Petition for Writ of Certiorari — Hallstrom v. Tillamook County

In the Supreme Court of the United States

October Term, 1987

OLAF A. HALLSTROM AND MARY E. HALLSTROM,

PETITIONERS

v.

TILLAMOOK COUNTY, A MUNICIPAL CORPORATION,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KIM T. BUCKLEY

MICHAEL J. ESLER

Esler, Stephens & Buckley

101 S.W. Main Street

Suite 1870

Portland, OR 97204-3226

Attorneys for Petitioners

2. The Ninth Circuit decided an

of federal law in a way in con-

flict with a decision of this Court........ ° 8

3. The presented is addressed to

this 's supervisory powet........... 10

4 The question presented is

because it involves the citizen suit

provisions of at least nine (9) federal

- environmental statutes. 11

5. - The Ninth Circuit's decision is error

because

(a)_ it elevates form over substance,

i el ie el a,

(ii)

(b) it defeats the purpose of RCRA of

encouraging citizen enforcement,

and

() it is grounded on a rationale that

conflicts with a subsequent

decision of this Court...................

CII: «- cintamnstnunisnninlaiaiaiiiimintisinicstbestirantinmien: snes

Appendix

A - Opinion and Judgment of the Ninth Circuit...

B - Amended Opinion and Judgment of the

Be iia ctciectetcttescnctecsricccccccccccecscen cece

TABLE OF AUTHORITIES

Cases:

Bob Jones University v. United States,

461 US. 574 (1983) PiNiseninaicsccccse

Bay Found v. American

Recovery Co., 769 F. 2d 207 (4th Cir. 1985)......

City of Highland Park v. Train, 519 F.2d 681

(7th Cir. 1975) cert. denied, 424 U.S. 927 (1976)

Friends of the Earth v. Carey, 535 F.2d 165

la

(iii)

CR a II a ccsccsicescecesrtencarnccorsoseccrecccossennssensceces 13

Garcia v. Cecos Int'l, Inc., 761 F.2d 76

(18¢ Cis. 1985) .1occscesccsnssesnssvencsveresserecsscnessrsserscescevees 7

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982).......ssscsrserersessrssesserseesssscscsseenes 12

Gwaltney of Smithfield v. Chesapeake Ba

Found., US.__, 108 S. Ct. 376

(19B7) ...eccocscecserecsecesesssscssececcserenoeerscossorsssosessecsoss 8,9, 10

Hallstrom v. Tillamook County, 831 F.2d 889

CIGD aceicscicrnsssesncinnssnsnenccssnensscceveccvovecesessesescessnsecseess 1

Hallstrom v. Tillamook County,

844 F. 2d 598 (1988) ee A

Hanna v. Plumer, 380 U.S. 460 (1965)............-+ 11

Hempstead County and Nevada County

Project v. U.S.E.P.A., 700 F. 2d 459

(Beta Clr. 1963) ...casocosercccscscscvsvcccsocserevensencessssessesees bs

Natural Resources Defense Council v.

Callaway, 524 F.2d 79 (2d Cir. 1975).........++-:0++ 7

Natural Resources Defense Council v.

Train, 510 F.2d 692 (D.C. Cir. 1974)..........02:0:+0++ 7

Susquehanna Valley Alliance v. Three Mile

Island, 619 F. 2d 231 (3d Cir. 1980), cert. _—

449 U.S. 1096 (1981) w 98

Walls v. Waste Resource Corp., 761 F.2d 311

(OUR GO, Be ithcetrterctncdceveservevescveccvcszcpececciconveveceee 7,8

Zahn v. International Paper Co., 414 US. 291

eee ete lieetienterseccnsanssceneescescencosccasensowenevcce 10

Statutes and regulations:

1G Ci ietetscrtcscccenencscenccessccseenecececcnesvevensveanese 3

FO Ue ittieenes ese sevccnezeccesncvcosccvccovenseccnonscecoees 3

it ccssctcscensevincscnceneentevcssrencantscnsanves 2

SO EF icv iecctcecc es caceccstseesncsccnsccenvensnncncsneesens 3

SE Tien tteretareccvevecsecesscescecnsnaccencsnsessesesecsennens 8

SB UE Be Te cere carsccccececserecvsccsesvccvcncccsenecwssweseeseee 3

33 U.S.C. § 1415(g)(2).........-.ccscvssvscnsecscesserensensenesesssncensees 3

ccc 3

ai citincheeenitionncscchabes 2-3, 3, 10

AN ARR RRR 3

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“ea 3

In the Supreme Court of the United States

OCTOBER TERM, 1987

OLAF A. HALLSTROM AND

MARY E. HALLSTROM, Petitioners

TILLAMOOK COUNTY,

a municipal corporation, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

Petitioners Olaf A. and Mary E. Hallstrom petition for 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 opinion of the court of appeais ‘App., infra, 1a-8a) is

at 831 F.2d 889 (1987). The amended opinion of

the court of appeals (App. B, infra, 9a-17a ) is reported at

844 F.2d 598 (1988). The opinion of the trial court (App. C,

infra, 18a-19a) on the question presented is not reported.

1

2

JURISDICTION

The judgment of the court of appeals (App. A, infra,

ta-8a) was entered on November 3, 1987. A timely

petition for rehearing was denied and an amended

judgment (App. B, infra, 9a-17a) was entered on April 7,

1988. The jurisdiction of this Court is invoked under 28

US.C. § 1254 (1).

STATUTES AND REGULATIONS INVOLVED

Section 7002 (b) of the Resource Conservation and

Recovery Act, 42 U.S.C. § 6972 (b) (1982 ed., Supp IID,

provides:

(6) Actions prohibited

(1) No action may be commenced under

subsection (a) (1) (A) of this section -

(A) prior to 60 days after the plaintiff has

given notice of the violation to -

(i) the Administrator;

(ii) the State in which the alleged

violation occurs; and

(iii) to any alleged violator of

such permit, standard,

regulation, condition,

requirement, or order

except that such action may be brought

immediately after such notification in the case of

an action under this section respecting a

violation of subchapter III of this chapter

(Hazardous Waste Management]; or

(B) if the Administrator or State has

commenced and is diligently prosecuting a

civil or criminal action in a court of the

United States or a State to require compliance

~~ ee ee eae Oe ee eee ae ee ee ee eee ee ees Le

3

with such permit, standard, regulation,

condition, , prohibition, or order.

