SUPPLEMENTAL BRIEF OF THE CITY OF CORINTH, MISSISSIPPI

Transcription

1 E-Filed Document Apr :19: CA SCT Pages: 24 IN THE SUPREME COURT OF MISSISSIPPI NO TS ALESA DAWN CRUM PLAINTIFF-APPELLANT vs. THE CITY OF CORINTH, MISSISSIPPI DEFENDANT-APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF ALCORN COUNTY, MISSISSIPPI SUPPLEMENTAL BRIEF OF THE CITY OF CORINTH, MISSISSIPPI ORAL ARGUMENT IS REQUESTED MITCHELL O. DRISKELL, III - BAR # mdriskell@danielcoker.com DANIEL, COKER, HORTON & BELL, P.A. 265 SOUTH LAMAR BOULEVARD SUITE R POST OFFICE BOX 1396 OXFORD, MISSISSIPPI PHONE: (662) FAX: (662)

2 IN THE SUPREME COURT OF MISSISSIPPI NO TS ALESA DAWN CRUM PLAINTIFF-APPELLANT vs. THE CITY OF CORINTH, MISSISSIPPI TABLE OF CONTENTS DEFENDANT-APPELLEE PAGE: TABLE OF CONTENTS i STATEMENT REGARDING ORAL ARGUMENT ii TABLE OF AUTHORITIES iii I. INTRODUCTION II. ARGUMENT A. Brantley v. Horn Lake Supports Affirming the Trial Court Because the Statutes and Regulations Relied on by Crum Do Not Create Private Causes of Action B. Crum Anticipated and Presented the Issues that Should Be Addressed Under Brantley and Remand is Unnecessary C. Crum Did Not Raise Any Statute, Regulation or Other Binding Directive at the Trial Court Level that Create Ministerial Duties Related to Her Claims D. Brantley Establishes That State Water Pollution Laws Do Not Create Ministerial Duties Applicable to Crum s Claims E. Municipal Right-of-Way Maintenance is a Discretionary Function Under Brantley III. CONCLUSION IV. CERTIFICATE OF SERVICE i

3 STATEMENT REGARDING ORAL ARGUMENT This appeal involves the intersection of two complex areas of the law discretionary function immunity and water pollution regulation. Very substantial and important issues relating to the public s liability for the operation and maintenance of sewage systems are involved. Appellee respectfully suggests that oral argument will be helpful to the Court and significantly aid the decisional process. Appellant has also requested oral argument. ii

4 TABLE OF AUTHORITIES CASES PAGE Boroujerdi v. City of Starkville, No CA SCT, 2015 Miss. LEXIS 84 (Feb. 12, 2015) , 3, 9, 10 Brantley v. City of Horn Lake, 152 So.3d 1106 (Miss. 2014) passim City of Natchez v. De La Barre, 145 So. 3d 729 (Miss. Ct. App. 2014) Doe v. Miss. Dep t of Corrections, 849 So. 2d 350 (Miss. 2003) , Evergreen Apartments, LLC v. City of Tupelo, 2014 U.S. Dist. LEXIS (N.D. Miss. Aug. 23, 2014) , 12, 13 Farris v. Miss Transp. Comm n, 63 So. 3d 1241 (Miss.Ct.App. 2011) Fortenberry v. City of Jackson, 71 So. 2d 1196 (Miss. 2011) , 10 Hankins v. City of Cleveland, 90 So. 3d 88 (Miss. Ct. App. 2011) Little v. MDOT, 129 So. 3d 132 (Miss. 2013) passim Miss. Dep t of Mental Health v. Hall, 936 So. 2d 917 (Miss. 2006) Tedford v. Dempsey, 427 So. 2d 410 (Miss. 1983) Tunica County v. Gray, 13 So. 3d 826 (Miss. 2009) Whaley v. Parson, 66 So. 3d 722 (Miss.Ct.App. 2011) Wright v. Lee County, 71 So. 3d 1246 (Miss.Ct.App. 2011) OTHER AUTHORITIES 40 C.F.R Clean Water Act: A Summary of the Law, Congressional Research Service, , RL30030 (2010) Dailey, May 30, 2003, AG Op , 2003, Miss. AG LEXIS iii

5 MDEQ Guidance for the Design of Publically Owned Wastewater Facilities and DWSIPLF Funded Drinking Facilities Miss. Admin. Code A , 15 Wastewater Treatment Facilities Operations and Training Manual, 5 th Ed. (2007)... 6, 7, 8, 11 STATUTES 33 U.S.C Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann iv

