# Petition for Writ of Certiorari — Laguna Gatuna, Inc. v. Browner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2247%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 516 U.S. 1071 ## Text Court, U.&. FILED ‘) gR- 465 SEP 18 9 No. __OFFICE OF THE CLERK In The Supreme Court of the United States October Term, 1995 + LAGUNA GATUNA, INC., A New Mexico Corporation, Petitioner, v. CAROL M. BROWNER, Administrator of the Environmental Protection Agency, JANE N. SAGINAW, Regional Administrator, Region VI of the Environmental Protection Agency, and the ENVIRONMENTAL PROTECTION AGENCY, Respondents. + Petition For Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit ° PETITION FOR WRIT OF CERTIORARI - « Topp Stusss WeELcH* *Counsel of Record WILLIAM Perry PENDLEY Paut M. Sesy MOowunrtTAIN STATES LEGAL FOUNDATION 1660 Lincoln Street, Suite 2300 Denver, Colorado 80264 (303) 861-0244 Attorneys for Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 ISSUES PRESENTED 1. Whether the Due Process Clause is violated when an individual is placed in the “constitutionally intolerable position” of having to choose between either obeying an Environmental Protection Agency cease and desist order, thereby forgoing any possibility of judicial review, or violating that order and risking enormous and severe penalties, effectively cutting off all access to the courts? 2. Whether the total silence in Clean Water Act § 1319(a) as to the matter of judicial review and the absence of the “meaningful review” for jurisdictional claims under the Clean Water Act authorize the holding of the Tenth Circuit that judicial review is precluded under that statute, especially since, as this Court noted in Abbott Laboratories v. Gardner, “(t]he right of review is too important to be excluded on such slender and indetermi- nate evidence of legislative intent?” 3. Whether the holding of the Tenth Circuit, that a lawsuit challenging an Environmental Protection Agency CWA § 1319(a) cease and desist order constitutes “pre- enforcement review” and that no judicial review of such an order is permitted, is contrary to the holding of this Court in Thunder Basin Coal v. Reich since Laguna Gatuna has “no other means . . . to protect and enforce” its rights? 4. Whether the holding of the Tenth Circuit, that judicial review is not permitted of an Environmental Pro- tection Agency cease and desist order that deprives Laguna Gatuna of property and liberty interests, is con- trary to numerous holdings of this Court that federal ISSUES PRESENTED - Continued courts have the jurisdiction to review the constitu- tionality of such actions by federal agencies? 5. Whether the holding of the Tenth Circuit, that while Laguna Gatuna’s “argument that it should not be necessary to violate an EPA order and risk civil and criminal penalties to obtain judicial review is well taken,” such a result is not “constitutionally intolerable” since granting Laguna Gatuna judicial review “would under- mine the EPA’s regulatory authority,” is contrary to numerous holdings of this Court as to the balance between Constitutional questions and matters of adminis- trative convenience? iii LIST OF PARTIES Laguna Gatuna, Inc. (Laguna Gatuna) was Plaintiff in the United States District Court for the District of New Mexico and Appellant before the United States Court of Appeals for the Tenth Circuit. Laguna Gatuna is a corpo- ration organized under the laws of the State of New Mexico. Laguna Gatuna has no parent or subsidiary cor- porations. The following were Defendants in the United States District Court for the District of New Mexico and Appel- lees before the United States Court of Appeals for the Tenth Circuit: Carol M. Browner, in her official capacity as Administrator of the Environmental Protection Agency; Joe D. Winkle, in his official capacity as Acting Regional Administrator of Region VI of the Environmen- tal Protection Agency (Mr. Winkle has since been replaced in his official capacity by Jane N. Saginaw); and the Environmental Protection Agency. iv TABLE OF CONTENTS Page SGUES PREGENTEDy «.. 6.cce iv ceest yp chseiessowenes i Ce CO PRES s bv dec coccaccey¢ieusvegvestdae ts iii CPs IG a 5k bie oe ee Tie 1 pA ye. Se ere pry ries 2 CONSTITUTIONAL PROVISION INVOLVED....... 2 SET PT eRe Cac doe cedc db eedaearedecs 2 STATEMENT OF THEE CAGE o oieicic cc dicaccvvns ccdens 3 TEPER EE GC WI rid awicctnviiag cance} snes 5 REASONS FOR GRANTING THE WRIT ........... 7 I. THE DECISION OF THE TENTH CIRCUIT CRE- ATES A TRUE, DIRECT, AND IRRECONCILABLE CONFLICT WITH DECISIONS OF THIS COURT REGARDING THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. ..........cccccceese 7 Il. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRRECON- CILABLE CONFLICT WITH DECISIONS OF THIS COURT REGARDING THE REVIEWABILITY OF ADMINISTRATIVE CSR a Silas ccoue sd sven sat aupneeia ede eeks 11 A. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRREC- ONCILABLE CONFLICT WITH DECI- SIONS OF THIS COURT SINCE LAGUNA GATUNA IS DENIED THE RIGHT TO “MEANINGFUL REVIEW” OF ITS CLAIMS TABLE OF CONTENTS - Continued Page B. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRREC- ONCILABLE CONFLICT WITH DECI- SIONS OF THIS COURT SINCE THE LANGUAGE, STRUCTURE, PURPOSE AND LEGISLATIVE HISTORY OF THE CLEAN WATER ACT EVIDENCE NO INTENT TO PRECLUDE JUDICIAL ROT bidekekagrewncenesesscekspreediaes 13 C. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRREC- ONCILABLE CONFLICT WITH DECI- SIONS OF THIS COURT REGARDING THE FACT THAT CONSTITUTIONAL GUAR- ANTEES ARE SUPERIOR TO PUBLIC POL- Ba; 6 GE So kdacceiscbeevtner cokes 15 D. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRREC- ONCILABLE CONFLICT WITH DECI- SIONS OF THIS COURT REGARDING THE INTERPRETATION OF A FEDERAL STAT- eee ce doencsces vivasse balan ereweeueeeEes 16 E. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRREC- ONCILABLE CONFLICT WITH DECI- SIONS OF THIS COURT REGARDING THE STRONG PRESUMPTION OF JUDICIAL WU a i hed be se re bind tevecdtateresess 18 III. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRRECON- CILABLE CONFLICT WITH THE DECISION OF THIS COURT IN THUNDER BASIN COAL COMPANY V. REICH REGARDING LAGUNA GATUNA’S RIGHT TO JUDICIAL REVIEW.... 19 vi TABLE OF CONTENTS - Continued Page IV. THE DECISION OF THE TENTH CIRCUIT CRE- ATES A TRUE, DIRECT, AND IRRECONCIL- ABLE CONFLICT WITH DECISIONS OF THIS COURT THAT STATUTORY PRECLUSION OF JUDICIAL REVIEW OF AGENCY ACTION CANNOT FORECLOSE CONSIDERATION OF CONSTITUTIONAL OR LEGAL QUESTIONS.. 23 CURVE SMG 00 005 CR Csk coe cdee cake aceeeeeeteees 25 Vii TABLE OF AUTHORITIES Page CASES Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) passim American School of Magnetic Healing v. McAnnulty, he Ee eran ae ae ee 18 Battaglia v. General Motors, 169 F.2d 254 (2nd Cir. 1948), cert. denied, 355 U.S. 887 (1948)............. 23 Block v. Community Nutrition Institute, 467 U.S. 340 SUES ER Sty PW al cuuedncccdiceces ti dhe ce 13, 15, 17, 18 Board of Regents v. Roth, 408 U.S. 564 (1972)........ 8, 9 Buttrey v. United States, 690 F.2d 1170 (5th Cir. BO hoe AN koe Saba Saks inhis inc4dde vied cakes bas 20 Califano v. Sanders, 430 U.S. 99 (1977) ............... 23 Dunlop v. Bachowski, 421 U.S. 560 (1975)............. 19 Fuentes v. Shevin, 407 U.S. 67 (1972)................. 10 Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803) .... 23 Mathews v. Eldridge, 424 U.S. 319 (1976).............. 8 National Federation of Federal Employees v. Wein- berger, 818 F.2d 935 (D.C. Cir. 1987)............... 24 National Labor Relations Board v. Food and Commer- cial Workers, 484 U.S. 112 (1987) ............... 17, 18 Oestereich v. Selective Service System, 393 U.S. 233 PEE Pabd Pekales 660656 CUE w eth Nasewersbeee scene 23 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .... 16 Peoples Gas, Light & Coke Co. v. U.S. Postal, 658 F.2d ae Se ER Wass ob WawecePabees sas saduseees 19 viii TABLE OF AUTHORITIES - Continued Page Rueth v. United States Environmental Protection Agency, 13 F.3d 227 (7th Cir. 1993)...........0000- 19 Scheuer v. Rhodes, 416 U.S. 232 (1974) ............... 20 St. Joseph Stock Yards Co. v. United States, 298 U.S. 8 | Pe rer errr rey Peres re rte 23 Thunder Basin Coal Company v. Reich, 510 U.S. __, S27 L.G.Se BO CISION 0 os cn ccscscsescncnsaees passim Turner v. U.S. Parole Comm'n, 810 F.2d 612 (7th Cir. gg SP rs re eee ayers pr eer near 19 U.S. v. James Daniel Good Real Property, 114 S. Ct. CRG inks 0 54 han ii Ss Sock sence en eee 7 United States v. Emerson, 846 F.2c 541 (9th Cir. Sc 4 sis 655 2d KR ARE ee ee ee eee 24 Webster v. Doe, 486 U.S. 592 (1988)............... 17, 24 CONSTITUTIONAL PROVISIONS Pith Aenea. is ish oes Goer 2; Sh '& 7 ae STATUTES Ritiog &. Ff ewreririT Peto 2 Mt CO no ee a 2 Oe San Se Rew OC. OU Sis 6 0655s cacasare keseceeevens 2 Se Wa Ba aa ree Saved Sei keeee eee eecees a ee Sa Tt PEED 02645 cuoxereciawens 5, tay oe ae oe Se Rk te Res ea acaherieucnddessedeunvaneas il 90 URE. © TRIO oes oo oko css cdianee 6 ix TABLE OF AUTHORITIES - Continued Page ee se MEE o's Vin ada xo $0460 ds eased de scese 6 ee re ee aes uy ay ale uesmon 6 ee ED an 36 La baeks sues Kee dkat cox? 6, 13, 14 ee a I fo ar haa 4s 6 pb we ae ake bececcekcuns 6 BR re ee en eee 15 OTHER AUTHORTIES Albrecht and Issacs, Wetlands Jurisdiction and Judicial Review, Natural Resources and Envi- | BPS ee ee 20 Websters’ Third New International Dictionary of the English Language, Unabridged (1981)......... 22 — e In The Supreme Court of the United States October Term, 1995 4 LAGUNA GATUNA, INC., A New Mexico Corporation, Petitioner, CAROL M. BROWNER, Administrator of the Environmental Protection Agency, JANE N. SAGINAW, Regional Administrator, Region VI of the Environmental Protection Agency, and the ENVIRONMENTAL PROTECTION AGENCY, Respondents. 4 Petition For Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit * PETITION FOR WRIT OF CERTIORARI * OPINIONS BELOW Review is sought of the as yet unpublished opinion of the United States Court of Appeals for the Tenth Cir- cuit, dated June 20, 1995, appearing at pages App. 1 to App. 7 of the Appendix. The order of the District Court, dated April 8, 1994, also unpublished, appears at pages App. 8 to App. 9 of the Appendix. ¢ JURISDICTION Petitioner seeks review of the opinion and judgment issued by the United States Court of Appeals for the Tenth Circuit. The Supreme Court has jurisdiction to review this opinion pursuant to 28 U.S.C. § 1254(1). nae @ CONSTITUTIONAL PROVISIONS INVOLVED The Fifth Amendment to the U.S. Constitution is at issue in this Petition for Writ of Certiorari. The Fifth Amendment provides in part: No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (App. 24.) STATUTES INVOLVED The statutes involved in this appeal are the Clean Water Act (CWA), 33 U.S.C. § 1311 et seq., and the Admin- istrative Procedure Act (APA), 5 U.S.C. § 702 et seq. The specific provision of the CWA at issue in this case is found at 33 U.S.C. § 1319, and appears at pages App. 25 to App. 43 of the Appendix. The specific provision of the APA is 5 U.S.C. § 704, and appears at page App. 44 of the Appendix. STATEMENT OF THE CASE This case presents a challenge to an interpretation of the CWA that Laguna Gatuna may not challenge a find- ing by the Environmental Protection Agency (EPA) that property belonging to Laguna Gatuna is “waters of the United States,” unless and until Laguna Gatuna violates EPA's “cease and desist order” thereby subjecting Laguna Gatuna to $25,000 a day fines, a $125,000 fine for “know- ing” violations and