Jones v. City of Lakeland, PLAINTIFFS-APPELLANT

• Decision Date: 08 December 1999
• Docket Number: PLAINTIFFS-APPELLANT,V,DEFENDANT-APPELLEE,No. 97-5917,97-5917
• Citation: 224 F.3d 518
• Parties: (6th Cir. 2000) RUDOLPH JONES, JR.; SUSAN JONES; TANDY JONES GILLILAND,CITY OF LAKELAND, TENNESSEE, A TENNESSEE MUNICIPAL CORPORATION, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 518

224 F.3d 518 (6th Cir. 2000)

RUDOLPH JONES, JR.; SUSAN JONES; TANDY JONES GILLILAND, PLAINTIFFS-APPELLANTS,

V.

CITY OF LAKELAND, TENNESSEE, A TENNESSEE MUNICIPAL CORPORATION, DEFENDANT-APPELLEE

No. 97-5917

U.S. Court of Appeals, Sixth Circuit

Argued: December 8, 1999

Decided and Filed: August 09, 2000

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 96-03045--Jerome Turner, District Judge.

Earle J. Schwarz, Saul C. Belz (briefed), David A. McLaughlin (argued and briefed), Waring Cox, Memphis, TN, for Plaintiffs-Appellants.

Richard L. Winchester, Jr. (argued and briefed), The Winchester Law Firm, Memphis, TN, for Defendant-Appellee.

Arthur H. Bryant (briefed), Trial Lawyers For Public Justice, Washington, D.C., for Amicus Curiae The Sierra Club, Natural Resources Defense Council, Inc., Ohio Public Interest Research Group, and Trial Lawyers for Public Justice.

Sohnia W. Hong (briefed), Office of the Attorney General, Nashville, TN, for Amicus Curiae Tennessee Department of Environment and Conservation.

Before: Martin, Chief Judge; Merritt, Krupansky, Ryan, Boggs, Norris, Suhrheinrich, Siler, Batchelder, Daughtrey, Moore, Cole, Clay, and Gilman, Circuit Judges.

KRUPANSKY, J., delivered the opinion of the court, in which MARTIN, C. J., MERRITT, BOGGS, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ., joined. NORRIS, J. (pp. 524-30), delivered a separate dissenting opinion, in which RYAN, SUHRHEINRICH, SILER, and BATCHELDER, JJ., joined.

OPINION

Krupansky, Circuit Judge

Pursuant to Fed. R. Civ. P. 35(a), a majority of the active judges of this court voted to rehear en banc Jones v. City of Lakeland, 175 F.3d 410 (6th Cir. 1999), an action which the United States District Court for the Western District of Tennessee had dismissed for lack of subject matter jurisdiction, and for failure of the plaintiffs' complaint to state a claim upon which relief could be granted, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), respectively.

Briefly summarized, this action was initiated by Rudolph Jones, Jr., Susan Jones, and Tandy Jones Gilliland (collectively "the plaintiffs"), as riparian land owners in fee simple along Oliver Creek. Oliver Creek is a natural water course that traverses their real property within the City of Lakeland, Tennessee ("the City"), thereby according plaintiffs "standing" to commence a legal proceeding. Plaintiffs seek redress against the City for its ongoing practice of discharging contaminated sewage, sludge, and other toxic, noxious, and hazardous substances into Oliver Creek, in amounts exceeding those permitted by the National Pollutant Discharge Elimination System Permit (NPDES permit) issued to it by the Division of Water Pollution Control of the State of Tennessee Division of Conservation, the predecessor agency to the Tennessee Department of Environment and Conservation (TDEC), in violation of the Water Pollution Control Act ("the Clean Water Act"), 33 U.S.C. §§ 1254-1376, and the Tennessee Water Control Act ("the Tennessee Water Act"), Tenn. Code Ann. §§ 69-3-101 to 131. They charge that the City's ongoing practice is seriously imperiling human health and wildlife in, about, and along the said waterway.

The plaintiffs petitioned for "injunctive relief, civil penalties, and to abate the ongoing discharge of human, toxic, and other hazardous wastes and pollutants into waters, soil and ground waters, in violation of the City of Lakeland's National Pollution Discharge Elimination System ("NPDES") permit, and to compel the enforcement of the provisions of the Clean Water Act and the State Water Act."

