U.S. v. Town of North Hempstead, 198
| Decision Date | 20 November 1979 |
| Docket Number | D,No. 198,198 |
| Parties | , 10 Envtl. L. Rep. 20,060 UNITED STATES of America, Plaintiff-Appellee, v. The TOWN OF NORTH HEMPSTEAD et al., Defendants-Appellees, and The Citizens Concerned About the Landfill et al., Intervenors-Appellees, and The State of New York, Intervenor-Appellant. ocket 79-6128. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard P. Caro, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. N. Y., Harvey M. Stone, Asst. U. S. Atty., Brooklyn N. Y. and Stephen A. Dvorkin, E. P. A., New York City, on the brief), for plaintiff-appellee.
Angelo J. Mangia, Asst. Town Atty., Town of North Hempstead, Manhasset, N. Y. (Joseph A. Guarino, Town Atty., Town of North Hempstead, Manhasset, N. Y., on the brief), for defendants-appellees.
John G. Proudfit, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., and Robert S. Hammer, Asst. Atty. Gen., New York City, on the brief), for intervenor-appellant.
Before MEDINA, MANSFIELD and MESKILL, Circuit Judges.
This appeal involves some questions of considerable importance to those who reside in the vicinity of the Town of North Hempstead in Nassau County, Long Island, New York. The legal questions relate to the operation of the Roslyn incinerator and an extensive landfill used in connection with the disposal of huge quantities of garbage, rubbish and miscellaneous debris. Both the incinerator and the landfill are operated by and wholly under the control of the Town.
The events with which we are concerned start with a proceeding before the Environmental Protection Agency (EPA) pursuant to Section 113(a)(4) of the federal Clean Air Act 1 to investigate and report on violations of the Act by failure to comply with federal and state emission standards. This proceeding resulted in the finding by the EPA that the Roslyn incinerator was emitting approximately three times the permissible amount of particulate matter and was in clear violation of the federal statute. On February 19, 1976, the Government instituted this action in the District Court for the Eastern District of New York against the Town of North Hempstead and certain of its officials to require compliance with the EPA finding and order issued on March 31, 1975. The relief demanded in the complaint was for appropriate relief, including a permanent or temporary injunction. 2
To compel compliance the Government moved for summary judgment, I. e., for an order requiring the Town to proceed to upgrade the incinerator or to cease operations until it could meet applicable emission standards. The position of the Government in the early stages was that, upon the basis of the violation as found by the EPA and the non-compliance by the Town, the Government was Ipso facto, and irrespective of any attendant circumstances, entitled to an order of enforcement. We think this was too rigid a position and that proof of relevant circumstances was admissible in support of what we consider to be the Court's duty, in the exercise of its equitable powers, to fashion its decree in such a way as to deal fairly with the case. 3 We mention this only in passing as, irrespective of the over-comprehensive claim made by the Government, the record shows that the trial judge not only denied the motion for summary judgment, but he also gave the Town numerous delays, some relating to the upgrading of the incinerator.
During the pendency of the Government's motion for summary judgment, a committee, called the Citizens Concerned About the Landfill, made a motion to intervene on June 2, 1976, which was granted. Annexed to the motion papers was a complaint which was never served nor answered. The purpose of the intervention by the Citizens Concerned About the Landfill was merely to call the Court's attention to the fact that ordering the shutting down as opposed to the upgrading of the incinerator would result in the Town's having to dispose of all of its garbage in a landfill adjacent to the Citizens' homes, much to their discomfort. Nevertheless, as we shall see, and despite the fact that there was then no request or suggestion that he do so, the trial judge practically took over the management of the development and operation of the landfill, a strictly New York State affair.
