Tuesday, July 23, 2013
Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16959. Appealed from the United States District Court for the Eastern District of California. The Appeals Court explains that the Federal Water Pollution Control Act, or Clean Water Act (the Act) allows a citizen to sue to enforce the Act's prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. In this citizen suit, Plaintiff, California Sportfishing Protection Alliance, a conservationist organization, alleges that Defendants, Chico Scrap Metal, Inc.; et al, have violated an NPDES permit that governs industrial storm water discharges at three scrap metal recycling facilities that Defendants operate.
The district court dismissed this action after ruling that 33 U.S.C. § 1365(b)(1)(B) bars Plaintiff's claims. On appeal, Defendants argue that another statutory bar, 33 U.S.C. § 1319(g)(6)(A)(ii), also applies. The Appeals Court rules, "We hold that § 1365(b)(1)(B) does not apply because the state has commenced no action in court 'to require compliance' with the storm water permit and that § 1319(g)(6)(A)(ii) does not apply because the state has commenced no administrative penalty action comparable to one under the Act. We therefore reverse the judgment of the district court and remand for further proceedings." The Appeals Court says in a footnote that, "We express no view on the merits of any of Plaintiff's claims."
§ 1365(b)(1)(B) bars a citizen suit as stated: "(B) if [a state or federal authority] has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order . . . ."
The Appeals Court says, "Because Congress omitted any reference to 'comparable' state standards in § 1365, and because § 1365(b)(1)(B) specifically refers to an action 'to require compliance with the standard, limitation, or order' that is the subject of the citizen suit, we hold that its bar applies only if the government's action seeks to do exactly that. . . In sum, because the 2007 and 2008 proceedings aimed to enforce only laws other than the Clean Water Act, § 1365(b)(1)(B) does not bar this action."
On another bar claim by Defendants, the Appeals Court rules, "Because California has commenced no administrative penalty proceeding that is comparable to a proceeding by the EPA under § 1319(g), the statutory bar of § 1319(g)(6)(A)(ii) does not apply to Plaintiff's claims."
In conclusion the Appeals Court says, "Because the state has brought neither a court action to require compliance with the Clean Water Act nor an administrative penalty action comparable to one under the
Act, neither 33 U.S.C. § 1365(b)(1)(B) nor § 1319(g)(6)(A)(ii) bars Plaintiff's citizen suit to enforce California's storm water general permit. -- Reversed and Remanded."
Access the complete opinion (click here). [#Water, #CA9]
Posted by JPMcJ at 4:24 PM
Jul 22: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15474, 12-15476, 12-15595, & 12-15599. Appeal from the United States District Court for the District of Nevada. The Appeals Court explains that in this case it deals with "what essentially amounts to a footnote to the long-running litigation over how much water from the Truckee and Carson Rivers should be diverted to irrigation and how much should flow into Pyramid Lake for the benefit of the Pyramid Lake Paiute Indian Tribe." The Federal government and the Tribe are now requesting the Appeals Court to reconsider one aspect of its most recent opinion.
The Appeals Court indicates that, "The district court had rejected claims of excess diversions in the other years between 1973 and 1988. In our concluding paragraph, we remanded for recalculation of the
effect of gauge error in the four specific years in which the district court had found excess diversions. . . On remand, the government asked the court to recalculate gauge error for those and additional years, but the district court limited its recalculation to the four years specified in the conclusion of the Bell opinion. It now appears that our understanding of the scope of the gauge error claim was mistaken and that the government was claiming the gauge error calculation had affected the flow measurement in other years as well."
The Appeals Court indicates, "We do not ordinarily disturb a judgment of the court after the mandate has issued. See Calderon v. Thompson, 523 U.S. 538, 550 (1998). . . The government has candidly acknowledged that it should have moved for reconsideration of our prior opinion, but that it did not recognize the mistake until the matter was before the district court on remand. . .
"We cannot fault the district court in any way, for it correctly followed our 2010 mandate. It was the mandate that was in error, and that only we can correct. . . We accordingly withdraw our earlier mandate and clarify it by changing the final paragraph of our previous opinion . . Our previous mandate in Bell is withdrawn and amended as provided in this opinion. The judgment of the district court on remand is vacated. The matter is remanded for proceedings in accordance with the Bell mandate as amended."
Access the complete opinion (click here). [#Water, #CA9]
Posted by JPMcJ at 4:23 PM
Jul 22: In the U.S. Court of Appeals, Fourth Circuit, Case No. 13-1610. Appealed from the United States District Court for the Eastern District of Virginia, at Norfolk. The Appeals Court summarizes saying the U.S. Coast Guard, and the U.S. Customs and Border Protection Agency (collectively, Respondents or the government) appeal the district court's order, which, upon an emergency petition filed in the Eastern District of Virginia, (1) altered the terms of a bond the Coast Guard had fixed for the release of a detained ship that was under investigation; and (2) restricted the types of penalties the government could seek for the ship's potential violations of certain ocean pollution prevention statutes. The matter was not subject to review in the district court because the Coast Guard's actions were committed to agency discretion by law. As a result, the district court lacked jurisdiction to consider the petition and the Appeals Court also determined, ". . .we reverse and remand for dismissal of the Petition for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1)."
The case involves the fact that the U.S. is a signatory to MARPOL, which is a multi-national treaty aimed at achieving the complete elimination of international pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances. In fulfilling its obligations pursuant to MARPOL, Congress enacted the Act to Prevent Pollution from Ships (APPS). which requires the Secretary of the Department of Homeland Security (DHS) to administer and enforce" MARPOL, as well as statutes and regulations designed to preserve the marine environment.
There are two Petitioners in this appeal: the Antonis G. Pappadakis (Pappadakis or the vessel), an ocean-going bulk cargo carrier, which was built in 1995 and registered in Malta; and Angelex Ltd. (Angelex), a company that purchased the vessel on March 9, 2007. Kassian, a Greek company, serves as the vessel's operator.
In this complicated case involving pollution by the vessel and subsequent detaining of the vessel by the Coast Guard subject to posting a bond, the amount of which was in dispute, Angelex asserts that the Coast Guard acted "arbitrarily, capriciously, and unreasonably" in detaining the Pappadakis, setting a bond which Angelex cannot post, and demanding a security agreement with terms that are not authorized by the operative statute.
The Appeals Court says, ". . .we disagree with Appellees' characterization of the Petition as an attack on the statutory authority or constitutionality of the Coast Guard's actions. First, Appellees cannot with a straight face argue that the Coast Guard has acted outside the bounds of § 1908(e). Indeed, those bounds are quite limitless. The Coast Guard may demand a low bond, a high bond, or may refuse to grant clearance altogether. . . In short, the Coast Guard's stringent conformity to § 1908(e) simply does not give rise to a reviewable claim."
The Appeals Court also notes that, "APPS contains a built-in safeguard to governmental abuses, which further convinces us that Angelex's Petition is out of place and time. In addition to the criminal and civil penalties that APPS authorizes the United States to seek, APPS provides for compensation for loss or damage as a result of unreasonable detention by the Coast Guard. . . the Coast Guard's decisions regarding bond conditions with regard to the Pappadakis are unreviewable, and the district court thereby did not possess subject matter jurisdiction under the APA."
Access the complete opinion (click here). [#Water, #CA4]
Posted by JPMcJ at 4:22 PM