6 I. INTRODUCTION This matter arises out of two sewage system overflows that occurred at Crum s property. Crum alleges Corinth was negligent in its operation and maintenance of its sewage system. The trial court dismissed Crum s suit based on Corinth s discretionary function immunity for sewage system operation and maintenance. This Honorable Court granted Corinth s request for the parties to submit supplemental briefing on the application of the discretionary function immunity analysis set forth in Brantley v. City of Horn Lake, 152 So. 3d 1106 (Miss. 2014). This Court recently held that the creation and maintenance of a sewer system is presumptively discretionary and entitled to immunity. Boroujerdi v. City of Starkville, No CA SCT, 2015 Miss. LEXIS 84 (Feb. 12, 2015). The issue of the present matter, therefore, is whether Crum rebutted that presumption at the trial level. If this Court considers arguments not raised before the trial court, the issue is whether Corinth s duty to not discharge pollutants in excess of allowable amounts into specified waters governed by water pollution laws is implicated by Crum s residential, non-water related claim. II. ARGUMENT A. Brantley v. Horn Lake Supports Affirming the Trial Court Because the Statutes and Regulations Relied on by Crum Do Not Create Private Causes of Action. Crum argues on appeal that discretionary function immunity does not apply because ministerial duties are created by the Federal Water Pollution Control Act ( Federal Water Act or Clean Water Act ), the Mississippi Air and Water Pollution Control Law ( State Water Act ) and/or the regulations promulgated under the State Water Act ( MDEQ Regulations ). Both before and after Brantley, these authorities do not create duties actionable in a private cause of action. Crum s remedy was an administrative action, and Brantley does not change this dispositive fact. Page 1 of 19

7 The first step in any negligence action is determining whether or not an actionable duty exists. Miss. Dep t of Mental Health v. Hall, 936 So. 2d 917, 922 ( 7) (Miss. 2006). Where the alleged duty is based on statute, the Court must first determine if the statute creates a private cause of action. Doe v. Miss. Dep t of Corrections, 849 So. 2d 350, 355 (Miss. 2003); Tunica County v. Gray, 13 So. 3d 826, 829 (Miss. 2009). The cited water pollution authorities do not create a private cause of action. 1 The mere fact that a statute was violated will not support a claim where no private cause of action exists. Tunica County, 13 So. 3d at 829. Any duties established by the cited water pollution authorities are not actionable by Crum in a private cause of action. Recently, in Boroujerdi v. City of Starkville, supra, this Court applied Brantley and held that the broad function of creating and operating a municipal sewage system is discretionary. Boroujerdi, supra, at *13-14 ( 18-19) (relying on Miss. Code Ann ). Under Brantley, once broad discretionary immunity is established, as it is herein, it is then necessary to examine any narrower duty that may have formed the basis of the claim against the governmental entity to determine whether that particular duty has been rendered discretionary or ministerial. Brantley, 152 So. 3d at 1113 ( 22) (emphasis added). Any duties established by the water pollution authorities are unactionable by Crum and will not support [her] claim. Tunica County, 13 So. 3d at 829. These water pollution duties could not have formed the basis of the claim. Under Brantley it is not necessary to analyze whether those duties are discretionary or ministerial. It simply does not matter because those duties cannot form the basis of the claim. In the absence of any actionable ministerial duty created by these water pollution authorities, Corinth s discretionary function immunity is intact. See Boroujerdi, supra, *13-14 ( 18-19). 1 See Corinth s Appeal Brief, pp , for argument on this issue. Page 2 of 19

