Ward v. Coleman
| Citation | 423 F. Supp. 1352 |
| Decision Date | 22 December 1976 |
| Docket Number | CIV-76-0456-E.,No. CIV-76-0303-E,CIV-76-0303-E |
| Parties | L. O. WARD, Plaintiff, v. William G. COLEMAN, Jr., Individually and as Secretary of Transportation for the United States of America, et al., Defendants. UNITED STATES of America, Plaintiff, v. L. O. WARD and L. O. Ward Oil and Gas Operations, Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
COPYRIGHT MATERIAL OMITTED
Stephen Jones and James H. Gungoll, Enid, Okl., for L. O. Ward.
David L. Russell, U. S. Atty., and Richard F. Campbell, III, Asst. U. S. Atty., Oklahoma City, Okl., Bruce J. Chasan, and Earl Salo, Attys., Dept. of Justice, Washington, D.C., for U. S.
Harold B. Scoggins, Jr., Gen. Counsel, Independent Petroleum Association of America, Washington, D.C., amicus curiae.
33 U.S.C. § 1321(b) provides, in pertinent part:
On or about March 23, 1975, oil overflowed from an open-earth pit at a drilling site owned and operated by L. O. Ward and L. O. Ward Oil and Gas Operations and flowed into Boggie Creek, Garfield County, Oklahoma. A report of the incident was submitted by Ward and received by the Dallas office of the Environmental Protection Agency on or about June 25, 1975. The report was referred to the Second United States Coast Guard District and on the 19th of December, 1975, its Commander assessed a civil penalty of $500 against Ward.1 On December 26, 1975, Ward appealed the assessment to the Commandant of the Coast Guard, which appeal was denied on February 11, 1976.
On April 13, 1976, Ward brought action in this court for injunctive and declaratory relief, praying that a three-judge court2 declare unconstitutional and enjoin the enforcement of certain provisions of 33 U.S.C. §§ 1318, 1319, 1321 and of 40 C.F.R. 110.3 On June 4, 1976, the United States of America sued Ward and L. O. Ward Oil and Gas Operations to collect the unpaid penalty. The actions have been consolidated.4
Now before the court for disposition is defendants' motion for judgment on the pleadings or for summary judgment. Defendants argue that they are entitled to judgment as a matter of law because the penalty imposed is criminal or quasi-criminal and thus the self-reporting provision violates the protection against self-incrimination afforded by the Fifth Amendment to the Constitution of the United States; because the penalty is imposed without regard to fault, and such strict liability violates the protection against undue process afforded by the Fifth Amendment; and because the regulatory "sheen" test is not such a definition of harmful quantities of spillage as is authorized by the FWPCA.5
"The question of whether a given sanction is civil or criminal is one of statutory construction." One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972); Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938).
The sections of the FWPCA under attack read in pertinent part:
That Congress has labelled the penalty provided for in subsection (6) "civil" is entitled to due consideration. United States v. J. B. Williams Co., Inc., 498 F.2d 414, 421 (2d Cir. 1974). Provision for administrative imposition of the penalty is indicative of congressional intent to impose a civil sanction. Helvering, supra at 402, 58 S.Ct. 630.
However, it is not only the characterization given that section by Congress which is significant, but its juxtaposition with and distinction from the preceding subsection's provision for criminal penalty. "The fact that the sanctions were separate and distinct and were contained in different parts of the statutory scheme is relevant in determining the character of the penalty." One Lot Emerald Cut Stones, supra 409 U.S. at 236, 93 S.Ct. at 493.
This court is of the opinion that subsection (6) is unambiguous and that congressional intent to impose a civil penalty can be discerned from its face.6 That determination would be an end to this matter were the issue before the court solely one of statutory construction. But the (noncorporate) defendants in this case have raised constitutional issues, and inquiry beyond the face of the statute should be undertaken "when some constitutional protection is implicated by the imposition of a penalty." United States v. LeBeouf Bros. Towing Co., Inc., 537 F.2d 149, 151 (5th Cir. 1976); United States v. J. B. Williams Co., supra at 421.
The court deems such inquiry properly made by application of the criteria set forth in Kennedy v. Mendoza-Martinez, "the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character," to wit:
"whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned ...." 372 U.S. 144, 168-169, 83 S.Ct. 554, 567, 9 L.Ed.2d 644 (1963).
a. Affirmative Disability or Restraint
The question is not whether there is, or there is no, affirmative disability or restraint imposed, but whether the affirmative disability or restraint imposed is of a civil or criminal nature. This court concludes that the facts that only a monetary sanction is imposed and its collection is effectuated through a civil procedure bespeak of a civil penalty. See also United States v. Eureka Pipeline Co., 401 F.Supp. 934, 939 (N.D.W.Va.1975).
b. Historical Characterization
The result of this test can only be inconclusive: clearly, fines have long been meted out to sanction criminal conduct; on the other hand "civil penalties are not uncommon in federal law." American Smelting & R. Co. v. OSHRC, 501 F.2d 504, 515 (8th Cir. 1974); Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1204 (3d Cir. 1975).
c. Scienter
"This factor clearly points toward the remedial function of the § 1321(b)(6) penalty, since there is no requirement of scienter in the present statute."7 United States v. General Motors Corp., 403 F.Supp. 1151, 1162 (Conn.1975).
d. Purpose of the Sanction
Defendants contend that both the intent and the effect of the imposition of this penalty is "to punish spillers of oil."
The court does not agree that the provision for a penalty was designed to effect retribution. "The basic thrust of § 1321(b)(6) ... is aimed less at the acts of polluters than at the resulting pollution itself."8 General Motors, supra at 1162.
The FWPCA declares its objective to be "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 1251(a). Congress sought to facilitate achievement of this goal by, inter alia, including the self-reporting and penalty provisions "to prevent harmful spills9 and to minimize the damage caused by such spills."10 LeBeouf Bros., supra at 152.
That such provisions may promote the traditional criminal law aim of deterrence does not make the penalty, ipso facto, a criminal one. Indeed, it would be difficult to divorce the deterrent function from a regulatory scheme. "Business is encouraged to comply with the law not only because that is what the law exacts but because failing to do so will bring down on the activity or purse noncriminal consequences." Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1009 (5th Cir. 1975).
e. Whether Such Behavior is Already a Crime
The spilling of oil could be punished criminally. Rivers and Harbors Act, 33 U.S.C. §§ 407, 411. However, one who reports a spill would be entitled to invoke the immunity provision of § 1321(b)(5). The two courts which have had occasion to apply this...
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