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4 ELR 20520 | Environmental Law Reporter | copyright © 1974 | All rights reserved State ex rel. Brown v. Basf Wyandotte CorporationNo. 904,571 (Ohio Ct. C.P. February 22, 1974)Two chemical corporations located in Canada are held subject to an Ohio court's in personam jurisdiction under the state's long arm statute, and the court permanently enjoins both defendants from any further discharges of mercury into the tributaries of Lake Erie. The lake and its tributaries constitute a single body of water, and under a "continuing act" theory defendants' discharges thus represent tortious conduct within the waters of Ohio which the state Attorney General may properly seek to abate. Even if the Canadian defendants could not be held to be acting within Ohio, sufficient contacts through business and other activities within the state exist to allow exercise of in personam jurisdiction without offending due process. The court denies plaintiff's requests for compensatory and punitive damages and for an order to clean up the lake, noting that since the two firms acted separately the damages would have to be apportioned according to the harm done by each, and such a determination is impossible given the highly polluted character of the lake and the numerous other sources of contaminants. The court also awards plaintiff investigative costs and attorneys' fees after commending the ability of its counsel, and orders a hearing to determine the amount of the award. The action against a third chemical company in the U.S. is dismissed since, although it is the parent corporation of one of the enjoined defendants, this firm was not directly involved in the mercury discharges. Counsel for Plaintiff Counsel for Defendants Smith Warder McMonagle, J. This is an action brought by the State of Ohio, herein referred to as Ohio, on relation of William J. Brown, Attorney General of Ohio as plaintiff against BASF Wyandotte Corp., a Michigan Corporation herein referred to as BASF, the Dow Chemical Company, a Delaware Corporation herein referred to as Dow U.S., and Dow Chemical of Canada, LTD. herein referred to as Dow Canada, a Canadian Corporation, all of whose capital stock is owned by Dow U.S. A majority of Dow Canada's directors are American citizens and officers of Dow U.S. It is the claim of Ohio that for many years the defendants BASF and Dow Canada have been polluting the fresh waters of the Great Lakes and particularly Lake Erie by depositing a poisonous substance — mercury, from their manufacturing plants into the St. Clair River and the Detroit River whence the current carries such [4 ELR 20521] pollutants and water contaminated thereby down into and through Lake Erie; that migratory fish either in the St. Clair River or other connecting waterways north of Lake Erie have ingested poisonous substances resulting from the said deposits of mercury and they in turn have also caused such poisonous substances to be carried in their bodies into Lake Erie. The prayer of the First Amended Complaint follows: 1.That defendants be permanently enjoined from continuing to discharge, place or dispose of mercury or compounds thereof into the St. Clair River, Detroit River, Lake Erie or tributaries thereto. 2. That a decree be entered requiring the defendants and each of them to remove or render harmless the poisonous mercury and compounds thereof from the St. Clair River, Detroit River, Lake Erie and tributaries thereto, or, in the alternative, require defendants to pay to plaintiff the sum of $10,000,000 (Ten Million Dollars) to enable plaintiff to remove or render harmless said mercury and compounds thereof from Lake Erie and any tributaries thereto, said sum to be held in trust for and expended for this purpose by plaintiff. Such decree shall contain appropriate provisions for reporting to the Court on progress of removal so that appropriate enforcement of said decree can be implemented. 3.That defendants be held liable for general and special compensatory damages compensating for the past, present, and future damages to Lake Erie, the natural environment, the fish and aquatic organisms, to the wildlife, to the vegetation therein, to the water, to the citizens and inhabitants of Ohio, the loss of inspection, testing and analysis of fish by plaintiff in its governmental capacity, and the damage to the economy of Ohio and loss of revenue to plaintiff in the amount of $25,000,000 (Twenty-Five Million Dollars). 4. That a decree be entered requiring defendants to pay punitive damages to the State of Ohio for the unlawful, willful, wanton, intentional, malicious, reckless, and persistent disregard of the rights of the citizens and inhabitants of Ohio in the amount of $10,000,000 (Ten Million Dollars). 5. That plaintiff recover from defendants the costs of this action together with reasonable attorneys' fees in the amount of $250,000 (Two Hundred Fifty Thousand Dollars). 6. Such other and further relief as may appear necessary and just. The Attorney General of Ohio, William J. Brown, is to be highly commended for the enterprise and zeal that he personally has displayed in undertaking and prosecuting proceedings involving pollution of Ohio waters. Also the members of his staff, namely: James A. Laurenson, his Chief Counsel and Assistant Attorneys-General Raymond Marvin, Richard C. Brahm, Maynard F. Thomson, Frank Josselson, Michael Tousey and Hal Cochran are entitled to the same high commendation for the ability, energy and workmanship that they have each exercised and the parts they have taken in the prosecution of matters which they feel necessary to safeguard the health and welfare of all the citizens of the State of Ohio. An action involving the same parties and generally asking the same relief was originally instituted in the Supreme Court of the United States by the Honorable Paul W. Brown now a Justice of the Supreme Court of Ohio, who was then the Attorney General of Ohio.That action is captioned State of Ohio, Plaintiff v. Wyandotte Chemicals Corporation et al., and is reported in 401 US 493, 28 L Ed 2d 256, 91 S Ct 1005. The Supreme Court of the United States overruled the motion for leave to file its complaint, but in a lengthy decision made many pronouncements which provided some guidelines for courts, states, officials and the people of the United States and Canada in dealing with conditions resulting from the depositing of poisonous substances in the Great Lakes. Subsequent to the refusal of the Supreme Court of the United States to allow leave to file the complaint, the within action was filed in the Cuyahoga County Ohio Common Pleas Court. Upon being filed it was assigned to this member of the court. A petition for removal to the United States District Court for the Northern District of Ohio was thereupon filed by Dow Canada. Upon motion by Ohio it was remanded to this court and a motion for reconsideration of the remand order was subsequently overruled by the District Court. The following pleadings and motions have been filed herein: 1. Complaint and First Amended Complaint 4. Motion to Dismiss by Dow Canada with brief and affidavits a) Plaintiff's brief in opposition to Dow Canada's motion to dismiss with various affidavits, hundreds of pages of depositions including a great quantity of exhibits. b) Appendix to plaintiff's brief in opposition to Dow Canada's motion to dismiss. c) Index to plaintiff's brief in opposition to the Dow Canada motion to dismiss. d) Reply brief of Dow Canada in support of its motion to dismiss. 