
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           United States Court of Appeals                                For the First Circuit                                ____________________          No. 96-2327                       CAPE ANN CITIZENS ASSOCIATION, ET AL.,                              Plaintiffs - Appellants,                                         v.                             CITY OF GLOUCESTER, ET AL.,                               Defendants - Appellees.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. William G. Young, U.S. District Judge]                                ____________________                                       Before                               Torruella, Chief Judge,                       Bownes and Cyr, Senior Circuit Judges.                                _____________________               Philip H. Cahalin for appellants.               Madelyn                         Morris, Assistant Attorney General, Environmental          Protection Division, with whom George                                                 B.                                                    Henderson                                                              II, Assistant          United States Attorney, was on brief for appellees Commonwealth of          Massachusetts and the United States.               Linda Thomas Lowe                               , General Counsel, Legal Department, City of          Gloucester, for appellee City of Gloucester.                                ____________________                                   August 13, 1997                                ____________________                    TORRUELLA, Chief Judge.  In 1979, the Commonwealth of          Massachusetts ("the Commonwealth") sued the City of Gloucester          ("the City") for violating the Massachusetts Clean Water Act, Mass.          Gen. Laws ch. 21, SS 26-53. The City agreed to the entry of a          final judgment that required it,     inter                                                        alia, to prepare a          facilities plan to identify and remedy the pollution in North          Gloucester.                    In 1989, the United States brought an action in federal          court, alleging that the City was in violation of the Clean Water          Act, 33 U.S.C. S 1252 et seq. (CWA). The Commonwealth intervened          as a party plaintiff and alleged that the City was violating both          the state and federal clean water acts. The complaints in federal          court alleged,                         inter alia                                  , that the City was discharging pollutants          into the waters of the United States and the Commonwealth, in          violation of its National Pollutant Discharge Elimination System          ("NPDES") permit, issued by the Environmental Protection Agency          pursuant to the Clean Water Act.                    In 1991, the City agreed to the entry of a consent          decree. The agreement included a schedule for the design and          construction of an extension of the sewer system to North          Gloucester. The decree was amended several times thereafter. In          1993, it was amended to give the City discretion to use Septic Tank          Effluent Pump ("STEP") sewers rather than a combination of          conventional gravity sewers and pressure sewers.                                         A STEP sewer system includes STEP tanks located on the          household's property. Household sewage flows into the STEP tank                                         -2-                    The City decided to use STEP sewers in the Annisquam and          Lane's Cove areas in January 1994. The City initially intended to          install all the STEP pumps, tanks, and ancillary equipment needed          to connect individual properties to the collection system. The          decree was amended in 1995 to reflect this decision. When some          homeowners refused to grant the City the easements necessary to          allow the City to install the septic tanks and pumps, the City          offered them the option of doing the work themselves.                    As of October 28, 1996, the City had completed the          construction of the main and lateral lines of the STEP sewers in          Annisquam and approximately seventy percent of the lines for Lane's          Cove.                    Plaintiffs-appellants, the Cape Ann Citizens Association,          initiated suit in Massachusetts Superior Court in February 1996.          After the suit was brought, the City amended its regulations to          allow individual owners to install and maintain their own STEP          tanks without conveying an easement to the City.                    The City removed the action to federal district court.          The Commonwealth and the United States intervened as defendants.          Treating the matter as a case stated on the pleadings, the district                                        where it receives primary treatment, essentially consisting of the          sludge's settling to the bottom of the tank and being digested by          bacteria. The sludge-reduced liquid effluent then flows under          pressure to the STEP sewer line and to the city treatment plant.          The sewer lines serving STEP sewers are narrower than the lines          serving conventional gravity sewers. Conventional gravity sewers          convey wastewater, including both liquids and solids, to the          treatment plant by means of gravity. Pressure sewers include pumps          that grind the sewage before it is transported under pressure to          the collection system.                                         -3-          court ruled for the City. The plaintiffs now appeal on a variety          of grounds. We affirm.                            I. Validity of Consent Decree                    Appellants present several theories in an attempt to have          the 1991 consent decree declared void. None of their arguments are          persuasive.                    First, they claim that they have standing to challenge          the consent decree under federal law. We need not decide the          standing issue as the government agrees that appellant has          standing. Assuming   arguendo that appellants have standing, we          would normally turn to examine the substance of their claim          regarding the consent decree. They have, however, failed to put          forward a federal claim for relief. They argue only the standing          issue, omitting any discussion of a substantive federal claim.                    