jail time. On June 24, 1994, Laguna Gatuna, Inc. (Laguna Gatuna) filed an action in the United States District Court for the District of New Mexico alleging that: (1) the EPA did not have jurisdiction over lands belonging to Laguna Gatuna regarding which the EPA had issued a “cease and desist order” since that property contains no “waters of the United States;” (2) Laguna Gatuna’s procedural due process rights, as guaranteed by the Fifth Amendment, had been violated by EPA’s “cease and desist order” since Laguna Gatuna was deprived of its liberty interests with- out due process; (3) Laguna Gatuna’s procedural due process rights, as guaranteed by the Fifth Amendment, had been violated by EPA’s “cease and desist order” since Laguna Gatuna was deprived of its property interests without due process; and (4) Laguna Gatuna’s substan- tive due process rights, as guaranteed by the Fifth Amendment, had been violated by EPA’s “cease and des- ist order.” On September 18, 1994, the United States filed a Motion to Dismiss the action, arguing that the District Court lacked subject matter jurisdiction. The United States asserted that: (1) there can be no challenges to “pre-enforcement decisions” made by the EPA; (2) the EPA had not taken “final” action that would provide jurisdiction under the APA; (3) the United States had not waived its sovereign immunity to suits challenging “com- pliance orders” issued under the CWA; (4) Laguna Gatuna’s claim that the EPA failed to observe the rulemaking procedures of the APA was without merit; and (5) Laguna Gatuna’s Fifth Amendment rights to due process had not been violated by the EPA.! On April 8, 1994, after a hearing on the motion to dismiss, the District Court issued an Order dismissing Laguna Gatuna’s complaint. On June 7, 1994, Laguna Gatuna filed a Notice of Appeal with the United States Court of Appeals for the Tenth Circuit. On May 18, 1995, oral arguments were held before the Court of Appeals. On June 20, 1995, the Court of Appeals issued an opinion holding: Laguna’s policy argument that it should not be necessary to violate an EPA order and risk civil and criminal penalties to obtain judicial review is well taken. Nevertheless, following the rea- soning of our sister circuits, we reject Laguna’s conclusion such a situation is “constitutionally intolerable.” Judicial review of every unen- forced compliance order would undermine the EPA’s regulatory authority. (App. 7.) This Petition for Writ of Certiorari follows. ¢ 1 The United States declared that the EPA “need not engage in a prior adjudicatory process to issue such orders [as that issued against Laguna Gatuna].” (Appellee’s Brief to the Tenth Circuit at 7.) Thus, there was no “prior adjudicatory process” before the cease and desist order was issued and there has been no “adjudicatory process” or judicial review since the order was issued. STATEMENT OF FACTS Laguna Gatuna is a New Mexico corporation, owned and operated by Larry Squires, a New Mexico rancher who lives in Hobbs, New Mexico. Laguna Gatuna’s sole business is the disposal of waters produced in association with oil and gas operations in New Mexico. Laguna Gatuna disposed of those waters in a “sinkhole” —- known as Laguna Gatuna - that consists of approximately 400 acres, a major portion of which is owned or controlled by Laguna Gatuna and is located near Hobbs, New Mexico.? Despite its name, Laguna Gatuna is a “sinkhole,” not a “playa lake.”> Furthermore, the sinkhole is hydro- logically isolated because no streams empty into it; no streams drain out of it; and there are no surface or groundwater connections between it and any other water body. Thus, the sinkhole cannot possibly be defined as “waters of the United States.” (App. 11.) In 1987, Laguna Gatuna requested a ruling from the EPA as to whether the sinkhole utilized by Laguna Gatuna constituted “waters of the United States” as defined by the CWA. The EPA responded, in writing, that 2 Of the 400 acres, a portion is owned by the U.S. Govern- ment and managed by the U.S. Bureau of Land Management (BLM). The remainder of Laguna Gatuna is privately owned or under contract to be sold to the Laguna Gatuna. (App. 12.) Laguna Gatuna had a permit from the BLM for its disposal operation. The BLM permit was revoked when EPA issued its cease and desist order. 3 “Laguna” in Spanish means “small lake.” A “sinkhole” is formed by the erosion of an underlying salt structure and its subsequent collapse. Playas, on the other hand, are formed by wind erosion or by the wallowing of buffalo. the sinkhole did not constitute “waters of the United States.” (App. 13.) With this understanding, Laguna Gatuna carried on its lawful business. Then in 1991, the EPA changed its position and declared the sinkhole to be “waters of the United States.” Subsequently, in May of 1992, the EPA served Laguna Gatuna with a “cease and desist” order pursuant to 33 U.S.C. § 1319(a) prohibiting any and all discharges into the sinkhole on pain of the penalties under the CWA.4 The EPA’s order, which is the final administrative deci- sion of the agency, not subject to change, is based upon the EPA’s factual and legal determination that the sink- hole constitutes “waters of the United States” and is subject to the EPA’s CWA jurisdiction. 33 U.S.C. § 1362(7). Laguna Gatuna complied immediately with the order issued by the EPA and ceased discharges into the sink- hole. As a result of its compliance with the EPA order, Laguna Gatuna has been driven out of business. (App. 15-16.) 4 A violation of the EPA’s cease and desist order constitutes a violation of the CWA which carries penalties of $25,000 a day and three years in prison, as well as administrative penalties of up to $125,000, per violation. 