8 Duties that cannot form a basis of the claim (such as non-actionable duties) do not play a part in the Brantley discretionary function analysis. Therefore, even if the trial court s methodology was inconsistent with Brantley, the same result must be reached when applying Brantley. Crum s claims must be dismissed. 2 B. Crum Anticipated and Presented the Issues that Should Be Addressed Under Brantley and Remand is Unnecessary. In Brantley and Little v. Miss. Dept. of Transp., 129 So. 3d 132 (Miss. 2013), the Court abolished the public policy function test, and in Brantley the Court articulated the current discretionary function immunity analysis. The Little-Brantley test requires the Court to first identify the broad function involved and then determine if that broad function is discretionary. Brantley, 152 So. 3d at 1114 ( 26) The broad function is discretionary if the governmental entity can choose to engage in that function or not. Id. at 1113 ( 20). The broad function of creating and operating a municipal sewage system is discretionary. Boroujerdi, supra, at *13-14 ( 18-19) (relying on Miss. Code Ann ). Once discretion in the broad function is established by the governmental entity, the burden then shifts to the plaintiff to rebut the application of discretionary function immunity with proof that another statute or regulation applies and makes any narrower function involved ministerial. 3 Brantley, 152 So. 3d at 1115 ( 28). When analyzing the narrower function, the Court must determine whether a statute, regulation or other binding directive renders that particular [narrow] 2 See Whaley v. Parson, 66 So. 3d 722, 725 (Miss.Ct.App. 2011) (holding judgment of the trial court must be affirmed if judgment can be affirmed for any reason); Tedford v. Dempsey, 427 So. 2d 410, 418 (Miss. 1983) (recognizing Court s practice of affirming trial court s holding on alternate grounds). 3 Because sovereign immunity attaches when the governmental function involved is discretionary, plaintiff bears the burden of proving that the narrower function or duty at issue has lost its discretionary-function immunity. Brantley, 152 So. 3d at 1115 ( 28). Page 3 of 19

9 duty a ministerial one, notwithstanding that it may have been performed within the scope of a broader discretionary function. Id. at 1115 ( 26). Crum actually argued at the trial court level that water pollution regulations render sewage system operation ministerial. Therefore, although the trial court proceedings took place before Little and Brantley, Crum followed the Little-Brantley framework in the issues she presented to the court for consideration. Brantley issues were presented, the trial court correctly decided those issues and dismissal should be affirmed. Crum relied on Fortenberry v. City of Jackson, 71 S0. 3d 1196 (Miss. 2011), in support of her argument that water pollution regulations render sewer system operation ministerial. Fortenberry provides, in pertinent part: The plaintiffs alleged no law or regulation established by the MDEQ which sets forth a specific procedure for operating and maintaining sewage systems. Moreover, no allegations were made that the City is in violation of any state or federal regulation or law or of any of its waste-removal and treatment permits. Accordingly, the decision remains a discretionary function. Fortenberry, 71 So. 3d at Crum argued that the City of Jackson s operation and maintenance of its sewer system remained a discretionary function in Fortenberry only because plaintiff therein did not allege any law or regulation that provided specific operational procedures that were violated. Crum then alleged regulatory violations in her Response to Corinth s Motion to Dismiss and argued that these allegations defeated Corinth s assertion of discretionary function immunity according to Fortenberry. In other words, Crum argued that, while the broad function of sewer operation may be discretionary, other binding directives rendered narrower functions ministerial. This is exactly the argument that Little and Brantley instruct plaintiffs to assert to rebut the discretionary immunity provided to overarching discretionary functions like sewer system operation. It is unnecessary to remand this matter back to the trial court for consideration of arguments that Page 4 of 19

10 should be raised under Little and Brantley, the arguments have already been made. Moreover, there is nothing in the record to suggest that the trial court did not give Crum the opportunity to satisfy her burden of proving that the narrower function or duty at issue has lost its discretionary-function immunity under Brantley. See Brantley, 152 So. 3d at 1115 ( 28). The record reflects the following basis for the trial court s dismissal: THIS COURT finds and concludes that this matter is governed by and subject to the provisions of the Mississippi Tort Claims Act. This Court finds and concludes that the City of Corinth has not waived immunity for the claims asserted because those claims are based on the exercise or performance or the failure to exercise or perform a discretionary function or duty. This finding and conclusion is made consistent with this Court s ruling from the Bench on September 16, (R. 133, R.E. 47.) The trial court s ruling from the bench was not designated as part of the record by Crum to be considered as grounds for reversal. There is no indication in the record that the Court did not accept the premise that other statutes, regulations and binding directives can transform a discretionary function into a ministerial function, as the Little and Brantley decisions provide. The record does not reflect that the trial court found it legally impossible for aspects of sewer system operation to be rendered ministerial by another authority and, therefore, found it unnecessary to examine the authorities raised before it by Crum. The record does not in any way, shape or form suggest that the trial court s dismissal is inconsistent with Little-Brantley discretionary function analysis. C. Crum Did Not Raise Any Statute, Regulation or Other Binding Directive at the Trial Court Level that Create Ministerial Duties Related to Her Claims. Under Brantley, a particular narrow function within a broad discretionary function can be Page 5 of 19