In the absence of a federal claim, we consider the state          law claim advanced by appellants. The only state law claim          presented is based on Mass. Gen. Laws ch. 40, S 53. In relevant          part, the statute reads:                      If a town . . . [is] about to raise or                      expend money or incur obligations                      purporting to bind said town for any                      purpose or object or in any manner other                      than that for and in which such town has                      the legal and constitutional right and                      power to raise or expend money or incur                      obligations, the supreme judicial court                      may, upon the petition of not less than                                         The district court also agreed that appellants had standing to          challenge the consent decree on the grounds that the defense of          lack of standing was waived when the case was removed to federal          court.                                         -4-                      ten taxable inhabitants of the town,                      determine the same in equity, and may,                      before the final determination of the                      cause, restrain the unlawful exercise or                      abuse of such corporate power.          Mass. Gen. Laws ch. 40, S 53.                    Appellants' claim fails because it has been brought too          late. It is well settled that Mass. Gen. Laws ch. 40, S 53 is          preventative. "The statute does not authorize the correction of          wrongs wholly executed and completed. It is not retroactive."          Fuller v.                    Trustees of Deerfield Academy & Dickinson High Sch.                                                                      , 252          Mass. 258, 259 (1925). Actions under the statute must be brought          before obligations are incurred.  Kapinos v. Chicopee, 334 Mass.          196, 198 (1956). In Kapinos, the court found that petitioners were          not entitled to relief under Mass. Gen. Laws ch. 40, S 53 because          "the construction companies had practically completed their work          under the contract when this petition was brought."  Id. at 199.                    The construction of the sewers required under the consent          decree is similarly advanced. It is undisputed that of          approximately 510 homes that must be connected, approximately 450          had been connected as of September 1996. Of those that remain,          some will not need to be connected because they have adequate on-          site systems. Appellants do not dispute that the sewer system is          almost completed. We find, therefore, that Mass. Gen. Laws ch. 40,          S 53 does not offer appellants an avenue for relief.                    Appellants next claim that the consent decree was void on          the ground that it was entered into by the mayor                                                           ultra vires                                                                     . The          district court disagreed, stating that "under the city charter of                                         -5-          the City of Gloucester, the mayor of the city as the city's chief          executive officer was empowered, at least on its face, to enter          into the consent decree." Transcript of Hearing, October 28, 1996,          at 56.                    We need not decide the issue, however, because, although          appellants discuss their standing to bring such a claim, they fail          to argue the merits of their ultra vires claim.                    It is well settled that this court will consider only          those arguments that have been properly briefed and put before it.                       [I]ssues adverted to in a perfunctory                      manner, unaccompanied by some effort at                      developed argumentation, are deemed waived                      . . . . It is not enough merely to                      mention a possible argument in the most                      skeletal way, leaving the court to do                      counsel's work . . . . Judges are not                      expected to be mindreaders. Consequently,                      a litigant has an obligation to spell out                      its arguments squarely and distinctly, or                      else forever hold its peace.          Willhauck v. Halpin, 953 F.2d 689, 700 (1st Cir. 1991) (citations          omitted);                    see also                                                        Ramos v.                                      Roche Prods.                                                 , 936 F.2d 43, 51 (1st Cir.          1991) (brief must contain full statement of issues presented and          accompanying arguments). Appellants have failed to provide us with          argument that supports their                                       ultra vires                                                 claim and, accordingly, we          consider that claim to have been waived.                    II. Did the Consent Decree Violate the CWA?                    The federal and state clean water acts are administered          through a permitting system called the National Pollutant Discharge          Elimination System ("NPDES"). Under this system, owners of point                                         -6-          sources must obtain an NPDES Permit. Pursuant to the Clean Water          Act, 33 U.S.C. S 1251-1387, the EPA issued the City an NPDES          permit.                     Appellants claim that the consent decree is inconsistent          with the Clean Water Act because the NPDES permit conditions          governing the Gloucester storm drains were not developed in          conformity with the Act's regulatory scheme. Because the effluent          limitations in the NPDES permit were based upon water quality          standards rather than the effluent limitations guidelines          promulgated by the EPA, appellants argue that the limits in the          permit are unenforceable.                    Appellants' argument is that "reliance on water quality          data alone to enforce the construction of a sewer was inconsistent          with the enforcement scheme carefully developed under the Clean          Water Act and deprived the district court of jurisdiction of the          enforcement action." Appellants' Brief at 11. In other words,          appellants argue that only specific effluent limitations stated in                                         A "point source" is "any discernible, confined and discrete          conveyance, including but not limited to any pipe, ditch, channel,          tunnel, conduit, well, discrete fissure, container, rolling stock,          concentrated animal feeding operation, or vessel or other floating          craft, from which pollutants are or may be discharged." 