Opposition — United States Environmental Protection Agency v. Northern Plains Resource Council

In Thi

Supreme Court of the United States

October Term, 1982

~

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QUESTIONS PRESENTED

I. Whether the Court of Appeals properly construed

Clean Air Act Section 307(f), 42 U.S.C. Section 7607(f),

by awarding attorneys fees to respondent even though they

did not prevail on the merits.

II. Whether the petition for a writ of certiorari was

filed within the time provided by law.

li

TABLE OF CONTENTS

Pages

WUDGLUONS PHESENTED UU i

anne OF AUTHORITiGsS li

Pee 1

REASONS FOR DENYING THE PETITION....._—_—sWgB3

EPA HAS FAILED TO FILE ITS PETITION

FOR A WRIT OF CERTIORARI IN A TIME-

LY FASHION AND IT MUST THEREFORE

Oe Peete CC

CONCLUSION ee ee

Ayreon A i ee ee

Oe ere ee a 8

TABLE OF AUTHORITIES

CasEs Pages

Department of Banking vy. Pink, 317 U.S. 264 (1942). 3,5

Federal Power Commission vy. Idaho Power Co..

ee ee ee Ce 5

Federal Trade Commission v. Minneapolis-Honey-

well Regulator Co., 344 U.S. 206 (1952) _ 4

Matton Steamboat Co. v. Murphy, 319 U.S. 412

ieee) ACLS UTR ESS OL 3

Northern Plains Resource Council v. Environmental

Protection Agency, 645 F. 2d 1349 (9th Cir. 1981)... 2

il

TABLE OF AUTHORITIES—Continned

}

Northern Plains Resource Councj] v. Environ-

mental Protection Ageney, 670 F.2d 847 (9th

Cir. 1989)

Toledo Seale Co. v. Computing scale Co., 261 U.

Ss. 3999 (1923)

(OTHER

Rule 20.4, Supreme Court Rules

Clean Air Act

$$ 7470-7479

PN

ze U.S.C, § 210]

Pages

No. 82-1828

ray

V

In The

Supreme Court of the United States

October Term, 1982

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

Petitioner.

NORTHERN PLAINS RESOURCE COUNCIL,

Responds nt,

O

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

t)

Vv

STATEMENT

The United States Environmental Protection Ageney

(“EPA”) has petitioned this Court for a Writ of Certiorari

seeking review of an order entered by the Court of Appeals

for the Ninth Circuit awarding attorneys fees to the North-

ern Plains Resource Council (*“NPRC”), Northern Plains

Resource Council v. United States Environmental Protec-

tion Agency, 670 F.2d 847 (9th Cir. 1982) (Pet. App.

A). In that case NPRC had unsuccesstully challenged a

permit issued under Part C, subpart I of the Clean Air

Act, 42 U.S.C. (Supp. IV) 7470-7479, to a consortium of

electric power utilities to construct what are known as

“Colstrip Units 3 and 4.” Northern Plains Resource Coun-

cul uv. United States Environmental Protection agency, 645

F, 2d 1349 (9th Cir. 1981). Thereafter, NPRC sought attor-

neys fees pursuant to ¢307(f) of the Clean Air Act, 42

U.S.C. (Supp. IV) 7607(f). On March 1, 1982 the cour:

of appeals ordered EPA to pay NPRC its attorneys fees

stating that “this is precisely the type of suit Congress

sought to encourage by enacting § 307(f).” (Pet. App. A

at 3a).

In its March 1, 1982 order, the court of appeals di-

rected NPRC to file a motion specifying the amount of

fees sought (Pet. App. A at 38a). Subsequently NPRC and

EPA stipulated and agreed that $15,000 was a reasonable

amount for the fees. The court of appeals was advised of

this agreement on March 27, 1982 by EPA and again

on March 31, 1982 by NPRC (Apps. A and B). That

agreement, however, did not preclude EPA from seeking

further review of the March 1, 1982 order. EPA advised

the court that “the government does not agree that an

assessment of fees against the government in these cir-

cumstances is appropriate and payment to NPRC is with-

out prejudice to the government’s right to seek further

review.” (App. A at App. 2). NPRC confirmed this under-

standing by stating to the court of appeals that EPA

reserved its right to seek review only of the March 1, 1982

order (App. B at App. 4). Even though a settlement had

been achieved, the court of appeals did not order the pay-

ment of those fees until March 3, 1983 (Pet. App. B).

°o

REASON FOR DENYING THE PETITION

EPA has failed to file its petition for a writ

of certiorari in a timely fashion and it must there-

fore be denied.

A petition for a writ of certiorari in civil cases in the

courts of appeals must be filed within ninety days after

the entry of the decree sought to be reviewed. 28 U.S.C.