33 U.S.C. § 1319(c),(d) & (g). (App. 28-43) “Knowing” violations of the Act are separately punish- able under the CWA and carry penalties of up to $50,000 per day, plus three years in prison. 33 U.S.C. § 1319(c)(2). (App. 29-30.) REASONS FOR GRANTING THE WRIT I. THE DECISION OF THE TENTH CIRCUIT CRE- ATES A TRUE, DIRECT, AND IRRECONCILABLE CONFLICT WITH DECISIONS OF THIS COURT REGARDING THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. The holding of the Tenth Circuit Court of Appeals that Laguna Gatuna may not challenge the determination of the EPA that Laguna Gatuna’s property is “waters of the United States,” unless and until Laguna Gatuna vio- lates the EPA’s cease and desist order, denies Laguna Gatuna its due process rights as guaranteed by the Fifth Amendment of the Constitution.5 Moreover, that decision places the Tenth Circuit in direct and irreconcilable con- flict with several holdings of this Court. For example: The Due Process Clause of the Fifth Amendment guarantees that “[n]lo person shall .. . be deprived of life, liberty, or property, without due process of law.” Our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property. U.S. v. James Daniel Good Real Property, 114 S. Ct. 492, 498 (1993). This Court consistently has held that some form of hearing is required before an individual is 5 The Tenth Circuit Court of Appeals held: “[W]Je conclude that the CWA provides no basis for such proceeding, despite strong due process arguments advanced by the appellant.” (App. 2.) (Emphasis added.) finally deprived of a property interest. (Cita- tions omitted) The “right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a prin- ciple basic to our society.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). This Court has held that a procedural due process claim has two components. First, a party must show that a constitutionally-protected property or liberty interest has been taken. Second, the party must show that the procedural safeguards surrounding the deprivation were inadequate. See, Board of Regents v. Roth, 408 U.S. 564, 568-69 (1972). Laguna Gatuna, as owner of the property upon which the sinkhole is located, has a “protected property interest” in the property that the EPA claims to be “waters of the United States.” Furthermore, Laguna Gatuna has “protected [liberty] interest[s]” in its ability “to contract, to engage in any of the common occupations of life... . and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” Roth, 408 U.S. at 572.© Therefore, the first component of the test set forth by this Court has been met. Laguna Gatuna has property and liberty inter- ests in both its land and its business that have been destroyed by the EPA’s determination that the sinkhole constitutes “waters of the United States.” © “By the same token, the Court has required due process protection for deprivations of liberty ....” Id. As to the second component of procedural due pro- cess, the adequacy of the procedural safe guards, this Court has held: “When protected [property and liberty] interests are implicated, the right to some kind of prior hearing is paramount.” Roth, 408 U.S. at 569-70. (Emphasis added.) Nevertheless, Laguna Gatuna had no hearing: neither a hearing prior to the issuance of the order by the EPA that the sinkhole constitutes “waters of the United States” and that all discharges must cease, nor judicial review subsequent to the EPA’s order. Moreover, under the holding of the Tenth Circuit, Laguna Gatuna will never receive any judicial review. In its holding, the Tenth Circuit, while noting that Laguna Gatuna’s “argument” was “well taken,” ignored what this Court has recognized as “the dilemma of either obeying the law and thereby forgoing any possibility of judicial review, or risking ‘enormous’ and ‘severe’ penal- ties, [that] effectively cut off all access to the courts.” Thunder Basin Coal Company v. Reich, 510 U.S. __, 127 L.Ed.2d 29, 46 (1994). (Scalia, J. concurring). As this Court has held, the Constitution compels the right to be heard: The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his [property]. . . . For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property inter- ests can be prevented. .. . “[And nJo better instrument has been devised for arriving at truth than to give a person in jeopardy of 10 serious loss notice of the case against him and opportunity to meet it.” Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972). Unlike the facts in Thunder Basin Coal where this Court held that it “need not consider [the due process] claim, because neither compliance with, nor continued violation of, the statute will subject petitioner to a serious prehearing deprivation,” in this case Laguna Gatuna has been subjected to such deprivation. Thunder Basin Coal, 127 L.Ed.2d at 43. In fact, Laguna Gatuna has been driven out of business by the EPA’s order. Clearly, unlike the facts in Thunder Basin Coal this is “evidence that [Laguna Gatuna] will be subject to serious harm if it complies with [the EPA’s order].” Id. Thus, “the practical effect [of the hundreds of thousands of dollars of fines and jail time for violation of the EPA’s order] for non-compliance [is] to foreclose all access to the courts.” Id. at 44. Furthermore, “this [is] a situation in which compliance is sufficiently potent that a constitutionally intolerable choice [is] pre- sented.” Id. The holding of the Tenth Circuit is clearly in error since it is contrary to the holding of this Court in Thunder Basin Coal. The holding of the Tenth Circuit deprives Laguna Gatuna of the constitutional guarantees this Court has held are required before deprivation of a property or liberty interest can occur. Thus, the Tenth Circuit’s opin- ion represents a true, direct and irreconcilable conflict with the numerous holdings of this Court. 