Aminoil U.S.A., Inc. v. California State Water Resources Control Bd., 80-5516

Citation674 F.2d 1227
Decision Date02 April 1982
Docket NumberNo. 80-5516,80-5516
Parties, 12 Envtl. L. Rep. 20,594 AMINOIL U. S. A., INC., a Delaware corporation, and the Signal Bolsa Corporation, a California corporation, Petitioners-Appellants, v. CALIFORNIA STATE WATER RESOURCES CONTROL BOARD, Respondent. Amigos de Bolsa Chica, Inc., Real Party In Interest, Ann McGill Gorsuch, * Administrator, Environmental Protection Agency, Real Party In Interest-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Victor J. Gold, Frederick A. Fudacz, Nossaman, Krueger & Marsh, Los Angeles, Cal., for petitioners-appellants.

Martin W. Matzen, Dept. of Justice, Washington, D. C., argued, for real party in interest-appellee; Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., Anne S. Almy, Dept. of Justice, Washington, D. C., on brief.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and ANDERSON, Circuit Judges, and JAMESON, ** District Judge.

WALLACE, Circuit Judge:

This case presents a troublesome jurisdictional issue arising in the wake of our decision in Shell Oil Co. v. Train, 585 F.2d 408 (9th Cir. 1978) (Shell ). Aminoil U.S.A., Inc. (Aminoil) appeals from the district court's order dismissing its action against Gorsuch, Administrator of the Environmental Protection Agency (EPA or the Administrator), for lack of jurisdiction. The suit was originally filed in California state court for review of an order of the California State Water Resources Control Board (State Board). When Aminoil joined the Administrator as a real party in interest, the Administrator removed the case to the district court pursuant to 28 U.S.C. § 1442(a)(1). Because we conclude that the state court, and therefore the district court on removal, lacked jurisdiction to join the Administrator as a party, we affirm.

I
A. The Statutory Framework.

In 1972 Congress enacted amendments to the Federal Water Pollution Control Act which are now generally referred to as the Clean Water Act (Act). Pub.L. No. 92-500, 86 Stat. 816, codified at 33 U.S.C. §§ 1251-1376. The purpose of these amendments is to eliminate pollutant discharges into the navigable waters of the United States by 1985. Act § 101(a)(1), 33 U.S.C. § 1251(a)(1). Section 402 of the Act creates the National Pollutant Discharge Elimination System (NPDES), which regulates the discharge of pollutants into navigable waters under the authority of the EPA. 33 U.S.C. § 1342. It is unlawful for any person to discharge a pollutant without first obtaining a NPDES permit and complying with its terms. Act § 301(a), 33 U.S.C. § 1311(a). Navigable waters have been administratively defined to include "wetlands" pursuant to regulations promulgated by the Army Corps of Engineers, 33 C.F.R. § 323.2, and the EPA, 40 C.F.R. § 122.3.

The Act is a "complicated and lengthy statute." American Frozen Food Inst. v. Train, 539 F.2d 107, 113 (D.C.Cir.1976). Its allocation of concurrent enforcement authority to both state and federal agencies creates a "cooperative federal-state scheme for the control of water pollution," Shell, supra, 585 F.2d at 409, and a "delicate partnership" between state and federal agencies. Save The Bay, Inc. v. Administrator of the EPA, 556 F.2d 1282, 1284 (5th Cir. 1977). The Act empowers the Administrator to issue discharge permits regulating the nature and quantity of the various pollutants which may lawfully be discharged. Act § 402(a), 33 U.S.C. § 1342(a). Yet in order "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution," Act § 101(b), 33 U.S.C. § 1251(b), the Act provides that each state may establish and administer its own permit program covering pollutant discharges into navigable waters within its jurisdiction. Act § 402(b), 33 U.S.C. § 1342(b). The Administrator must approve a proposed state permit program unless he determines that the program does not provide "adequate authority" to enforce the Act. Id. Once a state program is approved, the Act requires that the EPA suspend its own issuance of permits. Act § 402(c)(1), 33 U.S.C. § 1342(c)(1). California has adopted a plan for the issuance of NPDES permits, see Cal. Water Code § 13370 et seq., which has been approved by the EPA. 39 Fed.Reg. 26,061 (1973). The State Board and its nine subsidiary regional boards, therefore, "have primary responsibility for the enforcement of the (Act) and the effluent limitations established pursuant to it in California." Shell, supra, 585 F.2d at 410.

The EPA, however, retains independent supervisory authority over approved state programs. It may withdraw its approval of a state program if it determines that the state program is not being administered in accordance with the requirements of the Act, § 402(c)(3), 33 U.S.C. § 1342(c)(3), and the Administrator may veto any state discharge permit which he deems to be "outside the guidelines and requirements of (the Act)." Act § 402(d)(2), 33 U.S.C. § 1342(d)(2). 1 Under sections 309(a)(1) and (a)(3) of the Act, 33 U.S.C. § 1319(a)(1), (a)(3), the EPA is empowered to notify violators and states that if the state has not commenced appropriate enforcement action within 30 days, the EPA will issue a compliance order or bring a civil action to enforce compliance. Section 309(b), 33 U.S.C. § 1319(b), authorizes the Administrator to commence a civil enforcement action against individual violators and recalcitrant state agencies in federal district court. 2

