McClellan Eco. Seepage Situation v. Weinberger, CIV S-86-475-RAR.

• Decision Date: 09 December 1986
• Docket Number: No. CIV S-86-475-RAR.,CIV S-86-475-RAR.
• Citation: 655 F. Supp. 601
• Parties: McCLELLAN ECOLOGICAL SEEPAGE SITUATION (MESS), Mary Fisher, Charles and Sandy Yarbrough, Plaintiffs, v. Caspar Willard WEINBERGER, Secretary of the United States Department of Defense, Defendant.
• Court: U.S. District Court — Eastern District of California

655 F. Supp. 601

McCLELLAN ECOLOGICAL SEEPAGE SITUATION (MESS), Mary Fisher, Charles and Sandy Yarbrough, Plaintiffs, v. Caspar Willard WEINBERGER, Secretary of the United States Department of Defense, Defendant.

No. CIV S-86-475-RAR.

United States District Court, E.D. California.

December 9, 1986.

Michael Axline, John E. Bonine, Western Natural Resources Law Clinic, University of Oregon School of Law, Eugene, Or., Victor Sher, San Francisco, Cal., Stephen L. Samuels, U.S. Dept. of Justice, Washington, D.C., for plaintiffs.

F. Henry Habicht II, Asst. Atty. Gen., Stephen L. Samuels, U.S. Dept. of Justice, Washington, D.C., Peter A. Nowinski, U.S. Atty., Yoshinori H.T. Himel, Asst. U.S. Atty., Sacramento, Cal., for defendant.

OPINION AND ORDER GRANTING MOTION OF DEFENDANT TO DISMISS CLAIM FOR CIVIL PENALTIES

RAMIREZ, District Judge.

This matter came on for hearing on November 3, 1986 on defendant's motion to dismiss plaintiff's claim for civil penalties. The Court rendered an oral ruling granting the motion to dismiss at the conclusion of that hearing, and this opinion specifically incorporates by reference the reasons articulated in that ruling.

This action was commenced on April 23, 1986 when a group of citizens calling themselves McClellan Ecological Seepage Situation ("MESS") filed a complaint against Caspar Willard Weinberger, Secretary of the United States Department of Defense, alleging that McClellan Air Force Base violated certain provisions of the Resource Conservation and Recovery Act ("RCRA") and the Clean Water Act ("CWA"). In the complaint, MESS seeks declaratory relief, injunctive relief, and the payment of civil penalties. The present motion relates only to the request for civil penalties.

This matter involves an issue of sovereign immunity. It is axiomatic, of course, that the United States is sovereign. It cannot be sued unless it consents to be sued. Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 840 (1983). There cannot be a waiver of sovereign immunity unless the waiver is clear, concise, and unequivocal. Army & Air Force Exchange Service v. Sheehan, 456 U.S. 728, 734, 102 S.Ct. 2118, 2122, 72 L.Ed.2d 520 (1982). When there is any doubt, waiver will not be found. Waiver cannot be implied. It cannot be assumed. It cannot be based on speculation, surmise, or conjecture. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). Ambiguous language will not equate to waiver. Any limitation on the United States' consent to be sued must be strictly construed in favor of the sovereign and may not be modified by implication. Ruckelshaus v. Sierra Club, 463 U.S. 680, 683-85, 103 S.Ct. 3274, 3276-77, 77 L.Ed.2d 938 (1983).

In this case, there are four potential areas for waiver of sovereign immunity, two under RCRA and two under the Clean Water Act. Turning first to RCRA, the relevant provisions are the federal facilities provision set forth in RCRA § 6001, 42 U.S.C. § 6961, and the citizen suit provision in RCRA § 7002, 42 U.S.C. § 6972.

