Sierra Club v. Lujan

931 F.2d 1421, 1991 WL 65985
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 30, 1991
DocketNo. 90-1183
StatusPublished
Cited by8 cases

This text of 931 F.2d 1421 (Sierra Club v. Lujan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sierra Club v. Lujan, 931 F.2d 1421, 1991 WL 65985 (10th Cir. 1991).

Opinion

ALDISERT, Circuit Judge.

This appeal by the United States Department of the Interior and its Bureau of Reclamation requires us to interpret certain provisions of the Clean Water Act to determine whether Congress has waived the United States’ sovereign immunity and authorized the assessment of civil penalties against federal agencies for violations of the Act.

The plaintiffs, Sierra Club and Colorado Environmental Coalition, filed this citizen suit under Section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), seeking mandatory and declaratory relief and civil penalties against the Department of the Interi- or and the Bureau of Reclamation for violations of the Act. We conclude that both the plain language of sections 1323(a) and 1365(a) of the Act and its legislative history evidence Congress’ intent to waive sovereign immunity and to permit the assessment of civil penalties against the United States, and we affirm the judgment of the district court.

Trial court jurisdiction was proper under Section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), and 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1292(b), which permits interlocutory appeals, and Rule 5(a), F.R.A.P.

I.

The facts are undisputed. In 1972 Congress enacted the Clean Water Act (CWA or Act), 33 U.S.C. § 1251, et seq., “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Id. § 1251(a). The Act makes it unlawful to discharge pollutants into navigable waters unless authorized under its specific sections. Id. § 1311(a). It also establishes the National System, which allows the Environmental Protection Agency (EPA) to issue permits authorizing the discharge of pollutants. Id. § 1342(a). Upon EPA’s approval, a state may administer its own permit program. Id. § 1342(b).

The Department of the Interior and the Bureau of Reclamation own and operate the Leadville tunnel in Lake County, Colorado. In 1975 EPA issued the Bureau a National System permit for the Leadville tunnel which required the Bureau to ensure that drainage from the tunnel does not exceed specific effluent limitations and to submit to EPA a schedule for compliance. The EPA has reissued the permit several times.

On January 13, 1989, the Sierra Club and Colorado Environmental Coalition filed a complaint in federal district court alleging that the Interior Department and the Bureau had violated the 1975 National System permit by failing to comply with certain requirements. They asked the court (1) to issue a mandatory injunction enjoining further permit violations, (2) to order the agencies to pay civil penalties and (3) to declare that the agencies are in violation of the CWA. The agencies moved to dismiss the civil penalties claim for lack of subject [1423]*1423matter jurisdiction under Rule 12(b)(1), F.R. Civ.P., arguing that the CWA’s waiver of sovereign immunity does not include the assessment of civil penalties against the United States. Sierra Club and the Coalition countered with a motion for partial summary judgment on the same issue.

Concluding that the CWA waives sovereign immunity and authorizes civil penalties against the United States, the district court denied the agencies’ motion to dismiss on January 19, 1990, and granted the plaintiffs’ motion for partial summary judgment. Sierra Club v. Lujan, 728 F.Supp. 1513, 1518 (D.Colo.1990). On May 24, 1990, the district court approved a consent decree resolving all claims except the request for civil penalties. On June 14, 1990, the district court granted the agencies permission to file an interlocutory appeal under 28 U.S.C. § 1292(b). This appeal followed.

II.

We review de novo a district court’s decision regarding subject matter jurisdiction. Kunkel v. Continental Casualty Co., 866 F.2d 1269, 1273 (10th Cir.1989). We also review de novo a trial court’s grant of summary judgment, which requires us to examine the evidence in the light most favorable to the nonmoving party to ascertain (1) whether any genuine issues of material fact exist and (2) whether the district court correctly applied the relevant substantive law. Hokansen v. United States, 868 F.2d 372, 374 (10th Cir.1989). We may uphold “ ‘the granting of summary judgment if any proper ground exists to support the district court’s ruling.’ ” Id. (quoting Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384, 1391-92 (10th Cir.1988)).

III.

The United States, as sovereign, is immune from suit in the absence of its consent. Library of Congress v. Shaw, 478 U.S. 310, 315, 106 S.Ct. 2957, 2961-62, 92 L.Ed.2d 250 (1986). “[A] waiver of the traditional sovereign immunity ‘cannot be implied but must be unequivocally expressed’ ” by Congress. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969)); see Mitzelfelt v. Department of Air Force, 903 F.2d 1293, 1294-95 (10th Cir.1990). A court must strictly construe a waiver in favor of the sovereign and may not extend it beyond what the language of the statute requires. Ruckelshaus v. Sierra Club, 463 U.S. 680, 686, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983).

The arguments raised by the federal agencies in this appeal and the responses of the Sierra Club and the Coalition are grounded on specific provisions of the Clean Water Act. The litigants pick and choose parts of a comprehensive statute to sustain their respective positions. Because certain provisions, at least facially, have the capability of appearing inconsistent, it is necessary to set forth the statutory provisions in detail. We emphasize that our task requires correlating and coordinating parts of each provision. Indeed, in jumping from section to section, we will be fitting together pieces of a statutory jigsaw puzzle.

Our beginning point is Section 313 of the Clean Water Act, 33 U.S.C. § 1323(a), which exposes the federal government to the responsibilities under the Act:

Each department ... shall be subject to, and comply with, all Federal ... requirements ... and process and sanctions respecting the control and abatement of water pollution_ The preceding sentence shall apply ... to any process and sanction ...

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