11 Il. THE DECISION OF THE TENTH CIRCUIT CRE- ATES A TRUE, DIRECT, AND IRRECONCILABLE CONFLICT WITH DECISIONS OF THIS COURT REGARDING THE REVIEWABILITY OF ADMIN- ISTRATIVE ORDERS. The Tenth Circuit Court of Appeals held that orders issued in accordance with 33 U.S.C. § 1319(a) of the CWA are not reviewable, notwithstanding the fact that the CWA does not preclude judicial review of the cease and desist orders issued by the EPA under 33 U.S.C. § 1319(a)(3). The Tenth Circuit’s holding is in direct con- flict with this Court’s rulings that judicial review of agency action is available unless Congress specifically forbids review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967). In the absence of evidence that Congress intended to prohibit pre-enforcement review of § 1319(a) orders under the CWA, federal courts have subject matter jurisdiction to review the agency action. This Court has recently set forth the test to determine whether judicial review is precluded by a particular stat- ute: Whether a statute is intended to preclude initial judicial review is determined from the statute's language, structure, and purpose, its legislative history, and whether the claims can be afforded meaningful review. Thunder Basin Coal, 127 L.Ed.2d at 38. (Citations omitted.) In the case at bar, there has been no “meaningful review” of Laguna Gatuna’s claims that the EPA lacks jurisdiction over the sinkhole in New Mexico. Furthermore, a review of the CWA concludes that Congress did not intend to preclude judicial review. 12 A. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRRECON- CILABLE CONFLICT WITH DECISIONS OF THIS COURT SINCE LAGUNA GATUNA IS DENIED THE RIGHT TO “MEANINGFUL REVIEW” OF ITS CLAIMS. In Thunder Basin Coal this Court held that “whether the claims can be afforded meaningful review” is an essential element of the test to determine if a statute precludes judicial review. Thunder Basin Coal, 127 L.Ed.2d at 38.7 Thus, even if a court finds that the “language, structure, and purpose” and/or the “legislative history” of a particular statute precludes judicial review, the court must still determine “whether the claims can be afforded meaningful review.” Id. Otherwise, constitutionally required due process has not been afforded. Despite the clarity of the holding of this Court on the subject, the Tenth Circuit ignored the fact that there was no “meaningful review.” Under the holding of the Tenth Circuit, judicial review is precluded forever since Laguna Gatuna has no intention of violating the EPA cease and desist order and since the EPA will not bring an “enforce- ment action” against Laguna Gatuna until Laguna Gatuna violates the cease and desist order. Thus, Laguna Gatuna is forced to submit to the intolerable position of having to “obey[] the [administrative order] and thereby forgo[] 7 Since the test this Court has articulated to determine whether a statutory scheme precludes review consists of several elements divided by the conjunction “and,” each of those ele- ments must be met before judicial review can be precluded by the statute. 13 any possibility of judicial review, or risk[] ‘enormous’ and ‘severe’ penalties, effectively cut[ting] off all access to the courts.” Thunder Basin Coal, 127 L.Ed.2d at 46. This is a true Hobson’s choice. The holding of the Tenth Circuit thus violated this Court’s rulings that judicial review is not precluded by an act of Congress if the statute denies “meaningful review.” Regardless of the provisions of the CWA or its legislative history, judicial review is compelled by this Court’s hold- ing in Thunder Basin Coal. B. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRRECON- CILABLE CONFLICT WITH DECISIONS OF THIS COURT SINCE THE LANGUAGE, STRUCTURE, PURPOSE AND LEGISLATIVE HISTORY OF THE CLEAN WATER ACT EVI- DENCE NO INTENT TO PRECLUDE JUDI- CIAL REVIEW. The presumption of judicial review may be overcome “by specific language or specific legislative history that is a reliable indicator of congressional intent.” Block v. Com- munity Nutrition Institute, 467 U.S. 340, 349 (1984). In this case both the CWA and its accompanying legislative his- tory are totally silent on the issue of judicial review of § 1319(a) orders. Thus, the statute and its history lack the clear and convincing evidence necessary to demonstrate Congressional intent to deny judicial review. Moreover, simply because Congress expressly pro- vided for review of 33 U.S.C. § 1319(g) orders, (which are altogether different from 33 U.S.C. § 1319(a) orders), in 14 the 1987 CWA amendments, does not indicate Congres- sional intent to preclude review of 33 U.S.C. § 1319(a) orders.® The presumption of review is not rebutted when a statute expressly provides the right of review for certain agency actions and decisions, but makes no mention of review of other decisions by the agency: The mere fact that some acts are made review- able should not suffice to support an implication of exclusion as to others. The right to review is too important to be excluded on such slender and inde- terminate evidence of legislative intent. Abbott Laboratories, 387 U.S. at 141. (Emphasis added.) Furthermore, given that Congress specifically pre- cluded judicial review of “emergency orders” under the CWA, it is clear that Congress was capable of denying, and did deny, judicial review when it determined such denial was appropriate and within a statute’s regulatory scheme. Despite this Court’s clear holding as to the manner in which judicial review may be denied, the Tenth Circuit Court of Appeals held that judicial review was denied for § 1319(a) orders. As a result, the holding of the Tenth Circuit is in true, direct and irreconcilable conflict with 8 Petitioner notes that Congress, in adding the 1987 Amendments, included the following provision: Nothing in this subsection shall change the pro- cedures existing on the day before February 4, 1987, under other subsections of this section for issuance and enforcement of orders by the Administrator. 33 U.S.C. § 1319(g). Therefore, Congress specifically retained the right of judicial review that existed prior to the passage of the 1987 amendments. 15 this Court’s holdings in Thunder Basin Coal, 127 L.Ed.2d at 38; Block, 467 U.S. 340; and Abbott Laboratories, 387 U.S. 136. C. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRRECON- CILABLE CONFLICT WITH DECISIONS OF THIS COURT REGARDING THE FACT THAT CONSTITUTIONAL GUARANTEES ARE SUPERIOR TO PUBLIC POLICY CONCERNS. The Tenth Circuit affirmed the decision of the District Court because “[j]udicial review of every unenforced compliance order would undermine the EPA’s regulatory authority.” (App. 7.) In the case at bar, Laguna Gatuna’s challenge to the EPA’s determination that Laguna Gatuna’s property is “waters of the United States” does not affect “the EPA’s regulatory authority.” In fact, Laguna Gatuna has complied with the cease and desist order issued by the EPA. Moreover, in cases such as this, in which the activity has ceased and the only issue is the validity of the agency action, “the EPA’s regulatory authority” will not be undermined. When an alleged violator continues with its activity despite an EPA com- pliance order, the EPA may seek a temporary restraining order or preliminary injunction while a court challenge to that compliance order is pending. In the case of an emer- gency, the EPA may use its emergency powers under the CWA. 33 U.S.C. § 1364(a). Laguna Gatuna challenges only the EPA’s determina- tion that the sinkhole is “waters of the United States.” Laguna Gatuna does not seek to keep the EPA from enforcing the CWA, but it merely seeks review by a 16 federal court of whether EPA’s determination is in accor- dance with federal law. It is an action brought to preserve Laguna Gatuna’s due process rights. Even if the Tenth Circuit was correct that Laguna Gatuna’s action would interfere with the EPA’s regulatory authority that consideration is irrelevant in the face of a constitutional guarantee. The Tenth Circuit may not so easily brush aside due process guarantees out of concern for “regulatory authority.” As this Court has held: We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way... . Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922). Clearly, the holding of the Tenth Circuit is in true, direct and irreconcilable conflict with the decisions of this Court. D. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRRECON- CILABLE CONFLICT WITH DECISIONS OF THIS COURT REGARDING THE INTER- PRETATION OF A FEDERAL STATUTE. When courts have found legislative intent to pre- clude judicial review of agency actions, those courts have found evidence of such intent in the act’s legislative history or in the act itself. For example, in Lloyd A. Fry Roofing Co. v. U.S. Environmental Protection Agency, 554 F.2d 885 (8th Cir. 1977), even though the court found the Clean Air Act silent on preclusion, there was evidence in 17 the legislative history supporting preclusion. That is, lan- guage specifically preserving the right to judicial review of the challenged agency action had been deleted from the Clean Air Act in conference committee. Fry, 554 F.2d at 890. In this case the Tenth Circuit looked beyond the CWA to find authority for denying judicial review.’ Because the CWA is silent both on its face and in its legislative history as to the question of judicial review, the right of citizens to judicial review must be presumed. This court has held that the presumption of judicial review may be overcome only “by specific language or specific legislative history that is a reliable indicator of congressional intent.” Block, 467 U.S. at 349 (1984). Fur- thermore: The mere fact that some acts are made review- able should not suffice to support an implication of exclusion as to others. The right to review is too important to be excluded on such slender and inde- terminate evidence of legislative intent. Abbott Laboratories, 387 U.S. at 141. (Emphasis added.) See also, Thunder Basin Coal, 127 L.Ed.2d at 38. Nowhere does this Court sanction a review of a separate and totally unrelated statute to discern Congressional intent. Only the statute at issue can provide the clear Congressional intent. Webster v. Doe, 486 U.S. 592, 603 (1988); See also National Labor Relations Board v. Food and Commercial Workers, 484 U.S. 112, 131 (1987). By finding authority from other federal statutes the decision of the Tenth Circuit is in true, direct, and irreconcilable conflict with 9 The Tenth Circuit cited “analogous authority concerning ... CERCLA and the Clean Air Act.” (App. 4.) 18 decisions of this Court that the statute at issue is the only “reliable indicator of congressional intent.” Block, 467 U.S. at 349 (1984). E. THE DECISION OF THE TENTH CIRCUIT CREATES A TRUE, DIRECT, AND IRRECON- CILABLE CONFLICT WITH DECISIONS OF THIS COURT THAT THERE IS A STRONG PRESUMPTION OF JUDICIAL REVIEW. This Court has held consistently that actions of fed- eral administrative agencies are presumed to be review- able in federal courts. Block v. Community Nutrition Institute, 467 U.S. 340 (1984).1° This presumption of reviewability was articulated clearly in Abbott Laboratories where this Court held “judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” Abbott Laboratories, 387 U.S. at 140. Thus, courts may restrict access to judicial review only upon a showing of “clear and convincing evidence” of legislative intent to restrict review. Abbott Laboratories, 387 U.S. at 141. “The