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National Sea Clammers Association and Gosta Lovgren v. City of New York


decided: February 5, 1980.



Before Gibbons and Higginbotham, Circuit Judges, and Weiner,*fn* District Judge.

Author: Gibbons


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 by implication, a private cause of action.

Id. (emphasis added). Thus, the Court noted, the Cort factors are simply designed to guide the courts in determining legislative intent. Finally, this Term in Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979), the Court applied the Touche Ross test, noting that the issue of "whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction." Id. at -- , 100 S. Ct. at 245. It held that once legislative intent is discovered, countervailing considerations arising from strict application of the Cort factors become irrelevant. Id. at -- - -- , 100 S. Ct. at 248-249. Bearing in mind that the single relevant inquiry is the intent of Congress, we turn to the Cort v. Ash factors to guide our analysis of the legislative intent.

Applying these factors to the instant case, we hold that a private cause of action is available to these plaintiffs under the FWPCAA.*fn17 First, we have already held that one of the purposes behind the passage of the FWPCAA was the protection of individuals from injury caused by the polluting activities of others. Thus, although the Act specifically grants a remedy to non-injured persons suing on behalf of the public, it is clear that the "class for whose especial benefit the statute was enacted" must have been individuals likely to suffer actual injury by the pollution.*fn18 Jurisdiction over suits by them is preserved by the savings clause. Although section 505(a) of the Act permits suits by private attorneys general who have suffered no direct economic harm, the statute clearly was intended to protect this particular class of actually injured persons as well. Plaintiffs are members of a class that takes its living from the sea and that is especially hurt by pollution. The general purpose clause of the Act includes a statement that the national goal shall be the attainment of that "water quality which provides for the protection and propagation of the fish, shellfish, and wildlife." 33 U.S.C. § 1251(a)(2). Although such protection will of course benefit the public at large, the general purpose clause supports our conclusion that the statute was intended to benefit the class of which plaintiffs are a part, and that a private remedy was intended to be created in their behalf.

As to the second factor in the Cort analysis, nothing in the legislative history suggests that the section 505(a) remedy created on behalf of private attorneys general was intended to be exclusive. Indeed, the savings clause broadly preserves all rights to sue "under any statute," language which given the legislative history of the section supports the existence of alternate remedies under the Act.*fn19 We reject the argument that the legislative history precludes finding an implied private right of action under the FWPCAA. The Report that accompanied the Senate's original version of the bill noted that the savings clause preserved rights to sue "under any other law." S.Rep. No. 92-414 at 81, Legislative History at 1499.*fn20 We are not persuaded that this paraphrase of the wording of the Act was intended to preclude the finding of a private remedy under the Act. The wording of the savings clause itself makes clear Congress' intent to preserve the rights of individuals to sue under any statute or the common law.

The third Cort factor was expanded by the Supreme Court last Term in Cannon. There the Court noted that

when (a private right of action) remedy is necessary or at least helpful to the accomplishment of the statutory purpose, the Court is decidedly receptive to its implication under the statute.

441 U.S. at 703, 99 S. Ct. at 1961. Although not necessary to the accomplishment of the purposes of the FWPCAA, implying a private remedy on behalf of these plaintiffs certainly would be "helpful" to the effectuation of those purposes. Moreover, under the Cort analysis, a private remedy would be consistent with the purposes of the Act in general and with the purpose of protecting and encouraging propagation of marine life in particular. See 33 U.S.C. § 1251(a)(2) (general purpose clause).

Finally, the fourth inquiry in the Cort analysis also points to Congress' intent to permit this private cause of action. Far from being an area of traditional state concern, water pollution of the Atlantic Ocean is an interstate phenomenon of federal concern as to which an implied private remedy in the federal courts should not be denied.*fn21

Thus, using the Cort factors as a guide, we have examined the statute and its legislative history in order to discover the legislative intent. See Transamerica Mortgage Advisors, Inc. v. Lewis, -- - U.S. -- , -- , 444 U.S. 11, 100 S. Ct. 242, 245, 62 L. Ed. 2d 146 (1979). We therefore hold that Congress intended to permit the federal courts to entertain a private cause of action implied from the terms of the FWPCAA, preserved by the savings clause of the Act, on behalf of individuals or groups of individuals who have been or will be injured by pollution in violation of its terms.

