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UNITED STATES v. LINDSAY

April 13, 1973

UNITED STATES of America, Plaintiff,
v.
John V. LINDSAY, as Mayor of the City of New York, et al., Defendants


Travia, District Judge.


The opinion of the court was delivered by: TRAVIA

DECISION AND ORDER

Travia, District Judge.

 The genesis of this now consolidated lawsuit can be traced to three (3) separate actions instituted by the United States on July 18, 1972. Originally, the three (3) suits were filed in separate districts, viz., Southern District of New York; Eastern District of New York; the District of New Jersey. The scope and content of all three (3) complaints were identical except insofar as the named corporate defendants may have differed. *fn1" In all three (3) actions, both municipal defendants (primary) and private corporate defendants were named. *fn2" Because of the obvious similarity of these "separate suits", an order to consolidate the actions in the Eastern District of New York was signed, on consent of all parties, on December 11, 1972.

 For the purposes of the present decision, this court does not intend to rule in toto on the many legal issues attendant to a case of this nature. Nor does the court purport to establish all the rights and liabilities of all parties in this action. Rather, at this time, the court will only address itself to the two (2) motions presently pending. The first motion the court is concerned with herein was made by the defendants, The City of New York, its Mayor, John V. Lindsay, its Administrator of the Department of Environmental Protection, Jerome Kretchmer, and its Commissioner of the Department of Water Resources, Martin Lang. *fn3" This motion was filed on October 13, 1972 and requested, inter alia, the court to dismiss this action pursuant to Rule 12(b) of the F.R. of Civ. P. or, that in the alternative, the court refer the case to the Environmental Protection Agency of the United States under the doctrine of primary jurisdiction.

 The second motion with which the court is concerned was made by the plaintiff, United States Government, by way of an Order to Show Cause, filed herein on December 13, 1972. By this motion, the plaintiff seeks, pursuant to Rule 56 of the F.R. of C.P., summary judgment in favor of the Government and against The City of New York and its named municipal officials. *fn4"

 THE ALLEGATIONS

 Before considering the applicable law on the subject, a brief summary of the allegations in the complaint and the respective motions will be necessary to isolate and crystalize the specific legal issues involved.

 Although the complaint and its numerous allegations are extensively detailed, the plaintiff's suit, in essence, is intended to prevent all the defendants, (municipal and corporate), from continuing to deposit industrial pollutants into the navigable water of the United States. *fn5" The plaintiff employs basically two legal theories in support of its complaint. First, the complaint alleges that all the defendants are violating certain sections of the Rivers and Harbors Appropriation Act of 1899 [Title 33 U.S.C. § 401 et seq.; 30 Stat. 1151] by discharging industrial pollutants primarily (though not only) via the municipal sewer system into the navigable water of the United States. More specifically, the complaint charges that the defendants' activities are in violation of Title 33 U.S.C. § 407 [The Refuse Act], Title 33 U.S.C. § 411 and Title 33 U.S.C. § 441 [The New York Harbor Act]. *fn6" The second theory asserted by the plaintiff is that the municipal defendant and its officers have created a public nuisance under the federal common law. *fn7"

 With respect to the relief requested in the complaint, suffice it to say that the Government seeks to enjoin and restrain all the defendants from any future activities which would continue the discharge or deposit of industrial pollutants into the navigable water of the United States in violation of the federal common or statutory law. *fn8"

 This action is properly before this court since the Federal Water Pollution Control Act of 1972, by its very terms saves actions, such as the action now before the court, commenced prior to the date of its enactment. The court is, however, compelled by forthrightness and candor to refer to a question posed by it during the oral argument of these motions and the reason for such question. *fn9" In a statement issued in November, 1972, the United States Attorney, Southern District of New York, quite understandably, stated among other things: "Almost without warning the rug was pulled out from under this entire enforcement effort." He further stated: "Congress enacted amendments to the Federal Water Pollution Control Act, just before it adjourned last month, effectively repealing The Refuse Act of 1899 as it applies to ongoing industrial discharges." He continued, stating: "That simple prohibition against harmful discharges was superseded by new, complex administrative procedures as part of a generally commendable, comprehensive national abatement program." Congress has for many years been working and holding hearings on the problems of water pollution which culminated in the enactment of the 1972 Federal Water Pollution Control Act. The very able United States Attorney, at the time of the commencement of this action, was aware of the action by Congress and that the proposed new law would bring within its provisions, by specific reference, municipal sewer systems. This knowledge must have prompted the early start of this action under the provisions of The Refuse Act of 1899, which contains a provision that exempts refuse "flowing from streets and sewers . . .", forcing this court's ruling on whether the exemption applies in the case at bar to municipal sewers.

 THE MOTIONS AT BAR

 The court will now turn to the aforementioned motions. The City of New York's motion to dismiss the complaint is made solely on the ground that the particular statutes alleged to have been violated do not apply to municipal sewer systems. In fact, the City argues that the clear language of the statutes specifically exempts all sewage "flowing from streets and sewers and passing therefrom in a liquid state . . . ." *fn10" As for the plaintiff's "common law" theory, the defendant City argues that "federal common law may be fashioned only 'where no applicable federal statute exists.'" *fn11" Thus, the City argues that the Federal Water Pollution Control Act, and its several amending acts, show a clear congressional intent to limit the Government's common law remedies to situations not covered by the statutes. *fn12" Finally, the City argues that because of this suit's unique complexity, and because of the administrative and other statutory remedies available to the Government, this court should employ the doctrine of primary jurisdiction and refer the case to the Environmental Protection Agency of the United States (hereinafter the E.P.A.). *fn13"

 As for the second motion now pending before this court, it is considerably less complex and involved. The plaintiff has simply requested that the court grant summary judgment against the defendants because they are clearly acting in violation of the specified federal statutes, viz., The Refuse Act (Title 33 U.S.C. Sec. 407) and The New York Harbor Act (Title 33 U.S.C. Sec. 441).

 Thus, after a consolidated reading of both motions, the issues now pending before this court may be stated as follows:

 
1. Do the "exception clauses" of The Refuse Act (Title 33 U.S.C. § 407) and The New York Harbor Act (Title 33 U.S.C. § 441) exempt municipal sewer systems from prosecution under these sections of the Rivers and Harbors Appropriation Act?
 
2. May the Government sue a municipal defendant for alleged acts of polluting under the theory of common law nuisance notwithstanding the fact that there is existing a federal statutory ...

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