USCA1 Opinion

        [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1046



                        TOWN OF BOOTHBAY,



                      Plaintiff, Appellant,



                                v.



                        GETTY OIL COMPANY,

               TEXACO REFINING AND MARKETING, INC.,

                        and TEXACO, INC.,



                      Defendants, Appellees.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. David M. Cohen, U.S. Magistrate Judge]







                              Before



                     Boudin, Circuit Judge,

                 Bownes, Senior Circuit Judge,

                   and Stahl, Circuit Judge.

                                

                                

                                

                                

     David J. Van Dyke, with whom Berman & Simmons, P.A. were on

brief for appellant.

     John J. Aromando, with whom Byrne J. Decker and Pierce Atwood

were on brief for appellees.











OCTOBER 21, 1999







                                

                                



  Per Curiam.  This appeal concerns the question whether,

under Maine law, the doctrine of res judicata bars a town from

suing a private party for environmental damage affecting the town's

water supply insofar as the state has previously litigated and

settled claims of environmental damage against the same private

party for the same environmental harm.  A detailed description of

background facts and issues is set forth in the magistrate judge's

thorough opinion below, see Town of Boothbay v. Getty Oil Co., Civ.

No. 98-125-P-DMC, Mem. Dec. at 2-8 (D. Me. Dec. 7, 1998), to which

we add only a few brief comments addressed to the specific issues

raised on this appeal.

  In this case, the defendants are allegedly responsible

for the discharge between 1939 and 1976 of gasoline from

underground storage equipment at their service station in the Town

of Boothbay, Maine ("the Town") into the surrounding groundwater. 

The Maine Department of Environmental Protection ("the State")

subsequently discovered the contamination and began cleanup

efforts.  In 1990, the State discovered that the contamination had

spread to surrounding wells, and brought suit against the

defendants in Maine Superior Court pursuant to several state

environmental statutes, see Me. Rev. Stat. Ann. tit. 38,  347-A,

541-60, 561-70-G (West 1989 & Supp. 1998), seeking reimbursement

for the costs of cleanup and remediation of the affected area.

  A central demand by the State was that the defendants

finance an extension of the water line from the Town's water supply

to the contaminated properties.  Partway into the litigation,

however, the State determined that other remediation schemes would

obviate the need for a water line extension; it thus dropped its

demand for a water line extension and settled with the defendants

for a lump-sum payment calculated to cover the alternative

remediation costs.  The lawsuit was subsequently dismissed with

prejudice.  The Town evidently did not learn of the settlement

until after it occurred, but it was aware of the State's lawsuit

and opted not to intervene.

  In 1998, subsequent to the dismissal of the state court

action, the Town brought a diversity action against the defendants

in the federal district court in Maine grounded not in the state

environmental statutes but instead in state common law claims of

trespass, negligence, nuisance, and strict liability.  The most

significant component of relief sought by the Town was for the same

water line extension previously sought by the State.  The

magistrate judge granted summary judgment on this claim in favor of

the defendants, reasoning that the same claim for environmental

damage was previously brought and settled by the state, and that

the Town was bound by this resolution because the issue was res

judicata and the Town was in privity with the State.

  The Town also claimed economic damages to itself due to

an alleged reduction in the property tax base.  As to that claim,

the magistrate judge held that it was not barred by res judicata

but that the amount was insufficient to meet the jurisdictional

minimum so the claim should be dismissed without prejudice. 

Neither party has pursued this latter claim on appeal, but the Town

has appealed from the dismissal of its claim for environmental harm

to its citizens because of the inadequate remediation,

specifically, the failure to extend the water line.

  On this appeal, the Town mounts two attacks on the

magistrate's finding that the claim for environmental damage was

barred by res judicata.  The Town's first argument is that there

was a divergence of interests between the State and the Town such

that the former did not adequately represent the latter's interest

in restoring a clean water supply to the contaminated area because

the State was only interested in recouping expenses that it had

incurred.  This, says the Town, precludes a finding of privity. 

See Restatement (Second) Judgments  42(e) & cmt. f (1982). 

However, it appears from the record that the State vigorously

pursued the demand that the defendants finance a water line

extension until it determined that alternative measures would

adequately solve the contamination problem.  The Town fails to

point to any facts in support of its contention that the State

acted in bad faith or unreasonably, and its say-so is insufficient

to make out a showing of misaligned interests or inadequate

representation.

  The Town's second argument is that because the state

environmental statutes under which the State brought the earlier

action reserve to municipalities and others a right against the

state environmental funds as well as a right to bring their own

lawsuits, see Me. Rev. Stat. Ann. tit. 38,  551(2), 569-A(2)

(West 1989 & Supp. 1998), the defense of res judicata is

inapplicable in this context.  It is true that the determination

whether a party is deemed in privity with the state and thus barred

from bringing supplemental claims against a defendant subsequent to

a suit brought by the state is affected by the legislature's

implicit or explicit reservation of their right to bring such

claims.  See generally Restatement (Second) of Judgments  41, cmt.

d.  Yet in this case, the Town asserts a claim for relief which is

not supplemental to but rather the same as that previously brought

by the State.  The legislature has empowered the Department of

Environmental Protection to enforce its environmental laws, see Me.

Rev. Stat. Ann. tit. 38,  541, 561 (West 1989 & Supp. 1998), and

nothing suggests that the legislature wanted to give others the

opportunity to bring the same environmental enforcement claim where

the state has already done so.  See Department of Human Servs. v.

Richardson, 621 A.2d 855 (Me. 1993).

  Affirmed.