tion proposes to "rescind" this appropriation. No such legislation has been introduced in Congress.

22. 20 U.S.C. § 1226, 84 Stat. 166, as amended by P.L. 91-230 (1970), provides that funds appropriated in any fiscal year for any programs administered by the Commissioner of Education shall remain available for obligation and expenditure until the end of such fiscal year, notwithstanding any other provision of law, unless expressly in limitation of the general provisions concerning education (20 U.S.C. § 1221ff.)

FIRST CLAIM

23. Defendant Nixon has not appointed the members of the National Advisory Council on Indian Education, in violation of the trust obligation of the United States to the Indians, in violation of the will of Congress that he appoint such members, and in violation of his duty, mandated by the Constitution, to faithfully execute the laws enacted by Congress.

24. Because of defendant Nixon's illegal failure to appoint the members of the National Advisory Council on Indian Education, the plaintiff, and those they represent, are being illegally denied the benefits of the Indian Education Act. Continued failure and refusal by the defendant Nixon to appoint the members of the National Advisory Council on Indian Education will cause the plaintiffs irreparable injury, for which they have no adequate remedy at law.

SECOND CLAIM

25. The defendants Carlucci, Marland, and Ottina have legally failed to implement the terms and provisions of the Indian Education Act. Specifically: (a) These defendants have failed to promulgate regulations under the Act; (b) These defendants have frustrated the functions of the Office of Indian Education by failing to appoint a Deputy Commissioner of Indian Education; (c) These defendants have made no grant to any local educational agency entitled to payment under Part A of the Act;

(d) These defendants have failed to carry out a program of making grants for the improvement of educational opportunities for Indian children as required by Part B of the Act;

(e) These defendants have failed to carry out a program of making grants for adult education for Indians, as required by Part C of the Act;

(f) These defendants have failed to require assurances of equitable participation of Indian children in school programs of local educational agencies applying for funds under Title I of P.L. 81-874, as mandated by Part A of the Act; (g) These defendants have failed in all other respects to implement the terms and provisions of the Act.

26. By so failing to implement the Act, the defendants Carlucci, Marland, and Ottina are in violation of the trust obligation of the United States to the Indians, in violation of the intent and will of Congress as expressed in the Act, and in violations of their duty, mandated by the Constitution, to faithfully execute the laws enacted by Congress.

27. Because of the defendants Carlucci, Marland, and Ottina's general and specific failures to implement the terms of the Act, the plaintiffs, and those they represent, are being denied the benefits of the Indian Education Act. Continued failure and refusal by these defendants to implement the Act will cause plaintiffs irreparable injury, for which they have no adequate remedy at law.

THIRD CLAIM

28. The plaintiffs allege that defendants Weinberger, Carlucci, Marland, and Ottina have illegally failed to release the funds appropriated by Congress for the implementation of the Indian Education Act in fiscal year 1973, which expires on June 30, 1973. (See attached affidavit of Thomas W. Fredericks.)

29. This failure to release appropriated funds by defendants Weinberger, Carlucci, Marland, and Ottina violates the trust obligation of the United States to the Indians, violates the will of Congress that these funds be expended according to the terms and provisions of the Act in fiscal year 1973, violates their duty, mandated by the Constitution, to faithfully execute the laws enacted by Congress, and is in violation of 20 U.S.C. § 1226.

30. Because of the failure of the defendants Weinberger, Carlucci, Marland, and Ottina to release funds appropriated for expenditure in fiscal year 1973 under the terms and provisions of the Act, the plaintiffs, and those they rep

resent, are being illegally denied the benefits of the Indian Education Act and the money appropriated therefore for fiscal year 1973. Continued failure and refusal by these defendants to release and expend the appropriated funds will cause the plaintiffs irreparable injury for which they have no adequate remedy at law.