In any action under subsection (a) (1) (A) of this section

in a court of the United States, any person may

intervene as a matter of

EPA Regulations on Prior of Citizen Suits [under

RCRA], 40 C.F.R. § 254 (1988) are set forth in App. D, infra,

20a-23a.

The following statutes contain identical or substantially

similar 60-day notice for citizen suits:

1. Section 505(b) of the Clean Water Act, 86 Stat. 816, 33

US.C. § 1365(b) (1982 ed.).

2 Section 304(b) of the Clean Air Act, 84 Stat. 1706, 42

U.S.C. § 7604(b) (1982 ed.).

3. Section 105 (g) (2) of the Marine Protection, Research,

and Sanctuaries Act of 1972, 86 Stat. 1057,33 U.S.C. § 1415

(g) (2) (1982 ed.).

4. Section 12(b) of the Noise Control Act of 1972, 86 Stat.

1243, 42 U.S.C. § 4911(b) (1982 ed.).

5. Section 16(b) of the ter Port Act of 1974, 88

Stat. 2141,33 US.C. § 1515(b) (1982 ed.).

6. Section 1449(b) of the Safe Drinking Water Act, 88

Stat. 1690, 42 U.S.C. § 300}-8(b) (1982 ed.).

7. Section 520(b) of the Surface 1g Control and

Reclamation Act of 1977, 91 Stat. 503,30 U.S.C. § 1270(b)

(1982 ed.).

8. Section 20(b) of the Toxic Substance Control Act, 90

Stat. 2041,15 US.C. § 2619(b)(1982 ed.).

STATEMENT OF THE CASE

Petitioners invoked the jurisdiction of the district court

under § 7002 of the Resource Conservation and Recovery

Act, 42 U.S.C. § 6972 ("RCRA"), and under 28 U.S.C. §

1331 (federal question).

4

Petitioners own and reside on a dairy farm located next

to the Tillamook County Landfill. Petitioners filed this

action to compel respondent Tillamook County to operate

its landfill in compliance with the standards and

requirements established under RCRA. Petitioners also

sought damages from respondent arising from state claims

for inverse condemnation, trespass, and nuisance.

On April 20, 1981, petitioners mailed formal notice of

their intention to sue respondent Tillamook County to

compel compliance with RCRA. Petitioners did not send a

copy of this formal notice to the Administrator of the

Environmental Protection Agency or Oregon's

Department of Environmental Quality ("DEQ"). Excerpt at

17

On April 9, 1982, petitioners filed the complaint in this

case. Petitioners did not name the Administrator or DEQ

as parties defendant. Id.

On March 1, 1983, respondent filed a motion for

summary judgment asking the trial court to dismiss the

case because 60 days' advance notice had not been given to

the EPA or DEQ. Excerpt at 301; NR. 15.

The next day, on March 2, 1983, petitioners sent a copy of

their original notice to respondent to the EPA and DEQ.

Excerpt at 17. At the same time, petitioners notified the

EPA and DEQ of their intention to refile the citizen's suit

if the trial court dismissed the case. ERX. at 61-67.

On April 2, 1983, nine (9) days before the 60-day notice

period would have expired, the trial court held that

dismissal for failure to give notice to the EPA and DEQ

“would be a waste of judicial resources.” ERX. at 82. The

trial court said in its opinion:

Neither the EPA nor the DEQ is a party in this

action. In addition, plaintiffs have cured any defect

by formally notifying the EPA and DEQ on March 2,

1983. The agencies have sixty (60) days from that date

5

to take appropriate steps to cure any violations it

finds at the Tillamook County Landfill. Over thirty

(30) days have passed with no action from either

State or Federal officials.

Id.

Trial began more than two years later on July 23, 1985,

and was completed on July 26, 1985. Excerpt at 156. The

trial court found that respondent had violated and would

continue to violate RCRA, and it oe respondent to

propose a that would completely permanently

ve habs 20" 10h adsl amounted on tlte-$8, 1985.

Excerpt at 156. The trial court found that respondent had

violated and would continue to violate RCRA, and it

ordered respondent to propose a plan that would

completely and permanently contain leachate generated by

the landfill within the landfill boundaries. Excerpt at 155-

166. The state claims were tried to a jury, which found for

respondent on all three claims.

After the final judgment was entered, petitioners moved

for an award of $42,000 in attorney fees and $53,000 in

expert witness fees. Excerpt at 181-190. The trial court

denied petitioners’ motion even though respondent was

found to be in violation of RCRA. Excerpt at 228-236.

Petitioners filed a timely notice of appeal to the Ninth

Circuit and requested review of the trial court's injunctive

relief, the denial of petitioners’ motion for attorney and

expert witness fee, and certain key evidentiary rulings.

Respondent cross-appealed on the 60-day notice question

now before the Court.

The Ninth Circuit limited its review to the 60-day notice

issue raised by respondent's Tillamook County's cross-

appeal. The Ninth Circuit observed that the majority of

the seven circuits that had considered the issue had held

that 60 days’ notice is a procedural, not a jurisdictional,

prerequisite for environmental citizen suits. The

6

difference between the two interpretations is that if the

notice provision is procedural, a failure to give notice may

be cured by a 60-day stay. If jurisdictional, the case must be

dismissed and then refiled after 60 days.

In its opinion, the Ninth Circuit discussed the

“pragmatic approach” adopted the Second, Third,

Eighth, and District of Columbia and observed

that that interpretation underscores the importance of

citizen enforcement of federal environmental policies.

The Ninth Circuit decided, however, to adopt the

"jurisdictional prerequisite approach" of the First, Sixth,

and Seventh Circuits. The Ninth Circuit reasoned that

the jurisdictional approach finds support in the plain

language of the statute and a perceived policy of allowing

the EPA and the State to avoid litigation by investigating

and correcting the violation through non-judicial means.

