Dear USA Uncle Sam US Supreme Court … These are the Historical FACTS

The MILL POND  Lake George  Saga  is an  OPEN BOOK  for  the  World

The Mega  Toilet  Bowl 

LAKE GEORGE NY

A  Personal  Message to the  US  4th Circuit Courts and  US  Supreme Court …. Facts are Stubborn Things

The  Massive   FLUSHING and DUMPING  /   Up and Down Up and Down Up and Down  Water  Manipulations   EXPOSED

Listen to the United States Supreme Court Discuss the Huge Pile of Toxic Slop …….. https://www.oyez.org/cases/1971/50%20ORIG

The Transcript is  printed at the  Bottom of  This Page

vermont

Weed,  Coolidge,  Baldwin and many many others  Built Dam “A”  with the Lake George, Glens Falls, Ticonderoga and Caldwells  …..  YES   The  Caldwell family  at  (  Lake George Village )   The  Warraen County  Jail  and  Court House seat in the 1840s .   The  Glens Falls Banks  along with the Local Industrials   LIKE  Weed, Coolidge and Baldwin WITH  The Steam Ship  Companies   BUILT  and OPERATED  Dam ” A “.  The  Deeper Lake  Served Their  FINANCIAL and INDUSTRIALISTS   Interests  ………   https://en.wikipedia.org/wiki/Lake_George_Steamboat_Company

The  Local Newspapers  LIKE  the  Post Star, Ticonderoga Sentinel, New York Times  and many others  BUILT  very Large Political Power Machines  because of all  the  PROFITS.   International Paper of  Glens Falls  being just  ONE  …….  See  Glens  Falls  Post Star

EXCERPT …… 

The five years following the Civil War were very important to the steamboat industry. The ‘old regime’ died out and new business groupings and leases led to the control of the steamship lines on both Lake George and Lake Champlain by

the Delaware and Hudson Railroad. From 1867to 1871, the Champlain Transportation Company assumed control of the Lake George Steamboat Company  ……..  

Many Many Many connected to the Glens Falls Banks and the Paper Companies as well as  the  Steamers on Lake George were all the Industrialists behind the  Paper Companies  and  Dam “A”  and  the  Delaware and Hudson Rail Road  

bank3

      These Folks are WHOLLY  behind  Clifford and Anita Witham and  Family  being   ROBBED  for  Their  Lands  at  Harris  Bay,  Up and down and up and Down  the  Lake  George Lake Ice  destroyed Boat Houses and Docks with the Islands ……..  WARREN COUNTY  OFFICIALS  being  very  well  aware.

REPORTS OF  THE  NEW YORK  STATE  ENGINEER

Up and Down  Up and Down Up and Down  the  Andia’Ta’Roc’Te  Ice  Sheet  covered in  Snow   DESTROYED   Billions in  Private and  Public  Property   ICE   Destruction from  Pumping the  Mill Pond

The  FACTS, HISTORICAL and  COURT RECORDS are  Published ….  The  TRUTH  IS  LOOSE,  The  Genie Can  NEVER be put Back in the Bottle.
 

The Poisoning of Lake Champlain ….. 800 TONS Daily for Decades …

Aug 10, 2015 – 2 The Industrial Timber Harvest 3 The Lumber and Sawlog Segment 5 The Pulpwood Segment 8 Other Timber Products and … The New York State Department of Environmental Conservation, Bureau of Forest Marketing and Economic … Timber Industry Trends – A Perspective The cutting and processing …

 
 

       The  STATE  Flushed Dumps   LOTS of  SEWAGE in the  Hudson and Champlain  and  Huge Amounts of  DIRT and FILL  and  CONCRETE all  the  Time ….. 

VERMONT v. NEW YORK, 406 U.S. 186 (1972)

406 U.S. 186

VERMONT v. NEW YORK ET AL.
ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT
No. 50, Orig.
Argued February 29, 1972
Decided April 24, 1972

Motion for leave to file bill of complaint granted.

Fred I. Parker, Deputy Attorney General of Vermont, argued the cause for plaintiff. With him on the briefs were James M. Jeffords, Attorney General, and John D. Hansen, Assistant Attorney General.

Philip Weinberg, Assistant Attorney General of New York, argued the cause for defendant State of New York. With him on the briefs were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Paul S. Shemin and Irving Galt, Assistant Attorneys General. Taggart Whipple argued the cause for defendant International Paper Co. With him on the briefs were Richard E. Nolan and William H. Levit, Jr.