WHEREFORE, Plaintiffs pray for a judgment as follows:

1. As to the First Claim:

(a) A declaratory order that the defendant Nixon, by not appointing the members of the National Advisory Council on Indian Education is violating the trust responsibility of the United States to the Indians, is violating the Congressional mandate of the Act that he shall make such appointments, and is violating his constitutional responsibility to faithfully execute the laws of the United States, and

(b) A mandatory injunction ordering the defendant Nixon to appoint the members of the National Advisory Council on Indian Education in sufficient time to obligate the funds appropriated for expenditure pursuant to the term and provisions of the Act in fiscal year 1973.

2. As to the Second Claim:

(a) A declaratory order that the defendants Carlucci, Marland, and Ottina, by failing to implement the Indian Education Act, are violating the trust responsibility of the United States to the Indians, are violating the Congressional mandate that the Act will be implemented, and are violating their constitutional responsibility to faithfully execute the laws of the United States, and

(b) A mandatory injunction ordering defendants Carlucci, Marland, and Ottina to promulgate the regulations under the Act, to appoint a Deputy Com missioner of Indian Education, to grant the entitlements to local education agencies under Part A of the Act, to grant the funds to qualified applicants for the purpose of improving the educational opportunities for Indian children as required by Part B of the Act, to grant the funds for improving the educational levels of adult Indians as required by Part C of the Act, and to require assurances of equitable participation of Indian children in school programs of local education agencies applying for funds under Title I of P.L. 81-874, as mandated by Part A of the Act, and to take any other measures necessary for implementing the Act.

3. As to the Third Claim:

(a) A declaratory order that the impoundment by defendants Weinberger. Carlucci, Marland, and Ottina of the $18,000,000 appropriated by Congress for expenditure in fiscal year 1973 pursuant to the terms and provisions of the Indian Education Act violates the trust responsibility of the United States to the Indians, violates the Congressional mandate of the Act and the appropriations Act, violates the defendants' responsibility, mandated by the Constitution. to faithfully execute the laws of the United States, and violates 20 U.S.C. § 1226. (b) A mandatory injunction ordering the defendants Weinberger, Carlucci, Marland, and Ottina to release and expend by June 30, 1973 (according to the terms and conditions of the Indian Education Act) the $18,000,000 appropriated by Congress for such expenditure in fiscal year 1973. Respectfully submitted.

AFFIDAVIT OF THOMAS W. FREDERICKS

I, Thomas W. Fredericks, hereby depose and swear that I am a lawyer associated with Native American Rights Fund and at a meeting of the National Tribal Chairmen's Association on Thursday, January 18, 1973, in Washington, D.C., I asked Mr. Bradley Patterson, Special Assistant to the President, whether or not the $18,000,000, appropriated by Congress for expenditure pursuant to the terms and provisions of the Indian Education Act in fiscal year 1973 was impounded. Mr. Patterson replied that the money was being impounded, that the President considered such impoundment within his power, that the President did not support the Act or the $18,000,000 appropriation, and that it would take a lawsuit to compel the release of the appropriated funds.

THOMAS W. FREDERICKS.

Subscribed and sworn to before me, this 27th day of January, 1973.

JOAN L. CARPENTER,

Notary Public, my Commission expires July 20, 1975.

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

Complaint, Docket No.

THE CITY OF NEW YORK, ON BEHALF OF ITSELF AND ALL OTHER SIMILARLY SITUATED MUNICIPALITIES WITHIN THE STATE OF NEW YORK, PLAINTIFF,

against

WILLIAM D. RUCKELSHAUS, AS ADMINISTRATOR OF THE U.S. ENVIRONMENTAL AGENCY, DEFENDANT.

ACTION FOR DECLARATORY JUDGMENT and MandAMUS

Plaintiff, The City of New York, by its attorneys, complaining of defendant, alleges:

I. COMPLAINT

1. This is an action for a declaratory judgment and mandamus to compel defendant to comply with the Federal Water Pollution Control Act Amendments of 1972, PL 92-500, 86 Stat. [hereinafter "Act"], by allotting to the State of

New York the amount mandated by section 205 (a) of the Act.