The Ninth Circuit said that non-judicial resolution of

environmental disputes was more likely in a non-

adversarial setting before suit is filed.

Circuit Judge Pregerson dissented. He said that the goal

of agency enforcement is served by a 60-day stay of district

court proceedings. If the agency has taken no action after

60 days, it would be excessively formalistic to require the

district court to dismiss the case and the parties to refile.

Petitioners filed a timely petition for rehearing and a

suggestion for rehearing en banc. The Ninth Circuit

denied the petition for rehearing and rejected the

suggestion for rehearing en banc. The Ninth Circuit

amended its opinion to clarify the effect of its decision on

en eee een The Ninth Circuit held that

ause t court lacked su matter jurisdiction

over the RCRA claim, it also wenere pendent jurisdiction

over the pendent state claims.

7

REASONS FOR GRANTING THE PETITION

1. The Ninth Circuit's Decision Directly Conflicts With

Decisions Of The Second, Third, Eighth, And District Of

Columbia Circuits.

At least eight other environmental statutes contain

notice provisions that are identical or similar to that

contained in RCRA. As noted in the Ninth Circuit's

opinion, courts have interpreted these provisions

identically despite slight differences in wording.

Hallstrom V. Tillamook County, 844 F .2d 598, 600 (9th

Cir. 1987).

The pragmatic approach, used by the Second, Third,

Eighth, and District of Columbia Circuits, interprets the

notice requirement in federal environmental statutes as

procedural, not . Natural Resources

Council v. Callaway, 524 F.2d 79, 83-84 (2d Cir. 1975);

Susquehanna Valley Alliance v. Three Mile Island, 619

F.2d 231, 243 (3rd Cir. 1980), cert. denied, 449 U.S. 1096

(1981); Hempstead County and Nevada County Project v.

U.S.E.P.A., 700 F.2d 459, 463 (8th Cir. 1983); Natural

Resources Defense Council v. Train, 510 F.2d 692 ( D.C. Cir.

1974). Under the pragmatic approach, a plaintiff's failure

to give formal notice to the Administrator and the State

before filing a citizen's suit the alleged violator

may be cured by a stay of for 60 days. A stay

gives the EPA or the State enough time to file an

enforcement proceeding in court to compel compliance,

thus obviating the need for the citizen suit.

Instead of interpreting the notice provision

pragmatically, the Ninth Circuit adopted the jurisdictional

prerequisite approach used by the First, Sixth, and Seventh

circuits. Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 78 (ist Cir.

1985); Walls v. Waste Resource Corp., 761 F.2d 311, 316 (6th

“aa

Cir. 1985); City of Highland Park v. Train, 519 F.2d 681 (7th

Cir. 1975), cert. denied, 424 U.S. 927 (1976). Under the

jurisdictional prerequisite approach, if a plaintiff does not

give 60 days’ notice to the Administrator, the State, and

the alleged violator, the case must be dismissed and the

plaintiff would be required to refile 60 days after formal

notice was given to the Administrator and the State.

The resolution of the 4-4 split among the circuits is the

only question presented to this Court. If this Court adopts

the pragmatic approach and interprets the 60-day notice

provision to be procedural, then the requiring

respondent Tillamook County to comply with RCRA will

be reinstated. In addition, the Ninth Circuit can then

direct its attention to the other issues that petitioners

raised on appeal, including the trial court's denial of an

award of $95,000 to reimburse petitioners for attorney and

expert witness fees they paid in connection with this case.

2. The Ninth Circuit Decided An Important

Question Of Federal Law In A Way In Conflict With A

Decision Of This Court.

The Ninth Circuit's rationale for adopting the

jurisdictional prerequisite approach is in conflict with this

Court's discussion of a nearly identical notice provision in

the Clean Water Act, 86 Stat. 816, 33 U.S.C. § 1251 et seq.

(1983 ed. and Supp. IID. Gwaltney of Smithfield v.

spp Bay Found. ___s-—~'US. , 108 S. Ct. 376

1 .

The Ninth Circuit reasoned that the jurisdictional

prerequisite approach should be adopted because (a)

citizen's suits burden federal courts, (b) citizen's suits

somehow burden the EPA, and (c) the 60-day period allows

the EPA and the State to avoid litigation in court:

9

This notice requirement is designed to balance the

value of citizen enforcement of federal environmental

policies against the burdens that such enforcement

places on the EPA and the federal courts. By notifying

the EPA and the State of potential legal action, the

citizen plaintiff allows them to avoid litigation by

investigating and correcting the alleged violation

through non-judicial means.

Hallstrom v. Tillamook County, 844 F.2d at 600 (9th Cir.

1987) (emphasis added).

In contrast, this Court wrote in Gwaltney that the 60-day

period gives the EPA and the State time to file their own

enforcement actions in either federal or state court and the

violator time to come into complete compliance. This

Court did not in any way suggest that the purpose of the

60-day notice provision was to encourage non-judicial

resolution of environmental disputes or to relieve any

perceived burden that citizen suits place on the federal

courts or the EPA. This Court said:

Citizen-plaintiffs must give notice to the alleged

violator, the Administrator of EPA, and the State in

which the allege’ violation “occurs.”

Any other conclusion [i.e., that the violation sought

to be addressed cannot be wholly in the past] would

render incomprehensible § 505's notice provision,

which requires citizens to give 60 days notice of their

intent to sue the alleged violator as well as to the

Administrator and the State. If the Administrator or

State commences enforcement action within that 60

day period, the citizen suit is barred, presumably

because governmental action has rendered it

. It follows logically that the purpose of

notice to the alleged violator is to give it an

10

opportunity to bring itself into complete compliance

with the Act and thus likewise render unnecessary a

citizen suit.

Gwaltney, supra, 108 S.Ct. at 382-83 (citations omitted).

