VERMONT v. NEW YORK
Argument of Fred I. Parker
Chief Justice Warren E. Burger: -- number 50 original, State of Vermont against the State of New York and others?
Mr. Fred I. Parker: Mr. Chief Justice, may it please the Court.
This original jurisdiction suit is a suit by the State of Vermont against the neighboring State of New York and against a citizen of that state, namely International Paper Company.
It is a controversy over a sludge bed which is sitting on the bottom of Lake Champlain which lies over the interstate boundary between the two states.
We have alleged in our Bill of Complaint that, that sludge bed constitutes a public nuisance that it also constitutes a continuing trespass because it is encroached over the state line on to lands for the State of Vermont, that it is giving rise to an interstate boundary question because its presence is causing a shift of the channel in the direction of the State of Vermont and that it is depriving, and has deprived, Vermont citizens of their right to freely use Lake Champlain.
It is my intension to spend some portion of the original part of this argument in discussing of facts which I think are very important and a very short time on the legal issues which I think are simple to comprehend, although they might be difficult to administer.
The states of Vermont and New York, as I said, are neighboring states.
Lake Champlain lies along the boundary between the two states.
It is a 170-mile long lake, a very narrow one, 12 miles wide at its widest point and it flows in a Northerly direction.
The situation that we describe, the sludge bed situation, is one which exists in the Southerly portion of the lake, almost at what would be the head waters, if you are viewing this long lake as a stream.
Chief Justice Warren E. Burger: Would you give me, so I am going to get at least little better, and more complete picture of the geography, that the total size of Lake Champlain?
What are it's dimensions?
You said 12 miles in its widest part, is that correct?
Mr. Fred I. Parker: Yes Your Honor it -- the length is 107 miles long, 12 miles at its widest part which is about the midpoint of that 107-mile stretch and it narrows down in the Southerly portion at the place, we're describing to about a mile and it narrows down in the Northerly portion where it joins the -- it crosses the Canadian boarder to about a mile and I would say that it fairly regularly narrows.
That is, it starts about a mile wide expands to 12 miles and then comes back to about a mile wide.
Chief Justice Warren E. Burger: I recall that driving in that part of the country it has the characteristics of a river rather than a lake.
Have been -- I would like to get to the picture, how much of that total is affected directly by the sludge?
Mr. Fred I. Parker: The evidence that was presented in the interstate conference that was held on this matter indicated that the sludge bed itself was approximately 300 acres and that the water that it then affected was about 1600 acres.
Now at that time, there was a continuing discharge from the International Paper Company plant which has since ceased and I expect that now the water is being affected somewhat less than they were at that time because of the discontinuance of the discharge.
At the place where the sludge bed exists, there is a stream which is coming from New York, Ticonderoga creek which runs between Lake George and runs into Lake Champlain, and that stream, while the lake is running in a North-South direction, the water flowing Northerly, the stream joins the lake in a South-Easterly direction, so that the waters of the stream run into the lake and buck the current that exists there in the lake and as a result of that the -- well let me back up for just a second, the International Paper Company has been operating a mill, a paper producing mill and pulp mill on Ticonderoga creek for a period of 45 years and it has discharged waste from those paper making operations for that period into the stream.
The discharges have deposited out along the stream and especially at the place where the stream joins the lake, is such a point that it has formed this huge 300 acre sludge bed which consists of organic and inorganic materials that are in a state of septic decay.
And that --
Justice Potter Stewart: The operation is now finished, isn't it?
Hasn't that perhaps closed?
Mr. Fred I. Parker: Yes Your Honor, it has.
It shut down partially in December of 1970 after this suit was instituted and fully shut down in April of 1971, but the --
Justice Potter Stewart: A new plant has been built few miles away?
Mr. Fred I. Parker: That's correct.
Justice Harry A. Blackmun: This is on the lake, the new plant?
Mr. Fred I. Parker: New plant is on the lake and it contains a treatment system.
At this point in time, we haven't seen measurable degrading effect from the new plant although we are monitoring that situation.
Justice Potter Stewart: As of now, there is no complaint against the operations of the new plant?
Mr. Fred I. Parker: That's correct, Your Honor.
The situation that does exist --
Justice Harry A. Blackmun: Is the new plant discharging anything into the lake?
Mr. Fred I. Parker: Yes, it discharges a treated effluent from the plant.
Both the domestic sewage in the plant and the waste from the paper making operation are treated and an effluent is discharged.
We do see some discoloration, but so far we haven't measured detrimental effects.
The sludge bed however, remains on the bottom of the lake and it is sitting on land of the State of New York.
We believe that that sludge bed constitutes a continuing nuisance in that, it will continue to decay and take oxygen from the waters.
It will continue in it's decay to give off gaseous emissions causing severe smell in that area.
It will continue to constitute a interference with navigation.
The situation is there that the sludge has actually filled in to depths of 12 feet to a point at low water.
In much of that area, you can't bring a boat through there and the situation has existed for many years that as this sludge bed decays, the gases formed in the sludge bed cause huge mats of the sludge to rise to the surface and the prevailing Westerly winds cause them to float on the water to the Vermont shore.
We believe that this condition will continue.
We also believe that there will be a continuing trespass.
We have measured using older maps that show the midpoint of the deepest channel in the lake which constitutes the boundary.
We find that, that deep channel has been filled in such that the deepest channel now has moved toward the Vermont shore and that the sludge sitting there constitutes a trespass and in addition, it gives rise to a question of where boundary will be.
The existence of that sludge bed over the years and it's continued existence in the water deprives Vermont citizens of their right to fish in the water, the fish life there has been seriously depleted by virtue of the oxygen robbing qualities of the sludge and --
Justice Harry A. Blackmun: Is that admitted Mr. Parker?
