author: DUHE, District Judge.

text:
    EXXON CORPORATION v. COLUMBIA GAS TRANSMISSION CORPORATION.
    Civ. A. No. 83-1586 “L”.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    March 26, 1985.

      Melinda Furche Harmon and Barry L. Wertz, Houston, Tex. and H.H. Hillyer, Jr., New Orleans, La., for plaintiff.
    Thomas R. Blum, New Orleans, La., and H.L. Snyder, Charleston, W.Va., for defendant.
   MEMORANDUM RULING

DUHE, District Judge.

This matter involves an action by Exxon Corporation (Exxon) against Columbia Gas Transmission Corporation (Columbia) for the alleged breach of seventy-nine contracts of the sale of natural gas from onshore and offshore fields in Louisiana and Texas. Presently before the Court are two motions:

(1) A motion by Columbia to stay this action pending the resolution of the issues involved herein by the Federal Energy Regulatory Commission (FERC) or the U.S. Court of Appeals for the Fifth Circuit; and
(2) A motion by Exxon for summary judgment as to Columbia’s liability on the obligations sued upon.

I. MOTION TO STAY

This Court has little difficulty in denying this motion. The issues that the FERC and the Fifth Circuit are considering are peripheral to the central litigation in this matter, that is, the question of the defendant’s nonperformance of its obligations. See, e.g., the Memorandum Ruling of this Court of February 13, 1985, in The Superior Oil Company v. Transco Energy Company, et al, 616 F.Supp. 98 (W.D.La.1985).

II. MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY

Exxon has moved that this Court render summary judgment in its favor as to Columbia’s obligations in these 79 contracts. Specifically, Exxon requests a declaratory judgment that the following obligations of Columbia are fully enforceable:

(1) the obligation take and pay for or pay for if available for delivery and not taken certain quantities of natural gas.
(2) the obligation to take and pay for a certain minimum quantity of natural gas.
(3) the obligation to pay for each category of gas in accordance with its price regardless of the “mix” of categories delivered by Exxon; and
(4) the obligation to pay for deregulated gas in accordance with the contractual pricing provisions.

A. The Take-or-Pay and Minimum Take Obligations.

Columbia asserts various affirmative defenses to its obligation to take and pay for certain minimum quantities of natural gas, and take and pay for or pay for if available but not taken certain additional quantities of natural gas. Among those affirmative defenses is the alleged occurrence of force majeure events.

The contracts in question provide, in pertinent part:

In the event of either party hereto being rendered unable, wholly or in part, by force majeure, to carry out its obligations under this contract, other than to make payments due hereunder, it is agreed that on such party’s giving notice and full particulars of such force majeure in writing, or by telegraph, to the other party as soon as practicable after the occurrence of the cause relied on, then the obligations of the party giving such notice, so far as they are affected by such force majeure, shall be suspended during the continuance of any inability so caused, but for no longer period, and such cause shall as far as possible be remedied with all reasonable dispatch. The term “force majeure” as employed herein shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, wars ... and any other causes, whether of the kind herein enumerated or otherwise, not within the control of the party claiming suspension, and which by the exercise of due diligence such party is unable to prevent or overcome ..,

Columbia notified Exxon that due to the occurrence of a number of force majeure events, it was compelled to reduce its purchases of natural gas to a quantity substantially less than that contracted-for. The alleged force majeure events are:

(1) the abnormally mild winter of 1982-83;
(2) the severe economic recession in Columbia’s service area; and
(3) the inability of Columbia to market its gas due to the relatively high price of the gas compared to competing alternative energy sources.

It is clear to this Court that there exists a very real question of fact as to whether Columbia has actually been rendered unable to perform, and whether the events cited by Columbia are encompassed by the force majeure clause of the contracts in question. The scope of force majeure in these contracts is considerably broader than the statutory concept of force majeure, and this Court concludes that a full evidentiary hearing will be necessary to resolve the issue.

Under the terms of these contracts, if Columbia is relieved by force majeure of its obligations to take specified quantities of natural gas above its minimum take requirements, it is also relieved of its obligation to pay in lieu of taking. Hence, the questions of fact which preclude summary judgment as to Columbia’s liability to take both minimum and additional quantities of natural gas also preclude summary judgment on Columbia’s liability to pay in lieu of taking the additional quantities.

B. The Price Owed and The Mix of Gas Delivered By Exxon

Columbia argues that the Natural Gas Act requires Exxon to reduce its production on a pro rata basis across all price categories in supplying Columbia’s reduced taking of gas. Columbia asserts, without any authority, that the “public interest” would be disserved by a disproportionate reduction by Exxon of low-cost gas delivered to Columbia. Although such a reduction is undoubtedly against the private interest of Columbia, this Court fails to see any issue of fact as to it being against the public interest. And, most importantly, the parties provided in their overriding letter agreement of December 13, 1982, that:

“Columbia shall make a single volume request for gas well gas and Exxon may dispatch such volumes, at its discretion, from the various properties covered by the agreements governed hereby [i.e., the seventy-nine contracts as amended]. All quantities shall be determined in total and Exxon shall not be obligated to maintain any particular deliverability in any specific area or under any specific agreement.” Exxon complaint, Exhibit I at p. 2.

It is clear the parties provided that Exxon was given complete discretion in the mix of gas categories it could deliver to Columbia. Accordingly, Exxon is entitled to a summary declaratory judgment in its favor as to this issue.

C. Price of Deregulated Gas.

Columbia concedes that it is not paying the contracted-for price of deregulated natural gas under four of the contracts (Exxon contracts Numbers 5956, 5937, 5903, and 5382), but contends that the price provisions of these contracts should be modified to permit it to pay a lower price, or alternatively, that the contracts should be rescinded. Columbia argues that error or failure of cause requires such action by this Court, because the parties assumed the contracted-for price would allow Columbia to market the gas without incurring losses. Unfortunately for Columbia, that assumption has not been borne out by subsequent events.

This Court concludes that what we have in this situation is not error as to or a failure of cause, but rather an error in motive. Professor Litvinoff explains:

Cause — or end — is distinguishable from the motive that prompts the debtor to bind himself. The motive is the accidental reason that induces a person to enter a contract. It is subjective, and therefore, it varies with each individual ... the purchaser may buy because he moved to that locality, or thinks that the best investment for his capital, or just to gain prestige.
The motive bears a decisive influence upon the party’s will. However, an error in motive does not nullify the obligation. 1 Litvinoff § 220 (La. Civil Law Treatise, 1969). See also comment (f) to La.Civil Code Article 1950 (1985).

The principal cause of these four contracts, i.e., a certain quantity of natural gas for a certain price, remains intact, in spite of the fact that Columbia’s hopes for the marketing of this gas at commercially profitable level have been dashed. Accordingly, Exxon is entitled to a summary declaratory judgment in its favor as to the price provisions of these four contracts.

CONCLUSION

To recapitulate, this Court denies Exxon’s motion for summary judgment as to Columbia’s take or pay and minimum take liability, but grants its motion as to Columbia’s liability to take and pay for whatever mix of gas categories Exxon delivers, and to pay the contracted-for price under the four contracts pertaining to deregulated gas. Counsel for Exxon is ordered to submit a proposed judgment consistent with this opinion.


source: Caselaw Access Project

author: EDENFIELD, District Judge.

license: Public Domain

text:
    Michael J. CESARONI, Jr., and James L. Drake, Jr., Trustee, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. CV483-497.
    United States District Court, S.D. Georgia, Savannah Division.
    April 9, 1985.

      Edwin D. Robb, Jr., Bouhan, Williams & Levy, Savannah, Ga., for plaintiff.
    James L. Drake, Jr., intervenor, Savannah, Ga., pro se.
    Damon C. Miller, Dept, of Justice, Civ. Div., Washington, D.C., Melissa Mundell, Savannah, Ga., for the U.S.
   ORDER

EDENFIELD, District Judge.

This litigation is before the Court for adjudication following a final hearing held on March 11, 1985.

I. Background

A. Procedural History

Plaintiff Michael J. Cesaroni, Jr. filed this action against defendant United States of America (“the Government”) on November 16, 1983, claiming damages pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. On February 17, 1984, plaintiff amended his complaint to add an alternative cause of action in contract under the Suits in Admiralty Act, 46 U.S.C. §§ 741-52. Defendant answered the complaint and the complaint as amended, and then moved to dismiss the case on the basis that this Court lacked subject matter jurisdiction to entertain the suit under either of plaintiff’s theories. Plaintiff opposed the motion to dismiss.

Meanwhile, plaintiff’s trustee in bankruptcy, James L. Drake, Jr., moved to intervene as a party plaintiff in this action, which motion was granted for the sole purpose of protecting creditors’ interests.

On August 6, 1984, the Government filed a motion for summary judgment in accordance with its motion to dismiss. The Court ruled on both motions in an Order dated November 15, 1984, in which the Court dismissed without prejudice plaintiff’s claim brought pursuant to the Federal Tort Claims Act, and allowed the case to proceed under admiralty jurisdiction conferred by the Suits in Admiralty Act. Moreover, the Court recognized that if trial on the merits of this case demonstrated facts giving rise to a non-maritime contract action, then the amount in controversy exceeds the amount that can be recovered in this Court pursuant to the jurisdictional limitations declared in the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491.

