# Petition for Writ of Certiorari — AG Industrial Manufacturing Inc. v. Waterkeepers Northern California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1050

## Text

/
OD earare Court, U.S.

Flie
No. 04- Fong

IN THE

Supreme Court of the titten State

AG INDUSTRIAL MANUFACTURING INC.
and CLAUDE E. BROWN,
Petitioners,

-.

WATERKEEPERS NORTHERN CALIFORNIA,
a non-profit corporation dba DELTAKEEPER

and BILL JENNINGS,
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

Tuomas G. Mouzes*

Dennis M. HAusER

Hauser & MouzZEs,

A PROFESSIONAL LAW CORPORATION
18826 N. Lower Sacramento Rd.
SuiteH —

P.O. Box 1397
Woodbridge, CA 95258-1397
(209) 368-1368

* Counsel of Record Attorneys for Petitioners

189723 cel

COUNSEL PRESS
(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

The United States Court of Appeals for the Ninth Circuit
reversed the district court’s determination that it lacked
subject matter jurisdiction over a private citizen’s action
seeking to enforce provisions of the Clean Water Act
(“the Act”), 86 Stat. 816, 33 U.S.C. §§ 1251, et seq. and the
General Permit issued by the State of California. Standing
to initiate such an action exists if certain pre-suit notice
conditions contained in 33 U.S.C. § 1365(b)(1)(A) as
augmented by regulation promulgated by the Administrator
of the Environmental Protection Agency (“EPA”) at 40 C.F.R.
§ 135.3(a) are satisfied. In that context, the pending Petition
presents the following issues:

1. Whether the required 60 day notice of intent-to-sue
establishes standing and subject matter jurisdiction when
petitioners, who in advance of the sending of the notice made
no efforts to comply with the Act or California’s General
Permit, upon receipt of the 60-day notice and in advance of
the filing of respondents’ complaint took steps to place the
light industrial manufacturing facility owned by petitioner
Ag Industrial Manufacturing, Inc. (“Aim”) in compliance
with the Act and California’s General Permit.

2. Whether respondents can assert in “good-faith” that
the 60-day intent-to-sue notice supplies adequate notice of
the “specific standard, limitation or order alleged to have
constituted a violation” and the dates of alleged violations
within the requirements of 40 C.F.R. § 135.3(a) so as to
confer standing and subject matter jurisdiction where:
(i) California’s General Permit provides that a light industrial
facility of the type owned by Aim is not subject to any effluent
limitations for storm water discharged from that facility;

a

il

(i1) respondent Bill Jennings testified he once saw an
Aim employee using a hose to wash something but never
saw that non-storm water discharge exit the Aim facility;
(111) respondents never collected samples, much less tested
for pollutants, of storm water being discharged into the
protected waterway; and (iv) respondents supplied an
incomplete and contradictory list of dates and amounts of
rainfall at two rainfall stations at least 15 miles from Aim’s
facility asserting in their notice that wrongful storm water
discharge occurs each calendar day that rainfall exceeds one-
tenth of one inch which assertion is subsequently invalidated
by the testimony of respondents’ expert witness.

iil
LIST OF PARTIES
The parties are as listed in the caption.
CORPORATE DISCLOSURE STATEMENT

Ag Industrial Manufacturing, Inc. (“Aim”) is a California
corporation. It has no parent or subsidiary corporation.
No publicly held company has any ownership interest in Aim.
Aim has two shareholders being Paul Burkner and petitioner,
Claude E. Brown, who is Aim’s President.

iv

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ................0.. i
FP pgs oss | BPperrrrrryee rrr Terr rr erry ili
CORPORATE DISCLOSURE STATEMENT ..... ill
pet Foe fe 3 rr rer yr rr rere iV
TABLE OF CITED AUTHORITIES ............ vi
TABLE OF APPENDICES ........ccesceseesss x
eo ke ere erer Tyr rer yee Ter TTT 1
| STATEMENT OF JURISDICTION ............. ]
STATUTORY AND REGULATORY
PROVISIONS INVOLVED ................. 1
STATEMENT OF THE CASE .......22s0es000: 5
REASONS FOR GRANTING THE PETITION ... 9

I. REVIEW IS WARRANTED TO AVOID
UNNECESSARY EXHAUSTION OF
JUDICIAL RESOURCES AND
ENCOURAGE VOLUNTARY COMP-
RSAC While SED ALCE, 20. ccceeeiecs 12

Contents
Page

A. The Ninth Circuit Has Destroyed the
EPA Requirement that Notice Be
“Specific” In Describing the Alleged
Violation to Include the Dates of
VRE. hk cavesdkasnuee ae 12

B. Subject Matter Jurisdiction Can Only Be
Determined Based Upon Facts that Exist
on the Date the Complaint Is Filed. ... 16

C. The EPA’s Requirement that the Notice
Be “Specific” Must Be Upheld So that a
Determination Can Be Made that Alleged
Violations of the Act Are Made in
“ROUSE 6 + ken deuce ous anneen 21

