United States v. City of Irving

482 F. Supp. 393, 10 Envtl. L. Rep. (Envtl. Law Inst.) 20408, 1979 U.S. Dist. LEXIS 10140
CourtDistrict Court, N.D. Texas
DecidedAugust 29, 1979
DocketCiv. A. No. CA-3-78-0617-D
StatusPublished
Cited by3 cases

This text of 482 F. Supp. 393 (United States v. City of Irving) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. City of Irving, 482 F. Supp. 393, 10 Envtl. L. Rep. (Envtl. Law Inst.) 20408, 1979 U.S. Dist. LEXIS 10140 (N.D. Tex. 1979).

Opinion

ORDER

ROBERT M. HILL, District Judge.

Came on for consideration the Motion to Dismiss of defendant City of Irving (“Irving”) and the Motion to Intervene as Plaintiffs of Atlas Metal Works, Inc., H. R. Bright, Brookhollow Corporation, Trammel Crow, East Texas Motor Freight Lines, Inc., Industrial Properties Corporation, John M. Stemmons, Hercules Thomas, and the Reverend T. L. Young (“Intervenors”).

Plaintiffs United States and City of Dallas (“Dallas”) allege that Irving’s landfill operations violate 33 U.S.C. § 701c (1970) (“Section 701c”) and the applicable federal regulations, 33 C.F.R. §§ 208.10(a)-(h) (1978) (“regulations”), and 33 U.S.C. § 408 (1970) (“Section 408”). Dallas also alleges that Irving’s operations constitute a nui[395]*395sanee under Texas law. Irving moves to dismiss all of plaintiffs’ claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted:'

After hearing the argument of counsel on Irving’s Motion to Dismiss and reviewing the parties’ briefs on both motions, the Court is of the opinion that Irving’s Motion to Dismiss should be denied except with respect to Dallas’ cause of action under Section 701c and that the Motion to Intervene should be granted.

Motion to Dismiss

Irving’s Motion to Dismiss plaintiffs’ claims under Section 701c and the regulations raises infrequently litigated issues. Neither the parties nor the Court have found any reported decision that delineates the authority of the United States or a municipality to enforce Section 701c and the regulations. Nevertheless, an analysis of the relevant regulatory scheme compels the Court to imply a cause of action under Section 701c and the regulations in favor of the United States. Section 701c requires only that political subdivisions, such as Dallas and Irving, give “assurances satisfactory to the Secretary of the Army that they will maintain and operate all the [flood] works after completion in accordance with regulations prescribed by the Secretary of the Army” before the federal government spends any money on the works’ construction. The regulations then involve both local and federal officials in the maintenance of the floodworks. For example, the regulations require political subdivisions to appoint a “permanent committee headed by [a] permanent committee . ‘Superintendent, who shall be responsible for the development and maintenance of, and directly in charge of, an organization responsible for the efficient operation and maintenance of all the structures and facilities . . . and for continuous inspection of the project works. . . .”33 C.F.R. § 208.10(a)(2). The regulations then provide for continuous contact between the Superintendent and federal officials. See 33 C.F.R. §§ 208.10(a)(5) to (8) and 208.10(a)(10). The Court holds that the United States must be empowered to sue for alleged violations of Section' 701c and the regulations because these provisions envision ongoing federal oversight. Compare United States v. City of Rock Island, 230 F.Supp. 654 (S.D.Ill.1964), aff’d 346 F.2d 361 (7th Cir. 1965) with U.S. v. Mattson, 600 F.2d 1295 (9th Cir. 1979) and U.S. v. Solomon, 563 U.S. 1121 (4th Cir. 1977).1

However, the Court is unwilling to imply a cause of action under Section 701c and the regulations in favor of Dallas. The Court concludes that the implication of a cause of action in favor of Dallas would be inconsistent with the scheme of federal enforcement evident in the regulations. Cf. Akers v. Resor, 339 F.Supp. 1375 (W.D. Tenn.1972) (individuals who alleged that State’s non-compliance with Section 701c injured their interest in environment had no standing to sue because Section 701c committed quality of “assurances” to federal agency’s discretion) (alternative holding).

The Court need not dismiss Dallas as a party-plaintiff, though, because both Dallas and the United States have stated causes of action under Section 408. It is well-settled that the United States has standing to sue for alleged violations of the provisions of the Rivers and Harbors Act, 33 U.S.C. §§ 401-415 (1970). Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960); Sanitary District of Chicago v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1924); United States v. Federal [396]*396Barge Lines 573 F.2d 993 (8th Cir. 1978). Furthermore, the majority of federal courts, including the Court of Appeals for the Fifth Circuit, have implied a right of action under certain sections of the Rivers and Harbors Act in favor of parties other than the United States. James River and Kanawha Parks, Inc. v. Richmond Metropolitan Authority, 481 F.2d 1280 (4th Cir.), aff’ing per curiam, 359 F.Supp. 611 (E.D. Va.1973); Alameda Conservation Association v. California, 437 F.2d 1087 (9th Cir.), cert. denied sub. nom. Leslie Salt Co. v. Alameda Conservation Association, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971); Neches Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928); Booker v. Rochelle, 23 F.2d 492 (5th Cir. 1928); Sierra Club v. Morton, 400 F.Supp. 610 (N.D.Cal. 1975); Potomac River Association, Inc. v. Lundeberg Maryland Seamanship School, Inc., 402 F.Supp. 344 (D.Md.1975); Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099 (N.D.Cal.1972); contra, Red Star Towing and Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104 (3d Cir. 1970); Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140 (N.D.Ala. 1971), aff’d per curiam, 456 F.2d 1294 (5th Cir. 1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1352, 35 L.Ed.2d 613 (1973).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Board of Commissioners v. Tennessee Gas Pipeline Co.
88 F. Supp. 3d 615 (E.D. Louisiana, 2015)
Creppel v. United States Army Corps of Engineers
500 F. Supp. 1108 (E.D. Louisiana, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
482 F. Supp. 393, 10 Envtl. L. Rep. (Envtl. Law Inst.) 20408, 1979 U.S. Dist. LEXIS 10140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-city-of-irving-txnd-1979.