599 F.2d 151 (7th Cir. 1979), 77-2246, People of State of Ill. v. City of Milwaukee

Docket Nº:77-2246.
Citation:599 F.2d 151
Party Name:PEOPLE OF the STATE OF ILLINOIS, Plaintiff-Appellee, and People of the State of Michigan, Intervening Plaintiff-Appellee, v. CITY OF MILWAUKEE, the Sewerage Commission of the City of Milwaukee, and the Metropolitan Sewerage Commission of the County of Milwaukee, Defendant- Appellants.
Case Date:April 26, 1979
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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599 F.2d 151 (7th Cir. 1979)

PEOPLE OF the STATE OF ILLINOIS, Plaintiff-Appellee,

and

People of the State of Michigan, Intervening Plaintiff-Appellee,

v.

CITY OF MILWAUKEE, the Sewerage Commission of the City of

Milwaukee, and the Metropolitan Sewerage

Commission of the County of Milwaukee,

Defendant- Appellants.

No. 77-2246.

United States Court of Appeals, Seventh Circuit

April 26, 1979

Argued May 24, 1978.

Submitted After Supplemental Briefing Oct. 12, 1978.

Rehearing and Rehearing En Banc Denied June 14, 1979.

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Elwin J. Zarwell, Milwaukee, Wis., for defendants-appellants.

Thomas J. Emery, Asst. Atty. Gen., Lansing, Mich., Joseph V. Karaganis, Chicago, Ill., William J. Scott, Atty. Gen., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and HARPER, Senior District Judge. [*]

TONE, Circuit Judge.

The State of Illinois filed this action under the federal common law of nuisance to enjoin the City of Milwaukee and the Sewerage Commissions of the City and County of Milwaukee 1 from discharging raw sewage and inadequately treated sewage into Lake Michigan. 2 Illinois alleged and undertook

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to prove at trial that the sewage contains pathogens, disease-causing viruses and bacteria, which are transported by currents into parts of the lake that lie within Illinois, where they present a substantial threat to the health of Illinois residents, and also that the sewage contains nutrients that accelerate eutrophication of the lake. The State of Michigan intervened as a plaintiff on the eutrophication issue only. After a four month trial, the district court found that plaintiffs had proved their allegations and entered a judgment requiring defendants to cease discharging raw sewage and to treat sewage before discharging it in compliance with effluent limitations more stringent than the minimum limitations imposed pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 1251, Et seq. Defendants appeal, raising the issues of (1) whether the relief available in an action based on the federal common law of nuisance is greater than that available under the federal statute, and (2) whether the evidence in this case is sufficient to support the relief granted. As to the first question, we hold that the statute does not limit the relief that may be granted; as to the second, we hold that the evidence is sufficient to support only some of the relief granted and therefore affirm in part and reverse in part.

This litigation began with Illinois' petition for leave to file an original action in the Supreme Court of the United States, which was denied, Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Illinois then filed suit in the United States District Court for the Northern District of Illinois. Defendants' motions to dismiss for lack of In personam jurisdiction and improper venue were denied, Illinois v. Milwaukee, 4 E.R.C. 1849 (N.D.Ill.1972); later, defendants' motions to dismiss for failure to state a claim on which relief could be granted were also denied, Illinois v. Milwaukee, 366 F.Supp. 298 (N.D.Ill.1973).

In due course the case proceeded to trial, at the conclusion of which the judge orally and extemporaneously announced his findings of fact and conclusions of law. The facts and the relief granted will be described later, as they become pertinent to the issues discussed.

Defendant-appellants' position is supported by the briefs of three Amici curiae : the State of Wisconsin, the National League of Cities, and the United States Conference of Mayors. In addition, the United States has filed a brief Amicus curiae in which it takes no position on the merits but supports the arguments of Illinois and Michigan that the federal common law of nuisance is not preempted or limited by federal legislation.

After oral argument this court ordered supplemental briefing addressed to (1) the elements required to be proved to establish a claim for a common law nuisance, (2) identification of particularized findings of the district court considered material to those elements and record references to the evidence supporting those findings, and (3) identification of evidence in the record supporting the reasonableness and necessity of the relief granted by the trial court. The parties filed extensive supplemental briefs, and each side subsequently filed a reply to the other's supplemental brief, as a consequence of which submission of the case was delayed until October 1978.

I.