CURTLEARIIUNE cS cdsecbencencdtessaseundaese 23

vi

TABLE OF CITED AUTHORITIES

Page
Cases: .
Arizonans for Official English v. Arizona,
520 U.S. 43, 117 S. Ct. 1055, 137 L. Ed. 2d 170
CIDP TD oo ccacenceedeaseuesncste tae 19
Bender v. Williamsport Area School Dist.,
475 U.S. 534, 106 S. Ct. 1326, 89 L. Ed. 2d 501
CUSGSD cccecvesvataceuaseuasseeeae Leeann 19
Cmty. Ass'n for Restoration of the Env t v.
Henry Bosma Dairy,
305 F.36 S43 CP COR BOG) cc vcnccdscscccscss 14
_ Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc..,
484 U.S. 49, 108 S. Ct. 376, 98 L. Ed. 2d 306
(i. 1) BPPOPEPP PETE Te ere ee passim
Hallstrom v. Tillamook County,
493 U.S. 20, 110 S. Ct. 304, 107 L. Ed. 2d 237
CEGGEED ov vccivsasschutuneyereeavereaee 10
KVOS, Inc. v. Associated Press,
299 U.S. 269, 57 S. Ct. 197, 81 L. Ed. 183 (1936)
ob eveuscdveveceeabeesbEebERae sen 17
Land v. Dollar,
330 U.S. 731, 67 S. Ct. 1009, 91 L. Ed. 1209
ts Ey a 16-17

vii

Cited Authorities
Page
Mansfield, C.&.L.M.R. Co. v. Swan,
111 U.S. 379, 4S. Ct. 510, 28 L. Ed. 462 (1884)
sus dddnktsauwssdadendeedsdacmeieadaaress 19
McNutt v. General Motors Acceptance Corp.,
298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)
(un daeedbsdbeces sacs sadaleeeenieieenes 17
Mitchell v. Maurer,
293 U.S. 237, 55 S. Ct. 162, 79 L. Ed. 3381 (1934)
i ¢adbdngiessddoekebakicéeunaeubeniecrn 19
Mollan v. Torrance,
9 Wheat. 537, 6 L. Ed. 154 (1824) ........... 16
Natural Res. Def. Council v. Southwest Marine, Inc.,
296 F.36 FES CB Cae FOG cc cccccscseccs 12, 13, 14
Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 119 S. Ct. 1563, 143 L. Ed. 2d 760
CRUE os 554b is 40ub 6ondddesecunnenseuanen 19
San Francisco BayKeeper, Inc. v. Tosco Corp,
SED E26 1655 OC BD cn ca tewveccavccs 14, 15

Smith v. Sperling,
354 U.S. 91, 77 S. Ct. 1112, 1 L. Ed. 2d 1205
CRUE 06 0ScsccWcecedsdvascacueneennasen 16

vill

Cited Authorities
Page
Steel Company v. Citizens For a
Better Environment,
523 U.S. 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210
ER Per re rrr re Ore erry 10, 18, 19
St. Paul Mercury Indemnity Co. v. Red Cab Co.,
303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845 (1938)
PO OPE LOT Pee EE PEEP ET ETE CEE Peer 16
Thomson v. Gaskill,
315 U.S. 442, 62 S. Ct. 673, 86 L. Ed. 951 (1942)
PRP Pe eer TP UT Te EL, PTET er 17
United States v. SCRAP,
412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254
SPE ee TCT eT eT Pee T Tee OPTS TOT ee 10
WaterKeepers Northern California v. AG
Industrial Manufacturing, Inc.,
FTO Fe 08 OC. FOOD vcciicnvecevens 1 38,57
Federal Statutes:
40 C.F.R.
Subchapter N
EE coche aca's'n de aes dbs Ra RECS 6
SE 6 dee ne edness daa nee eae 5

peer ai ror cl a i, 4, 5, 10

ix

Cited Authorities
Page
28 U.S.C.

Te Ea eT Pe ae ena
“1” SRS een ecree sear prene rn tert

OD RSC OLR ee TET one
ER are athe aacermenen ets Geter 5
NS ers Fis neta seti ite a) Leon a ae 5
RN Ah Sag ers 1, 5, 16
DG

hk ee eee 10

EAR ee eigen Raoul ie a 10
State Statutes:

Cal. Water Code
SE a kd beds Se ea baseiws 5

Other:
California Water Resources Control Board,

Water Quality Order No. 97-03-DWQ:
NPDES General Permit No. CAS000001 ...5, 6, 8, 21

Federal Rules of Civil Procedure
NG Cbuai ade yale hanes tbaeas ue be 22

x

TABLE OF APPENDICES
Page
Appendix A — Opinion Of The United States Court
Of Appeals For The Ninth Circuit Filed July 16,

PEP OCT ES PERT ERT CLOT ETT TTT or ere la

Appendix B — Memorandum And Order Of The
United States District Court Eastern District Of
California Filed December 3, 2002 ........... 19a

1

OPINION BELOW

The opinion of the United States Court of Appeals
for the Ninth Circuit is reported at WaterKeepers Northern
California v. AG Industrial Manufacturing, Inc., 375 F.3d
913 (9" Cir. 2004). See Appendix A at 1a. The Ninth Circuit
reversed the unreported December 3, 2002 Memorandum and
Order of the United States District Court for the Eastern
District of California (see Appendix B at 19a) upon which a

-judgment of dismissal was entered.