Mr. Fred I. Parker: It's admitted in part and denied in part.
I think that the posture of -- I don't mean to speak for the defendants.
I think the defendant posture at this point is that the continuing effect of the sludge bed will have no detrimental effect as I understand their position.
Justice Harry A. Blackmun: But was there some action taken with the (Inaudible) recently which produced results?
Mr. Fred I. Parker: As I understand it, the studies of the defendants in this case indicate that the conditions in that area have improved and our own studies indicate that the conditions have improved greatly, since the discharge is ceased.
But our experts inform us that we can expect a continuation of the prior circumstances, based on that fact that the recent studies were done, were done last summer at a time when the water was unusually high down there and the temperatures did not rise as much as they have in past.
We expect that given a situation where the water is lower and get heated up as it has in past years that we will return to the situation that existed over past years and probably not as severe because of the discontinuance of the discharges.
Justice William H. Rehnquist: Mr. Parker, why can't the State of Vermont get relieved against International Paper, putting to one side the question of State of New York, in our own courts but the type of wrong that you've just described?
Mr. Fred I. Parker: If it turns out in the proof of this case that the remedy, the best remedy is removal of the sludge, then of course we may end up with incomplete relief because New York is now taking the position that to remove the sludge would constitute a threat to the ecology of the lake.
New York has control over those waters and New York owns that land.
I assume that New York could prevent International Paper Company from removing the sludge from its land and --
Justice William O. Douglas: Under the Federal Act, you got as far as the Attorney General?
Mr. Fred I. Parker: No, we didn't get that far.
Justice William O. Douglas: How far did you get?
Mr. Fred I. Parker: We got through two conferences and a letter from the Secretary of the Interior suggesting action on the part of State of New York, then the, then Secretary of Interior Hickel left and the powers of the Interior were transferred to EPA and we have requested action from EPA, but their response has been negative at this point.
We haven't seen any action.
Justice William O. Douglas: They declined to Act or just not answer to your inquiry?
Mr. Fred I. Parker: We invited them to join this suit and they said, they are very concerned about it, but didn't care to act at this point and I understand that they are -- attached to the latest brief of the State of New York is a indication that the State has corresponded with EPA indicating that their recent study show that nothing further should be done.
Justice William O. Douglas: As I read the Section 10, of the Federal Act, Sub division (g), EPA may request the Attorney General to bring a suit on behalf of United States to secure the bed?
Mr. Fred I. Parker: That's correct John.
Justice William O. Douglas: There is no edit -- that hasn't been changed to a must or Its pretty discretionary?
Mr. Fred I. Parker: That's right, that's the frustrating business of attempting to deal through these conferences with Federal Government.
We have no way of getting them to Act, if they don't care to.
And I have no way of knowing whether the federal Government disagrees with our position or for some other reason has declined the Act, but they have not gone fully.
Justice Harry A. Blackmun: In this respect, Mr. Parker, enlighten me, what does Vermont feel that New York should do that it hasn't done at this point?
Mr. Fred I. Parker: We feel that that sludge either should be removed from the water or should be covered over so that the it doesn't affect the water quality in the future.
Chief Justice Warren E. Burger: Covering over on the entire 300 acres, does the record show what kind of coverage would be required to be adequate?
Mr. Fred I. Parker: I am not sure that record shows this, but the Federal conferences that were held in this case, the Corp of Engineers did the study which suggested that a sand cover could be laid over sludge.
There is an disadvantage in that remedy because we already have a problem with navigation which of course wouldn't be solved by leaving sludge there.
Chief Justice Warren E. Burger: That's why I have put that question if you -- I don't know whether it's six inches or six feet of coverage that would be requiring but anything you put in would be a further interference with navigation unless the interference with navigation is in such a small part that you can have a dredging operation first?
Mr. Fred I. Parker: I think that's one possibility is accommodation of the two remedies to dredge some and to cover some, but I think that if this Court does take jurisdiction, also it would be one of the problems that we would be trying to workout in trying this case.
Chief Justice Warren E. Burger: Let's suspend it, until after lunch.
Mr. Parker, you may continue.
You have 15 minutes remaining in all.
Mr. Fred I. Parker: Mr. Chief Justice, may I please the Court.
I indicated just prior recess that we're seeking as remedies in this case either the removal of the sludge bed or its covering whichever seemed most appropriate at the time when the remedy that when we would receive a remedy and in addition, I should indicate that we do have a claim in this Bill of Complaint for money damages.
We have sought over the years alternative relief to litigation.
Early in the 1960s in the New England Interstate Water Pollution Control Compact, the State of Vermont began negotiations which lasted over a period of 10 years with the State of New York, seeking some remedy of the situation which existed in the Lake Champlain.
And as I recited earlier under the Federal Water Quality Act, we have -- there have been held two Federal Conferences at the request of the State of Vermont.
In the first conference, held in 1968, it was determined that there was a problem in that area of the lake.
And in between the two conferences studies were conducted by the Army Corp of Engineers and by the Water Quality Administration which studies dealt with the question of how best to remedy the situation?
One of them concluded that a major portion of the sludge bed did come from the International Paper Company plant.
The other studies concluded that the best remedy was cessation of a discharge and removal of the sludge and a technical committee of that conference concluded that the continued existence of the sludge bed in the lake would constitute a continuing problem.
The defendants of course disagree with that conclusion and that points up the reason why we have have to litigate this case.
Legal issues involved as we see them, the primary legal issue is whether --
Justice Potter Stewart: Just before you move to that, do I understand that the sludge bed is on the bottom of the lake on the New York side of the boundary?
Mr. Fred I. Parker: It is now on both sides of the boundary, Your Honor.
It emanates from the New York side and it is spilling over on to Vermont land.
