Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72 C 1253 -- John F. Grady, Judge. Upon Remand from the United States Supreme Court No. 79-408. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 80 C 4563 and 80 C 4775 -- John Powers Crowley, Judge.
Sprecher, Circuit Judge,*fn* Cudahy, Circuit Judge, and Fairchild, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
These appeals involve resort by a state (in one case by a citizen of that state) to state law nuisance remedies to deal with pollution of its portion of an interstate body of water, resulting from the discharge of pollutants in another state.
Appeal No. 77-2246 (the Milwaukee case) is here on remand from the Supreme Court of the United States. Milwaukee v. Illinois, 451 U.S. 304, 68 L. Ed. 2d 114, 101 S. Ct. 1784 (1981) (Milwaukee II). Appeal No. 81-2236 is an interlocutory appeal in cases to which we shall refer as the Hammond Cases.
In Illinois v. City of Milwaukee, 406 U.S. 91, 31 L. Ed. 2d 712, 92 S. Ct. 1385 (1972) (Milwaukee I), the Supreme Court denied Illinois leave to file a bill of complaint under the Court's original jurisdiction. Illinois alleged pollution of Lake Michigan by the present defendants and other Wisconsin cities, and sought abatement of a public nuisance. The Court held that the federal common law of nuisance would govern, and that a district court would have federal question jurisdiction. Although an "original suit normally might be the appropriate vehicle for resolving this controversy, we exercise our discretion to remit the parties to an appropriate district court whose powers are adequate to resolve the issues." 406 U.S. at 108.
In May, 1972, a month after Milwaukee I, Illinois brought this action in the United States District Court for the Northern District of Illinois. One count claimed a public nuisance and invoked federal law, citing Milwaukee I ; one claimed a violation of an Illinois statute, the Environmental Protection Act; and one claimed a public nuisance under Illinois common law. An injunction was sought. The State of Michigan was granted leave to intervene as a party plaintiff in August, 1972.
In August, 1977, after trial, the district court made findings that defendants dump substantial quantities of pathogen-containing sewage into Lake Michigan each year, that the lake currents carry the pathogens into Illinois waters where they may infect drinking water supplies and pose a danger to swimmers, and that the phosphorous in the discharges made a substantial contribution to the accelerated eutrophication of Lake Michigan. People of the State of Illinois v. City of Milwaukee, 599 F.2d 151, 167-69 (7th Cir. 1979) (Milwaukee 7th Cir.). Injunctive relief, including changes in the operation of defendant's sewage system, was granted. 599 F.2d at 169-70.
The district judge stated his belief that he had jurisdiction to try all three counts.
I have concluded that the case should be decided under the Federal common law of nuisance, but I further believe that the elements required under that cause of action are also the same elements which the Court would have to find under the two State claims. Therefore, in my view, it makes no practical difference that the court is taking the case on all three counts.
On appeal, this court noted,
plaintiff also relies on Illinois statutory and common law. The district court indicated that under any of the asserted grounds for relief the result would be the same. But it is federal common law and not state statutory or common law that controls in this case. Illinois v. Milwaukee, supra, 406 U.S. at 107 & n. 9, 92 S. Ct. 1385, and therefore we do not address the state law claims.
In affirming as to liability and portions of the relief, we held that the federal common law of nuisance had not been preempted by 1972 FWPCA, the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq. (nor the 1977 Amendments to the same Act).
The Supreme Court granted Milwaukee's petition for certiorari, 445 U.S. 926, 100 S. Ct. 1310, 63 L. Ed. 2d 758 "to consider the effect of [the 1972] legislation on the previously recognized cause of action." 451 U.S. at 308. The Court concluded that Congress had so completely occupied the field as to supplant federal common law. "There is no basis for a federal court to impose more stringent limitations . . . by reference to federal common law. . . ." Milwaukee v. Illinois, 451 U.S. 304, 320, 68 L. Ed. 2d 114, 101 S. Ct. 1784 (1981) (Milwaukee II). The Court vacated the judgment of this court and remanded "for proceedings consistent with this opinion."
Illinois had also applied for certiorari, including as one of its questions, "(3) Was appellate court correct in disregarding claims made by Illinois under Illinois law, both under state common law of nuisance and under Illinois Environmental Protection Act?" 48 U.S.L.W. 3341. In Milwaukee II, decided April 28, 1981, the Court noted:
The complaint also sought relief, in counts II and III, under Illinois statutory and common law. See App. 29-32. The District Court stated that "the case should be decided under the principles of the federal common law of nuisance," App. to Pet. for Cert. F-2, but went on to find liability on all three counts of the complaint, id. at F-24. The Court of Appeals ruled that "it is federal common law and not state statutory or common law that controls in this case, Illinois v. Milwaukee, supra, 406 U.S., at 107, & n. 9, . . . and therefore we do not address the state law claims." 599 F.2d at 177, n.53. Although respondent Illinois argues this point in its brief, the issue before us is simply whether federal legislation has supplanted federal common law. The question whether state law is also available is the subject of Illinois' petition for certiorari, No. 79-571.
On remand, Illinois again asks us to affirm, this time on the basis of the state law claims. Our jurisdiction to consider the state law claims is at least unclear. It is clear that the Supreme Court refused to review our declining to consider state law as support for the district court judgment and at least doubtful that the direction to us on remand includes our reconsideration of that issue.
But even if our considering Illinois law nuisance or statutory claims in No. 77-2246, the Milwaukee case, is thus foreclosed, very similar claims are present in the Hammond cases, and any limitation on our consideration of state law claims which arises from the procedural posture of No. 77-2246 would not apply in No. 81-2236.
On August 21, 1980, William J. Scott, suing as a citizen of Illinois, commenced a class action in the United States District Court for the Northern District of Illinois. The complaint alleged that two Indiana municipal corporations, the Hammond Sanitary District and the City of Hammond, had discharged raw and inadequately treated sewage into Lake Michigan, that the sewage created a public health hazard in Illinois, and that the Indiana municipal corporations' conduct "constitutes both a public and private nuisance under Illinois law and independently both a public and private nuisance under federal common law." Scott's ...