Ouellette v. International Paper Co.

• Decision Date: 05 February 1985
• Docket Number: Civ. A. No. 78-163.
• Citation: 602 F. Supp. 264
• Court: U.S. District Court — District of Vermont
• Parties: Harmel OUELLETTE and Lila Ouellette, Clifton Browne and Edla Browne, Aldee Plouffe and Shirley Plouffe, individually, on behalf of themselves, and on behalf of all similarly situated plaintiffs, and H. Vaughn Griffin, Sr., Ardath Griffin, Alan Thorndike, Ellen Thorndike, Wesley C. Larrabee, Virginia Larrabee, F. Alfred Patterson, Jr., and Lois T. Patterson, Plaintiff-Intervenors, v. INTERNATIONAL PAPER COMPANY.

602 F. Supp. 264

Harmel OUELLETTE and Lila Ouellette, Clifton Browne and Edla Browne, Aldee Plouffe and Shirley Plouffe, individually, on behalf of themselves, and on behalf of all similarly situated plaintiffs and H. Vaughn Griffin, Sr., Ardath Griffin, Alan Thorndike, Ellen Thorndike, Wesley C. Larrabee, Virginia Larrabee, F. Alfred Patterson, Jr., and Lois T. Patterson, Plaintiff-Intervenors, v. INTERNATIONAL PAPER COMPANY.

Civ. A. No. 78-163.

United States District Court, D. Vermont.

February 5, 1985.

Peter Langrock, and Atty. Susan Eaton, Langrock, Sperry, Parker & Wool, Middlebury, Vt., for plaintiffs.

John Chase, Asst. Atty. Gen., State of Ver., Montpelier, Vt., for plaintiff Class Member, State of Vermont.

James Benkard, and Atty. Jamie Stern, Davis, Polk & Wardwell, New York City, and Austin Hart, Dinse, Erdmann & Clapp, Burlington, Vt., for defendant, International Paper Co.

COFFRIN, Chief Judge.

Having dealt with the defendant's objection to class certification in two previous opinions,¹ we are now presented with defendant's motion to dismiss plaintiffs' cause of action concerning water pollution pursuant to Rules 12(c) and 56(b) of the Federal Rules of Civil Procedure. Although defendant's motion was filed on June 22, 1981, the parties agreed (upon suggestion by the court) to await the Seventh Circuit's decision in the litigation brought by the State of Illinois and an Illinois resident against cities in Wisconsin and Indiana for pollution of Lake Michigan. That decision has now been rendered, Illinois v. City of Milwaukee, 731 F.2d 403 (7th Cir.1984) (hereafter, "Milwaukee 7th Cir."), cert. denied sub nom. Scott v. City of Hammond, ___ U.S. ___, 105 S.Ct. 979, 83 L.Ed.2d 981 (1985), and, as anticipated, has illuminated many of the important issues raised by defendant's motion. Nevertheless, we depart somewhat from the conclusions drawn by the Seventh Circuit and, for the reasons below, deny defendant's motion to dismiss.

Background

As certified in our opinion of October 29, 1982, plaintiff class consists of the State of Vermont as well as of various Vermont residents owning property in Vermont on or near the "South Lake" area of Lake Champlain. Defendant, a New York corporation, operates a paper mill near Ticonderoga, New York, on the shore roughly opposite plaintiffs' property. In their complaint, plaintiffs allege two "Causes of Action" within which they incorporate numerous counts. The "First Cause of Action," which defendant now seeks to dismiss, contains plaintiffs' various claims and theories related to the alleged pollution of Lake Champlain by defendant's Ticonderoga paper mill. The "Second Cause of Action," which relates to plaintiffs' claims for air pollution, is not at issue here.

Plaintiffs claim that discharges from defendant's paper mill have fouled the waters around plaintiffs' properties — which are used primarily for residential purposes but also for farming and some businesses such as marinas — interfering with the use and enjoyment of the property and, consequently, diminishing its value. Count I alleges that discharges from defendant's mill into the waters of Lake Champlain constitute "a continuing nuisance;" Count II alleges that defendant has violated its National Pollutant Discharge Elimination System (NPDES) permit by discharging pollutants into Lake Champlain in excess of the amounts specified in the permit; Count III alleges that defendant's discharges constitute an unreasonable riparian use; and Count IV alleges that defendant's discharges were negligent. Plaintiffs seek money damages and an injunction ordering defendant to relocate its water intake system closer to the source of its waste discharge system.

