Petition for Writ of Certiorari — Corona Clay Company, Petitioner v. Inland Empire Waterkeeper, a Project of Orange County Coastkeeper, et al.

NO. 21-_____

In the

Supreme Court of the United States

CORONA CLAY COMPANY,

Petitioner,

v.

INLAND EMPIRE WATERKEEPER, A PROJECT OF

ORANGE COUNTY COASTKEEPER; AND

ORANGE COUNTY COASTKEEPER,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

ERIC FROMME

COUNSEL OF RECORD

ROD PACHECO

BRIAN NEACH

PACHECO & NEACH, P.C.

3 PARK PLAZA, SUITE 120

IRVINE, CA 92614

(714) 462-1700

EFROMME@PNCOUNSEL.COM

JANUARY 21, 2022

SUPREME COURT PRESS

COUNSEL FOR PETITIONER

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Whether, in a private citizen suit brought under

33 U.S.C. § 1365(a) of the Clean Water Act (the “CWA”),

a plaintiff can establish Article III standing without

proving that there is any actual or threatened harm to

any jurisdictional water of the United States.

2. Whether Article III standing in a private citizen

suit under 33 U.S.C. § 1365(a) may be premised solely

on the reporting and monitoring provisions in the

CWA stemming from “informational injury.”

3. Whether Federal Rule of Civil Procedure 36(a)

removes a trial court’s discretion, after the evidence

phase of trial, to allow or disallow the presentation of

new evidence to the jury.

ii

RULE 29.6 STATEMENT

Petitioner Corona Clay Company has no parent

corporation, is not publicly traded, and no publiclytraded corporation owns more than 10% of Corona

Clay Company’s stock.

iii

LIST OF PROCEEDINGS

United States Court of Appeals for the Ninth Circuit

No. 20-55420, 20-55678

Inland Empire Waterkeeper, a Project of Orange

County Coastkeeper; Orange County Coastkeeper, a

California Non-profit Corporation, Plaintiffs v. Corona

Clay Co., a California Corporation, Defendant

Date of Final Opinion: November 5, 2021

Date of Rehearing Denial: November 5, 2021

_________________

United States District Court Central District of

California Southern Division

No. 8:18-cv-00333-DOC-DFM

Inland Empire Waterkeeper Et Al., Plaintiffs, v.

Corona Clay Company, Defendant.

Date of Final Judgment: April 6, 2020

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

RULE 29.6 STATEMENT .......................................... ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 2

INTRODUCTION ....................................................... 4

STATEMENT OF THE CASE .................................... 7

A. Petitioner and the Permit ................................ 7

B. Respondents’ Initiation of Lawsuit and First

Amended Complaint ........................................ 8

C. The District Court’s Summary Judgment

Ruling ............................................................... 9

D. Trial and Jury Verdict ................................... 10

E. The District Court’s Final Judgment ............ 11

F. Respondents’ Post-Trial Motion .................... 12

G. Petitioner’s Post-Trial Motion ....................... 13

H. Panel Majority Opinion and Dissent ............. 14

I.

Petition for Rehearing En Banc and Amended

Opinion ........................................................... 15

v

TABLE OF CONTENTS – Continued

Page

REASONS FOR GRANTING THE PETITION ....... 16

I.

THE NINTH CIRCUIT WRONGLY PARTED WITH

THIS COURT AND OTHER COURTS OF APPEALS

IN DETERMINING THAT RESPONDENTS H AD

ESTABLISHED STANDING.................................. 16

A. The Ninth Circuit’s Opinion Conflicts with

This Court’s Precedent and Improperly

Provides a Broad, Newfound Basis for

Standing in CWA Private-Citizen suits ... 16

B. The Ninth Circuit’s Opinion Conflicts with

Other Courts of Appeals That Addressed

Standing for Private-Citizen Suits Under

the CWA. ................................................... 20

II. THE NINTH CIRCUIT’S OPINION REGARDING THE

RFA RESPONSE CONFLICTS WITH DECISIONS OF

THIS COURT AND OTHER COURTS OF APPEALS ...... 21

CONCLUSION.......................................................... 24

vi

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the Ninth Circuit (Amended) and

Order Denying Rehearing En Banc

(November 5, 2021) ............................................ 1a

Order Denying Defendant’s Motion for Relief

from Judgment (June 22, 2020) ....................... 46a

Final Judgment of the United States District

Court for the Central District of California

(April 6, 2020) ................................................... 48a

Order Denying Plaintiffs’ Motion to Alter

or Amend the Judgment or, in the Alternative,

for New Trial (December 20, 2019) .................. 52a

Special Verdict Form

(October 25, 2019) ............................................ 60a

Order Granting in Part and Denying in Part

Plaintiffs’ Motion for Partial Summary

Judgment as to Liability (June 10, 2019) ........ 69a

vii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Ardrey v. United Parcel Service,

