State of Maine v. M/V Tamano

• Decision Date: 26 April 1973
• Docket Number: Civ. No. 13-114.
• Citation: 357 F. Supp. 1097
• Parties: STATE OF MAINE et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, Third-Party Defendants.
• Court: U.S. District Court — District of Maine

357 F. Supp. 1097

STATE OF MAINE et al., Plaintiffs, v. M/V TAMANO et al., Defendants and Third-Party Plaintiffs, v. UNITED STATES of America, Third-Party Defendants.

Civ. No. 13-114.

United States District Court, D. Maine, S. D.

April 26, 1973.

Jon A. Lund, Atty. Gen., E. Stephen Murray, Asst. Atty. Gen., Environmental Protection Div., Augusta, Me., for plaintiffs.

John F. O'Connell and Joseph C. Smith, New York City, Roger A. Putnam and John A. Mitchell, Portland, Me., for Portland Pilots and Capt. Dunbar.

Thomas R. McNaboe, James P. Lansing and Benjamin Thompson, Portland, Me., for M/V TAMANO.

Peter Mills, U. S. Atty., Portland, Me., Emmett B. Lewis and Allen van Emmerik, Admiralty and Shipping Section, Dept. of Justice, Washington, D. C., for U.S.A.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

The State of Maine and the Board of Environmental Protection, an agency of the State, have brought this suit to recover damages incurred as a result of the discharge into the waters of Casco Bay of approximately 100,000 gallons of Bunker C oil from the tanker M/V TAMANO early on the morning of July 22, 1972, when she struck an outcropping of "Soldier Ledge" while passing through Hussey Sound en route to the port of Portland.¹ Plaintiffs seek to recover damages in three distinct categories: (1) the State in its proprietary capacity seeks to recover for damage to property, such as state parks, which the State itself owns, including the land under the waters of the marginal seas of the State;² (2) the Board, by virtue of the authority granted it by the Maine Oil Discharge Prevention and Pollution Control Act, 38 M.R.S.A. § 541 et seq. (1972 Supp.) sues to recover all sums expended or to be expended by it in payment of third-party damage claims and clean-up costs;³ and (3) the State in its parens patriae capacity "as owner and/or trustee for the citizens of the State of Maine of all of the natural resources lying in, on, over, under and adjacent to" its coastal waters seeks to recover for damage to such waters and the marine life therein. Defendants concede that plaintiffs have valid causes of action with respect to the first two categories, but they contest that the State has stated a viable claim as to the third, and have moved to dismiss the complaint to that extent. Their assertion is essentially that the State has no sufficiently independent interest in its coastal waters and their marine life to permit it to sue as parens patriae on behalf of its citizens. The Court disagrees.

Suits by a State, parens patriae, have long been recognized. Thus the Supreme Court has entertained suits parens patriae to enjoin the discharge of sewage into the Mississippi River, Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901); to restrain the diversion of water from an interstate stream, Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907); to prevent a copper company from discharging noxious fumes across a state border, Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907); to enjoin the discharge of sewage into New York harbor, New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65 L.Ed. 937 (1921); to preclude restraints on the commercial flow of natural gas, Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); to restrain drainage changes increasing the flow of water in an interstate stream, North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923); and to enjoin alleged discriminatory freight rates charged by railroad companies to the State and its citizens, Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S. Ct. 716, 89 L.Ed. 1051 (1945).⁴

These cases establish that the right of a State to sue as parens patriae is not limited to suits to protect only its proprietary interests; a State also may maintain an action parens patriae on behalf of its citizens to protect its so-called "quasi-sovereign" interests. Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 258, 92 S.Ct. 885, 31 L.Ed. 2d 184 (1972); Georgia v. Pennsylvania R. Co., supra 324 U.S. at 447, 65 S.Ct. 716. A quasi-sovereign interest must be an interest of the State "independent of and behind the titles of its citizens," Georgia v. Tennessee Copper Co., supra, 206 U.S. at 237, 27 S.Ct. at 619; that is, in order to maintain a parens patriae suit, the State "must show a direct interest of its own and not merely seek recovery for the benefit of individuals who are the real parties in interest." Oklahoma v. Cook, 304 U.S. 387, 396, 58 S.Ct. 954, 958, 82 L.Ed. 1416 (1938).⁵

It is clear that Maine has an independent interest in the quality and condition of her coastal waters. It has long been established by decisions of the Supreme Court, and of the Supreme Judicial Court of Maine, that a State has sovereign interests in its coastal waters and marine life, as well as in its other natural resources, which interests are separate and distinct from the interests of its individual citizens. In McCready v. Virginia, 94 U.S. 391, 24 L.Ed. 248 (1876), the Supreme Court stated:

The principle has long been settled in this court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. In like manner, the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. Id. at 394 (citations omitted).