As this Court observed in Gwaltney, the only kind of

EPA or State Action that can stop a citizen suit is a civil

enforcement proceeding filed in court. Thus, the Ninth

Circuit's concern that a pragmatic interpretation of the 60-

day notice provision would not encourage non-judicial

resolution misses the point. The statutory framework for

RCRA and the other similar environmental statutes

assumes that the only kind of non-judicial resolution of

the conflict is if the violator brings itself into complete

compliance with the statute within 60 days. Otherwise,

the violator will face court action either by governmental

authorities or by citizens acting as private attorneys

general.

Here, of course, the alleged violator was given 60 days’

notice before the action was commenced, and the

Administrator and the State chose not to file an

enforcement action in court within 60 days after they

received formal written notice of the pendency of the suit.

Had the Administrator or the State filed an enforcement

action in court, dismissal of petitioners’ case would have

been appropriate. The purpose of the notice provision

would have been served, and petitioners then could have

intervened as a matter of right. 42 U.S.C. § 6972 (b).

3. The Question Presented Is Addressed To This

Court's Supervisory Power.

This Court has final responsibility for the proper

functioning of the federal judiciary. Accordingly, cases

involving the jurisdiction of of the federal courts are

appropriate for this Court's consideration. For example,

in Zahn v. International Paper Co., 414 U.S. 291 (1973), this

11

Court considered the jurisdictional amount in class

actions.

The question presented involves the subject matter

jurisdiction of the federal district courts over citizen suits

brought to enforce at least nine federal environmental

statutes. Exercise of this Court's power of supervision will

serve "the goal of uniformity of federal procedure."

Hanna v. Plumer, 380 U.S. 460, 463 (1965).

4. The Question Presented Is Important Because It

Involves The Citizen Suit Provisions Of Nine (9)

Federal Environment Statutes.

As noted above, at least nine (9) environmental statutes

contain 60-day notice provision identical or substantially

similar to that contained in RCRA. All of these notice

provisions relate to the role and right of citizens, acting as

private attorneys general, to enforce federal environ-

mental policies. Thus, the question presented does not

affect only the parties in this case or citizen enforcement of

RCRA. The question presented also involves citizen

enforcement of the Clean Water Act, the Clean Air Act,

the Marine Protection, Research, and Sanctuaries Act of

1972, the Noise Control Act of 1972, the Deepwater Port

Act of 1974, the Safe Drinking Water Act, the Surface

Mining Control and Reclamation Act of 1977, and the

Toxic Substance Control Act.

As noted above, the question presented is the subject of a

4-4 split among the circuits. Indeed, the Ninth Circuit

panel that decided this case was split. Two members of the

of a minority of the circuits,

and one member would have adopted the approach of the

trial court and the majority of the circuits.

As a result of the Ninth Circuit's decision, a successful

citizen suit to enforce RCRA was defeated, and the

legislative purpose of encouraging citizen suits to

12

supplement the limited resources of the EPA and the State

was frustrated.

5. The Ninth Circuit’s Decision Is Error Because It

Elevates Form Over Substance And Defeats The

Purpose Of RCRA Of Encouraging Citizen

Enforcement.

The question presented is one of statutory

interpretation. As Justice Stevens noted in his dissenting

opinion in Griffin v. Oceanic Contractors, Inc., 458 U.S. 564

(1982), the question presented is how the legislature

intended the statute to apply to this case:

In final analysis, any question of statutory

construction requires the judge to decide how the

legislature intended its enactment to apply to the case

at hand. The language is usually sufficient to answer

that question, but "the reports are full of cases” in

which the will of the legislature is not reflected in a

literal reading of the words it had chosen.!

1. "It is a familiar rule, that a thing may be within the

letter of the statute and yet not within the statute,

because not within its spirit, nor within the intention

of its makers. ... This is not the substitution of the will

of the judge for that of the legislator, for frequently

used words of general meaning are used in a statute,

words broad enough to include an act in question, and

yet a consideration of the whole legislation, or of the

circumstances surrounding its enactment, or of the

absurd results which follow from giving such broad

meaning to the words, makes it unreasonable to

believe that the legislator intended to include the

particular act." Holy Trinity Church v. United States,

143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892).

458 U.S. at 577.

13

Chief Justice Burger said the same thing in Bob Jones

University v. United States, 461 U.S. 574 (1983):

It is a well-established canon of statutory construc-

ion that a court should go beyond the literal language

of a statute if reliance on that language would defeat

the plain purpose of the statute.

461 U.S. at 486.

The primary purpose of the citizen suit provisions of

RCRA and the other environmental statutes is to protect

the environment by citizen suits when the appropriate

regulatory agencies lack the human and financial

resources to act. In Friends of the Earth v. Carey, 535 F.2d

165, 172 (2d Cir. 1976), the court, in discussing the Clean

Air Act, said:

In enacting 304 of the 1970 amendments, Congress

made clear that citizen groups are not to be treated as

nuisances or troublemakers but rather as welcomed

participants in the vindication of environmental

interests. Fearing that administrative enforcement

might falter or stall, the citizen suits provision

reflected a deliberate choice by Congress to widen citi-

zen access to the courts, as a supplemental and

effective assurance that the Act would be on genome

and enforced.

535 F.2d at 172.

The subsidiary purpose of the citizen suit provisions is

to give the violator time to come into complete

compliance and the governmental agencies time to

control the course of environmental litigation if they file

an enforcement action in court in 60 days. See Chesapeake

Bay Found. v. American Recovery Co., 769 F.2d 207, 208-09

(4th Cir. 1985) (60-day waiting period gives government

opportunity to control course of litigation if it acts within

60 days) }

14

The Ninth Circuit wrote that unless the 60-day notice

was interpreted to be jurisdictional, a suit could be filed

which would automatically result in positions becoming

hardened and relations becoming adversarial so that

cooperation and compromise would be less likely. The

Ninth Circuit reasoned that an adjustment of the trial date

would never restore a 60-day nonadversarial period to the

parties. Hallstrom, supra, 844 F.2d at 601.

Here, petitioners were never adversaries to DEQ or EPA.