II. JURISDICTION AND VENUE

2. This action is brought pursuant to section 505 (e) of the Act, 5 U.S.C. §§ 701706 and 28 U.S.C. §§ 1361, 2201. This Court has jurisdiction of this action by virtue of 28 U.S.C. §§ 1331, 1332, because this action arises under the laws of the United States, because there is diversity of citizenship between the parties and because the amount in controversy exceeds $10,000, exclusive of interest and costs. This Court also has jurisdiction of this action by virtue of 28 U.S.C. § 1361, because the action is in the nature of mandamus to compel an officer of an agency of the United States to perform a duty owed to the plaintiffs. Finally, this Court has jurisdiction of this action by virtue of section 11-501 (4) of the District of Columbia Code, because the amount in controversy exceeds $50,000, exclusive of interest and costs. An actual and justicable controversy exists between the parties regarding which plaintiffs require mandatory relief, as well as a declaration by the Court of their rights and of defendant's obligations and duties. Venue is properly laid in this Court pursuant to 28 U.S.C. § 1391 (e).

III. THE PARTIES

3. At all times hereinafter mentioned, plaintiff, The City of New York [hereinafter "City"], was and is a municipal corporation organized and existing under the laws of the State of New York. The City's principal office is at City Hall, New York, New York. The City is a "municipality," as that term is defined by section 502 (4) of the Act.

4. At all times hereinafter mentioned, defendant, William D. Ruckelshaus [hereinafter "Administrator"], was and is the Administrator of the United States Environmental Protection Agency. The Administrator is charged by sec tion 101 (d) of the Act with the responsibility of administering the Act. The Administrator performs his official acts (including the act complained of herein) in and is officially a resident of the District of Columbia. The Administrator is not a citizen of the State of New York.

IV. CLASS ACTION ALLEGATIONS

5. By virtue of section 201(g) (1) of the Act the City, and any other municipality (as that term is defined by section 502 (4) of the Act) within the State of New York, may receive directly federal grants for the construction of publicly owned treatment works. The Administrator's refusal to allot to the States. pursuant to section 205 of the Act, the full amount of the sums authorized to be appropriated by section 207 of the Act injures the City and all other municipalities within the State of New York in the same manner. Specifically, the Administrator's failure to allot the sum required by the Act to be allotted to the State of New York significantly limits the number and amounts of the federal grants to the City and such other municipalities which can be obligated by the Administrator. Therefore, this action raises questions of law and fact common to the City and such other municipalities, the City's claims herein are typical of the claims of such other municipalities and the City will fairly and adequately protect the interests of such other municipalities. This action is maintainable as a class action in accordance with Rule 23(b)(1)(A), (b)(1)(B) and (b)(2), Federal Rules of Civil Procedure.

V. STATUTORY PROVISIONS

6. The Act was passed on October 18, 1972, over the veto of the President. 7. Section 101 (a) (4) of the Act states that "it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works" for the treatment of wastes that are discharged into the nation's waters.

8. Title II of the Act (§§ 201-212)-entitled "GRANTS FOR CONSTRUCTION OF TREATMENT WORKS"-sets forth the procedure by which States and municipalities may secure federal financial assistance in the amount of 75 per cent of the cost of municipal sewers and treatment works. As set forth with particularity hereinafter, this procedure provides for the allotment among the States, pursuant to a formula of the $11 billion available for grants to States and municipalities in the current and next succeeding federal years.

9. Section 201(g) of the Act authorizes the Administrator "to make grants to any. . . municipality . . . for the construction of publicly owned treatment works." By virtue of section 203 (a) of the Act a grant-which is made when the Administrator approves a plan for a construction project—is “a contractual obligation of the United States." The Act does not require the Administrator to approve all projects that are submitted to him. Rather, he has broad discretion to determine whether a proposed project satisfies the criteria set forth in section 204; for example, that the applicant can assure proper and efficient operation of the project and that the capacity of the project is such that it will meet the needs to be served.

10. Section 203 (a) provides further that grants to a State or a municipality within the State may be made only "from funds allotted to the State under section 205."

