Petition for Writ of Certiorari — William F. Holdner, Petitioner v. Katy Coba, et al.

No.

Mbe

'upreme Court of the Ettiteb *Mai

♦

WILLIAM F. HOLDNER,

An Individual, dba HOLDNER FARMS,

Petitioner,

v.

KATY COBA, Director of the Department of

Agriculture, in her individual and official capacity;

DICK PEDERSON, Director of the Oregon

Department of Environmental Quality,

in his individual and official capacity,

Respondents.

♦

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

♦

PETITION FOR WRIT OF CERTIORARI

♦

WILLIAM F. HOLDNER, Pro Se

32244 Scappoose Vernonia Hwy.

Scappoose, OR 97056

Tel: 1-503-233-4601

Fax: 1-503-987-1272

E-mail: jane@holdnerbaum.com

Petitioner

RECEIVED

JUL 1 8 2019

OFFICE OF THE CLERK

SUPREME COURT, U.S.

1

QUESTIONS PRESENTED

Whether a person engaged in an agricultural

operation can be charged and convicted for failure to

possess a stormwater permit under Oregon State

Statute ORS 468B-025 for "Likely" to Pollute the public waters.

Whether a stormwater permit is required

where the operator has constructed an animal waste

control system to protect the public waters from a 24

hour 25 year rainfall event under ,Federal Environmental Protection Agency (EPA) Regulations.

Whether a permit for stormwater discharges

can be enforced by any government agency on property

that has a patent granted by congress as a condition of

the establishment of an agricultural farm operation in

1862 that provided the owner with absolute title including the water, creeks and water use rights.

Whether the application of Habeas Corpus is

appropriate, after all state and federal court relief is

exhausted, to protect petitioner's due process and federally protected rights.

11

LIST OF PARTIES

William F. Holdner, an individual, dba Holdner

Farms, Petitioner, Katy Coba, Director of the Oregon

Department of Agriculture, in her individual and official capacity. Dick Pederson, Director of the Oregon Department of Environmental Quality, in his individual

and official capacity. Both respondents are state employees and are represented by the Oregon Attorney

General Office.

111

RELATED CASES

On October 29, 2015 Petitioner's Complaint Case

No. D.C. 3:15-CV-02039-AC was filed in Federal District Court to vacate Oregon Circuit Court Judgment

for being charged and prosecuted under ORS 468B-025

for "Likely" to pollute the public waters.

Ninth Circuit, Memorandum, 04/24/19

District Court, Opinion and Order, 07/02/18

District Court, Judgment, 07/02/18

Ninth Circuit, Mandate, 01/22/18

Ninth Circuit, Memorandum, 07/06/17

District Court, Opinion and Order, 06/01/16

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

LIST OF PARTIES

ii

RELATED CASES

iii

TABLE OF CONTENTS

iv

TABLE OF AUTHORITIES

vi

OPINIONS BELOW

1

JURISDICTION

1

CONSTITUTIONAL AND STATUTORY PROVI2

SIONS AT ISSUE

STATEMENT OF THE CASE

4

STATEMENT OF FACTS

4

ARGUMENT

6

CONCLUSION

8

APPENDIX

United States Court of Appeals for the Ninth

App. 1

Circuit, Memorandum, filed 04/24/19

United States District Court, District of Oregon,

Portland Division, Opinion and Order, filed

App. 3

07/02/18

United States District Court, District of Oregon,

Portland Division, Judgment, filed 07/02/18 ... App. 15

United States Court of Appeals for the Ninth

App. 17

Circuit, Mandate, filed 01/22/18

V

TABLE OF CONTENTS — Continued

Page

United States Court of Appeals for the Ninth

App. 18

Circuit, Memorandum, filed 07/06/17

United States District Court, District of Oregon,

Portland Division, Opinion and Order, filed

App. 21

06/01/16

vi

TABLE OF AUTHORITIES

Page

CASES:

Doug Decker in the capacity as Oregon State

Forester, et al. v. Northwest Environmental

Defense Center, No. 11-338-S. (CT. March 20,

2013)

7

National Pork Producers Council, et al. v. EPA,

Case No. 08-671093 (5th Cir. March 15, 2011)

7

Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F. 3d 486 (2d Cir. 2005)

7

United States Supreme Court Decision Summa

Corp. .v. Cal. State Lands Commission, 466

U.S. 198 (1984)

8

CONSTITUTION:

U.S. Const. Amend. V

3

U.S. Const. Amend. XIV

3

RULES:

Sup. Ct. R. 13(1)

1

STATUTES:

28 U.S.C. § 1254(1)

1

28 U.S.C. § 2254(1)(b)

2

28 U.S.C. § 1342(p)(1)

7

28 U.S.C. § 1983

2

vii

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTORY AUTHORITIES:

40 CFR § 122.23(e)

7

EPA IMPLEMENTATION GUIDANCE ON

CAFO REGULATIONS DATED May 28, 2010

7

OREGON STATUTORY AUTHORITIES:

ORS 468B-025

5, 6

ORS 468B-200

6

ORS 468B-203

6

ORS 468B-230

6

1

OPINIONS BELOW

On October 29, 2015 Petitioner's Complaint Case

No. D.C. 3:15-CV-02039-AC was filed in Federal District Court to vacate Oregon Circuit Court Judgment

for being charged and prosecuted under ORS 468B-025

for "Likely" to pollute the public waters.

