J. JOSEPH SMITH, Circuit Judge:
Plaintiffs below, an association of owners and operators of tugboats and other vessels responsible for the movement of the bulk of barge traffic in New York and the adjacent states, brought suit in the United States District Court for the Western District of New York, seeking declaratory and injunctive relief against the enforcement of New York Navigation Law § 33-c (McKinney Supp. 1972), McKinney's Consol.Laws, c. 37. That statute prohibits, inter alia, the discharge of sewage into the waters of New York, and requires that marine toilets be equipped with a pollution control device, designed for either the treatment or holding of sewage. Judge Harold P. Burke denied plaintiffs' request for a three-judge court and dismissed the complaint, holding that there was no federal subject-matter jurisdiction, that no substantial constitutional question was presented, and that, in any event, federal courts should abstain until the New York judiciary had an opportunity to interpret section 33-c. We reverse, and remand for the convening of the statutory three-judge court.
Plaintiffs' attack upon section 33-c is a wholesale one. In the main, they contend that section 33-c constitutes an impermissible burden upon interstate commerce. They assert that they are faced with a multiplicity of conflicting pollution standards in the several states and Canadian provinces surrounding New York; that no adequate onshore facilities exist for pumping out sewage; and that present on-board treatment methods involve the use of chemicals which are themselves pollutants. Plaintiffs also claim that the Federal Water Quality Improvement Act, 33 U.S.C. § 1151 et seq., evidences a Congressional intent to preempt the field, and that they should not be put to the significant expense of complying with section 33-c when forthcoming federal standards may require wholly different equipment. Plaintiffs
After receiving a number of affidavits and exhibits from both sides, Judge Burke held a hearing on motions for temporary injunctive relief. At that time, defendants renewed a motion to dismiss the complaint. In a memorandum dated January 12, 1972, Judge Burke denied the motions for injunctive relief and granted the motion to dismiss.
Noting that admiralty jurisdiction will not support a claim for injunctive relief,
Given the jurisdictional basis for the suit, and the fact that plaintiffs clearly seek injunctive relief against the enforcement of a state statute on the grounds of unconstitutionality, a 28 U.S.C. § 2281 three-judge district court is mandated if the constitutional attack is not insubstantial. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). While navigation in the sea of section 2281 substantiality is often unsure, here we have something of a beacon in the Supreme Court's decision in Lake Carriers' Association v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). That case involved an attack by owners of Great Lakes cargo vessels upon a Michigan statute similar to section
According to the district court opinion, 336 F.Supp. at 249, there were five major issues presented by the Lake Carriers' complaint: (1) federal preemption of the field, (2) burden on interstate commerce, (3) interference with uniform maritime law, (4) equal protection and due process, and (5) vagueness. Those are also the major issues here. Unfortunately, neither the Supreme Court nor the Michigan three-judge court identified which of those claims were substantial enough to meet the section 2281 requirements. But since the first issue invokes Supremacy Clause considerations, the convening of the three-judge court must have involved determinations of substantiality wholly apart from it. See Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed. 2d 194 (1965).
Defendants, perceiving the chief thrust of both Lake Carriers' and the present case to be on the Commerce Clause issue, seek to distinguish the New York law from the Michigan one. They claim that since section 33-c (1)(a) exempts from its coverage "passenger or cargo-carrying vessels subject to the Quarantine Regulations of the United States Public Health Service," its impact is wholly intrastate. Consequently, even accepting the substantiality of the Lake Carriers' attack, they characterize the present case as frivolous.
While this distinction may make resolution of this controversy easier than Lake Carriers', it does not make the complaint here insubstantial. First, section 3(1) of the Michigan law, to which a large measure of the Lake Carriers' vagueness argument was directed, reads virtually in haec verba with section 33-c (2)(a). Both prohibit the discharge of materials "which render the water unsightly, noxious or otherwise unwholesome so as to be detrimental to the public health or welfare or to the enjoyment of the water for recreational purposes." Even assuming that the coverage of the New York statute is wholly intrastate in nature, the vagueness argument remains, and the Supreme Court strongly implied, through its decision to abstain, 406 U.S. at 511-512, 92 S.Ct. 1749, that the argument had some merit.
In light of the Lake Carriers' case, which even the minority saw as involving "important" federal questions,
There remains the question of abstention. While a three-judge court may well find Lake Carriers' persuasive authority on the point, the decision to abstain is for the three-judge court, not for the single judge. Abele v. Markle, 452 F.2d 1121 (2d Cir. 1971). We do note, however, that the outcome is by no means preordained. The Supreme Court found abstention justified in Lake Carriers' only by reference to limited "special circumstances," apparently posed by ambiguities in the wording of the Michigan statute. Defendants, who have so strongly here urged the distinctions between the New York and Michigan laws, may well convince the three-judge court of the impropriety of following Lake Carriers' on the abstention point. At any rate, that problem is properly within the purview of the statutory three-judge court.
Consequently, we reverse the judgment below, and remand for the convening of a three-judge court, pursuant to 28 U.S.C. § 2281, to consider the entire complaint, including any Supremacy Clause issues. See Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960); Lake Carriers', supra, 406 U.S. at 504 n. 5, 92 S.Ct. 1749.