11 rendered ministerial by statute, regulation or other binding directive. Brantley, 152 So. 2d at 1115 ( 26). Crum must start by identifying a narrower duty that may have formed a basis of the claim. Id. at 1113 ( 22). Brantley requires that the narrower function relied on by Crum be at issue. Id. at 1115 ( 28). And Brantley advises courts to examine only those narrower functions or duties underlying the claim at issue. Id. at 1117 ( 36). At the trial court level, Crum identified manhole cover maintenance as the narrower duty, and attempted to prove that manhole cover maintenance was a ministerial function under a MDEQ training manual. The trial court s finding of discretionary function immunity in the face of this argument must be affirmed under Brantley. In response to Corinth s Motion to Dismiss, Crum argued that Corinth violated duties set forth in the the MDEQ s Wastewater Treatment Facilities Operations and Training Manual 5 th Edition 2007" ( Training Manual ), and the Training Manual was the only specific authority Crum alleged was violated at the trial court level. Crum argued that the Training Manual had the force of a federal regulation since the manual was a MDEQ publication and MDEQ s authority flowed from the Clean Water Act. Specifically, Crum argued that the Training Manual required continuous and routine inspection, and prompt repair, of manhole covers. In response to Crum s reliance on the Training Manual, Corinth showed that the Training Manual, by its own terms, was not intended to create legal duties or requirements, ministerial or otherwise, and did not do so. (R ; R.E ). Rather, the Training Manual was intended to, and all it did was, identify goals and principles. (Id.) The Brantley Court said that courts must determine whether a statute, regulation or other binding directive renders that particular [narrow] duty a ministerial one. Id. at 1115 ( 26). The Training Manual is not statute or regulation. And it does not contain binding directives. Instead, it provides guidance and instruction. The Training Manual is not the kind of government Page 6 of 19

12 publication that can render a function ministerial under Brantley. In Evergreen Apartments, LLC v. City of Tupelo, 2014 U.S. Dist. LEXIS (N.D.Miss. Aug. 23, 2014), Evergreen, the owner of an apartment complex, sued Tupelo alleging that Tupelo was negligent in the design, operation and maintenance of its sewer system and that Tupelo s negligence proximately caused sewage backup problems at its apartment complex. Id. at *9. Tupelo raised discretionary function immunity in a Rule 12 Motion to Dismiss. Id. at *2, 11. In a pre- Brantley decision, the district Court found that Fortenberry allowed for the possibility that MDEQ regulations could render sewage system operation ministerial, and addressed the statutes, regulations and other authorities raised by Evergreen. Id. at * Thus, the District Court inadvertently performed a Brantley analysis, and the District Court s decision is instructive herein. Evergreen argued that the Mississippi Department of Environmental Quality Guidance for the Design of Publically Owned Wastewater Facilities and DWSIRLF Funded Drinking Water Facilities ( MDEQ Guidance ) rendered Tupelo s sewage system operation ministerial. Id. at *24. Because this publication identified itself as a guide and not a regulation or standard, the District Court concluded that the MDEQ Guidance did not bind Tupelo and did not limit Tupelo s discretion. Id. at * The same conclusion must be reached under Brantley regarding the Training Manual relied on by Crum. Again, the Training Manual expressly states that it provides guidance and instruction and is not intended to be an operation and maintenance manual. Brantley requires a statute, regulation or other binding authority to create ministerial duties. The Training Manual falls into none of these categories. It simply does not contain binding directives. The trial court correctly rejected this argument under the Brantley analysis because, by its own terms, the Training Manual provides guidance, not binding directive necessary to carve out a ministerial duty from a broad discretionary function. Therefore, the trial court s pre-brantley rejection of Crum s Page 7 of 19