Ninth Circuit, Memorandum, 04/24/19

District Court, Opinion and Order, 07/02/18

District Court, Judgment, 07/02/18

Ninth Circuit, Mandate, 01/22/18

Ninth Circuit, Memorandum, 07/06/17

District Court, Opinion and Order, 06/01/16

_

JURISDICTION

For a review of a decision of the Federal District

Court Case No. 3:15CV-2039-AC the judgment was affirmed by the United States Court of Appeals, for the

Ninth Circuit in a memorandum decision on April 24,

2019. The Writ of Certiorari is filed within 90 days of

that date pursuant to United States Supreme Court

Rule 13(1). This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

♦

2

CONSTITUTIONAL AND

,

STATUTORY PROVISIONS AT ISSUE

Petitioner believes the decision constitutes, under

42 U.S.C. § 1983 and 28 U.S.C. § 2254, a violation of due

process, a federally protected right under the Fifth and

Fourteenth Amendments of the United States Constitution.

42 U.S.C. § 1983 provides in relevant part:

Every person who, under color or statute, ordinance, regulation, Custom, or usage, or any

State . . . subjects, or caused to be subjected,

any Citizen of the United States of other

person within the jurisdiction thereof To the

deprivation of any rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at Law, suit in equity, or other proper

proceeding for redress.

28 U.S.C. § 2254 provides in relevant part:

(1)(b) An application for a Writ of Habeas

Corpus on behalf of a person in Custody pursuant to the judgment of a state court shall

not be granted Unless it appears that —

(A) The applicant has exhausted' the remedies available in the courts of The state; or

(B)(i) There is an absence of available state

corrective process; or

(ii) Circumstances exist that render such

process ineffective to protect the rights of the

applicant.

3

The Fifth Amendment of the United States Constitution provides:

no person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment of indictment of a grand jury, except

in cases arising in the land or naval forces, or

in the militia, when in actual service in time

of war or public danger; nor shall any person

be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

The Fourteenth Amendment of the United States

Constitution provides In relevant part:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

state wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of the citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without

process of law, nor deny to any person within

its Jurisdiction the equal protection of the

laws.

•

4

STATEMENT OF THE CASE

The District Court was asked to vacate State Circuit Judgment for failure to possess State NPDES

Stormwater Permits. The Petitioner exhausted everything within his power to achieve a favorable result before the judgment became final.

The District Court ruled the Petitioner lacked

standing based on the Eleventh Amendment Immunity that barred a Section 1983 claim under the United

States Constitution.

♦

STATEMENT OF FACTS

In 1968, the appellant began a purebred Polled

Hereford cattle operation, raising breeding stock for

sale.

In the mid 1970's, the Petitioner, in cooperation

with United States Department of Agriculture, designed and constructed an animal waste control system to protect the environment and provide clean

water for the cattle to drink from an adjacent creek.

The system in place proyided a 40,000 gallon concrete

holding tank to collect any waste water that can be

pumped to the pasture area some distance (up to onehalf mile) from the animal feeding facility and clean

water from the creek could be pumped in water tanks

for the cattle. The system was designed, constructed

and operated to handle stormwater discharges from

25 year 24 hour rainfall event. It was determined that

5

shortly after purchase of the property that the only

good source of water had to come from the creek near

the facility. The sub-surface water contained high concentrations of salt and iron and the property had no

wells.

In about 2007, the Oregon Department of Agriculture (ODA) insisted that a National Pollutant Discharge Elimination System (NPDES) permit was

required under state law. As part of the permit PROCESS and PLAN of CORRECTION the ODA demanded that the appellant immediately stop pumping

the waste water from facility to the pasture area. With

a permit the ODA would allow an authorized discharge

of the waste water into the waters of the state under

unspecified special and general conditions. This conflicted with the system developed to provide during

stormwater events to protect the environment and

have clean water for the cattle.

At trial the ODA program manager, Mr. Matthews

testified that the Petitioner was not charged for being

a significant contributor of Pollution to the public waters but for failure to possess a (NPDES) state permit.

