State of Texas v. Pankey

• Decision Date: 10 May 1971
• Docket Number: No. 353-70.,353-70.
• Parties: The STATE OF TEXAS, Plaintiff-Appellant, v. Reuben PANKEY, Jim Brown, Marcus Burks, W. F. Martin, Frank Sauble, T. L. Roach, Carl Hennegan and Dewey Gann, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

441 F.2d 236 (1971)

The STATE OF TEXAS, Plaintiff-Appellant, v. Reuben PANKEY, Jim Brown, Marcus Burks, W. F. Martin, Frank Sauble, T. L. Roach, Carl Hennegan and Dewey Gann, Defendants-Appellees.

No. 353-70.

United States Court of Appeals, Tenth Circuit.

February 8, 1971.

Rehearing Denied March 8, 1971.

Second Rehearing Denied May 10, 1971.

Crawford C. Martin, Atty. Gen. of Tex., and Nola White, Alfred Walker, Vince Taylor, Roland Allen, Sally Phillips, Malcolm Smith, Richard W. Chote, Roger B. Tyler, Asst. Attys. Gen., filed brief for plaintiff-appellant.

Modrall, Seymour, Sperling, Roehl & Harris, and James E. Sperling and John R. Cooney, Albuquerque, N. M., filed brief for defendants-appellees.

Before LEWIS, Chief Judge, and PHILLIPS and JOHNSEN^*, Circuit Judges.

JOHNSEN, Circuit Judge.

The appeal is from the dismissal, for lack of jurisdiction, of a suit for an injunction, instituted by the State of Texas in the District Court for the District of New Mexico, against some citizens of the State of New Mexico. We think the court erred in its holding, and we reverse.

Eight owners or operators of ranch lands within the watershed of the Canadian River in New Mexico were named as defendants, and all other New Mexico ranchers within the watershed were attempted to be included with them on a class basis. The complaint sought to have the defendants enjoined from using Toxaphene, a chlorinated camphene pesticide, as spray upon their lands for eradicating range caterpillars. Any such application of this chemical, it was alleged, would for a year's time through rainfall carriage, occasion harmful pollution to the water and aquatic life of the Canadian River and improper impairment of Texas' right to natural utilization and enjoyment thereof, in the flow of that stream from New Mexico into Texas. In particular, it was charged that the chemical would cause the water of Lake Meredith, as part of the Canadian River system in Texas, to become unuseable as the source of water supply for eleven Texas municipalities.

The questions presented here are (1) whether the jurisdiction conferred on the district courts by 28 U.S.C. § 1331 (a) derived from the Act of March 3, 1875, 18 Stat. 470, over actions wherein the matter in controversy arises under the Constitution or laws of the United States, has application to actions involving such a matter when the suit is one instituted by a State; and (2) if § 1331 (a) does have application in such a party situation, whether the rights which the State of Texas sought to have protected are matters arising under the Constitution or laws of the United States in such sense or on such basis as to be within the signification of that term in its use in the statutory section.

Section 1331(a) Provides:

"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."

The first question above is, we think, clearly answered against appellees' contention here, by Ames v. Kansas, 111 U.S. 449, 470-472, 4 S.Ct. 437, 28 L.Ed. 482 (1884). There, the State of Kansas had instituted some suits in one of its own courts against a number of corporations, and the defendants had removed the cases under the Act of 1875 to the Circuit Court of the United States for the District of Kansas because of federal rights being involved. Kansas contended that, even though federal rights were involved, the Act of 1875 did not and could not give jurisdiction to the Circuit (now District) Courts of any such action in which a State was a party, because of the provision of Art. III, Sec. 2 of the Constitution that "In all Cases * * * in which a State shall be Party, the Supreme Court shall have original Jurisdiction".

The Supreme Court rejected the contention on the ground that the original jurisdiction vested in it as to all cases in which a State was a party had not, either by the Constitution or by a statute, been made exclusive. It went on to say (111 U.S. at 470, 4 S.Ct. at 447.):

"The only question we have to consider is, therefore, whether suits cognizable in the courts of the United States on account of the nature of the controversy, and which need not be brought originally in the supreme court, may now by virtue of the Act of 1875 be brought in or removed to the circuit courts without regard to the character of the parties".