798 F.2d 679 (4th Cir. 1986) ......................... 7, 23

Berns v. Pan American World Airways, Inc.,

667 F.2d 826 (9th Cir. 1982) ............................... 22

County of Maui v. Hawaii Wildlife Fund,

140 S.Ct. 1462 (2020) ....................................... 14

Friends of the Earth, Inc. v. Crown Central

Petroleum Corp.,

95 F.3d 358 (5th Cir. 1996).............................. 6, 18

Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167 (2000) . 18, 20

Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Foundation, Inc., 484 U.S. 49 (1987) passim

Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 333 (1977) ..................... 17

Johnson v. DeSoto County Bd. of Comm’rs,

204 F.3d 1335 (11th Cir. 2000) ......................... 22

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................. 5, 6, 18, 19

Public Interest Research Group of N.J., Inc.

v. Magnesium Elektron, Inc.,

123 F.3d 111 (3d Cir. 1997) ..................... 6, 19, 21

Rolscreen Co. v. Pella Prods. of St. Louis, Inc.,

64 F.3d 1202 (8th Cir. 1995)................................ 22

Simon v. Eastern Ky. Welfare Rights

Organization, 426 U.S. 26 (1976) ..................... 18

viii

TABLE OF AUTHORITIES – Continued

Page

Thomas v. SS Santa Mercedes,

572 F.2d 1331 (9th Cir. 1978) ........................... 22

U.S. v. Lustig,

555 F.2d 737 (9th Cir. 1977) ......................... 7, 23

U.S. v. Upton,

559 F.3d 3 (1st Cir. 2009) ............................... 7, 23

Zenith Radio Corp. v. Hazeltine Research Inc.,

401 U.S. 321 (1971) ....................................... 7, 22

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. III, § 2, cl. 1 ......................... i, 2, 5, 17

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

33 U.S.C. § 1311(a) ..................................................... 2

33 U.S.C. § 1319(d) ................................................... 13

33 U.S.C. § 1362(12) ................................................... 2

33 U.S.C. § 1365........................................................ i, 4

33 U.S.C. § 1365(a) ..................................................... 3

33 U.S.C. § 1365(f) ...................................................... 3

33 U.S.C. § 1365(g) ..................................................... 4

JUDICIAL RULES

Central Dist. Local Rule 51-1 ................................... 23

Fed. R. Civ. P. 36 ........................................ i, 21, 22, 23

Fed. R. Civ. P. 59(e) ................................................. 13

ix

TABLE OF AUTHORITIES – Continued

Page

Fed. R. Civ. P. 60(a)(4) .............................................. 13

Fed. R. Civ. P. 60(b) .................................................. 13

REGULATIONS

40 C.F.R. § 122.44(k)(4) ............................................. 10

LEGISLATIVE MATERIALS

H.R.Rep. No. 92-911, 407 (1972) .............................. 17

S.Rep. No. 92-414, 64 (1971)..................................... 16

Water Pollution Control Legislation, Hearings

before the Subcommittee on Air and Water

Pollution of the Senate Committee on Public

Works, 92d Cong., 1st Sess., pt. 1, 114 (1971)...... 17

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully seeks a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The decision of the Ninth Circuit Court of Appeals,

as amended, is reported at 17 F.4th 825 (9th Cir. 2021),

and is reprinted in the Appendix to the Petition

(“App.”) at App.3a-App.21a. The dissenting opinion of

Judge Daniel P. Collins is reprinted at App.22aApp.45a. The district court’s order on Respondents’

motion for partial summary judgment is available at

2019 WL 4233584 and is reprinted at App.69a. The

District Court’s orders on Petitioner’s and Respondents’ post-trial motions are reprinted at App.46a and

App.52a, respectively.

JURISDICTION

The Ninth Circuit entered its judgment on September 20, 2021. On November 5, 2021, the Ninth

Circuit entered an amended opinion and an order

denying Petitioner’s timely petition for en banc rehearing. App.2a. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Const. Art. III, § 2, cl. 1 provides:

The Judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;—

to all Cases affecting Ambassadors, other public

Ministers and Consuls;—to all Cases of admiralty

and maritime Jurisdiction; to Controversies to

which the United States shall be a Party;—to

Controversies between two or more States; between

a State and Citizens of another State; between

Citizens of different States,—between Citizens

of the same State claiming Land under Grants of

different States, and between a State, or the

Citizens thereof, and foreign States, Citizens or

Subjects.”

33 U.S.C. § 1311(a)

Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342, and 1344

of this title, the discharge of any pollutant by

any person shall be unlawful.

33 U.S.C. § 1362(12) (Definitions)

The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (A) any

addition of any pollutant to navigable waters

from any point source, (B) any addition of any

pollutant to the waters of the contiguous zone or

3

the ocean from any point source other than a

vessel or other floating craft.