13 Training Manual argument should be affirmed under Brantley. Crum s appeal should end with the Training Manual issue, as the Training Manual was the only authority Crum alleged that Corinth violated in briefing before the trial court. Crum did, however, make vague reference to federal regulations in her trial court briefing. It is clear that she referred to federal law only in an attempt to bootstrap the Training Manual to the level of a federal regulation. 4 However, if her argument invoked the Clean Water Act in its entirety, dismissal is still proper under Brantley. First and foremost, any duties created by the Clean Water Act are not at issue and are not underlying the claim, as required by Brantley to create relevant ministerial duties. Brantley, 152 So. 3d at 1115 ( 28), 1117 ( 36). As set forth in detail in Corinth s Brief, the Clean Water Act applies only to navigable waters; it does not apply to the environment in general nor underground water pollution. 5 The pollution of navigable waters is simply not at issue in this case. Brantley states it is only necessary to examine narrower duties that may have formed the basis of the claim to determine whether that particular duty has been rendered ministerial. Id. at 1113 ( 22). Crum s claim does not involve navigable water, and the Clean Water Act s duties, which are specifically limited to the pollution of navigable water, do not form a basis of her claim. Whether or not any particular duty related to navigable water pollution abatement is ministerial is irrelvant to the discretionary function analysis described in Brantley. Restated, while Corinth may not have the discretion to pollute navigable water under the Clean Water Act, this case does not implicate this 4 Crum argued that the overflow was caused by a dislodged manhole cover, and the Training Manual created ministerial manhole-related duties because it was allegedly promulgated under the authority of federal regulations. 5 See Corinth s Brief, pp Page 8 of 19

14 limitation on Corinth s discretionary authority. In Borourgerdi, the Court suggested that the Clean Water Act might create ministerial duties related to Boroujerdi s sewage overflow claim. The Boroujerdi decision twice referred to effluent limitations of the Clean Water Act. Borourgerdi, supra, *14, 15 ( 20). Effluent Limitations are any established restriction on pollutants which are discharged into navigable waters. 33 U.S.C.S. 1362(11). Because the term effluent limitations is specifically limited to discharges into navigable waters, the references to effluent limitations suggest the Court s acknowledgment of the Clean Water Act s limited application to navigable waters. 6 The Court further stated that the function of maintaining a sewage system to maintain compliance with the [Clean Water] Act is a ministerial function that is set within the larger discretionary function of general sewage creation and maintenance. Id. at *15 ( 20) (emphasis added). Corinth assumes that the Boroujerdi case involved allegations of pollution of navigable waters, which led the Court to find the Clean Water Act applicable to that case. If Boroujerdi did not involve navigable water, the Clean Water Act would be inapplicable. Crum s case does not involve pollution of navigable water. Crum s claim, therefore, does not allege noncompliance with the Clean Water Act, and the Clean Water Act provides no applicable ministerial duties to her claim. Under Brantley, Crum must start by identifying a narrower duty that may have formed a basis of the claim. Brantley, 152 So. 3d at 1113 (22). Crum s case does not involve any discharge into navigable waters, and, therefore, any narrower sewage system duties created by the Clean Water Act cannot logically or legally form a basis for her claim. The Clean Water Act does not even 6 The Boroujerdi Court also stated the Clean Water Act makes it unlawful to discharge raw sewage into the environment. Supra, *14 ( 20) (emphasis added). However, the Clean Water Act s scope is specifically limited to navigable waters, which is a distinct sub-category of the environment in general. Navigable waters does not even include underground water, the pollution Crum alleges in her appeal. Page 9 of 19

15 attempt to create binding directives relating to general environmental pollution nor underground water pollution. The trial court s rejection of a Clean Water Act argument, if the argument was made at all, must be affirmed because the Clean Water Act is inapplicable to Crum s claim. Second, the Clean Water Act does not create any day-to-day, operational ministerial duties under Brantley because it does not provide binding directives on operation. 7 The Clean Water Act is a set of goals and policies of Congress, and it does not provide a set of standards that a municipality must follow in operating and maintaining its sewage system. Fortenberry, 71 So. 3d at The Clean Water Act defers to the states and their respective municipalities in deciding how to prevent and eliminate pollution. Id. As one commentator explains, Certain responsibilities are delegated to the states, and the act embodies a philosophy of federal-state partnership in which the federal government sets the agenda and standards for pollution abatement, while states carry out the day-to-day activities of implementation and enforcement. Claudia Copeland, Clean Water Act: A Summary of the Law, Congressional Research Service, , RL30030, unnumbered page titled Summary, April 23, 2010 (cited in Borourjerdi, supra, 20) (emphasis added). Certainly inspecting for and repairing manhole cover damage is a day-to-day activity. See Evergreen Apartments, supra, *25 (holding Clean Water Act s goals and policies do not create ministerial operational duties). The goals and policies of the Clean Water Act are not operational standards. They are not the kind of instruction Brantley called binding directives. These goals and policies do not transform Corinth s day-to-day activities into ministerial functions. The only binding directives of the Clean Water Act are the water quality standards contained therein. Because Crum s claim 7 The exception is the binding directives related to discharges into navigable waters, the only ministerial duties established by the Clean Water Act. Page 10 of 19