Having so held, we reject the federal government defendants' sovereign immunity argument. The 1976 amendments to section 1331 of title 28 make clear that sovereign immunity has been waived in all suits by plaintiffs seeking injunctive relief against federal agencies or officers.*fn22 Whether damages can be recovered from the federal government is a separate question to which the Federal Tort Claims Act speaks. See Part VII, infra. We must therefore reverse the district court's dismissal of the FWPCAA claims.

II. The Marine Protection, Research & Sanctuaries Act

The Marine Protection, Research & Sanctuaries Act, 33 U.S.C. §§ 1401-1444 (1976) (MPRSA or Ocean Dumping Act) regulates the transporting and dumping of certain material into the open waters of the ocean. Id. § 1401. The Act defines the prohibited material to include dredged material, solid waste, sewage and sewage sludge,*fn23 and provides for an absolute cessation of dumping of sewage sludge by December 31, 1981.*fn24 Plaintiffs alleged four separate violations of the MPRSA,*fn25 all of which were dismissed on the ground that plaintiffs' failure to give notice barred suit in district court.

Like the FWPCAA, the MPRSA provides that citizens' suits may be brought after giving 60 days' notice*fn26 and contains a savings clause preserving all other rights to seek relief.*fn27 Although the wording of the citizens' suit provision of the MPRSA differs slightly from the FWPCAA provision, the jurisdictional analysis is the same.*fn28 Thus, because these plaintiffs have not complied with the notice requirement of the citizens' suit provision, their suit under section 1415(g)(1), which governs private attorney general suits by non-injured persons, is barred. However, because they allege that they have suffered direct injury by virtue of the defendants' violations of the Act, jurisdiction over their suit to enforce the provisions of the MPRSA is preserved by the savings clause. Moreover, a private cause of action to enforce the terms of the Act may be implied with respect to these injured plaintiffs. For the purposes of this analysis, the statutory provisions and legislative histories of the MPRSA and FWPCAA are virtually indistinguishable.*fn29 Thus we hold that the district court had jurisdiction to entertain this suit by these plaintiffs pursuant to the savings clause of the MPRSA and that a private cause of action to enforce the terms of the Act may be implied on behalf of these injured parties. We must therefore reverse the judgment of the district court dismissing the plaintiffs' MPRSA claims.

III. The Rivers and Harbors Act (Refuse Act)

Plaintiffs also allege that federal defendant Army Corps of Engineers (ACE) and the state defendants violated section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407 (1976) (The Refuse Act). The Refuse Act makes it unlawful to discharge or permit to be discharged "any refuse matter of any kind or description whatever other than that flowing from streets and sewers . . . into any navigable water of the United States, or into any tributary (thereof)." Id. The district court dismissed this part of the complaint. We affirm.

The Rivers and Harbors Act is limited by its terms to enforcement by the United States Attorneys. 33 U.S.C. § 413 (1976). The majority of courts, and the courts of this circuit that have addressed this issue, have held that the Act precludes private suits and have thus refused to find an implied private cause of action. Red Star Towing & Transp. Co. v. Dept. of Transp., 423 F.2d 104, 105 (3d Cir. 1970) (Act enforced by penal sanctions only); Township of Long Beach v. City of New York, 445 F. Supp. 1203, 1211-12 (D.N.J.1978) (rejecting private cause of action); see Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 85-87 (2d Cir. 1972) (s 413 delegates enforcement to Department of Justice; private party may not force prosecution under § 407); Parsell v. Shell Oil Co., 421 F. Supp. 1275, 1279-80 (D.Conn.1976) (Act protects public at large rather than private group of individuals), aff'd mem. sub nom. East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); Anderson v. Norfolk & Western Ry., 349 F. Supp. 121, 122 (W.D.Va.1972) (s 413 delegates enforcement to United States Attorneys; Act precludes qui tam enforcement). We adhere to the view that enforcement of the Refuse Act is limited to actions by the United States Attorneys.*fn30 Therefore the dismissal of plaintiffs' Refuse Act claims must be affirmed.

IV. The Federal Common Law of Nuisance

In Illinois v. City of Milwaukee, 406 U.S. 91, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972), a unanimous Supreme Court recognized that there is a federal common law cause of action to abate pollution of interstate ambient water, notwithstanding any relief available under the FWPCAA*fn31 and held that such a cause of action presented a federal question over which the district courts had section 1331 jurisdiction.*fn32 The district court refused to extend the cause of action to private litigants and dismissed plaintiffs' common law nuisance claim. In so holding, the court relied on holdings by other federal district courts that only governmental agencies can sue for relief from a public nuisance.*fn33 We hold that the common law nuisance remedy recognized in Illinois v. City of Milwaukee is available in suits by private parties.

The Court stated explicitly in Illinois that although both parties to that suit were governmental, "it is not only the character of the parties that requires us to apply federal law." Illinois v. City of Milwaukee, 406 U.S. at 105 n.6, 92 S. Ct. at 1393 n.6. Rather, the Court noted that "where there is an overriding federal interest in the need for a uniform rule of decision . . . we have fashioned federal common law." Id. In the instant case, plaintiffs are suing for damages to interstate ambient water, an issue as to which there is a clear and overriding federal interest in uniformity.*fn34 There is no question but that the interstate pollution here alleged is a problem calling for the application of a uniform federal standard. Relegating these litigants to possibly conflicting New York and New Jersey nuisance standards would ignore the clear intent of the Supreme Court to federalize those standards and would undermine that federal uniformity. These plaintiffs have sufficiently alleged pollution of interstate waters.*fn35 In order to give full effect to the federal common law of nuisance recognized in Illinois, private parties should be permitted, and indeed encouraged, to participate in the abatement of such nuisances. Courts have already extended the Illinois remedy to the federal government*fn36 and to municipalities,*fn37 and one district court has applied it on behalf of private litigants.*fn38 The effectuation of the purposes of the Illinois v. City of Milwaukee remedy and the fulfillment of the Supreme Court's intent in creating that remedy lead us to conclude that it is available to these private litigants who have been injured by the effects of the polluting activities of these defendants. While Illinois v. City of Milwaukee did not address this specific issue, we are convinced that the Court would apply the mode of analysis of Lincoln Mills*fn39 and would look to the Restatement formulation as an appropriate source for a federal rule. These plaintiffs have alleged sufficient individual damage to permit them to recover damages for this essentially public nuisance. The Restatement (Second) of Torts defines a public nuisance as "an unreasonable interference with a right common to the general public." Restatement (Second) of Torts § 821B (1979). A private party may recover damages for a public nuisance if, while exercising the common right, he has suffered damages different in kind from those suffered by the public. Id. § 821C. The Restatement formulation encompasses the injury alleged in this case.*fn40 In Burgess v. M/V TAMANO, 370 F. Supp. 247 (D.Me.1973), the court held that

(i)t would be an incongruous result for the Court to say that a man engaged in commercial fishing or clamming, and dependent thereon for his livelihood, who may have had his business destroyed by the tortious act of another should be denied any right to recover for his pecuniary loss on the ground that his injury is no different in kind from that sustained by the general public.

Id. at 250. Thus, these plaintiffs, who have a right under federal common law to abate the pollution of interstate waters, have also suffered sufficient individual harm to sue for damages arising from that public nuisance. We therefore hold that the federal common law of nuisance may be enforced by private plaintiffs and that these plaintiffs have sufficiently alleged individual harm to permit recovery of damages for the public nuisance. Thus we must reverse the trial court's dismissal of the plaintiffs' federal common law nuisance claim.