33 U.S.C. § 1365(a)

Authorization; jurisdiction—Except as provided

in subsection (b) of this section and section 1319

(g)(6) of this title, any citizen may commence a

civil action on his own behalf—

(1) against any person (including (i) the United

States, and (ii) any other governmental

instrumentality or agency to the extent permitted by the eleventh amendment to the

Constitution) who is alleged to be in violation

of (A) an effluent standard or limitation

under this chapter or (B) an order issued by

the Administrator or a State with respect to

such a standard or limitation, or

(2) against the Administrator where there is

alleged a failure of the Administrator to

perform any act or duty under this chapter

which is not discretionary with the Administrator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent

standard or limitation, or such an order, or to order

the Administrator to perform such act or duty, as

the case may be, and to apply any appropriate

civil penalties under section 1319(d) of this title.

33 U.S.C. § 1365(f)

Effluent standard or limitation—For purposes of

this section, the term “effluent standard or limitation under this chapter” means (1) effective July

4

1, 1973, an unlawful act under subsection (a) of

section 1311 of this title; (2) an effluent limitation

or other limitation under section 1311 or 1312 of

this title; (3) standard of performance under

section 1316 of this title; (4) prohibition, effluent

standard or pretreatment standards under section

1317 of this title; (5) a standard of performance or

requirement under section 1322(p) of this title; (6)

a certification under section 1341 of this title; (7)

a permit or condition of a permit issued under

section 1342 of this title that is in effect under

this chapter (including a requirement applicable

by reason of section 1323 of this title); or (8) a

regulation under section 1345(d) of this title.

33 U.S.C. § 1365(g)

“Citizen” defined—For the purposes of this section

the term ‘citizen’ means a person or persons

having an interest which is or may be adversely

affected.

INTRODUCTION

This case involves exceptionally important issues

of federal law regarding private-citizen lawsuits

brought under 33 U.S.C. § 1365 of the CWA. Relying

on dicta from cases involving undisputed discharges

of pollutants into waters of the United States, the

Ninth Circuit held—over a strong dissent from Judge

Daniel P. Collins—that the Supreme Court’s decision

in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987), “permits a citizen suit

based [on] ongoing or imminent procedural violations,”

5

despite a jury verdict in the District Court finding that

Respondents failed to prove that Petitioner “discharged

pollutants from a point source into” waters of the

United States “and that such discharge was either (1)

on or after February 27, 2018 [the date of the filing of

the action], or (2) at any time, with a reasonable likelihood that such violations will recur in intermittent

or sporadic violations.” App.60a. The entire premise of

a citizen’s suit under the CWA is the “abatement” of

pollution. Gwaltney, 484 U.S. at 61 (citing authorities). Yet, the Ninth Circuit’s decision opens up the

possibility of citizen suits based on nothing more than

reporting violations, so long as some discharge occurred

at some undefined point in time.

For the reasons stated in Judge Collins’s dissent,

the Ninth Circuit’s opinion is contrary to well-settled

law. The majority upheld the District Court’s grant of

summary judgment in favor of Respondents on the

issue of Article III standing, notwithstanding the existence of genuine issues of fact regarding whether any

harm claimed by Respondents was “fairly traceable”

to any conduct of Petitioner. Lujan v. Def. of Wildlife,

504 U.S. 555, 578 (1992). This, despite Lujan’s clear

holding that the elements of Article III standing are

“an indispensable part of the plaintiff’s case” and that,

as a result, “each element must be supported in the

same way as any other matter on which the plaintiff

bears the burden of proof, i.e., with the manner and

degree of evidence required at the successive stages of

the litigation.” 504 U.S. at 561 (emphasis added). As

the jury’s verdict would later make clear, this fact

issue was ultimately resolved in Petitioner’s favor after

a full trial and should have resulted in a judgment in

Petitioner’s favor.

6

This Court’s consideration on this point is warranted here because the Ninth Circuit’s opinion is

contrary to the holding in Lujan, as Judge Collins

indicated in his dissent. In addition, the Ninth Circuit’s

opinion conflicts with decisions from other Courts of

Appeal on the same issue, notably the Third and Fifth

Circuits, as discussed further below. See Friends of the

Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d

358, 362 (5th Cir. 1996); Pub. Interest Research Grp. of

N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111 (3d

Cir. 1997).

The Ninth Circuit also went against well-established authority on another point. Specifically, Respondents appealed the District Court’s decision to decline

to present to the jury a response to a request for

admission that requested an admission that “discharges

of storm water from the FACILITY flow indirectly to

Temescal Creek.” In response to the request, Petitioner

admitted that “storm water from the industrial area

on the property . . . indirectly flows to Temescal wash.”

However, Respondents did not even raise the discovery

response until after evidence had closed. Moreover,

Respondents did not ask for a jury instruction on the

issue in compliance with the Central District’s Local

Rules. However, the Ninth Circuit found that it was

error for the District Court to deny the post-evidence

phase request.

Again, as Judge Collins concluded, this was not

an abuse of discretion by the District Court. In fact,

the Ninth Circuit’s opinion conflicts with established

Supreme Court, Ninth Circuit, and other Court of

Appeal decisions giving district courts significant discretion in the presentation of evidence, particularly

where evidence has closed and where the request was

7

not timely under local rules. See Zenith Radio Corp. v.