5. Motion and supplementary motion for judgment on the pleadings filed by BASF a) Briefs in support of and in opposition to BASF's motions for judgment on the pleadings. The court has given careful consideration to all matters submitted by all parties. Neither BASF or Dow U.S. questioned the personal jurisdiction of this court over said defendants. Dow Canada has strenuously contended that this court has no jurisdiction over it and no authority to enter the prayed for relief as to it. It is unclear from the record and the decision of the Supreme Court of the United States in the said Ohio-Wyandotte decision as to whether that court held that it did have jurisdiction over Dow Canada. A reading of the opinion inclines this court to believe that the United States Supreme Court did not entertain any doubt about its jurisdiction over Dow Canada nor the process used to bring Dow Canada before the court.While we recognize that the Supreme Court case apparently had not reached the stage where the jurisdiction question became an issue, the following quotes from the Supreme Court Opinion are significant: In essence, the State has charged Dow Canada and Wyandotte with the commission of acts, albeit beyond Ohio's territorial boundaries, that have produced and, it is said, continue to produce disastrous effects within Ohio's own domain. While this Court, and doubtless Canadian courts, if called upon to assess the validity of any decree rendered against either Dow Canada or Wyandotte, would be alert to ascertain whether the judgment rested upon an even-handed application of justice, it is unlikely that we would totally deny Ohio's competence to act if the allegations made here are proved true. See, e.g., International Shoe Co. v. Washington, 326 US 310, 90 L Ed 95, 66 S Ct 154, 161 ALR 1057 (1945); [401 US 501] United States v. Aluminum Co. of America, 148 F2d 416 (CA2 1945); ALI, Restatement of the Foreign Relations Law of the United States 2d, § 18. And while we cannot speak for Canadian courts, we have been given no reason to believe they would be less receptive to enforcing a decree rendered by Ohio courts than one issued by this Court. However, this court does not intend to indicate by these statements that because Dow Canada was probably properly before the Supreme Court of the United States that the plaintiff is relieved of the obligation of establishing its contentions as to jurisdiction in this action. Dow Canada obviously received notice of this action in which it is named a defendant. The plaintiff contends that by such notice (certified mail-Civil Rule 4.3(B)(1)) and certain activities of Dow Canada that by the provisions of Revised Code Section 2307.381 [4 ELR 20522] and Civil Rule 4.3 this court does have such personal jurisdiction over that defendant so as to authorize its granting the relief prayed for in the First Amended Complaint. Ohio also asserted somewhat alternatively, that Dow Canada is actually — and in the eyes of the law — more than a stepchild of its parent Dow U.S. and is actually part of Dow U.S. — Dow Canada is an adjunct or instrumentality of it; so that Dow Canada may not stand behind an alleged fictitious corporate shield so as to avoid responding to the complaint of the plaintiff since this Court does have jurisdiction to enter an in personam judgment against Dow U.S. and the court may either impose judgments directly against Dow Canada or it may enter such judgment against Dow U.S. thereby requiring it to respond for the wrongful acts of Dow of Canada. It is also the contention of Ohio that it would be unconscionable and a subversion of justice under the particular facts of this action to hold that neither Ohio nor its citizens have any means of stopping a private corporation for profit from poisoning Ohio waters and damaging Ohio property merely because it is located in a foreign state, particularly where it actually is part of an American corporation over which this Court concededly does have jurisdiction; that even a foreign corporation located outside of the territorial boundaries of the United States is subject to sanctions under Ohio Long Arm laws by a court of general jurisdiction because of damages resulting from its polluting the waters that lap on the shores of both countries. The waters of the Great Lakes, particularly those that extend from Lake Huron through the Detroit River and into Lake Erie, actually constitute one body of water. The current itself flows in a southerly direction until it reaches Lake Erie and then flows in an easterly direction and ultimately to the Atlantic Ocean. It cannot be denied that any poison or pollutants that may enter an up-stream portion of the waters will affect the entire body of water. The danger resulting from the entry of the poisonous substance into the body of water is, of course, diminished in proportion to the quantity of water and its distance from the point of entry of the poison. The waters involved are those of the St. Clair River, upon which the defendant Dow of Canada is located, Lake St. Clair, the Detroit River, upon which BASF is located, and Lake Erie and its tributaries. The point of deposit of the contaminating substances is approximately 90 to 100 miles from Lake Erie. Since these waters are connected they actually constitute one body of water. It is the claim of Ohio that all of these waters and particularly Lake Erie have been affected by the acts of BASF and Dow Canada in depositing mercury and mercury compounds from its plants into the St. Clair River and the Detroit River. During Court proceedings herein there were judicial in-Court admissions by counsel representing the Defendants BASF and Dow Canada that BASF and Dow Canada have, in fact, deposited mercury and mercury compounds into the above described body of water; these together with the answers to interrogatories and the depositions on file establish conclusively that these Defendants have, in fact, caused or contributed to cause a nuisance to exist in said body or water and that they have violated the rights of others including those of Ohio and its citizens. It is, of course, the law that the Court may take judicial notice of laws of physics. Surman vs. Oil and Gas Co., 116 O.App., page 453 (Cuyahoga County Court of Appeals) "The natural laws of physics are a proper subject for judicial notice." The Court does take judicial notice of the toxic properties of mercury, its conversion by natural processes into methyl mercury and the deleterious effects of these substances on humans and on fish and other wildlife. The Motion to Dismiss by Defendant Dow Canada will first be considered. It claims that the within action should be dismissed as to it for the following reasons: 1. (a) This Court does not have jurisdiction over the person of Dow Chemical Company of Canada, Limited. This contention is hereinafter discussed and determined. (b) Venue in this Court as to the Defendant Dow Chemical Company of Canada, Limited is improper. "Any action may be venued, commenced and decided in any court in any county." Dow of Canada contends that there is no proper venue in any court in Ohio. It claims that this contention is particularly pertinent in that Dow of Canada is not and has never been present in Ohio. The conclusions reached by the Court with reference to the jurisdiction over the person also disposes of the contention as to venue. 2. This Court does not have jurisdiction over the subject matter of the within action. In support of this contention, the Defendant Dow of Canada claims that there are administrative bodies or governmental commissions which should be considered as having primary jurisdiction over the subject matter. It is not contended that the Court itself does not have jurisdiction in actions based upon nuisance. In the United States Supreme Court, Ohio-Wyandotte decision, that Court indicates that a State Court in Ohio is the proper forum: U.S. Supreme Court Reports 28 L.Ed 2, page 264 — "The Courts of Ohio, under modern principles of the scope of subject matter and in personam jurisdiction, have a claim as compelling as any that can be made out for this Court to exercise jurisdiction to adjudicate the instant controversy, and they would decide it under the same common law of nuisance upon which our determination would have to rest." 3. The amended complaint of the plaintiff fails to state a claim upon which relief can be granted. The Court finds that the amended complaint does in fact state a claim upon which relief can be granted. So did the Supreme Court of the United States, Ohio-Wyandotte case, supra: ". . . we consider that Ohio's complaint does state a cause of action . . ." Although the statement in the United States Supreme Court's complaint that acts of Defendants violated laws of the United States, Ohio and of Canada was deleted from the first amended complaint herein, it nonetheless states a cause of action or claim upon which relief can be granted. 