ELR Citation: ELR 20804
No(s). 4-87-634 (D. Minn. Mar 9, 1988)

The court holds that plaintiffs' citizen suit under §505 of the Federal Water Pollution Control Act (FWPCA) is not precluded by a subsequently filed federal enforcement action, and that the discovery and pretrial motions of the two actions will be consolidated. The court first holds that the federal government's enforcement action does not prevent plaintiffs from pursuing their citizen suit. Although Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, emphasizes that §505 suits have only a secondary role in the FWPCA's enforcement scheme, and preclusion of citizen suits by subsequent governmental actions would promote judicial economy and the underlying purposes of the Act, the plain language of §505 indicates that governmental actions do not require the dismissal of previously filed citizen suits. A number of courts have reached this same conclusion, and defendant has produced no precedent to the contrary. Defendant's argument that the court can determine the preclusive effect of subsequent governmental actions on a case-by-case basis lacks support in the legislative history, which refers only to governmental actions filed before the commencement of citizen suits. However, the court notes that it may, under FWPCA §505(d), protect defendant from unnecessary exposure to liability for attorney fees by refusing to award fees for duplicative litigation. Finally, the court consolidates the discovery and pretrial motion phases of the two cases pursuant to Federal Rule of Civil Procedure 42(a) because there are common issues of fact and law, but postpones making a decision as to the consolidation of trial.

Counsel for Plaintiffs
Charles H. Nauen, Richard H. Plunkett
Opperman & Paquin
2200 Washington Square, 100 Washington Ave. S., Minneapolis MN 55401
(612) 339-6900
Counsel for Defendant
Larry D. Espel, James A. Payne
Popham, Haik, Schnobrich & Kaufman
3300 Piper Jaffray Tower, 222 S. 9th St., Minneapolis MN 55402
(612) 333-4800