The case was tried without a jury on March 11, 1985, and on the basib of the pleadings, the briefs submitted both before and after trial, and the testimony heard and exhibits admitted, the Court finds the following facts pertinent to adjudication of plaintiff's claim.

B. Facts

Plaintiff formerly owned several trawlers in connection with his shrimping business which he operated out of Thunderbolt, Georgia. At least during the period between late November and early December, 1981, plaintiff temporarily moved his shrimping operation to the Key West, Florida coastline, since the shrimp crop along the Georgia coast was depleted.

During this same period, plaintiff was approached by certain individuals who expressed interest in using one of his shrimp boats for smuggling purposes. (T. 18). Because plaintiff had served as a custodian for seized vessels in 1972 and 1973, he knew several United States Customs agents, one being Mr. Miles Knight in the Savannah, Georgia Customs Service office. (T. 19). Plaintiff telephoned Mr. Knight to inform him about the contact he had had with the purported drug smugglers. (T. 19).

Miles Knight has been employed with the Customs Service since 1971, and is currently an Intelligence Coordinator-Investigator with the Service. (T. 85). His immediate supervisor in the Savannah office in 1981 was Mr. Jerry Mooney, who at that time was a special agent in charge of the Tactical Enforcement Division (T. 85) for the State of Georgia. (T. 86). In turn, Mr. Mooney reported directly to Mr. Andy Hoffman in the Miami Regional office of the Customs Service. (T. 86). As a result of plaintiffs service to Customs as both a custodian of seized vessels and as a source of information regarding suspect vessels, Mr. Knight considered plaintiff a reliable informant as to smuggling operations. (T. 87).

Consequently, when plaintiff informed him that he had been approached by purported drug smugglers, Miles Knight advised plaintiff that he and Jerry Mooney would be in Miami, Florida on December 9, 1981, and that they should get together for dinner. (T. 20). Accordingly, plaintiff flew north to Miami on the evening of December 9 for the purpose of meeting with these gentlemen to discuss the proposed drug deal. (T. 20).

At this meeting, plaintiff explained to the Customs agents that the smugglers had expressed an interest in using one of his boats because plaintiffs fleet was relatively new, and these individuals were tired of using old boats. (T. 22). Plaintiff could not give details, such as when the smugglers wanted to use one of his boats; however, pursuant to his discussion with the Customs agents, plaintiff decided to oblige the smugglers if they did return. (T. 24).

Plaintiff made this decision on the basis that the Customs agents expressed interest in the deal, especially if it were transacted in Georgia, which would be a location more proximate to their office and thereby would afford them greater control in securing the return of plaintiffs vessel if it were seized. (T. 22). The agents assured plaintiff that media coverage of such a seizure would be held to a minimum (T. 23), and plaintiff would be absolved of any adverse publicity that might ensue upon an implication of his property being used in a smuggling operation. (T. 23). Finally, plaintiff was informed by the agents that he could receive monetary compensation (“moiety” or otherwise) from the Customs Service for his assistance in apprehending drug smugglers. (T. 23). The amount of compensation would range from 30,000 to 150,000 dollars, depending on whether the boat was arrested in the act of smuggling contraband onto the coastline, or at some other point in the smuggling act when seizure would result in less conclusive evidence. (T. 23). So as to assure himself the highest rate of compensation, plaintiff agreed to allow the Customs service to place a transponder on any vessel finally chosen by the purported smugglers. (T. 61).

At no time during their December 9,1981 meeting did the customs agents inform plaintiff that they were without authority to enter into this proposed relationship. (T. 24).

In late December, 1981, plaintiff returned home to Thunderbolt, Georgia for the Christmas holiday. He had not heard again from the purported drug smugglers; however, he did meet with Miles Knight and together they viewed several unloading sites along the Georgia coastline where smugglers might find private entrance to the mainland. (T. 25). Plaintiff had been informed by agent Knight that if one of his vessels were used in a smuggling transaction, it would be returned to him earlier after seizure if it landed in Georgia (3 to 5 days) rather than in Florida (possibly 45 days), a fact which encouraged plaintiff to steer the purported smugglers toward Georgia. (T. 23-26).

On January 12, 1982, plaintiff was contacted again by the purported smugglers. After looking over plaintiffs fleet, these individuals demonstrated particular interest in the RUBBER DUCK (T. 26) because of its fuel capacity. (T. 27). Plaintiff telephoned Miles Knight with this news, and the agent reminded him to contact the Customs Service at least twenty-four hours before the boat’s departure so that a transponder could be placed on the vessel. (T. 26).

By Friday, January 15, 1982, the individuals had decided definitely on using the RUBBER DUCK. (T. 27). They approached plaintiff with this news that night, and maintained the secrecy of their decision by holding plaintiff at gunpoint through the weekend until they departed sometime on Sunday night (T. 28-29), at which time they gave plaintiff 10,000 dollars. . (T. 31).

Soon after their departure, plaintiff telephoned Miles Knight with the brief message that the RUBBER DUCK was gone and that plaintiff would be in Savannah the following morning. (T. 31). On January 19, agent Knight met with plaintiff at his home, where plaintiff described the events that had occurred that weekend and the appearance of each individual whom he supposed had taken the RUBBER DUCK. (T. 33). He produced a nautical chart that had been left by these individuals (Plaintiff’s Exh. 2) which depicted the course that the boat would travel up to the point of unloading. (T. 33). Agent Knight left this meeting with the comment that they all would have to wait and see what happened next. (T. 33).

Because plaintiff had not been afforded the opportunity to contact agent Knight prior to the departure of the RUBBER DUCK, no transponder ever was placed on the boat. (T. 66). However, at no point did agent Knight state that this fact would affect the deal which plaintiff understood to have been arranged between himself and the Customs Service. (T. 33-35). Indeed, plaintiff testified that if he not had reason to expect compensation from the Customs Service, he would not have pursued this venture, which he perceived as a customs operation. (T. 62).

The source of this expectation, being moiety or some alternative reward proposed by agent Knight (T. 102), was compensation that agent Knight considered payable pursuant to the filing and approval of a Request for Purchase of Information Payment. (T. 103-04, Plaintiff’s Exh. 14). Agent Knight testified that following his January 12, 1982 conversation with plaintiff, he contacted his immediate supervisor, Mr. Bill Arangio, whom he believed had spoken with Jerry Mooney about the proposal. (T. 106). Agent Knight understood from this conversation with Mr. Arangio that the use of plaintiff’s boat had been approved by Mr. Mooney. (T. 105-06).

Although no transponder was placed on the RUBBER DUCK, agent Knight did send out an administrative message to all Customs Service seaport areas along the Atlantic and Gulf of Mexico coastlines to maintain a lookout for the vessel, following his conversation with plaintiff on January 19, 1982. (T. 110-11, Plaintiff’s Exh. 13). Plaintiff had informed agent Knight that the boat was to travel a route from Santa Marta, Columbia to Camp Romano, Florida, where three lobster boats would receive the contraband loaded on the RUBBER DUCK and deliver it to three stash houses in the Camp Romano area for later distribution. (T. 110).

On February 3, 1982, the United States Coast Guard seized plaintiff’s boat in the Yucatan Peninsula with the smugglers and contraband on board. (T. 35-36, Plaintiffs Exh. 14). Plaintiff learned of the seizure on February 5 by way of a newscast over public television. (T. 35). Plaintiff then called Miles Knight, who instructed him to file a petition for return of the vessel. (T. 35-36). Accordingly, plaintiff through his attorney petitioned for release of the vessel in February, 1982.

Over the next several months, plaintiff had several conversations with Miles Knight and Jerry Mooney, in which he continued to request that the Customs Service return his boat. (T. 44). Meanwhile, as a result of media coverage of the event, plaintiff was implicated as a co-conspirator in illegal drug activities (Plaintiffs Exh. 4), which implications, according to the Customs agents who had received plaintiffs cooperation, were without any merit. (T. Ill, Plaintiffs Exh. 15).

Moreover, the RUBBER DUCK was a new boat when purchased by plaintiff in March, 1980 (T. 13), having had a purchase price of 204,000 dollars and an approximate worth of 250,000 dollars after it was outfitted for use by plaintiff. (T. 14-15). Mortgage payments continued to be due on the boat throughout the period following its seizure in February, 1982 (T. 39), which payments could not be met by plaintiff while he was denied use of his boat for fishing purposes. (T. 39).

On November 30, 1982, a letter was sent by the United States Department of the Treasury to plaintiffs attorney explaining to him in part that

[n]o evidence has been presented which would indicate that petitioner [plaintiff] actively participated in or authorized the scheme to smuggle the marijuana into the United States.
Accordingly, the forfeiture of the RUBBER DUCK is remitted in favor of Mr. Cesaroni and will be released to him upon his execution of a hold harmless agreement.