STATEMENT OF JURISDICTION
- The district court had jurisdiction under 33 U.S.C.
§ 1365(a). The Ninth Circuit’s jurisdiction existed pursuant
to 28 U.S.C. § 1291. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1254(1).

The Ninth Circuit’s opinion was rendered on July 16,
2004.

STATUTORY AND REGULATORY
PROVISIONS INVOLVED

Title 33 United States Code, Section 1365
Citizen suits

(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 —

2

(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 1s 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.

(b) Notice
No action may be commenced —
(1) under subsection (a)(1) of this section —

(A) prior to sixty days after the plaintiff
has given notice of the alleged violation
(i) to the Administrator, (11) to the State
in which the alleged violation occurs, and
(111) to any alleged violator of the standard,
limitation, or order, or

3

(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 with the standard, limitation, or
order, but in any such action in a court of the
United States any citizen may intervene as a
matter of right.

(2) under subsection (a)(2) of this section prior
to sixty days after the plaintiff has given notice of
such action to the Administrator,

except that such action may be brought immediately
after such notification in the case of an action under
the section respecting a violation of sections 1316
and 1317(a) of this title. Notice under this subsection
shall be given in such manner as the Administrator
shall prescribe by regulation. [emphasis added]

(f) Effluent standard or limitation

For purposes of this section, the term “effluent
standard or limitation under this chapter” means

(1) effective July 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) certification under section 1341 of this title;

4

(6) a permit or condition thereof issued under
section 1342 of this title, which is in effect under
this chapter (including a requirement applicable
by reason of section 1323 of this title); or (7) a
regulation under section 1345(d) of this title.

(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.

Title 40, Code of Federal Regulations, Section
135.3(a)

Notice regarding an alleged violation of an
effluent standard or limitation or of an order
with respect thereto, shall include sufficient
information to permit the recipient to identify the
specific standard, limitation or order alleged to
have constituted a violation, the person or persons
responsible for the alleged violation, the date or
dates of such violation, and the full name, address,
and telephone number of the person giving notice.

5
STATEMENT OF THE CASE .

1. On June 28, 2000, respondents attempted to comply with
33 U.S.C. § 1365(a) and 40 C.F.R. § 135.3(a) by mailing their
60-day intent-to-sue letter (hereafter, “the Notice’’) to petitioner
Aim. It is undisputed that in advance of that mailing, Aim had
made no effort to comply with the Act and California’s General
Permit.'

The Act is administered largely through the National
Pollution Discharge Elimination System (“NPDES”) permit
program. See 33 U.S.C. § 1342(p). Much of the responsibility
for administering the NPDES permit system has been delegated
to the states. See 33 U.S.C. § 1342(b) and Cal. Water Code
§ 13370 (expressing California’s intent to implement its own
NPDES permit program.) Pursuant to 40 C.F.R. § 122.26(c),
California has issued one general permit to cover industrial
dischargers who are not subject to the specific effluent
limitations set forth in 40 C.F.R., Subchapter N. California Water
Resources Control Board, Water Quality Order No. 97-03-
DWQ: NPDES General Permit No. CAS000001 (“the General
Permit”).” ic

1. While irrelevant to the pending petition, petitioners assert
that until receipt of the Notice they were ignorant of the potential
applicability of the Act and the General Permit to the Aim facility.

2. The Order issuing the General Permit specifically provides
that there are no numerical effluent limitations as follows:

9. For facilities which do not have established effluent
limitation guidelines for storm water discharges in 40
C.F.R. Subchapter N, it is not feasible at this time to
establish numeric effluent limitations. This is due to the
large number of discharges and the complex nature of
storm water discharges.

General Permit Order, Addendum at ¥ 9, p. 14.

6

To elect coverage under the General Permit, individual
dischargers must file a notice of intent with the state. General
Permit at 1-2 ¥ 3. Thereafter, the discharger must develop
and implement a Storm Water Pollution Prevention Plan
(“SWPPP”) and develop and implement a comprehensive
storm water discharge monitoring, sampling’ and reporting
program. General Permit at 24-25 4§ B.1-B.15. The SWPPP
has two major objectives: (a) to identify and evaluate
pollutant sources associated with industrial activity which
may affect the quality of water discharge; and (b) to identify
and implement best management practices (“BMPs”) to
reduce or prevent pollutants associated with industrial
activities in water discharge. General Permit at 11, § A.2.
BMPs are defined at 40 C.F.R. § 122.2 and a listing of
potential non-structural and structural BMPs is set forth in
the General Permit at 19-21, J] A.8.

Aim is a small light industrial manufacturing facility with
a net worth of less than $1 million. Aim is located in the
City of Lodi, California, approximately one mile from the
Mokelumne River which the Notice specified as being the
protected waterway affected by Aim’s alleged wrongful
discharge. Aim storm water discharge does not directly flow
to the Mokelumne River but some storm water discharge may
reach the Mokelumne River through the City of Lodi’s storm
drain system. Aim sells agricultural equipment manufactured
by it or others primarily focusing upon the wine grape
industry employing approximately 40 people at peak season.

3. Samples are to be collected at least twice during the “wet”
season and are to be analyzed by a certified laboratory for certain
specified elements such as total suspended solids as well as any toxic
chemicals and other pollutants that are likely to be present in
significant quantities. General Permit at 27, | B.5.c.

7

Aim also services and repairs the equipment which it
manufactures or sells although frequently such activity occurs
in the field.

Respondents’ Notice correctly asserted that as of June
28, 2000, Aim had not filed a notice of intent, prepared a
SWPPP or developed and implemented a comprehensive
storm water monitoring and reporting program. Respondents
conducted no analysis of storm water discharge from the Aim
facility. Respondents conducted no analysis of storm water
discharge into the Mokelumne River at the point the City of
Lodi’s storm drain system discharged into that waterway.
Respondent Bill Jennings saw an Aim employee using a
hose to wash something (i.e., non-storm water); however,
Mr. Jennings did not see any non-storm water discharge
leaving the Aim facility.‘

Nevertheless, respondents’ Notice further asserted that
on unspecified dates Aim illegally discharged non-storm
water whenever equipment was hosed down and illegally
discharged storm water whenever daily rainfall exceeded one-
tenth of one inch as reflected on enclosed rainfall data.
That data purported to reflect rainfall events by date and
amount occurring at two separate reporting stations both of
which were more than 15 miles from the Aim facility.
The data was frequently incomplete and contradictory. Steven
Bond, respondents’ expert witness, admitted at his deposition
that it was incorrect to assert that storm water discharge of
one-tenth of one inch was sufficient the generate sufficient
flow to reach the Mokelumne River and that .19 inch must
occur for such discharge to reach the protected waterway.

4. Mr. Jennings conducted his initial drive by inspection of the
Aim facility on August 8, 1999 or nearly one year in advance of
sending the Notice.

8

Upon receipt of the Notice, petitioners immediately
retained the services of Dan Barber, a professional engineer,
to get the Aim facility into compliance and filed a notice of
intent for Aim with the State of California on July 7, 2000.
By July 21, 2000 Aim had developed a SWPPP which
contained several BMPs as well as a storm water discharge
monitoring® and reporting program. Respondents knew of
Aim’s notice of intent and had received a copy of Aim’s
SWPPP before they filed their Complaint initiating the
pending case.

Respondents assert that so long as the Notice in good
faith asserted on the date it was mailed that Aim’s facility
was not in compliance with the General Permit, it is irrelevant
to the issue of subject matter jurisdiction and standing what
steps Aim had taken to get into compliance with the Act
before the respondents filed their Complaint.

2. Respondents filed their Complaint in the United
States District Court for the Eastern District of California
[Sacramento Division] on September 12, 2000. Even though
respondents knew of Aim’s filed notice of intent and had a
copy of Aim’s SWPPP, that Complaint asserts several distinct
claims of violation of the Act through the failure to file a
notice of intent, the failure to adopt a SWPPP, the failure to
adopt and implement a storm water monitoring and reporting
program and wrongful discharge of storm water and non-
storm water. Respondents thereafter filed their motion for
summary judgment requesting an award of civil penalties of
$5,000,000. In response, on March 29, 2002, petitioners filed

5. Under the General Permit, monitoring of storm water
discharge is only required during day light hours at scheduled facility
operating hours within the “wet” season commencing October 1 and
concluding May 30. General Permit at 26, J§ B.4.a and 4.b.

9

their motion for summary judgment a portion of which
suggested that the Notice was inadequate so that the district
court lacked jurisdiction. The district court agreed and entered
its Memorandum and Order on December 3, 2002 upon which
a judgment of dismissal was entered.

3. Respondents filed their Notice of Appeal to the Ninth
Circuit Court of Appeals on December 31, 2002. The Ninth

Circuit’s decision reversing the district court was entered on
July 16, 2004.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit position that the sole criteria to
determine that subject matter jurisdiction and standing exists
is whether respondents’ subjective good faith exists in the
accuracy of their intent-to-sue notice on the date it was mailed
appears at variance with at least two earlier decisions of this
Court.