16 does not contain an allegation that Corinth polluted any navigable water in excess of quality standards, no ministerial duty created by the Act is at issue. To summarize the issue(s) presented to the trial court, the Training Manual is not a binding directive. The Clean Water Act applies to impermissible discharges into navigable waters. Reviewing the record and trial court s decision in light of Brantley reveals no error, and the trial court must be affirmed. D. Brantley Establishes that State Water Pollution Laws Do Not Create Ministerial Duties Applicable to Crum s Claims. Crum did not allege any violation of the State Water Act nor any MDEQ Regulations at the trial court level. She was, however, aware of the MDEQ permitting process, and generally described the permitting process when setting up her Training Manual argument. But no permit violation was raised for the trial court to decide. Even if the mere mention of permitting sufficiently raised the issue for the trial court s consideration, the trial court s finding of discretionary function must nevertheless be affirmed under Brantley. To determine if the State Water Act or MDEQ Regulations affect the Brantley discretionary function analysis, the first step is defining any ministerial duties established by those authorities. Brantley, 152 So. 2d at 115 ( 28). The Little Court stated, Section (1)(d) requires us to look at the function performed not the acts that are committed in furtherance of that function to determine whether [discretionary function] immunity exists. Little, 129 So. 3d at 136 (emphasis in original). The Brantley Court explained, it is the nature of the function that must be determined, and not the nature of the act. Brantley, 152 So. 3d at ( 31) (emphasis added). As set forth below, the function required by the MDEQ Regulations is the prevention of contamination of the state s water in excess of certain contamination limitations. Crum does not assert a claim Page 11 of 19

17 alleging that Corinth contaminated the state s water in excess of contamination limitations. After determining the duty established by the state law, the analysis then turns to whether that duty forms a basis of the claim. Brantley, 152 So. 3d at 1113 ( 22). In other words, are any ministerial duties created by the MDEQ Regulations at issue and are they underlying the claim. Id. at 1115 ( 28), 1117 ( 36). Little and Brantley represent an effort to give effect to the plain language of discretionary function immunity. Id. at 1112 ( 16). The plain language of the MDEQ Regulations should likewise be given effect, and the plain language shows that any ministerial duties created relate to discharging pollutants into water, a duty that is not at issue in Crum s claim. See Evergreen Apartments, supra, *26-27 (finding MDEQ Regulations inapplicable to claims not involving the discharge of pollution into water). Miss. Code Ann (2)(a) Crum claims that she alleges a violation of Miss. Code Ann (2)(a) which provides: It is unlawful for any person to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state. Pollution is a defined term and means the discharge of contaminates either without a permit or in violation of the limitations of a permit (1)(g). Waters of the state is also a defined term, and, unlike the Federal Clean Water Act, the State Water Act specifically governs underground water (1)(f). The State Water Act applies to only to underground sources of drinking water as defined within the regulations of the Federal Safe Drinking Water Act (g). Taking into account the statutory definitions of pollution and waters of this state, Section (a) creates two duties, neither of which form the basis of Crum s claims. Corinth had the duty to (1) not discharge contaminants in excess of the permit limitations into an underground source of drinking water and (2) not place wastes where they are likely to cause contamination in Page 12 of 19

18 excess of the permit limitations in an underground source of drinking water. Section (a), therefore, creates a ministerial duty to prevent water contamination, a duty that is not at issue and does not form a basis of Crum s claim for damages. Section (a) does not create a general ministerial duty to prevent the overflow of sewage in a private residence or yard. The State Water Act is much more specific and narrowly tailored to achieve its objective of water that does not exceed contamination limitations. All Crum has alleged are two private overflows in her house, which is understandable because that was all that occurred. She does not assert a claim alleging the overflows contaminated the state s water. Duties regarding the prevention or abatement of contamination of underground sources of drinking water do not form a basis of the claim as required by Brantley to create applicable ministerial duties. Those duties are not at issue and do underlie Crum s claim. 8 Under Brantley, any ministerial duties created by Section (a) do not operate to erode Corinth s discretionary function immunity to Crum s claim. MDEQ REGULATIONS Like the statute from which they flow, the MDEQ Regulations relate only to the discharge of waste into water that causes contamination above certain standards. Crum s claim does not implicate a breach of this duty. In Evergreen Apartments, the plaintiff alleged sewage system overflows at an apartment complex. Plaintiff alleged the MDEQ Regulation created ministerial duties to prevent these overflows. The District Court rejected this argument. The Court found that the MDEQ regulations were inapplicable, and did not create ministerial duties limiting discretion, because the claim did not involve the discharge of pollution into water in violation of limitation 8 And any such duties were not raised at the trial court level even though Crum relied on related regulatory authority. Page 13 of 19