Indeed, as noted in Judge Pregerson's dissent, the EPA was

content to let the Hallstroms use the citizen suit provision

of RCRA to compel compliance. Id. at 602. ;

Furthermore, to require dismissal with refiling after 60

days is not going to soften positions of the actual

adversaries. Respondent was given formal notice a full

year before this action was filed. During that year,

respondent made no improvements to the site and

continued to discharge leachate onto petitioners’ farm.

RT (7/23/85) at 44.

The Ninth Circuit also reasoned that a jurisdictional

interpretation to the 60-day notice provision would

prevent legal fees from being incurred. 844 F.2d at 601. As

noted above, petitioners have spent over $95,000 for

attorneys and expert witnesses to compel compliance with

RCRA. The trial court found that respondent had in fact

violated RCRA since 1981 and would continue to do so.

Surely, Congress did not intend the efforts of citizens like

petitioners to go uncompensated merely because the EPA

and DEQ were not notified until after this case began.

A procedural or pragmatic interpretation serves both the

purposes of RCRA and the other

environmental statutes. There is nothing magic in the

filing of a lawsuit that prevents regulatory agencies from

filing their own enforcement actions. Thus, a 60-day stay

would serve the purpose of the 60-day notice requirement

15

without disserving the primary purpose of encouraging

citizen suits to protect the environment.

Finally, as the court noted in Susquehanna Valley,

supra, 619 F.2d at 243, “[RJeading [the 60-day advance

notice pro-visions of the Clean Water Act] to require

dismissal and refiling of premature suits would be

excessively forma-listic.”

CONCLUSION

For the foregoing reasons, this petition for certiorari

should be granted. If the 60-day notice requirement is

procedural rather than jurisdictional, this case should be

remanded to the ninth Circuit for consideration of the

other issues raised on petitioners’ appeal.

Respectfully submitted,

Kim T. Buckley

Michael J. Esler

Esler, Stephens & Buckley

101 S.W. Main Street

Suite 1870

Portland, OR 97204-3226

(503) 223-1510

July 6, 1988

la

APPENDIX A

Olaf A. HALLSTROM and Mary E. Hallstrom, husband

and wife, Plaintiff-Appellants, and Cross-Appellees,

v.

Appeal from the United States District Court for the

District of Oregon.

Before WRIGHT, WALLACE and PREGERSON, Circuit

EUGENE A. WRIGHT, Circuit Judge:

2a

before filing suit, the district court lacked subject matter

jurisdiction to hear the case. We remand for dismissal.

BACKGROUND

violating .

later they notified in writing the EPA and the DEQ of the

suit. They also made pendent state law

mon law nuisance, trespass, and inverse condemnation.

The district court found that leachate from the landfill

ond suo Conon Gusasiiiiine tte cee

and t on State-Wide Water Quality Management

Plan, which is incorporated by RCRA. The court ordered

the county to contain the leachate within two years. The

state claims were heard by a jury, which found for the

county on all three claims.

DISCUSSION

42 U.S.C. § 6972(b)(1) provides:

No action may be commenced under ... this section ...

prior to sixty days after the plaintiff has given notice of

the violation to—(i) the Administrator [of the EPA]; (ii)

the State in which the violation occurs; and (iii)

any alleged violator of [any] permit, standard, regulation,

condition, requirement, prohibition, or order [pursuant

to RCRA]...

At least eight environmental statutes contain identical or

similar notice provisions. Susquehanna Valley Alliance

v. Three Mile 619 F.2d 231, 242 n. 12 (3d Cir.1980),

cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824

3a

(1981). Courts have construed these provisions identically

slight differences in wording See, e.g., Garcia v.

Cecos Int'l, Inc., 761 F.2d 76, 79 (ist Cir.1985); Natural

Resources Defense Council v. Train, 510 F.2d 692, 699-700

(D.C.Cir.1974).

This notice requirement is designed to balance the value

lege vcltion through on acl means Cai

the Garcia,

761 F.2d at 81; National Resources Defense Council, 510

F.2d at 700 (D.C.Cir.1974).

This court considers for the first time the significance of

the § 6972(b)(1) requirement. Two conflicting

tions divide the circuits that have considered this section.

The “pragmatic approach,” adopted by the Second, Third,

and District of Columbia Circuits, treats the notice

in the federal environmental statutes as

procedural. See, e.g., Natural Resources Defense Counc-il

v. Callaway, F.2d 79, 83-84 (2d Cir.1975); Susquehanna

Valley Alliance, 619 F.2d at 243; Hempstead County and

Nevada County Project v. U.S.E.P.A.,700 F.2d 459, 463 (8th

Cir.1983); Natural Resources Defense Council v. Train, 510

F.2d 692 (D.C.Cir.1974). Failure to satisfy its terms may be

cured by the court staying proceedings for 60 days so that

the purpose of the notice may be met. Under

this approach, so long as 60 days elapse before the district

court takes action, formal compliance with the terms of

the requirement is not required.

This approach focuses on the role and right of the citizen

in enforcing federal environmental policies. See, ¢.g.,

Natural Resources Defense Council, 510 F.2d at 700

("[c]itizens can be a useful instrument for detecting

4a

violations and bringing them to the attention of the

enforcement agencies and courts alike.”) Adherents of

this view believe that strict application and enforcement

of the notice requirement is contrary to Congress’ intent

in permitting citizen actions. Such a construction would

frustrate citizen enforcement of the act, Pymatuning

Water Shed Citizens, etc. v. Eaton, 644 F.2d 995, 996 (3d

Cir.1981), and treat citizens as “troublemakers” rather than

“welcome participants in the vindication of environmen-

tal interests.” Proffitt v. Commissioners, Township of

Bristol, 754 F.2d 504 (3d Cir.1985)

We adopt Judge Wisdom's better reasoned “juris-

dictional prerequisite approach,” set forth in Garcia, 761

F.2d at 78. See also Walls v. Waste Resource Corp., 761

F.2d 311, 316 (6th Cir.1985); City of Highland Park v. Train,

519 F.2d 681 (7th Cir.1975), cert. denied, 424 US. 927, 96

S.Ct. 1141, 47 L.Ed.2d 337 (1976). This approach focuses on

the plain language of the statute and the policy concerns

underlying the notice

Judge Wisdom wrote, “The plain language of § 6972(b)

commands sixty days’ notice before commencement of the

suit. To accept anything less ‘constitutes, in effect, judicial

amendment in abrogation of explicit, unconditional

statutory language.” Garcia, 761 F.2d at 78. “The notice

requirement is not a technical wrinkle or su

formality that federal courts may waive at will... [I]t is part

of the jurisdictional conferral from Congress that cannot

be altered by the courts.” Id. at 79.