(T. 44-45, Plaintiffs Exh. 7). Plaintiff refused to hold the Government harmless, as requested. (T. 45). Then in February, 1983, plaintiff received notice of a teletyped authorization allowing him unconditional remission of the forfeiture, and stating that the RUBBER. DUCK should be released to plaintiff as soon as possible. (T. 45, Plaintiffs Exh. 10). However, before he could get to his boat which was supposed to be docked and under the custody of the Customs Service in Miami, Florida, the vessel was seized for foreclosure purposes, according to the customs agent who met him when he arrived. (T. 41). The RUBBER DUCK was sold to a third party in a foreclosure sale on June 9, 1983. (T. 42, Plaintiffs Exh. 11).

Jerry Mooney, who remains an agent with the United States Customs Service, admitted at trial that the first time he and Miles Knight discussed with plaintiff the possibility of using one of his boats to apprehend drug smugglers, it was understood that some means of compensation would be paid to plaintiff in return for his cooperation with the Government. Indeed, on February 25,1983, Mr. Mooney stated in a Request for Purchase of Information Payment (Plaintiffs Exh. 14) that plaintiff

has suffered a tremendous financial loss and negative publicity in the press because his role as a Cl [Confidential Informant] was never publicly revealed. ... I think the Customs Service has an obligation to Mr. Cesaroni. He came to us in a timely manner with valid information and he has suffered because of it.

No payment has been made to plaintiff by the Government pursuant to this request.

II. Law and Analysis

Plaintiff proceeded to trial of this case under the aegis of the Suits in Admiralty Act, 46 U.S.C. §§ 741-742, on the theory that the Government, through its agents, entered into and breached an express or implied contract of charter or bailment of one of plaintiffs boats for the purpose of apprehending drug smugglers. The Government opposes this theory, contending that plaintiff has failed to demonstrate facts supporting the existence of a contract, that even if a contract did exist, it was entered into without proper authority, and that this Court nevertheless is without power to decide this matter, according to the jurisdictional limitations declared in the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491. In that connection, the Court first must examine the jurisdictional issue. Mansfield, Coldwater & Lake Michigan Railway v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884). See Fed.R.Civ.P. 12(h)(3).

“The United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980), quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Accord, Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1156 (5th Cir. Unit B 1981). Where no such consent exists, a district court has no jurisdiction to entertain a suit against the United States. Mitchell, supra, 445 U.S. at 538, 100 S.Ct. at 1351; United States v. King, 395 U.S. 1, 2-5, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969); Stanley, supra, 639 F.2d at 1156. “It is incumbent on a court of the United States, whether trial or appellate, to dismiss an action whenever it appears that subject matter jurisdiction [as prescribed by Congress] is lacking____” Marshall v. Gibson’s Products, Inc. of Plano, 584 F.2d 668, 671-72 (5th Cir. 1978).

The Suits in Admiralty Act is a legislative waiver of sovereign immunity under specified circumstances. A brief history of that Act, pertinent to undertaking its application, is explained in McCormick v. United States, 680 F.2d 345 (5th Cir.1982):

■ Prior to 1916, the doctrine of sovereign immunity barred any suit by a private owner whose vessel was damaged by a vessel owned or operated by the United States. Recognizing the inequities of denying recovery to private owners and the difficulties inherent in attempting to grant relief to deserving private owners through private Acts of Congress, Congress provided in the Shipping Act, 1916, that Shipping Board vessels employed as merchant vessels were subject to “all laws, regulations, and liabilities governing merchant vessels.” In The Lake Monroe, 250 U.S. 246, 39 S.Ct. 460, 63 L.Ed. 962 (1919), [the Supreme] Court held that the Shipping Act had subjected all Shipping Board merchant vessels to proceedings in rem in admiralty, including arrest and seizure. Congress, concerned that the arrest and seizure of Shipping Board merchant vessels would occasion unnecessary delay and expense, promptly responded to the Lake Monroe decision by enacting the Suits in Admiralty Act. The Act prohibited the arrest or seizure of any vessel owned by, possessed by, or operated by or for the United States. 46 U.S.C. § 741. In place of an in rem proceeding, the Act authorized a libel in personam in cases involving such vessels, if such a proceeding could have been maintained had the vessel been a private vessel, and “provided that such vessel is employed as a merchant vessel.” 41 Stat. 525, 46 U.S.C. § 742 (1958 ed.)....

Id. at 348, quoting United States v. United Continental Tuna, 425 U.S. 164, 170-71, 96 S.Ct. 1319, 1323-24, 47 L.Ed.2d 653 (1976).

One effect of this Act was to confuse litigants as to the appropriate forum in which to bring a maritime contract claim against the United States. Specifically, the Tucker Act, initially passed by Congress in 1887, United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969), lodged exclusive jurisdiction in the Court of Claims for contract claims against the Government exceedihg 10,000 dollars. 28 U.S.C. §§ 1346(a)(2), 1491; United Continental Tuna, supra, 425 U.S. at 172, 96 S.Ct. at 1324. “A plaintiff with a contract claim against the United States for more than $10,000 often found himself in a difficult position. He had to choose between proceeding in the district court under [the Suits in Admiralty Act], and proceeding in the Court of Claims under the Tucker Act,” United Continental Tuna, 425 U.S. at 172-73, 96 S.Ct. at 1324-25, and either course could lead to a perilous result. See Calmar S.S. Corp. v. United States, 345 U.S. 446, 73 S.Ct. 733, 97 L.Ed. 1140 (1953).

The Suits in Admiralty Act was amended in 1960 to alleviate the perceived difficulty in determining the appropriate forum for a maritime claim against the United States. The change that concerns the Court in this case was the deletion of the language requiring that a vessel be “employed as a merchant vessel.” By that amendment, Congress effectively expanded the scope of the Suits in Admiralty Act at the expense of the Tucker Act. United Continental Tuna, 425 U.S. at 179, 96 S.Ct. at 1328. If the claim is a contract claim exceeding 10,000 dollars, then the exclusive jurisdiction is in the Court of Claims. If, on the other hand, the contract is in admiralty, then exclusive jurisdiction is conferred on the district court. Amell v. United States, 384 U.S. 158, 159—60, 86 S.Ct. 1384, 1385, 16 L.Ed.2d 445 (1966); DeBardeleben Marine Corp. v. United States, supra, 451 F.2d at 143-44. In either situation, the contract that plaintiff is relying upon must be recognized specifically as a contract enforceable against the Government.

Before the Court may reach the merits of plaintiff’s contract claim, however, it first must be determined whether this matter falls within the exclusive realm of admiralty jurisdiction for purposes of construing the facts under the Suits in Admiralty Act. “Calling a contract a maritime contract does not make it one.” Kennedy v. H & M Landing, Inc., 529 F.2d 987, 988 (9th Cir.1976) (held that neither a city-issued permit allowing a seller to sell bait to such persons as were willing to buy it for use on vessels at such times and places as the purchasers might elect, nor an oral contract binding a seller to furnish bait to a sport-fishing enterprise, but not obliging seller to provision a particular vessel or imposing any duty on the enterprise to buy bait, were maritime contracts). Whether a contract action falls within admiralty jurisdiction depends upon the subject matter of the contract, rather than the place where the contract was entered into or was performed. Luvi Trucking, Inc. v. Sea-Land Service, Inc., 650 F.2d 371, 373 (1st Cir.1981), citing E.E. Jhirad & A. Sann, 1 Benedict on Admiralty § 182 at 11-5 (6th ed. 1983) (hereinafter “Benedict”). Luvi Trucking, Inc., supra, 650 F.2d at 373, quoting 1 Benedict § 183 at 11-7-8.

Maritime character of the nature to attract admiralty jurisdiction does not attach to a contract merely because the services to be performed under the contract have reference to a ship, or to its business, or that the ship is the object of such services or that it has reference to navigable waters. In order that such character should attach, there must be present a direct and proximate jurisdictional link between the contract and the operation of the ship, its navigation or its management afloat, taking into account the developing practices of world shipping, for the very basis of the constitutional grant of judicial power upon the United States in respect of matters maritime was to ensure a national uniformity of approach to world shipping.

“The boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 890, 6 L.Ed.2d 56 (1961); Outbound Maritime Corp. v. P.T. Indonesian Consort, 582 F.Supp. 1136, 1140 (D.Md.1984). Reference to precedent and usage are helpful insofar as they exclude or include certain common types of agreements. See generally Annot., 29 A.L.R. Fed. 325 (1976). For example, contracts for the sale of vessels are not within admiralty jurisdiction, but charter parties are. Clem Perrin Marine Towing v. Panama Canal Co., 730 F.2d 186, 188 (5th Cir.1984). A contract for the carriage of goods by sea is clearly maritime in nature. Swift & Co. Packers v. Compania Columbiana del Caribe, 339 U.S. 684, 691, 70 S.Ct. 861, 866, 94 L.Ed. 1206 (1949). On the other hand, contracts “preliminary to,” rather than involving the maritime activity itself, are not within maritime jurisdiction. Outbound Maritime Corp., supra, 582 F.Supp. at 1141. “The rationale for this distinction is that although these preliminary services relate to the business of the ship, they are essentially no different from services ordinarily performed by other shoreside persons who are not involved in the operation or navigation of the ship.” Id., citing P.D. Marchessini & Co. v. Pacific Marine Co., 227 F.Supp. 17, 18 (S.D.N.Y.1964).