In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc. (hereafter, “Gwaltney”), 484 U.S. 49, 60,
64-66, 108 S. Ct. 376, 98 L. Ed. 2d 306 (1987), this Court
determined that, among other things, the purpose of the
intent-to-sue notice was to allow an opportunity for voluntary
compliance thereby avoiding the need to file and prosecute
a private citizen’s enforcement action. Inherent in Gwaltney
is that efforts of a party alleged to be in violation of the Act
to get into voluntary compliance is indeed extremely relevant
on the issue of the effectiveness of the Notice at the time the
Complaint is filed so that subject matter jurisdiction may
become the subject of attack in a properly filed summary
judgment motion if party alleged to be in violation promptly
acts to get into compliance. Indeed, the Court commented:

10

... [If the plaintiffs’ allegations of [standing]
were in fact untrue, then the [defendants] should
have moved for summary judgment on the

standing issue and demonstrated ... that the
allegations were sham and raised no genuine issue
of fact.

Gwaltney, supra, 484 U.S. at 66 quoting from United States
v. SCRAP, 412 U.S. 669, 689, 93 S. Ct. 2405, 2417,
37 L. Ed. 2d 254.

In Steel Company v. Citizens For a Better Environment
(hereafter, “Steel Co.”), 523 U.S. 83, 118 S. Ct. 1003, 140
L. Ed. 2d 210 (1998) this Court determined that the 60-day
intent-to-sue notice contained in a similar statute® which
properly asserted a statutory violation when it was mailed
would not support U.S.C.A. Const. Article III, § 2 standing
where, upon receipt of the notice and before the complaint
was filed, the alleged violator took steps which placed it in
compliance.

Further, this Court has ruled that the notice requirements
of another like type statute’ permitting private citizen’s
enforcement actions must be strictly construed and complied
with. Hallstrom v. Tillamook County, 493 U.S. 20, 110
S. Ct. 304, 107 L. Ed. 2d 237 (1989). The content of the
notice is important and must advise the alleged violator of
what conduct violates the Act and when that conduct
occurred. 40 C.F.R. § 135.3(a) requires that the notice be

6. The Emergency Planning and Community Right-To-Know
Act of 1986, 100 Stat. 1755, 42 U.S.C. § 11406(a)(1).

7. Resource Conservation and Recovery Act of 1976, 90 Stat.
2825, 42 U.S.C. § 6972.

11

“specific”. This requirement should be strictly construed and
require “good-faith” efforts on the part of the sender to avoid
mere speculation and conjecture by both identifying the
specific standards violated and supplying all known material
facts upon which the assertion of violation is made. In the
context of only sixty days within which cure may be possible,
specific information is required so that the alleged violator
can quickly evaluate its alleged wrongful conduct and
determine whether cure is possible so as to avoid unnecessary
litigation.

Simply stated, how can the proper policy of avoiding
unnecessary litigation and burden on the judicial system be
achieved if a court looks solely to the state of events that
existed at the time the intent-to-sue notice was sent as
opposed to the state of events at the time the Complaint is
filed. Such an approach completely ignores the 60-day grace
period mandated by Congress.

This Court’s guidance on the issue of the effectiveness
of notice to support jurisdiction over a private citizen’s action
is urgently needed. New light industrial manufacturing
companies who may become potentially subject to the Act
start up every day. Further, California’s General Permit has
been recently revised so as to require, for the first time, all
farming activities in California to comply with the General
Permit. Specific to petitioners, they should not be required
to go forward with the burden of obtaining summary
judgment on the merits or even trial.

The Ninth Circuit’s attitude concerning the time at which
jurisdiction attaches is as of the date of sending of notice
likely makes litigation inevitable and specifically rejects the
notion that cure is possible before a complaint is filed.

12

Subjecting an alleged violator to the reality of litigation even
if full compliance with the Act and California’s General
permit is achieved in advance of the complaint being filed
does not promote the policy of encouraging voluntary
compliance. Indeed, if confronted with the inevitability of
litigation, the alleged violator may elect to litigate and delay
compliance efforts. Any delay in compliance potentially
exacerbates delay in achieving the objectives of the Act which
will lead to less stress to the country’s natural resources
through reduced discharge of contaminants into protected
waterways.

I. REVIEW IS WARRANTED TO AVOID UNNECES-
SARY EXHAUSTION OF JUDICIAL RESOURCES
AND ENCOURAGE VOLUNTARY COMPLIANCE
WITH THE ACT.

A. The Ninth Circuit Has Destroyed the EPA
Requirement that Notice Be “Specific” In
Describing the Alleged Violation to Include the
Dates of Violation.

Natural Res. Def. Council v. Southwest Marine, Inc., 236
F.3d 985 (9% Cir. 2000) reflects the Ninth Circuit’s relaxed
attitude towards the adequacy of notice to support a private
citizen’s action. The alleged violator operated a large shipyard
which removed old paint from ships and then repainted them
having received a NPDES permit and a supplemental General
Industrial Permit which applied to storm water discharge.
Both permits required adoption of BMPs. A SWPPP was
also required which must include certain specified material.
The permits required that the SWPPP require that the
defendant perform daily inspections to ensure compliance
with its BMPs and maintain records of those inspections.