33 U.S.C.          S 1362(14).           The permit was originally issued in 1975 and was reissued in          1985.           Effluent limitations refer to restrictions on the quantities,          rates and concentrations of pollutants which are discharged from a          point source. Water quality based standards limit discharges based          on the desired conditions of a particular waterway.  See Arkansas          v. Oklahoma, 503 U.S. 91, 101 (1992).                                         -7-          the NPDES permit, and not water quality data, can be enforced by          courts. In support of this argument, appellants cite    Northwest          Environmental                         Advocates v. City                                           of                                              Portland, 11 F.3d 900, 906-10          (9th Cir. 1993). That case, however, was subsequently vacated by          the Ninth Circuit in Northwest Environmental Advocates v. City of          Portland, 56 F.3d 979, 981 (9th Cir. 1995), cert.                                                             denied, 116 S.          Ct. 2550 (1996). In the latter opinion, the Ninth Circuit          concluded, in light of                                 PUD No. 1 of Jefferson County                                                              v.                                                                  Washington          Department of Ecology                              , 511 U.S. 700 (1994), that "[b]y introducing          effluent limitations into the CWA scheme, Congress intended to          improve enforcement, not to supplant the old system."   Northwest          Environmental Advocates                                , 56 F.3d at 986. "[N]owhere does Congress          evidence an intent to preclude the enforcement of water quality          standards that have not been translated into effluent discharge          limitations." Id. Furthermore, in  PUD No. 1 of Jefferson County                                                                          ,          the Supreme Court held that the Clean Water Act allows states to          enforce broad water quality standards.  Id. at 713-21.                    In an attempt to rescue their claim, appellants' seek to          demonstrate that the CWA is intended to take into account the costs          of eliminating the discharge of pollutants. Even assuming that          appellants' view of the goals of the CWA is correct, they have          nevertheless failed to demonstrate that the consent decree violated          the Act. Appellants fail to show that it is impermissible for          consent decrees to consider water quality standards. They have          also failed to show that the goals of the CWA were ignored when the          consent decree was established. We do not believe, as appellants'                                         -8-          position would require, that a consent decree must enumerate the          objectives of the CWA and state that it has taken each into          account. Thus, appellants offer little more than a vacated case,          Northwest                      Environmental                                     Advocates, 11 F.3d at 906-10, and a          generalized discussion of the goals of the CWA. We find this          insufficient to establish that the consent decree violates the CWA.                          III. Connection to Common Sewer                    Appellants' next argument alleges that the City's Board          of Health lacked the authority to order a landowner to connect to          the STEP sewer unless and until the City had installed the STEP          tank on the landowner's property.                    The Board of Health is explicitly granted the authority          to order connection to a common sewer:                      The board of health of a town may require                      the owner or occupant of any building upon                      land abutting on a public or private way,                      in which there is a common sewer, to                      connect the same therewith by a sufficient                      drain . . . .          Mass. Gen. Laws ch. 83, S 11.                    Appellants argue that the STEP sewer system is not a          "common sewer" for the purpose of section 11 because the sewer          system requires, in order to function, the pressure supplied by the          individual STEP tanks and requires the pretreatment of sewage          provided by these tanks. Accordingly, the argument goes, the STEP          tanks are an integral part of the STEP sewer and must be installed          before the board of health is empowered to order connection under          section 11.                                         -9-                    In the absence of relevant Massachusetts case law, we          find that this argument runs counter to the common sense reading of          the term "common sewer." The requirement of pretreatment certainly          cannot undermine the authority to order connection under section          11. It is no less a "common sewer" merely because some treatment          takes place in the STEP tank -- sewage is still sent through a set          of shared pipes to a treatment plant. Similarly, the fact that          pressure from the STEP tanks is required for the sewage system to          operate does not render it something other than a "common sewer."          No authority is cited by appellants for the proposition that the          need for pressure from the STEP pumps implies that there is no          "common sewer" prior to the STEP tank connection. A sound          interpretation of "common sewer" would include the STEP sewer          system at issue in which a set of common pipes transport sewage          from individual properties to a common treatment facility.                    Without any support for appellants' argument, we are          unwilling to accept their creative interpretation of state law,          which would add unprecedented nuances to the plain meaning of the          statute.  See Doyle v. Hasbro, 103 F.3d 186, 192 (1st Cir. 1996)          (stating that this court must exercise caution when considering a          new application of state law, and that we will not do so without a          strong argument in favor of the desired application).                               IV. The Takings Claim                    Appellants argue that the regulations requiring the grant          of an easement to the City in exchange for the City's installation                                        -10-          of the STEP tanks on homeowners' properties violate the Takings          Clause of the Fifth Amendment.                    