As to this case, plaintiff alleges that a charter party or bailment contract existed between himself and the Government, through its agents. The Court first recognizes that a charter party is a maritime contract; however, calling an agreement a “charter party” does not necessarily make it one. A charter party is ordinarily a contract between two parties having to do with the use and operation of a sea-going vessel. Dorsey v. State Mutual Life Assur. Co. of Worcester, Mass., 238 F.Supp. 391, 394 (N.D.Ga.1964), aff'd., 357 F.2d 600 (5th Cir.1966). More particularly, Leary v. United States, 81 U.S. 607, 20 L.Ed. 756 (1871) held:

The question as to the character in which the charterer is to be treated is, in all cases, one of construction. If the charter-party let the entire vessel to the charterer with a transfer to him of its command and possession and consequent control over its navigation, he will generally be considered as owner for the voyage or service stipulated. But, on the other hand, if the charter-party let only the use of the vessel, the owner at the same time retaining its. command and possession and control over its navigation, the charterer is regarded as a mere contractor for a designated service, and the duties and responsibilities of the owner are not changed. In the first case, the charter-party is a contract for the lease of the vessel; in the other, it is a contract for a special service to be rendered by the owner of the vessel.

Essentially, a charter party confers either one or the other contracting party with control of the vessel and its navigation.

Similarly, to create a bailment, express or implied, there must be an actual or constructive delivery of the goods with actual or constructive possession in the bailee, exclusive and independent of the bailor and all other persons. Davidson v. Ramsby, 133 Ga.App. 128, 131, 210 S.E.2d 245 (1974); see O.C.G.A. § 44-12-40 (1982). Delivery, which confers on the bailee an independent and temporarily exclusive possession, is essential to a contract of bailment. Hartley v. Robinson, 78 Ga. App. 594, 595, 51 S.E.2d 617 (1949).

It follows that control of the thing delivered by one party to the other is an element shared by both charter and bailment contracts. There is no evidence in the present case to support a finding that either plaintiff or the Government had control of the RUBBER DUCK or its navigation during the attempted drug smuggling operation. Rather, plaintiff was forced at gunpoint to deliver his boat to a third party, at which time both plaintiff and the Government through its agents relied on that party’s nautical chart to determine where the boat would be steered. These circumstances, to a less drastic extent, had been foreseen by both plaintiff and the Government; indeed, their plan of operation had included failed methods of bringing some control over the vessel, whether by a transponder marking its course, or persuading the smugglers to complete their mission somewhere on the Georgia coastline. In the end, however, neither plaintiff nor the customs officers could escape the reality that they would have to “wait and see what happened next,” once the smugglers took control of the vessel.

This analysis, however, does not foreclose the possibility that an enforceable contract is supported by the facts of this case. Indeed, it is one of the duties of the Customs Service “to use all necessary force to seize or arrest” violators of the revenue laws, which generally prohibit smuggling activities. 19 U.S.C. § 1581. Search and board statutory authority for officers of customs, 19 U.S.C. § 1581(a), provides in pertinent part: “At any time go on board of any vessel ... at any place ... within the customs waters or, as he may be authorized ... at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers____” (emphasis added). Title 19 U.S.C. § 1401(j) defines customs waters as “the waters within four leagues [12 miles] of the Coast of the United States.” Accordingly, it may be argued that once plaintiff and the Government entered into their deal to apprehend certain drug smugglers, pursuant to plaintiff’s reliable information, the Customs Service had plenary authority to go on board and search the RUBBER DUCK at any point it travelled during the smuggling venture. Indeed, it was on the basis of this cooperative effort between a citizen and the Government that Customs agent Jerry Mooney expressed his plea that some means of compensation be paid in accordance with a Request for Purchase of Information Payment, as authorized under 19 U.S.C. § 1619:

Any person not an officer of the United States ... who furnishes ... to any customs officer original information concerning any fraud upon the customs revenue, or a violation of the customs laws ... perpetrated or contemplated, which detection and seizure of information leads to a recovery of any duties withheld, or any fine, penalty, or forfeiture incurred, may be awarded and paid by the Secretary of the Treasury a compensaton of 25 per centum of the net amount recovered, but not to exceed $50,000 in any case____ (emphasis added).

The evidence in this case clearly supports a finding that plaintiff provided the Customs Service with original information which proximately resulted in the seizure of certain drug smugglers and contraband intended for distribution in the United States. Moreover, plaintiff’s acts were not performed gratuitously: he expected compensation and the immediate return of his boat. However, what concerns this Court as to these elements of contract is not whether they constitute an enforceable agreement, but whether they characterize a maritime activity, conferring admiralty jurisdiction.

Stated simply, the agreement at issue involved the offer of reliable information in exchange for compensation. Such agreement, albeit one-sided, was entered into at great expense to plaintiff, who eventually-lost both his property and his reputation. Nevertheless, the agreement had its basis not in the operation of a ship, its navigation, or its management afloat, but in the unique duty of the Customs Service to protect Government revenues and our people generally from the effects of smuggling activities. Conclusively, the question of its enforceability is to be decided in law, rather than in admiralty.

III. Conclusion

Having determined that the claim presented by plaintiff in his complaint and supported by testimony and exhibits admitted at trial is based on a non-maritime agreement, the Court finds itself without power to reach its merits. This action therefore is dismissed, without prejudice or further delay, so that plaintiff may pursue his cause of action, with vigor, before the Court of Claims.

      . The Court notes that the 1960 amendments to the Suits in Admiralty Act also extended the coverage of that Act to include all maritime tort claims against the United States where the plaintiff would have an action in admiralty were the defendant a private person rather than the government. McCormick v. United States, 680 F.2d 345, 349 (5th Cir.1982); DeBardeleben Marine Corp. v. United States, 451 F.2d 140, 145 (5th Cir.1971). However, plaintiff has never stated a tort claim under the Suits in Admiralty Act, and the case was tried pursuant to his claim for breach of contract. Accordingly, the Court restricts its analysis and judgment to the facts and law as they pertain to an action in contract.

      . The Tucker Act provides both the requisite consent to be sued and the jurisdictional basis for such actions at 28 U.S.C. §§ 1346(a)(2) and 1491. A.L. Rowan & Son v. Dept. of Housing and Urban Development, 611 F.2d 997, 999 (5th Cir.1980). 28 U.S.C. § 1346(a)(2) provides in pertinent part:
      (a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
      (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, ...

      . Although in admiralty, maritime law maintains a paramount position by virtue of the Constitution, state law has sometimes been used as a guide to substantive rights. DeBardeleben Marine Corp. v. United States, supra, 451 F.2d at 147 n. 17.

      . The Court notes that the lack of control by the Government over its part of the deal is demonstrated most clearly by the delay plaintiff suffered before his boat was released after seizure. Such delay was effected by the forfeiture proceedings that typically occur when the Attorney General, who is accorded custody of seized property, has probable cause to believe that the property seized has been used or is intended to be used in violation of the Drug Abuse Prevention Act, 21 U.S.C. § 881. Forfeiture actually occurs at the moment of illegal use, see United States v. One Piece of Real Estate, 571 F.Supp. 723 (W.D.Tex.1983), and the seized property is subject to Government process unless an innocent owner prevails under the defense prescribed in § 881(a)(4)(B). See United States v.

        One (1) 1980 Stapleton Pleasure Vessel, 575 F.Supp. 473 (S.D.Fla.1983).


author: JENKINS, Chief Judge.

text:
    The STATE OF UTAH, By and Through its DIVISION OF STATE LANDS, Plaintiff, v. UNITED STATES of America; James G. Watt, Secretary of the United States Department of the Interior; Frank Gregg, Director of the Bureau of Land Management within the Department of the Interior, and Paul L. Howard, Utah State Director of the Bureau of Land Management, Defendants.
    Civ. No. C 79-0302J.
    United States District Court, D. Utah, C.D.
    April 15, 1983.

      Dallin W. Jensen and Michael M. Quealy, Salt Lake City, Utah, for plaintiff.
    Joseph W. Anderson, Asst. U.S. Atty., Salt Lake City, Utah, Steven A. Herman and Lawrence Puckett, Dept, of Justice, Land & Natural Resources Div., Washington, D.C., for defendants.

       Successor to Cecil D. Andrus.

   MEMORANDUM OPINION AND ORDER

JENKINS, Chief Judge.

Plaintiff, the State of Utah, brought this action to enjoin the defendants, the United States of America and officers of the Department of Interior, from interfering with Utah’s ownership and management of the bed of Utah Lake, located in Utah County, Utah. Each of the parties claims to be the owner of the lakebed. Each has filed a motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking a holding in its behalf. The essential facts are not in dispute. The Court heard arguments on the motions June 10, 1982. Joe Anderson, Esq. and Steven A. Herman, Esq. represented the United States. Richard L. Dewsnup, Esq., Dallin W. Jensen, Esq. and Michael M. Quealy, Esq. appeared on behalf of the State of Utah. After careful consideration of the motions, the arguments made and briefs submitted, this Court issues the following Memorandum Opinion and Order.

The parties are in dispute regarding the procedure by which the case comes before this Court. The United States maintains that the action is one to determine which party has the superior claim to title to the bed of Utah Lake. According to the United States, the action is governed by the Quiet Title Act, which provides, in part:

The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest other than a security interest or water rights.