Hazeltine Research Inc., 401 U.S. 321, 331 (1971); U.S.

v. Federbush, 625 F.2d 246, 253 (9th Cir. 1980); U.S.

v. Lustig, 555 F.2d 737, 751 (9th Cir. 1977); U.S. v.

Upton 559 F.3d 3, 9 (1st Cir. 2009); Ardrey v. United

Parcel Serv., 798 F.2d 679, 682 (4th Cir. 1986).

Because the Ninth Circuit’s opinion conflicts with

this Court’s precedent and decisions from other Courts

of Appeals, this Court should grant this Petition and

review the judgment.

STATEMENT OF THE CASE

A.

Petitioner and the Permit

Petitioner is in the business of acquiring discarded

brick materials and then grinding those materials

down into a finer clay product. App.72a-73a. The

finished product is then sold for use in the installation

of baseball infields and running tracks. Id

In or about 2014, Petitioner became a permittee

under the National Pollutant Discharge Elimination

System General Permit (the “Permit”). App.73a. The

closest body of water to Petitioner’s facility is Temescal

Creek, which is about one-quarter of a mile away. Id.

In June 2017, Petitioner undertook to extensively

expand a “silt basin” to capture stormwater runoff.

App.86a.

8

B.

Respondents’ Initiation of Lawsuit and First

Amended Complaint

Respondents initiated this private citizen lawsuit

on February 27, 2018, alleging violations by Petitioner

of several provisions of the CWA. App.74a. On April 20,

2018, Respondents filed their First Amended Complaint (“FAC”), seeking relief on seven causes of action.

Id.

The first cause of action was labeled “Violation of

Section 301(a) of the Clean Water Act by Discharging

Contaminated Stormwater in Violation of the Storm

Water Permit’s Effluent Limitations.” Id. It alleged

that Petitioner “failed and continues to fail to reduce or

prevent pollutants associated with industrial activities at the Facility from discharging from the Facility

through implementation of BMPs that achieve BAT/

BCT.”1

Respondents labeled the second cause of action as

“Violation of the Clean Water Act by Discharging

Polluted Storm Water in Violation of the Storm

Water Permit’s Discharge Prohibitions.” Id. The second

cause of action alleged that “the Facility has discharged,

and continues to discharge, prohibited storm water

discharges that result in coloration of the receiving

waters; contain floating materials, including soils and

liquids; suspended or settleable solids; and increase

turbidity which causes a nuisance or adversely affect

1 “BMPs” are defined in the Permit as “Best Management Practices.” “BAT/BCT” are defined, respectively, as “Best Available

Technology Economically Achievable” and “Best Conventional

Pollutant Control Technology.”

9

beneficial uses in violation of discharge prohibitions

contained in the Basin Plan.”

The third and fourth causes of action in Respondents’ FAC were dismissed voluntarily and are not a

subject of this Petition. App.5a. Their fifth, sixth and

seventh causes of action were essentially based on

alleged “reporting violations,” alleging, respectively,

that Petitioner failed to update its Stormwater Pollution Prevention Plan (“SWPPP”), failed to institute a

monitoring and reporting program, and failed to file

annual reports in compliance with the Permit. Id.

C.

The District Court’s Summary Judgment

Ruling

Respondents filed a motion for partial summary

judgment, seeking a finding of liability on five of their

causes of action and findings regarding the number of

days of penalties that could apply. App.75a. Petitioner

opposed, arguing—among other things—that Respondents lacked Article III standing because there was a

genuine factual dispute regarding whether Petitioner’s

stormwater runoff ever reached any water of the

United States. App.82a-83a.

Although the District Court denied the motion as

to the second, sixth, and seventh causes of action, it

granted the motion in part on the first and fifth

causes of action. App.98a. Notably, in finding Petitioner

liable on the first cause of action, the District Court

found that Petitioner “failed to meet BMPs, thus violating the General Permit, on numerous occasions in

the past several years.” App.88a-89a. In support of its

conclusion, the District Court cited to notices of violation issued by the Santa Ana Regional Water Quality

Control Board (the “Water Board”) in 2015, 2016, and

10

on May 3, 2017. Id. All of these notices were issued

well before Respondents filed their February 27, 2018

complaint in this action.

Further, and in response to Petitioner’s argument

that its stormwater runoff never reached waters of the

United States, the District Court stated:

To the contrary, Plaintiffs need not show that

discharges have reached the body of water in

question; under the CWA, a discharging facility’s violation of BMPs can be determinative

of whether that facility has violated its state

permit and the CWA. 40 C.F.R. § 122.44(k)

(4)(BMPs controls the discharge of pollutants

when authorized under the CWA). As California’s current General Permit utilizes BMPs,

these practices are determinative of whether

Defendant’s Facility has committed violations

of the CWA’s effluent limitations.

App.89a-90a.

