Bill Kettlewell, Inc. v. MICHIGAN DNR, Civ. A. No. 89-30015.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtJAMES HARVEY
Citation716 F. Supp. 1012
PartiesBILL KETTLEWELL, INC., a Michigan corporation, d/b/a Fort Gratiot Sanitary Landfill, Plaintiff, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, David Hales, Director of Michigan Department of Natural Resources, St. Clair County Health Department, and John B. Parsons, Director of St. Clair County Health, Defendants.
Docket NumberCiv. A. No. 89-30015.
Decision Date07 June 1989

Daniel P. Perk, Robert A. Fineman, Honigman, Miller, Detroit, Mich. and David R. Heyboer, Luce, Henderson, Port Huron, Mich., for Bill Kettlewell Excavating, Inc., a Michigan Corp., plaintiff.

Frank J. Kelley, Atty. Gen., Thomas J. Emery, and Leo H. Friedman, Asst. Attys. Gen., Natural Resources Div., Lansing, Mich., for Michigan Dept. of Natural Resources and David Hales, Director of Michigan Dept. of Natural Resources, defendants.

Robert H. Cleland, St. Clair County Corp. Counsel, Port Huron, Mich., and Lawrence R. Terman, Beier Howlett Ternan Jones Shea & Hafeli, Bloomfield Hills, Mich., for St. Clair County Health Dept., defendant and counter-plaintiff, John B. Parsons, Director of St. Clair County Health, St. Clair County Metropolitan Planning Com'n, Gordon Ruttan, Director, St. Clair County Metropolitan Planning Com'n, St. Clair County Solid Waste Planning Committee, and Peg Clute, Chairperson, St. Clair County Solid Waste Planning Committee, defendants.


JAMES HARVEY, District Judge.

This matter is before the Court on the defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).1 The plaintiff filed suit in this Court seeking injunctive and declaratory relief, alleging that certain amendments to the Michigan Solid Waste Management Act (MSWMA), Michigan Comp.Laws Ann. § 299.401 et seq., violate the Commerce Clause of the United States Constitution. The defendants urge dismissal on four grounds: (1) the plaintiff's complaint is effectively a collateral attack upon this Court's remand order of October 3, 1988; (2) the claims in plaintiff's complaint are merely a defense to the defendants' state court counterclaim; (3) declaratory judgment cannot settle the controversy between the parties; and (4) no actual controversy remains between the parties. The plaintiff refutes the defendants' first two grounds on factual bases, noting that the state court action relevant to this Court's remand order, as well as the defendants' counterclaim, is no longer pending. Respecting the remaining grounds for dismissal, the plaintiff argues that the facts alleged sufficiently establish a controversy for purposes of declaratory judgment jurisdiction, and that such controversy may be resolved through a granting of declaratory relief. For the reasons that follow, the Court concurs with the plaintiff and denies the defendants' motions to dismiss.


The facts preceding this litigation are significant. On August 24, 1988, the current plaintiff filed a complaint in the St. Clair County Circuit Court seeking to enjoin the defendants from issuing and enforcing a cease and desist order concerning the operation of the plaintiff's landfill. The defendants thereafter filed an answer, counterclaim, and request for preliminary injunction to foreclose the plaintiff from importing garbage from New York to the landfill. Additionally, the defendants sought enforcement of their cease and desist order on the grounds that the plaintiff, as a transferee-owner, was not properly licensed under Michigan law to operate the landfill. The licensing issue is currently on review in the Michigan Court of Appeals.

On the basis of the defendants' counterclaim, and particularly the request to enjoin the importation of garbage, the plaintiff attempted removal of the case to this Court. In an opinion dated October 3, 1988, this Court remanded the action on two grounds: first, the plaintiff's defense to the defendants' counterclaim failed to raise a federal question over which this Court has jurisdiction; and second, the removal statute does not contemplate removal by defendants to counterclaims. The focus of the plaintiff's challenge to the defendants' counterclaim involved the interpretation of various provision of the MSWMA, and specifically whether those provisions implicitly prohibited the importation of New York refuse to the plaintiff's landfill, violative of the Commerce Clause of the United States Constitution.