28 U.S.C.A. § 2409a(a) (1978). Although Utah relies on the Quiet Title Act as an alternative basis for jurisdiction, it asserts that the action is primarily for declaratory relief under the Federal Declaratory Judgment Act, 28 U.S.C.A. § 2201 (1982), and that this Court has federal question jurisdiction over the action. 28 U.S.C. § 1331 (1966). Utah maintains that it seeks only “a legal interpretation of the scope and effect of the 1889 Withdrawal Order on Utah Lake” and that it does not seek “to resolve any of the claims of the private land owners surrounding Utah Lake.”

I. DECLARATORY JUDGMENT

Utah asserts that the current action is one for declaratory judgment. Under that concept, the United States argues an action will not lie against it because it has not consented to be sued — it has not waived its “sovereign immunity”. The Declaratory Judgment Act alone cannot overcome the jurisdictional bar of sovereign immunity. E.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878, 94 L.Ed. 1194 (1950); Bussey v. Harris, 611 F.2d 1001, 1005 n. 7 (5th Cir. 1980); Fidelity & Casualty Co. v. Reserve Ins. Co., 596 F.2d 914, 916 (9th Cir.1979); Cook v. Arentzen, 582 F.2d 870, 875 (4th Cir.1978). Utah does not stop with the Declaratory Judgment Act. In addition, it relies on the Administrative Procedure Act, (APA), as the statute which provides the necessary consent and under which the United States is subject to suit. Section 702 of the APA provides, in part, that:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States ...

5 U.S.C.A. § 702 (1977). There is some conflict over the scope of the waiver contained in § 702. In Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir.1978), the Court of Appeals for the Second Circuit held that § 702 “did not remove the defense of sovereign immunity in actions under § 1331 [federal question jurisdiction].” The Watson court found that § 702 does not waive immunity in “nonstatutory” review of agency action. An action under § 1331 is “nonstatutory” in the sense that it is not brought under a statute that specifically provides for agency review.

The Court of Appeals for Third Circuit rejected the Watson analysis holding that § 702 waives sovereign immunity in “nonstatutory”, as well as statutory review of agency action. Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.1979). The Court of Appeals for the Tenth Circuit cited the Jaffee opinion favorably in Carpet & Linoleum & Resilent Tile, Etc. v. Brown, 656 F.2d 564, 567 (10th Cir.1981). In Carpet & Linoleum, the Court of Appeals for this circuit held that § 702 waived sovereign immunity in a mandamus action grounded in federal question jurisdiction. Similarly, in the case at bar, Utah argues that § 702 waives immunity for a declaratory judgment action in which subject matter jurisdiction also is based on a federal question. Therefore, we find that a declaratory judgment action will lie against the United States in the present dispute.

II. QUIET TITLE

Defendant, the United States, argues that the action is one under the Quiet Title Act, 28 U.S.C.A. § 2409a(a) (1978). Defendant claims that although the Act waives sovereign immunity, actions under it must be brought within the specified limitations period. Section 2409a(f) of the Quiet Title Act provides:

Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.

28 U.S.C.A. § 2409a(f) (1978). Defendant maintains that state authorities were aware of the United States “claim” to the bed of Utah Lake in 1963, more than twelve years before the action was brought and thus the action is barred. In that year a series of letters were written to the Governor of Utah discussing the possibility of a federal claim to the lake bed. On February 21, 1963, the United States Secretary of Interi- or, Stewart Udall, wrote a letter to Governor George Clyde in which he stated that the bed of Utah Lake was segregated as a reservoir site in 1889 and that “it would appear that lands beneath navigable waters reserved by the United States prior to statehood, for' public uses or purposes, would not pass to the state.” The State of Utah argues, however, that Secretary Udall’s August 15, 1963 letter is more reflective of the federal position. In that letter the Secretary of Interior stated, “We are not prepared to state with finality whether title to the bed of Utah Lake has or has not passed to the State of Utah. The next correspondence on which the United States bases its argument that Utah “should have known” of the federal “claim” to the lake bed is a letter of the local Regional Solicitor written in January, 1965. Stuart McMaster, Regional Solicitor of the Bureau of Reclamation, wrote an opinion addressed to the Regional Director in which he stated:

It is our opinion that the designation and reservation of Utah Lake as a reservoir site on April 11, 1889, pursuant to the Act of October 2, 1888, and prior to statehood in 1896, precluded the state’s sovereign rights from attaching to lands underlying such navigable waters.

The United States contends that the McMaster report put the state on notice that the federal government claimed an interest in the bed of Utah Lake. Utah, however, emphasizes that the report was sent to the Regional Director of the Bureau of Reclamation rather than to the Utah Governor. Further, McMaster recommended that “when you have determined the area actually needed for the Central Utah Project, you should eliminate from the reservation and restore any excess lands now withdrawn and reserved, and notify the state of the position taken by the United States. ” Although the Governor’s office was in possession of a copy of the McMaster report, there is no indication that notice was given of “the position taken by the United States.” Nor is there evidence that the United States publically took the position suggested by McMaster, at that time.

The Court of Appeals for the Tenth Circuit recently interpreted the limitations section of the Quiet Title Act, stating:

The operative words of the statute— “should have known” import a test of reasonableness. Only if it was unreasonable for the [plaintiff] to have failed to discover the claim of the United States should the limitations provision of § 2409a(f) become operative.

Amoco Production Co. v. United States, 619 F.2d 1383, 1388 (10th Cir.1980) (emphasis added). Under the facts of the present dispute, the last correspondence from the Secretary of Interior to the Governor of Utah stated that the United States was unwilling to say that it owned the lake bed. The United States had then not yet stated a claim. The McMaster report was an inter-agency memorandum suggesting the grounds by which the United States could claim an interest in the bed of the lake. There is no indication that the Secretary of Interior changed his position in reliance on the report. Further, there is no evidence that defendants followed McMaster’s advice and notified “the state of the position taken by the United States.” This circuit has held that for the statute of limitations under the Quiet Title Act to run “[a]ll that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiffs.” Knapp v. United States, 636 F.2d 279, 283 (10th Cir.1980). Secretary Udall’s August 15, 1963 letter indicates that the United States was uncertain whether it claimed an interest adverse to that of the state. The McMaster report analyzes a method by which the United States could claim an interest adverse to the state’s if it so desired. There is no indication that it did so in 1965. Further, in Knapp, the Court of Appeals discounted the reliability of opinions given by individual officials as follows:

But whatever the intent or opinions of individual government officials, only Congress had the power to release the Government’s apparent interest, and plaintiff’s were told this in 1958.

636 F.2d at 283 n. 2. Likewise, the State of Utah cannot be expected to rely on a report by the local Regional Solicitor of the Bureau of Reclamation to the Regional Director of that department as the official statement of United States policy. This is particularly true when the United States Secretary of Interior had last informed the Utah Governor that the United States was not ready to take a position on the issue. This Court holds that the action is timely under the Quiet Title Act, 28 U.S.C.A. § 2409a et seq.

Plaintiffs insist that this suit is one for declaratory judgment while defendants maintain that it is a Quiet Title action. Because either theory gives this Court the opportunity to examine the merits of the case, it is unnecessary to resolve that dispute.

III. THE LAKE BED

A. 1889 Withdrawal

Congress authorized the withdrawal of lands in the arid West for reservoir sites in the Sundry Appropriations Act of 1888, which provides:

—[There is appropriated] for the purpose of investigation, the extent to which the arid region of the United States can be redeemed by irrigation, and the segregation of the irrigable lands in such arid region, and for the selection of sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows ... the sum of $100,000____ And all the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches, or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches, or canals are from this time henceforth, hereby reserved from sale as property of the United States, and shall not be subject after the passage of this act, to entry, settlement, or occupation until further provided by law: Provided, That the President may at any time in his discretion by proclamation open any portion or all of the lands reserved by this provision to settlement under the homestead laws.

Act of October 2, 1888 (25 stat. 526). Pursuant to that Act, on April 6, 1889, John Wesley Powell, the Director of the United States Geological Survey (USGS) selected Utah Lake as a reservoir site. In a letter to the Secretary of Interior, Powell stated: “I have the honor to report that the site of Utah Lake in Utah County in the Territory of Utah is hereby selected as a reservoir site, together with all lands situate[d] two statute miles of the border of said lake at high water.” As a result of that withdrawal, the USGS made a survey to more accurately describe the reserved area by legal subdivisions. In its annual update to the Secretary of Interior in 1889, the USGS included a report of Captain C.E. Dutton, which stated:

In April Mr. Newell was sent to Utah to make certain examinations of Utah Lake with reference to its capacity for a reservoir site and to furnish the specifications for its withdrawal as such under the law, so far as the lands covered or overflowed by it or the lands bordering upon it were still public lands.

