Sierra Club v. Train

• Decision Date: 12 August 1977
• Docket Number: No. 75-4028,75-4028
• Citation: 557 F.2d 485
• Parties: , 7 Envtl. L. Rep. 20,670 SIERRA CLUB, Plaintiff-Appellant, v. Russell TRAIN, Administrator of the Environmental Protection Agency, et al., Defendants-Appellees, v. STATE OF ALABAMA et al., Intervenors-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 485

557 F.2d 485

10 ERC 1433, 7 Envtl. L. Rep. 20,670

SIERRA CLUB, Plaintiff-Appellant, v. Russell TRAIN, Administrator of the Environmental Protection

Agency, et al., Defendants-Appellees, v. STATE OF ALABAMA et al., Intervenors-Appellants.

No. 75-4028.

United States Court of Appeals, Fifth Circuit.

Aug. 12, 1977.

Edward Still, Birmingham, Ala., Ralph I. Knowles, University, Ala., for Sierra Club.

William J. Baxley, Atty. Gen., Henry H. Caddell, Asst. Atty. Gen., Montgomery, Ala., for State of Ala. Wayman G. Sherrer, U. S. Atty., L. Scott Atkins, Asst. U. S. Atty., Birmingham, Ala., Eva R. Datz, Carl Strass, Peter R. Taft, Asst. Attys. Gen., Dept. of Justice, Washington, D. C., for Train.

Charles A. Powell, III, John E. Grenier, Birmingham, Ala., for Mitchell Neely.

Martin Ray, Tuscaloosa, Ala., for Abston Const. Co.

Appeal from the United States District Court for the Northern District of Alabama.

Before TUTTLE, WISDOM and COLEMAN, Circuit Judges.

COLEMAN, Circuit Judge:

The Sierra Club filed a "citizen's suit" under 33 U.S.C. § 1365 (Supp.1976) for a writ of mandamus directing Russell Train, Administrator of the Environmental Protection Agency (EPA), to enforce the Federal Water Pollution Control Act Amendments of 1972 (FWPCAA) as required by 33 U.S.C. § 1319(a)(3) (Supp.1976) ¹ and for an injunction requiring Abston Construction Company, Inc. and Mitchell & Neely, Inc. to cease polluting Daniel Creek, and to restore it to its natural condition. A motion to dismiss defendant Train was filed, and the District Court ordered the dismissal, finding that although § 1365(a) (2) ² does confer district court jurisdiction over a citizen's civil action against an EPA Administrator for failure to perform a nondiscretionary duty under FWPCAA, the EPA Administrator's enforcement duties under § 1319(a)(3) are discretionary and, therefore, jurisdiction over this suit was lacking. The Sierra Club appealed Train's dismissal, contending that the jurisdictional prerequisites specified by § 1365(a)(2) did exist since the word "shall" in § 1319(a)(3) imposes a mandatory duty on the EPA Administrator to issue an order requiring Abston Construction Company, Inc. and Mitchell & Neely, Inc. to comply with the FWPCAA or to bring suit against those corporations to effectuate compliance, neither of which was done.

I.

After the Sierra Club's suit was filed, the United States, at the request of the Secretary of the Army, commenced an action to enjoin the United States Pipe and Foundry Company, among others, including Abston Construction Company, Inc. and Mitchell & Neely, Inc., the two corporate defendants in the Sierra Club suit, from discharging refuse matter and fill material into the Daniel Creek and the Black Warrior River, allegedly in violation of the FWPCAA of 1972 and of the Rivers and Harbors Appropriation Act of 1899, and to compel restoration of the Daniel Creek and the Black Warrior River to their conditions existing prior to the illegal discharge. The District Court ordered the United States' claims based upon the FWPCAA be dismissed without prejudice to the EPA Administrator's rights.

Based on the filing of United States v. United States Pipe and Foundry Company, No. 76-P-0035-W (N.D.Ala., filed Jan. 12 1976), Train contends that the Sierra Club's appeal from his dismissal as a defendant is moot since all of the relief being sought by the Sierra Club in this suit is also being sought by the United States in United States v. United States Pipe and Foundry. Accordingly, a motion to dismiss this appeal has been filed. The mootness question must be disposed of prior to determining whether or not § 1319(a)(3) imposes a mandatory duty on the EPA Administrator, a matter of statutory construction and the substantive issue of this case.

We must decide whether a suit commenced by the United States against Abston Construction Company and Mitchell & Neely, Inc., among others, under the Rivers and Harbors Appropriation Act of 1899 to enjoin discharge of refuse into navigable waters and to compel restoration of those waters to their natural conditions moots the Sierra Club's appeal from the dismissal of Train as a defendant in a citizen's suit for a writ of mandamus commanding the EPA Administrator to issue a pollution abatement order against the Abston Construction Company and Mitchell & Neely, Inc.

