OPINION
This civil suit for penalties and injunctive relief arises out of alleged violations of 33 U.S.C. §§ 407 and 411 (the Rivers and Harbors Act of 1899). The plaintiff, Bass Anglers Sportsman’s Society of America, Inc., is a society composed of some 11,000 members whose purpose is the furtherance of conservation interests and programs connected with the overall use of waterways and navigation throughout the United States. The plaintiff, Chattanooga Bass Club, Inc., is an affiliate of Bass Anglers Sportsman’s Society of America, Inc., in its conservation programs. The defendants are classified as Group A and Group B defendants. The Group A defendants are composed of a number of manufacturers and processors that are allegedly polluting the waterways of Tennessee. The Group B defendants are the Secretary of the Army and the Director of the Corps of Engineers respectively, who allegedly have failed to perform their duties as imposed by law. Additionally and by motion to amend the plaintiff seeks to add the Department of Justice as a Group B defendant since it also allegedly has failed to perform its designated function pursuant to the Rivers and Harbors Act of 1899.
The legal theory of the plaintiffs in the instant case appears identical to the theory of the plaintiffs in the case entitled “Bass Anglers Sportsman’s Society of America, et al. v. United States Plywood-Champion Papers, Inc., et al.,”
The legal theory of the plaintiffs in the present suit is that they have the right to prosecute a qui tam action pursuant to Sections 407 and 411 of Title 33, U.S.C., to obtain an injunction prohibiting the industrial defendants from dumping refuse into Texas waterways without a permit in violation of § 407, to obtain penalties provided by § 411 for each such violation of § 407, and to obtain an injunction requiring defendant Stanley R. Resor, Secretary of the Army, and defendant, Frederick J. Clark, Chief of Engineers, United States Army Corps of Engineers, to establish standards for the issuing of permits allowing the dumping of refuse into navigable waterways and tributaries of navigable waterways in the State of Texas and to apply these standards, once formulated, to anyone desiring to dump refuse into those navigable Texas waterways protected by 33 U.S.C. §§ 407 and 411. The plaintiffs have stated their cause of action no broader than §§ 407 and 411 of Title 33, U.S.C. Thus, plaintiffs must establish that they may, by this civil action, sue to enforce sections 407 and 411, or else the action must be dismissed for failure to state a claim upon which relief can be granted.
Additionally and by motion to amend, the plaintiffs in the instant case seek to obtain a writ of mandamus requiring the Department of Justice to perform mandatory duties imposed by 33 U.S.C. § 413 and specifically to join the plaintiffs in the prosecution of this action.
Before embarking upon a detailed analysis of the legal issues for decision by the Court, it is appropriate to set out the provisions of each of the statutes with which the Court will be concerned.
Deposit of refuse in navigable waters generally. It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; and it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed : Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works,' considered necessary and proper by the United States officers supervising such improvement or public work: And Provided Further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.
Section 411 of Title 33, U.S.C., establishes the following penalties for violation of § 407:
Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.
Finally, section 413 of Title 33, U.S.C., provides that:
The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections * * * 407 * * * 411 * * * of this title; and it shall be the duty of United States Attorneys to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of the Army or by any of the officials hereinafter designated * * *”
Several observations are appropriate in considering the applicability of the aforementioned statutes to the instant case. First of all, § 407 establishes and defines a crime. Second, § 411 provides that violation of § 407 shall be a misdemeanor. Further, § 407 specifically defines the punishment to be imposed “on conviction.” Finally, § 413 provides that it is the responsibility of the Department of Justice to conduct all the legal proceedings necessary to enforce § 407.
Section 411 provides that upon conviction of a violation of § 407, the defendant shall be punished by “fine” and/or “imprisonment.” Further, the statute states that if a fine is imposed, “one-half of said fine to be paid to the
It would seem at the common law actions to recover penalties prescribed by law were often prosecuted by what was known as “common informers.” Blackstone’s Commentaries, Book 3 [Coolidge Ed.] 160, and when a portion of the penalty recovered went to the person or persons informing, and a portion to the sovereign, the action was styled a “qui tam action.”
