ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 77-0126)
Before Gibbons and Higginbotham, Circuit Judges, and Weiner,*fn* District Judge.
This case comes before us on an appeal by plaintiffs National Sea Clammers Association and Gosta Lovgren from a final order dismissing their complaint. Plaintiffs are an association whose members make their living harvesting fish and shellfish from the water and ocean beds of the Atlantic Ocean near New York and New Jersey, and an individual similarly employed. They sue on behalf of themselves and a class comprising all others similarly situated. Defendants are various federal, state, and local officials and governmental departments that are charged with environmental protection or that are responsible for sewage treatment and disposal.
Plaintiffs' complaint alleged that defendants discharged or permitted the discharge of certain nutrient-rich sewage and toxic wastes into the Atlantic Ocean or its tributaries. It further alleged that in 1976 these discharges caused a massive and rapid growth of algae from Long Island to Cape May and extending from a few miles to twenty miles offshore. When this algal mass bloomed and died it allegedly settled on the ocean's floor, and its subsequent decomposition created an anoxia, an oxygen deficiency, in the water near the ocean's floor, which caused death and other adverse effects on marine life, particularly on those life forms, such as shellfish, ill able to flee the afflicted area. Plaintiffs alleged violations of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4361 (1976), the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. I), the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401-1444 (1976), the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 (1976), the New York Environmental Conservation Law, N.Y. Environ. Conserv. § 1-0101 (McKinney 1973), the New Jersey Conservation and Development Law, N.J.S.A. 13:10-1 (1968), the federal common law of nuisance, and the fifth, ninth, and fourteenth amendments to the Constitution. Defendants moved for dismissal of all claims on the grounds that the court lacked subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), or that the plaintiffs had failed to state a claim on which relief could be granted, see Fed.R.Civ.P. 12(b)(6). The complaint seeks injunctive relief, damages, mandamus to compel compliance with statutory duties, the imposition of fines and penalties for certain violations, the award to plaintiffs of one half of the fines assessed, and attorneys' fees. The trial court, holding that the submission of affidavits converted the motions into motions for summary judgment, granted defendants' motions as to each cause of action alleged. The complaint was dismissed, with prejudice, on all claims except for two said to arise under state law which were dismissed without prejudice. This appeal followed. We discuss separately the various legal theories which were pleaded and rejected.
I. The Federal Water Pollution Control Act
The district court held that plaintiffs' failure to comply with the notice requirements of the Federal Water Pollution Control Act (FWPCAA)*fn1 deprived it of jurisdiction to entertain plaintiffs' claim that defendants violated their duties under that Act. Section 505(a) of the FWPCAA grants to any private citizen the right to sue to enforce compliance with effluent standards or limitations, 33 U.S.C. § 1365(a)(1), or to compel the Administrator of the Environmental Protection Agency to perform nondiscretionary duties. Id. § 1365(a)(2). Section 505(b) requires that in suits brought pursuant to subsection (a), 60 days' notice be given to specified parties to the suit. Id. § 1365(b).*fn2 Regulations promulgated by the Administrator define the type and specificity of the notice required. 40 C.F.R. § 135.3(A) (1979).
The district court held that the notice provision of section 505(b) was a jurisdictional prerequisite to suit, such that plaintiffs' failure to give notice barred suit under section 505(a). 33 U.S.C. § 1365(a). This court has rejected the theory that substantial compliance with the notice requirement suffices to give the court jurisdiction under section 505(a). We require instead strict adherence to the Act's notice provisions for suits brought pursuant to section 505(a). Loveladies Property Owners Ass'n v. Raab, 430 F. Supp. 276, 280-81 (D.N.J.1975), aff'd mem., 547 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906, 97 S. Ct. 2949, 53 L. Ed. 2d 1077 (1977). We do not depart from that holding. We note, however, that it would be entirely permissible for this court to adopt the pragmatic approach to interpreting the 60-day notice provision by which we would merely require that sixty days elapse prior to district court action on the complaint.*fn3 The purpose behind the notice provision, as the legislative history makes clear, was to afford the Environmental Protection Agency an opportunity to remedy the alleged violation prior to judicial action.*fn4 Thus, in the instant case, we could adopt the position that the failure of the Administrator to take remedial action during the sixty days after receiving notice of the suit permitted the suit to go forward in district court. We need not pass upon this proposition, however, because of our analysis of the independent significance of section 505(e), 33 U.S.C. § 1365(e), the savings clause of the citizens' suit provision.