He also admitted on cross examination that the Oregon Department of Agriculture (ODA) was not approved by the EPA to operate an independent NPDES

program.

The Petitioner was convicted of two counts of

unlawful water pollution in the first degree under

ORS 468B-025 for "likely" to pollute and 28 counts

of unlawful pollution in the second degree for not

6

actually polluting but for days pumping the water

away from the feeding facility. Sentencing provided for

a $300,000.00 fine, supervised probation for 3 years,

remediation of $50,000.00 as the Petitioner divest

himself of all his cattle within 90 days. Petitioner was

not allowed cattle on any property he managed or

owned or has an interest in and 5 days in jail. Approximately 50 head cows with calves were located on the

100 plus acres where the Animal Feeding Facility was

located.

♦

ARGUMENT

The Petitioner was charged and convicted of criminal violations for failure to possess a stormwater permit under ORS 468B-025. Quote "States no person

shall cause pollution of waters of the state or place or

cause wastes that are "likely" to escape or be carried

into the waters of the state by any means." This Oregon statute under Federal EPA regulations and Federal Supporting Case Law as applied to Petitioners

farm operation is "on its face" unconstitutional.

Oregon has a special statute ANIMAL WASTE

CONTROL ORS 468B-200 to ORS 468B-230 that applies to Animal Feeding Operations. ORS 468B-203

Quotes, "States enforcement must be consistent with

federal law, regulations and guidelines issued pursuant to the Federal Water Pollution Control Act, P.L. 92500."

7

United States Environmental Protection Agency

(EPA) IMPLEMENTATION GUIDANCE ON CAFO

REGULATIONS DATED May 28, 2010, "States in 40

CFR § 122.23(e), a discharge from a land application

area under the control of a CAFO is subject to NPDES

permit requirements, except where it is an agricultural

stormwater discharge." The CLEAN WATER ACT definition of point source excludes discharges of agricultural stormwater and such discharges are therefore

not subject to permit requirements.

Two United States Courts of Appeals and United

States Supreme Court cases have ruled on federal EPA

regulations as they apply to stormwater discharge permit. Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486 (2nd Cir. 2005) ruled no

statutory obligation to seek or obtain a NPDES permit

is required. In National Pork Producers Council, et al.

v. EPA Case No. 08-61093 (5th Cir. March 15, 2011) upheld the Waterkeeper decision that no NPDES permits

are required for potential discharges. United States

Supreme Court Case No. 11-338 and 11-347, Doug

Decker in the capacity as Oregon State Forester, et al.

v. Northwest Environmental Defense Center (March

20, 2013), ruled stormwater discharges from logging

roads were exempt from the NPDES permit regulations. See 33 U.S.C. § 1342(p)(1). The terms potential

or likely are synonymous as they relate to stormwater

discharges are exempt from a permit under federal

law.

The property on which the cattle feeding facility

is located has a patent granted by CONGRESS as a

8

conditioh of the establishment, an agricultural farm

operation in 1862 provided the owner with absolute title including the water, creeks and water use rights.

United States Supreme Court Decision, Summa Corp.

v. Cal. State Lands Commission, 466 U.S. 198 (1984)

Federal rights are protected.

Oregon has a statute ORS 537-120 states, Quote

"Nothing in the Water Rights Act shall be construed to

take away or impair the vested rights under the patent."

The Eleventh Amendment Immunity is not applicable when public officials are acting out of or exceeding their authority. Cited United States Supreme

Court Ex Parte Young Case No. 209 U.S. 123, 285.CT.

441; 526 Ed. 714; 1908 U.S. Lexus 1726 that allows

suits in Federal Courts against officers acting on behalf of States of the Union to proceed despite the

state's sovereign immunity, when the state acted unconstitutionally.

♦

CONCLUSION

The subject matter in this dispute involves stormwater discharges that have been addressed through

federal legislation and case law under the Federal Water Pollution Control Act. For this reason, while this

suit implicates a state interest, the Petitioner believes

the federal government has a strong interest in enforcing federal constitutional rights and remedies.

9

No court has ruled on the constitutionality of the

state statute under which the petitioner was charged

and convicted. The state court decision clearly contravenes the state and federal law and petitioner as a result has been irreparably injured. The petitioner has

been denied equitable relief and adequate vindication

of his Due Process and federally protected rights,

granted under the United States Constitution.

For the foregoing reasons the petitioner pray the

Writ of Certiorari will be granted.

Respectfully submitted,

WILLIAM F. HOLDNER, Pro Se

32244 Scappoose Vernonia Hwy.

Scappoose, OR 97056

Tel. No. 503-233-4601

Fax. No. 503-987-1272

E-mail: jane@holdnerbaum.com