Judge Pollock also observed that:
While it has been held there must be either express statutory authority authorizing an informer to prosecute in his own name, or such right must be given-by necessary implication (cases cited), yet, on the contrary, it has been ruled where a statute gives a portion of the recovery to an informer who prosecutes for the same * * * such statute contains sufficient implied authority to support a prosecution by an informer in his own name. Adams, Qui Tam, v. Woods,2 Cranch, 336 ,6 U.S. 336 ,2 L.Ed. 297 ; * * *
This observation was further considered in United States ex rel. Marcus v. Hess,
Turning to the circumstances of the instant case, each of the District Courts that have had occasion to consider Justice Black’s comments, have rejected his analysis of the law. See Reuss v. Moss, American, Inc., No. 70-C-485 (E.D.Wisc. Feb. 23, 1971); Reuss v. Peter Cooper Corp., No. 70-C-486 (E.D.Wisc., Feb. 23, 1971)
Justice Black’s dictum would appear to state the law too broadly. The qui tam action depends entirely upon statutory authorization, as it has never found its way into the common law. The action arises only upon a statutory grant. The fact that someone is entitled by statute to share in some penalty or forfeiture does not necessarily also give such person the right to bring an original action to recover such penalty or forfeiture. There must be statutory authority, either express or implied, for the informer to bring the qui tam action. When the statute is silent as to whether the qui tam action is authorized, and nothingcan be gleaned concerning congressional intent from the circumstances surrounding the passage of the statute then perhaps Justice Black’s construction in favor of the qui tam action may be justified in many instances. But Black’s construction obviously is inappropriate whenever the statute’s language by necessary implication precludes such a conclusion.
An examination and analysis of § 411 shows clearly that the criticism of Justice Black’s dictum is well taken. First of all, § 411 provides that every person or corporation violating § 407:
* * * (S)hall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine * * * or by imprisonment * * *, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction. (Emphasis added)
Accordingly, the informer’s rights depend upon three prerequisites:
1) A criminal proceeding being instituted under § 411;
2) A conviction obtained in the criminal proceeding; and
3) The imposition of a fine as punishment.
See Bass Anglers Sportsman’s Society of America, et al. v. U. S. Plywood-Champion Papers, Inc., et al., supra. The informer’s rights are dependent entirely upon the successful prosecution of a criminal action.
Viewed in this light, several additional observations are in order. First, criminal statutes cannot be enforced by civil proceedings. United States v. Claflin,
Second and more important, case law indicates that alleged violations of criminal statutes may be enforced only by the proper prosecuting authorities and not by private parties. See Pugach v. Klein,
The President of the United States is charged in Article 2, Section 3, of the Constitution with the duty to “take care that the laws be faithfully executed * * * ” The Attorney General is the President’s surrogate in the prosecution of all offenses against the United States. 5 U.S.C.A. § 291 et seq., 28 U.S.C.A. § 507. The discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecution already started, is absolute. Confiscation Cases, 1869,74 U.S. (7 Wall.) 454 ,19 L.Ed. 196 ; Powell v. Katzenbach, 1965,123 U.S.App.D.C. 250 ,359 F.2d 234 , cert. den. 1966,384 U.S. 906 ,86 S.Ct. 1341 ,16 L.Ed.2d 359 , reh. den.384 U.S. 967 ,86 S.Ct. 1584 ,16 L.Ed.2d 679 .
See also Newman v. United States,
Accordingly under the circumstances of the instant case and the applicable law the Court is of the opinion that the plaintiffs have no standing to maintain this action pursuant to §§ 407 and 411 nor to recover the penalty provided by § 411 short of a successful criminal prosecution. These statutes create and define crimes which may not be prosecuted by private civil action. The designation of the action as a qui tam action does not circumvent the conclusions reached for § 413 provides explicitly that the power to enforce the provisions of §§ 407 and 411 lies exclusively in the Department of Justice, thereby precluding any private civil action for the recovery of the informer’s moiety.
In addition to seeking recovery of the fine provided in § 411, the plaintiffs also seek injunctive relief against both the Group A and Group B defendants. Indeed, the injunctive- relief is actually the primary relief sought by the plaintiffs. As represented unto the Court at the hearing in this case, the recovery of the monetary fine provided in § 411 was at best a secondary objective of the plaintiffs. The plaintiffs’ primary objective has been and remains the objective of preventing the defendants from polluting the waterways of Tennessee.