D. Trial and Jury Verdict

The case proceeded to trial on Respondents’

second, sixth and seventh causes of action on October

21, 2019. For the second, the final jury instructions

read by the District Court required that Respondents

prove by a preponderance of the evidence that Petitioner’s “facility discharged prohibited storm water

discharges, in violation of the Regional Water Quality

Control Plan, on or after February 27, 2018; or that

there is a continuing likelihood of a recurrence in intermittent or sporadic violations; . . . .” App.5a-6a. For the

sixth and seventh, the District Court’s final jury instructions included an element that Respondents needed to

11

prove Petitioner “discharged pollutants into waters of

the United States.” Id.

The jury delivered its verdict on October 25,

2019. In completing the special verdict form, the jury

answered “No” to the question of whether Respondents

proved, by a preponderance of the evidence, that

Petitioner:

[D]ischarged pollutants from a point source

into streams or waters that qualify as jurisdictional ‘waters of the United States’; and

that such discharge was either (1) on or after

February 27, 2018, or (2) at any time, with a

reasonable likelihood that such violations

will recur in intermittent or sporadic violations?”

App.60a.

As the jury’s response to the initial question was

“No,” there was no need for the jury to complete the

remainder of the special verdict form. Id.

E.

The District Court’s Final Judgment

After the parties submitted competing proposed

judgments, the District Court entered its Final Judgment on April 6, 2020. App.48a. The Final Judgment

stated that judgment was entered in favor of Respondents on the first and fifth causes of action. The Final

Judgment further stated that:

(1) Corona is “liable for 664 daily violations

(September 4, 2017 through June 30, 2019) of

the Storm Water Pollution Prevention Plan

. . . ”’

12

(2) Corona is liable for “1688 daily violations

(March 2, 2015 through October 15, 2019) of

the Permit’s Section V limitations on technology-based effluents;

(3) Corona is to “implement structural storm

water Best Management Practices sufficient

to retain the 85th percentile, 24-hour storm

event, including a factor of safety, from areas

subject to the Storm Water Permit no later

than December 1, 2020. . . . ;”

(4) Corona is to “update and amend its Storm

Water Pollution Prevention Plan to comply

with section X.C.1, subsections b and c, of the

Permit, no later than July 1, 2020;” and

(5) Corona “shall pay civil penalties for violations of the Clean Water Act in the sum

of $3,700,000 by July 1, 2020.”

App.49a-50a.

The Final Judgment further stated that, because

Respondents prevailed on the first and fifth causes of

action, and Petitioner prevailed on the second, sixth

and seventh causes of action, that the “parties shall

bear their own fees and costs in this matter.” App.50a

F.

Respondents’ Post-Trial Motion

On November 1, 2019, Respondents filed a Motion

to Alter or Amend the Judgment or, in the Alternative, for a New Trial. App.54a. As the District Court

pointed out in its order denying them, the motions

were premised on the argument that the District

Court improperly instructed the jury by requiring

proof of discharge to waters of the United States in

connection with the sixth and seventh causes of action.

13

App.57a. The District Court also rejected the Respondents’ argument that the jury should have been

presented with the RFA response. App.58a-59a. The

District Court made clear that Respondents were

required to prove a discharge to a water of the United

States in connection with their second cause of action.

App.59a. However, the District Court noted that the

evidence “was not introduced at trial” and stated that

it “declines at this juncture to admit this evidence post

hoc and overrule the jury’s verdict on the sixth and

seventh causes of action.” Id.

G. Petitioner’s Post-Trial Motion

On May 4, 2020, Petitioner timely filed a Motion

under Federal Rule of Civil Procedure 60(b) and Federal Rule of Civil Procedure 59(e). In that motion,

Petitioner argued that, based on the jury’s verdict, the

Final Judgment was void under Federal Rule of Civil

Procedure 60(a)(4) because the District Court lacked

subject matter jurisdiction to enter it due to Respondents’ lack of standing. App.36a.

In the alternative, Petitioner argued that the

Final Judgment should be altered or amended under

Federal Rule of Civil Procedure 59(e) because (1) there

was a lack of standing; (2) the facts adduced more fully

at trial and the jury’s verdict established that Respondents’ first and fifth causes of action failed on the

merits; (3) the $3,700,000 penalty imposed by the District Court was unconstitutional and failed to take into

account the factors set forth in 33 U.S.C. § 1319(d);

(4) if any penalty was assessed, it should be nominal;

and (5) the injunctive relief was improper in the

absence of irreparable harm. App.21a; id. 37a. In a

brief June 22, 2020 minute order, the District Court

14

denied Petitioner’s motion concluding that, given Respondents had already filed a notice of appeal, it would

decline to rule and would instead defer to the Ninth

Circuit. App.46a. The District Court did order, however, that enforcement of the judgment be stayed.

App.47a.

H. Panel Majority Opinion and Dissent

On appeal, the Ninth Circuit vacated the judgment

below in a 2-1 opinion issued on September 20, 2021.

