City of Las Vegas, Nev. v. Clark County, Nev., 84-1567

• Decision Date: 11 March 1985
• Docket Number: No. 84-1567,84-1567
• Citation: 755 F.2d 697
• Parties: , 15 Envtl. L. Rep. 20,353 CITY OF LAS VEGAS, NEVADA, Plaintiff-Appellant, v. CLARK COUNTY, NEVADA; the State of Nevada; Lewis M. Dodgion; Wendell P. McCurry; John Fransway; Peter Morros; Eleanor Mills; William B. Bentley, M.D.; Tom Ballow; Barry W. Becker; Willie Molini; L.V. "Lody" Smith; the United States Environmental Protection Agency; Frank M. Covington; James R. Thompson; Brown and Caldwell; a California corporation; Jerome B. Gilbert; Lyle Hoag, and John Salo, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 697

755 F.2d 697

23 ERC 1101, 15 Envtl. L. Rep. 20,353

CITY OF LAS VEGAS, NEVADA, Plaintiff-Appellant, v. CLARK COUNTY, NEVADA; the State of Nevada; Lewis M.

Dodgion; Wendell P. McCurry; John Fransway; Peter Morros;

Eleanor Mills; William B. Bentley, M.D.; Tom Ballow;

Barry W. Becker; Willie Molini; L.V. "Lody" Smith; the

United States Environmental Protection Agency; Frank M.

Covington; James R. Thompson; Brown and Caldwell; a

California corporation; Jerome B. Gilbert; Lyle Hoag, and

John Salo, Defendants-Appellees.

No. 84-1567.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 1984.

Decided by Order Dec. 11, 1984.

Opinion March 11, 1985.

Joseph V. Karaganis and A. Bruce White, Karaganis, Gail & White, Ltd., Chicago, Ill., George F. Ogilvie, City Atty., Las Vegas, Nev., for plaintiff-appellant.

Victor W. Priebe, Deputy Dist. Atty., Las Vegas, Nev., Peter H. Ferris, Lempres & Wulfsberg, Oakland, Cal., William B. Lazarus, Dept. of Justice, Washington, D.C., George J. Postrozny, Deputy Atty. Gen., Carson City, Nev., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before WRIGHT, PREGERSON, and POOLE, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This case involves a dispute among the city of Las Vegas (City), Clark County (County), and the state of Nevada (State) concerning the proper treatment of the City's sewage. The United States Environmental Protection Agency (EPA) is involved through its administration of the Clean Water Act ¹ (CWA), 33 U.S.C. Secs. 1251-1376 (1982). The private defendants and state officials became involved through contractual relationships or performance of their official duties.

FACTS

Las Vegas is located in Clark County, approximately 11 miles from Lake Mead. The City discharges treated wastewater into a stream, Las Vegas Wash, which flows approximately 10 miles downstream into Lake Mead.

The City filed suit originally in federal court in 1978 challenging water quality The State, EPA, County and City agreed to the entry of a Consent Decree in the United States district court for the District of Nevada on March 15, 1979. Under the Decree Las Vegas agreed to effluent limitations of (30/30/1) ³ unless and until different limitations were determined to be necessary pursuant to a Water Quality Standards (WQS) study outlined in the Decree. The completed study was to be the basis for state administrative determinations leading to permanent effluent limitations.

standards ² adopted by the Nevada Department of Conservation and Natural Resources (Department) and derivative effluent limitations set by the Nevada State Environmental Commission (Commission) for Las Vegas' sewage discharge permit. The City also challenged proposed interrelations between the City's effluent discharges and those of the County, particularly concerning joint use of a new facility.

The WQS study ended informally and, after considering the data accumulated, the State set water quality standards of 30/30/1 allowing Las Vegas to continue at the level set by the Consent Decree. In December 1982, EPA approved these standards.

Las Vegas then brought the present action challenging the 1 milligram per liter phosphorus limitation and the 37.5 million gallon per day (mgd) flow limitation the City claimed Nevada intended to impose on the City's treatment facility. ⁴

The second amended complaint, the basis for this action, consisted of three counts. Count I named as defendants the County, the State, state officials Dodgion and McCurry (officials), individual members of the Nevada State Environmental Commission (Commissioners), the EPA, EPA employees Covington and Thompson, the engineering firm of Brown and Caldwell (B & C), and B & C officers, Gilbert, Hoag & Salo.

Jurisdiction was alleged under 28 U.S.C. Sec. 1331 (1982), based on the Fifth and Fourteenth Amendments to the United States Constitution, the Consent Decree, and 42 U.S.C. Sec. 1983 (1982). Counts II and III, against B & C and its officers, alleged jurisdiction under 28 U.S.C. Sec. 1331, based on pendent claims grounded in negligence and breach of contract, respectively.