PER CURIAM.

The motion by Vermont for leave to file a bill of complaint invoking our original jurisdiction against New York and against International Paper Co., a New York corporation doing business in New York, is granted. New York and International Paper Co. are given until June 19, 1972, to answer the bill of complaint.

    • So ordered.

Page 406 U.S. 186, 187

ShoreRdfort-william-henry

Before  The State of New York   DUMPED   Millions of Yards of  Dirt INTO Lake George to Build the Famous  BEACH ROAD ….  That’s the  Fort William Henry Hotel and the  Carriage House ”  Towers Hall “

Fort-William-HenryAttack

The  Gaslight Village and entire  Beach Road /  Million Dollar Beach  area  all  MASSIVELY  Filled in DIRT DUMPED into Lake George  Massively  by    THE  STATE OF  NEW YORK ….   Notice the Large  POND AREA just  East of the  Fort William Henry (  The Gaslight Village /  Horn’s  Softee Serve –  Put-Put  Golf  Area  where  the   Charlie Wood’s  Park is  Now     (   Way Before The  BEACH   ROAD  )

 LOOK  NO  BEACH  ROAD   

Ft-Wm-Henry-Hotel
Fort William Henry Hotel and Lake George Steam Ship Dock at Lake George Village 1890s
TrainStation1902
Notice the TRAIN TRACKS and  STATION Wharf  THERE IS NO BEACH ROAD
The State of New York   MASSIVELY  Filled In The Lake George  (   Note the Lake was Raised 8 Feet by  NYS  Judge  Isacc Kellogg  )
Casinosteamer-pergola
The   CASINO  on the  Lake  BEFORE  The Beach Road was  MASSIVELY  FILLED IN   by  New York State.   The Train Station and Steam Ship Pier in the background
pergola-fort
The Pergola Casino  looking  WEST towards Lake George Village 1918
      The  STATE   Flooded Lake George  8 Feet  Deeper than NATURAL ….  The  SWAMP  is  MAN MADE ….

SwampFox <notjuris@gmail.com>

8:06 AM (13 minutes ago)
to Carol, wcso, Press.Office, afries, Nancy, James, townclerk, thompson, Ken, georgia, Travis, Carol, Brian, Margaret, Marisa
The  FACTS, HISTORICAL and  COURT RECORDS are  Published ….  The  TRUTH  IS  LOOSE,  The  Genie Can  NEVER be put Back in the Bottle.
 

The Poisoning of Lake Champlain ….. 800 TONS Daily for Decades …

Aug 10, 2015 – 2 The Industrial Timber Harvest 3 The Lumber and Sawlog Segment 5 The Pulpwood Segment 8 Other Timber Products and … The New York State Department of Environmental Conservation, Bureau of Forest Marketing and Economic … Timber Industry Trends – A Perspective The cutting and processing …

 
It’s How the  NYS  ADIRONDACKS  FORESTS  WERE  PROCESSED …..  Flushing the  Wastes  and the  WORKERS  SEWERAGE
https://vimeo.com › Witham Judson › Videos

Feb 24, 2016 – The Reality of the Giant Mess from the LaChute Poop River.

 
The  STATE  Flushed Dumps   LOTS of  SEWAGE in the  Hudson and Champlain  and  Huge Amounts of  DIRT and FILL  and  CONCRETE all  the  Time ….. 
 
The  STATE   Flooded Lake George  8 Feet  Deeper than NATURAL ….  The  SWAMP  is  MAN MADE ….

The STATE CALLS  THIS   ”  The  PINHOLE  IN THE BATH TUB  “

The  State of  New York   Massively  DUMPED  FILL  into the  LAKE to build the Beach Road.

 

The SO CALLED  SWAMP only exists because of the  GLENS FALLS  BANKS   DAM  ” A ”  at Ticonderoga.

 

The  Historical Record I Have.   ALSO  the SWAMP was owned By Mother and Dad and  THE FLOODED  ARTIFICIAL SWAMP  holds  a  TREASURE TROVE of  Materials …..  The  EMPIRE STATE  KNEW  THAT …..  They  Have  the  TREASURE  MAPS   and  the  ASSAYS.

