Greater Anchorage Area Borough v. Johnson

No. A-221-73 Cr. (D. Alaska April 29, 1974)

The court holds that the Clean Air Act Amendments of 1970 waived sovereign immunity as to civil suits but not as to criminal prosecutions, and dismisses a criminal action against four employees of a federal railroad for violating a clean air ordinance by burning a number of telephone poles. The court also rules that it is prevented from considering whether defendants' conduct fell within in the ultra vires exception to the doctrine of sovereign immunity, because the complaint does not set forth the defendants' lack of authority to engage in burning telephone poles.

Counsel for Plaintiff
Joan M. Katz Asst. Borough Attorney
Anchorage, Alas. 99501

Counsel for Defendants
James R. Walpole
Department of Justice
Washington, D.C. 20530

G. Kent Edwards U.S. Attorney
A. Lee Petersen Asst. U.S. Attorney
U.S. Courthouse
Anchorage, Alas. 99501

[4 ELR 20819]

Van der Heydt, J.

MEMORANDUM AND ORDER

THIS CAUSE comes before the court upon defendants' motion to reconsider the denial of their motion to dismiss.

On October 16, 1973, four employees of the Alaska Railroad allegedly violated a clean air ordinance of the Greater Anchorage Area Borough by burning a number of telephone poles. The Borough Attorney filed a criminal complaint naming the four employees together with the General Manager of the Alaska Railroad as codefendants. It is undisputed that the Alaska Railroad is an instrumentality of the United States.

On January 28, 1974, this court denied the motion to dismiss without deciding the question of sovereign immunity, since at that time the defendants expressly disavowed that theory. Subsequently, defendants filed this motion for reconsideration. All parties have filed additional memoranda. For the first time in this action, all parties have squarely addressed themselves to the question of Congressional waiver of sovereign immunity by enactment of the Clean Air Act of 1970, 42 U.S.C.A. § 1857 et seq.

Initially, plaintiff asserts a threshold issue which must be disposed of prior to determination of that of sovereign immunity. Plaintiff contends that the facts of this cause bring the defendants within anexception to the doctrine of sovereign immunity, with the result that each defendant is individually liable. Plaintiff asserts that this suit is not a suit against the sovereign, since the defendants were acting in their individual capacities, relying on Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949):

[W]here the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief.

However, plaintiff failed to quote the three sentences which follow the above excerpt from Larson:

It is important to note that in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient. And, since the jurisdiction of the court to hear the case may depend, as we have recently recognized, upon the decision which it ultimately reaches on the merits, it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies (footnote omitted).

Under the facts of this case, where the complaint does not set forth the lack of authority for defendants to engage in burning telephone poles, the court is prevented from considering whether defendants' conduct was ultra vires. Further, the General Manager of the railroad has admitted in an unsworn document a part of this record that the employees who allegedly breached the borough ordinance were acting within the scope of their employment. Finally, by naming as codefendant the General Manager, who was not an actual participant of the alleged offense, plaintiff has undermined its contention that the General Manager's liability is based on his individual unauthorized act. Accordingly, the court finds that plaintiff may not assert that defendants' conduct fails within the ultra vires exception to the doctrine of sovereign immunity.

As to the issue of waiver of sovereign immunity, the court finds that Congress has consented to be sued by enactment of the Clean Air Act of 1970, but that this consent does not extend to criminal prosecutions. Cf. Milwaukee County v. Veterans Administration Center, 357 F. Supp. 192 (E.D. Wis. 1973).

In pertinent part, 42 U.S.C.A. § 1857f states:

Each . . . instrumentality . . . of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting . . . in the discharge of air pollutants, shall comply with Federal, State, interstate and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements.

Both the plaintiff in this case and the court in Milwaukee County v. Veterans Administration Center, supra, consider the language of § 1857f to be the Congressional waiver of sovereign immunity. Plaintiff considers that language to be a waiver of sovereign immunity as to both civil and criminal actions. This court does not agree that § 1857f is the appropriate section.

The section of the Clean Air Act of 1970 which to this court manifests Congressional consent to suit is § 1857h-2(a):

[A]any person may commence a civil action on his own behalf

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency . . .) who is alleged to be in violation of (A) an emission standard or limitation . . . or (B) an order issued by the Administrator of a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

The fact that § 1857h-2 is labeled "Citizen suits-Establishment of right to bring suit," does not persuade the court that § 1857h-2 is not applicable to an instance, such as here, where a municipal government is the plaintiff. 42 U.S.C.A. § 1857h defines the term "person" to include municipal corporations.

Therefore, IT IS ORDERED:

1. THAT defendants' motion to reconsider is granted.

2. THAT upon reconsideration defendants' motion to dismiss is granted for the reason that this court is without jurisdiction to hear a criminal prosecution asserted under the Clean Air Act of 1970.

3. THAT the complaint is dismissed in its entirety.