Justice Potter Stewart: And is something in the record to the effect that it's been building up over many years and there are other contributors to it in addition to many other -- many other contributors in addition to the paper company, this paper company?
Is that -- the paper company is the sole cause of it?
Mr. Fred I. Parker: I don't think that we'll be able to prove that they are the sole cause, but they're certainly the major contributor to it and I think we can prove that.
The paper company alleges that others are also involved, but they don't set out the quantities.
The federal study done pursuant to the first conference concluded that the major source of the bed were from the paper company plant.
Justice Potter Stewart: And this is way down to the Southern tip of the Lake, is it?
Mr. Fred I. Parker: That's right.
Justice Potter Stewart: Down around Port Henry.
Mr. Fred I. Parker: South of their -- at Ticonderoga.
Justice Potter Stewart: Ticonderoga is not -- Is Ticonderoga on the lake?
Mr. Fred I. Parker: Its just pass the lake and yes the city -- the Ticonderoga boundary does have a plant along the lake but the city of Ticonderoga and the place where the mill is on Ticonderoga creek which is a tributary running into lake Champlain.
Justice Potter Stewart: How far from the lake?
Mr. Fred I. Parker: About a mile I believe.
Justice Potter Stewart: Thank you.
Mr. Fred I. Parker: As we see it the major legal issues whether jurisdiction is exclusive in this Court and contributing to that issue is whether we have an alternative forum or whether the principles of Ohio just wind out (Inaudible).
In addition there is the legal question just recently briefed, asked by the Court as to what law applies?
We think all of those legal issues turn on and are controlled by the question of whether New York is properly a party to this complaint.
The defendant's claim that we are simply alleging no administration of New York law in failing to control this situation over the years, that is not the case.
If we were to assume that there were no New York laws on this subject, we would still have a situation existing where the sludge bed lies on New York land and New York has control over that land and over that situation.
They are permitting and have permitted over the years, the continuation of a nuisance which is causing us harm and we think that once that question is resolved then the others fall into line.
Jurisdiction is exclusive one.
Justice Byron R. White: What is your cause of action against New York?
Mr. Fred I. Parker: Maintenance for public nuisance, Your Honor.
Justice Byron R. White: You are saying New York is doing that by letting the sludge to accumulate on its lake part?
Mr. Fred I. Parker: That's correct, on its property.
Justice William O. Douglas: That's a federal common law nuisance?
Mr. Fred I. Parker: Yes, if we litigate before this Court, it'll be a question of federal common law and that's the position that we took in the recently submitted memorandum.
Justice William O. Douglas: Could you get into a Federal District Court?
Mr. Fred I. Parker: I don't think we can because the state of Vermont is not a citizen for purposes of this diversity and both the 28 U.S. Code, Section 1251 provides that this forum is the exclusive forum where we can litigate state versus state.
So as long as New York is a party for this litigation, this is the only place that we can bring the suit.
Justice William O. Douglas: If this is a federal, we just assume for purposes of argument that it is a federal common law nuisance, can you litigate in a District Court?
Mr. Fred I. Parker: I don't think -- as I understand the law the District Court does not have jurisdiction to permit a suit between states.
Justice Byron R. White: But you have got two suits here, you got one against International Paper Company and one against the State, I mean at least you have got two parties?
Mr. Fred I. Parker: Yes, Your Honor.
We are dealing in this joint --
Justice Byron R. White: We already (Inaudible) that you could litigate against the International Paper Company in the District Court?
Mr. Fred I. Parker: Yes, Your Honor we could.
Justice Byron R. White: And that federal law would control it?
Mr. Fred I. Parker: I think that that's a problem.
If we conclude that state versus state, we look to federal common law in this Court and if we treat those as a case of joint tortfeasors, both litigated here, then I think that this Court would apply federal common law against both defendants.
Justice Byron R. White: But the (Inaudible) hasn't named New York at all and you sued them in the Federal District Court, sued International Paper in the Federal District Court?
Mr. Fred I. Parker: Yes, Your Honor.
Justice Byron R. White: You would be asking for the application of the same law that you'd be asking here, correct?
Mr. Fred I. Parker: I don't think so, Your Honor.
I think at that point then the substitute law which controls would be state law.
The choice of law rules would have to apply.
Justice Byron R. White: Well, why is that?
Mr. Fred I. Parker: Erie railroad v. Tompkins.
Justice Potter Stewart: There wouldn't be a diversity case, by definition.
You said that a state is not a citizen of another state, it wouldn't and couldn't be a diversity case and the Erie railroad rule is applicable to diversity cases?
Mr. Fred I. Parker: I was just -- I think it would have to be a diversity case in order to get there and that's why we can't go there.
Justice Byron R. White: Well, you would be --
Justice William O. Douglas: Will that be supposes that the decision of this Court, that you would -- you are governed by federal common law on this instance, we've never so held, have we?
Mr. Fred I. Parker: In cases involving state versus other states, the Court has consistently held that these kind of cases are governed by interstate common law or federal common law of nuisance.
In suits between states and citizens of other states, when a state was not involved, to me the law was unclear.
I can't find any clear holding --
Justice Byron R. White: What would you say if you were suing International Paper alone in this Court and surely that would be a case within our jurisdiction and you were claiming that this sludge bed was nuisance.
Now you would be asking every implication of federal law, wouldn't you?
Mr. Fred I. Parker: I would be, yes.
Justice Byron R. White: Why would you think that any different law would apply if you were suing in the Federal District Court which has contract jurisdiction in that kind of a case?
Mr. Fred I. Parker: Because as I understand it -- well the only way, I could understand to get into a Federal District Court --
Justice Byron R. White: You are asking for a federal -- you are just suing on a federal question as a matter of a federal law?
Mr. Fred I. Parker: I had never understood that to be the case.
Justice William O. Douglas: Well of course it hasn't really been decided.