V. Admiralty Jurisdiction and Maritime Torts

Plaintiffs also listed the federal admiralty law as an alternate basis for their tort claims. See U.S.Const. art. III, § 2; 28 U.S.C. § 1333 (1976); 46 U.S.C. § 740 (1976). The Supreme Court's traditional test for the existence of admiralty jurisdiction is two-fold: first, the traditional element of a maritime locality must be established; and second, a significant relationship to a traditional maritime activity must be proven. Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972). The situs test may be no longer significant. See P. C. Pfeiffer Co. v. Ford, 444 U.S. 69, 100 S. Ct. 328, 332, 62 L. Ed. 2d 225 (1979); Sea-Land Serv. v. Director, Office of Workers' Compens., 540 F.2d 629, 635-39 (3d Cir. 1976). That need not concern us here for both elements are satisfied by the allegations of the complaint. The situs of the algal bloom was the high seas. The nexus to maritime commerce is plain. See, e.g., Moore v. Hampton Roads Sanitation Dist. Comm'n, 557 F.2d 1030, 1034 (4th Cir. 1976) (harvesting oysters and clams, like fishing, is traditional maritime activity meeting nexus test of Executive Jet ), cert. denied, 434 U.S. 1012, 98 S. Ct. 725, 54 L. Ed. 2d 755 (1978); Union Oil Co. v. Oppen, 501 F.2d 558, 561 (9th Cir. 1974) (fishing industry is part of maritime activity); Potomac River Ass'n v. Lundeberg Md. Seamanship School, 402 F. Supp. 344, 358 (D.Md.1975) (injury to commercial fishing meets tests of Executive Jet ). Thus, this suit by plaintiffs for the tort of nuisance committed in the navigable waters and injuring those engaged in maritime commerce falls within the admiralty jurisdiction of the district court.*fn41

Having held that the district court had jurisdiction in admiralty over plaintiffs' claims, we turn to whether plaintiffs have sufficiently alleged a cause of action sounding in maritime tort. One district court has recognized that a suit by clammers and fishermen for damages caused by an oil spill sounded in maritime tort and that recovery could be had for damages suffered by private plaintiffs alleging tortious invasions different from those suffered by the general public. Burgess v. M/V TAMANO, 370 F. Supp. 247, 249-50 (D.Me.1973). The court held that the pollution was an interference with plaintiffs' direct exercise of a public right to fish and dig for clams and thus caused them damages different in kind from those suffered by the general public. Id. at 250.

The district court dismissed this claim on the ground that plaintiffs' complaint was insufficient to allege a cause of action sounding in maritime tort. To the extent that plaintiffs have attempted to allege a maritime tort, it must be found in Count I of their complaint. That Count seeks recovery based on a theory of federal common law nuisance, rather than alleging specifically a maritime tort.*fn42 But the facts which support a Burgess-type admiralty tort claim are sufficiently alleged, and thus judged by the standards applicable to motions under Fed.R.Civ.P. 12(b)(6) the complaint is sufficient. Probably the substantive legal standards applicable to the maritime nuisance tort and the federal common law nuisance tort recognized in Illinois v. City of Milwaukee are the same, although on this record we need not fully explore that question. Nor need we decide whether the plaintiffs must at some point elect between admiralty and non-admiralty remedies. Finally, the district court did not, and thus we do not reach the question of whether the Limitation of Liability Act, 46 U.S.C. §§ 181-195 (1976), would be available to limit liability of the federal and municipal government defendants for damages to the value of the vessels used to barge the sewage and dredge spoils to the various dumping sites. We do hold that it was error to dismiss plaintiffs' maritime tort claims against all defendants at the pleading stage.

VI. Federal Tort Claims Act

The district court held that the cause of action against federal agencies based on maritime tort was barred by plaintiffs' failure to comply with the requirements of the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1976) (FTCA).*fn43 The terms of the FTCA define the limits of the court's jurisdiction to hear suits brought pursuant to the Act. United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769, 85 L. Ed. 1058 (1941); Rosario v. American Export Isbrandtsen Lines, 531 F.2d 1227, 1231 (3d Cir.), cert. denied, 429 U.S. 857, 97 S. Ct. 156, 50 L. Ed. 2d 135 (1976). Under the Act, claims must first be presented to the appropriate federal agency and no suit may be filed until six months thereafter. 28 U.S.C. § 2675. Regulations promulgated pursuant to the Act require that each claim so presented contain a demand for a sum certain. 28 C.F.R. § 14.2 (1978). These requirements were intended to create a system of prelitigation administrative consideration in order to settle claims and avoid unnecessary litigation.*fn44 Plaintiffs failed to observe the six months' waiting period. The district court held and we agree that it did not have jurisdiction to entertain the plaintiffs' claims under the FTCA.*fn45 This precludes a money damage recovery against federal agencies based on state law. Since we are remanding the federal common law nuisance claim we leave open the question, not addressed by the parties to this appeal, whether absent a reference in some statute waiving sovereign immunity for federal common law torts, monetary relief against the federal defendants is unavailable.