The City responded by asserting that federal court jurisdiction over citizen enforcement actions is denied by the Clean Water Act if the Administrator of the Environmental Protection Agency, or a state, had already commenced and was diligently prosecuting an action to require compliance with a standard, limitation, or order of the Agency or the state. The plaintiffs countered by stating that their complaint facially impugned the City's action of issuing, but not effectively enforcing, a series of compliance orders while concurrently permitting the City to continue to discharge increasing amounts of impermissible toxic, noxious, hazardous, and health-threatening sewage and other raw waste into Oliver Creek during the ten years preceding their legal action; and that the City's demonstrated lax enforcement did not constitute "diligent prosecution" mandated by the Clean Water Act that would preclude their suit.

Appellate review of a Fed. R. Civ. P. 12(b)(1) and/or 12(b)(6) motions is de novo. Coyne v. American Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999).

In the instant case, the trial court correctly observed that the City's motion did not question the accuracy of the plaintiffs' pleaded facts. Rather, the City argued that the alleged facts were facially insufficient to support subject matter jurisdiction because of the limiting preclusions of 33 U.S.C. §§ 1365(a)&(b) and 1319(g)(6)(A). The trial court continued its reasoning by noting that 33 U.S.C. § 1365(a), the enabling legislation which authorized citizens' suits, directs that:

Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf - (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B)an order issued by the Administrator or a State with respect to such a standard or limitation a.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title.

It appears from the record that the parties and the trial court thereafter proceeded to consider the sufficiency of the complaint within the limitation placed upon citizen enforcement actions by 33 U.S.C. § 1365(b), which provides, in part, that:

No action may be commenced... if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

and/or 33 U.S.C. § 1319(g)(6)(A) which directs, in pertinent parts, that no action for the assessment of civil penalties can be commenced for a violation:

(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection....

(Emphasis added).

Having correctly postured the case, the district court's analysis went astray in arriving at its disposition by misinterpreting applicable law and misconceiving legal precedent.

Initially, it elected to consider the plaintiffs' complaint and the defendant's motion to dismiss only within the context of 33 U.S.C. 1365(b), which required that the Administrator or State had commenced and was diligently prosecuting an action for compliance with a limitation, standard or order of the TDEC in a court of the United States, or a State.

In an effort to satisfy the dictates of the statute, the trial court committed reversible error by according the TDEC, a state administrative agency charged by the state legislature with supervising water quality, the status of a court of the United States or a State.

In addressing this issue, the Second Circuit, in a well-reasoned decision in Friends of the Earth v. Consolidated Rail Corp, 768 F.2d 57 (2d Cir. 1985), ruled that:

To interpret section 505(b)(1)(B) [33 U.S.C. § 1365(b)] to include administrative as well as judicial proceedings is in our view contrary to both the plain language of a statute and congressional intent. Congress has frequently demonstrated its ability to explicitly provide that either an administrative proceeding or a court action will preclude citizen suits. See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2619(b)(1)(B) (1982); Endangered Species Act, 16 U.S.C. § 1540(g)(2) (1982); Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1415(g)(2) (1982); Hazardous and Solid Waste Amendments of 1984, Pub. L No. 98-616, § 401(d), 98 Stat. 3221, 3269-70 (amending Solid Waste Disposal Act, 42 U.S.C. § 6972(b) (1982)). Had Congress wished to impose this broader prohibition on citizen suits under the Clean Water Act, it could easily have done so. It did not.

Id. at 63.

The court in Friends went on to explain and decide that:

It is a "familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed.2d 766 (1980); United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527, 69 L. Ed.2d 246 (1981). Moreover, when a court finds the language of a statute to be clear and unambiguous, "judicial inquiry is complete, except in 'rare and exceptional circumstances.'" Garcia v. United States, 469 U.S. 70, 75, 105 S. Ct. 479, 483, 83 L. Ed.2d 472 (1984) (quoting TVA v. Hill, 437 U.S. 153, 187 n. 22, 98 S. Ct. 2279, 2298 n. 22, 57 L. Ed.2d 117 n. 22 (1978)); Ex Parte Collett, 337 U.S. 55, 61 S. Ct. 944, 947, 93 L. Ed. 1207 (1949); Gramaglia v. United States, 766 F.2d 88, 92 (2d Cir. 1985); Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392, 395 (5th Cir. 1985). "[O]nly the most...