alleged violation occurs, and to the alleged violator, 33 U.S.C. § 1365(b)(1). The EPA has published regulations specifically detailing who should receive the notice and what information should be contained in the notice. See 40 C.F.R. §§ 135.2 and 135.3. The plaintiffs herein have not complied with the notice provisions of § 1365 nor with the provisions of the EPA's regulations. Indeed, the Administrator of the EPA is not even named as a party to the lawsuit -- even though § 1365 clearly contemplates that suits against the EPA should be directed at the Administrator.
Plaintiffs contend that the technical requirements of § 1365 should be ignored in the present case because the "spirit" of the requirements has been satisfied. Plaintiffs point out that they did notify the Regional Director of EPA more than sixty (60) days before filing their amended complaint. However, this Court is not at liberty to ignore the requirements of federal statutes and regulations -- "technical" though they may appear to be. Where Congress provides a statutory method for obtaining review of administrative decisions, that method must be strictly adhered to. See Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975); United States v. Ruzicka, 329 U.S. 287, 67 S. Ct. 207, 91 L. Ed. 290 (1946); SEC v. Andrews, 88 F.2d 441 (2d Cir. 1937). The plaintiffs' failure to do so here compels the Court to dismiss their action under the FWPCAA. Compare Pinkney v. Ohio Environmental Protection Agency, 375 F. Supp. 305, 307-9 (N.D.Ohio 1974); City of Highland Park v. Train, 374 F. Supp. 758, 765-67 (N.D.Ill.1974).
As jurisdictional alternatives to the FWPCAA, the plaintiffs seek to rely on the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, et seq., the Administrative Procedure Act, 5 U.S.C. § 551, et seq., and § 701, et seq., and the federal mandamus statute, 28 U.S.C. § 1361. All of these claims must fail.
While this Court may have jurisdiction to hear plaintiffs' claim insofar as it "arises under" the Rivers and Harbors Act, see 28 U.S.C. §§ 1331 and 1337, the claim under that Act must nonetheless be dismissed for failure to state a claim upon which relief may be granted. In substance, the Rivers and Harbors Act provides for the assessment of civil and criminal penalties against persons or corporations who, without authorization, perform some activity which might impede the navigability of the nation's waterways. The Act contains no express authorization of private civil actions. Nor can such a private remedy fairly be implied from the text and purpose of the Act. See Red Star Towing and Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 105-6 (3d Cir. 1970); cf. Guthrie v. Alabama By-Products Co., 328 F. Supp. 1140, 1144-9 (N.D.Ala.1971), aff'd, 456 F.2d 1294 (5th Cir. 1972); n. 4, supra.
Similarly, plaintiffs cannot maintain this action on the authority of the Administrative Procedure Act. While the various circuits are irreconcilably split on the issue, compare, e.g., Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967) with Pickus v. United States Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107 (D.C.Cir. 1974), the clear law in the Third Circuit is that the Administrative Procedure Act does not create an independent jurisdictional basis for suits challenging government agency actions. Chaudoin v. Atkinson, 494 F.2d 1323, 1328 (3d Cir. 1974); Zimmerman v. United States, 422 F.2d 326, 330-32 (3d Cir. 1970), cert. denied, 399 U.S. 911, 90 S. Ct. 2200, 26 L. Ed. 2d 565 (1970).
Finally, the plaintiffs' attempt to invoke federal mandamus jurisdiction, 28 U.S.C. § 1361,
also must fail. Mandamus is an extraordinary remedy, available only in situations where government officials clearly have failed to perform non-discretionary duties. See Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941, 90 S. Ct. 953, 25 L. Ed. 2d 121 (1969). Moreover, mandamus is not available when an alternative adequate remedy exists. See Ex parte Republic of Peru, 318 U.S. 578, 584, 63 S. Ct. 793, 87 L. Ed. 1014 (1943); Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972), rev'd on other grounds, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974); Carter v. Seamans, supra.
In the present case, plaintiffs obviously have an alternative adequate remedy -- that is, an action under the "citizen suits" provision of the FWPCAA. Such an action, if successful, would result in an order requiring the EPA to exercise jurisdiction over Raab's filling activities. In effect, plaintiffs would receive the complete relief sought in the present action. Where Congress establishes a statutory method for reviewing administrative action, as here, an aggrieved party cannot avoid compliance with the statutory process by bringing a mandamus action. See Wilmot v. Doyle, 403 F.2d 811, 816 (9th Cir. 1968).
In accordance with this opinion, defendants' motions to dismiss the complaint are granted. Plaintiffs' motion for summary judgment is denied.