The Takings Clause of the Fifth Amendment, made          applicable to the States through the Fourteenth Amendment,    see          Chicago,                    B.                        &                          Q.R.                                Co. v.  Chicago, 166 U.S. 226, 239 (1897),          provides: "[N]or shall private property be taken for public use,          without just compensation." One of the purposes of the Takings          Clause is "to bar Government from forcing some people alone to bear          public burdens which, in all fairness and justice, should be borne          by the public as a whole."  Armstrong v. United                                                           States, 364 U.S.          40, 49 (1960).                    On the other hand, the authority of state and local          governments to engage in land use planning has been sustained          against constitutional challenge.  Euclid v.                                                       Ambler Realty Co.                                                                      , 272          U.S. 365 (1926). "Government hardly could go on if to some extent          values incident to property could not be diminished without paying          for every such change in the general law."  Pennsylvania Coal Co.          v. Mahon, 260 U.S. 393, 413 (1922).                     It is within the power of government to enact land-use          regulation, and such regulation does not effect a taking if it          "'substantially advance[s] legitimate state interests' and does not          den[y] an owner economically viable use of his land."  Nollan v.          California Coastal Comm'n                                  , 483 U.S. 825, 834 (1987) (quoting                                                                       Agins          v. Tiburon, 447 U.S. 255, 260 (1980)). "States have broad          authority to regulate housing conditions."                                                     Loretto v.                                                                Teleprompter          Manhattan                     CATV                          Corp., 458 U.S. 419, 440 (1982). It follows that                                        -11-          the state is entitled to regulate the disposal of sewage in order          to protect the public health and to prevent conditions that amount          to a nuisance.  See Town of Holden v. Holden Suburban Supply Co.,          343 Mass. 187, 187 (1961). Every community must find some          mechanism to dispose of its sewage. To do so effectively, a sewer          system of some form is required, and connection to that system can          be mandated without there being a taking.                    In the instant case, the City's regulation governing the          disposal of sewage can be satisfied in one of three ways. First,          the homeowner can demonstrate that the sewage treatment on his or          her property provides no point source pollution and is in          compliance with municipal and state regulations governing sewage          systems. Second, the homeowner can install a STEP system at his or          her own expense. Third, the homeowner can allow the City to          install and maintain the STEP system at its expense upon the          granting of an easement allowing the City to come upon the land.                    In Loretto, the Supreme Court found a taking where New          York law required a landlord to allow the installation of cable          facilities on his premises. The basic rule applied in  Loretto is          that "a permanent physical occupation authorized by government is          a taking." 458 U.S. at 426. The Court added that "[s]o long as          the[] regulations do not require the landlord to suffer the          physical invasion of a portion of his building by a third party,          they will be analyzed under the multifactor inquiry generally          applicable to nonpossessory government activity."   Loretto, 458          U.S. at 440 (citing Penn                                    Central                                            Transp.                                                    Co., 438 U.S. 104). By                                        -12-          implication, where there is a permanent physical invasion by the          government or a third party, there will normally be a taking.                    The instant case, however, does not fall under the          permanent physical invasion rule of    Loretto. The important          distinction is explained in footnote 19 of Loretto, which states:                      If S 828 required landlords to provide                      cable installation if a tenant so desires,                      the statute might present a different                      question from the question before us,                      since the landlord would own the                      installation. Ownership would give the                      landlord rights to the placement, manner,                      use, and possibly the disposition of the                      installation. The fact of ownership is,                      contrary to the dissent, not simply                      "incidental," it would give a landlord                      (rather than a CATV company) full                      authority over the installation except                      only as government specifically limited                      that authority. The landlord would decide                      how to comply with applicable government                      regulations concerning CATV and therefore                      could minimize the physical, esthetic, and                      other effects of the installation.                      Moreover, if the landlord wished to                      repair, demolish, or construct in the area                      of the building where the installation is                      located, he need not incur the burden of                      obtaining the CATV company's cooperation                      in moving the cable.          Id. at 440 n.19.                    In the instant case, the homeowner has the option of          installing and owning the STEP tanks if the homeowner does not want          the City to do so. This option distinguishes the case from          Loretto. Because the City could simply order homeowners to connect          to the sewer, which would not be a taking, giving them the          additional option of having the City perform the installation does          not render the regulation a taking.                                        -13-                    Appellants make much of their claim that even if the          system is privately installed, "ownership" of the tanks remains          with the City.  In fact, appellants appear to concede that there is          no taking if the object placed on the homeowner's property is owned          by the homeowner. "The critical distinction in                                                         Loretto between use          regulations, which are ordinarily noncompensatory, and a 'permanent          physical occupation of property,' which is always compensatory, is          the ownership and control of the object placed on the homeowner's          property." Appellants' Brief at 14.                    Appellants' argument that the STEP tanks are not          privately owned is as follows:                      The only practical difference between STEP                      tanks which are considered privately owned                      . . . and maintained and those which are                      not is in the identity of the installation                      and maintenance people. It would seem                      more would be required to distinguish                      ownership and control. The tanks clearly                      perform a public function. The tanks are                      integral components in the city's sewer.                      The city's sewer cannot perform its                      function without the tanks.          Appellants' Brief at 14.                    Appellants have not, however, offered any practical          method for distinguishing a privately owned installation and a          publicly owned one. We are not convinced by appellants' claim that          STEP sewers are different from other sewers because the STEP tanks          are required for the system to operate. It is true that the STEP          tanks perform the necessary function of allowing solids to settle          out of the wastewater before the latter is discharged into the          collection system. This function, however, is for the benefit of                                        -14-          the homeowner alone. The tank is simply a requirement imposed on          the homeowner so that the homeowner's property can be connected to          the sewer system. As such, it is not a taking. Rather, it is a          reasonable requirement without which the property could not be          connected to the sewer.                    We believe that the option of installing and maintaining          the STEP system oneself provides the homeowner ownership of the          STEP tank. As discussed in footnote 19 of                                                    Loretto, the homeowner's          ability to install the system himself or herself grants the          homeowner "full authority over the installation except only as          government specifically limited that authority." Id. at 440 n.19.                    For this reason, and consistent with  Loretto, we find          that the regulations do not work a taking.                                  V. The Easement                    Appellants claim that even if there is no taking, there          is no need for the City to demand an easement in exchange for one          dollar in order to install the STEP tanks. In support of this          claim, they cite Mass. Gen. Laws ch. 83, S 1, which allows a city          to take an easement by eminent domain if necessary for the          construction and maintenance of common sewers. The STEP tanks,          however, are not part of a "common sewer," as required by Mass.          Gen. Laws ch. 83, S 1. Rather, they are part of a "particular          sewer" which is governed by Mass. Gen. Laws ch. 83, SS 3 and 24.          See P                 &                   D                     Service                             Co. v.  Zoning                                            Board                                                  of                                                     Appeals                                                             of                                                                Dedham, 359          Mass. 96, 101 (1971) (stating that the line connecting a building          to a municipal sewer system is a "particular sewer"). The sewer                                        -15-          system is, as discussed  supra, a common sewer. The STEP tank,          however, is more accurately characterized as part of the line          connecting a property to the municipal sewer. Sections 3 and 24 do          not authorize municipalities to take an easement by eminent domain          for the construction of particular sewers. Furthermore, appellants          appear to admit that an easement is required. "Early on it became          apparent that easements would be necessary for the installation and          maintenance of city-owned utilities on private property."          Appellants' Brief at xii.                                    VI. Vagueness                    Finally, appellants claim that the regulations are void          for vagueness. Having reviewed the regulations, we find this          argument to be without merit. In our view, a person "of ordinary          intelligence" is able to understand the meaning of these          regulations.  United                                 States v.   Batchelder, 442 U.S. 114, 122          (1979);                  Doe v.                         Superintendent of Schs. of Worcester                                                           , 421 Mass. 117,          134 (1995).                               VII. State Law Issues                    Two additional issues are raised by appellants: First,          that the most the Board of Health can fine a landowner for failure          to obey an order to connect to the sewer is $200 and, second, that          the City must install the STEP tanks when requested to do so by the          homeowner. These issues were not reached by the district court.          In its ruling from the bench, the district court stated that "as to          any aspects of the case not adjudicated by the declaration from the          bench . . . the cause is remanded to the Massachusetts Superior                                        -16-          Court." Judgment of the District Court, October 28, 1996. Because          appellants do not challenge the propriety of the remand order, we          will not consider their arguments on the merits. Accordingly, we          leave these issues to the Massachusetts Superior Court.                                  VIII. Conclusion                    For the reasons stated herein, we                                                      affirm                                                             the judgment of          the district court. Costs to appellees.                                        -17-