§2101(c). This Court lacks jurisdiction over any petition

filed beyond the ninety day period, unless an extension is

sought and granted.'! Department of Banking v. Pink, 317

U.S. 264 (1942); Toledo Scale Co. v. Computing Scale Co.,

261 U.S. 399, 418 (1923) ; Watton Steamboat Co. v. Murphy,

319 U.S. 412, 415 (1943).

Rule 20.4, Sup. Ct. R. (1983), provides that:

‘‘The time for filing a petition for writ of certiorari

runs from the date the judgment or decree sought to

be reviewed is rendered... .’’

EPA is seeking review of the court of appeals order of

March 1, 1982, awarding attorneys fees to NPRC. EPA

does not dispute or question the specific amount of those

fees. (See Pet. at (I)). Indeed, EPA has taken the

position before the court of appeals that it would seek

review only of the March, 1982 order. According to Rule

20.4, Sup. Ct. R. (1983), EXePA’s application for a writ of

certiorari should have been filed within ninety days of

March 1, 1982.

1 Section 2101 (c) of Title 28 permits an extension of time to

apply for a writ of certiorari of up to sixty days. No exten-

sion has been sought in this case.

Decisions of this Court demonstrate that EPA has

filed an untimely petition for a writ of certiorari. In

Federal Trade Commission v. Minneapolis-Honeywell Reg-

ulator Company, 344 U.S. 206 (1952), this Court rejected

the proposition that subsequent proceedings before the

court of appeals, which did not affect any rights already

adjudicated, would extend the time period in which to

apply for certiorari. That case grew out of a proceeding

before the Federal Trade Commission wherein a three

count complaint was issued against Minneapolis-Honey-

well Regulator Co. The Commission, after hearing, ruled

against Minneapolis-Honeywell on all three counts and en-

tered a cease and desist order. Minneapolis-Honeywell

sought review in the Court of Appeals for the Seventh

Circuit. Before that court, Minneapolis-Honeywell aban-

doned its challenge to counts I and II; the court of ap-

peals reversed the Commission on count III. The Com-

mission thereafter requested the court of appeals to af-

firm the first two counts which the court did. In so af-

firming, the court of appeals again stated that count III

was reversed and dismissed. The Commission then sought

certiorari. Significantly the Commission’s petition was

filed within ninety days of the order affirming counts I

and II, but well beyond ninety days of the entry of the

first order dismissing count III. Minneapolis-Honeywell

raised the issue of the timeliness of the Commission’s

petition for a writ of certiorari. The Commission argued

to this Court that its request to the court of appeals to

2 Count | charged violations of the Federal Trade Commission

Act, Count Il, the Clayton Act, and Count III, the Robinson-

Patman Act. Federal Trade Commission v. Minneapolis-

Honeywell Regulator Company, 344 U.S. at 207.

affirm counts I and II extended the time period to seek

certiorari. This Court rejected that argument:

‘¢,. we cannot hold that the time for filing a peti-

tion for certiorari was enlarged simply because this

paper may have prompted the court below to take

some further action which had no effect on the merits

of the decision that we are now asked to review in

the petition for certiorari.”

344 U.S. at 211.

Department of Banking v. Pink, 317 U.S. 264 (1942),

was a review of a New York case. The New York Court

of Appeals remitted the case to the New York Supreme

Court; the Department of Banking sought to amend the

remittitur by adding to it a statement that a federal ques-

tion had been raised and passed upon. The remittitur was

so amended and the Department sought a writ of certi-

orari. This Court stated that the Department’s petition

was timely only if the amendment to the remittitur oper-

ated to extend the time to apply for a writ of certiorari.

Because the Department’s amendment ‘‘did not seek to

have the Court of Appeals reconsider any question de-

cided in the case,’’ 317 U.S. at 266, it did not operate

to extend the time to seek certiorari. Hence, because the

amendment did not affect any rights already adjudicated,

the subsequent proceedings did not delay the running of

the ninety day period.’

3 See also Federal Power Commission v. Idaho Power Co., 344

U.S. 17 (1952), wherein the court of appeals first remanded

a Federal Power Commission order and then modified it.

An issue was raised with respect to when the period within

which to apply for certiorari began (i. e., from the first court

of appeals order, or from the second). This Court granted

(Continued on next page)

6

As these cases show, proceedings subsequent to the

entry of an order will not operate to extend the time in

which a petition for a writ of certiorari must be filed un-

less those proceedings affect the merits or the rights ad-

Judicated in the initial order. In the present case, the

court of appeals March 1, 1982 order adjudicated the ques-

tion of whether EPA should pay NPRC’s attorneys fees.