Strict application of the notice requirement is su

by an exception within § 6972 which waives the 60 day

notice requirement if the violation involves

hazardous waste. 42 U.S.C. § 6972. This provision makes

clear that Congress considered the 60-day notice

and intended that it in all cases,

fuse teechtine teauands Ga eT

5a

ae

We also patatiamnan teu with the First Circuit that the

tion of § 6972(b) serves better the

ee policy aims of encouraging non-judicial reso-

lution of environmental conflicts. As it noted, once a suit

is filed, positicns become hardened, parties incur legal

fees, and relations become adversarial so that cooperation

pees m= ce neg eg Garcia, 761 F.2d at 82. The

pragmatic a h fails to recognize that "a mere

adjustment of the trial date or the fling of a supplemental

or amended complaint to cure defective notice cannot

page goo, as how Chee dhe mmmnaal

Section 6972(b) and its legislative history reflect

Congress's belief that the citizen-plaintiff working with

the state or the EPA can better resolve environmental

disputes than can the courts. Congress believed that

citizen enforcement through the courts should be

to administrative enforcement by the EPA. The

notice requirement of § 6972(b) was intended to “trigger

administrative action to get the relief that [the citizen]

might otherwise seek in the courts." 116 Cong.Rec. 32,927

(1970).

Anything other than a literal interpretation of the 60-day

notice of the federal environmental statutes

would effectively render those provisions worthless. For

instance, if a citizen- could file a suit under RCRA

without following notice requirements and avoid a

the commencement of trial or discovery proceedings,

Oe SR eacae ae an

ever

this requirement. We will not

6a

Non-judicial resolution of such conflicts is more likely if

parties consider their interests and positions in a

nonadversarial setting before suit is filed. Litigation

should be a last resort only after other efforts have failed.

See comments of Senators Muskie and Hart, 116 Cong.Rec.

at 33,103-33, 104 (1970). We believe that the "jurisdictional

prerequisite” approach is more consistent with this design

than the pragmatic approach.

The Hallstroms’ failure to notify the EPA and DEQ 60

days before filing suit against the county barred the district

court's subject matter jurisdiction.

Because the jurisdiction issue is dispositive, we do not

reach the other issues. The case is remanded for dismissal.

PREGERSON, Circuit Judge, dissenting:

The majority holds that the 60-day notice requirement of

42 U.S.C. § 6972(b) is jurisdictional. It therefore holds that

the district court lacked on over this action, even

though the EPA and the Oregon Department of Environ-

mental Quality received written notice of the action more

than two years before trial began. By requiring dismissal,

the majority exalts form over substance. I therefore

dissent.

The Hallstroms filed their complaint on April 9, 1982.

They gave written notice to The EPA and the Oregon

Department of Environmental Quality (DEQ) on March 2,

1983. The EPA had actual notice in December 1982; the

DEQ in January 1983. The trial began on July 22, 1985.

Section 7002 of the Resource Conservation Recovery Act

(RCRA), 42 U.S.C. § 6972 allows for citizen enforcement of

certain statutory provisions. Section 6972(b)(1) provides

that "[nJo action may be commenced ... under this section

a prior to 60 days after the plaintiff has given notice of the

violation to—(i) the Administrator; (ii) the State in which

the alleged violation occurs; and (iii) to any alleged

7a

violator....". We must decide whether this requirement

acts to deprive a district court of jurisdiction over an

action filed in the court before 60 days have elapsed.

The majority of the circuits that have addressed this

issue have held that the 60-day notice requirement is

procedural, not jurisdictional. See, ¢.g., Hempstead

County & Nevada County Project v. EPA, 700 F.2d 459, 463

(8th Cir.1983); Susquehanna Valley Alliance v. Three Mile

Island Nuclear Reactor, 619 F.2d 231, 243 (3d Cir.1980)

(cons an identical provision of the Federal Water

Pollution Act), cert. denied, 449 U.S. 1096, 101 S.Ct.

893, 66 L.Ed.2d 824 (1981); Natural Resources Defense

Council v. Callaway, 524 F.2d 79, 83-84 (2d Cir.1975)

(construing the Federal Water Pollution Control Act):

Natural Resources Defense Council V. Train, 510 F.2d 692,

699-700 (D.C.Cir.1974) (construing amendments to the

Clean Air Act). I agree.

One of the purposes of the 60-day notice requirement is

to allow the EPA to enforce the statute. The majority,

while recognizing this purpose, contends that "the

jurisdictional interpretation of §6972(b) serves better the

underlying policy aims of encouraging non-judicial

resolution of environmental conflicts." At 891. This case

illustrates the weakness of that view. At oral argu: ent,

counsel for the Hallstroms stated that the EPA was well

aware of the conflict between the Hallstroms and

Tillamook County. In fact, EPA personnel had called him

at various stages of the district court action to ask how it

was proceeding. At no time did the EPA indicate any

interest in enforcing the statute; it was content to let the

Hallstroms proceed with their citizens’ suit.

I would interpret the statute to require that 60 days

elapse before the district court may act. This approach

furthers the goal of agency enforcement; it allows the

agency to consider the alleged violation for 60 days. If the

8a

agency has taken no action after 60 days, the district court

may proceed. It would be “excessively formalistic” to

require the district court to dismiss the action and the

parties to refile. Susquehanna Valley Alliance, 619 F.2d at

243.

9a

APPENDIX B

Olaf A. HALLSTROM and Mary E. Hallstrom, husband

and wife, Plaintiff-Appellants, and Cross-Appellees,

Vv.

Argued and Submitted Sept. 10, 1987.