13

Id. at 992. Among other things, plaintiff’s intent-to-sue letter
asserted that the defendant was not conducting the daily
inspections or maintaining records of those inspection.
Shortly before the complaint was filed, the defendant adopted
an amended SWPPP which attempted to address and correct
various shortcomings described in plaintiffs’ notice letter.
At trial, the court determined the amended SWPPP was
adequate; however, convincing evidence was presented that
the defendant did not conduct the required daily inspections
and even if it did, it did not maintain records of those
inspections. Jd. at 993.

Plaintiff’s intent-to-sue letter did not provide specific
dates of alleged violation. Rather it specifically described
how the existing SWPPP failed to comply with the
defendant’s storm water permit by failing to perform daily
inspections and maintain records of those inspections. On
appeal, the Ninth Circuit correctly determined that subject
matter jurisdiction existed; however, in doing so the Ninth
Circuit addressed an issue which was unnecessary to the
determination of liability given the trial court determination
that there existed an ongoing and continuous failure to inspect
and maintain records of those inspections. That issue was
whether subject matter jurisdiction was lost as a consequence
of the defendant adopting an amended adequate SWPPP after
receipt of the intent-to-sue notice but in advance of filing
the complaint. The Ninth Circuit held:

If a defendant receives a proper notice letter
alleging that it has failed to prepare and implement
an adequate plan and, in response, prepares a new
plan and begins to implement it before the
complaint is filed, is the otherwise proper notice
letter defective for failing to identify and discuss

’

Bee Nae BESS AE TIES OME LBD

14

the new plan and its implementation? In those
circumstances, must a citizen-plaintiff send a
new notice letter? We think not. Subject matter
Jurisdiction is established by providing a notice

that is adequate on the date it is given to the
defendant. [emphasis added]

Id. at 997.

Cmty. Ass'n for Restoration of the Env t v. Henry Bosma Dairy,
305 F.3d 943 (9" Cir. 2002) involved two dairies operated by
the defendant who was subject to specific effluent guidelines
upon which the defendant had obtained an individual permit
for storm water discharges. There was a long history of
compliance problems. The State of Washington then adopted a
General Dairy Permit which contained specific discharge
limitations for dairies who elected to be covered by this Permit.
Plaintiff’s intent-to-sue letter described 12 specific violations
of the General Dairy Permit. Plaintiff’s complaint sought
statutory penalties not only for the 12 violations identified in
its notice letter but also 32 additional like type alleged violations.
At trial, a total of 16 violations were ultimately established.
The Ninth Circuit held that so long as the initial intent-to-sue
letter was broad enough to encompass additional like type
discharge violations and the additional alleged violations were
“from the same source, were of the same nature, and were easily
identifiable”, no new notice was required and those additional
claims could be included in the assessment of civil penalties.
Id. at 950-53.

San Francisco BayKeeper, Inc. v. Tosco Corp, 309 F.3d
1153 (9" Cir. 2002) involved the unloading and storage of
petroleum coke by the defendant. Plaintiff’s intent-to-sue
letter asserted that a violation occurred each time coke was
spilled during ship unloading and supplied fourteen dates

15

when ships had been docked at the defendant’s facility.
The notice also asserted wrongful discharge “occurred on
each day when the wind [was] sufficiently strong to blow
coke” from storage piles into a nearby waterway. The notice
further asserted whenever rain exceed one-tenth of an inch
wrongful storm water discharge containing petroleum coke
also occurred and supplied a list of 190 dates when rainfall
exceeded one-tenth of an inch. /d. at 1158. The Ninth Circuit
held that where an alleged violation is continuous and
ongoing, the notice need not contain specific dates and, in
any event, the dates of unloading of petroleum coke and when
the wind blew was presumptively known to the defendant.

The Ninth Circuit’s rule that whenever the alleged
violation is continuous and ongoing the dates of violation
either need not be stated or are presumptively known to the
defendant was specifically applied to petitioners when the
Ninth Circuit commented the respondents were “not required
to include any rain tables under San Francisco BayKeeper”
[375 F.3d at 918]® and “AG Industrial is in a much better
position to know when it periodically washes down areas of
its facility” [375 F.3d at 919]. Effectively the Ninth Circuit
has adopted a rule which states that all an intent-to-sue letter
to a light industrial company not subject to specific effluent
limitations need contain is a very general statement that the
company violated the General Permit and the Act every time
it rains or every time it allows an employee to turn on a hose
for any period of time for whatever purpose and that these
violations are continuous and ongoing. Not only does this
rule stand in apparent disregard of the EPA regulation
controlling the required contents of the intent-to-sue notice,

8. These rain tables were apparently supplied in an effort to
supply date specific information when rainfall may have exceeded
one-tenth of one inch at the Aim facility.