It held that the jurisdiction granted by the statute to the Circuit Courts was not required to be given qualification on the basis of the parties involved, but that the scope of the statute was "without regard to the character of the parties".

This holding and construction of the Act of 1875 does not appear to have been since departed from in any way. The holding would inherently have application as much to controversies involving federal rights between a State and citizens of another state as to controversies of that nature between a State and its own citizens (which was the situation in the Ames case). Also, the holding necessarily would carry the implication that there would be no force in an argument, if attempted to be made, that a purported granting of concurrent jurisdiction to a lower federal court, as to any matter or aspect of which the Supreme Court has been given original (but not exclusive) jurisdiction, should be regarded as not being intended to be made unless the statute contains an express specification of the particular matter or aspect here, "in which a State shall be Party" as to which such a concurrent authority is desired to be extended.

The State of Texas thus, if federal rights within the purview of § 1331 (a) were here involved, had the options in the present situation of instituting a suit in the State courts of New Mexico or in the Federal District Court for the District of New Mexico, or of seeking leave from the United States Supreme Court to file an original action there.

Its reason for not going into the State courts of New Mexico was perhaps the traditional concept, given expression in Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 289, 8 S.Ct. 1370, 1373, 32 L.Ed. 239 (1888):

"The object of vesting in the courts of the United States jurisdiction of suits by one State against the citizens of another was to enable such controversies to be determined by a national tribunal, and thereby to avoid the partiality, or suspicion of partiality, which might exist if the plaintiff state were compelled to resort to the courts of the state of which the defendants were citizens".

Its reason, however, for choosing to file suit in the Federal District Court for the District of New Mexico, if a federal right within the purview of § 1331 (a) was involved, instead of seeking to get the Supreme Court to exercise its original jurisdiction in the situation, is a matter of no moment or concern here. Offhand, it might perhaps seem that a State ordinarily would, as a matter of its stature and dignity, choose to request the Supreme Court to accept original jurisdiction of any suit which it desired to institute, the same as to a federal right claim as to any other. Further it seems to us that the Supreme Court has not in the past — perhaps because of its deference for the stature and dignity of the State — engaged in making any distinction between federal right claims and justiciable claims of other nature in relation to permitting a State to file an original suit before it. Such at least is the impression we gain from cases such as Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) and Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 8 S.Ct. 1370, (1888) (viewing the latter on its basic full-faith and credit question.)

But if a State elects instead to go into a Federal district court to institute a suit on a matter which is within the purview of § 1331(a), as Texas asserts is the situation here, Ames v. Kansas, supra, leaves no room to deny it that right because it may seem singular that it does not attempt to resort to the more prestigious channel — and possibly the more singular when there is a direct precedent for the filing of such an original action as to the particular type of situation, which there is here from the case of Georgia v. Tennessee Copper Co., supra, (discharge of noxious gases into Georgia by some Tennessee copper plants). Rather, we would think that Texas' willingness to have the matter determined by a lower federal court, notwithstanding the precedential situation for an original action, ought to be commended as an appropriate regard by it for not unnecessarily increasing the present burdens of the Supreme Court.

Consideration, however, remains to be made in relation to all this of the second question noted above — whether the rights which the State of Texas sought to have protected are matters arising under the Constitution or laws in such sense or on such basis as to be within the signification of that term in § 1331 (a).

The phrase "arising under", etc., has never come to have an absolute signification or unvarying scope either in its use generally or in relation to § 1331(a). Two aspects are therefore necessary to be dealt with as to the present situation: (1) Is the right of a State to be protected, as asserted by Texas here, from an improper impairment of its natural conditions of environment and resources, by acts done outside its boundary and so not subject to local reach or control by it, a matter which at all arises under the Constitution or laws of the United States? (2) If Texas' claim can be properly regarded as so arising on some basis, is that basis such as to constitute it a federal right which is within the jurisdictional purview or § 1331(a)?

It seems clear from the Tennessee Copper Co. case, supra, that the Court regarded a...