Save Our Sound Fisheries Ass'n v. Callaway, Civ. A. No. 5297.

• Decision Date: 23 February 1977
• Docket Number: Civ. A. No. 5297.
• Citation: 429 F. Supp. 1136
• Parties: SAVE OUR SOUND FISHERIES ASSOCIATION v. Howard A. CALLAWAY et al.
• Court: U.S. District Court — District of Rhode Island

429 F. Supp. 1136

SAVE OUR SOUND FISHERIES ASSOCIATION v. Howard A. CALLAWAY et al.

Civ. A. No. 5297.

United States District Court, D. Rhode Island.

February 23, 1977.

COPYRIGHT MATERIAL OMITTED

Ernest C. Torres, East Greenwich, R.I., John R. Allen, Providence, R.I., for plaintiff.

Everett Sammartino, Asst. U.S. Atty., Providence, R.I., Lloyd S. Guerci, Pollution Control Section, Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., John F. Dolan, Providence, R.I., for defendants.

MEMORANDUM AND ORDER

PETTINE, Chief Judge.

Plaintiff moves for an award of attorneys' fees and costs pursuant to the Federal Water Pollution Control Act of 1972 (FWPCA), 33 U.S.C. § 1365(d) (Supp.1976), and the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA) 33 U.S.C. § 1415(g)(4) (Supp.1976.)¹

The action giving rise to the motion was brought to enjoin defendants, the Secretary of the Army and the Chief of the Corps of Engineers of the United States Army, as well as a private corporation retained under government contract, from dumping dredged spoil at an ocean site off Rhode Island coastal waters without proper permits. An order issued enjoining further dumping in certain areas of those waters until such time as public hearings were held, and permits were issued and complied with. See Save Our Sound Fisheries Association v. Callaway (hereinafter SOSF I), 387 F.Supp. 292 (D.R.I.1974). It is undisputed now that the said injunction prohibited defendants from dumping about 50,000 cubic yards of dredge material at a location where eight million cubic yards from the same project had already been dumped in previous years. The government has now complied with the court order. A hearing has been held, a new location adopted, and the dumping of material dredged from the Providence River project has continued without further objection from plaintiff.

Jurisdiction to Award Attorneys' Fees

Without specific authorization federal courts are not free to award attorneys' fees to prevailing parties except in certain narrow circumstances not relevant here. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). However, Congress has passed an increasing number of remedial statutes which specifically provide for the award of attorneys' fees to litigants. See e. g., id., at 260 n. 33, 95 S.Ct. 1612. The possibility of such fees serves as an incentive for private parties to enforce provisions of various statutes deemed too important to be left to the limited enforcement resources of the Justice Department.

Both the FWPCA and the MPRSA grant federal courts jurisdiction over such "citizen suits", and provide in almost identical language for awards of attorneys' fees and costs.² Defendants argue that since this Court has previously based jurisdiction over this matter on the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1967), and on 28 U.S.C. § 1331 (1966), the citizen suit jurisdictional provisions, which authorize attorneys' fees, are inapplicable. In SOSF I, the Court stated:

Jurisdiction having been properly premised on the APA, 5 U.S.C. § 702, and on 28 U.S.C. § 1331(a), this Court need not reach the question of the applicability of the "citizen suit" provisions of both the FWPCA, 33 U.S.C. § 1365, and the MPRSA, 33 U.S.C. § 1415(g).

387 F.Supp. at 298. See also id., at 300 n. 9.

The Court passed the question of jurisdiction grounded directly on FWPCA and MPRSA, although it was properly presented and fully briefed, because jurisdiction for the purposes of injunctive relief was properly grounded otherwise. The Court thus avoided the difficult jurisdictional questions posed in applying the requirements of 33 U.S.C. § 1365 and § 1415(g) to the facts of this case. Other courts have since followed this Court's lead. See, e. g., Natural Resources Defense Council v. Callaway, 524 F.2d 79, 83 (2nd Cir. 1975); Natural Resources Defense Council v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 702 (1974); State of Minnesota, Spannaus v. Callaway, 401 F.Supp. 524 (D.Minn.1975). None of these opinions, finding jurisdiction over FWPCA and MPRSA claims under 28 U.S.C. § 1331, discussed the problems of awarding attorneys' fees, as provided by the FWPCA and MPRSA, when jurisdiction is thus acquired.

