Kegonsa Joint Sanitary Dist. v. City of Stoughton

• Decision Date: 30 January 1979
• Docket Number: No. 76-437,76-437
• Citation: 274 N.W.2d 598,87 Wis.2d 131
• Parties: KEGONSA JOINT SANITARY DISTRICT, Towns of Dunn and Pleasant Springs, Dane County, Wisconsin, a Municipal corporation, Plaintiff-Appellant, v. CITY OF STOUGHTON, Wisconsin, a Municipal corporation, Dane County Regional Plan Commission, Dane County, Wisconsin, and State of Wisconsin Department of Natural Resources, Defendants- Respondents.
• Court: Wisconsin Supreme Court

Page 598

274 N.W.2d 598

87 Wis.2d 131

KEGONSA JOINT SANITARY DISTRICT, Towns of Dunn and Pleasant

Springs, Dane County, Wisconsin, a Municipal

corporation, Plaintiff-Appellant, v. CITY OF STOUGHTON, Wisconsin, a Municipal corporation, Dane

County Regional Plan Commission, Dane County,

Wisconsin, and State of Wisconsin

Department of Natural

Resources,

Defendants-

Respondents.

No. 76-437.

Supreme Court of Wisconsin.

Argued Jan. 2, 1979.

Decided Jan. 30, 1979.

The judgment and orders appealed from dismissed the complaint of the plaintiff, Kegonsa Joint Sanitary District of the Towns of Dunn and Pleasant Springs, Dane County, Wisconsin, against the several defendants. On November 26, 1976, an order was entered dismissing the complaint against the City of Stoughton on the merits, with prejudice; a second order dismissed the complaint against the Wisconsin Department of Natural Resources; and on the same day a judgment was entered dismissing the complaint against the Dane County Regional Planning Commission.

Lloyd A. Schneider, McFarland, argued and on brief, for plaintiff-appellant.

Bruce K. Kaufmann (argued) and Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, on brief, for defendant-respondent City of Stoughton.

John E. Knight, J. Leroy Thilly (argued) and Boardman, Suhr, Curry & Field, Madison, on brief, for defendant-respondent Dane County Regional Planning Commission.

Theodore L. Priebe, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant-respondent Department of Natural Resources.

BEILFUSS, Chief Justice.

The broad subject matter of the present case involves municipal efforts to provide environmentally safe and technologically sound sewerage collection and disposal systems. It is a matter of state-wide indeed nation-wide concern. Problems which arise in this area frequently require the balancing of competing and fundamentally irreconcilable interests public and private, local and regional.

Plaintiff-appellant Kegonsa Joint Sanitary District (Kegonsa) is a municipal corporation created by the Towns of Dunn and Pleasant Springs in 1967. Defendants-respondents are the City of Stoughton (Stoughton), the Wisconsin Department of Natural Resources (DNR), and the Dane County Regional Planning Commission (Planning Commission), a state advisory commission established under sec. 66.945(2), Stats.

For some time prior to 1972, both Kegonsa and Stoughton were engaged in efforts to plan and finance the upgrading of their individual municipal sewerage collection and disposal systems. Pursuant to the Water Pollution Control Act Amendment of 1972, P.L. 92-500, 33 U.S.C. sec. 1251 et seq., both Kegonsa and Stoughton individually sought funding for these sewerage construction projects. Eligibility for grant approval required priority placement for the projects by the DNR. ¹ The Planning Commission, as authorized by sec. 66.945(8), Stats., conducted studies of the proposed treatment works. ² In May, 1972, the Planning Commission issued a recommendation that wastewater from both Kegonsa and Stoughton be treated in a single sewerage treatment plant. This recommendation was approved by the DNR and the United States Environmental Protection Agency (EPA).

Kegonsa was notified of the approval by the DNR and the EPA of Stoughton's plan for a single disposal plant to be constructed in the City of Stoughton on the banks of the Yahara River in a letter from the DNR dated February 6, 1973. Kegonsa did not attempt to obtain either state or federal administrative or judicial review of this decision at the time.

The DNR and EPA subsequently approved Stoughton's application for aid and funds for the Stoughton disposal plan were provided. Pursuant to 33 U.S.C. secs. 1282 and 1283, the EPA contracted to pay Stoughton the 75 percent federal share of the cost of construction of the treatment works. It should be noted that the grant was awarded to Stoughton alone. ³

Kegonsa ultimately accepted the idea of a single disposal plant located in the City of Stoughton, and applied for a Federal Farmers Home Administration loan and DNR assistance to finance construction of a waste water collection system to tie Kegonsa into the Stoughton plant. In March of 1976 both the loan and a commitment for aid were denied.