Despite this residual federal supervisory responsibility, the scheme of cooperative federalism established by the Act remains "a system for the mandatory approval of a conforming State program and the consequent suspension of the federal program (which) creates a separate and independent State authority to administer the NPDES pollution controls...." Mianus River Preservation Comm. v. Administrator, EPA, 541 F.2d 899, 905 (2d Cir. 1976). The role envisioned for the states encompasses both the opportunity to assume primary responsibility for the implementation and enforcement of federal effluent discharge limitations, Act § 402(b), 33 U.S.C. § 1342(b), and the right to enact discharge limitations which are more stringent than the federal standards, Act § 510, 33 U.S.C. § 1370. Thus, although the Act gave the EPA the authority in the first instance to issue NPDES discharge permits, Act § 402(a)(1), 33 U.S.C. § 1342(a)(1), "Congress clearly intended that the states would eventually assume the major role in the operation of the NPDES program." Shell, supra, 585 F.2d at 410.

B. The Factual Background.

Aminoil operates oil and gas wells at a site in Orange County, California, leased from appellant Signal Bolsa Corporation. These operations produce drilling wastes which are presently discharged into the surrounding environment. The proper characterization of these surrounding waters is the basis of the instant dispute. In July 1978, the Fish and Wildlife Service of the United States Department of the Interior requested that the Santa Ana Region of the State Board (Regional Board) adopt an order declaring Aminoil's disposal site a "wetlands" subject to the jurisdiction of the Act and its companion California statute, Cal. Water Code § 13370 et seq. Following a meeting at the site between Aminoil, the EPA and the Regional Board, and after a public hearing, the Regional Board concluded that the area "cannot be defined as national wetlands. Therefore, an NPDES permit is not necessary."

The Amigos de Bolsa Chica (Amigos), an interested environmental group, petitioned the State Board for review of the Regional Board's decision pursuant to Cal.Water Code § 13320. Aminoil intervened in this proceeding. On July 13, 1979, while the Amigos' petition was pending, the EPA sent Aminoil a "finding of violation" pursuant to section 309(a)(1) of the Act, 33 U.S.C. § 1319(a) (1), indicating that Aminoil's discharges into wetlands without a NPDES permit were in violation of section 301 of the Act, 33 U.S.C. § 1311(a). In accordance with section 309(a)(1), the EPA notified Aminoil and the State Board that it would take "appropriate action" if the State Board had not commenced enforcement action within 30 days.

Two months later, the State Board mailed to the EPA a copy of a proposed order reversing the decision of the Regional Board and finding the property to be a "wetlands" subject to the jurisdiction of the Act. This proposed order was based upon the same record that was before the Regional Board; no additional evidentiary hearing was conducted. In a letter dated September 17, 1979, the EPA urged the State Board to adopt the proposed order without substantive change. Three days later, the State Board adopted the order.

On October 24, 1979, Aminoil filed an action in California superior court seeking review of the State Board's finding on the wetlands issue pursuant to Cal.Water Code § 13330 and Cal.Civ.Proc. Code § 1094.5 (mandamus). It named as real parties in interest the Amigos and the Administrator. On November 20, 1979, the Administrator removed the action to the district court pursuant to 28 U.S.C. § 1442(a)(1), which permits officers of United States agencies, when acting under color of such office, to remove civil actions commenced against them in state court to the federal district court. Subsequently, the Administrator filed a motion to dismiss, asserting that neither the state court, nor the district court upon removal, had jurisdiction to entertain the action against him, and that sovereign immunity barred the suit. The district court granted the motion. Relying on our decision in Shell, the court held:

Shell cannot logically be interpreted as giving a state court jurisdiction over a federal agency in a dispute over federal law when such jurisdiction is denied a federal court. The EPA must take (final) action before it can be sued pursuant to the Act,...

To continue reading

Request your trial
50 cases
  • National State Bank of Elizabeth v. Gonzalez
    • United States
    • New Jersey Superior Court — Appellate Division
    • July 30, 1993
    ... ... which are beyond the mortgagor's control and render the mortgagor temporarily unable to ... 152, 156 (6th Cir.1986); Armor Elevator Co., Inc. v. Phoenix Urban Corp., 493 F.Supp. 876, 883 ... 7 (1st Cir.1983); Aminoil U.S.A., Inc. v. California State Water Resources Control Bd., 674 F.2d 1227, 1233 (9th Cir.1982); First ... ...
  • South Delta Water Agency v. U.S., Dept. of Interior, Bureau of Reclamation
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 26, 1985
    ...242, 244, 60 S.Ct. 488, 490, 84 L.Ed. 724 (1940)) (federal agencies and instrumentalities); Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d 1227, 1233 (9th Cir.1982) (federal As the district court properly ruled, however, the 1976 amendment to section 702 of......
  • City of Philadelphia v. Stepan Chemical Co.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • August 4, 1982
    ...Act is also known as the Federal Water Pollution Control Act Amendments of 1972. See, e.g. Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d 1227, 1229 (9th Cir. 1982). 18 The City's complaint does not mention section 311 or 505(a). Initially, defendants moved......
  • Nichols v. Block
    • United States
    • U.S. District Court — District of Montana
    • March 5, 1987
    ...794 F.2d 1402, 1407 (9th Cir.1986). As stated by the Court of Appeals for the Ninth Circuit in Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d 1227 (9th Cir.1982): A simple mistake of fact or law does not necessarily mean that an officer of the government ha......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT