Reply Brief — Hallstrom v. Tillamook County

In The

Supreme Court of the United States

October Term, 1988

OLAF A. HALLSTROM and

MARY E. HALLSTROM,

Petitioners

Vv.

TILLAMOOK COUNTY,

a municipal corporation,

Respondent

"2"

~~

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

S

A

PETITIONERS’ REPLY BRIEF

ne

ee

Kim Buck.ey*

MicuakEL J. Esier

Esier, Sternens & BuckKLey

101 S.W. Main, Suite 1870

Portland, Oregon 97204-3226

(503) 223-1510

Attorneys for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CoO., eee 225-6964

or call collect (402) 342-

i

TABLE OF CONTENTS

il ee te el le, ln ee ee

Page

1. Middlesex Does Not Resolve The Issue Presented 1

2. Respondent’s Argument That There Is No Con-

————_— =

flict After Middlesex Is Wrong 4

3. Respondent’s Discussion Of Gwaltney Is Erro-

neous 5

4. When The Circuits Conflict On How To Inter-

: & .

,

.

Lc... ei a. Lee Us ak

ii

TABLE OF AUTHORITIES

Page

Cases:

Garcia v. Cecos Int'l, Inc., 761 F.2d 76 (1st Cir. 1985) . 4,6

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

(1982) 6

Gwaltney of Smithfield v. Chesapeake Bay Found.,

— U.S. —, 108 S.Ct. 376 (1987) 5, 6

Hempstead Cty. & Nevada Cty. Project v. U.S.E.A.,

700 F.2d 459 (8th Cir. 1983) 4

Holy Trinity Church v. United States, 143 U.S.

457 (1892) 7

Middlesex Cty. Sewerage Auth. v. Sea Clammers,

453 U.S. 1 (1981) 1,3

Natural Resources Defense Council v. Callaway,

524 F.2d 79 (2d Cir. 1975) 4

Natural Resources Defense Council v. Train, 510

F.2d 692 (D.C. Cir. 1974) 4

Permian Basin Area Rate Cases, 390 U.S. 747 (1970) 3

Susquehanna Valley Alliance v. Three Mile Island,

619 F.2d 231 (3rd Cir. 1980) 4

Walls v. Waste Resource Corp., 761 F.2d 311 (6th

Cir. 1985) 4,6

StTaTursEs:

42 U.S.C. 4 7604 7

No. 88-42

ra

A

In The | _

Supreme Court of the United States

October Term, 1988

Fo

——— pao

OLAF A. HALLSTROM and

MARY E. HALLSTROM,

Petitioners

Vv.

TILLAMOOK COUNTY,

a municipal corporation,

Respondent

.

™’

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ss,

“

PETITIONERS’ REPLY BRIEF

rr

’

1. Middlesex Does Not Resolve The Issue

Presented.

In Middlesex Cty. Sewerage Auth. v. Sea Clammers,

453 U.S. 1 (1981), this Court did not decide whether no-

tice was a jurisdictional or procedural requirement for

environmental citizen suits, nor did this Court discuss the

2 3

purpose of the notice requirement. Instead, this Court sented here. Indeed, the a of the words ‘‘specified pro-

, focused its attention and expressly limited its review to cedures’’ suggests that notice is a procedural, rather than

* meee tenes: a jurisdictional, requirement.

(i) whether the FWPCA [Federal Water Pollution Furthermore, although this Court sought to discover |

, feos y rneto gg: A ¥ mw th | oo yee whether Congress intended to imply a private right of |

of 1972, 33 U.S.C. 61 401 et seq.] imply a private right action by studying the statutory scheme, no attempt was |

of action independent of their +itizen-suit provisions, made, because none was required, to discover whether Con-

(ii) whether all federal common-law nuisance actions gress intended notice to be a procedural or a jurisdictional

are pre-empted by the legislative scheme contained in prerequisite.

the FWPCA and the MPRSA, and (iii) if not, wheth-

er a private citizen has standing to sue for damages Also, the sentence in Middlesex that respondent

under the federal common law of nuisance. ; Fe ng ce |

Id. at 10-11 interprets is dictum, and this Court does not decide im-

a ;

portant issues based on dicta. In Permian Basin Area

This Court said the implied right of action question Rate Cases, 390 U.S. 747 (1970), this Court rejected an

was one of determining Congress’ intent. To do that, argument based on dictum:

this Court outlined the ‘‘unusually elaborate enforcement

provisions’? of FWPCA and MPRSA and mentioned that re By is me ogg but ig if Ares gg

the citizen suit provisions require compliance with spect- pre Bi ent the Natural Gas Lee wea m7 Some

fied procedures—which respondents here ignored—includ- obliquely at issue in Bowles, and this Court does not

ing in most cases 60 days’ prior notice to potential de- decide important questions of law by cursory dicta in

fendants.’’ Id. at 14 (emphasis added). This Court then unrelated cases.

concluded : Id. at 775 (emphasis added).

In view of these elaborate enforcement provisions |

it cannot be assumed that Congress intended to au- Finally, it is worth noting that the Ninth Cireuit did |

thorize by implication additional judicial remedies for not discuss or rely on Middlesex when it concluded that .

private citizens suing under MPRSA and FWPCA. the notice requirement is jurisdictional. It is also worth |

Id. noting that in Middlesex, none of the defendants, includ- |

As can be seen from the context, this Court did not ing the EPA and the State Departments of Environmental

consider or decide whether the 6!)-day notice provision was Quality, received any notice. Here, although the EPA and

a jurisdictional or procedural requirement. The language the State did not receive prior notice, they were not

this Court chose is itself inconclusive on the question pre- parties.

4

2. Respondent’s Argument That There Is

No Conflict After Middlesex Is Wrong.

This Court should reject respondent’s invitation to

ignore the truth and pretend the 4-4 split among the Cir-

cuits does not exist. As respondent concedes, if cases de-

cided before Middlesex are not ignored, there is a direct

conflict among the Circuits that have decided the issue

presented. As noted above, Middlesex is inconclusive, so

the decisions of the Second, Third, and District of Colum-

bia Circuits cannot be simply ignored. Natural Resources

Defense Council v. Callaway, 524 F.2d 79 (2d Cir. 1975)

(procedural interpretation) ; Susquehanna Valley Alliance

v. Three Mile Island, 619 F.2d 231 (3d Cir. 1980) (pro-

cedural interpretation); and Natural Resources Defense

Council v. Train, 510 F.2d 692 (D.C. Cir. 1974) (proce-

dural interpretation).

Even if only cases decided after Middlesex are con-

sidered, there is still a conflict. In Hempstead Cty. ¢

Nevada Cty. Project v. U.S.E.A., 700 F.2d 459 (8th Cir.

1983), the Eighth Circuit held that the notice requirement

was procedural while the First Circuit in Garcia v. Cecos

Int’l, Inc., 761 F.2d 76 (1st Cir. 1985) and the Sixth Cir-

cuit in Walls v. Waste Resource Corp., 761 F.2d 311 (6th

Cir. 1985) decided that the notice requirement was juris-

dictional. |

Respondent’s attempt to distinguish Hempstead fails.

In that case, the circuit court decided it was best to trans-

fer the RCRA case to the district court if the district court

would have had subject matter jurisdiction when the ac-

tion was filed. Thus, it was necessary to consider wheth-

er the failure to give the 60-day notice to the EPA pre-

5

cluded the district court’s subject matter jurisdiction. In

holding that the purpose of the notice provision had long

been satisfied, the court held that the notice requirement

was not jurisdictional. If the notice requirement had been

jurisdictional, then the district court would not have had

subject matter jurisdiction, and the court would have had

no alternative but to dismiss the case.

Although, as respondent noted, the EPA said it would

not raise any ‘‘issue regarding the technicalities of the

' notice provision’’ in the district court, it is well estab-

lished that the parties cannot confer subject matter juris-

diction by agreement. Thus, the question whether the no-

tice requirement is a jurisdictional prerequisite was

squarely presented. Therefore, respondent’s argument

that there is no conflict after Middlesex is wrong.