PS ….  Building up the  ARTIFICIALLY FLOODED  LAND at Harris  Bay was  LAWFUL AS WELL.  If it had  NOT  BEEN   I suppose  Mother and  Dad would have been  ARRESTED.

 

The  US  Army and  Stetson Engineering Inspection Reports reveal  Lake George is  ARTIFICIALLY FLOODED  8 Feet  HIGHER

The  Fields and Meadows of North Queensbury  AT LAKE GEORGE  are  Man Made  Marshes  caused by the  Flooding of  STATE JUDGE  KELLOGG and  the  Weeds ,  Baldwins  and  the  GLENS FALLS  BANKS

 

 
The  New York State Attorney  Generals  Records  Reveal The TRUTH
 
 

The  ENTIRE  SAGA of  the  Finch Pruyn and Glens Falls  BANKSTERS is Now  Revealed​​

 
 
The  Bed Rock  Basin  Causes   ALL  SEWAGE  AND  CHEMICALS from thousands of  SEPTIC SYSTEMS and  SEWAGE TREATMENT PLANTS   to   POLLUTE  THE  GROUND  (  Brown Fields  )  and  the  Rains and  Ground Water   DUMP IT INTO THE LAKE
 
 
This is How  the  Lake MILL POND  is  Flushed  even using  RULE CURVE  CALCULATIONS.   The Lake George Park Commission  intentionally  with  SCINTER  does the  Math  to  FLUSH  THE  LAKE …..
 

 

The  GLENS  FALLS  BANKSTERS    Water Front Camps and The Banks  SEPTIC TANKS

      Like the  SEWERS  of  TICONDEROGA  and  their  PAPER MILLS  Etc Etc    ALL  Required  FLUSHING​
 
      See   MILKING THE  MILL POND  ….  It has  LOTS AND LOTS of  PICTURES  and  the  COURT HEARING RECORDS
 
 

 
      The  VAST   Dock Destruction ,  Boat House Destruction ,  Islands  destruction and Shore Line Destruction   HUGELY CAUSED by the  INTENTIONAL  DESIGN OF THE  PINHOLE  Dam  “A” ….  The  Annual  Up and Down and Up and Down and Up and Down  of  the  ICE SHEET is  caused  because  the   MILL POND  DAM is  far far far  TOO SMALL  to  Control  Spring Run Off …..   The  Glens Falls  Banksters  Dam  …..  The  Money Maker /   Flusher Works  is   56%  To Small  according  to the  US  ARMY  and  the  STETSON  ENGINEERS  hired by  New York State.    The  LAKE GEORGE PARK COMMISSION  Fully  Understands  the   PINHOLE  SAGA
 

The Poisoning of Lake Champlain ….. 800 TONS Daily for Decades …

Aug 10, 2015 – 2 The Industrial Timber Harvest 3 The Lumber and Sawlog Segment 5 The Pulpwood Segment 8 Other Timber Products and … The New York State Department of Environmental Conservation, Bureau of Forest Marketing and Economic … Timber Industry Trends – A Perspective The cutting and processing …

You’ve visited this page many times. Last visit: 11/19/17

Feb 24, 2016 – The Reality of the Giant Mess from the LaChute Poop River.

You’ve visited this page 3 times. Last visit: 6/14/16
A diverse group of chemicals that pose a potential risk to human health and wildlife are found in Lake Champlain. Although levels of toxic substances are low compared to more industrialized areas and progress has been made recently, there is still cause for concern. A survey of Lake bottom sediments showed elevated …
The flesh of many fish in Lake Champlain contains toxic chemicals such as polychlorinated biphenyls (PCBs) or mercury. Toxins may originate far from Lake Champlain, fall into the watershed with precipitation, and then pass through the food chain reaching their highest levels in fish that eat other fish. Older, larger fish …
Oct 2, 2014 – Lampreys attached to a lake trout. Photo/Wikipedia. Burlington Free Press: The discoloration of a relatively clear-running stream is generally cause for alarm. On Tuesday afternoon [Sept. 25], the rule held in Lewis Creek. The chemical yellowing of about 10 miles of the stream spelled doom for thousands of …
May 27, 2017 – This commentary by James Ehlers originally appeared in the Rutland Herald on May 27, 2017. We are poisoning our most fundamental necessity for life, our water. Aside from air and then shelter, it seems almost ridiculous to have to devote commentary to its importance. Yet, here we are. In a move that …
by GL Boyer – ‎2004 – ‎Cited by 37 – ‎Related articles