The district court erred in holding that failure to comply with section 505(b), 33 U.S.C. § 1365(b), created an absolute bar to plaintiffs' suit to enforce the provisions of the Act. The citizens' suit provision of the FWPCAA was modeled on a similar provision in the Clean Air Act. Compare Clean Air Act § 304, 42 U.S.C. § 7604 (1976) with Federal Water Pollution Control Act § 505, 33 U.S.C. § 1365 (1976 & Supp. I). The slight difference in wording of the citizens' suit provision of each act reflects only the attempt by Congress to ensure that the FWPCAA would comply with the holding of the Supreme Court in the then-recent case of Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972).*fn5 The Senate version of the bill would have permitted any person to sue to enforce the terms of the Act.*fn6 The House bill would have limited citizens' suits narrowly to suits brought by two types of plaintiffs, citizens of the geographic area who were directly affected by the alleged violation, or groups of persons who, because actively engaged in the administrative process, had shown an interest in the area or the controversy.*fn7 The Conference Committee chose a middle path, limiting the section 505(a) remedy to citizens, but defining citizen broadly in section 505(g).*fn8 The intent of Congress was thus to provide generally for citizens' suits which would not be subject to the jurisdictional amount requirement and yet would provide for private attorney general enforcement to the maximum degree permitted by the Court's Sierra Club decision.*fn9
It is clear, however, from the legislative history that the section 505(a) remedy is not exclusive. That section was intended to give federal courts jurisdiction over suits by private attorneys general seeking to enforce the provisions of the Act. Thus, the notice provision of section 505(b) only applies when a non-injured member of the public sues to enforce the Act. For the purposes of such a suit, Congress created the section 505(a) remedy, permitting suit not subject to the normally required minimum jurisdictional amount. See W. Rodgers, Environmental Law § 1.13 (1977) (discussing prototype citizens' suit provisions of Clean Air Act). The section 505(a) remedy, however, is not the exclusive vehicle for enforcement of the FWPCAA by private citizens. A private party who is injured by the alleged violation, as these plaintiffs allege they were, has an alternate basis for suit under section 505(e), 33 U.S.C. § 1365(e), and the general federal question jurisdiction of the Judicial Code, 28 U.S.C. § 1331 (1976). Section 505(e) is a savings clause that preserves all rights to enforce the Act or seek relief against the Administrator.*fn10 Coupled with the general federal question jurisdiction it permits this suit to be brought by these parties.*fn11 Moreover, unlike the private attorneys general provision of section 505(a), section 505(e) provides an independent remedy for injured parties unburdened by the notice requirements of section 505(b).
All parties and the court below acknowledge that the federal courts differ on the issue of whether section 505(e) authorizes private enforcement of the Act alternate to that authorized in section 505(a). The more persuasively reasoned cases, however, support our conclusion that section 505(e) was intended to preserve the rights of injured parties to sue to enforce the terms of the Act notwithstanding the expansion of remedies to non-injured parties contained in section 505(a). They recognize that the effect of section 505(a) is to give the district court jurisdiction over a new class of plaintiffs, while section 505(e) preserves jurisdiction over the preexisting right of injured parties to sue to enforce the Act.*fn12 By relying on the Clean Air Act, Congress made clear its intention to involve citizens in the enforcement of the Act.
The Second Circuit, in an opinion written by Judge Adams of this court sitting by designation, relied upon the Act's legislative history to support its conclusion that failure to give notice was not an absolute bar to suit under the FWPCAA.*fn13 Moreover, prior to the district court's opinion in the instant matter, Chief Judge Clarkson Fisher had adopted the section 505(e) jurisdiction analysis as well. In Township of Long Beach v. City of New York, 445 F. Supp. 1203 (D.N.J.1978), Chief Judge Fisher held that plaintiffs who had failed to comply with the section 505(b) notice requirement could sue in district court under section 505(e) and the general federal question jurisdiction, because they were injured parties suing on their own behalf and alleged damage in excess of the normal jurisdictional amount. Id. at 1209-10.*fn14 We must therefore reverse the holding of the district court that it lacked jurisdiction to entertain plaintiffs' claims under the FWPCAA.
We turn now to the issue of whether plaintiffs have a cause of action independent of that created in section 505(a) on which they may bring suit under section 505(e).
In Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), the Supreme Court established a four part test for finding an implied private cause of action.*fn15 Since Cort, the Supreme Court has further refined the test to be applied in determining whether a private right of action arises under any given federal statute.*fn16 In Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979), the Court broadened the Cort test and held that Congress' failure expressly to consider private remedies did not preclude a holding that Congress intended to imply one. Id. at 694, 99 S. Ct. at 1956. More recently, in Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979), the Court noted that the Cort factors are merely relevant to the inquiry of whether a private remedy is implicit. Id. at 575, 99 S. Ct. at 2489. There, the Court stated that in Cort v. Ash,
the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or ...