13 F.4th 917 (9th Cir. 2021), order amended and

superseded by 17 F.4th 825 (9th Cir. 2021). The panel

majority looked to County of Maui v. Hawaii Wildlife

Fund, 140 S.Ct. 1462 (2020), in which this Court

rejected the Ninth Circuit’s prior interpretation of the

CWA’s discharge jurisdictional requirement, and held

that an offending discharge must reach the “waters of

the United States,” either through a direct discharge or

a “functional equivalent.” App.17a. Because County of

Maui was decided after the District Court entered its

final judgment, the jury instructions in this case

corresponded to prior Ninth Circuit law.

The panel majority disagreed with the District

Court’s interpretation of Gwaltney and held that if a

jurisdictional discharge into waters of the United States

has occurred at any undefined point in time, a CWA

citizen suit can be premised on ongoing or reasonably

expected monitoring or reporting violations. App.17a.

The panel majority wrote that the change in law in

County of Maui affected not only the jury instructions,

but also the partial summary judgment ruling, and

the parties deserved the ability to address whether any

indirect discharge by Petitioner was the “functional

equivalent” of a direct discharge into the waters of the

15

United States. App.18a. The panel majority also concluded that the District Court erred in not presenting to

the jury Petitioner’s response to the request for admission. App.19a-20a.

Judge Collins dissented, concluding that the

District Court erred by holding, at summary judgment,

that Respondents had constitutional standing because

there was a triable issue of fact as to whether Petitioner’s alleged discharges reached or imminently threatened to reach Temescal Creek. App.26a-27a. Judge

Collins wrote that he would not overturn the verdict

based on jury instruction error, and he therefore would

remand for the District Court to address whether the

verdict was dispositive of standing, and, if not, to proceed with a trial on the then-remaining claims. App.

36a-37a. Further, Judge Collins disagreed with the

majority regarding the discovery response, concluding

that it was not an abuse of discretion by the District

Court given the late stage at which Respondents sought

to introduce the response. App.44a-45a.

I.

Petition for Rehearing En Banc and Amended

Opinion

Petitioner timely filed a petition for rehearing en

banc on October 4, 2021. App.2a. On November 5,

2021, the Ninth Circuit issued its order denying the

petition for rehearing. Id. Also on November 5, 2021,

the Ninth Circuit issued an amended opinion, which

replaced the word “into” at slip opinion page 20, line

16, with the word “to,” and removed the word “admitted” at slip opinion page 20, line 27. App.3a-21a. The

dissenting opinion of Judge Collins was unchanged.

App.2a; id. 22a-45a.

16

REASONS FOR GRANTING THE PETITION

I.

THE NINTH CIRCUIT WRONGLY PARTED WITH

THIS COURT AND OTHER COURTS OF APPEALS IN

D ETERMINING T HAT R ESPONDENTS H AD

ESTABLISHED STANDING

In conflict with this Court and other Courts of

Appeals, the Ninth Circuit incorrectly expanded

standing in private-citizen suits under the CWA. The

Ninth Circuit also departed from this Court’s precedent

regarding the level of proof a private citizen must meet

to establish standing at each stage of the litigation.

This Court should grant the Petition to bring uniformity among the Courts of Appeal on these important

issues that will impact numerous businesses, big and

small.

A. The Ninth Circuit’s Opinion Conflicts with

This Court’s Precedent and Improperly

Provides a Broad, Newfound Basis for

Standing in CWA Private-Citizen Suits.

The U.S. EPA and states were meant to be the

primary enforcers of the CWA: “The [Senate] Committee [on Public Works] intends the great volume of

enforcement actions [to] be brought by the State.”

Gwaltney, 484 U.S. at 60 (quoting S.Rep. No. 92-414,

p. 64 (1971)). The citizen suit serves only as a backup,

“permitting citizens to abate pollution when the government cannot or will not command compliance.”

Gwaltney, 484 U.S. at 62 (emphasis added) (citing legislative history).

17

As this Court further discussed in Gwaltney,

“Members of Congress frequently characterized the

citizen suit provisions as ‘abatement’ provisions or as

injunctive measures.” Id. at 61. The Court then pointed

to multiple statements in the legislative history indicating that citizen’s suits were meant to be limited

to addressing abatement of pollution. See id. (citing

Water Pollution Control Legislation, Hearings before

the Subcommittee on Air and Water Pollution of the

Senate Committee on Public Works, 92d Cong., 1st

Sess., pt. 1, p. 114 (1971) (staff analysis of S. 523) (“Any

person may sue a polluter to abate a violation . . . ”);

id., pt. 2, at 707 (Sen. Eagleton) (“Citizen suits . . . are

brought for the purpose of abating pollution”); H.R.Rep.

No. 92–911, p. 407 (1972) H.R.Rep. No. 92-911, p. 407

(1972), Leg.Hist. 876 (additional views of Reps.

Abzug and Rangel) (“[C]itizens may institute suits against

polluters for the purpose of halting that pollution”).

Respondents relied on the doctrine of associational

standing recognized in Hunt v. Washington State Apple

Advertising Commission, 432 U.S. 333, 343 (1977).