10,000 livestock and required emergency drinking water be supplied to several towns and villages (Falconer, 2001). In recent years, toxic outbreaks of cyanobacteria have also been reported closer to home in Lake Brie (Brittain et al., 2000), Lake Ontario (Howell et al., 2002) and Lake Champlain (Rosen et al., 2001; Yang …

 

aabsouluteproof

afact3

New York State’s  Lawyers  Claim  Docks and Boat Houses  Islands are DAMAGED by the  Up and Down and Up and Down and Up and Down   Lake and Ice Levels

anerradictlake2

icesheet

The  Lake Ice Destruction History CAN NO LONGER BE HIDDEN

The  MASSIVE  New York State  Ticonderoga  International Paper  GLENS FALLS  BANKS  Mega  Mess …..  Flushing  Lake George to Lake Champlain    EXPOSED

AFact2

Vermont v. New York

Oral Argument – February 29, 1972

Warren E. Burger

— number 50 original, State of Vermont against the State of New York and others?

Oral Argument – February 29, 1972

https://www.oyez.org/cases/1971/50%20ORIG

Warren E. Burger

— number 50 original, State of Vermont against the State of New York and others?

Mr. Parker.

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.

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?

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.

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?

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 —

Potter Stewart

The operation is now finished, isn’t it?

Hasn’t that perhaps closed?

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 —

Potter Stewart

A new plant has been built few miles away?

Fred I. Parker

That’s correct.

Harry A. Blackmun

This is on the lake, the new plant?

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.

Potter Stewart

As of now, there is no complaint against the operations of the new plant?

Fred I. Parker

That’s correct, Your Honor.

The situation that does exist —

Harry A. Blackmun

Is the new plant discharging anything into the lake?

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 —

Harry A. Blackmun

Is that admitted Mr. Parker?

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.

Harry A. Blackmun

But was there some action taken with the (Inaudible) recently which produced results?

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.

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?

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 —

William O. Douglas

Under the Federal Act, you got as far as the Attorney General?

Fred I. Parker

No, we didn’t get that far.

William O. Douglas

How far did you get?

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.

William O. Douglas

They declined to Act or just not answer to your inquiry?

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.

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?

Fred I. Parker

That’s correct John.

That’s —

William O. Douglas

There is no edit — that hasn’t been changed to a must or Its pretty discretionary?

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.

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?

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.

Warren E. Burger

Covering over on the entire 300 acres, does the record show what kind of coverage would be required to be adequate?

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.

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?

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.

Warren E. Burger

Let’s suspend it, until after lunch.

[Luncheon Break]

Mr. Parker, you may continue.

You have 15 minutes remaining in all.

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 —

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?

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.

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?

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.

Potter Stewart

And this is way down to the Southern tip of the Lake, is it?

Fred I. Parker

That’s right.

Potter Stewart

Down around Port Henry.

Fred I. Parker

South of their — at Ticonderoga.

Potter Stewart

Ticonderoga is not — Is Ticonderoga on the lake?

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.

Potter Stewart

How far from the lake?

Fred I. Parker

About a mile I believe.

Potter Stewart

Thank you.

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.

Byron R. White

What is your cause of action against New York?

Fred I. Parker

Maintenance for public nuisance, Your Honor.

Byron R. White

You are saying New York is doing that by letting the sludge to accumulate on its lake part?

Fred I. Parker

That’s correct, on its property.

William O. Douglas

That’s a federal common law nuisance?

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.

William O. Douglas

Could you get into a Federal District Court?

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.

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?

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.

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?

Fred I. Parker

Yes, Your Honor.

We are dealing in this joint —

Byron R. White

We already (Inaudible) that you could litigate against the International Paper Company in the District Court?

Fred I. Parker

Yes, Your Honor we could.

Byron R. White

And that federal law would control it?

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.

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?

Fred I. Parker

Yes, Your Honor.

Byron R. White

You would be asking for the application of the same law that you’d be asking here, correct?

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.

Byron R. White

Well, why is that?

Fred I. Parker

Erie railroad v. Tompkins.

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?

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.

Byron R. White

Well, you would be —

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?

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 —

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?

Fred I. Parker

I would be, yes.

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?

Fred I. Parker

Because as I understand it — well the only way, I could understand to get into a Federal District Court —

Byron R. White

You are asking for a federal — you are just suing on a federal question as a matter of a federal law?