19 levels. Evergreen Apartments, supra, * The same result must be reached when considering the MDEQ Regulations raised by Crum on appeal. Miss. Admin. Code (A)(18) Permit holders must at all times properly operate, maintain, and when necessary, promptly replace all facilities and systems of collection, treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. (emphasis added) Like the State Water Act generally, this regulation creates duties to prevent the discharge of contamination into water, and does not create general operational duties unassociated with water pollution. For the Brantley analysis of Rule 1.1.4(A)(18), the key part of the rule is to achieve compliance with the wastewater permit. The permit relates only to discharges into State waters. Miss. Admin. Code , Rule 1.1.1(A)(46) (emphasis added). The regulatory scheme is designed specifically to address discharges into water. Moreover, not all discharges into water violate the permit; rather, only those discharges that cause contamination over and above the applicable water quality standards violates the permit. Miss. Admin. Code A.(5). Therefore, Rule 1.1.4(A)(18) can be restated as requiring operation, maintenance and repair so that a discharge violating the applicable water quality standards does not occur. Herein, no such event occurred. Rule 1.1.4(A)(18) does not create a general maintenance and operation duty, rater, the duty is limited to operation and maintenance to prevent unacceptable levels of water contamination. Crum s claims do not allege contamination of the state s water, making the ministerial duty to prevent water contamination inapplicable. Brantley requires the consideration of duties that are at issue and form a basis of the claim. Duties created by Rule 1.1.4(A)(18) are not at issue because Crum s case does not allege water contamination in excess of limitations. Brantley holds that these duties are immaterial to the discretionary function analysis herein. Miss. Admin. Code (A)(19) Permit holders must take all reasonable steps to minimize or prevent any discharge or sludge use or disposal in violation of the permit. Page 14 of 19

20 (emphasis added) Like the previous regulation, Rule 1.1.4A(19) creates duties to comply with the permit. The permit deals with water contamination. Crum s case does not involve the introduction of unacceptable levels of contaminants into waters of the state. She does not assert a claim alleging the overflows contaminated the state s water. Therefore, the duties created by Rule A(19) are not at issue, and Brantley holds that these duties do not affect the application of discretionary function immunity. Miss. Admin. Code (A)(20) The terms and conditions regarding bypass contained in 40 C.F.R (m) are incorporated herein and adopted by reference. (emphasis added) A bypass is the intentional diversion of waste streams from any portion of a treatment facility. 40 C.F.R (m)(1)(i). Crum has not alleged that the Corinth intentionally diverted waste to her property. Any duty to avoid an intentional diversion of waste is not at issue and does not underlie Crum s negligence claim. Under Brantley, this duty plays no role in discretionary function analysis herein. Any ministerial function created by the cited federal and state water pollution laws is specifically tied to water pollution. Only where sewage operation claim arise out of allegations that the operator polluted water and that the pollution of that water caused the damages will the ministerial duties of water pollution laws be implicated under Brantley. Brantley clearly teaches it is the nature of the function and not that act that controls discretionary function analysis. The nature of all functions required by the water pollution laws is the prevention of water pollution, and this is not a water pollution case. Application of Brantley to the claims asserted requires that the trial court s dismissal be affirmed. Page 15 of 19

