# Lake Carriers' Association v. MacMullan
## Concurring Opinion

    Blackmun

## Dissenting Opinion

    Powell
Supreme Court of the United States
406 U.S. 498
Lake Carriers' Assn. et al. v. MacMullan et al.
Appeal from the United States District Court for the Eastern District of Michigan
No. 71-422. Argued: March 22-23, 1972. --- Decided: May 30, 1972.
Michigan's Watercraft Pollution Control Act of 1970, appellees maintain, prohibits the discharge of sewage, whether treated or untreated, in Michigan waters and requires vessels with marine toilets to have sewage storage devices. Appellants, the Lake Carriers' Association and members owning or operating Great Lakes bulk cargo vessels, filed a complaint for declaratory and injunctive relief, contending that the Act unduly burdens interstate and foreign commerce; contravenes uniform maritime law; violates due process and equal protection requirements; and is invalid under the Supremacy Clause primarily because of conflict with or pre-emption of the Federal Water Pollution Control Act, as amended by the Water Quality Improvement Act of 1970. The law appears to contemplate sewage control after appropriate federal standards have been issued through on-board treatment before disposal in navigable waters, unless the Administrator of the Environmental Protection Agency provides on special application for a complete prohibition on discharge in designated areas. A three-judge District Court dismissed the complaint for lack of a justiciable controversy. The court also found "compelling reasons to abstain from consideration of the matter in its present posture"—the attitude of the Michigan authorities, who are not threatening criminal prosecution but are seeking industry cooperation; the availability of declaratory relief in the Michigan courts; the possibility of a complete prohibition on the discharge of sewage in Michigan's navigable waters under federal law; the absence of existing conflict between the Michigan requirements and other state laws; and the publication of proposed federal standards that Michigan might consider in interpreting and enforcing its law.
Held:
    1. The complaint presents an "actual controversy" within the meaning of the Declaratory Judgment Act because the obligation to install sewage storage devices under the Michigan statute is presently effective in fact. Pp. 506-508.
    2. Abstention is permissible "only in narrowly limited 'special circumstances,'" Zwickler v. Koota, 389 U.S. 241, 248 (1967), justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Medical Examiners, 375 U.S. 411, 418 (1964). Those circumstances do not include the majority of grounds given by the District Court. Pp. 509-510.
       (a) The absence of an immediate threat of prosecution is not a reason for abstention. In the absence of a pending state proceeding, exercise of federal court jurisdiction ordinarily is appropriate if the conditions for declaratory or injunctive relief are met. Younger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971), distinguished. Pp. 509-510.
       (b) The availability of declaratory relief in state courts on federal claims is not a reason for abstention. Zwickler v. Koota, supra, at 248. P. 510.
       (c) Just as the possibility of a complete prohibition on the discharge of sewage in Michigan's navigable waters under federal law and the asserted absence of existing conflict between the Michigan requirements and other state laws do not diminish the immediacy and reality of appellants' grievances, they do not call for abstention. P. 510.
    3. The Michigan statute, however, is unclear in particulars that go to the foundation of appellants' grievance and has not yet been construed by any Michigan court. In this circumstance abstention was appropriate because authoritative resolution of those ambiguities in the state courts is sufficiently likely to "avoid or modify the [federal] constitutional [questions]," Zwickler v. Koota, supra, at 249, appellants raise to warrant abstention, particularly in view of the absence of countervailing considerations found compelling in prior decisions. Pp. 510-513.
336 F. Supp. 248, vacated and remanded.
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. BLACKMUN, J., filed a statement concurring in the result, in which REHNQUIST, J., joined, post, p. 513. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 513.
Scott H. Elder argued the cause for appellants. With him on the briefs was John A. Hamilton.
Robert A. Derengoski, Solicitor General of Michigan, argued the cause for appellees. With him on the brief were Frank J. Kelley, Attorney General, and Jerome Maslowski and Francis J. Carrier, Assistant Attorneys General.
Briefs of amici curiae urging reversal were filed by Robert A. Jenkins and Fenton F. Harrison for the Dominion Marine Assn., and by Nicholas J. Healy and Gordon W. Paulsen for Assuranceforeningen Gard et al.
Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Thomas F. Harrison and Philip Weinberg, Assistant Attorneys General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance.