New York State Waterways Association v. Diamond

Civil 1971-302 (W.D.N.Y. January 12, 1972)

A New York State statute which requires that marine toilets used on State waterways treat or hold the sewage and which forbids discharge of sewage or other liquid or solid materials from marine facilities is not unconstitutional. The plaintiffs have not alleged any valid basis for federal jurisdiction over the subject matter of this suit. The Federal Water Pollution Control Act does not preempt the field of waterquality.

Counsel for Plaintiffs
Branch, VanVoorhis & Wise
65 Broad Street
Rochester, N.Y. 14614

Counsel for Defendants
Louis J. Lefkowitz Attorney General
Philip Weinberg
Joel H. Sachs
Thomas Harrison Assistant Attorneys General
State Capitol
Albany, N.Y. 12224

[2 ELR 20245]

Burke, J.

Plaintiffs on July 13, 1971 filed an amended complaint asking for a declaratory judgment and injunctive relief. They ask this court to convene a three judge court pursuant to Section 2284 of Title 28, U.S.C., that Section 33-C of the Navigation Law of New York and the regulation promulgated, as applied to plaintiffs' watercraft, be declared unconstitutional in whole or in part, that the court enjoin temporarily and permanently the defendants, collectively and individually, from enforcing the provisions of Section 33-C of the Navigation Law, and particularly the criminal provisions thereof, and an injunction pending this suit.

This court fixed a date for a hearing on plaintiffs' application for a preliminary injunction.

The defendants by notice of motion dated August 18, 1971 moved to dismiss the complaint on specific grounds stated, among which are that this court lacks jurisdiction over the subject matter, that the action is premature, and that this court should abstain from taking jurisdiction under the doctrine of equitable abstention. The motions came on for a hearing and oral argument. The respective parties have filed written memoranda.

FINDINGS OF FACT

1. Section 33-c of the New York Navigation Law was enacted by the New York State Legislature in 1966 (Laws of 1966, Chapter 897). It prohibits the placing, throwing, deposit or discharge into the waters of New York State, from any watercraft, marine or mooring, of any "sewage or other liquid or solid materials which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes." It prohibits the use of marine toilets on watercraft on the water of New York State "unless the toilet is equipped with facilities that will adequately treat, hold, incinerate or otherwise handle sewage in a manner that is capable of preventing water pollution, as required by this section." This provision went into effect March 1, 1970. The plaintiff contends that the statute is unconstitutional on the grounds that it conflicts with certain provisions of the Federal Water Quality Improvement Act and Water Pollution Control Act, creates an unconstitutional burden on interstate commerce, and is unconstitutionally vague and discriminatory.

2. This court declines to convene a three judge court as demanded in the complaint.

3. The plaintiffs do not sue for money damages, but only for a declaratory judgment and injunctive relief. They assert that this is a case involving also the admiralty and maritime jurisdiction of this court. Admiralty cannot give injunctive relief, Khedivial Line vs. Seafarers' Int. Union, 278 F.2d 49 (2 Cir. 1960); nor can it issue a declaratory judgment. This is not a case involving admiralty or maritime jurisdiction nor have the plaintiffs alleged any other valid basis for jurisdiction of this court. This court lacks jurisdiction over the subject matter of the suit.

4. The Federal Water Pollution Control Act, 33 U.S.C. Section 1151 et seq, does not evidence congressional intent to preempt this field or to exclude state ation at this time.

5. There is no merit to the argument of the plaintiffs that the state is powerless to act to protect the health and welfare of its residents during the period prior to the effectiveness of federal standards.

6. There is no merit to the claim of the plaintiffs that the statute constitutes an unconstitutional burden on interstate commerce.

7. There is no merit to plaintiffs' claim that Section 33-C could result in the impairment of contractual rights.

8. There is no merit to plaintiffs' claim that the provisions of Section 33-C permitting boarding and inspection of watercraft by state agents without a prior warrant constitutes a violation of the Fourth Amendment prohibition against warrantless searches. Moreover, none of the plaintiffs has been made the victim of an allegedly unconstitutional search nor has such a search been threatened, nor has the statute been enforced against any of them. When and if any plaintiff is prosecuted for violation of Section 33-C, and if that prosecution resulted from a search of its vessel without a warrant, it will then have an opportunity to raise its Fourth Amendment claims, if applicable, as a defense in a criminal prosecution.

9. Section 33-C fully complies with the constitutional requirements of due process and equal protection under the Fourteenth Amendment. Neither the complaint nor the amended complaint raises any substantial federal question.

10. Even if this court did have jurisdiction, it should abstain from exercising such jurisdiction in the circumstances of this case. Reetz vs. Bazanich, 397 U.S. 82; Zwickler vs. Koota, 389 U.S. 241. No state court has ever had an opportunity to interpret and construe the statute and procedures under attack here.

CONCLUSION OF LAW

1. Plaintiffs' motion for a preliminary injunction is denied. IT IS HEREBY SO ORDERED.

IT IS HEREBY ORDERED, ADJUDGED and DECREED that the complaint and the amended complaint herein are dismissed.