Paolino v. JF Realty, LLC

Mar 13: In the U.S. Court of Appeals, First Circuit, Case No. 12-2031. Appealed from the United States District Court of Rhode Island, Providence. The appeal presents an issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given at least sixty days before a citizen enforcement action may be brought under the federal Clean Water Act (CWA).

 

    Failure to comply with the CWA's sixty-day notice requirement bars such an action and calls for dismissal of the suit. See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 32-33 (1989). The required contents of pre-suit notice are prescribed in 40 C.F.R. § 135.3, and assessing whether these requirements have been met is a functional, fact-dependent, and case-specific inquiry.

 

    The Appeals Court rules that, "Where the information contained in pre-suit notice identifies the potential plaintiffs, provides basic contact information, and allows the putative defendants to identify and remedy the alleged violations, we hold that these requirements have been satisfied and that the enforcement action may proceed. This does not mean that the defendants are precluded from asserting defenses under Fed. R. Civ. P. 12(b)(6); only that the suit is not barred in the district court. This holding requires us to find error in the district court's dismissal of this case. We reverse, in part, and remand for further proceedings consistent with this opinion."

 

    Defendants in the case filed their motion to dismiss the complaint on February 14, 2012, arguing that plaintiffs had failed to allege or establish several mandatory prerequisites to a citizen suit under the CWA. Specifically, defendants asserted that: (1) plaintiffs' pre-suit Notice did not describe the alleged CWA violations with the specificity required under 40 C.F.R. § 135.3(a); (2) plaintiffs' service of the Notice on defendant Robert Yabroudy was defective under 40 C.F.R. § 135.2; and (3) plaintiffs did not mail an as-filed and date-stamped copy of the complaint to the EPA Administrator, EPA Regional Administrator, and U.S. Attorney General, as required by 40 C.F.R. § 135.4. Defendants also requested that the district court dismiss the complaint with prejudice based upon plaintiffs' previous failures to comply with the CWA's notice requirements.

 

    The district court issued an order on July 26, 2012, dismissing the complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. "It found that plaintiffs' pre-suit Notice suffered from each of the deficiencies alleged in the motion to dismiss, and agreed that a dismissal with prejudice was in order as to all defendants on the first ground."

 

    In reversing the district court, in part the Appeals Court found, "The information contained in the list permitted the defendants to identify these standards themselves and to remedy the alleged violations if accurate. . . Plaintiffs' Notice letter also contains sufficient information for the defendants to identify and remedy the alleged violations arising from the Property's purportedly invalid RIPDES permit." The Appeals Court also disagreed with defendants claim that the Notice "did not make any effort to identify the person or persons responsible for each alleged violation" and said, "the Notice identifies the specific defendant whom the DEM treated as responsible for the issues addressed in the relevant notice letter."

 

    The Appeals Court ruled in part, ". . .we reverse the district court's dismissal for lack of subject matter jurisdiction with respect to plaintiffs' claims arising from the list of discharge violations and the invalid RIPDES permit. If on remand the plaintiffs press

other claims, not discussed here, which fail to meet this test, defendants may move to dismiss those claims. . . Nothing in this opinion precludes the defendants from raising other defenses under Fed. R. Civ. P. 12(b)(6). . ."

 

    Access the complete opinion (click here). [Water/CWA, #CA1]

 

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Shell Offshore, Inc. v. Greenpeace, Inc.

Mar 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35332. Appeal from the United States District Court for the District of Alaska. Shell Offshore, Inc. and Shell Gulf of Mexico, Inc. (together, Shell) hold multi-year oil and gas leases in the Outer Continental Shelf (OCS), located in the Arctic Ocean off the coast of Alaska. Greenpeace, Inc. (Greenpeace USA) has publicly undertaken a campaign to "stop Shell" from drilling in the Arctic. The district court granted Shell's motion for a preliminary injunction, which prohibited Greenpeace USA from coming within a specified distance of vessels involved in Shell's Arctic OCS exploration and from committing various unlawful and tortious acts against those vessels. Greenpeace USA argues that the action is not justiciable, that the district court lacked subject matter jurisdiction to issue its order, and that the court erred in its application of Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), to the merits of Shell's motion.

    In a partially split decision, where one Justice concurred in part and dissented in part, the majority Appeals Court ruled, "We conclude that the action presents a justiciable case or controversy, that the district court had jurisdiction to issue its order, and that it did not abuse its discretion in doing so. Accordingly, we affirm."

 

    The majority explains that, "The district court considered the public interest in having Greenpeace USA monitor Shell's Arctic drilling activities. In fact, the court agreed with Greenpeace USA's OCSLA [Outer Continental Shelf Lands Act] argument, stating that 'OCSLA recognizes the important role that environmental organizations such as Greenpeace USA may play in legal proceedings regarding the development of the Outer Continental Shelf.' Shell Offshore, 864 F. Supp. 2d at 852. The court also acknowledged that the injunction could impact 'Greenpeace USA's otherwise legal activities.' Id. It responded by crafting a narrow injunctive order that prohibited only illegal and tortious conduct . . . We cannot say that this treatment of public interest factors constituted an abuse of discretion. The district court did not abuse its discretion in granting Shell's motion for a preliminary injunction, which is amply supported by the record. Consequently, the preliminary injunction order is affirmed."

 

    The dissenting Justice agreed with the justiciability and jurisdiction conclusions; but said, "I part ways with the majority, however, where it holds that Shell may impute the actions of other independent Greenpeace entities to Greenpeace USA in order to meet Shell's burden of proof. Because I cannot support the imposition of legal sanctions on Greenpeace USA based, in significant part, on the conduct of others that Greenpeace USA does not control, I respectfully dissent."

 

    Access the complete opinion and dissent (click here). [#Energy/OCS, #CA9]

 

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