Under that doctrine, an association may establish

standing “‘solely as the representative of its members,’”

by showing that “(a) its members would otherwise

have standing to sue in their own right; (b) the interests

it seeks to protect are germane to the organization’s

purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit.” Id. at 342–43 (citation

omitted). At issue in this case is the first prong.

The elements of Article III standing are that “(1)

[the plaintiff] has suffered an ‘injury in fact’ that is (a)

concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is fairly

18

traceable to the challenged action of the defendant; and

(3) it is likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.”

Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 180–81 (2000) (citation

omitted). in arguing that these elements were

satisfied by their members, Respondents relied on the

declarations of three individuals. Each declaration

expressed concerns that Petitioner’s discharges

harmed their “use and enjoyment” of Temescal

Creek by degrading, or threatening to degrade, the

quality of its water. As Judge Collins pointed out in

his dissent, none of the declarants expressed concerns about Petitioner’s reporting or violations of other

procedural aspects of the Permit. App.34a.

This Court has made clear that the “fairly traceable” requirement is separate from the “injury in fact”

analysis, stating in Lujan v. Defenders of Wildlife, 504

U.S. 555 (1992), that “there must be a causal connection

between the injury and the conduct complained of—

the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result

[of] the independent action of some third party not

before the court.’” Id. at 560–61 (quoting Simon v.

Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41–42

(1976)).2

2 In CWA cases, both the Third and Fifth Circuits have applied

a three-part test regarding the “fairly traceable” requirement,

which requires that the plaintiff demonstrate that: “‘a defendant

has (1) discharged some pollutant in concentrations greater than

allowed by its permit (2) into a waterway in which the plaintiffs

have an interest that is or may be adversely affected by the

pollutant and that (3) the pollutant causes or contributes to the

kinds of injuries alleged by the plaintiffs.’” Friends of the Earth,

Inc. v. Crown Cent. Petroleum Corp. 95 F.3d 358, 360–361 (5th

19

In concluding that standing existed here at the

summary judgment stage, both the District Court and

the Ninth Circuit ignored the pronouncement by this

Court in Lujan that the requirements of Article III

standing are “an indispensable part of the plaintiff’s

case,” and that “each element must be supported in

the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and

degree of evidence required at the successive stages of

the litigation.” Lujan, 504 U.S. at 561. Indeed, the

panel majority’s opinion does not even reference the

“fairly traceable” requirement, which was a central

issue in the summary judgment briefing before the

District Court.

Rather, the panel majority came up with a newfound theory of standing based on “informational

injury,” unannounced in any previous decision

addressing private-citizen suits under the CWA. App.

12a-13a. To get there, the panel majority reached to a

reference by one of the standing declarants regarding

a book she was planning to write about the Santa Ana

River. Id. Yet, as Judge Collins notes in his dissent,

Respondents’ “declarations and summary judgment

motion never mentioned or relied upon the pure

information-deprivation theory of standing that the

majority concocts here.” App.34a. While the panel

majority referred to the need for information for this

book as “obvious,” the “obvious” need was never raised

Cir. 1996) (quoting Research Group of New Jersey, Inc. v. Powell

Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1990)). Had this

test been applied by the District Court or the Ninth Circuit, there

is no doubt that questions of fact remained regarding the second

and third parts, at least.

20

by Respondents in any briefing on the matter. App.12a;

id. 34a

The importance of the Ninth Circuit’s decision

cannot be understated. As the opinion indicates, the

CWA vests district courts with jurisdiction over a

citizen suit only upon proof of discharge into the

navigable waters of the United States, “but, nothing

in the statute requires the jurisdictional discharge be

current or likely to occur.” App.17a. Thus, as the Ninth

Circuit now holds, a private-citizen suit can be premised solely upon a procedural violation, so long as a

discharge into waters of the United States occurred at

some, undefined point in time in the past. This is in

stark contrast to the purpose of the private-citizen

suit as announced by this Court in Gwaltney.

B. The Ninth circuit’s Opinion Conflicts with

Other Courts of Appeals That Addressed

Standing for Private-Citizen Suits Under

the CWA.

Further supporting the granting of this Petition

is the fact that the Ninth Circuit’s opinion conflicts

with opinions of other Courts of Appeals that have

addressed the matters at issue here.

Notably, the Fifth Circuit addressed the standing

issue presented in this case, but with an opposite

conclusion. In Crown Cent. Petroleum Corp., the court

affirmed the lower court’s dismissal of discharge claims

because the plaintiff in that case failed to establish

that its members’ alleged injuries were “fairly traceable” to the defendant’s discharges. 95 F.3d at 362. In

addressing the monitoring and reporting claims, the

Fifth Circuit squarely held that “[b]ecause [plaintiff’s] members do not have standing to sue for

21

[defendant’s] discharge violations, they do not have

standing to sue for the reporting violations.” Id.