Objections to the Forum

Defendants raise three arguments that may be broadly characterized as objections to the forum. First, defendants contend that they have committed no "tortious act within" the State of Illinois as that phrase is used in the Illinois "long-arm" statute, § 17 of the Illinois Civil Practice Act, Ill.Rev.Stat. ch. 110, § 17 (1977), and therefore service of process was ineffective and the United States District Court sitting in Illinois could not exercise personal jurisdiction over them. See Rule 4(e), Federal Rules of Civil Procedure (Fed.R.Civ.P.). Second, defendants contend that their contacts with Illinois are insufficient to meet the minimum required by International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90

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L.Ed. 95 (1945). Third, defendants contend that even if the court had personal jurisdiction, venue was improper. Judge Bauer, then a district judge, rejected these contentions in denying defendants pretrial motions to dismiss in Illinois v. Milwaukee, supra, 4 E.R.C. at 1850, and we do likewise.

For purposes of § 17 "a tort is committed in the place where the injury occurs." McBreen v. Beech Aircraft Corp., 543 F.2d 26, 28 (7th Cir. 1976). It seems beyond dispute that injury to the plaintiff in this case occurred in Illinois. Cf. Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 500, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971).

As to the second contention, the critical issue is whether it is fair and reasonable to require the defendants to defend in Illinois. See Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Telco Leasing, Inc. v. Marshall County Hospital, 586 F.2d 49 (7th Cir. 1978). 3 Each year defendants dump into Lake Michigan millions of gallons of pathogen-containing sewage, which the district court found is sometimes carried into Illinois waters and presents a substantial threat of harm to Illinois residents. Under such circumstances, we do not think it unfair or unreasonable to require the defendants to defend their conduct in a federal forum located within the State of Illinois. See Ohio v. Wyandotte Chemicals Corp., supra, 401 U.S. at 500, 91 S.Ct. 1005.

Defendants argue that venue was improper for three different reasons: (1) the venue provision of the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816, requires that the suit be filed in the district where the source is located, (2) all "nuisance" actions are "local" and therefore must be filed in the district where the source is located, and (3) all actions against a municipal corporation are " local" and therefore must be filed in the district where the municipal corporation is located. The first argument is quickly disposed of, for the venue provision of the statute is by its terms inapplicable. That provision is relevant only to "action(s) respecting a violation . . . of an effluent standard or limitation . . . brought under (§ 505) . . . ." § 505(c)(1). Here, plaintiff's action is based on the federal common law of nuisance. Therefore the relevant venue provision is 28 U.S.C. § 1391(b), which permits suit in either the "judicial district where all defendants reside, or in which the claim arose . . . ." Illinois v. Milwaukee, supra, 406 U.S. at 108 n.10, 92 S.Ct. at 1395 n.10.

Whatever may be the significance of state law in determining whether an action is "transitory" or "local" in other contexts, 4 we agree with the district court, Illinois v. Milwaukee, supra, 4 E.R.C. at 1850, that the language in the Supreme Court's opinion in Illinois v. Milwaukee, supra, 406 U.S. at 108 n.10, 92 S.Ct. 1385, indicates that an action against a municipal corporation and based on the federal common law of nuisance may be filed, pursuant to 28 U.S.C. § 1391(b), in either the district where all the defendants reside or the district where the claim arose, without regard to any otherwise applicable state venue statutes or common law rules. In this case, the claim arose in the Northern District of

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Illinois, where the injury was suffered, and therefore venue was proper. 5

II.

Effect of Federal Statutes on Federal Common Law of Nuisance

In Illinois v. Milwaukee, supra, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712, the Court denied Illinois' petition for leave to file an original action under 28 U.S.C. § 1251(a)(1) 6 on the ground that "States," as used in that provision, does not include political subdivisions. Id. at 98, 92 S.Ct. 1385. The Court also declined to exercise its jurisdiction under 28 U.S.C. § 1251(b) (3), 7 since the issues raised in the complaint were governed by federal common law, and therefore an appropriate district court would have jurisdiction of the case under 28 U.S.C. § 1331(a). 8 After reviewing the provisions of the Federal Water Pollution Control Act, 62 Stat. 1155, 9 and other federal legislation regulating pollution of interstate waters, the Court held that federal common law had not been preempted, but noted "that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance." Id. at 107, 92 S.Ct. at 1395...

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