Are you acquainted with the Pankey case in the Tenth Circuit?
Mr. Fred I. Parker: Yes, I am acquainted with it Your Honor.
I don't fully understand it.
It seems to stand alone and --
Justice William O. Douglas: Well that's a state assertion?[Attempt to Laughter]
Justice Byron R. White: Well, let's assume that it had been that -- let's assume that you are suing in this Court International Paper Company alone and this Court decided federal law applies and then in a identical suit on the facts between the state and another company, this suit is brought in the Federal District Court.
Wouldn't you think the same law would apply?
Mr. Fred I. Parker: I think if I were plaintiff in that suit in a federal court, I would urge that was a case, but I don't find that to be the law at this point in time.
I am afraid that the Federal District Court wouldn't let you litigate and therefore you'd be without a forum.
You'd end up in a state court --
Justice Byron R. White: But they did in (Inaudible), didn't they?
Mr. Fred I. Parker: Yes, it did and that's the only one so far as I know.
Justice Byron R. White: Well, it's the only way, there isn't anything against it either, is there?
Mr. Fred I. Parker: No, there are no holding --
Justice Byron R. White: And the only authority there is, this Pankey case?
Mr. Fred I. Parker: That's correct.
Justice Potter Stewart: What did Wyandotte had to say on this subject?
Mr. Fred I. Parker: Well as I understand Wyandotte, that case said, go back to the state court.
It did not direct the plaintiff in that case to go to the Federal District Court.
Justice Potter Stewart: But perhaps I should explain them all on the basis that the Court understood, that the State of Ohio was asserting an Ohio cause of action under the Ohio nuisance law?
Mr. Fred I. Parker: It's possibly the case and we may have that here in this case, if we have to.
If this Court does not take jurisdiction, we may very well end up back in a state court in Vermont.
But in that case, we would only be against International Paper Company and I don't believe that we could get complete relief, and that is my argument.
Chief Justice Warren E. Burger: Thank you Mr. Parker.
Argument of Philip Weinberg
Mr. Philip Weinberg: Mr. Chief justice and may it please the Court.
To accept this case, would be to undercut precisely what this Court held in Wyandotte, where the relief sought by the plaintiff was virtually identical namely an injunction against the alleged pollution of water of an interstate lake and damages therefore.
And It seems to us that Wyandotte is completely dispositive here.
The Court there properly held that in the case such as that involving complex issues effect and bottomed on local law, in which the factual questions were sharply contested and in which in this Court's phrase, novel scientific issues were involved, that although concededly there was jurisdiction in this Court, it was precisely the sort of question that the Court should not get entangled in.
Justice Potter Stewart: There is one very great big difference thought is there not?
In Wyandotte, there was no state, there was a defendant.
There was not a controversy between two states.
Therefore this Court's -- well jurisdiction existed in this Court, it was not exclusive jurisdiction.
Controversy between two states is exclusively within this court's jurisdiction, is it not?
Mr. Philip Weinberg: Certainly is Mr. Justice Stewart and it's precisely our of point that there is no genuine controversy between the two states here.
Justice Potter Stewart: Well that is a separate point but this -- that on its face is what differentiates this case from Wyandotte, among other?
Mr. Philip Weinberg: That's certainly true, once we go beyond the surface representation that two states are involved in and look at the realities of the case, however that it seems to me just close or broad because was in fact, New York was injected.
I don't want to characterize why New York was injected, but certainly, but the only reason for the presence of New York here is to obtain some sort of a possible jurisdiction in this Court, when in fact everything that Vermont wants, they want from International Paper.
It's conceded on this record here that the New York didn't contribute one scintilla of pollution to the lake.
New York had no more to do with creating the sludge bed then China did, and that's beyond dispute.
The sludge bed was created by International Paper and perhaps by other private parties as well.
Justice Thurgood Marshall: Except China had more authority to break international stuff?
Mr. Philip Weinberg: That's certainly true Mr. Justice Marshall.
Justice William O. Douglas: As an assumption though in what we quote that string that you agreed in Wyandotte that the state court that decided the case under the same common law of nuisance, on which our determination have relied.
That wouldn't be true if this federal common law of nuisance, would it?
Mr. Philip Weinberg: It would only be a federal common law of nuisance case under our view of the law if the state were a proper party, and if a genuine claim for relief existed as against New York.
Now the answer it seems to me is that in contrast to other situation such as the previous case that was argued this morning involving Milwaukee, New York has been more than diligent, it’s actually been aggressive in dealing with this problem.
We forced International Paper to cleanup the pollution that it was causing in Lake Champlain.
We took them to court.
The case is cited in our original brief.
We obtained a consent to create consent judgment of injunction, directing International Paper to cease its active pollution and it’s conceded now that there is no longer any active pollution from this source at all.
And following that, we represented to the Enforcement Conference at which Vermont and New York and the Federal agencies were all parties, we represented to them that we would take whatever steps were necessary or appropriate to abate the pollution caused by the sludge bed, and pursuant to that, we entered into a pilot study in which Vermont originally participated, prior to they kicking over the traces, and subsequent to that the study in which New York engaged a highly respected independent consultant, and the conclusion based on that study which has never been controverted by anyone except by Vermont in this lawsuit, not by any Federal agency, not by any New York agency, not by anyone else except Vermont, was that the pollution, the active pollution had now completely ceased that whatever damage the sludge bed was causing was due to the active pollution of the lake, and then in fact, the problem was dissipating and the sludge bed itself was stabilizing.
The report, a copy of the summary of which is appended to our supplemental brief plainly indicates that fish are now returning to that portion of the lake, and that of the various alternatives by far the safest one, by far the most practical and by far the most realistic from an environmental standpoint is to simply leave the sludge bed alone, because what’s happening now is a natural process of stabilization under which fish and other marine life are returning to the lake.