Decided Nov. 3, 1987.

As Amended on Denial of Rehearing and

Rehearing En Banc April 7, 1988.

Appeal from the United States District Court for the

District of Oregon.

Before WRIGHT, WALLACE and PREGERSON, Circuit

to receive a majority of the votes active circuit

judges in favor of rehearing en banc.

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

10a

AMENDED OPINION

EUGENE A. WRIGHT, Circuit Judge:

This case requires us to determine whether failure to

comply with the 60 day notice requirement of the

Resource Conservation and Recovery Act of 1976 (RCRA)

deprived the district court of subject matter jurisdiction to

hear this case. Of the seven circuits that have considered

this issue, three have found that notice is a

prerequisite and four have held that notice is merely

We hold that proper notice is a precondition of the

district court's jurisdiction. Because the Hallstroms failed

to notify the Environmental (EPA) and

the Oregon of Environmental Quality (DEQ)

before filing suit, the district court lacked subject matter

jurisdiction to hear the case. We remand for dismissal.

BACKGROUND

The Hallstroms own property near the Tillamook

County landfill. They allege that leachate (contaminated

liquid) discharged from the landfill caused or contributed

to bacterial and chemical pollution of their surface and

ground water. In April 1982, they filed suit against the

county under 42 U.S.C. § 6972, claiming that the county

was violating RCRA, 42 U.S.C. § 6901, et seq. Nine months

later they notified in writing the EPA and the DEQ of the

suit. They also made pendent state law claims for

common law nuisance, trespass, and inverse

condemnation.

The district court found that leachate from the landfill

was polluting the Hallstroms’ land in violation of RCRA

lla

and the Oregon State-Wide Water Quality Management

Plan, which is by RCRA. The court ordered

the county to contain the leachate within two years. The

state claims were heard by a jury, which found for the

county on all three claims.

v. Three Mile 619 F.2d 231, 242 n. 12 (3d Cir.1980),

cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824

(1981). Courts have construed these provisions identically

slight differences in wording See, e.g., Garcia v.

Cecos Int'l, Inc., 761 F.2d 76, 79 (1st Cir.1985); Natural

F.2d at 81; National Resources Defense Council, 510

F.2d at 700.

This court considers for the first time the significance of

the § 6972(b)(1) requirement. Two conflicting interpre-

i eee

a

Si ee ll Oe

| a

12a

tations divide the circuits that have considered this

section.

The “pragmatic approach,” adopted by the Second, Third,

Eighth, and District of Columbia Circuits, treats the notice

requirement in the federal environmental statutes as

procedural. See, e.g., Natural Resources Defense Council

v. Callaway, F.2d 79, 83-84 (2d Cir.1975); Susquehanna

Valley Alliance, 619 F.2d at 243; Hempstead County and

Nevada County Project v. U.S.E.P.A.,700 F.2d 459, 463 (8th

Cir.1983); Natural Resources Defense Council v. Train, 510

F.2d 692 (D.C.Cir.1974). Failure to its terms may be

cured by the court staying proceedings for 60 days so that

the purpose of the notice requirement may be met. Under

this approach, so long as 60 days elapse before the district

court takes action, formal compliance with the terms of

the requirement is not required.

This approach focuses on the role right of the citizen

in enforcing federal environmental policies. See, ¢.g.,

Natural Resources Defense Council, 510 F.2d at 700

(“[clitizens can be a useful instrument for detecting

violations and bringing them to the attention of the

enforcement agencies and courts alike.”) Adherents of

this view believe that strict application and enforcement

of the notice requirement is contrary to Congress’ intent in

permitting citizen actions. Such a construction

frustrate citizen enforcement of the act, Pymatuning Water

Shed Citizens, etc. v. Eaton, 644 F.2d 995, 996 (3d Cir.1981),

and treat citizens as “troublemakers” rather than

“welcome participants in the vindication of environ-

mental interests.” v. Commissioners, Township of

Bristol, 754 F.2d 504 (3d Cir.1985)

We adopt Judge Wisdom's better reasoned “juris-

dictional prerequisite approach,” set forth in Garcia, 761

F.2d at 78. See also Walls v. Waste Resource Corp., 761

F.2d 311, 316 (6th Cir.1985); City of Highland Park v. Train,

be ee he a

7 >

l4a

disputes than can the courts. Congress believed that

citizen enforcement through the courts should be

secondary to administrative enforcement by the EPA. The

notice requirement of § 6972(b) was intended to “trigger

administrative action to get the relief that [the citizen]

might otherwise seek in the courts." 116 Cong.Rec. 32,927

(1970).

Anything other than a literal interpretation of the 60-day

notice requirement of the federal environmental statutes

would effectively render those provisions worthless. For

instance, if a citizen-plaintiff could file a suit under RCRA

without following the notice requirements and avoid a

motion to dismiss that the EPA or other

relevant authority had more than 60 days to act prior to

the commencement of trial or discovery proceedings,

then, under the realities of modern-day litigation, no one

would ever comply with this requirement. We will not

attribute to Congress an intent to enact a provision after

hours of debate that could be evaded by every potential

plaintiff, thus rendering it

Non-judicial resolution of such conflicts is more likely if

parties consider their interests and positions in a

nonadversarial setting before suit is filed. Litigation

should be a last resort only after other efforts have failed.

See comments of Senators Muskie and Hart, 116 Cong.Rec.

at 35,,103-33, 104 (1970). We believe that the

" approach is more consistent with this design

than the approach.

The Hallstroms’ failure to notify the EPA and DEQ 60

days before filing suit against the county barred the district

court's subject matter jurisdiction over the RCRA claim.

Because the court lacked federal jurisdiction at the time

the suit was filed, it lacked pendent jurisdiction also. The

federal court's power to exercise pendent jurisdiction

derives from its federal jurisdiction. See United Mine

15a

Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct.

1130, 1138, 16 L.Ed.2d 218 (1966); Hunter v. United Van

Lines, 746 F.2d 635, 649 (9th Cir. 1984), cert. denied, 474 US.