In its next report, the USGS discussed the results of its study of the area reserved by the Utah Lake withdrawal. The report stated that the USGS survey “was made to include not only the bed [of Utah Lake] but the lowlands up to mean high water”, as well. The language used in the correspondence and documents surrounding the 1889 withdrawal expressly include the bed of Utah Lake. Because these documents reflect the involved agency’s contemporaneous interpretation of the scope of the withdrawal, they are entitled to deference, e.g., Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 1334, 25 L.Ed.2d 615 (1969); Udall v. Tollman, 380 U.S. 1, 4-6, 85 S.Ct. 792, 795-96, 13 L.Ed.2d 616 (1965), and this Court now finds that the United States withdrew the bed of Utah Lake as part of the 1889 reservoir site selection.

B. Equal Footing

The state contends that even if the 1889 withdrawal included the lake bed, title passed to Utah at the time of statehood under the Doctrine of Equal Footing. That doctrine provides that, like the original states which retained title to the beds of their navigable waters, all new states are entitled to the beds of navigable waters within their boundaries. See, Montana v. United States, 450 U.S. 544, 551, 101 S.Ct. 1245, 1251, 67 L.Ed.2d 493 (1981). In that way the new states are said to be on “equal footing” with the original states. The Equal Footing Doctrine, however, is not without exception. The United States Supreme Court examined those exceptions in United States v. Holt Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926), stating:

It is settled law in this country that lands underlying navigable waters within a state belong to the state in its sovereign capacity and may be used and disposed of as it may elect, subject to the paramount power of Congress to control such waters for the purposes of navigation in commerce among the states and with foreign nations, and subject to the qualification that where the United States after acquiring the territory and before the creation of the state, has granted rights in such lands by way of performing international obligations, or effecting the use or improvement of the lands for purposes of commerce among the states and with foreign nations, or carrying out other public purposes appropriate to the objects for which the territory was held, such rights are not cut off by the subsequent creation of the state, but remain unimpaired, and the rights which otherwise would pass to the state are restricted or qualified accordingly.

Id. at 54-55, 46 S.Ct. at 198-99 (emphasis added) (citations omitted). See also, Montana v. United States, 450 U.S. 544, 551, 101 S.Ct. 1245, 1251, 67 L.Ed.2d 493 (1981); United States v. Anchorage, Alaska, 437 F.2d 1081, 1085 (1971); United States v. Alaska, 423 F.2d 764, 768 (9th Cir.), cert. denied, 400 U.S. 967, 91 S.Ct. 363, 27 L.Ed.2d 388 (1970). The withdrawal of Utah Lake was made “after acquiring the territory and before the creation of the state” for the carrying out of “public purposes appropriate to the objects for which the territory was held.” Those purposes include irrigation for the benefit of future settlers of the arid West. Under these circumstances, the United States’ title in the area was “not cut off by the subsequent creation of the state.” Utah’s arguments to the contrary are not persuasive.

C. Submerged Lands Act

[7] The state further asserts that it obtained title to the bed of Utah Lake through the Submerged Lands Act, 43 U.S. C.A. §§ 1301 et seq. (1964). In that Act, Congress relinquished the title and claims of the United States to land beneath the navigable waters within the boundaries of the states and declared title and ownership of the land in the respective states. Like the Doctrine of Equal Footing, the Submerged Lands Act is limited in its Application. Section 1313 provides that:

There is excepted from the operation of section 1311 of this title—
(a) all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon, title to which has been lawfully and expressly acquired by the United States from any State or from any person in whom title had vested under the law of the State or of the United States, and all lands which the United States lawfully holds under the law of the State; all lands expressly retained by or ceded to the United States when the State entered the Union (otherwise than by a general retention or cession of lands underlying the marginal sea);____

43 U.S.C.A. § 1313(a) (1964). Title to the bed of Utah Lake was expressly reserved by the United States in 1889, seven years before Utah became a state. The Court of Appeals for the Ninth Circuit discussed the application of the Submerged Lands Act to a similar situation in United States v. Alaska, 423 F.2d 764 (9th Cir.), cert. denied, 400 U.S. 967, 91 S.Ct. 363, 27 L.Ed.2d 388 (1970). In the Alaska case, the Court of Appeals held that the Act had no effect on a reservation by the United States made prior to statehood. Id. at 768. The Ninth Circuit based its holding on the language of the Act which specifically excluded “all lands expressly retained by or ceded to the United States when the state entered the Union----” The present litigation also involves land retained by the United States before statehood. Therefore, the bed of Utah Lake is excluded from the application of the Submerged Lands Act, by § 1311(a), and title to it remains in the United States. Only Congress can relinquish the federal claim to the lake bed.

These determinations are as much a recital of history as they are legal determinations. The historic documents speak of what took place. This Court cannot simply overlook what they say. Congress, and Congress alone, may deal with the transfer of lands which have been reserved. It is to that forum the state may look if longed-for ownership is considered essential.

Based on the foregoing, plaintiffs motion for Summary Judgment is DENIED and defendant’s motion for Summary Judgment is GRANTED.

       During the pendency of this decision, Richard L. Dewsnup, Solicitor General of the State of Utah, passed away. The Court would like to acknowledge the loss of Mr. Dewsnup, a skilled and memorable advocate.

      . Memorandum in Support of Utah's Cross-Motion for Summary Judgment, 104.

      . Id.

      . Complaint at 3.

      . This action was filed May 22, 1979.

      . Letter from Secretary of Interior to Governor of Utah (February 21, 1963) (discussing Central Utah Project).

        . Letter from Secretary of Interior to Governor of Utah (August 15, 1963) (discussing 1889 withdrawal).

      . Letter from Regional Solicitor, Stuart McMaster, to Regional Director, Bureau of Reclamation, Salt Lake City, Utah (January 26, 1965) (discussing reservation and withdrawal of Utah Lake as a permanent reservoir site under the Act of October 2, 1888) at 5-6.

      . Governor George Clyde was succeeded by Governor Calvin Rampton in 1965.

      . Id. at 7 (emphasis added).

      . The McMaster report was written in 1965. This action was commenced 14 years later in 1979. There is nothing to suggest that plaintiff "should have been aware" of the United States "claim” between 1965 and 1967.

      . Plaintiff argues that the limitations provision of the Quiet Title Act, 28 U.S.C.A. § 2409a(f) (1978), does not run against the states. A petition for certiorari has been filed with the United States Supreme Court to consider that issue. Block v. North Dakota, 671 F.2d 271 (2d Cir. 1981), (petition filed June 1982). We need not reach that question here, however, because we find that plaintiffs action is timely.

      . Letter from Director of United States Geological Survey, to U.S. Secretary of Interior (1889) (discussing Utah Lake withdrawal) (emphasis added).

      . Tenth Annual Report of the United States Geological Survey to the Secretary of Interior 1888-89, Part II, at 63 (emphasis added).

      . Eleventh Annual Report of the United States Geological Survey to the Secretary of Interior 1889-90, Part II, at 2.

      . Utah became a state on January 4, 1896.

      . 43 U.S.C.A. § 1311(b)(1) (1964).

      . Id. at § 1311(a)(1).

      . See supra, Part IIA.


author: DITTER, District Judge.

text:
    UNITED STATES of America v. A1 KINKLE.
    No. Cr. 84-00482-04.
    United States District Court, E.D. Pennsylvania.
    May 24, 1985.
    Edward S.G. Dennis, U.S. Atty., James M. Becker, Asst. U.S. Atty., Philadelphia, Pa., for U.S.
    Gregory T. Magarity, Mark F. Bideau, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

DITTER, District Judge.

A1 Kinkle was indicted for conspiracy to possess a controlled substance with intent to distribute and unlawful use of a communication facility. Presently before the court is defendant’s motion to dismiss the latter count. For reasons that follow, this motion will be denied.

Count two of the indictment alleges that on March 28, 1983, in the Eastern District of Pennsylvania, A1 Kinkle knowingly and intentionally used a telephone to further the conspiracy described in count one. Pretrial discovery revealed that the telephone call which underlies the second count was placed by a government informant in Philadelphia and allegedly received by defendant Kinkle in Florida. Defendant contends, therefore, that even if the allegation in the second count of the indictment is accepted as true, a violation of 21 U.S.C. § 843(b) (1982) has not taken place in the Eastern District of Pennsylvania. Accordingly, he contends, the indictment should be dismissed as this district is an improper venue.

Both Article III, section 2 of the Constitution and Fed.R.Crim.P. 18 place venue for criminal prosecutions in the district where the offense was committed. The sixth amendment to the Constitution provides that a criminal accused has the right to a public trial by an impartial jury drawn from the district where the offense was committed.

Congress, in addition to enacting certain provisions setting venue for specific criminal offenses, has enacted 18 U.S.C. § 3237(a) (1982), which provides as follows:

Except as otherwise provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail moves.

The statute defining the offense in this case makes it unlawful for “any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter____” 21 U.S.C. § 843(b) (1982).

What I must decide is where the use of the telephone took place. Defendant argues that as the recipient of the telephone call, he only used a telephone in Florida, and, therefore, a prosecution in this district for use of a telephone is improper. In response, the government asserts that section 843(b) draws no distinction between placing and receiving a telephone call and that unlawful use of a telephone is a continuing offense which takes place in both the district where the speaker is present and the district where the listener is present.