The thesis of (Inaudible) so on and the bubbling which have complained --
Unknown Speaker: That really goes within the merits and appropriateness of remedy?
Mr. Philip Weinberg: Yes sir it does, but it’s simply unavoidable to discuss that it seems to me in the context as this Court said in Wyandotte whether in prudence or in discretion it ought to accept this case.
Justice Potter Stewart: Well, Mr. Weinberg doesn't it also go to New York maybe -- New York state maybe a necessary party.
The sludge bed is largely on the sub -- surface of the lake on the New York side of the line, and its Vermont’s intention that the way to abate this nuisance, to get rid of it is to remove the sludge bed and New York strenuously says, no that’s absolutely the wrong thing to do.
So if a court should order the Paper Company to remove the sludge bed, and then New York would just step in and say, I am sorry, we enjoin you from removing the sludge bed and it’s on our territory, and isn't that the reason why New York state might be a necessary party to cleanup these factual issues in this litigation vis-a-vis the remedy of --
Mr. Philip Weinberg: The first answer to that it seems to me Mr. Justice Stewart is that these are issues which a State Court or perhaps even a Federal District Court could address itself to and if International Paper were ordered by the state court of either Vermont or New York to remove the sludge bed, then at that point it would be under an injunction and it would have to do so if New York wanted to step in then New York can do so in it's courts.
Justice Potter Stewart: They would enjoin this -- the removal of the sludge bed?
Mr. Philip Weinberg: Well, it could and that question would then be litigated in the state court of either Vermont or New York, that’s one answer to it, The second answer to it is that Vermont alleges in its own complaint, that part of the sludge bed is on its own territory.
Now Vermont had as much to do with putting that sludge bed there as New York did, virtually nothing.
Justice Potter Stewart: Perhaps you didn't understand my -- I was just directing myself to the questioning the reason and why New York state might be a necessary party as of course it could not be in either a State or Federal Court except for this Court, isn’t that right?
Mr. Philip Weinberg: That’s certainly true, but it’s highly speculative I think to assume that New York would attempt to block an injunction if Vermont could obtain one in its own courts or in New York state.
Justice Potter Stewart: Well, you certainly strenuously asserted in your brief and you just began to assert in oral either the removal of the sludge bed is exactly what would be the wrong thing to do?
Mr. Philip Weinberg: Yes, but this is something that could be litigated as between Vermont and International Paper in the state courts, and if New York wanted to become a party, New York could certainly be free to intervene as New York has done as a plaintiff or defendant in numerous occasions in its own courts, and I don't see any reason why it couldn’t do in the Vermont courts as well.
It’s even conceivable under Texas against Pankey that there is some sort of a federal cause of action here.
In any event there were certainly two or possibly three forums where all these difficult factual questions could be resolved, and if New York wanted to --
Justice Potter Stewart: (Inaudible) Vermont would be or to the defendant?
Mr. Philip Weinberg: No, but I don't see the reason for making New York a defendant here.
Justice Potter Stewart: Well, I just suggested a possible reason?
Mr. Philip Weinberg: If New York wanted to interpose assuming that an injunction were granted, a mandatory injunction requiring the sludge bed to be removed, if at that point New York elected to step into the case, it could move to intervene, and if it didn't, then it would have waived whatever objection it has.
So it seems to me that, that’s not a reason for having the court, this Court hear the case in first instance.
Justice William H. Rehnquist: Well Mr. Weinberg, does New York concede that if Vermont sued International Paper either in the Federal Court in Vermont or in the State Court of Vermont without New York being a party or an intervener, and Vermont got a decree of final relief calling for the abatement of the sludge bed, that the State of New York would be bound by that decree, so that it couldn’t interfere with carrying it out?
Mr. Philip Weinberg: In situations like that Mr. Justice Rehnquist which I have personally been involved, the New York has simply executed a consent under which the private party can remove whatever it is.
We had a case like that involving pollution of the Hudson by the Marathon Battery Company.
The case was heard in the Southern District Court.
It was brought by the United States Attorney.
New York was made a party defendant solely for that purpose, or intervened I believe it was, solely for that purpose, and we simply executed a consent for letting the defendant under the consent decree to go on the underwater land and remove what was allegedly causing the disturbance.
I think the point to remember here in regard to all of this is that when one talks about a state owning underwater land or owning the water of a lake, any water pollution whether it’s done by municipality or by any sort of an industry could be with the same logic that Vermont is asserting here, be blamed on the State, just as Ohio sued the Wyandotte Chemical company and the other defendants in that case, it could have sued the State of Michigan or the province of Ontario if it wanted to, using the same logic that they were depositing toxic material into Lake Erie and that consequently, it was the responsibility of the state.
And had that happened we would have had the same situation we have here, namely the spurious injection of a state in order to provide some sort of bootstrap jurisdiction for this Court which in fact is improper, and everyone of the reasons why this Court in the exercise of its prudence and discretion rejected this suit in Ohio against Wyandotte are applicable here.
There are many of the state bodies, including the Potomac right here as well as all of the great lakes, the Hudson river, the Delaware river, and others where the same sort of logic would apply.
Obviously, all the lands on one side or the other will cross interstate boundaries.
The underwater land is owned by one state or the other, and using the reasoning which Vermont is using here you could name the state as a party defendant and have any one of those plethora of cases litigated in this Court.
Now in contrast to what we heard earlier in case number 49, where there was a history of, I believe it’s fair to say, fair bit of grapple with the serious pollution problem in Lake Michigan on the part of the municipal authorities there, New York has aggressively acted and as I indicated took the state of Vermont – took the International Paper Company to court.