863, 106 S.Ct. 180, 88 L. Ed.2d 150 (1985).

Without federal jurisdiction, a federal court has no

power to hear state claims. Hunter, 746 F.2d at 649: “the

federal court acquires its power over the [pendent] claim ...

only if the court has properly been seized of

jurisdiction. The court's jurisdiction over the

PREGERSON, Circuit Judge, dissenting:

though the EPA and the Oregon Department of

The Hallstroms filed their complaint on April 9, 1982.

They gave written notice to The EPA and the Oregon

Department of Environmental Quality (DEQ) on March 2,

1983. The EPA had actual notice in December 1982; the

DEQ in January 1983. The trial began on July 22, 1985.

(RCRA), 42 U.S.C. § 6972 allows for citizen enforcement of

certain statutory provisions. Section 6972(b)(1) provides

that “[nJo action may be commenced ... under this section

Le

Nail

17a

Statute

court

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18a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OLAF A. and MARY E. HALLSTROM,

husband and wife, Plaintiffs,

v.

TILLAMOOK COUNTY,

a municipal corporation, Defendant.

CIVIL NO. 82-481

19a

:

Tillamook argues that plaintiffs lack juris-

as well.

the notice requirement is to allow ad-

an opportunity to cure any

Carolina Wildlife Federation v.

118, 124 (D.S.C. 1978). Defendant

Hi

HE

fe

f

s

provision would be a waste of judicial resources.

Pymatuning Water Shed Citizens v. Eaton, 644 F.2d 995,

996 (3rd Cir. 1981); Susquehanna Valley Alliance v. Three

Mile Island Nuclear Reactor, 619 F.2d 231 (3rd Cir. 1980),

cert. denied, 449 U.S. 1096 (1981).

Defendants motion to dismiss for lack of subject matter

is hereby DENIED. ;

IT ISSO ORDERED.

DATED this 22 day of April, 1983.

__ Owen M. Panner

UNITED STATES DISTRICT JUDGE

20a

APPENDIX D

PART 254 — PRIOR NOTICE OF CITIZEN SUITS

AUTHORITY: Sec. 7002, Pub: L. 94-580, 90 Stat. 2825 (42

U.S.C. 6972).

SOURCE: 42 FR 56114, Oct. 21, 1977, unless otherwise

noted.

§ 254.1 .

Section 7002 of the Solid Waste Disposal Act, as

amended by the Resource Conservation and Recovery Act

of 1976, authorizes suit by any person to enforce the Act.

These suits may be brought where there is alleged to be a

violation by any person (including (a) the United States,

and (b) any other governmental instrumentality or

agency, to the extent permitted by the eleventh

amendment to the Constitution) of any permit, standard,

regulation, condition, requirement, or order which has

become effective under the Act, or a failure of the

Administrator to perform any act or duty under the Act,

which is not discretionary with the Administrator. These

actions are to be filed in accordance with the rules of the

district court in which the action is instituted. The

purpose of this part is to prescribe procedures governing

the notice requirements of subsections (b) and (c) of section

7002 as a prerequisite to the commencement of such

actions.

§ 254.2 Service of notice.

(a) Notice of intent to file suit under subsection

7002(a)(1) of the Act shall be served upon an alleged

violator of any permit, standard, regulation, condition,

21a

t, or order which has become effective under

this Act in the following manner:

(1) If the alleged violator is a private individual or

service of notice shall be accomplished by

mail, return receipt requested, addressed to, or

plant, installation, or facility alleged to be in

violation. A copy of the notice shall be mailed to the

Administrator of the Environmental Protection Agency,

the Regional Administrator of the Environmental

Protection Agency for the region in which the violation is

to have occurred, and the chief administrative

officer of the solid waste management agency for the State

in which the violation is alleged to have occurred. If the

alleged violator is a corporation, a copy of the notice shall

also be mailed to the agent, if any, of that

corporation, a copy of the notice shall also be mailed to the

agent, if any, of that corporation in the State in

which such violation is alleged to have occurred.

(2) If the alleged violator is a State or local agency,

service of notice shall be accomplished by registered mail,

return receipt requested, addressed to, or by personal

service upon the head of that agency. A copy of the notice

shall be mailed to the chief administrator of the solid

waste management agency for the State in which the

violation is allegedly to have occurred, the Administrator

of the Environmental Protection Agency, and the

Regional Administrator of the Environmental Protection

Agency for the region in w’ ‘ch the violation is alleged to

have occurred.

(3) If the alleged violator is a Federal agency, service of

notice shall be accomplished by — mail, return

requested, addressed to, or by personal service

pul aeuaselenaman A copy of the notice shall be

mailed to the Administrator of the Environmental

’

b

f

7

f

‘

:

22a

Protection Agency, the Regional Administrator of the

Environmental Protection Agency for the region in which

the violation is alleged to have occurred, the Attorney

General of the United States, and the chief administrative

officer of the solid waste management agency for the State

in which the violation is alleged to have occurred.

(b) Service of notice of intent to file suit under

subsection 7002(a)(2) of the Act shall be accomplished by

registered mail, return receipt requested, addressed to or by

personal service upon, the Administrator, Environmental

Protection Agency, Washington, D.C. 20460. A copy of the

notice shall be mailed to the Attorney General of the

United States.

(c) Notice given in accordance with the provisions of

this part shall be considered to have been served on the

date of receipt. If service was accomplished by mail, the

date of receipt will be considered to be the date noted on

the return receipt card.

§ 254.3 Contents of notice.

(a) Violation of permit, standard, regulation, condition,

requirement, or order. Notice regarding an alleged

violation of a permit, standard, regulation, condition,

requirement, or order which has become effective under

this Act shall include sufficient information to permit the

recipient to identify the specific permit, standard,

regulation, condition requirement, or order which has

allegedly been violated, the activity alleged to constitute a

violation, the person or persons responsible for the

violation, the date or dates of the violation, and the full

name, address, and telephone number of the person

giving notice.

(b) Failure to act. Notice regarding an alleged failure of

the Administrator to perform an act or duty which is not

discretionary under the Act shal. identify the provisions of