See also Geer v. Connecticut, 161 U.S. 519, 529, 534, 16 S.Ct. 600, 40 L.Ed. 793 (1896). More recently, in Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), Mr. Justice Frankfurter, joined by Mr. Justice Jackson, concurring, reaffirmed the continued vitality of McCready and described the foundation of the State's power to protect its natural resources as follows:

A State may care for its own in utilizing the bounties of nature within her borders because it has technical ownership of such bounties or, when ownership is in no one, because the State may for the common good exercise all the authority that technical ownership ordinarily confers. Id. at 408, 68 S.Ct. at 1168.⁶

Similarly, the Maine Court has repeatedly declared the sovereign interests of the State in its coastal waters. In State v. Peabody, 103 Me. 327, 69 A. 273 (1907), the court stated:

It is a well settled principle of the common law that the fish in the waters of the state, including the sea within its limits as well as the game in its forests belong to the people of the State in their collective sovereign capacity. Id. at 330, 69 A. at 274.

And again, in State v. Leavitt, 105 Me. 76, 72 A. 875 (1909), the court affirmed the State's sovereign interests in the waters along its coast:

It is, therefore, settled law that each State, unless it has parted with title . . . owns the bed of all tidal waters within its jurisdiction, and as well, the tide waters themselves and the fish in or under them, so far as they are capable of ownership. For this purpose the State represents the people in their united sovereignty. The right which the people thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is in fact a property right . . . . Id. at 79, 72 A. at 877.

See also State v. Ruvido, 137 Me. 102, 15 A.2d 293 (1940); State v. Lemar, 147 Me. 405, 87 A.2d 886 (1952); State v. Alley, 274 A.2d 718 (Me.1971).

Defendants further urge that in order to maintain a parens patriae action, the State must also show that the damage to its coastal waters has an adverse effect upon a substantial part of its citizens, see Hawaii v. Standard Oil Co. of California, 301 F.Supp. 982 (D. Haw.1969), rev'd on other grounds, 431 F.2d 1282 (9th Cir. 1970), aff'd, 405 U. S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). Whether or not this is a requirement, see Note, State Protection of Its Economy and Environment: Parens Patriae Suits for Damages, 6 Col.J.Law & Soc.Prob. 411, 418 (1970), it is plainly met here. The conclusion is inescapable that if injury to Maine's coastal waters and marine life has occurred as a result of this spill, the environment of the State and the recreational opportunities and welfare of all her citizens have seriously suffered. In the words of Georgia v. Pennsylvania R. Co., supra, 324 U.S. at 451, 65 S.Ct. at 723, "these are matters of grave public concern in which Maine has an interest apart from that of particular individuals who may be affected. Maine's interest is not remote; it is immediate." See also Georgia v. Tennessee Copper Co., supra, 206 U.S. at 238, 27 S.Ct. 618; Kansas v. Colorado, supra, 206 U.S. at 99, 27 S.Ct. 655; Missouri v. Illinois, supra, 180 U.S. at 241, 21 S.Ct. 331.

Defendants argue finally that the State cannot maintain a parens patriae suit for damages. They correctly observe that all but two of the Supreme Court parens patriae cases were actions for solely injunctive relief. And it is true that in both of its parens patriae damages suits, the Supreme Court denied recovery: in Georgia v. Pennsylvania R. Co., supra, involving a conspiracy to fix railroad rates, because the allegedly collusive rates had been approved by the Interstate Commerce Commission and a damage award would have constituted an improper rebate, id., 324 U.S. at 453, 65 S.Ct. 716, in Hawaii v. Standard Oil Co. of California, supra, a civil antitrust case, because the Court held that Section 4 of the Clayton Act does not authorize damages for an injury to the general economy of the State, id., 405 U.S. at 264-266, 92 S.Ct. 885. But the plain implication to be drawn from both cases is that, absent some substantive bar, the Court was willing to allow damages to a State suing as parens patriae. See Hawaii v. Standard Oil Co. of California, supra, 301 F.Supp. at 987; Note, State Protection of Its Economy and...