11. Section 205 (a) mandates allotments. It provides:

Sums authorized to be appropriated pursuant to section 207 for each fiscal year beginning after June 30, 1972, shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized, except that the allotment for fiscal year 1973 shall be made not later than 30 days after the date of enactment of the Federal Water Pollution Control Act Amendments of 1972. Such sums shall be allotted among the States by the Administrator in accordance with regulations promulgated by him, in the ratio that the estimated cost of constructing all needed publicly owned treatment works in each State bears to the estimated cost of construction of all needed publicly owned treatment works in all of the States. For the fiscal years ending June 30, 1973, and

June 30, 1974, such ratio shall be determined on the basis of table III of House Public Works Committee Print No. 92-50. Allotments for fiscal years which begin after the fiscal year ending June 30, 1974, shall be made only in accordance with a revised cost estimate made and submitted to Congress in accordance with section 516(b) of this Act and only after such revised cost estimate shall have been approved by law specifically enacted hereafter. 12. Section 207 authorizes appropriations in the amount of $5 billion, $6 billion and $7 billion for the fiscal years 1973, 1974 and 1975, respectively. It provides:

There is authorized to be appropriated to carry out this title, other than sections 208 and 209, for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000, and for the fiscal year ending June 30, 1975, not to exceed $7,000,000,000.

13. By virtue of sections 205 (a) and 207 the Administrator is required to allot among the States $5 billion for the fiscal year 1973 and $6 billion for the fiscal year 1974. No provision of the Act or of any other law affords the Administrator discretion to reduce these allotments, whether by direction of the President or otherwise.

VI. UNLAWFUL ACTS

14. By letter dated November 22, 1972 (Exhibit I) the President directed the Administrator to withhold a portion of the allotments mandated by the Act. That letter says in relevant part:

I stated [in my veto message] that even if the Congress were to default its obligation to the taxpayers through enactment of this legislation, I would not default mine. Under these circumstances, I direct that you not allot among the States the maximum amounts provided by section 207 of the Federal Water Pollution Control Act Amendments of 1972. No more than $2 billion of the amount authorized for the fiscal year 1973, and no more than $3 billion of the amount authorized for the fiscal year 1974 should be allotted.

15. By Regulation promulgated and effective on December 8, 1972, the Environmental Protection Agency stated that, “in accordance with the President's letter of November 22, 1972," it was allotting among the States for the fiscal years 1973 and 1974 "sums not to exceed $2 billion and $3 billion, respectively" (37 Fed. Reg. 26282, § 35.910-1 (a) (1972)), instead of the $5 billion and $6 billion required by the Act.

16. As a result of these reduced allotments, the amounts allotted to the State of New York, available for grants to the State and municipalities of the State, were $221.2 million and $331.7 million for the fiscal years 1973 and 1974, respectively, instead of the $553 million and $663.4 million required by the Act, 37 Fed. Reg. 26282, § 35.910-1(b) (1972).

VII. INJURY

17. By directing the Administrator to allot among the States the sums authorized by section 207 of the Act, Congress intended that certain sums be immediately available in each State for obligation. Although the Administrator has discretion with regard to the obligation of sums after allotment, his discretion is not unlimited and is subject to review under applicable provisions of the Act and other laws. Thus, the Administrator's refusal to allot the sums authorized by section 207 directly injures plaintiffs because it permanently withdraws from availability in New York large portions (60 per cent in fiscal 1973 and 50 per cent in fiscal 1974) of the obligational authority conferred upon him by Congress. Plaintiffs must necessarily reduce the number of treatment works projects for which they can apply to the Administrator for federal grant assistance.

18. Section 205(b)(1) of the Act provides that any sums allotted to a State pursuant to section 205 (a) “shall continue available for obligation in such State for a period of one year after the close of the fiscal year for which such sums are authorized." Section 205 (b) (1) further provides that at the end of such one year period, sums allotted to a State which remain unobligated shall be immediately reallotted among the States by the Administrator. Such reallotments are to be in addition to any other allotments made to the States. Thus, section 205(b) (1) creates a mechanism to make allotted sums continually available, until obligated, to fund federal grants for treatment works. However, the Administrator's refusal to allot the full amount of the sums authorized by section 207 permanently removes such unallotted sums from the operation of the statutory mechanism