The subsequent proceedings merely confirmed the agree-

ment between EPA and NPRC that reasonable attorneys

fees would total $15,000. Clearly, the subsequent proceed-

ings did not in any manner affect the determination that

attorneys fees would have to be paid. In fact, EPA has,

since March 1982, taken the position that it would seek

review only of the March 1, 1982 order (Apps. A and

B). Accordingly, the petition for a writ of certiorari seek-

ing a review of the question of whether attorneys fees

should be paid by EPA had to have been filed no later

than May 31, 1982. Plainly, EPA’s petition was not timely

filed and therefore this Court has no jurisdiction to grant

review.

CONCLUSION

The petitioner, United States Environmental Protec-

tion Agency, has failed to file its petition for a writ of

certiorari within ninety days of the entry of the order

awarding the Northern Plains Resource Council its attor-

(Continued from previous page)

certiorari reasoning that since the second order actually modi-

fied the first, the time period would begin to run on the

entry of the second order. 344 U. S. at 20.

~]

neys fees. The petition is therefore untimely, and should,

for that reason, be denied for lack of jurisdiction.

DATED June 9, 1983.

Respectfully submitted,

JaMEs A. Patren

Attorney of Record

JEFFREY T, Renz

PaTTen & Renz

Attorneys for the Northern

Plains Resource Council

App. l

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-7618

NORTHERN PLAINS RESOURCE COUNCIL, INC.

Petitioner,

V.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent,

MONTANA POWER COMPANY, et al.,

Intervenors.

RESPONDENT’S RESPONSE TO PETITIONER’S

MOTION SPECIFYING ATTORNEYS’ FEES

On March 1, 1982 the Court entered an order in the

above-captioned case requiring the respondent United

States Environmental Protection Agency (“EPA”) to pay

petitioner Northern Plains Resource Council (“NP RC”)

attorneys’ fees. In accordance with the March 1, 1982

order' NPRC filed its motion specifying fees on March

15, 1982 in which it requested $40,926.75 EPA hereby re-

sponds to NPRC’s motion.

1 The March 1, 1982 order gave NPRC 14 days therefrom to

file its motion and the government 14 days from the date of

NPRC’s filing to respond.

App. 2

Counsel for respondent has conferred with counsel

for NPRC regarding this matter. Said counsel have agreed

that the government will pay counsel for petitioner $15,000

and that counsel for NPRC will submit an amended motion

for fees to the Court. However, it is understood that al-

though agreement has been reached as to the amount of an

award to NPRC, the government does not agree that an

assessment of fees against the government in these cir-

cumstances is appropriate and payment to NPRC is with-

out prejudice to the government’s right to seek further

review. In fact, the government is considering seeking

rehearing but has agreed that it will pay NPRC $15,000

now because we believe it would be inequitable to delay

payment during any further proceedings.

Respectfully submitted,

Carou FE. Dinkins

Assistant Attorney General

Land and Natural Resources Division

By: /s/ ExvizaBetH STEIN

ELIZABETH STEIN, Attorney

<nvironmental Defense Section

Land and Natural Resources Division

U.S. Department of Justice

Tenth and Pennsylvania Ave., NW

Washington, DC 20530

(202) 633-2750

App. 3

APPENDIX B

IN THE COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 79-7618

NORTHERN PLAINS RESOURCE COUNCIL,

Petitioner,

Vs.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent,

MONTANA POWER COMPANY, et al.,

Intervenors.

AMENDED MOTION FOR FEES

Comes now the Northern Plains Resource Council, the

Petitioner herein, and hereby amends its motion specify-

ing the attorneys’ fees in the above-entitled matter. The

grounds for this amended motion are as follows:

1. On March 1, 1982 this Court entered an order

awarding the Petitioner Northern Plains Resource Council

its reasonable attorneys’ fees incurred in the above-entitled

proceeding. Pursuant to that order, the Petitioners sub-

mitted a motion specifying fees in the amount of $40,926.75.

2. Counsel for Petitioners has discussed with coun-

el for the Respondent the attorneys fees in this matter

and the parties have agreed that the Respondent will pay

App. 4

to the Petitioner the sum of $15,000 as reasonable attorneys

fees,

3. The Respondent has reserved its right to seek

further review of this Court’s Order of March 1, 1982. The

Petitioner similarly reserves its rights to seek an award

of additional attorneys’ fees if such are incurred in re-

sponding to further or additional reviews of this Court's

order awarding attorneys’ fees.

WHEREFORE, the foregoing reasons, the Petitioners

herein respectfully request an award of $15,000 as reason-

able attorneys’ fees in this matter.

Respectfully submitted this 3lst day of March, 1982.

PaTTEN & RENz

by: /s/ J. A, Parren

James A. PATTEN

Attorneys for the Petitioner,

Northern Plains Resource Council

JAMES A. PaTTEN

JEFFREY T, RENZ

Patten & Renz

Suite 235

Hedden-Empire Building

Billings, Montana 59101

(406) 252-6782