In Magnesium Elektron, Inc., the Third Circuit

declined to adopt the Fifth Circuit’s “bright-line”

rule. 123 F.3d at 124. the Third Circuit did, however,

express serious doubts that a plaintiff in a private

citizen’s suit under the CWA could meet the “redressability” requirement for standing in the absence of discharge violations. Specifically, the Magnesium Elektron

court stated, “[i]n sum, [plaintiff’s] members have

shown that they are concerned about their surroundings. They have not shown, however, that [defendant]

could reduce that concern by faithfully monitoring and

reporting its discharges according to the terms of its

permit.” Id. at 125. The Third Circuit’s holding is especially pertinent here, where there was no evidence

submitted by Respondents indicating that its members

had ever read or reviewed the reports submitted by

Petitioner under the Permit requirements.

II. THE NINTH CIRCUIT’S OPINION REGARDING THE

RFA RESPONSE CONFLICTS WITH DECISIONS OF

THIS COURT AND OTHER COURTS OF APPEALS

Also warranting this Court’s review is the Ninth

Circuit’s holding that the District Court was required

to instruct the jury on Petitioner’s response to the

request for admission. Departing from this Court’s

precedent and in conflict with other Courts of Appeals,

the Ninth Circuit essentially erased the trial court’s

discretion regarding the presentation of evidence to

the jury based on the conclusion that Federal Rule of

Civil Procedure 36 provides no room for such discretion.

There is no question that the request to present

the admission was made after evidence had closed.

22

App.58a-59a. As this Court has held, a request to

reopen for additional proof is addressed to the sound

discretion of the trial judge. Hazeltine Research, Inc.,

401 U.S. at 331-32. Following Hazeltine Research, the

Ninth Circuit has likewise held that the district court

is vested with significant discretion in determining

whether or not to reopen evidence. Thomas v. SS Santa

Mercedes, 572 F.2d 1331, 1336 (9th Cir. 1978); Berns

v. Pan American World Airways, Inc., 667 F.2d 826,

829 (9th Cir. 1982). Yet, nothing in the Ninth Circuit’s

opinion even discusses the discretion of the District

Court in making its ruling on the issue.

In reaching its conclusion, the panel majority’s

opinion also conflicts with decisions from other Courts

of Appeals that recognize a district court’s discretion

regarding the presentation of evidence to the jury.

The Eighth Circuit, for example, has recognized a

district court’s discretion regarding the effect of an

RFA because “[i]ssues change as a case develops, and

the relevance of discovery responses is related to their

context in the litigation.” Rolscreen Co. v. Pella Prods.

of St. Louis, Inc., 64 F.3d 1202, 1210 (8th Cir. 1995).

Thus, according conclusive effect to an admission “may

not be appropriate where requests for admissions or

the responses to them are subject to more than one

interpretation.” Likewise, the Eleventh Circuit has

recognized that district courts are generally afforded

discretion as to what scope and effect is to be accorded

party admissions under Rule 36. See Johnson v. DeSoto

County Bd. of Comm’rs, 204 F.3d 1335, 1341 (11th Cir.

2000).

Without any reference to the District Court’s discretion, the panel majority likened the request by

Respondents to a request for a jury instruction,

23

stating that the “request that the jury be instructed in

the final instructions sufficed.” App.20a. However, the

Local Rules for the Central District of California are

clear in requiring that “Proposed instructions [] be in

writing and shall be filed and served at least seven (7)

days before trial is scheduled to begin unless a different

filing date is ordered by the Court.” Central Dist. Local

Rule 51-1. Thus, even assuming Respondents’ request

was considered to be a request for a jury instruction, it

was untimely under the rules.

In such circumstances, the Ninth Circuit has

made it clear that a district court properly exercises

its discretion when rejecting an untimely jury instruction. See U.S. v. Federbush, 625 F.2d 246, 253 (9th Cir.

1980) (trial court did not abuse discretion in declining

to give untimely-requested jury instruction); Lustig,

555 F.2d at 751 (even if it were error to decline instruction based on other grounds, the error was excused

due to the request being untimely). The panel majority’s conclusion was not just contrary to Ninth Circuit

precedent. Other Courts of Appeal have also recognized

that a district court may appropriately decline to

include an instruction that was submitted in untimely

fashion. See Upton, 559 F.3d at 9; Ardrey, 798 F.2d at

682.

The panel majority ignored these cases, instead

relying upon an isolated reading of Federal Rule of

Civil Procedure 36. This Court’s consideration is

warranted on this point as the RFA device is commonly

used in litigation and the Courts of Appeals should be

uniform on the interplay between Rule 36 and the discretion of the district courts in overseeing jury trials.

24

CONCLUSION

For all of the foregoing reasons, this Court should

grant the Petition.

Respectfully submitted,

ERIC FROMME

COUNSEL OF RECORD

ROD PACHECO

BRIAN NEACH

PACHECO & NEACH, P.C.

3 PARK PLAZA, SUITE 120

IRVINE, CA 92614

(714) 462-1700

EFROMME@PNCOUNSEL.COM

COUNSEL FOR PETITIONER

JANUARY 21, 2022