How Did the Question of the Exercise of the So-Called
"Pendent" Jurisdiction by the District Judge Get
As far as we can discern from this voluminous record, this so-called "pendent" jurisdiction question simply slipped into the case by inadvertence. It was not in any way suggested by counsel for the Town. The Government's position was at first that the Court had no power to even consider matters pertaining to the landfill, a position which in the course of time gradually became a claim that the Court had no subject matter jurisdiction over the landfill. However, during the pendency of the Government's summary judgment motion the Citizens filed a memorandum with the Court on July 19, 1976 in which various options open to the Court were discussed, including the upgrading of the incinerator, the construction and use of a shredder, opposition to the immediate close-down of the incinerator, and the close-down only on certain conditions such as the removal of the dumping area to a place not so near to the residential area or to take the material to New Jersey or to some other distant location.
Thereafter, the Government made various motions to sever the landfill issues and proceed only with the adjudication of the federal issue concerning the incinerator. It was in connection with one of these motions, we think, that the Court got the idea of going into the landfill situation. In the transcript of January 21, 1977, at pages 38-39, the trial judge suggested that "the whole thing" should "go up" as a unit so that we (the Second Circuit Court of Appeals) could "realize what we're dealing with here." In this connection, he minimized the problem of the incinerator and referred to the operation and development of the landfill as "this large problem." It was then that the trial judge spoke of "the tail wagging the dog."
In any event, on December 29, 1976, during the progress of the trial, the Court stated at page 1576 of the trial transcript:
The fact that the state and the citizens have requested permission and have intervened in this lawsuit, they have subjected themselves to the jurisdiction of the Court, and as I see it the Court now has pendant (sic) jurisdiction as to the entire problem.
At the conclusion of the trial on December 29, 1976, the Court announced its decision permanently enjoining the operation of the incinerator after January 11, 1978 except in compliance with the applicable emission standards, and directing that all of the parties meet and submit proposals to the Court regarding the development of a new landfill site farther removed from the Citizens' homes.
After the proposals had been submitted, the trial judge began making frequent reference to what he undoubtedly considered his "pendent" jurisdiction over the landfill and, in the course of time, he began issuing various orders directing the New York State Department of Environmental Conservation (DEC) and the parties to do this and to do that. This went on for a long time with the apparent approval and consent of counsel for the parties, with the exception of the Government. As might well have been anticipated, there was a big difference between telling people to do things and getting them done. All sorts of major and minor disputes arose, due in no small measure to maneuvers by the Town, whose good faith in various matters is challenged in some of the briefs.
From the time the trial judge made his so-called "Final Judgment and Order" on July 11, 1978, the situation with which the parties were faced deteriorated rapidly. This was not only due to the fact that the order was in no real sense "final" and to the fact that it raised more problems than it solved, but also due to the fact that the trial judge had orally ruled that it was the duty of the DEC to file a design and plan which it refused to do. In any event, the Town on April 5, 1979 made a motion to vacate so much of the "Final Judgment" of July 11, 1978 as dealt with the landfill on the ground that the State, by refusing to design and develop the landfill plan, had made compliance impossible, and to vacate the so-called "modification" set forth in the letter of March 26, 1979 from the DEC. This led to a hearing on May 18, 1979 at which the trial judge outlined a plan to appoint a Special Master who, according to the judge, would "get the job done in the most efficient way possible." This prospect of further protracted delay was too much for all concerned, and it led to the making of two motions.
The first of these two motions was by the Town in effect renewing its first motion of April 5, 1979. The second of these two motions was by the State of New York 4 "dismissing further proceedings in this action on the grounds of lack of jurisdiction over the subject matter." The Court denied both motions without opinion, and the State of New York then brought this appeal.
While it may be that the State of New York at the time it filed its motion intended only to attack any exercise by the Court of subject matter jurisdiction over "further proceedings" relative to the landfill, we consider that it is our duty even on our own motion to consider subject matter jurisdiction Ab initio. We think it is also clear that the trial judge had no power to assume nor did any of the parties have power to confer any subject matter jurisdiction except such as arose from the application to the case of relevant provisions of the constitution and laws of the United States. Accordingly, and with respect to all parties, we shall now address ourselves to the question: Did the District Court for the Eastern...
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