ELR 20335] (1985).

Defendants' EPA and Corp Motion For Summary Judgment

The Court finds that Plaintiffs' fail to state a cause ofaction against the EPA and the Corp and the Motion of the EPA and Corp for Summary Judgment should be Granted.

The dismissal of Plaintiff's cause of action against the defendants EPA and the Corp of Engineers does not dismiss them from jurisdiction of this Court in this case. There are still issues to be decided between the EPA, the Corp and the defendants "Delta" as these defendants have denied that "Pond 12" is subject to classification as "waters of the United States."

This is still the central issue to be decided and this Court retains jurisdiction to decide that issue between all the parties in this suit, including the defensive issue of farmland exemption asserted by defendants "Delta." Therefore this case as to all parties and all issues raised continues on the docket of this Court.

The Court does not consider the reversal of the EPA and Corp as to their finding regarding the Status of "Pond 12" conclusive and considers that question to be a fact question to be decided in this action in this Court.

Plaintiffs' Motion For Summary Judgment

The Motion for Summary Judgment filed by Plaintiffs should be Denied including Plaintiffs requested Summary Judgment for remedies and sanction against "Delta" as there are fact questions which make summary judgment inappropriate in regards a remedy.

Defendants "Delta" Motion For Summary Judgment

Defendants "Delta" Motion for Summary Judgment should be Denied. The evidence is disputed and a Summary Judgment at this time is inappropriate.

Recommendation

Accordingly, it is RECOMMENDED that the Motion for Summary Judgment filed by the Federal Defendants EPA and Corp be GRANTED and plaintiffs cause of action only against the EPA and the Corp be DISMISSED as plaintiffs' claim fails to state a cause of action which comes under the jurisdiction of this Court.

It is RECOMMENDED that Plaintiffs' Motion for Summary Judgment be DENIED.

It is RECOMMENDED that the Motion for Summary Judgment of defendants "Delta" be DENIED as inappropriate, evidence is disputed.

Leave is GRANTED to all parties to amend in light of the rulings contained in this Order. This case is set for a Status Conference on March 25, 1987 at 2:00 P.M. to determine a new Docket Control Order in light of the rulings recited above.