On November 22, 1983, the district court, in an unpublished memorandum decision, dismissed the claims for lack of subject matter jurisdiction. It held, in the alternative, that it would abstain under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 On December 11, 1984, we affirmed the district court by order and write now to explain our reasoning.

L.Ed.2d 1424 (1943), if it had jurisdiction. The City appealed.

The City on appeal additionally alleges jurisdiction under 33 U.S.C. Sec. 1365 (1982), and 28 U.S.C. Sec. 1361 (1982), as well as asserting additional grounds for jurisdiction under 28 U.S.C. Sec. 1331.

ANALYSIS

I. Standard of Review

We review de novo a dismissal for lack of subject matter jurisdiction. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173 (9th Cir.1984).

Under 28 U.S.C. Sec. 1331, a "federal question is jurisdictionally insubstantial if it is patently without merit, or so insubstantial, improbable, or foreclosed by Supreme Court precedent as not to involve a federal controversy." Demarest v. United States, 718 F.2d 964, 966 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2150, 80 L.Ed.2d 536 (1984). If the claim is not "wholly insubstantial and frivolous," the court should assume jurisdiction to determine whether the complaint states a cause of action on which relief could be granted. Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); Jackson Transit Authority v. Local Division 1285, Amalgamated Transit Union, 457 U.S. 15, 21 n. 6, 102 S.Ct. 2202, 2206 n. 6, 72 L.Ed.2d 639 (1982).

We may affirm the district court "on any basis fairly supported by the record." Hoohuli, 741 F.2d at 1177. A complaint may be dismissed if "it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved." Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984) (quoting Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982)). "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

II. Jurisdiction to Enforce the Consent Decree

"A consent decree is a judgment" which has res judicata effect and "may be enforced by judicial sanctions." SEC v. Randolph, 736 F.2d 525, 528 (9th Cir.1984). The district court retains jurisdiction to enforce its judgments. Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1524 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984). If the complaint properly alleged violation of the Consent Decree, the district court had jurisdiction.

A. Is This a Claim to Enforce the Decree?

1. Effluent Limitations

The parties to the Consent Decree agreed to form a Water Quality Study Board to conduct the WQS study. The study was to follow a four-step process modeled after the CWA Sec. 303, 33 U.S.C. Sec. 1313. The steps were: (1) specify desired beneficial uses for Lake Mead and the Las Vegas Wash; (2) identify water quality criteria necessary to achieve and maintain the selected beneficial uses; (3) develop total maximum daily loads (TMDL's) of substances that will cause violations of the selected water quality criteria; and (4) allocate the daily load to respective point sources of the pollutant.

The resultant waste load allocation would be the basis "for the establishment, if necessary, of effluent limitations different from those set forth in paragraph 6 above." Consent Decree p 18(f) (emphasis added). The state was then to make "administrative determinations ... based on the WQS study." Consent Decree p 25.

Paragraph six of the Consent Decree established an interim effluent limit of "1 milligram per liter phosphorus ... on a 30-day average," effective "unless and until different effluent limitations are established pursuant to the [WQS study] and administrative determinations referred to in paragraphs 25, 26 and 27." This effluent limitation was to continue in effect if the WQS study and administrative determinations concluded that "different" effluent limitations were not "necessary." Consent Decree p 26.

We assume for purposes of this appeal that neither the WQS study nor the State made all the findings mandated by the Decree. The Nevada Environmental Commission ultimately adopted 30/30/1 as the water quality standard for Lake Mead and the Las Vegas Wash.

Las Vegas claims injury via the defendants' failure to follow the procedures outlined in the Consent Decree and thereby to set less stringent effluent limitations. Whether this injury is traceable to a breach of the Decree depends on a construction of it.

We reach the issue whether the City's complaint "states a cause of action on which relief could be granted," Bell v. Hood, 327 U.S. at 682, 66 S.Ct. at 776, see Fed.R.Civ.P. 12(b)(6), because we cannot say that the claim under the Consent Decree is wholly insubstantial.

A consent decree, which has attributes of a contract and a judicial act, is construed with reference to ordinary contract principles. Washington v. Penwell, 700 F.2d 570, 573 (9th Cir.1983). Its scope "must be discerned within its four corners", but "a court may consider surrounding circumstances as aids in construing the consent decree." Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 626 F.2d 95, 98 (9th Cir.1980), cert. denied, 449 U.S. 1079, 101 S.Ct. 861, 66 L.Ed.2d 802 (1981). This decree should be construed against a backdrop of the CWA, since Las Vegas originally brought the action to enforce that statute. See United States v. Motor Vehicle Manufacturers Ass'n, ...