statutory preclusion of judicial review must be demonstrated clearly and convincingly.” National Labor Relations Board v. Food and Commercial 10 Further this Court has held that this presumption of reviewability of agency action predates enactment of the APA. See American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902). The APA simply codified this longstanding presump- tion. 19 Workers, 484 U.S. 112, 131 (1987).11 Furthermore, such intent must be demonstrated persuasively. Abbott Labora- tories, 387 U.S. at 140. Notwithstanding the holding of this Court in Abbott Laboratories, the Tenth Circuit relied not upon “clear and convincing evidence” in the CWA to deny judicial review, but relied instead on “analogous authorities.” (App. 4.) This the Tenth Circuit cannot do. Therefore, the decision of the Tenth Circuit is in true, direct, and irreconcilable conflict with the decisions of this Court that presume judicial review. Ill. THE DECISION OF THE TENTH CIRCUIT CRE- ATES A TRUE, DIRECT, AND IRRECONCILABLE CONFLICT WITH THE DECISION OF THIS COURT IN THUNDER BASIN COAL COMPANY V. REICH REGARDING LAGUNA GATUNA’S RIGHT TO JUDICIAL REVIEW. The decision of the Tenth Circuit is in direct conflict with the decision of this Court in Thunder Basin Coal, 127 L.Ed.2d 29 (1994). In Thunder Basin Coal the challenge was not to the jurisdiction of the Secretary of Labor under the Mining Act because there was no question that jurisdic- tion existed. However, in the case at bar, jurisdiction of the EPA is the seminal issue. This issue was addressed by the Seventh Circuit in Rueth v. United States Environmental Protection Agency, 13 F.3d 227 (7th Cir. 1993): 11 Accord Dunlop v. Bachowski, 421 U.S. 560, 567 (1975); Turner v. U.S. Parole Comm'n, 810 F.2d 612, 613 (7th Cir. 1987); Peoples Gas, Light & Coke Co. v. U.S. Postal, 658 F.2d 1182 (7th Cir. 1981). 20 On the other hand, it is not inconceivable that the EPA or the Corps of Engineers might com- pletely overextend their authority. In such a case, we suggest to those agencies that we will not hesitate to intervene in agency activity .... Id. at 231. (Emphasis added.) Laguna Gatuna asserts that the EPA has “completely overextended [its] authority” and that judicial review must be had to determine the validity of Laguna Gatuna’s claims.!2 For as the Fifth Circuit has held: A procedure that seems perfectly reasonable under one set of circumstances can, with only a slight modification of the facts, suddenly smack . . . of administrative tyranny. Buttrey v. United States, 690 F.2d 1170, 1178 (5th Cir. 1982). The “set of circumstances” in this case illustrates how easily the “procedure” can “suddenly smack of adminis- trative tyranny.”!> As this Court has noted, Laguna Gatuna has “no other means within [its] control... . to 12 “[I]t is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allega- tions of the complaint should be construed favorably -to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 13 “Unchecked authority breeds arrogance and overreach- ing in those who possess it and disrespect and suspicion in those who are subject to it.” Albrecht and Issacs, Wetlands Jurisdiction and Judicial Review, Natural Resources and Envi- ronment, Summer 1992, at page 67. 21 protect and enforce” its rights.'4 Thunder Basin Coal, 127 L.Ed.2d at 40. In Thunder Basin Coal this Court held that “[c]hal- lenges [under the Mine Safety Act] to enforcement are reviewed by . . . [a] Commission which is independent of the Department of Labor.” Thunder Basin Coal, 127 L.Ed.2d at 36. Yet, in this case, totally unlike the situation in Thunder Basin Coal, there is no independent commis- sion to provide meaningful review. Id. at 44. Instead, the EPA acts as prosecutor, jury and judge, with full authority to bring charges, review the charges and the evidence, and assess penalties, without any opportunity for citizens to obtain review of the underlying facts that may or may not justify the original exercise of jurisdiction. Finally, Thunder Basin Coal is a “pre-enforcement case because petitioner sued before any order was issued.” Thunder Basin Coal, 127 L.Ed.2d at 43. Notwithstanding the holding of the Tenth Circuit that this case concerns “pre-enforcement review,” this case does not involve pre- enforcement review.!° The EPA is already enforcing its view of the require- ments of the CWA and has done so through its cease and desist order. In fact, 33 U.S.C. § 1319, the section of the CWA under which the cease and desist order was issued, 14 “If not allowed to pursue [its] claims in the district court, {Laguna Gatuna] would not as a practicable matter be able to obtain meaningful judicial review.” Thunder Basin Coal, 127 L.Ed.2d at 41. 15 “[Pre-enforcement review is] a suit brought by one before any attempted enforcement of the statute or regulations against him.” Abbott Laboratories v. Gardner, 387 U.S. at 139 n.1. 22 is captioned “Enforcement.” (App. 25.) The EPA’s action against Laguna Gatuna, pursuant to 33 U.S.C. § 1319(a), constitutes “enforcement” as that term is commonly understood.!6 By administrative order, the EPA has required Laguna Gatuna to cease and desist discharges into the sinkhole. With the threat of administrative penal- ties of up to $125,000.00, up to three years in jail and/or civil liability accruing at the rate of $25,000.00 per day, the EPA has compelled compliance with its view of the requirements of the CWA.!7 Thus, the EPA is engaged, by its order, in “the compelling of the fulfillment” of its view of the CWA. If this is not enforcement, as all people know it to be, then words have lost their meaning. Clearly, the EPA’s actions taken pursuant to 33 U.S.C. § 1319(a), the “Enforcement” section, with regard to Laguna Gatuna, constitute “enforcement.” For all of these reasons, Thunder Basin Coal strongly supports Laguna Gatuna’s position that the District Court has subject matter jurisdiction to hear and decide the claims raised. Thus, the decision of the Tenth Circuit creates a true, direct, and irreconcilable conflict with the 16 Laymen define “enforce” as “to put in force: cause to take effect: give effect to esp. with vigor (-laws).” “Enforce- ment” is defined as: “the compelling of the fulfillment (as of a law or order).” Websters’ Third New International Dictionary of the English Language, Unabridged (1981). The EPA’s actions here certainly fit that common-sense definition. 