VII. The National Environmental Policy Act (NEPA)

The plaintiffs allege that the Environmental Protection Agency has violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4361 (1976 & Supp. I), by failing to develop, plan, and coordinate federal functions, programs, and resources to the end that the Atlantic Ocean might exist without degradation, and that those who use the marine environment would be protected from risk to health or safety or other undesirable consequences. The district court held that the complaint failed to state a cause of action under NEPA. The issue is one of considerable complexity. The preparation of an environmental impact statement is required for every "major federal action ( ) significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (1976). The Administrator of the Environmental Protection Agency, however, is statutorily exempt from the environmental impact statement requirement. 33 U.S.C. § 1371(c)(1) (1976). Whether other substantive provisions of NEPA would afford relief is not entirely clear.*fn46 Further complicating the application of NEPA is the fact that some actions of the Agency are discretionary, 42 U.S.C. § 4331, and are reviewable only pursuant to the Administrative Procedure Act, 5 U.S.C. § 706 (1976). See Environmental Def. Fund v. Corps of Eng., 470 F.2d 289, 298 n.14, 298-300 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S. Ct. 2749, 37 L. Ed. 2d 160 (1973). Because it does not appear at this stage of the case that a cause of action based upon NEPA would afford to the plaintiffs and the class they seek to represent any relief different from or more extensive than the relief which would be available under the claims we have already discussed, we decline at this time to pass upon the merits of the rather complex issues posed by NEPA. The district court will be free to reconsider the NEPA contentions in the light of the record developed on remand.

VIII. State Tort Claims Acts

Moreover, to the extent that plaintiffs also failed to comply with the requirements of the New Jersey*fn47 and New York*fn48 tort claims acts, the dismissal of their claims under those acts must be affirmed. We do so, however, without prejudice to present compliance with the requirements of those statutes and suit thereunder in the future.*fn49

IX. Constitutional Claims

Plaintiffs also alleged violation of their fifth, ninth, and fourteenth amendment rights. They argued that there is a constitutional right to a pollution-free environment and that, by virtue of their special relationship to the environment, they can enforce this right. The district court rejected the constitutional argument and we affirm that holding. It is established in this circuit and elsewhere that there is no constitutional right to a pollution-free environment. See, e.g., Township of Long Beach v. City of New York, 445 F. Supp. 1203, 1212-13 (D.N.J.1978) (citing cases rejecting constitutional analysis). We hold that the district court properly rejected the plaintiffs' constitutional claims.

X. Other Contentions

Defendants Passaic Valley Sewerage Commission (PVSC), Linden Roselle Sewerage Authority, and Middlesex County Sewerage Authority as separate grounds for affirmance plead that suits against them must be dismissed on eleventh amendment grounds. We reject that contention. These defendants are municipal corporations as to whom sovereign immunity under the eleventh amendment does not apply. See N.J.S.A. 40:14B-4 (1957); N.J.S.A. 58:14-2 (1957).

XI. Conclusion

The judgment dismissing the complaint will be reversed to the extent that it dismissed plaintiffs' claims under the Federal Water Pollution Control Act, the Marine Protection, Research and Sanctuaries Act, their common law nuisance claims and their maritime tort claims. The district court's dismissal of the Refuse Act claim, the Federal Tort Claims Act and state tort claims act claims, and the constitutional claims will be affirmed. The district court's dismissal of the National Environmental Policy Act claim will be vacated and that claim remanded for consideration of the record developed on remand. The case will be remanded to the district court for further proceedings consistent with this opinion.

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