Thereafter we had the study, a summary of which is appended to my brief, and with Court's permission I would like to hand up by giving to the clerk at the conclusion of my argument, a copy of the full report.
Vermont attempts to steer around the Wyndotte case saying in effect that it’s clear that the sludge bed must be removed, but in fact no agency with jurisdiction over the sludge bed has ever said so.
The Army engineers have plenary jurisdiction over the state waters, and navigable waters, and they have never so much as suggested that there was any interference with what little navigation may exist on this part of the lake.
New York has been in constant communication with the department of the Interior and after that would be ECA.
There is a letter from New York’s State Commission of Diamond (ph) to Secretary Hickel, and next to International Paper's first brief, there is a subsequent letter to Mr. Wrickleshouse (ph).
There was never any reply to any of those letters which indicated the slightest displeasure on the part of the Federal Authorities with the course that New York has been taking, and New York has kept them appraised continually.
There just isn’t the – the problem here that Vermont insists there is.
Justice William O. Douglas: I understand the core of engineers has authority only over permits to make new discharge which is inevitable, that’s where they recently acquired (Inaudible).
Mr. Philip Weinberg: Yes sir, but they certainly have authority to abate any impediment to navigations such as Vermont alleges there is.
Justice William O. Douglas: (Inaudible) doesn't run the navigation but to health, am I wrong?
Mr. Philip Weinberg: It’s my understanding Mr. Justice Douglas that army engineers have the power --
Justice William O. Douglas: Vermont is complaining about the health, quality of the water, swimming not navigation in there --
Mr. Philip Weinberg: Well they do dwell in as a sort of a de minimis or make way to argument to impediments in navigations although they have never complained to the New York Authorities about that, except by bringing the suit --
Justice William O. Douglas: (Inaudible) a health case, isn't it?
Mr. Philip Weinberg: No I don't -- Vermont certainly alleges both and we submit that there is no merit to either claim and in direct contrast to every other pollution case this Court has ever accepted including Georgia against Tennessee Copper, and Michigan and Illinois and all the rest, where there were the most serious, dangerous of epidemic and large scale pollution of interstate waters and so on.
There is nothing of the sort involved here.
What we have here is a sludge bed which is rapidly stabilizing itself in any event which is only less than a half a square mile in size and in fact there is an existing suit which is referred to in our briefs.
Justice William O. Douglas: (Inaudible) [Attempt to Laughter]
Mr. Philip Weinberg: I'm not suggesting that it's attractive.
I'm simply suggesting that there is not the massive course of action here that Vermont insists there is and that we have to put the case in the proper context in contrast to Georgia against Tennessee Copper, and other cases nearly all of which in any event antedated the whole arsenal of statutory remedies which were available in a situation like this.
Any water pollution by definition that's in the state body of water is on some states under water lands and if there is any sort of sediment or anything, then it's going to fall on lands that are owned by one state or the other.
And to hold that this Court had jurisdiction solely on that basis, would be reflectively overrule Wyandotte in any case involving an interstate body of water and simply permit the plaintiff state to elect to name the other state, which it shares the body of water with as a party defendant.
For these reasons we maintain that Vermont has an ample forum in the courts of either state and its motion for to leave to file this complaint should be denied.
Chief Justice Warren E. Burger: Thank you Mr. Weinberg.
Argument of Taggart Whipple
Mr. Taggart Whipple: Mr. Chief Justice, may it please the Court.
I represent International Paper Company.
Our position in this litigation is, I'll say at the outset three-fold.
We agree with Vermont that the complaint does not state a real justiciable claim against the State of New York.
Secondly, that this Court should refuse to exercise jurisdiction as it did in Wyandotte.
Thirdly, that as far as governing law goes, the governing law in the state of Vermont's claim against New York is federal law, but as far as Vermont's claim against the International Paper Company goes it should be state law.
Before I get into the law, I'd like to perhaps amplify startly on some of the factual questions that were asked this morning.
With respect to your question Mr. Chief Justice about the area involved and so on, I visited the area, or I tramped through the two mills, one of which is closed, the new mill which is now open.
I think you should try to visualize this part of the lake as a very narrow, almost like the closing mouth of the funnel.
You fly over the latter part of the lake, you'll see that latter part of the lake, including Ticonderoga and Crown Point is mudding throughout as the lake broadens and gets to be clear and much different.
The sludge bed itself which lies in the northern Ticonderoga Creek which empties into Lake Champlain covers some 300 acres.
Some of it is covered by marsh grass.
In fact it amused me when I was there to see that one of the colored postcards that's sold at Port Ticonderoga shows the view over the sludge bed so there is no aesthetically difficult proposition here.
The area involved in contrast to the whole area of Lake Champlain is a very limited area indeed.
Finally, Mr. Justice Stewart and I believe Mr. Justice Blackmun talked about the new mill, I'd like to say a word about that.
The Paper Company has long been concerned about the discharge problem in the old mill.
Over five years ago, it planned this new mill, It cost $76 million.
It contains the most modern water treatment facilities that were available, which cost between $3-4 million, and as the State of Vermont said this morning there is no problem about the discharges from that mill.
In fact, you can drink the water when it comes out of those treatment facilities, and people have done it.
As to fish life, which is a legitimate ecological concern, we disagree with the statement this morning by Mr. Parker that while fish life was improved substantially since the discharge has stopped from the old mill, as they did completely in April 1971 that there is going to be a reversion to a minor and poor fish life.
In fact, it's not true as I understand it that conditions this summer, when the tests were conducted by a firm (Inaudible) favorable.
The temperature of the water rose to high level soon than it normally did and stayed there for a longer time.
I want to emphasize what Mr. Weinberg said.
There is a long standing dispute as to the best way to deal with this bed.
Mr. Chief Justice you've mentioned the possibility of recovering it.
