ELR Citation: ELR 20691
No(s). 81-74116 (E.D. Mich. May 17, 1982)

The court holds that the Eleventh Amendment bars the Detroit Water and Sewer Department's (DWSD's) complaint seeking an order compelling the Michigan Department of Transportation (MDOT) to pay for DWSD's treatment of storm water collected on property owned by the state agency. The court first rules that it does not have federal question jurisdiction over the matter. The court finds nothing in §204(b)(1)(A) of the Federal Water Pollution Control Act (FWPCA) creating a private cause of action in favor of DWSD, or suggesting that Congress intended that the Act be enforced by anyone other than the Administrator of the Environmental Protection Agency. The Act simply describes conditions for the receipt of federal grants and does not impose obligations on the users of treatment systems. The court rules, however, that it has ancillary jurisdiction over the DWSD claims. It is a long-established doctrine that a federal court that places an entity in receivership has ancillary jurisdiction over actions by the receiver in fulfillment of its court-assigned duties. The establishment of a user-fee system and the collection of fees was an important element of the decree that established the receivership.

The court also rules, however, that DWSD's claims against the state are barred by the Eleventh Amendment. The court rejects the plaintiff's argument that the state waived its Eleventh Amendment immunity from suit by participating in the principal action. The immunity is a constitutional right whose waiver is not easily implied. The state's participation in the principal action because of its delegated role in implementing the FWPCA construction grants program does not support a finding of waiver. The court dismisses the claims against MDOT, but consolidates the claims against the Wayne County Road Commission, which does not have the state's immunity, with the principal action.

Counsel for Plaintiff
Lynn Ferris
City of Detroit Law Department
735 Randolph St., Rm. 1006, Detroit MI 48226
(313) 224-4752

Counsel for Defendants
Louis Caruso
4th Floor, Transportation Bldg., Lansing MI 48909
(517) 373-1477

Robert E. Murphy
Wayne Cty. Road Comm'n, 415 Clifford St., Detroit MI 48226
(313) 224-7746