21 E. Municipal Right-of-way Maintenance is A Discretionary Function under Brantley. Crum argues on appeal that the damaged manhole cover should not be analyzed as sewage system operation and maintenance for discretionary function immunity analysis. The manhole cover at issue was damaged while Corinth was performing road work, maintaining ditch banks with a bushhog. (R. 18, 26, R.E. 17, 25). Crum contends that operating a bushhog is the function to be analyzed. From this premise, Crum argues that the applicable function does not involve public policy, and, therefore, the second prong of the public-function policy test for discretionary function immunity is not satisfied. Crum s argument must be rejected under Little and Brantley. Brantley made it clear, it is the nature of the function that must be determined, and not the nature of the act. Brantley, 152 So. 3d at ( 33). The alleged act of dislodging the manhole cover was an act in furtherance of the function of right-of-way maintenance under Little and Brantley. 9 In Little, the Court reversed the longstanding law that MDOT s duty of right-of-way maintenance was discretionary based on a statutory directive that made the duty ministerial. Little, 129 So. 3d at 138 ( 11). The statutory directive on which the Little decision was based does not apply to municipal right-of-way maintenance, and the longstanding Mississippi law that right-of-way maintenance is a discretionary function controls and mandates that, to the extent that Crum s claims arise out of any acts in furtherance of right-of-way maintenance, Corinth is immune. Wright v. Lee County, 71 So. 3d 1246, (Miss.Ct.App. 2011) (local entity road maintenance is a discretionary function); Farris v. Miss Transp. Comm n, 63 So. 3d 1241, (Miss.Ct.App. 2011), overruled by other grounds by Little (where road maintenance and repair is discretionary, 9 If this act is categorized as sewage system operation, then the analysis of that function previously provided applies and, under that analysis, is discretionary. Page 16 of 19

22 right-of-way maintenance and repair is too). Section gives municipalities the authority to construct, repair and maintain streets, and Section authority extends to the street right-of-way. Dailey, May 30, 2003, A.G. Op , 2003 Miss. AG LEXIS 430. See also Miss. Code Ann (a); (1)(c); (2)(d) (defining street as not only the traveled portion of the property, but the entire width of the dedicated property including the right-of-way). Section does not impose ministerial maintenance and repair duties. See, e.g., City of Natchez v. De La Barre, 145 So. 3d 729, 732 ( 13) (Miss.Ct.App. 2014); Hankins v. City of Cleveland, 90 So. 3d 88, 95 ( 12) (Miss.Ct.App. 2011). 10 Therefore, under Brantley, municipal right-of-way maintenance is a broad discretionary function and there are no statutes making any narrower function ministerial. The trial court s dismissal should be affirmed. III. CONCLUSION The federal and state water pollution regulations probably do eliminate any discretion a sewage system operator has in discharging pollutants into waters governed by those regulations. Crum s case, however, is a different animal. Crum s case does not involve the discharge of pollutants into waters governed by the cited regulations, and any duties created by these authorities are not at issue in her claim. If these authorities create an exception to the general discretionary function immunity that applies to sewage system operation, that exception is not at issue in Crum s case. For this reason alone, the dismissal of Crum s claims against Corinth must be affirmed. The water pollution regulations also do not create private causes of actions, and a violation 10 See also Little, 129 So. 3d at (holding there is no distinction between right-of-way maintenance and road maintenance for discretionary function immunity analysis under statutes governing state highways). Page 17 of 19

23 of those regulations cannot serve as a basis for Crum s claim, even if those regulations create any applicable, ministerial duties. Finally, at the trial court level, Crum only argued duties allegedly created by the MDEQ Training Manual, which is not a binding directive, and binding directives are necessary to create ministerial functions under Brantley. Respectfully submitted, THE CITY OF CORINTH, MISSISSIPPI BY: /s/ Mitchell O. Driskell, III OF COUNSEL MITCHELL O. DRISKELL, III - BAR # mdriskell@danielcoker.com DANIEL COKER HORTON & BELL, P.A. 265 NORTH LAMAR BOULEVARD, SUITE R POST OFFICE BOX 1396 OXFORD, MISSISSIPPI PHONE: (662) FAX: (662) Page 18 of 19

24 CERTIFICATE I, Mitchell O. Driskell, III, counsel for Appellee, pursuant to M.R.A.P. 25, do hereby certify that I electronically filed the foregoing document with the Clerk of the Supreme Court using the MEC System which sent notification of such filing to counsel who have electronically registered with the Court: Tacey Clark Locke, Esq. Tacey Clark Locke, PLLC 311 W. Eastport Street Iuka, Mississippi Matthew Daniel Wilson, Esq. Law Office of Matthew Wilson, PLLC West Main St. Starkville, MS I hereby certify that I have mailed by United States Postal Service the document to: Judge Jim S. Pounds Circuit Court Judge P. O. Box 316 Booneville, MS THIS, the 8th day of April, /s/ Mitchell O. Driskell, III MITCHELL O. DRISKELL, III Page 19 of 19