There are at least three possibilities, one is to leave it where it is, covered it or not in some way; the second is to remove it and if you remove it, what happens?
I want you to visualize this bed as a light and feathery substance as Mr. Dime (ph) stated and Mr. Wrickleshouse (ph) had tested in the New York State supplement brief points out.
It's not a thick heavy bed.
Any attempt to dredge and remove this operation, we are told would destroy the ecological balance of the lake in a most harmful fashion indeed and there is a -- there is another question too.
If you remove it, where do you put it and what happens?
Certainly it would have to be removed some place fairly near to lake, and if it were done the best evidence from the scientist says that a lot of it will reach back into the lake so removal does not seem to be a realistic alternative.
Now as to the law, I don't need to add anything.
I think that Mr. Weinberg's position, which is basically that the complaining states of course have actions for maladministration against New York of its own laws.
However, as to whether this Court should exercise the jurisdiction, and we don't dispute the Court as jurisdiction, we contend that reasons of policy and principle militate against the exercise of the Court's jurisdiction.
Even insofar as Vermont's claim against New York is concerned, a state against state claim, the way the law has developed as we understand it, even though the jurisdiction which has given to this Court of state against state cases is exclusive, it is not mandatory.
In many cases, this Court has refused to exercise jurisdiction for strong and compelling reasons of policy.
In Wyandotte, while that was a state against citizen case, and obviously we're distinct here in the sense that New York as a party as well as the Paper Company, we contend that the same considerations which militated against the exercise of this Court's jurisdiction in Wyandotte should lead this Court to refuse to exercise jurisdiction here.
These factors are familiar, but I would like to just recite them and let them into the facts of our case.
In Wyandotte, the Court pointed out that the Court would be punished into a morass of novel, difficult scientific, technical problems.
The existence and the manner of treating this sledge bed so far as we know are entirely novel.
That is why we tried to get the best engineering experts we could last summer to look at it, and would advise us, then advise the State of New York as what ought to be done about it.
The mere differences to come up this morning between Mr. Parker's statement, Mr. Weinberg's illustrate and underline the difficulties of these problems.
I think it's beyond any argument that if this Court would have take the case, the Master would be plunged in to a extremely difficult problem of fact finding and recommending.
I don't think it's any answer as Vermont might suggest later on on to say a Master can do it all because as we understand it even after the Master does it, as Mr. Justice Stone pointed out in Georgia against Pennsylvania, there still remains in this Court, the duty of independently examining the evidence itself.
Moreover, it seems to us that the Court would be entering into an area that Congress has expressly refused to preempt and rather has left to the states.
The policy of course, we think would be great if this Court would have withdrawn of into the morass of tort litigation arising from water pollution at the expense of its ability to deal with the ever broadening range of problems that come before this Court in massive numbers and are federally oriented.
If you were to take this case, it's difficult for us to see how you can pick and choose between other pollution cases which would be sure to come here and with the environmental concerns that surround the countries (Inaudible) now we think inevitable they would come here.
We therefore suggest this case should be resolved at the lower level.
We suggest that the proper course of action is for the Court to refuse to take this case and to remit Vermont to the type of procedure that the Court has said again and again should prevail in these matters and that is conference, concessions, cooperation at the lower level where these things could and should be resolved.
Justice William H. Rehnquist: Mr. Whipple.
Mr. Taggart Whipple: Yes sir.
Justice William H. Rehnquist: You concede that International Papers is amenable to service of process in Vermont?
Mr. Taggart Whipple: We contend Your Honor, I was just about to get to that, that we are sueable in Vermont, we are sueable in New York, we are ready to stand sued there, there is no question about that.
This is the really available alternative that the State of Vermont has against us insofar as remedy goes, there's no doubt about that.
And I'll put it to one side, but I want to just advert to it, in a word, the availability of the administrative remedies, which we contend Vermont has failed to exhaust and I would suggest to this Court respectfully, that in deciding whether the exercise, the Court's discretion take a case of this nature one should look long and hard to the question as to whether the state that brings the case or seeks to bring the case here has in fact exhausted it's administrative remedies in the circumstances.
Justice Potter Stewart: It's a kind of a primary jurisdiction argument or a --
Mr. Taggart Whipple: Well, I don't know.
I would characterize it as an exhaustion of administrative remedies Mr. Justice Stewart.
I think you could call it primary jurisdiction too, it might be both, it might well.
But my point here is, I don't think that the State should come in here and call upon the really extraordinary remedy of original jurisdiction, which this Court has said time and again, should be sparingly exercised and only in unusual circumstances when it is refused as the state of Vermont refused in the fall of 1972 to proceed with this engineering study which Mr. Weinberg will leave with the Court.
The door was slammed and it seems to me in a novel for a State to stand before this Court and try to invoke the original jurisdiction, which should be sparingly exercised and which when it's been called into play and water pollution cases has raised a host of difficulties.
Mr. Justice Holmes spoke about this as early as 1900, 72 years ago and it certainly not any easy today than it was then.
So, I would suggest that an element and a strong element in this Court's discretion should be not only the availability of an alternative litigating board and we are subject to suits in Vermont.
We never questioned, and also in New York, but also whether the state has made a positive and a genuine effort to exhaust their administrative remedies and I contrast this case against some other cases argued here this morning.
I think there's every difference in the will.
Justice Byron R. White: In terms of the equitable law, which says a state law should control --
Mr. Taggart Whipple: Yes sir.
Justice Byron R. White: Let's assume you are sued in Vermont, what would be the governing law?
Mr. Taggart Whipple: I would think the State of Vermont law.
Mr. Justice White --
Justice Byron R. White: In New York, the same?
Mr. Taggart Whipple: I would think so, I think common law governs traditional nuisance.
It's one of the oldest types of complaint known to mankind.