The Supreme Court considered where “illegal use” occurred in United States v. Johnson, 323 U.S. 273, 65 S.Ct. 249, 89 L.Ed. 236 (1944), a prosecution under the Federal Dentures Act. The Act made it unlawful, in the course of the conduct of a business of constructing or supplying dentures from casts or impressions sent through the mails or in interstate commerce, to use the mails or any instrumentality of interstate commerce for the purpose of sending or bringing into “a state a denture which was cast by a person not licensed to practice dentistry in the state into which the denture was sent.” Federal Denture Act of 1942, 56 Stat. 1087, 18 U.S.C. §§ 420f-420h (1943).

The Court held that because the sender’s crime was complete when the dentures were deposited in the mail, the sender could only be prosecuted in the district from which the dentures were sent. 323 U.S. at 277-78, 65 S.Ct. at 251-52. The Court also focused upon the absence of a specific statutory provision providing for venue in both the sender’s and recipient’s districts. Id. at 276-77, 65 S.Ct. at 251. This absence was deemed particularly significant in light of the fact that such a specific provision was suggested and rejected when the bill was in the House. Id.

Justice Reed, joined by three other justices, issued a sharp dissent, arguing that the majority improperly restricted the sender’s crime to the “first use” of the mail. Id. at 280, 65 S.Ct. at 252-53 (Reed, J., dissenting). He contended that the operative term in the statute, “use of the mails,” encompassed the entire transmission of the goods. Id. at 281-82, 65 S.Ct. at 253-54 (Reed, J., dissenting). Justice Reed reasoned,

The ‘use’ for the ‘purpose’ results in a continuous offense. Since the offense is committed wherever the mails or instrumentalities of interstate commerce are used for the purpose of sending or bringing the denture into a state contrary to the statute and the act has no provision otherwise limiting the place of trial, the venue is at whatever place these acts are committed.

Id. (footnotes omitted).

Congress responded to Johnson by amending the general criminal venue provision. See c. 645, 62 Stat. 826 (codified as amended at 18 U.S.C. § 3237 (1982)). In addition to delineating specifically the venue for cases involving use of the mails, this amendment provided that offenses “committed in more than one district” could be prosecuted in any district in which such offense was “continued.” See id. The statute that had been revised by the amendment and that had been available to the Johnson Court only addressed offenses “begun in one judicial district and completed in another.” 28 U.S.C. § 103 (1941) (superseded). By adding the “committed in more than one district” language, Congress undermined the Court’s “first use” approach in Johnson. Under the amended venue section, the fact that all necessary elements of a particular offense have taken place in one venue does not preclude the prosecution of that offense in another venue if the offense has been continued there.

Legislative history to the amendment makes clear congressional dissatisfaction with another aspect of the Johnson decision. The House Report which accompanied the bill that was ultimately enacted provided in part as follows:

The last paragraph of the revised section was added to meet the situation created by the Supreme Court of the United States in United States v. Johnson, 1944, [323 U.S. 273] 65 S.Ct. 249, 89 L.Ed. 236, which turned on the absence of a special venue provision in the Dentures Act, section 1821 of this revision. The revised Section removes all doubt as to the venue of continuing offenses and makes unnecessary special venue provisions except in cases where Congress desires to restrict the prosecution of offenses to particular districts____

See H.R.Rep. No. 304, 80th Cong., 2d Sess., reprinted in U.S.Code Cong.Serv., Crimes and Criminal Procedure 2625 (1948). In effect, legislative history indicates that the amendment was intended to reverse Johnson’s presumption against multi-venue in cases where there is no specific venue provision, and demonstrates a congressional policy in favor of broad venue.

Against this background, it is my belief that unlawful use of the telephone is a continuing offense that may be prosecuted in any district in which a communicant is located. In United States v. Barnes, 681 F.2d 717 (11th Cir.1982), the court of appeals upheld against a venue attack a conviction in the Middle District of Florida for illegal use of the telephone. The defendant had placed the call from North Carolina to the Middle District of Florida. Id. at 724. Arguing by analogy to mail offenses, the court held that a section 843(b) offense “is committed for venue purposes both in the district where the call was made and in the district where the call was received.” Id.

Further support is provided by United States v. Andrews, 598 F.Supp. 296 (W.D. Wis.1984), a case strikingly similar to the one at bar, which explicitly recognizes a section 843(b) offense as a continuing one. Defendant, physically outside the western District of Wisconsin, received telephone calls placed within the district. Id. at 297. In holding venue to be proper in the Western District of Wisconsin, the court stated,

[T]he unlawful use of a communication facility is necessarily a continuous offense because it involves communication across both time and space between or among persons at different locations like unlawful use of the mails, the classic continuous offense. The only difference between the communication involved in unlawful use of a communication facility is that the latter occurs much faster.

Id. at 297-98. See also Abrams, Conspiracy and Multi-Venue in Federal Criminal Prosecutions: The Crime Committed Formula, 9 U.C.L.A.L.Rev. 751, 791 (1962) (arguing that statutes incorporating the operative verb “to use” may be subject to a “continuing” interpretation).

Defendant argues that a distinction should be drawn between cases in which the defendant places the call from outside the district and cases in which the defendant receives the call from a person who has initiated the call from the forum district. I find this distinction unpersuasive. Section 843(b) makes unlawful certain uses of communication facilities; neither it nor its legislative history draws a distinction between placing and receiving a call. See H.R.Rep. No. 91-1444, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Ad. News 4566, 4616; United States v. Cordero, 668 F.2d 32, 43 & n. 16 (1st Cir.1981); United States v. Andrews, 598 F.Supp. 296, 298 (W.D.Wis.1984). Thus, it makes no difference for venue purposes whether the defendant or some other individual placed the telephone call underlying the section 843(b) prosecution. Venue lies both in the district where the call is placed and in the district where it is received. Andrews, 598 F.Supp. at 298.

Defendant relies almost exclusively on United States v. Rogers, 575 F.Supp. 246 (N.D.Ill.1983), where the district court held that a telephone call placed by a government informant from the forum district to the defendant in the Bahamas did not support venue for a section 843(b) prosecution in the district from which the informant’s call was placed. In reaching that conclusion, the Rogers court stated it was doubtful that Congress intended section 843(b) to reach a situation involving only the receipt of a telephone call in a foreign country. Id. at 247. The court continued, “It is inconceivable that Congress intended under § 843(b) that a DEA agent may create federal offenses all over the world by simply picking up a telephone in the United States and calling suspected narcotics violators outside the country.” Id. The Rogers court’s reliance on the international character of the phone call distinguishes that case from the instant one. To the extent that Rogers does not turn on its international elements, however, and proceeds on a theory that would draw a distinction between placing and receiving domestic telephone calls, I decline to follow it and opt instead to follow Cordero and Andrews.

Defendant finally argues that policy considerations support dismissal. He contends that to allow venue to lie in this district in this case would be to provide the government with an opportunity to créate venue in a selected district by placing a call from that district to a targeted individual who had absolutely no other contact with that district. Defendant’s argument goes too far. First, the alleged conspiracy that the subject telephone conversation supposedly furthered was centered in this district. Second, even if the facts of this case did suggest blatant forum shopping, a transfer to a more reasonable forum pursuant to Fed.R.Crim.P. 21 would be a more appropriate response than dismissal for improper venue. See Andrews, 598 F.Supp. at 298.

      . The Third Circuit has recognized that the sixth amendment provision is a vicinage clause rather than a venue clause. Instead of establishing a place for trial, it specifies the place from which the jurors are to be selected. See United States v. Passodelis, 615 F.2d 975, 977 n. 3 (3d Cir. 1980). While of academic interest, the distinction has not been regarded as significant. See id.


author: RICE, District Judge.

text:
    Cynthia A. SALINS, Plaintiff, v. CITY OF DAYTON, et al., Defendants.
    No. C-3-83-525.
    United States District Court, S.D. Ohio, W.D.
    July 10, 1985.

      Leslie Landen, Franklin, Ohio, for plaintiff.
    Arthur W. Harmon, Jr., Maureen Pero, Dayton, Ohio, for defendants.
   DECISION AND ENTRY CONDITIONALLY OVERRULING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; FURTHER PROCEDURES ORDERED

RICE, District Judge.

This case is before the Court on Defendant City of Dayton’s Motion for Summary Judgment. Dayton seeks summary judgment on Plaintiff’s claim for relief under Title VII, 42 U.S.C. § 2000e et seq. Dayton argues that Plaintiff’s Title VII claim is time barred by 42 U.S.C. § 2000e-5 because Plaintiff did not initiate this action within 90 days of receiving her notice-of-right-to-sue letter, as required by law. Plaintiff concedes that she did not file her Complaint within 90 days of receiving her right-to-sue letter; however, Plaintiff contends that her failure to do so is excused by the doctrine of equitable tolling because she filed with this Court an application for appointment of counsel and to proceed in forma pauperis within 20 days of receiving her notice-of-right-to-sue letter. Dayton, in turn, contends that the doctrine of equitable tolling has no application herein because the Plaintiff was represented by an attorney throughout the proceedings before the Equal Employment Opportunity Commission (hereinafter “EEOC”). Indeed, the same attorney is co-counsel for Plaintiff in this action.

