Dubois v. Thomas
| Citation | 820 F.2d 943 |
| Decision Date | 22 July 1987 |
| Docket Number | No. 86-2447,86-2447 |
| Parties | , 55 USLW 2696, 17 Envtl. L. Rep. 21,008 Berton L. DUBOIS and Rose Marie Dubois, Plaintiffs-Appellees, v. Lee M. THOMAS, Administrator, and Morris Kay, Regional Administrator, United States Environmental Protection Agency, Defendants-Appellants, City of Wheatland, W.L. Banks, State of Missouri, Missouri Clean Water Commission, Missouri Department of Natural Resources, and Vaughan Construction Company, Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Karen Florini, Washington, D.C., for defendants-appellants.
Karen K. Howard, Kansas City, Mo., for plaintiffs-appellees.
Before LAY, Chief Judge, WOLLMAN and TIMBERS, * Circuit Judges.
Appellants are Lee M. Thomas ("the Administrator") and Morris Kay ("the Regional Administrator"). We shall refer to them collectively as "appellants". They are, respectively, the Administrator of the United States Environmental Protection Agency ("EPA") and the EPA Regional Administrator for the region that includes the State of Missouri.
This appeal arises out of a "citizen's action" commenced against appellants by appellees Berton L. Dubois and Rose Marie Dubois ("appellees") under Sec. 505(a)(2) of the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977 ("the FWPCA"), 33 U.S.C. Sec. 1365(a)(2) (1982).
Appellants appeal pursuant to 28 U.S.C. Sec. 1292(a)(1) (1982) from an order entered September 22, 1986 in the Western District of Missouri, Scott O. Wright, District Judge, Dubois v. EPA, 646 F.Supp. 741, which denied their motion to dismiss or for summary judgment, sua sponte granted summary judgment in favor of appellees, and granted appellees certain mandatory injunctive relief.
In the instant action, appellees sought, among other things, an order compelling appellants to take investigatory and enforcement action against defendant City of Wheatland ("Wheatland") regarding a contaminated creek running through appellees' property.
The district court held that Sec. 309(a)(3) of the FWPCA, 33 U.S.C. Sec. 1319(a)(3) (1982), imposes mandatory investigatory and enforcement duties on appellants. The court entered a mandatory injunction requiring appellants to "investigate and make a finding as to whether pollution has occurred on [appellees'] property in violation of the FWPCA" and, "if the finding is positive, to issue an abatement order or file a civil action". Dubois, supra, 646 F.Supp. at 746. 1
On appeal, appellants claim, first, that the duties imposed by Sec. 309(a)(3) are discretionary, not mandatory; and, second, that, even if Sec. 309(a)(3) were to be construed as imposing mandatory duties in some circumstances, the EPA was relieved of such duties in the instant situation since defendant Missouri Department of Natural Resources ("the MDNR") already has taken enforcement action against Wheatland.
We hold that the duties imposed on appellants by Sec. 309(a)(3) are discretionary. The district court therefore should have dismissed the FWPCA claim against appellants for lack of subject matter jurisdiction. In light of this holding, we find it neither necessary nor appropriate to reach appellants' second claim on appeal.
We reverse and remand.
We summarize only those facts believed necessary to an understanding of the issues raised on appeal.
On December 5, 1985, appellees notified the Administrator pursuant to 33 U.S.C. Sec. 1365(b) (1982) that they intended to file a citizen's action. The notice stated that a creek running through appellees' property frequently was contaminated by raw sewage overflowing from a malfunctioning lift station that was part of Wheatland's municipal sewage treatment system. The notice stated that Wheatland did not have a permit for the overflow and therefore it violated Sec. 301 of the FWPCA, 33 U.S.C. Sec. 1311 (1982), which requires a permit for any discharge of pollutants into the waters of the United States.
The notice stated that appellees intended to commence an action pursuant to Sec. 505(a)(1) against Wheatland as the violator, and against appellants under Sec. 505(a)(2) for failing to carry out allegedly mandatory duties to enforce the FWPCA against Wheatland. The notice also stated that the action would be brought against the State of Missouri, which EPA in 1974 had authorized to issue and enforce permits under the FWPCA. See 33 U.S.C. Sec. 1342 (1982) ().
On January 28, 1986, the MDNR issued an abatement order to Wheatland, directing it to submit a technical report evaluating the sewage overflow problem and to establish a schedule for correcting it.