I would think this --
Justice Byron R. White: What New York says that --
Mr. Taggart Whipple: Let me clarify one thing, may I?
You said that if we are sued in Vermont, the same thing.
I think probably, the law of the place of injury should govern.
Justice Byron R. White: Well, if you are sued, what if the -- what if under the New York law of the maintenance of the sludge bed is not a nuisance?
Mr. Taggart Whipple: Well, I find it hard to accept that hypothesis, but I will arguendo, if we are sued in New York, I would think that the New York court would look to the Vermont law because that's the place where their injury occurred.
Justice Byron R. White: Well, they are saying that the Vermont says if the injury is occurring from New York maintaining on its land this sludge bed?
Mr. Taggart Whipple: No, but the thrust of the injury, the harm visits itself across the border in Vermont, on Vermont shores, that's where the injury occurs, I think.
The existence of the bed is mainly, almost entirely in the State of New York, but is in Vermont, it's the citizen's of Vermont putatively at least in the complaint, where Vermont sues as parent's patria, quasi severan capacity, they are the people who suffer.
The impact is still there across the border and I will think the state law of Vermont should govern.
Justice Byron R. White: Well, you know that in some of the interstates river cases where a state sues a private company, what have been the applicable law?
Mr. Taggart Whipple: Well there is -- I am not sure what case you are suggesting to thinking of Your Honor?
Justice Byron R. White: Well, in Wyoming and Colorado, when there was some litigation there about a stream and it was between the state and a private company, didn't the doctrine of equitable portion of the Federal law apply rather than what the --
Mr. Taggart Whipple: Well, if the case is dealing with the apportionment of interstate waters and particularly with another state contact, then I think it's clear --
Justice Byron R. White: No one is state contact.
Mr. Taggart Whipple: Alright put that aside then.
If you are dealing with the apportionment, the apportionment of interstate waters, then it seems to me the Federal Common-law would govern, but here you are dealing with an environmental concern and I would like to call Your Honor's attention again to the provisions of the several Water Pollution Control Act that were mentioned in Wyandotte, where the congressional policy was clearly and explicitly stated to recognize, preserve and protect the primary responsibilities and the rights of the states in preventing and controlling water pollution.
Justice Byron R. White: Would you see anything inconsistent with your position that you suggested, perhaps there might be a Federal Common-law of nuisance cause of action, but also a safe one?
Mr. Taggart Whipple: No, I don't.
I've thought about is a deal and I've looked to some of your decisions and you talked about DeSilve (ph) yesterday and Commissioner against Stern which is not cited in our brief at 357 U.S, this Court stated uniformity is not always a policy and it pointed out in the Bankruptcy Act, for example, the validity of a transfer of property and fraud against creditors is governed by the laws of the states and it added that you could have 50 different laws governing.
I don't see a real inconsistency.
I will admit when I first thought about this case, the notion of a uniform Federal Common law blanketing all the rivers in the country seemed appealing.
But I think when you think about it and you realize that what this Court would be doing, would be evolving a new Federal Common law and laying a tier of new Federal Common law of nuisance on top of this existing state law, the result would be not to hinder and help this pressing problem to pollution that rides aback of the country, but it would be years before people could know what the Federal Common law of nuisance would be.
Justice Potter Stewart: Now Mr. Whipple there is a litigation (Inaudible) against your client --
Mr. Taggart Whipple: Yes sir.
Justice Potter Stewart: -- in the United States District Court for Vermont, is there?
Mr. Taggart Whipple: There is.
Justice Byron R. White: And Federal jurisdiction is bottomed on what?
Mr. Taggart Whipple: Diversity.
Justice Potter Stewart: Not on Federal question, on diversity?
Mr. Taggart Whipple: I don't think it is, no Your Honor.
It's a straight complaint of nuisance than it picks up in parts, for most of the complaint is on file here.
I would like to add one thing. --
Justice Potter Stewart: How far has that litigation gone, I am just curious to know whether -- how the District Court there feels about what kind of substantive law is applicable?
Mr. Taggart Whipple: The case was brought shortly after this one.
It's a class action.
We contested the class action --
Justice Potter Stewart: Who is John, what was he representing, the town's people or the ---?
Mr. Taggart Whipple: John and three other plaintiffs are landowners or lessees along the eastern shore of the lake, opposite the sludge bed and the class they can contend, they represent, can I finish my sentence, consists of the class along the lake in this county, it's a class of 200, New York's brief is mistaken, he says 600.
We contested the class action before the District Judge in Vermont, he agreed with us.
The case is now on appeal under a 1292 (b) certification to the Second Circuit, that is the status of the case.
Justice Potter Stewart: That's the propriety of the class?
Mr. Taggart Whipple: Exactly, yes, thank you.
Chief Justice Warren E. Burger: Thank you Mr. Whipple.
Mr. Parker, you have a three minutes left, I think?
Rebuttal of Fred I. Parker
Mr. Fred I. Parker: Mr. Chief Justice, may it please the Court.
It seems clear to me that the Court has well in mind the issues in this case and I don't have anything further except that I hate to leave the record reflecting the New York allegations of diligence and for suing International Paper Company, in this case.
The discharges in the Lake Champlain have occurred for 45 years and many, many years there were no suits, whatsoever.
It was several years after Vermont began pushing New York before any litigation was initiated and it's notable that no litigation ever sought a preliminary injunction.
In fact, what happened in each case was that International Paper Company would come forward with its schedule as to abatement and New York would agree with it and then there were delays and there were numerous changes of deadline until such time as the Paper Company finally did construct and began operation of its new mill at which point the question of the lawsuit became moot.
Unless there are questions I have further.
Chief Justice Warren E. Burger: There would be none.
Thank you Mr Parker, thank you Mr. Whipple, Mr. Weinberg.
The case is submitted.