Fred I. Parker

I had never understood that to be the case.

William O. Douglas

Well of course it hasn’t really been decided.

Are you acquainted with the Pankey case in the Tenth Circuit?

Fred I. Parker

Yes, I am acquainted with it Your Honor.

I don’t fully understand it.

It seems to stand alone and —

William O. Douglas

Well that’s a state assertion?[Attempt to Laughter]

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?

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 —

Byron R. White

But they did in (Inaudible), didn’t they?

Fred I. Parker

Yes, it did and that’s the only one so far as I know.

Byron R. White

Well, it’s the only way, there isn’t anything against it either, is there?

Fred I. Parker

No, there are no holding —

Byron R. White

And the only authority there is, this Pankey case?

Fred I. Parker

That’s correct.

Potter Stewart

What did Wyandotte had to say on this subject?

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.

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?

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.

Warren E. Burger

Thank you Mr. Parker.

Mr Weinberg.

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.

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?

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.

Potter Stewart

Well that is a separate point but this — that on its face is what differentiates this case from Wyandotte, among other?

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.

Thurgood Marshall

Except China had more authority to break international stuff?

Philip Weinberg

That’s certainly true Mr. Justice Marshall.

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?

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 —

That really goes within the merits and appropriateness of remedy?

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.

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 —

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.

Potter Stewart

They would enjoin this — the removal of the sludge bed?

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.

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?

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.

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?

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 —

Potter Stewart

(Inaudible) Vermont would be or to the defendant?

Philip Weinberg

No, but I don’t see the reason for making New York a defendant here.

Potter Stewart

Well, I just suggested a possible reason?

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.

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?

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.

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).

Philip Weinberg

Yes sir, but they certainly have authority to abate any impediment to navigations such as Vermont alleges there is.

William O. Douglas

(Inaudible) doesn’t run the navigation but to health, am I wrong?

Philip Weinberg

It’s my understanding Mr. Justice Douglas that army engineers have the power —

William O. Douglas

Vermont is complaining about the health, quality of the water, swimming not navigation in there —

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 —

William O. Douglas

(Inaudible) a health case, isn’t it?

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.

William O. Douglas

(Inaudible) [Attempt to Laughter]

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.

Warren E. Burger

Thank you Mr. Weinberg.

Mr. Whipple.

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.

William H. Rehnquist

Mr. Whipple.

Taggart Whipple

Yes sir.

William H. Rehnquist

You concede that International Papers is amenable to service of process in Vermont?

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.

Potter Stewart

It’s a kind of a primary jurisdiction argument or a —

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.

Byron R. White

In terms of the equitable law, which says a state law should control —

Taggart Whipple

Yes sir.

Byron R. White

Let’s assume you are sued in Vermont, what would be the governing law?

Taggart Whipple

I would think the State of Vermont law.

Mr. Justice White —

Byron R. White

In New York, the same?

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 —

Byron R. White

What New York says that —

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.

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?

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.

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?

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.

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?

Taggart Whipple

Well there is — I am not sure what case you are suggesting to thinking of Your Honor?

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 —

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 —

Byron R. White

No one is state contact.

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.

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?

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.

Potter Stewart

Now Mr. Whipple there is a litigation (Inaudible) against your client —

Taggart Whipple

Yes sir.

Potter Stewart

— in the United States District Court for Vermont, is there?

Taggart Whipple

There is.

Byron R. White

And Federal jurisdiction is bottomed on what?

Taggart Whipple

Diversity.

Potter Stewart

Not on Federal question, on diversity?

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. —

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?

Taggart Whipple

The case was brought shortly after this one.

It’s a class action.

We contested the class action —

Potter Stewart

Who is John, what was he representing, the town’s people or the —?

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.

Potter Stewart

That’s the propriety of the class?

Taggart Whipple

Exactly, yes, thank you.

Warren E. Burger

Thank you Mr. Whipple.

Mr. Parker, you have a three minutes left, I think?

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.

Warren E. Burger

There would be none.

Thank you Mr Parker, thank you Mr. Whipple, Mr. Weinberg.

The case is submitted.

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SEE   YouTube    Bloom  a  4  Part  Series 

Bloom

BLOOM  The  Result of  Massive  Sewage  Discharges into Lake Champlain

FINGERED

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