3. ’s Discussion Of Is

Respondent Gwaltney |

This Court wrote in Gwaltney of Smithfield v. Chesa-

peake Bay Found., — U.S. —, 108 S.Ct. 376, 382 (1987),

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 that the notice provision also gives the

violator time to come into complete compliance. This

Court expressly said that the purpose of the notice to the

alleged violator was to give it time to bring itself into

complete compliance, thereby rendering unnecessary a citi-

zen’s suit. Although this Court did not specifically begin

a sentence with the words ‘‘The purpose of the notice

provision to the EPA.and the State . . .,”” the import of

this Court’s discussion of the notice provision to the EPA

and the State is clear enough. The purpose of the notice

De tis, Ss» li

provision is to give the EPA and the state time to file

their own enforcement actions, thus rendering unnecessary

a citizen’s suit.

If the only kind of action by the EPA or the state

that can stop a citizen’s suit is a civil enforcement pro-

ceeding filed im court, then the Ninth Circuit’s concern

(and that of Garcia and Walls), that a pragmatic inter-

pretation of the notice provision would not encourage non-

judicial resolution, is not relevant. If the Ninth Circuit’s

primary reason for interpreting the notice provision as

jurisdictional is not one supported by this Court’s analysis

of the purpose of the notice provision, then the Ninth Cir-

cuit’s decision should be reversed.

As respondent noted, ‘‘the starting point for inter-

preting a statute is the language of the statute itself.’’

Gwaltney, supra, 108 S.Ct. at 381 (emphasis added). The

reason why the language of the statute itself is the start-

ing point, and not the end point, is because the intent of

Congress is not always accurately reflected in the words

it has chosen. As noted previously, the purpose of the

statutory interpretation is to determine how Congress in-

tended its statute to apply to the case at hand. Griffin

v. Oceanic Contractors, Inc., 458 U.S. 564, 577 (1982)

(Stevens, J., dissenting).

It is inconceivable that Congress intended the result

in this case. The purpose of the notice provision is to.

7

give time to act. If no action is taken, then the citizens

should proceed to protect the environment. After all, it

is the environment that Congress thought to protect, and

the right of citizens to sue is not one intended to protect

citizen rights, but the purity of the environment. As Sen-

ator Hart observed concerning citizen suits to enforce the

Clean Air Act, 42 U.S.C. § 7604:

First of all, it should be noted that the bill makes

no provision for damages to the individual. It there-

fore provides no incentives to suit other than to pro-

tect the health and welfare of those suing and others

similarly situated. It will be the rare, rather than

the ordinary person, I suspect, who, with no hope of

financial gain and the very real prospect of financial

loss, will initiate court action under this bill.

116 Cong.Rec. 33104 (1970) (emphasis added).

Respondent concludes that there is nothing remark-

able about the result in this case. Petitioners disagree.

This case has involved four years of litigation, four days

of trial, a finding of an RCRA violation, and the citizen

plaintiffs have spent $95,000 to obtain protection for the

environment.

Petitioners at least partly complied with the letter of

the notice provision when they gs.ve notice to respondent.

Despite this notice, respondent continued to pollute the

environment and still does so. Congress surely did not

intend that a citizen’s failure to give notice is worse than

polluting the environment.

The interpretation that respondent advocates pro-

tects the polluter at the expense of the environment and

the private attorney general. This is not what Congress

intended, and this is why this Court has the power to go

beyond the letter of the statute to give effect to what

Congress intended. Holy Trinity Church v. United States,

143 U.S. 457, 459 (1892) (court will consider whole legis-

lation to avoid absurd results and to accomplish intention

of legislature).

Respectfully submitted, .

Kim Buckiey .

Micuagt J. Ester

Ester, StepHens & BuckLey

101 S.W. Main Street

Suite 1870

Portland, Oregon 97204-3226

(503) 223-1510

Attorneys for Petitioners