16

it also effectively eliminates consideration at any stage of
the litigation that specific substantive allegations of violation
must be made in good faith so that jurisdiction exists.

B. Subject Matter Jurisdiction Can Only Be
Determined Based Upon Facts that Exist on the
Date the Complaint Is Filed.

In Gwaltney, this Court commented that the “to be in
violation” language of § 505(a)(1) of the Act, 33 U.S.C.
§ 1365(a) together with the remaining statutory language of
the Act involving “the pervasive use of the present tense”
compelled the conclusion that

... the harm sought to be addressed by the citizen
suit lies in the present or the future, not in the
past.

Gwaltney, supra, 484 U.S. at 59

Determining subject matter jurisdiction solely upon the
adequacy of the intent-to-sue notice upon the date it was sent,
an event in the past, as opposed to the date the complaint is
filed is patently flawed. Subject matter jurisdiction “depends
on the state of things at the time of the action brought”.
Mollan v. Torrance, 9 Wheat. 537, 539, 6 L. Ed. 154 (1824);
see, e.g., Smith v. Sperling, 354 U.S. 91, 93 n.1, 77 S. Ct.
1112, 1113 n.1, 1 L. Ed. 2d 1205 (1957); St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58
S. Ct. 586, 590-91, 82 L. Ed. 845 (1938). Subject matter
jurisdiction can be called into question either by challenging
the sufficiency of the allegation or by challenging the
accuracy of the jurisdictional facts alleged. See, e.g., Land v.
Dollar, 330 U.S. 731, 735, n.4, 67 S. Ct. 1009, 1011 n.4,

17

91 L. Ed. 1209 (1947); Thomson v. Gaskill, 315 U.S. 442, 446,
62 S. Ct. 673, 675, 86 L. Ed. 951 (1942); KVOS, Inc. v.
Associated Press, 299 U.S. 269, 278, 57 S. Ct. 197, 201, 81
L. Ed. 183 (1936); McNutt v. General Motors Acceptance Corp.,
298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936).

A significant purpose of the intent-to-sue notice is as
follows:

... the purpose of notice to the alleged violator
is to give it an opportunity to bring itself into
complete compliance with the Act and thus render
unnecessary a citizen suit.

Gwaltney, supra, 484 U.S. at 60.

Against one Congressional policy objective of providing
a grace period to an alleged violator to opt for voluntary
compliance and thereby avoid the expense of a private
citizen’s enforcement action, Gwaltney establishes that
subject matter jurisdiction exists so long as allegations of
continuous and ongoing violation are made in “good-faith”.
Gwaltney, supra, 484 U.S. at 64. However, there exists no
sound policy reason for the Ninth Circuit rule which requires
the “good-faith” determination occur as of the date of the
Notice as follows:

Regardless of whether WaterKeepers is able to prove
each claimed discharge, its intent-to-sue letter put
AG Industrial on notice as to the violations that
WaterKeepers would allege in its complaint. The
statute and regulation require no more.

375 F.3d at 918.

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The Ninth Circuit rule focusing on the date the Notice
was mailed makes litigation inevitable (assuming the alleged
transgressor does not want to settle by stipulating to a civil
penalty award) thereby unnecessarily burdening the judicial
system. Such litigation provides no immediate benefit to our
natural water resources where an alleged violator has
voluntarily elected to place itself into compliance with the
Act and the General Permit.

In determining that subject matter jurisdiction would
exist upon “good-faith” allegations in the complaint, this
Court cautioned:

Our acknowledgment that Congress intended a
good-faith allegation to suffice for jurisdictional
purposes, however, does not give litigants license
to flood the court with suits premised on baseless
allegations. Rule 11 of the Federal Rules of Civil
Procedure, which requires pleadings to be based
on a good-faith belief, formed after reasonable
inquiry, that they are “well grounded in fact,”
adequately protects defendants from frivolous
allegations.

Gwaltney, 484 U.S. at 65.

With due respect, Rule 11 of the Federal Rules of Civil
Procedure should not be the exclusive remedy of a defendant.
A motion for summary judgment which leads into the
conclusion that subject matter jurisdiction did not exist
and standing does not exist is an appropriate way to
address whether the complaint should ever have been filed.
Steel Company, supra, 523 U.S. at 94-95 held a federal court
must resolve any jurisdictional doubt prior to a decision on

19

the merits so as to avoid a constitutionally prohibited advisory
opinion as follows:

The requirement that jurisdiction be established
as a threshold matter “spring[s] from the nature
and limits of the judicial power of the United
States” and is “inflexible and without exception”.
Mansfield, C.&.L.M.R. Co. v. Swan, 111 U.S. 379,
382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884).

Further this Court quoted from its then recent decision?
unanimously setting aside a Ninth Circuit’s merits decision
where the case had lost the elements of a justiciable
controversy as follows:

[E]very federal appellate court has a special
obligation to “satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a
cause under review,” even though the parties are
prepared to concede it. Mitchell v. Maurer, 293
U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 3381
(1934).