An appeal will be dismissed for mootness when a viable controversy between adverse parties susceptible to judicial resolution and relief no longer exists. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620 (1923); Allen v. Sisters of St. Joseph, 5 Cir. 1974, 490 F.2d 81. See generally 6A Moore's Federal Practice P 0.416(6), 57.13 (2d ed. 1974). The case between the Sierra Club and Train remains a live controversy susceptible to judicial resolution. A judicial decision on the merits will determine whether or not the EPA Administrator's duty under § 1319(a)(3) to issue a compliance order is mandatory. The filing of a suit by the United States to enjoin discharge of refuse does not satisfy the duty, if any, of the EPA Administrator to issue an order for compliance with the FWPCAA.

Filing of a suit by the United States to enjoin certain corporations from violating a Rivers and Harbors Appropriation Act provision which pronounces the discharge of refuse into navigable waters illegal does not moot the appeal from the dismissal of the EPA Administrator as a defendant in a suit to compel the EPA Administrator, as allegedly required by FWPCAA, to issue a pollution abatement order against two of the defendants in the United States' suit. The motion to dismiss Sierra's appeal as moot is denied.

II.

The substantive issue in this case is one of statutory construction, specifically whether § 1319(a)(3) imposes a discretionary or a non-discretionary duty on the EPA Administrator to issue an order requiring compliance with the FWPCAA. In statutory terms, the question is whether or not "shall" imposes a mandatory duty. If § 1319(a)(3) imposes a mandatory duty, then the District Court's dismissal of Train as a defendant for lack of subject matter jurisdiction was in error and must be reversed since § 1365(a)(2) confers jurisdiction on district courts over suits to compel the EPA Administrator to perform a mandatory duty; however, if the duty is discretionary, the District Court's dismissal was correct and should be affirmed.

The pertinent portions of FWPCAA, requiring construction, are set forth immediately following. Section 1319 provides:

(a)(3) Whenever on the basis of any information available to him the Administrator finds that any person is in violation of . . . (FWPCAA), he shall issue an order requiring such person to comply with . . . (FWPCAA), or he shall bring a civil action in accordance with subsection (b) of this section.

(b) The Administrator is authorized to commence a civil action for appropriate relief . . . for any violation for which he is authorized to issue a compliance order under subsection (a) of this section.

In interpreting statutes, a court's function "is to construe the language so as to give effect to the intent of Congress." United States v. Am. Trucking Ass'ns, 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). The most persuasive evidence of Congressional intent is the wording of the statute. Id. Upon "superficial examination," § 1319(a)(3)'s statutory language "shall" appears to clearly mandate that § 1319(a)(3) imposes a non-discretionary duty on the EPA Administrator. Use of the word "shall" generally indicates a mandatory intent unless a convincing argument to the contrary is made. C. Sands, Sutherland's Statutory Construction § 25.04 (4th ed. 1973). Such an argument may be waged when extrinsic aids such as the purpose of the statute, Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), the statute as a whole, or the legislative history indicates an intention that the statute be given a discretionary effect. United States v. St. Regis Paper Co., 2 Cir. 1966, 355 F.2d 688. Although a salutary rule of statutory construction prohibits resort to extrinsic aids when a statute on its face appears to be clear and unambiguous, we heed a caution which has been repeated with specific reference to the FWPCAA of 1972 that "(W)hen aid to construction of the meaning of the words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.' " Train v. Colorado Pub. Int. Research Group, 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976); Exxon Corp. v. Train, 5 Cir. 1977, 554 F.2d 1310 at p. 1322. In the instant case we think it imperative that we examine such aids to determine the intent of Congress.

The administrative agency's interpretation, along with the legislative history and the statute as a whole, are the aids which have been examined by this Court. The EPA, as the agency charged with enforcement of the FWPCAA, construes this statute as imposing a discretionary duty, and in absence of any cogent argument that the agency's construction is contrary to congressional intent, the agency's construction will be sustained. EPA v. State Water Resources Control Bd., 426 U.S. 200, 227, 96 S.Ct. 2022, 2035, 48 L.Ed.2d 578, 595 (1976). The Sierra Club contends that the legislative history demonstrates the inconsistency of the EPA's construction with Congress' intent. Yet, the Congressional materials accompanying the FWPCAA do not contain a definitive resolution of the discretionary v. non-discretionary conflict.

Even during the legislative stage, dissension existed over whether § 1319(a) (3) created a discretionary or non-discretionary duty. The discord is evidenced by the distinction between the Senate version and the House version of the bill:

Senate Bill

Section 309 requires the...