ELR Citation: ELR 20353
No(s). 84-1567 (9th Cir. Mar 11, 1985)

The court holds that the district court had no subject matter jurisdiction over claims by the city that state effluent standards violated a consent decree, the Federal Water Pollution Control Act (FWPCA), or due process. The court first notes that it reviews de novo a dismissal for lack of subject matter jurisdiction. The court next rules that the district court has jurisdiction to enforce consent decrees, but plaintiff has not properly alleged a violation of the decree. The procedural steps required in the decree were only to protect the city from imposition of standards more stringent than those initially proposed; the state ultimately adopted the proposed standards. Further, the city's claim that the decree prevents the state from imposing flow limits on its effluent discharge is meritless. Therefore, the district court's jurisdiction to enforce the consent decree was not called into play by the complaint.

Jurisdiction over the city's FWPCA claims arises solely under §505 of the Act. Therefore, since the nonfederal defendants are not dischargers subject to effluent standards or limitations, the district court had no jurisdiction over the claims against them under the FWPCA. Neither did the district court have jurisdiction over the FWPCA claims against the Environmental Protection Agency (EPA) for failure to perform non-discretionary duties. EPA's failure to promulgate total maximum daily loads when the state failed to do so caused the city no redressable injury. In any event, the city's real quarrel is with the content of the state water quality standard, which is not the proper subject of a suit under FWPCA §505(a)(2).

Finally, the city's due process claims fail because the state's actions neither infringed a fundamental interest nor discriminated against a suspect class, and the effluent limitations reasonably related to the important state interest in clean water.

Counsel for Plaintiff
Joseph V. Karaganis
Karaganis, Gail & White, Ltd.
150 N. Wacker Dr., Chicago II 60606
(312) 782-1905

Counsel for Defendants
George J. Postrozny
Deputy Attorney General
Heroes Memorial Bldg., Carson City NV 89716
(702) 885-4170

William B. Lazarus
Land and Natural Resources Div.
Department of Justice, Washington DC 20530
(202) 633-4168

Before Pregerson and Poole, JJ.