On March 23, 1976, Kegonsa filed suit in the Circuit Court for Dane County against the City of Stoughton, the DNR, and the Planning Commission. Kegonsa sought to enjoin Stoughton from continuing to build its sewerage disposal plant and further to enjoin the DNR from authorizing the payment of state and federal funds for that purpose until a fractional share of the plant (determined by use potential) was conveyed to Kegonsa, and state and federal funding approved for the construction of a sewerage collection system and the necessary interceptors to tie the Kegonsa system into the Stoughton plant. ⁴ Alternatively, Kegonsa asks the court to order the Planning Commission to rescind its original recommendation of May, 1972 that wastewater from Kegonsa and Stoughton be treated in a single sewerage treatment plant and to issue a new recommendation that Kegonsa be allowed to construct a separate sewerage disposal plant for disposal of its own wastewater. Kegonsa's alternative request for relief would also require the court to order the DNR to authorize state and federal funding for construction of this separate disposal plant. The plaintiff further demands monetary damages from DNR because of alleged fraud and deceit.

All three defendants moved for dismissal of the action, asserting variously failure to state a claim upon which relief could be granted, lack of subject matter jurisdiction, and lack of personal jurisdiction over the DNR.

All three defendants moved to dismiss the action upon the ground it fails to state a claim upon which relief can be granted. Stoughton additionally argues the court does not have subject matter jurisdiction; and the DNR argues the court does not have personal jurisdiction over it.

Defendant Stoughton makes the initial argument that the state court lacks subject matter jurisdiction over what in the present case is essentially a federal claim, involving unjoined federal officers and agencies and necessarily affecting federal appropriations policy.

In Dowd Box Co. v. Courtney, 368 U.S. 502, 507-08, 82 S.Ct. 519, 522-523, 7 L.Ed.2d 483 (1962), the Supreme Court summarized the applicable rule:

"We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule. This Court's approach to the question of whether Congress has ousted state courts of jurisdiction was enunciated by Mr. Justice Bradley in Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833, and has remained unmodified through the years. 'The general question, whether State courts can exercise concurrent jurisdiction with the Federal courts in cases arising under the Constitution, laws, and treaties of the United States, has been elaborately discussed, both on the bench and in published treatises . . . (and) the result of these discussions has, in our judgment, been . . . to affirm the jurisdiction, where it is not excluded by express provision, or by incompatibility in its exercise arising from the nature of the particular case.' "

Similarly this court has held that:

"(W)hen there is no express provision excluding jurisdiction or when there is no incompatibility in allowing concurrent jurisdiction, the courts of Wisconsin will exercise subject-matter jurisdiction and apply the federal law." Kaski v. First Federal S. & L. Assn. of Madison, 72 Wis.2d 132, 142, 240 N.W.2d 367 (1976). ⁵

In Kaski, the court concluded that federal law had preempted the field in regard to regulations of federal savings and loan associations. However, the courts of the state were still deemed to have subject matter jurisdiction over the dispute.

The Supreme Court of New Hampshire recently considered basically the same question raised here, E. g., state court jurisdiction over claims which arise within the framework of the Federal Water Pollution Control Act Amendments of 1972. ⁶ The court noted that the Act envisioned extensive cooperation between the federal government and the individual states in the fight against water pollution. The court's analysis of the Act and its legislative history is persuasive:

"The legislative history of the Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500) and of its predecessor, the Water and Environmental Quality Improvement Act of 1970 (P.L. 91-224, 84 Stat. 91), indicates that the Congress did not intend to preempt the jurisdiction of the several States with respect to water pollution control within their borders. See 33 U.S.C. § 1251(b); Rep. No. 92-414, 92d Cong., 1st Sess. 1-3 (1971) (hereinafter Senate Report) citing as an important principle of public policy: 'The States shall lead the national effort to prevent, control and abate water pollution . . . the Federal role has been limited to support of, and assistance to, the States'. Id. at 1. Numerous provisions in the Act evince this intent. Section 1370 of title 33 reserves to the States the power to enact more stringent legislation to control water pollution; section 1342(a)(1) in conjunction with section 1311 requires that federal licensees comply with applicable state laws as a condition of license. To the same effect, section 1365(c) authorizing 'citizen suits' specifically states that the enforcement provisions contained therein shall not restrict any right under any statute or common law to seek enforcement or other relief 'including relief against the Administrator or a State agency'. 33 U.S.C. § 1365(e). Although review of...