As to the Group A defendants, the plaintiffs seek a permanent injunction
“ * * * prohibiting defendants from depositing refuse or waste of any kind or description into any navigable waterway or tributary of any navigable waterway, or to deposit any such refuse or waste on the banks of any navigable water or on the bank of any tributary of any navigable water in violation of 33 U.S.C. Section 407, without a permit from the Secretary of the Army as provided by statute.”
The Court has heretofore observed that § 407 is a statute defining a criminal violation. Accordingly, the plaintiffs seek in this phase of the litigation to enjoin activity that is held by § 411 to be a crime. In this regard, the general rule appears to be that injunctive relief is not a proper remedy for the enforcement of criminal laws. See In re Debs,
The remedy at law by criminal prosecution is not always efficacious and adequate, and however reluctant equity may be to use the process of injunction against criminal and penal acts, it will not hesitate to do so where the relief is necessary to protect the rights of the public or of priy vate individuals. Thus, it is generally held that an injunction will be granted to restrain acts amounting to a public nuisance if they affect the civil or property rights or privileges of the public or endanger the public health, regardless of whether such acts are denounced as crimes.
The plaintiffs contend in the instant case that the deposits of waste and refuse into the streams of Tennessee have had and will continue to have a detrimental effect upon the fish and wildlife frequenting these streams. Further, the plaintiffs contend that they are aggrieved parties entitled to seek injunctive relief since they are corporations existing primarily for the purpose of conserving rivers and streams for the benefit of the public generally and sportsmen in particular.
Two issues require decision by the Court upon this phase of the action. First, whether injunctive relief is proper or appropriate pursuant to §§ 407 and 411. Second, assuming that injunctive relief is permissible, whether the plaintiffs in this lawsuit have a sufficient interest to seek injunctive relief, that is, whether these particular plaintiffs have standing to secure an injunction against the actions herein complained of.
Returning to the first question, being the propriety of injunctive relief for alleged violations of § 407, the recent case United States of America v. Florida Power & Light Company,
The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. Cf. In re Debs,158 U.S. 564 , 586,15 S.Ct. 900 , 907,39 L.Ed. 1092 , 1103 (1895). The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, Sanitary District of Chicago v. United States,266 U.S. 405 ,45 S.Ct. 176 ,69 L.Ed. 352 (1925) was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad, (cases cited)
In both the Republic Steel case and the Wyandotte case the argument was advanced that congressional authorization for injunctive relief under certain sections of the Act indicate a congressional intent that such extraordinary relief is appropriate only in those circumstances where specifically authorized and in no other. The Supreme Court answered this argument in the context of § 10 of the Act by stating:
Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation.
The Supreme Court in the Republic Steel case did however clearly state that § 13 of the Act was likewise to be accorded a broad interpretation:
The philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York,283 U.S. 336 , 342,51 S.Ct. 478 , 479,75 L.Ed. 1104 , 1106, that, “A river is more than an amenity, it is a treasure,” forbids a narrow, cramped reading either of § 13 or of § 10.
Although the
Republic Steel
case involved interpretation of § 10 of the Act
Turning to the second issue, whether the plaintiffs in the instant case have standing to seek injunctive relief in this case, the simple answer is that they do not. The following quotation from Carolina Power and Light Co. v. South Carolina Public Service Authority,
“* * * [j]t is perfectly well settled that any unlawful obstruction of a navigable stream or a public highway is a matter for the public authorities, not a matter of which private individuals may complain, unless they suffer some direct and special injury to their rights not common to the public. (cases cited) And, with respect to obstruction of navigable waters, provision is expressly made by federal statute for the Attorney General of the United States to institute proceedings for the removal of such obstruction, 30 Stat. 1151, as amended 33 U.S.C. A. § 406.
See also Northern P. R. Co. v. Whalen,
This lawsuit concerns alleged impairment and pollution of the waterways of the United States, specifically, in the State of Tennessee. The plaintiffs rest their case and their right to relief upon the Rivers and Harbors Act of 1899 and specifically the “Refuse Act” [33 U.S.C. § 407] therein contained. As noted in the Wyandotte case: “The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States (cases cited) was obviously intended to prevent obstructions in the Nation’s waterways.” The Federal Government, pursuant to Article I § 8 of the Constitution, is responsible for overseeing and protecting channels of commerce including navigable waterways. The Rivers and Harbors Act of 1899 is a statutory assumption of that responsibility by Congress. Section 413 of that Act vests the Department of Justice with the responsibility of conducting those legal proceedings necessary to enforce the provisions of the “Refuse Act.” The allegations of the complaint herein reflect that the plaintiffs, as private parties, are concerned with the preservation of the Nation’s waterways and of the fish and wildlife that are indiginous to these waterways.