On February 19, 1986, appellees commenced the instant action against appellants, Wheatland, the State of Missouri 2, and others. Only Count 8 of appellee's complaint sought relief against appellants. The other counts sought relief against the other defendants and are not relevant to the instant appeal.
On June 16, 1986, appellants filed a motion in the district court to dismiss Count 8 for lack of subject matter jurisdiction, or, in the alternative, for summary judgment.
On September 17, 1986, MDNR and Wheatland entered into a settlement agreement with respect to the abatement order referred to above. Under the terms of the settlement, Wheatland must take certain steps to correct the sewage overflow problem. According to appellees, the problem had not been corrected as of the time of the oral argument of the instant appeal.
On September 22, 1986, the district court denied appellants' motion of June 16. The court, however, sua sponte granted summary judgment in favor of appellees on Count 8 and awarded appellees mandatory injunctive relief.
This interlocutory appeal followed the award of injunctive relief.
For the reasons set forth below, we reverse the order of the district court and remand the case to that court with directions to enter judgment vacating the mandatory injunction and dismissing Count 8 of the complaint to the extent that the district court's disposition of that Count is appealed from.
Section 505(a)(2) of the FWPCA provides that "any citizen may commence a civil action on his own behalf ... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 33 U.S.C. Sec. 1365(a)(2). We must decide on this appeal whether Sec. 309(a)(3) of the FWPCA sets forth duties "which [are] not discretionary with the Administrator." If the duties imposed by Sec. 309(a)(3) are mandatory, or "not discretionary", the district court correctly held that it had subject matter jurisdiction over appellees' FWPCA claim against appellants. If, however, those duties are discretionary, the court was without jurisdiction under Sec. 505(a)(2), and appellants' motion to dismiss the action should have been granted. Sierra Club v. Train, 557 F.2d 485, 488 (5th Cir.1977).
Section 309(a)(3) provides in relevant part:
"Whenever on the basis of any information available to him, the Administrator finds that any person is in violation of section 1311 [] ... he shall issue an order requiring such person to comply with such section ..., or he shall bring a civil action in accordance with subsection (b) of this section."
33 U.S.C. Sec. 1319(a)(3).
We agree with the district court that the structure of this section indicates that whether it imposes mandatory or discretionary duties must be ascertained through a bifurcated analysis: first, it must be determined whether the Administrator had a mandatory duty to investigate and make a finding whenever a private citizen asserts a violation; and, second, it must be determined whether, upon making a finding of a violation, the Administrator has a further mandatory duty to take enforcement action in view of that finding.
The district court reached its conclusion that the Administrator's duties under Sec. 309(a)(3) are mandatory after surveying prior decisions. It focused in particular on Sierra Club, supra, 557 F.2d at 488-91, representing the majority view that Sec. 309 imposes only discretionary duties, and on South Carolina Wildlife Federation v. Alexander, 457 F.Supp. 118 (D.S.C.1978) ("SCWF "), representing the contrary minority view. Dubois, supra, 646 F.Supp. at 744-45. Compare also, for the majority view, State Water Control Board v. Train, 559 F.2d 921, 927 & n. 34 (4th Cir.1977) (dictum) and Zemansky v. EPA, 24 Env't Rep. Cas. (BNA) 1447, 1448 (D.Alaska 1986) and National Wildlife Federation v. Rukelshaus, 21 Env't Rep. Cas. (BNA) 1776, 1780 (D.N.J.1983) and Caldwell v. Gurley Refining Co., 533 F.Supp. 252, 255-57 (E.D.Ark.1982) with, for the minority view, Green v. Costle, 577 F.Supp. 1225 (W.D.Tenn.1983) and Illinois v. Hoffman, 425 F.Supp. 71, 76-77 (S.D.Ill.1977).
In opting for the minority view of SCWF, supra, 457 F.Supp. 118, the district court in the instant case paid little attention to the language of Sec. 309(a)(3). Rather, the court based its decision on what it believed to be the overriding policy consideration: Dubois, supra, 646 F.Supp. at 744-45. This policy consideration led the court to conclude, first, that appellees "have shown that the EPA Administrator has a mandatory duty to make a finding whether a violation has occurred", 646 F.Supp. at 745, and, second, that "the Administrator's duty to enforce is mandatory." Id.
We disagree with both of the court's...
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