Steel Company, supra, 523 U.S. at 95. See also Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 577, 119 S. Ct. 1563,
1570-72, 143 L. Ed. 2d 760 (1999).

The issue is not whether a validly filed complaint’s
allegations have been rendered moot. The issue is whether
the respondents could properly invoke the jurisdiction of the

9. Arizonans for Official English v. Arizona, 520 U.S. 43, 73,
117 S. Ct. 1055, 1071-72, 137 L. Ed. 2d 170 (1997) itself quoting
from Bender v. Williamsport Area School Dist., 475 U.S. 534, 541,
106 S. Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986).

20

federal courts at the time the complaint was filed. No other
Circuit has followed, or refused to follow, the Ninth Circuit
position on the precise issue of subject matter jurisdiction
being determined as of the date of the sending of the intent-
to-sue notice.

It remains undisputed in their complaint, respondents
accused the petitioners of failing to file a notice of intent
and failing to adopt a SWPPP and storm water monitoring
program. Those allegations were no longer true when the
complaint was filed. Since the respondents had actual
knowledge that Aim had initiated compliance efforts with
the filing of Aim’s notice of intent and adoption of a SWPPP
which included several BMPs as well as a storm water
monitoring and reporting program, to include allegations in
the complaint to the contrary can never be in “good-faith”.
Remaining allegations in the complaint of speculative non-
storm water discharge and the level of contaminants of
untested storm water discharge for a facility which is not
subject to any effluent limitations in the storm water which
it discharges do not remotely meet the specificity of the EPA
regulation governing the contents of the intent-to-sue notice
and certainly do not achieve the requirement of “good-faith”
so that subject matter jurisdiction can exist. The lack of
sufficient notice grows when respondents’ own expert witness
concedes at deposition that certain rainfall data related
assertions in the Notice are inaccurate.

The district court did precisely what it was supposed to
do. Confronted with cross-motions for summary judgment,
the district court analyzed whether subject matter jurisdiction
existed. It correctly concluded that it did not. The Ninth
Circuit’s reversal shall lead other courts down the wrong path.

21

C. The EPA’s Requirement that the Notice
Be “Specific” Must Be Upheld So that a
Determination Can Be Made that Alleged
Violations of the Act Are Made in “Good-Faith”.

The Ninth Circuit has also abandoned the necessity of
specific information concerning: (i) the dates of violation;
and (ii) the standards and orders violated. True, the Notice
contains a fairly detailed reference to the General Permit and
certain of its provisions. Respondents’ Notice contains only
very general reference to the necessity of adopting BMPs to
reduce or avoid the existence of pollutants in storm water
discharge. However, the Aim facility is not subject to any
specific effluent limitations in storm water discharged under
the General Permit. See Footnote 3, supra. The Notice does
not advise what specific BMPs should be in place at the Aim
facility.

The General Permit prohibits storm water discharge
which causes, or threatens to cause, otherwise unspecified
receiving water limitations to be exceeded. Receiving water
limitations vary for each protected waterway in California
and indeed may vary as to specified portions within a
protected waterway. The Notice supplies no information what
those limitations are with reference to the Mokelumne River.
Further, through the date cross-motions for summary
judgment were filed petitioners never collected a sample of
storm water discharge at the point of discharge from the City
of Lodi storm drain system into the Mokelumne River nor
are they aware of anyone else doing so which would
determine what level, if any, that discharge from the City of
Lodi storm drain system would exceed receiving water
limitations.

22

The generality of what the Ninth Circuit believes is
sufficient for subject matter jurisdiction and standing shall
likely render Rule 11 completely ineffective since the sender
of the notice shall likely always establish that it was at least
proceeding in subjective “good-faith” when the notice was
sent. However, the critical time is whether “good-faith”
continues to exist at the time the complaint is filed since
filing the complaint marks the point in time that Rule 11 can
even start to apply.

If Rule 11 is to be an effective barrier against frivolous
litigation, upholding the requirement that the intent-to-sue
letter contain “specific” information best serves several
public policy objectives. First and consistent with due process
concerns, it provides concrete information to the alleged
violator who can then quickly examine its options. Next and
in the context of escalating exposure to civil penalties based
upon each day of violation, limiting the scope of the intent-
to-sue letter to the events specified therein encourages
voluntary compliance. Finally, voluntary compliance will
hopefully lead to improved conditions in protected waterways
while avoiding unnecessary litigation.

23

CONCLUSION

For all of the foregoing reasons, petitioners respectfully
request that the Supreme Court grant review of this matter.

Respectfully submitted,

Tuomas G. Mouzes*

DENNIS M. HAUSER

HAusER & MouzZEs,

A PROFESSIONAL LAW CORPORATION
18826 N. Lower Sacramento Rd.
Suite H

P.O. Box 1397

Woodbridge, CA 95258-1397
(209) 368-1368

Attorneys for Petitioners

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1412%3A1. Public record. Not legal advice.