Defendant responds (1) that its Ticonderoga paper mill has been operating pursuant to and in compliance with an NPDES permit, (2) that federal rather than state law controls disputes involving interstate water pollution, and (3) that Congress, in passing the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (FWPCA), occupied the field of water pollution abatement, thereby barring any claim brought under federal common law for interstate water pollution. Relying on Milwaukee 7th Cir., supra, defendant claims that if Congress intended to allow any state common law action for abatement of pollution of interstate waters, it also intended that such a suit must be brought in the courts and under the laws of the state in which the discharge occurred. Defendant alternatively asserts that plaintiffs' rights as riparian owners have been resolved in prior proceedings. Finally, defendant alleges that even if plaintiffs were entitled to bring a state common law action grounded in nuisance, plaintiffs' failure to allege an injury different in nature from that suffered by the public in general deprives them of a cause of action for nuisance.

DISCUSSION

I. State Common Law and Interstate Water Pollution Disputes

A. Illinois v. City of Milwaukee

Because the issues in the case are similar to those which have arisen during the course of attempts by Illinois to control pollution of Lake Michigan emanating from various cities located outside of Illinois, we briefly recount the several opinions involved in the litigation reflecting these attempts.

In Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) (Milwaukee I) Illinois sought leave to file a bill of complaint under the Supreme Court's original jurisdiction against various Wisconsin cities and sewerage authorities. Illinois alleged that discharges of untreated sewage into Lake Michigan constituted a public nuisance. The Court, in denying Illinois leave to invoke its original jurisdiction, held that the federal common law of nuisance governed the dispute. Id. at 105, 92 S.Ct. at 1394 ("The question of apportionment of interstate waters is a question of `federal common law' upon which state statutes or decisions are not conclusive.") Although the Court held that, at the time of its decision, federal common law provided the basis for resolution of interstate water pollution disputes, it also recognized 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.

Illinois promptly brought suit in the United States District Court for the Northern District of Illinois alleging, inter alia, that discharge of sewage into Lake Michigan by the Wisconsin cities created a public nuisance under both federal and Illinois common law and that it violated Illinois statutes. After a trial, the district court found for plaintiffs and granted injunctive relief mandating changes in defendant's sewage system. The Seventh Circuit affirmed but concluded that "it is federal common law and not State statutory or common law that controls in this case." Illinois v. City of Milwaukee, 599 F.2d 151, at 177 n. 53 (7th Cir.1979).

Upon granting Milwaukee's petition for certiorari from that decision, the Supreme Court concluded that, with the passage of the 1972 Amendments to the FWPCA, Congress had since occupied the field of water pollution control by establishing a comprehensive regulatory program supervised by an expert administrative agency. City of Milwaukee v. Illinois, 451 U.S. 304, 317, 101 S.Ct. 1784, 1792, 68 L.Ed.2d 114 (1981) (Milwaukee II). In so doing, Congress had supplanted any federal common law action for nuisance.²

On remand, Illinois again pressed its claim for injunctive relief, this time on the basis of Illinois law. In a similar action, Illinois and a resident of Illinois, a Mr. W. Scott, brought separate suits against the City of Hammond, Indiana, for pollution of Lake Michigan, alleging violations of Illinois statutory and common law. The suit was brought originally in Illinois state court but was later removed to the United States District Court for the Northern District of Illinois. Motion to remand the case to state court was denied. Illinois v. Sanitary District of Hammond, 498 F.Supp. 166 (N.D.Ill.1980).

After Illinois prevailed over Milwaukee at trial, and the district court in the suit against the City of Hammond denied a motion by defendants to dismiss Illinois' state law claims,³Scott v. City of Hammond, 519 F.Supp. 292, 298 (N.D.Ill.1981), the Seventh Circuit consolidated the two cases and considered the availability of a state law action seeking injunctive relief for the alleged creation of a public nuisance in interstate waters. Relying primarily on the Supreme Court's decision in Milwaukee I, the Seventh Circuit held that pollution of interstate waters is a "controversy of federal dimensions, implicating the conflicting rights of states and inappropriate for state law resolution." Milwaukee, 731 F.2d at 410. The only role for state law in such disputes, according to the Seventh Circuit, was that which was specifically authorized by the 1972 FWPCA, the governing federal law. Reviewing the FWPCA, the Seventh Circuit concluded that, despite the language of 33 U.S.C. § 1365(e) (the so-called "Saving Clause") and § 1370(2) (the "state authority" provision), Congress had provided no authority for one state (State A) or its citizens to use its own common or statutory law as a means to halt pollution discharged from facilities located in another state (State B). The court, however, did express its belief that Congress had authorized suits by State A or its citizens in the courts of and under the laws of State B. Because Illinois had brought suit in its own courts and used its own law, the consolidated cases were remanded for dismissal. On January 21, 1985, the Supreme Court denied plaintiff's petition for a writ of certiorari, Scott v. City of Hammond, ___ U.S. ___, 105 S.Ct. 979, 83 L.Ed.2d 981 (1985), thus terminating that litigation.

Understandably, defendant in this case urges that we adopt the analysis and conclusions of the Seventh Circuit. Milwaukee is an admirable attempt to...