4. The Plaintiffs have failed to join necessary parties pursuant to Rule 19 or 19.1 of the Ohio Rules of Civil Procedure. The Court finds that this contention is not well taken even though all or part of the type of relief requested herein may be granted in proper proceedings as to other persons who are not parties herein. Contrary to the claim of Dow of Canada (Item 1 above), Ohio claims that this Court does have jurisdiction to enter inpersonam judgments against Dow of Canada under the provisions of the Ohio Long Arms Statute, i.e. Revised Code Section 2703.381 et seq. and Ohio Civil Rule No. 3.The sections that Ohio contends provide jurisdiction are the following: As used in sections 2307.381 (2307.38.1) to 2307.385 (2307.38.5) inclusive, of the Revised Code, "person" includes an individual, his executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, who is nonresident of this state." "2307.382 Personal Jurisdiction. (A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's: (3) Causing tortious injury by an act or omission in this state; (4) Causing tortious injury in this state by an act or [4 ELR 20523] omission outside this if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; . . ." A statement by the United States Supreme Court in the Ohio-Wyandotte case with respect to Long Arm Statutes is worthy of consideration in this, its substituted case: "As our social system has grown more complex, the states have increasingly become immersed in a multitude of disputes with persons living outside their borders. Consider, for example, the frequency with which states and nonresidents clash over the application of state laws concerning taxes, motor vehicles, decedents' estates, business torts, government contracts and so forth. It would, indeed, be anomalous were this court to be held out as a potential principal forum for settling such controversies. The simultaneous development of "Long Arm jurisdiction" means, in most instances, that no necessity compels us to perform such a role." This should also be considered in connection with its statement at page 264 of the decision which is quoted at page 5 of this Opinion and is re-quoted at this point: "In essence, the State has charged Dow Canada and Wyandotte with the commission of acts, albeit beyond Ohio's territorial boundaries, that have produced and, it is said, continue to produce disastrous effects within Ohio's own domain. While this Court, and doubtless Canadian courts, if called upon to assess the validity of any decree rendered against either Dow Canada or Wyandotte, would be alert to ascertain whether the judgment rested upon an even-handed application of justice, it is unlikely that we would totally deny Ohio's competence to act if the allegations made here are proved true. See, e.g., International Shoe Co. v. Washington, 32 US 310, 90 L Ed 95, 66 S Ct. 154, 161 ALR 1057 (1945); (401 US 501) United States v. Aluminum Co. of America, 148 F2d 416 (CA2 1945); ALI, Restatement of the Foreign Relations Law of the United States 2d, § 18. And while we cannot speak for Canadian courts, we have been given no reason to believe they would be less receptive to enforcing a decree rendered by Ohio courts than one issued by this Court." The circumstances of the within case with reference to the application of the Long Arm Statute are unique. The action in which the Long Arm Statute is invoked usually involves an occurrence such as an automobile collision which unquestionably occurs within the confines of the forum state and there can be no dispute about the location where the tortious conduct occurred. Such an action is usually predicated upon Revised Code Section 2307.382(A)(3). Under the usual item 3 cases, there is never any problem with reference to determining whether or not a minimum contact had been had by a defendant with the forum state, i.e. Ohio. The incident itself would itself constitute not a minimum but an absolute contact with Ohio. In International Shoe Co. v. Washington, 126 US 310, the Supreme Court of the United States determined that personal jurisdiction could be procured, warranting an inpersonam judgment in the forum state against a defendant who is a resident of a foreign state or nation provided that the defendant had certain minimum contacts with the forum state which, together with the type of notice provided to the defendant (Ohio Civil Rule No. 3), were sufficient to satisfy judicial notions of fair play and substantial justice. While a review of the United States Supreme Court decisions, subsequent to the International Shoe decision, together with the legion of cases from other courts, indicates that the particular circumstances of each individual case will determine whether it and the applicable Long Arm Statute conforms to constitutional due process requirements, the Long Arm Statutes are given a liberal interpretation and application. The Supreme Court of Illinois, in its decision in Gray v. American Radiator and Standard Sanitary Corporation, 21 111.2d, page 432, 176 NE 2d, page 761 (1961) based relief not so much upon the technical words "commits a tortious act within the state" as upon the general purpose and effect of the statute which was to exert jurisdiction "over nonresident defendants to the extent permitted by the due process clause." In the Gray case, the Illinois Supreme Court upheld the jurisdiction of its state court over the Titan Valve Manufacturing Company, an Ohio corporation, wherein service had been made in Cleveland, Ohio on Titan's registered agent. Titan had manufactured an allegedly defective valve in Ohio, it was incorporated in Pennsylvania into a heater which was sold to an Illinois consumer and an explosion occurred in Illinois injuring the plaintiff. While the Ohio Statute uses the term "causing tortious injury" and the Illinois act says "commits a tortious act within the state", there can be no doubt that general purpose and effect of the Ohio Statute is to exercise jurisdiction "over nonresident defendants" to the extent permitted by the due process clause. Ohio contends that Dow of Canada, by its admitted acts of depositing poisons into the single inseparable body of water, a part of which was located in Ohio — that is, the portion of Lake Erie tht is south and west of the International Boundary Line — and causing injury in the Ohio portion of that body of water did, in fact, cause "tortious injury by an act — in this state." It is claimed that the injuries were caused directly by the contaminated water or as the result of action by fish which ingested the mercury near the point of its deposit and then carried it via a conduit (the body of water) into Ohio. In Roy v. North American Newspapers Alliance, Inc., 205 Atlantic Rep. 2d, page 844, the Supreme Court of New Hampshire held that although the defendant was a Delaware corporation having its principal place of business in New York; had no offices in New Hampshire; had no employees stationed in that state and was not registered to do business in it; that it was amenable to the state courts of New Hampshire in an action for libel wherein substituted service was had on the New Hampshire Secretary of State. The Court said at page 847: ". . . . it is difficult to understand why a State in Which libels are circulated should lack power to enforce those laws for the protection of its residents. D.Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.L.F. 533, 553-554 (1964). If a defendant, whether an individual or foreign corporation, negligently shoots a bullet from state X into state Y, or while engaged in blasting operations in state X causes a stone to be hurled into state Y causing damage, we do not seriously question the right of the injured person to seek redress in state Y and exercise judicial jurisdiction over the defendant in state Y. Restatement Second Conflict of Laws, s.84, comment d, Ill.3 (Tent. draft No. 3, 1956); Reese & Galston, Doing An Act Or Causing Consequences As Bases of Judicial Jurisdiction, 44 Iowa L.Rev. 249, 261-262 (1959). The decision in McGee v. International Life Insurance Co., 355 U.S. 220, 78 St. Ct. 199, 2 L. Ed. 2d 223, although limited by Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L.Ed 2d 1283, indicates that an insurance company which solicits through the mails is subject to the jurisdiction of the state over causes of action arising out of the policy even though it sends no agents into the state to solicit the policy and present premium notices to the insured. 'A state has a natural interest in the consequences of an act which takes place within its territory even though the act itself was done elsewhere.' Restatement (Second), Conflicts of Laws, s.84, comment d (Tent.draft No. 3, 1956). 