Bass Anglers Sportsman's Soc. v. Scholze Tannery, Inc.

• Decision Date: 17 May 1971
• Docket Number: Civ. A. No. 6009.
• Citation: 329 F. Supp. 339
• Parties: BASS ANGLERS SPORTSMAN'S SOCIETY OF AMERICA and Chattanooga Bass Club v. SCHOLZE TANNERY, INC., et al.
• Court: U.S. District Court — Eastern District of Tennessee

329 F. Supp. 339

BASS ANGLERS SPORTSMAN'S SOCIETY OF AMERICA and Chattanooga Bass Club v. SCHOLZE TANNERY, INC., et al.

Civ. A. No. 6009.

United States District Court, E. D. Tennessee, S. D.

May 17, 1971.

COPYRIGHT MATERIAL OMITTED

Finnell, Thompson & Scott, Cleveland, Tenn., for plaintiffs.

Chambliss, Bahner & Crawford, Chattanooga, Tenn., for defendants Swift Edible Oil Co., Farmers Chem. Co. & McKee Baking Co.

Ralph Shumacker, Chattanooga, Tenn., for Highway 58 Shopping Center.

Tanner & Jahn, Chattanooga, Tenn., for Selox Inc.

E. K. Meacham, Chattanooga, Tenn., for City of Chattanooga.

Morgan, Garner & Wood, Chattanooga, Tenn., for Nation Hosiery Mills, Inc.

Bishop, Thomas, Leitner, Mann & Milburn, Chattanooga, Tenn., for Chattam Drug & Chemical Co.

H. Wayne Grant, Chattanooga, Tenn., for Industrial Plating Co. Stophel, Caldwell & Heggie, Chattanooga, Tenn., for W. R. Grace & Co.

Witt, Gaither, Abernathy & Wilson, Chattanooga, Tenn., for Wheland Foundry, Woodward Iron Co. & Ray Ser Dyeing Co.

Miller, Martin, Hitching, Tipton, Lenihan & Waterhouse, Chattanooga, Tenn., for Bowaters Southern Paper Co., Alcoa Chemical & Olin Mathieson Chem.

John L. Bowers, U. S. Atty., for Army.

Bass, Berry & Sims by Chas. Wray, Nashville, Tenn., for Olin Corp.

OPINION

FRANK W. WILSON, Chief Judge.

This civil suit for penalties and injunctive relief arises out of alleged violations of 33 U.S.C. §§ 407 and 411 (the Rivers and Harbors Act of 1899). The plaintiff, Bass Anglers Sportsman's Society of America, Inc., is a society composed of some 11,000 members whose purpose is the furtherance of conservation interests and programs connected with the overall use of waterways and navigation throughout the United States. The plaintiff, Chattanooga Bass Club, Inc., is an affiliate of Bass Anglers Sportsman's Society of America, Inc., in its conservation programs. The defendants are classified as Group A and Group B defendants. The Group A defendants are composed of a number of manufacturers and processors that are allegedly polluting the waterways of Tennessee. The Group B defendants are the Secretary of the Army and the Director of the Corps of Engineers respectively, who allegedly have failed to perform their duties as imposed by law. Additionally and by motion to amend the plaintiff seeks to add the Department of Justice as a Group B defendant since it also allegedly has failed to perform its designated function pursuant to the Rivers and Harbors Act of 1899.

The legal theory of the plaintiffs in the instant case appears identical to the theory of the plaintiffs in the case entitled "Bass Anglers Sportsman's Society of America, et al. v. United States Plywood-Champion Papers, Inc., et al.," 324 F.Supp. 302 (D.C.S.D.Texas 1971, Docket # 70-H-1004). Judge Seals there defined the plaintiffs' theory in the following terms:

The legal theory of the plaintiffs in the present suit is that they have the right to prosecute a qui tam action pursuant to Sections 407 and 411 of Title 33, U.S.C., to obtain an injunction prohibiting the industrial defendants from dumping refuse into Texas waterways without a permit in violation of § 407, to obtain penalties provided by § 411 for each such violation of § 407, and to obtain an injunction requiring defendant Stanley R. Resor, Secretary of the Army, and defendant, Frederick J. Clark, Chief of Engineers, United States Army Corps of Engineers, to establish standards for the issuing of permits allowing the dumping of refuse into navigable waterways and tributaries of navigable waterways in the State of Texas and to apply these standards, once formulated, to anyone desiring to dump refuse into those navigable Texas waterways protected by 33 U.S.C. §§ 407 and 411. The plaintiffs have stated their cause of action no broader than §§ 407 and 411 of Title 33, U.S.C. Thus, plaintiffs must establish that they may, by this civil action, sue to enforce sections 407 and 411, or else the action must be dismissed for failure to state a claim upon which relief can be granted.

Additionally and by motion to amend, the plaintiffs in the instant case seek to obtain a writ of mandamus requiring the Department of Justice to perform mandatory duties imposed by 33 U.S.C. § 413 and specifically to join the plaintiffs in the prosecution of this action.

Before embarking upon a detailed analysis of the legal issues for decision by the Court, it is appropriate to set out the provisions of each of the statutes with which the Court will be concerned.

Section 407 of Title 33 U.S.C. provides the following:

Deposit of refuse in navigable waters generally. It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the United States officers supervising such improvement or public work: And Provided Further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.

Section 411 of Title 33, U.S.C., establishes the following penalties for violation of § 407:

Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.

Finally, section 413 of Title 33, U.S.C., provides that:

The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections * * * 407 * * * 411 * * * of this title; and it shall be the duty of United States Attorneys to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of the Army or by any of the officials hereinafter designated * * *"

Several observations are appropriate in considering the applicability of the aforementioned statutes to the instant case. First of all, § 407 establishes and defines a crime. Second, § 411 provides that violation of § 407 shall be a misdemeanor. Further, § 407 specifically defines the punishment to be imposed "on conviction." Finally, § 413 provides that it is the responsibility of the Department of Justice to conduct all the legal proceedings necessary to enforce § 407.

Section 411 provides that upon conviction of a violation of § 407, the defendant shall be punished by "fine" and/or "imprisonment." Further, the statute states that if a fine is imposed, "one-half of said fine to be paid to the person or persons giving information which shall lead to conviction." This provision of § 411 is crucial in the instant case for the plaintiffs premise their right to enforce the provisions of § 407 upon this phrase of the statute. That is, the plaintiffs maintain that they should be permitted to proceed with this suit under § 407 and § 411 as a qui tam action. A qui tam action is "an action brought by an informer, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action and the remainder to the state or some other institution." Black's Law Dictionary, p. 1414. Judge Pollock in Williams v. Wells Fargo & Co. Express, 177 F. 352 (8th Cir. 1910) described the qui tam action as follows:

It would seem at the common law actions to recover penalties prescribed by law were often prosecuted by what was known as "common informers." Blackstone's Commentaries, Book 3 Coolidge Ed. 160, and when a portion of the penalty recovered went to the person or persons informing, and a portion to the sovereign, the action was styled a "qui tam action."

Judge Pollock also observed that:

While it has been held there must be either express statutory authority authorizing an informer to prosecute in his own name, or such right must be given by necessary implication (cases cited), yet, on the contrary, it has been ruled where a statute gives a portion of the recovery to an informer who prosecutes for the same * * * such statute contains sufficient implied authority to support a prosecution by an informer in his own name. Adams, Qui Tam, v. Woods, 2

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