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court concluded that the time limitations contained in Title VII are not jurisdictional; rather, they are subject to equitable tolling. The Sixth Circuit has long recognized the applicability of the doctrine of equitable tolling to situations wherein a person files an application for the appointment of counsel within the statutory 90-day limitation period. See Ruiz v. Shelby County Sheriff's Department, 725 F.2d 388 (6th Cir.1984); Harris v. Walgreen’s Distribution Center, 456 F.2d 588 (6th Cir.1972). The present case is admittedly distinguishable from Ruiz and Harris because Plaintiff herein (unlike the Plaintiff in those cases) was represented by counsel at the time she filed her application for appointment of counsel. Nevertheless, it is this Court’s opinion that if there was no prejudice to Dayton, the facts and circumstances of the present case command the application of the doctrine of equitable tolling.

When applying the doctrine of equitable tolling, the factors for a court to consider include:

1. Lack of notice of the requirement in question;
2. Lack of constructive notice of the requirement in question;
3. Diligence in pursuing one’s rights;
4. Absence of prejudice to the Defendant;
5. Plaintiff’s reasonableness in remaining ignorant of the requirement in question.

See Wright v. State of Tennessee, 628 F.2d 949, 953 (6th Cir.1980); Abbott v. Moore Business Forms, Inc., 439 F.Supp. 643, 646 (D.N.H.1977); Perazzo v. Top Value Enterprises, Inc., 590 F.Supp. 428, 433 (S.D. Ohio 1984). Herein, in his affidavit, Plaintiff’s attorney candidly admits a certain confusion over the proper procedure for securing appointment of counsel. Plaintiff filed an application for appointment of counsel and request to proceed in forma pauperis within 20 days of receiving her notice-of-right-to-sue letter. This Court did not respond to same until after the 90-day limitation period had run. Once again, considering all of the above factors, particularly the diligence with which Plaintiff pursued her rights, this Court concludes that principles of equitable tolling should apply herein, unless Dayton can demonstrate prejudice.

Notwithstanding the foregoing, the doctrine of equitable tolling should not be applied herein if its application results in any prejudice to Dayton. Prejudice for purposes of the doctrine of equitable tolling means the disposal of evidence and the inaccessibility of witnesses, the dimming of recollections and other disadvantages incident to the lapse of time. Cf. Olympia Werke Aktiengesellschaft v. General Electric Co., 545 F.Supp. 598, 614 (W.D.Va. 1982) (laches). Dayton did not address the question of prejudice in its motion. Accordingly, the Court contingently overrules Dayton’s Motion for Summary Judgment. This ruling will become final unless Dayton files an affidavit with this Court, within seven days of the entry of this Decision, demonstrating the prejudice that it suffered as a result of Plaintiff’s failure to timely file her Complaint.

      . The Court acknowledges that many other courts have stated broadly that a Title VII claimant represented by counsel cannot rely on equity to toll the time limitations imposed by Title VII. Perez v. Dana Corp., 545 F.Supp. 950, 953 (E.D.Pa.1982) and cases cited therein. However, in none of these cases did a claimant file an application for appointment of counsel well within the statutory 90-day limitation period.


text:
    W. Martin HASKELL, Plaintiff, v. WASHINGTON TOWNSHIP, et al., Defendants.
    No. C-3-83-240.
    United States District Court, S.D. Ohio, W.D.
    July 11, 1985.

      John A. Cumming, Atty. at Law, Dayton, Ohio, Roy Lucas, Fairfax, Va., for plaintiff.
    John R. Koverman, Dayton, Ohio, for defendants.
   DECISION AND ENTRY OVERRULING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT; DECISION AND ENTRY OVERRULING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

RICE, District Judge.

In this action, the Plaintiff, a medical doctor, challenges the constitutionality of Washington Township Resolution # 81-248 and seeks damages for actions undertaken by the Defendants herein which allegedly deprived the Plaintiff of equal protection and due process. In a prior Decision, this Court concluded that Plaintiff does not have standing to challenge the constitutionality of Resolution #81-248, 588 F.Supp. 528 (1984). See Doc. # 31. This cause is now before the Court on Plaintiff’s Motion for Partial Summary Judgment (Doc. # 15) and Defendants’ Motion for Partial Summary Judgment (Doc. # 36),

These motions address Plaintiff’s allegations that actions taken by the Defendants prior to the adoption of Resolution # 81-248 violated Plaintiff’s rights to equal protection and due process. See Plaintiff’s First Amended Complaint (Doc. # 40) at ¶ 53. Briefly stated, these contentions involve Plaintiff’s allegation that the Defendants discriminatorily applied the Washington Township zoning resolution parking space requirements in order to prevent Plaintiff from opening a medical facility in the Paragon Office Building at which Plaintiff planned to perform abortions and other medical services.

In his Motion for Partial Summary Judgment (Doc. # 15), Plaintiff seeks partial summary judgment on his claim that the Defendants deprived him of procedural due process when the Washington Township Trustees adopted a resolution on October 18, 1981. The resolution provides, in pertinent part:

RESOLVED, that William P. Falknor, Attorney at Law, be and he is hereby employed as legal counsel, and is authorized to secure and assemble the needed factual information; to prepare the appropriate legal papers, and to proceed with the initiation of legal proceedings in the Common Pleas Court of Montgomery County, Ohio, against the owner of the [Paragon Office Building] to enjoin it from violating the off-street parking provisions of the Washington Township Zoning Resolution.

The Court will accept for the sake of argument that Plaintiff, as a lessee, had a protectible property interest and that in adopting the above quoted resolution, the Defendants failed to afford Plaintiff minimal due process by not providing Plaintiff notice and an opportunity to be heard. Nonetheless, the Plaintiffs request for summary judgment is fatally flawed. In no way does the Plaintiff explain to the Court, nor is the Court able to deduce, how the Defendants’ action deprived Plaintiff of property. In other words, the Court cannot conceive of what incident of ownership Plaintiff had prior to the adoption of the above quoted resolution that he did not have thereafter. The ownership of an interest in property has been described as a bundle of rights. Plaintiff has failed to explain to this Court how the adoption of the above quoted resolution diminished his bundle of rights.

Furthermore, property interests are created and their dimensions defined by state law. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Plaintiff does not argue that his interest in property created by state encompassed the right to be free from the threat that township authorities would retain counsel to investigate possible violations of zoning regulations and to enjoin those that are discovered. Certainly, if this was part of Plaintiff’s property interest, he would have suffered a deprivation of property. However, under state law, township officials are authorized to do just as they have done. See Ohio Rev.Code § 519.24. Therefore, Ohio has negatively defined Plaintiff’s property interest as not including what he “lost.”

Based on the foregoing, the Court concludes that Plaintiff has not demonstrated that he is entitled to judgment as a matter of law on his claim based on a deprivation of procedural due process because he has not established that the Defendants deprived him of a property interest created by state law. Accordingly, the Court hereby overrules Plaintiff’s Motion for Partial Summary Judgment (Doc. # 15).

Defendants have also moved for partial summary judgment, see Doc. # 36, in opposition to which Plaintiff has declined to file a memorandum. In this motion, Defendants contend, for a number of reasons, that Plaintiff’s claim of discriminatory application of the zoning ordinance is without merit. However, only one of these reasons is addressed in their memorandum. Therefore, the Court will address that contention alone.

Defendants argue that the question of whether they discriminatorily applied the township zoning ordinance does not raise a genuine issue of fact. Defendants contend that they did not apply the township zoning resolution in a discriminatory fashion and that, consequently, they are entitled to judgment as a matter of law.

The Court does not agree. Defendants’ evidence (the affidavit of Walter Buchanan and exhibits attached thereto, and the deposition of Frank McGee) establishes at most that there were insufficient parking spaces at the Paragon Office Building. The Defendants do not address the basic thrust of Plaintiffs complaint that the zoning ordinance was applied against him in a discriminatory manner because he planned to perform abortions at the Paragon Office Building. It is hornbook law that a government may not apply a facially neutral statute in a discriminatory fashion so as to deprive a person of equal protection of the laws. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

Accordingly, the Court hereby overrules Defendants’ Motion for Partial Summary Judgment (Doc. # 36).

      . Resolution #81-248 limits providing abortion services to areas zoned B-3. Plaintiff alleges in his First Amended Complaint (Doc. #40) that physicians providing other medical services are not limited to areas zoned B-3.

      . The two motions for partial summary judgment were directed at Plaintiff’s Complaint (Doc. # 1) rather than Plaintiff’s First Amended Complaint (Doc. #40). However, Plaintiffs First Amended Complaint differs from his Complaint only in that the First Amended Complaint contains allegations intended to show that the Plaintiff has standing to challenge the constitutionality of Resolution #81-248. Therefore, the Court deems it appropriate to rule on the motions for partial summary judgment.
      Two other motions are presently pending herein. Plaintiff's Renewed Motion for Partial Summary Judgment (Doc. #41) and Plaintiff’s Motion for Preliminary Injunction (Doc. #29). Both of these motions address Plaintiffs claim that Resolution #81-248 is unconstitutional. The renewed motion for summary judgment is not at issue. Plaintiffs motion for injunctive relief is dependent upon the grant of the renewed motion for summary judgment; therefore, this motion for a preliminary injunction is also not at issue.