'While no one recently seems to have stood in one state and fired a gun at a human target across the state line, currently we do find jurisdiction over nonresidents in civil damage cases based on such out-of-state activities as sending dangerous or defective products into the state and broadcasting defamatory statements received within the state.' Cleary. The Length of the Long Arm, 9 U.Pub.L.293, 300 (1960)." In Foye v. Consolidated Baling Machine Company, 229 Atlantic Rep. 2d, page 196, the Supreme Judicial Court of Maine held that where a vendor by direct shipment places a dangerous instrumentality in the hands of a citizen of another state where it causes injury, the vendor thereby commits a tortious act within that state. The Maine Court reviewed with approval the New Hampshire decision of Roy v. North American Newspaper Alliance, Inc. (above quoted) and states at page 198: "This dictum suggests to us the concept of what we may term the continuing act. For jurisdictional purposes from the time the dangerous instrumentality set in motion by the defendant enters the State and while it proceeds within the State to the point of injurious contact with the plaintiff, the defendant may properly be deemed to be 'acting' within the State." While in the Roy case, supra, it was stated — "While no one recently seems to have stood in one state and fired a gun at a human target across the state line" — we feel that the facts in this case closely approximate such a situation. In this action, Dow of Canada is charged with shooting poisons by means of a conduit (a body of water) from one state (Canada) into another state (Ohio) and causing injury in Ohio. Under the facts of this case, the defendant may properly be deemed to have been "acting" within the State of Ohio under the "continuing act" theory ar all times when injury was being inflicted as the result of its having deposited mercury into the described body of water. In WSAZ v. Lyons, (6th Circuit) 254 F2d 242 (1958), it appears as though the plaintiffs in the trial court contended that they suffered damages which were inflicted on them in Kentucky by slanderous statements transmitted by television over the air from West Virginia. In other words, the plaintiffs contended that the transmission of the libellous material on the television waves (air waves as distinguished from water waves) from West Virginia to Boyd County, Kentucky, constituted the causing of tortious injury by an act or omission in the State of Kentucky. The holding of the court was in favor of the plaintiffs. In the WSAZ case, there is considerable discussion about whether or not the transmission of the television waves into Boyd County, Kentucky — aside from the fact of whether or not tortious injury occurred under item 3 in the forum state — actually constituted the doing of buisness in the forum state, which would subject the defendant to jurisdiction under item 4. It cannot be said that the 6th Circuit decision in the WSAZ case constituted a finding or an approval of a finding that the defendant was subject to jurisdiction of the forum state by virtue of damages allegedly having been sustained in Kentucky by the transmission of the libellous material into Kentucky, but the case does tend to acknowledge a recognition by the 6th Circuit Court of Appeals of damage in the forum state via air waves while disseminating slander via air waves in Kentucky, the forum state, and that the defendant was in fact then acting within that state in accordance with the continuing act theory. Where a person introduces poisonous substances into a body of water which causes injuries in Ohio, it constitutes the causing of tortious injuries by an act or omission in the forum state, i.e., the State of Ohio, even though the substances emanated from a manufacturing plant located outside of the State of Ohio. If a defendant constructed a conduit and emptied poison right at the International Boundary Line in Lake Erie so that the substance was expelled directly onto Ohio, although no part of the conduit itself projected into Ohio, it could not be denied that such act constitutes a commission of tortious injury in Ohio and subsection 3 would apply. Nor could such situation be denied if a defendant by a long range propellant shot the substance from Canada and it landed on Ohio lands on the shores of Lake Erie. Such situations could always be described as the causing of a tortious injury by an act or omission in Ohio. A body of water of itself can and does constitute a carrying agency similar to a conduit. So here, as aptly stated in Foye, supra, Dow of Canada is deemed to have itself been acting within Ohio and therefor being present in Ohio from the time the dangerous substances entered Ohio. The validity of the Ohio Long Arm Statute has been upheld in the courts of last resort. The manner of giving notice which is provided for by Ohio law constitutes the giving of fair notice of the action and complies with constitutional due process requirements in that respect. The Court has determined that the Defendant Dow of Canada is subject to the jurisdiction of this Court under Revised Code Section 2307.382 (A)(3).Also, upon due consideration of all admissions in pleadings, in-Court admissions by counsel, answers to interrogatories and the depositions that are on file in this case, the Court has concluded that Dow of Canada is also subject to the jurisdiction of this Court under Revised Code Section 2307.382 (A)(4) in that it caused tortious injury in this state as herein above stated and that if it be held that the tortious acts or omissions did not occur in Ohio then such tortious acts or omissions did occur outside of Ohio and were caused by the said Defendant which, from the facts shown by the record, regularly does business or engages in other persistent courses of conduct in this state. The motion of Dow of Canada to dismiss for lack of jurisdiction over the person being not well taken will, therefore, be overruled. The Court does, in accordance with this memorandum find that it does have jurisdiction to enter inpersonam judgments against Dow of Canada based upon the Long Army Statute of Ohio — and that this Court has venue of this action as to said Defendant. It has also been contended that the Court has jurisdiction to enter inpersonam judgments for the relief asked herein against either Dow of Canada or Dow U.S. or both. Although it is not contended that Dow U.S. itself deposited mercury into the described waters, the claim as to right to recover against it is predicated upon the theory that Dow of Canada is but an adjunct or instrumentality of Dow U.S. and that, therefore, a judgment should be entered either directly against Dow U.S. because of its control of Dow of Canada or against Dow of Canada because service upon Dow U.S. is tantamount to serving Dow of Canada; that the Court's unquestioned right to enter an inpersonam judgment against Dow U.S. carries with it the right to either hold the parent directly liable for the acts of its stepchild or else that, by virtue of the jurisdiction of this Court over Dow U.S., it can enter such a judgment against Dow of Canada. The Court has determined that the substantial weight of authority does not support such contentions and that the corporate entity of Dow of Canada may not be pierced in such fashion. The findings of this Court with respect to such contentions are in favor of Dow of Canada and Dow U.S. MOTION AND SUPPLEMENTAL MOTION FOR JUDGMENT ON THE PLEADINGS FILED BY BASF The contentions of the defendant, BASF, in support of its motion for judgment on the pleadings are as follows: 1. The Attorney General has no authority to bring this action. The Court has determined from a consideration of all briefs and citations that not only does the Attorney General have the authority to bring the within action, that it was in all reasonable probability his duty to do so. The right of the Attorney General in these respects is fundamental and inherent in the office and the Court finds that the contentions of the defendant in this respect are not well taken. 2. Money damages may not be awarded herein. 4. It would be manifestly inequitable and unjust to issue a mandatory injunction requiring this defendant to cleanse Lake Erie of mercury. Items 2 and 4 will be considered together. Item 2 id directed to the claim of Ohio that Defendants should be held liable for general and special compensatory damages compensating for the past, present and future damages to Lake Erie, the natural environment, the fish and aquatic organisms, to the wildlife, to the vegetation therein, to the water, to the citizens and inhabitants of Ohio, the loss of inspection, testing and analysis of fish by Plaintiff in its governmental capacity and the damage to the economy of Ohio in loss of revenue to Plaintiff in the amount of $25,000,000 (Twenty-Five Million Dollars). Item 4 is directed to the prayer of the Complaint asking that a decree be entered requiring the Defendants and each of them to remove or render harmless the poisonous mercury and compounds thereof from the St. Clair River, Detroit River, Lake Erie and tributaries [4 ELR 20525] thereof. R.C. Section 1531.01 Definitions — as used in sections 1531-01 through 1531.26 inclusive, of the Revised Code: "(X) wild animals include clams or mussels, crayfish, aquatic insects, fish, frogs, turtles, wild birds, and wild quadrupends." R.C. Section 1531.02 — State Ownership of Wild Animals: "The ownership of and the title to all wild animals in this State, not legally confined or held by private ownership legally acquired, is in the state, which holds such title and in trust for the benefit of all the people." Ohio claims that fish which had ingested mercury and methyl mercury at or near the point of its deposit in either Canadian waters (by Dow of Canada), or in Michigan waters (by BASF) then migrated to the Ohio portion of Lake Erie; that the fish were injured in Canada or Michigan and Ohio was damaged as a result of such injury and it was further damaged by the mercury compounds so transported by the fish into Ohio. Ohio does own the fish in this state who are not legally confined. It does not own those outside of Ohio. Assumedly, Ohio has no ownership or rights in fish while they are in Canadian or Michigan waters. Query: What right of action, if any, does Ohio have to recover damages for fish that became ill in foreign waters and then swam into Ohio? The balance of the claim for damages is predicated upon a claim of injury to Lake Erie and its water, aquatic organisms, vegetation, as a common fishery and a place of recreation and an important source of fresh water. Plaintiff claims that such injuries had the effect of "clearly diminishing the value of Lake Erie and the fish contained therein." Recovery by way of general and special compensatory damages is asked for the past, present and future damages to Lake Erie, the natural environment, the fish and aquatic organisms, to wildlife, to the vegetation therein, to the water, to the citizens and inhabitants of Ohio, loss of inspection, testing and analysis of fish by Ohio and damage to the economy of Ohio and loss of revenue to it in the amount of Twenty-Five Million Dollars ($25,000,000). The ruling of the Court with reference to the claim for money damages is hereinafter discussed. The Court will take judicial notice of the fact that Lake Erie is polluted and that its pollution consists of a great quantity of different substances which have been deposited into it over a period of decades. These substances have been deposited by agencies of states and nations, by the cities of Detroit, Cleveland, Toledo, Sandusky, Erie, Conneaut, Ashtabula, and practically every municipality in Canada and the United States that border on Lake Erie. It has been polluted by railroads, boats, public utilities, manufacturing firms, farmers, and city and village dwellers. Probably millions of persons and thousands of corporations and entities of every nature have contributed to its condition. Mercury has not been deposited by each of these but many, other than the defendants, have deposited mercury and mercury compounds. In the Ohio-Wyandotte case, the United States Supreme Court said at page 266 when discussing Lake Erie: "Other factual complexities abound. For example, the Department of the Interior has stated that eight American companies are discharging, or have discharged, mercury into Lake Erie or its tributaries. We would, then, need to assess the business practices and relative culpability of each to frame appropriate relief as to the one now before us." Indications have been given to the Court by Ohio that expert testimony could be presented showing that approximately one-half of the 940 square miles or, 277,111,296,000 square feet that constitute Lake Erie is susceptible of being cleaned of mercury by excavation of that portion of the lake bottom, transporting it to land, cleaning it of mercury and returning the cleansed lake bottom to the point of excavation. Plaintiff contends that Defendants should be ordered to either do this, or that a money judgment be rendered including the cost thereof if not done by the Defendants. Since, as hereinafter shown, Ohio law limits responsibility of a defendant to the damage each individual causes, a mandatory injunction requiring the removal of the admittedly, indeterminable and inascertainable pollutants deposited by that defendant and without requiring the defendant to remove all pollutants of every nature found in the lake bottom, would be impossible of consummation. Any money judgment, based upon the same principle of law, would also be so speculative and uncertain as to be invalid. Such efforts to remove the lake bottom as suggested by Ohio are certainly only theoretical and obviously not practical. The efforts to return Lake Erie to a clean water status must be approached on the basis of stopping any additional pollutants from entering the waters. The action of the elements including the currents will hopefully then have the effect of attaining the desired status. Ohio asks for a mandatory order requiring defendants to clean all of the Ohio portion of Lake Erie or, in the alternative, that a money judgment be entered jointly against the defendants for the cost of doing so. Ohio's Memorandum of Law filed by the Attorney General herein under date of April 4, 1973, states what it contends are, or should be, the principles of law applicable to the relief requested: "Where damages of the nature of those alleged to have been sustained by the State of Ohio result from similar but separate and unrelated tortious acts of more one person, each such person may be held liable for the full amount of the damages resulting from such acts. Where a single indivisible injury is sustained as a result of the separate and independent tortious acts of two or more persons, each such person is liable for the full amount of the damages resulting from such acts." The Memorandum contains the following: "The Dow and Wyandotte defendants in the present case have discharged mercury into the St. Clair and Detroit Rivers, respectively, in such a manner that the mercury in comingled form has found its way into Lake Erie sediment, aquatic organism and fish. The injury done to Ohio's property, natural resources and environment is an indivisible injury not subject to apportionment among the defendants." "The Supreme Court of Ohio held (referring to the case of Price v. McCoy, 2 Ohio St.2d, page 131 — a personal injury action) that since the concurrent negligence of both defendants caused plaintiff's single indivisible injury, each was liable for the entire damage and neither could complain of the good fortune of the other who was held not liable. 2 Ohio St. 2d at 131-132, 207 N.E.2d at 242-243; accord., Clauss v. Fields, 29 Ohio App.2d 93, 278 N.E.2d 677 (Montgomery Co. 1971)." (Emphasis added). "The pollutants discharged by defendants in the instant action are chemically identical. The pollutants discharged by the Dow defendants combine into other forms, are mixed and become identical in form and effect to the pollutants discharged by the Wyandotte defendant. For the reasons which will be developed at trial, it is frequently impossible to trace pollutants found, for example, in a sediment sample, to a particular source. See First Amended Complaint, paragraphs 8-9, 11-13. If the State of Ohio were required to show the particular harm attributable to each defendant, this litigation would fail. This is the precise reason why courts in such cases apply the single indivisible injury rule. Where a wrongdoer has united his tortious conduct with the tortious conduct of others, justice requires that he not take advantage of plaintiff's liability to demonstrate the wrongdoer's particular contribution to the resulting injury. The State of Ohio has alleged and will prove that this is such a case. Counsel for defendants Dow U.S. and Dow Canada have often asserted that the nature of the injury alleged by [4 ELR 20526] the State of Ohio is such as to be practically indivisible and non-apportionable." It is not contended that there were any joint or concurrent acts by the Defendants herein. Both BASF and Dow Canada operate separate and independent manufacturing plants. BASF is located on the west shore of the Detroit River and Dow Canada is located on the east shore of the St. Clair River. They are miles apart. The sole areas involved in the within action consist of that part of Lake Erie which may best be described as west and south of the International Boundary Line and such as are included within the State of Ohio. This necessarily excludes that portion of Lake Erie Which is east and north of the International Boundry Line and so as to be located in Canada, or Michigan. It is the effect of the actions of said Defendants on those described portions of the waters of Lake Erie and the damage allegedly inflicted in said portion of Lake Erie that constitute the basis for the claims of Ohio. The point of depositing the contaminating substances is approximately 90 to 100 miles from Lake Erie. In the case of City of Mansfield v. Bristol, 78 O.S. page 270, the Court held: "When different parties discharge sewerage and filth into a stream which intermingle and cause an actionable nuisance, they are not jointly liable for damages when there is no common design or concert of action but each is liable for his proportion of the damages." Shepard's Citations indicate that the rule in the Bristol case has never been reversed. The