874 F.2d 332 (6th Cir. 1989) (U.S. Court of Appeals for the Sixth Circuit)
Her Majesty the Queen in Right of Ontario v. City of Detroit sits at the intersection of environmental law, federal courts, and international relations.
Can a foreign sovereign maintain federal common-law, Clean Water Act citizen-suit, or treaty-based claims in U.S. court to abate cross-border water pollution from a U.S. source, and, if not, may it nevertheless pursue a state common-law public nuisance claim under the source state's law?
1) When Congress has spoken directly and comprehensively to an issue, federal common law is displaced. The Clean Water Act's comprehensive scheme for regulating discharges into navigable waters displaces federal common-law nuisance for water pollution. See City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304 (1981). 2) The CWA citizen-suit provision, 33 U.S.C. § 1365, authorizes suit by a 'citizen'—defined in § 1365(g) as a 'person or persons having an interest which is or may be adversely affected.' 'Person' is separately defined in 33 U.S.C. § 1362(5) and does not include foreign sovereigns. Thus, a foreign sovereign is not a 'citizen' for § 1365 purposes. 3) Treaties do not create privately enforceable rights in domestic courts absent clear textual indication or implementing legislation conferring such a right. The Boundary Waters Treaty of 1909 channels disputes to governmental and International Joint Commission processes and contains no private right of action. 4) The CWA does not preempt state common-law nuisance claims brought under the law of the source state of the pollution; plaintiffs must proceed, if at all, under the source state's law. See International Paper Co. v. Ouellette, 479 U.S. 481 (1987). 5) A foreign state may invoke alienage jurisdiction under 28 U.S.C. § 1332(a)(4) to sue a citizen of a U.S. state if other jurisdictional prerequisites are met.
The Sixth Circuit affirmed dismissal of Ontario's federal claims: (a) the CWA displaces federal common-law nuisance for water pollution; (b) Ontario, as a foreign sovereign, is not a 'citizen' under the CWA and thus cannot bring a § 1365 citizen suit; and (c) the Boundary Waters Treaty of 1909 creates no private right of action. However, consistent with Ouellette and the CWA's savings clauses, the court recognized that Ontario may pursue a state-law public nuisance claim under Michigan (the source state's) law; such a claim is not preempted by the CWA. The matter was remanded to allow consideration of the source-state common-law claim, with jurisdictional footing available via alienage jurisdiction if properly alleged.
For environmental and federal courts doctrine, the case crystallizes three lessons. First, the CWA's comprehensive scheme forecloses federal common-law nuisance claims for water pollution, even in international contexts. Second, the CWA's citizen-suit provision is strictly construed—foreign sovereigns are not 'citizens' and cannot use § 505 to enforce U.S. permits. Third, consistent with Ouellette, plaintiffs harmed by cross-border pollution retain a pathway through state common-law nuisance under the source state's law, preserving a limited but meaningful role for state tort remedies alongside the federal regulatory regime. For law students, the case is a model of statutory displacement, treaty non-self-execution in practice, and the nuanced coexistence of federal regulation and state tort law.