December 27, 1988, amendments to the MSWMA precluded the importation issue from being resolved on the merits in the state court. The amendments expressly prohibited landfill operators from accepting for disposal solid waste generated outside the operator's county, unless the county's approved waste management plan provided for such importation. Mich.Comp.Laws Ann. §§ 299.413a; 299.430(2). Thus, the state court dismissed with prejudice the importation aspects of the counterclaim, finding that the "Plaintiff and Counter-Defendants sic have reiterated on the record that the MSWMA amendments effectively prohibit out-of-state waste from being transported and deposited in the Plaintiff and Counter-Defendant's landfill...." St. Clair Co. Circuit Court, No. 88-001878CZ.

The plaintiff brings the instant action seeking a declaration that the MSWMA amendments are unconstitutional both on their face and as applied to the plaintiff. Essentially, the plaintiff contends that the amendments "impose an absolute ban on the disposal of out-of-state waste without county approval," thereby discriminating against interstate commerce in violation of the Commerce Clause. Additionally, plaintiff avers that the defendants' denial of plaintiff's February, 1989, application for disposal of out-of-state waste, consistent with "defendants' stated policy to prohibit disposal of all out-of-county waste," imposed an impermissible burden on interstate commerce. Concurrent with declaratory relief, the plaintiff also requests an injunction prohibiting the enforcement of the MSWMA amendments. The central issue presently posed to the Court is whether exercise of declaratory judgment jurisdiction is warranted. That is, does the plaintiff present an issue that has either been resolved or is the subject of a threatened or pending state court action, and if not, whether declaratory relief is proper under the circumstances. The Court addresses each question in turn.


In urging dismissal of the plaintiff's complaint, the defendants contend that in bringing this action, the plaintiff is in actuality collaterally attacking this Court's remand order of October 3, 1988. In support of this argument, defendants cite 28 U.S.C. § 1447(d), which directs that remand orders are not reviewable, see Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). More precisely, however, remand orders premised solely upon the improvidence and lack of jurisdiction surrounding the removal are not subject to appellate review. Id. at 343, 96 S.Ct. at 589. This Court's order of October 3, 1988, found that plaintiff's removal was defective due to both a lack of federal question jurisdiction as well as the fact that the plaintiff removed its own case. Thus, on the surface, it appears that the issues remanded in that case cannot be reopened through a complaint for declaratory judgment.

Both parties cite to New Orleans Public Service, Inc. v. Majoue, 802 F.2d 166 (5th Cir.1986), as authority for their respective positions. In Majoue, the defendant removed the plaintiff's wrongful discharge claim by asserting that the plaintiff's action necessarily involved application of federal pension law. The court disagreed and remanded the action, whereafter the defendant sought, through an original action, declaratory relief in the federal court. The Majoue court upheld the district court's dismissal of the defendant's complaint, finding that "the District Court's order remanding the plaintiff's original action to the state court is res judicata as to the forum." 802 F.2d at 168 (citations omitted) (emphasis in original). The Court's review of the plaintiff's current complaint, along with the facts surrounding the plaintiff's previous action, results in the conclusion that the instant action is not an attempted collateral attack on the Court's remand order. As the plaintiff correctly notes, in Majoue the defendant sought to relitigate an identical issue to that resolved by the remand order; that is, the pre-emptive effect of federal law. In the case at hand, the plaintiff is seeking a declaratory judgment regarding the constitutionality of MSWMA amendments that did not exist at the time of this Court's remand order, and in fact which led to the termination of the state court action. The defendants' assertion that "the same issue, whether the state statute unconstitutionally affects interstate commerce, was raised in both the petition for removal and the present complaint," is erroneous. The issue in plaintiff's original suit was whether the statute, as then written, allowed the defendants to prohibit the importation of out-of-state waste, allegedly in violation of the Commerce Clause. In the instant litigation, it is undisputed that the MSWMA, as amended, allows such a prohibition. Thus, no issue of statutory interpretation remains, and therefore the plaintiff cannot be precluded from bringing this action on the basis that to so allow would be equivalent to providing review of this Court's previous remand order.2


Having determined that the plaintiff's complaint is not merely a request for review of a remand order, the Court must now evaluate whether the requisite circumstances exist in order to invoke declaratory judgment jurisdiction. The defendants' argue three grounds for denying jurisdiction: first, that the complaint requests relief that is actually a defense to a state court proceeding; second, that no actual controversy exists between the parties; and third, that the relief sought would not...

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