opinion contains a very detailed review of the then reported decisions on the subject. The decision appeals to a person's sense of logic and justice. Ohio's Memorandum of Law on the subject does not mention the Bristol case, but says that a rule should be applied herein providing that where a single indivisible injury is sustained as a result of the separate and independent tortious acts of two or more persons, each such person is liable for the full amount of the resulting damages. The cases Ohio relies upon involve actions for a personal injury to an individual. Unless we consider that separate injuries to millions of individual fish and wildlife, an uncountable number of aquatic organisms and vegetation, the natural environment and the economy of Ohio constitute a single indivisible injury, the authorities cited by Ohio have no applicability herein. It is impossible to relate the injuries claimed herein to the principles of law applied in the cited cases. In the case of Schindler v. Standard Oil Co., 166 Ohio St. 391, 143 N.E.2d 133 (1957) which is the case upon which Ohio chiefly relies, the Supreme Court went to great pains to point out that the decision was based on the averments of the petition alleging that the negligence of "each and all" of the defendants caused injury to the plaintiff and that based upon such allegation there wsa no misjoinder of parties. The fact that the complained of acts of the Defendants, were separate, non-concurring and independent acts is not disputed herein. Ohio also relies on the case of Ryan v. Mackolin, 14 Ohio St.2d 213, 237 N.E.2d 377 (1968), in support of its theory that Dow of Canada and BASF should be held liable for all separate injuries that have ever been sustained by the different entities as a result of the deposit of mercury by an innumerable number of persons. The Ryan case is not an authority for any such contentions, but tends to sustain the Bristol decision: "The general rule is found in 22 American Jurisprudence 2d 30, Damages, Section 14: 'Generally speaking, and apart from the situation where a defendant is held responsible on the doctrine of respondent superior or the like, a defendant is liable only to the extent towhich his own acts have caused the injury complained of, and it follows that separate wrongs done by independent agents cannot be joined together to increase the responsibility of one of the wrongdoers, notwithstanding any difficulty there may be in determining what part of the injury or loss was the result of the acts or omissions of the defendant, and what part was the result of other causes. It has been said that tort-feasors generally will not be held jointly and severally liable where their independent, concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident.' (Emphasis supplied.) Ohio is in accord. First National Bank of Barnesville v. Western Union Telegraph Co., 30 Ohio St. 555." "We, therefore, must concur with appellants that 'each defendant should only be responsible or liable pro-rata for that part of the damages attributable to his particular factor of causation.' Accordingly, several judgments only are warranted against the independent tort-feasors, whose torts are not concurrent, and against each only to the extent and in the proportion that his default proximately contributed to the plaintiff's entire injury, the burden of proof of which should remain upon the latter." Judge Taft, in his dissent, cites two cases whose factual situations bear a close resemblance to those of the instant case, to-wit: "Stanford v. Tennessee Valley Authority (D.C. Tenn. 1955), 18 F.R.D. 152, was an action to recover for injuries to live stock, crops and land allegedly caused by the emission of fluorine gas fumes from the plants of two defendants located near plaintiff's property. In the court's opinion by Miller, District Judge, it is stated: 'An analysis of the complaint discloses that the defendants' plants are separately owned and operated and that they are located at different distances from the plaintiffs' property. Their activities are separate and distinct from each other although they are engaged in the same general type of business. There is nothing on the face of the complaint from which it could be concluded that the plaintiff's claims against the two defendants arise out of the same transaction or occurrence, or out of the same series of transactions or occurrences. The transactions are separate as to each defendant. It follows, therefore, that there is a misjoinder of defendants.' Forbes v. American Tobacco Co. (D.C. Wisc. 1965), 37 F.R.D. 530, was an action to recover damages on account of pulmonary emphysema and related heart injuries alleged to have been caused by breaches of warranties or, in the alternative negligence of American Tobacco Company with respect to its cigarette products used by plaintiff and by breaches of warranties, or, in the alternative, negligence of Hydrite Chemical Company with respect to its muriatic acid product used by plaintiff. In the opinion of Grubb, District Judge, it is stated: '. . . the right to relief does not arise out of the same transaction, occurrence, or series of transactions and occurrences. The alleged breaches of warranties or negligence of American are separate and distinct from the alleged breaches of warranties or negligence of Hydrite.' As to any common question of law or fact, it is only suggested that, as stated in paragraph two of the syllabus, 'where a tort-produced bodily injury is compounded or aggravated by a subsequent tort, resulting in a single injury, a common question of fact arises, within the purview of Section 2307.191 . . . as to the contribution of each tort-feasor to the compounded injury.' However, in making that suggestion, it is recognized that, because the two defendants here are independent and not concurrent tort-feasors, each of them can be held responsible only for that part of the damages, resulting from the second collision, that was caused by his independent negligence. See also paragraph three of syllabus and the majority opinion. This represents a recognition that there is no common question of fact in the case." The law with reference to joinder is now contained in Civil Rule 20(A). This, however, does not change the basic law with reference to the liability of different persons. The rule itself is, of course, a procedural rule and Rule 20(b) emphasizes the authority of the Court to order separate trials. In the within action there are no joint or concurring acts of the defendants. Each of the defendants is an independent and not a concurrent tort-feasor. In Ryan, it was held that each defendant can be held responsible only for that part of the damages resulting from his individual acts. In coming to the Court's conclusions with reference to said items 2 and 4 consideration has been given to the rules of law applicable to speculative damages, impossibility of performance of an order in equity, and the prayer of the complaint asking for punitive damages in addition to the other matters discussed herein. 16 Ohio Juris.2d, paragraph 15, page 32: Certain or speculative damages. "Not only must the injury complained of, and for which damages are sought, be the direct, proximate and probable result of a wrong, and not a remote consequence, but the injuries as to damages resulting must be shown with certainty and not be left to speculation or conjecture, whether the action is in contract or in tort; damages which are uncertain, speculative, or conjectural cannot be now recovered. It is now generally held, however, that the uncertainty which presents a recovery is uncertainty as to the fact of the damages and not as to the amount of damage, and where it is that damage has certainly resulted, mere uncertainty as to the amount will not preclude the right of recovery." "Uncertainty as to the fact of damages", as applicable herein, necessarily pertains to the damages allocatable to a specific defendant. Ohio's Memorandum of Law dated April 4, 1973 concedes that the establishment of the fact of the damages attributable to a specific defendant is not uncertain but it is impossible: "If the State of Ohio were required to show the particular harm attributable to each defendant this litigation would fail." See 22 Am. Jur. 2d Damages, 25: "The Rule that uncertainty as to the amount of the damage will not prevent a recovery does not mean that there need be no proof of the amounts of the damage. The damages must be susceptible of ascertainment in some manner other than by mere speculation, conjecture or surmise and by a reference to some fairly definite standard, such as the market value established, experience, or direct inference from known circumstances." 16 Ohio Juris. 