The plaintiffs’ as special interest groups, may indeed conceive of their interest in conservation and the alleged pollution of our waterways as a special injury. However, the destruction or impairment of our environment, through water and/or other forms of pollution, is a blight upon the Nation and not merely the concern of special interest groups such as the plaintiffs. Technical proficiency and progress has had an unexpected and unwanted byproduct, ecologi
Additionally, the plaintiffs seek the following injunctive relief against the Group B defendants:
A) A permanent injunction requiring said defendants to establish standards for the issuing of permits allowing the dumping of refuse into navigable waterways and tributaries of navigable waterways in the State of Tennessee; and
B) A permanent injunction requiring said defendants to apply said standards, and formulated to anyone desiring to dump refuse into those navigable Tennessee waterways protected by 33 U.S.C. §§ 407 and 411.
The Rivers and Harbors Act of 1899 (33 U.S.C. §§ 401 et seq.), and more specifically, the “Refuse Act,” contain no language which requires either the Secretary of the Army or the Director of the Corps of Engineers to establish such standards and issue permits pursuant to these standards. Section 407 of the Act does provide that:
The Secretary of the Army, whenever in the judgment of the Chief of Engineers * * * may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions prescribed by him, provided application is made to him prior to depositing such material * * *.
Additionally, § 419 authorizes the Secretary of the Army to develop such a permit system. In relevant part, this statute provides:
The Secretary of the Army is authorized and empowered to prescribe regulations to govern the transportation and dumping into any navigable water, or waters adjacent thereto, of dredgings, earth, garbage, and other refuse materials of every kind or description, whenever in his judgment such regulations are required in the interest of navigation.
These statutes clearly indicate that the development and implementation of a permit system by the Secretary of the Army and the Chief of Engineers is discretionary as opposed to mandatory. The relief sought in this phase of the action is in the nature of mandamus to compel the Secretary of the Army and/or the Chief of Engineers to establish and apply standards for the issuance of permits allowing the deposit of refuse in navigable waters.
The writ of mandamus is an extraordinary writ and prior to its issuance, the party requesting it must establish that he has a clear and certain right and that the duties of the defendant are plainly defined and peremptory. See Albert v. United States District Court,
It is clear under the applicable law and the statutes in the instant ease that this Court has no authority to direct the Secretary of the Army or the Chief of Engineers to set standards for the issuance of permits or to require the issuance of permits. See Wilbur v. United States ex rel. Kadrie,
The plaintiffs have moved to amend the complaint to join the Department of Justice as a party defendant and to request a writ of mandamus requiring the Department of Justice to perform mandatory duties imposed by 33 U.S.C. § 413, specifically, to join the plaintiffs in the prosecution of this action.
As the Court has heretofore observed, the discretion of the Attorney General in choosing whether to prosecute or not to prosecute criminal violations is absolute and mandamus will not lie to control the free exercise of this discretion. Likewise insofar as the plaintiffs are seeking an order upon the Department of Justice to require them to join with the plaintiffs in seeking injunctive relief for violation of § 13 (33 U.S.C. § 407) of the Rivers and Harbors Act of 1899, mandamus will not lie. Although 33 U.S.C. § 413 provides that “the Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections * * * 407 * * * 411 of this title” and although, as the Court has heretofore held, injunctive relief is one tool available for enforcement of the Act, there is no mandatory duty or obligation upon the Department of Justice to seek either a criminal or a civil remedy. Rather, these are matters of discretion and the Court is without authority to direct the Department of Justice to join the plaintiffs in seeking injunctive relief for alleged violations of the Rivers and Harbors Act of 1899.
Finally, since the plaintiffs do not premise their cause of action against these government officials upon 28 U.S.C. § 1361 and since tKe Court has heretofore concluded that relief in the nature of mandamus is not proper, the Court is further of the opinion that it lacks jurisdiction over the Group B defendants, since this suit is in reality an action against the sovereign to which it has not consented and does not fall within either of the recognized exceptions to the doctrine of sovereign immunity, being 1) action by officers beyond their statutory powers, and 2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void. See Dugan v. Rank,