One possible approach, reading attorneys' fees provisions as applying to all suits brought to enforce the statutes, whether premised on the citizen suit provisions, § 1365 and § 1415(g), or otherwise, i. e. § 1331, is firmly foreclosed by the language of citizen suit provisions and their legislative history. Section 1365(d), for example authorizes courts to award fees and costs "in issuing any final order in any action brought pursuant to this section 1365" (emphasis added.) Had Congress wished to induce private enforcement of all of the FWPCA's provisions, it could easily have done so by changing "pursuant to this section 1365" to "pursuant to this Act". The legislative history shows without doubt that Congress sought to induce citizen suits with awards of attorneys' fees to remedy only specified acts of polluters and the Administrator of the Environmental Protection Agency (hereinafter, the Administrator). Jurisdiction over suits challenging other actions, illegal under the statutes, is not available under the citizen suit provisions. See 33 U.S.C. § 1365(a)(1)(A)-(B)(2); S.Rep. 92-414, 92nd Cong., 2nd Sess., reprinted in 1972 U.S.Code Cong. and Admin. News, p. 3747. A savings clause makes possible suits under the Administrative Procedure Act and 28 U.S.C. § 1331 to remedy a broad range of illegal actions under the FWPCA and MPRSA; but the normal American rule on attorneys' fees applies to such suits. See 33 U.S.C. § 1365(e); 33 U.S.C. § 1415(g)(5). See also Natural Resources Defense Council v. Train, supra, at 699-701. Cf. Citizens Ass'n of Georgetown v. Washington, 175 U.S.App.D.C. 356, 535 F.2d 1318, 1320 (district court may not award fees where jurisdiction over claims arising under the Clean Air Act is based on 28 U.S.C. § 1331 rather than on citizen suit provisions).³

Plaintiffs contend that SOSF I did not dispositively reject jurisdiction premised on the citizen suit provisions of the FWPCA and MPRSA. The Court agrees. In SOSF I, there was no need to reach the difficult question of whether the formal notice requirements of §§ 1365 and 1415(g) are a strict jurisdictional bar on the maintenance of this suit under those provisions. SOSF I, supra, 387 F.Supp. at 298, 300 n. 9. Because plaintiff's request for attorneys' fees can be granted only if such jurisdiction exists, such an inquiry is now necessary.

Both §§ 1365 and 1415(g) authorize citizen suits against limited categories of violations. Sixty-day notice of the alleged violation to the Administrator, the alleged violator, and the State in which the violation occurs (FWPCA), or the Secretary of the Army and the violator (MPRSA) is a pre-requisite to the maintenance of such suits, with certain exceptions described infra.⁴ The suit at bar challenged violations of the FWPCA and MPRSA for which citizen suits are authorized.⁵ Therefore, an award of attorneys' fees is authorized only if the notice requirements were met or were inapplicable. Two basic theories have been advanced to justify the Court's holding that it has jurisdiction to award attorneys' fees in this case.

A. The 60-day notice requirement in § 1365(b) does not apply to actions respecting violations of §§ 1316 or 1317(a). 33 U.S.C. § 1365(b). Pointing to paragraph 8 of their amended complaint,⁶ plaintiffs argue that they have sought to remedy a violation of § 1317(a). The Court rejects this argument. Paragraph 8 challenges illegal dumping; but section 1317(a)(5) does not prohibit illegal dumping. It merely directs the Administrator to designate categories of sources (including dumping of dredged material) to which effluent standards will apply. Violations of § 1317(a) consist solely of the failure of the Administrator to issue and publish lists, categories, and standards. Substantive violation of those standards by polluters is not covered by § 1317(a), but rather by § 1317(d). Thus, paragraph 8 does not allege a violation of § 1317(a) justifying this Court's jurisdiction in the absence of 60-days' notice of the violation to the necessary parties.⁷ Indeed, as of August 1973, there were as yet no relevant standards issued pursuant to § 1317(a) for which paragraph 8 could have alleged a violation. See NRDC v. Train, 8 E.R.C. 2120 (D.D.C. Nos. 73-2153 et seq., June 8, 1976).

Nor does paragraph 8 of plaintiff's amended complaint, supra, properly allege a violation of any portion of § 1316 so as to fall within § 1365(b)'s waiver of the 60-day notice requirement. Section 1316(e), the only arguably relevant subsection, provides:

After the effective date of standards of performance promulgated under this section, it shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.

However, the only standards of performance to which the Court has been directed are those published at 38 Fed.Reg. 8725 and 12871 (April 5, 1973 and May 16, 1973).⁸ These regulations are entitled "Ocean Dumping," and are explicitly issued pursuant to title I of the MPRSA and § 403(c) of the FWPCA (33 U.S.C. § 1343(c)). Since these regulations are not promulgated under § 1316, allegations that they have been violated cannot serve to authorize suit absent 60-days notice.⁹

Because plaintiff's complaint does not properly allege violations of either § 1316 or § 1317(a), the Court concludes that plaintiff has not brought itself within the narrow exceptions to the 60-day notice requirement set forth in § 1365(b).

B. Plaintiff also contends that the 60-day notice provision of §§ 1365(b) and 1415(g)(2) should be deemed either satisfied, or not jurisdictional, in the narrow circumstances presented he...