2d, page 177 — on page 155 — Actual Damages as Prerequisite: "Before punitive or exemplary damages may be awarded, actual damages must have been found and assessed. It is said that a plaintiff has no right to maintain an action merely for the purpose of inflicting punishment upon another. Many cases applying the rule requiring that actual damages be found as a predicate for the allowance of exemplary damages holds that an award of nominal damages will not serve as a basis for the imposition of exemplary or punitive damages, but such is not the case in Ohio, where it has been held that a verdict for punitive damages requires either nominal or compensatory damages as a predicate." The is a strong temptation for a trial judge to fashion an order requiring somebody to clean up Lake Erie or, in lieu thereof, to require those who contributed to its polluted state to respond in damages therefor. The Court can perceive of no differences in the law which should require the clean up order itself or the recovery of money damages in lieu thereof. Since the State of Ohio is the Plaintiff herein, the four year statute of limitations undoubtedly does not apply. However, all parties must be cognizant of Canon 20 of the Canons of Judicial Ethics adopted by the Supreme Court of the State of Ohio on January 27, 1954 recorded in 176 Ohio State 1xxvii. Even though the Canons of Judicial Ethics have been supplemented by the Code of Judicial Conduct, as of December 20, 1973, the principles contained in said Canon 20 is still applicable to a trial court. Canon 20 reads as follows: "20. Influence of Decisions Upon the Development of the Law. A judge should be mindful that his duty is the application of general law to particular instances, that ours is a government of law and not of men, and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him. Such action may become a precedent unsettling accepted principles and may have detrimental consequences beyond the immediate controversy. He should administer his office with a due regard to the integrity of the system of the law itself, remembering that he is not a depositary or arbitrary power, but a judge under the sanction of the law." In our study of all phases of applicable law, we have become particularly aware of one of the reasons why Ohio endeavored to have the Supreme Court of the United States decide this action. Regardless of any precedent which would be binding upon any other Court, the Supreme Court could forge new rules of law applicable to the facts herein. The Court finds that, although this Court has jurisdiction of the parties and the subject matter of both BASF and Dow Canada, judgment requested by Ohio herein under paragraphs numbered 2, 3 and 4 of the prayer of the First Amended Complaint are not available under the law. Such a judgment or judgments would require the Defendants herein to jointly answer for the separate, individual, independent, noncurrent, wrongful acts of millions of persons committed completely independent of each other and would require BASF and Dow Canada to each assume the responsibility not only of each other but of every nation, state, municipality, corporation, entity and individual that has contributed to the polluted state of Lake Erie without being restricted to damages caused solely by it; that any judgment for money damages would be entirely speculative and uncertain as to the fact of damages committed by a defendant herein; that because of the inability to assess compensatory damages no punitive damages could be assessed; that the mandatory injunction requested herein would constitute an order of impossible performance not only in its over-all workings, but because the Ohio law requires that a person respond only for such injuries as was caused by it. 29 Ohio Juris. 2d, page 193, paragraph 25: "Impossibility of Performance of Enforcement. Under the maximum that equity will not do a vain thing relief will be denied if it is impracticable to frame or enforce a decree which will cover the situation. Injunctions have been denied on the ground that courts of equity cannot grant anything which a party cannot perform." The Attorney General asserts that facts can be testified to upon which the requested judgments discussed under said items 2 and 4 can be predicated. In Kissinger v. Yellow Pine Building Co., 21 Ohio App. 165, the Court said at page 167: "Moreover if the court has the power to grant the relief prayed for, we are unable to see how the order could be enforced." The following statement of law is contained in the base of Black v. City of Berea, 137 Ohio State, page 611: "Where facts testified to are opposed to natural laws and common experience, so that it is inconceivable that any such thing could have occurred, the courts will refuse to believe it, on the ground that they will take judicial notice of its incredibility." 3. The court should not issue an injunction against acts taking place outside of the State of Ohio. This contention of the defendant is not well taken. There is no question about the jurisdiction of this court to render an in personam judgment as to the defendants, BASF and Dow of Canada. Each state is bound to accord full faith and credit to the judgments of the Courts of another state, where, as here, there is no genuine issue as to the jurisdiction of the Court over either the subject matter or the parties and an in personam judgment either by way of a money judgment or injunction may properly be issued herein and enforced by the Courts of Michigan and Canada. Counsel for the defendants BASF-Wyandotte Corporation and Dow Chemical of Canada, Limited, have judicially admitted in open court that each of said defendants deposited mercury, as alleged in the Plaintiff's Amended Complaint, into the waters involved. Since, as previously stated, the waters involved include a single body of water consisting of the St. Clair River, Lake St. Clair, the Detroit River, Lake Erie and the tributaries of each, the depositing of such substances constitutes an indivisible damaging of such waters — a nuisance — and this must be stopped. When the fact of introduction of poisonous substances into a body of fresh water that constitutes the water supply for millions of persons has been proved in Court, then such action should be stopped by the Court. There can be no better manner of establishing such fact than by the judicial in-Court admissions of a defendant. To now assert that facts could still be established as to why the enjoining of such wrongful acts is not warranted would constitute a falacious assertion and an affront to both the law and the Court. Nor would the Court give any consideratioh to claims that fish or people are being only poisoned a little bit. The Court is now required to make certain judgment entries. The proceedings which brought this case to this posture were initiated by the filing by Dow Canada of its motion to dismiss and by the filing by BASF of a motion for judgment on the pleadings. Such motions are provided for by the Ohio Civil Rules. The basis for the application and construction of these rules is set out in Rule 1(A): "These rules prescribe the procedure to be followed in all courts of the state in the exercise of civil jurisdiction at law or in equity." Staff Note, Rule 1(B) Construction. "These rules shall be construed and applied so as to facilitate 'the expeditious administration of justice' hence emphasis is placed upon liberal construction rather than upon technical interpretation." "When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and, such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided for in Rule 56." The motion before the Court has been so treated. Each of the said motions is a substitute for the demurrer which has been abolished. Civil Rule 7(C)-Demurrer Abolished- "Demurrer — shall not be used." "Rule 7(C) abolishes the demurrer but the demurrer is substituted for by the motion to dismiss discussed under Rule 12." The demurrer for which Rules 12 and 56 have been substituted, historically searched the record and a court was warranted in entering such final judgment as was indicated by the record. A judgment was not limited to that requested by the party filing the demurrer but could be in favor of the opposite party. The Court has determined that such procedure is proper in the instant case and that such an entry by the Court is in accordance with the law. This is not the first time where motions to dismiss were initiated by one party that the Court, upon consideration of the admitted facts of record, determined that affirmative relief should be granted favorable to the non-moving party. It would constitute a mockery of the law if a defendant in court proceedings admitted facts warranting a judgment against