The RCRA federal facilities provision states in relevant part that federal agencies shall be subject to and comply with "all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief)." The plain face, common-sense reading of this provision convinces this Court that there has not been a waiver of sovereign immunity regarding the imposition of civil penalties against federal facilities under RCRA. The plain face reading of this legislation demonstrates that Congress intended to waive sovereign immunity on behalf of the United States, insofar as process or sanctions is concerned, only as required for the enforcement of injunctive relief. As argued by the government in its moving papers, this language infers, implies, and requires a preexisting order of the Court to be enforced—no more, no less.

The Court recognizes that this is an issue of first impression. There are several cases that do not specifically and succinctly apply to the facts but are nevertheless instructive, and therefore the Court will make brief reference to them.

The Ninth Circuit's decision in California v. Walters, 751 F.2d 977 (9th Cir.1984), is the only case to examine RCRA § 6001 in the context of waiver of immunity for criminal penalties. The Court, in finding no waiver, specifically found that RCRA § 6001 plainly waives immunity to sanctions but only as imposed to enforce injunctive relief. What is significant is the Court's statement that "this only makes more conspicuous its failure to waive immunity to criminal sanctions." 751 F.2d at 978. While Walters is not directly on point since it does not involve civil penalties or a citizen suit, a waiver is a waiver whether it be for criminal and/or civil penalties.

That leads to an even more instructive case, Meyer v. United States Coast Guard, 644 F.Supp. 221 (E.D.N.C.1986), wherein Judge Britt, again reviewing RCRA § 6001, found that there has not been a clear and unambiguous waiver on behalf of the United States regarding the imposition of fines and/or other civil penalties. Meyer, unlike Walters, dealt specifically with civil penalties as opposed to criminal penalties.

But whether or not Walters or Meyer is applicable, the Court finds that RCRA § 6001 on its face does not provide clearly and succinctly for a waiver of sovereign immunity for civil penalties, and none will be implied.

We turn then to MESS' alternative argument that the citizen suit provision, RCRA § 7002, provides the necessary vehicle for waiver of sovereign immunity. Again, the Court disagrees. While RCRA § 7002 specifically defines "person" to include the United States for purposes of administration of the statute and/or jurisdiction, the citizen suit provision specifically refers to civil penalties under subsections (a) and (g) of RCRA § 3008, 42 U.S.C. § 6928(a) and (g). A cursory review of subsections (a) and (g), which are the federal enforcement provisions relating to compliance orders and civil penalties, reveals that they do not refer to the United States but to "persons." The Court must then take into consideration the general definition of "person" in RCRA § 1004(15), 42 U.S.C. § 6903(15), which seems to name everyone under the sun save for the United States of America. The Court therefore adopts the reasonable interpretation set forth by the government that indeed Congress did not intend, nor did it legislate specifically, a waiver of sovereign immunity for civil penalties under the citizen suit provision.

This Court cannot believe that if Congress wished to waive immunity for civil penalties it could be so careful, so all-knowing, so engaged in foresight and insight as to define "person" to include the United States for purposes of jurisdiction in the RCRA citizen suit provision, and yet could forget, misappropriate, or be so negligent as to decline to include the United States in its overall, all-encompassing definition of "person" in RCRA § 1004(15), which is applicable to compliance orders and civil penalties. If I were to accept what has been espoused by plaintiff in this case, we would have a unique and absurd result whereby the Administrator of the Environmental Protection Agency would not be able to seek penalties against the United States because the United States is not a "person" within the meaning of RCRA § 3008(g), yet a private citizen could seek and be awarded the imposition of civil penalties under RCRA § 7002. If that is what Congress intended, it certainly escapes this Court. It is the opinion of this Court that that is not what Congress intended.

Rather than focusing my decision on intent per se, I look to the face of the legislation and thereafter to the legislative history, and I do not find the necessary clear unequivocal waiver of sovereign immunity for civil penalties under RCRA.

We turn next to the Clean Water Act. And although counsel have been very able in both their written and oral argument, I take great exception to counsel for plaintiff who indicates that here, at last, we have a clear enunciation of a waiver of sovereign immunity. If anything, the mud gets...