him and the judgment could not be forthwith entered; that instead, the Court and all parties were subsequently subjected to unnecessary and cumbersome court proceedings. The test as to whether an affirmative judgment should be granted is whether, — based upon the record, — there is any genuine issue as to any material facts and that reasonable minds can come to but one conclusion. There is no dispute about the fact that the Defendants BASF and Dow of Canada have deposited deleterious substances into the described body of water and that this should be stopped. The fact of such depositing has been conclusively established by in-Court judicial admissions by these parties. These are in addition to the statements and admissions contained in the pleadings, answers to interrogatories and depositions filed herein and as applicable to these defendants. Contentions as to mootness and the existence of orders of non-Ohio tribunals do not constitute any valid reasons for not entering the judgment in favor of Ohio and against the defendants that is indicated herein. So long as a defendant continues the production of items whose manufacture requires the use of mercury, the possibility or temptation to deposit such substances in the described watersexists and must be enjoined. This injunction is obviously necessary for the protection of the health and safety of millions of persons. Earlier in this memorandum, the reluctance of the Federal Courts, including the Supreme Court of the United States, to accept the obligation of providing the required protection has been discussed. Ohio has found it necessary to invoke the protection of Ohio courts, regardless of the action of any non-Ohio tribunals — and such protection will be provided. Predicated upon these facts, as now sufficiently appearing of record, the Court has determined that the following proposition in law is applicable: "Not only does the court have authority but in a particular case it may be its duty, to render judgment on motion of a party to the cause. Indeed, in some cases, the court must act on its own motion and render such judgment as, upon the whole record, the law requires, without regard to any request or want of request therefor." This is consistent with the modern theories for the administration of justice as exemplified in the above quoted Ohio Civil Rule 1(B). This Court is aware that the ultimate resolution of the issues presented in the within controversy, having consideration for the appellate rights of all parties, could be years in the future. Therefore, the following quotation from the frequently mentioned Ohio-Wyandotte United States Supreme Court case is called to the attention of the parties: "Justice Clarke's closing plea in New York v. New Jersey, id., at 313, 65 L Ed 945, strikingly illustrates the sense of futility that has accompanied this Court's attempts to treat with the complex technical and political matters that inhere in all disputes of the kind at hand: "We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is one more likely to be wisely solved by cooperative [4 ELR 20529] study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.'" The Court is fully aware that all possible pleadings of every kind that could possibly ever be filed in the within action have not been filed. However, the following basic facts have been established: 1. Ohio, under the Ohio Long Arm Statute, does have personal jurisdiction over the Defendants BASF and Dow of Canada. Nelson v. Miller, 11 Ill. 2d 378, 14e N.E.2d 673: "A basic principle of reasonableness is the foundation of any exercise of jurisdiction by a state." As was held in the Ray case that a state has an interest in protecting its citizens against defamation so, in this case, the state has an interest in protecting its citizens against the hazards of pollution poisoning. 2. Both the Defendants BASF and Dow of Canada have deposited mercury and mercury compounds into the body of fresh water that includes waters of Lake Erie, in the State of Ohio, and so as to constitute a nuisance. 3. The acts charged to Defendants herein are not a part of any common design or concert of action; are not joint or concurrent, but constitute separate acts and the result of such acts are indivisible; that actions of many others have been contributing to the polluted state of Lake Erie waters in Ohio and the damages resulting from the individual acts of the Defendants and other polluters are impossible of identification, proportionment or ascertainment. 4. It would not be possible for any Court or any other tribunal to fashion a valid decree requiring a Defendant or either of them to separately remove or render harmless the mercury or mercury compound deposited by it in the subject waters, or to even separately ascertain or identify such substances, not to require the Defendants jointly to remove either all mercury, separately from other pollutants, or to remove all pollutants from the Ohio portion of Lake Erie that was deposited by either or both of the said Defendants herein or by any other person or persons who contributed to the pollution of Lake Erie since civilized persons took over this natural body of fresh water. 5. It is impossible for any Court or jury to determine any general damages compensating Ohio for the past, present and future damages to Lake Erie, the natural environment, the fish and aquatic organisms, the wildlife, to the vegetation therein, to the water and to the citizens and inhabitants of Ohio, the loss of inspection, testing and analysis of fish by Plaintiff in its governmental capacity and the damage to the economy of Ohio and loss of revenue to it for which the Defendants are liable or to impose punitive damages on the Defendants. The Court, after exhaustive researching of the applicable law in connection with the unique features of the within litigation has determined that final judgment should now be entered in this action. It must be apparent from this memorandum that the Court's findings with reference to several of the contentions of the Defendants BASF and Dow of Canada are in accordance with the contentions of said parties. It must also be apparent that the findings of this Court with respect to other contentions are in favor of the Plaintiff. The Court has concluded that final judgment should now be entered herein in favor of the Plaintiff and against the Defendants BASF and Dow of Canada in accordance with paragraphs numbered 1 and 5 of the prayer of the First Amended Complaint and in favor of the Defendants BASF and Dow of Canada as to paragraphs 2, 3, and 4 thereof. A final judgment entry is, therefore, being signed and filed concurrently herewith enjoining the Defendants BASF and Dow of Canada from discharging or continuing to discharge, place or dispose of mercury or compounds thereof into the St. Clair River, Detroit River, Lake Erie or tributaties thereto; that in all other respects, except as to the assessment of costs and expenses, the request for relief and judgment by Ohio is being denied; that, however, judgment for the costs hereof should be rendered against the Defendants BASF and Dow of Canada, including the amount of all reasonable attorneys fees and expenses of Ohio in preparing and prosecuting all proceedings against BASF and Dow of Canada, including the Supreme Court of the United States case and the within action, that the assessment and determination of the amount thereof so recoverable by Ohio will be made in the within action upon the filing of a detailed application therefor. The Court had previously in this memorandum commented on the activities of the Attorney General and his staff in connection with the prosecution of this action. Counsel for the Defendants, namely, Mr. Harley J. McNeal and Mr. Arne B. Carlson, as counsel for Dow of Canada and Dow U.S.; Mr. Smith Warder of Arter & Hadden, Mr. John H. Moelmann of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Mr. Thomas J. Weithers, Mr. Milton F. Mallender and J. Donald McLeod, as counsel for the Defendant BASF-Wyandotte, have ably represented their clients in all phases of this controversy. The presentations of all counsel have been in a scholarly and lawyer-like fashion and have been most helpful to the Court. The commendations of this Court, therefore, go to all counsel who paricipated in this action. A final judgment entry in accordance with this memorandum is, therefore, being signed and filed concurrently with the signing and filing of this memorandum and a copy of which is hereby attached hereto and marked Exhibit "A". A copy of the within Memorandum of Opinion and Judgment Entry is being forwarded this date to all counsel of record. 4 ELR 20520 | Environmental Law Reporter | copyright © 1974 | All rights reserved |