17 “The alternative to compliance . . . may be even more costly. .. . To require [Laguna Gatuna] to challenge [the EPA’s decision] only as a defense to an action brought by the Govern- ment might harm them severely and unnecessarily.” Abbott Lab- oratories, 387 U.S. at 153. See also Thunder Basin Coal, 127 L.Ed.2d at 46 (Scalia, J. concurring). 23 decision of this Court in Thunder Basin Coal both as to the meaning of the “pre-enforcement” and as to the require- ments of the due process clause. IV. THE DECISION OF THE TENTH CIRCUIT CRE- ATES A TRUE, DIRECT, AND IRRECONCILABLE CONFLICT WITH DECISIONS OF THIS COURT THAT STATUTORY PRECLUSION OF JUDICIAL REVIEW OF AGENCY ACTION CANNOT FORE- CLOSE CONSIDERATION OF CONSTITU- TIONAL OR LEGAL QUESTIONS. It is well-settled that federal courts have jurisdiction to review the constitutionality of governmental actions. Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 177 (1803). While Article IIi of the Constitution vests Congress with the power to determine the jurisdictional authority of federal district courts, that power is limited by constitu- tional guarantees. See Califano v. Sanders, 430 U.S. 99, 109 (1977); Oestereich v. Selective Service System, 393 U.S. 233, 243 n.6 (1968); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936). As the Court of Appeals for the Second Circuit held: while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of the federal courts other than the Supreme Court, it must not so exercise that power to deprive any person of life, liberty or property without due process of law or to take property without just compensation. Battaglia v. General Motors, 169 F.2d 254, 257 (2nd Cir. 1948), cert. denied, 355 U.S. 887 (1948). 24 A legal or constitutional challenge to the CWA, or its implementing regulations, can never be precluded. Laguna Gatuna has asserted such challenges to the EPA enforcement scheme in this case. (App. 18.) Laguna Gatuna cannot be precluded from testing the legality or constitutionality of the EPA’s implementation of the CWA, or its implementing regulations. Laguna Gatuna asserts that the enforcement action against it violates the Due Process Clause of the Fifth Amendment. Nevertheless, the Tenth Circuit has inter- preted the CWA so as to preclude constitutional review of 33 U.S.C. § 1319(a) orders. Such an interpretation has been held to raise serious constitutional questions. United States v. Emerson, 846 F.2d 541, 544 (9th Cir. 1988) (if a statute is interpreted to preclude constitutional review, serious doubts about the statute’s constitutionality are raised); National Federation of Federal Employees v. Wein- berger, 818 F.2d 935, 940 (D.C. Cir. 1987). Since the claims raised by Laguna Gatuna are constitutional claims, the intent of Congress to preclude judicial review of those claims must be clear. Webster v. Doe, 486 U.S. at 603. A clear intent of Congress to preclude judicial review in this case cannot be shown. Since the decision of the Tenth Circuit is in true, direct and irreconcilable conflict with this well settled principle of law, Laguna Gatuna’s peti- tion should be granted. 25 CONCLUSION For all of these reasons this Court must grant this petition to reverse the decision of the Tenth Circuit. For unlike the petitioner in Thunder Basin Coal, “(Laguna Gatuna cannot] obtain judicial review if it complies with the [EPA’S order]... .” Thunder Basin Coal, 127 L.Ed.2d at 46 (Scaiia, J. concurring). This offends the fundamental constitutional guarantee of due process. Respectfully submitted, Topp Stusss WetcH* *Counsel of Record WILLIAM Perry PENDLEY Paut M. Sesy MountTAIN States LEGAL FOUNDATION 1660 Lincoln Street, Suite 2300 Denver, Colorado 80264 (303) 861-0244 Attorneys for Petitioner Dated: September 18, 1995 App. 1 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT LAGUNA GATUNA, INC., a New Mexico Corporation, Plaintiff-Appellant, No. 94-2142. V. CAROL BROWNER, Administrator of the Environmental Protection Agency; JOE D. WINKLE, Acting Regional Administrator, Region VI of the Environmental Pro- tection Agency; ENVIRONMENTAL. PROTECTION AGENCY, Carol M. Browner, Administrator, Defendants-Appellees, STONE SOUTHWEST CORPORATION, a Delaware Corporation, Intervenor. ee ee ee ee ee ee ee ee ee ee ee ee, ee ee, ee, ee Appeal from the United States District Court For the District of New Mexico D.C. No. CIV-93-772-JC Todd S. Welch (William Perry Pendley with him on the briefs), Mountain States Legal Foundation, Denver, CO, for Plaintiff-appellant. —————————OO_— App. 2 John A. Bryson (Robert L. Klarquist and Joshua M. Levin, Dept. of Justice, Washington, DC, Lois J. Schiffer, Asst. Atty. Gen., John J. Kelly, U.S. Atty., and Raymond Hamilton, Asst. U.S. Atty., Albuquerque, NM, Stephen J. Sweeney, U.S. E.P.A., Washington, DC, with him on the brief), Dept. of Justice, Washington, DC, for defendants- appellees. Before SEYMOUR, Chief Judge, and MOORE and EBEL, Circuit Judges. MOORE, Circuit Judge. The sole question presented by this appeal is whether a compliance order issued by the Environmental Protec- tion Agency (EPA) under the Clean Water Act (CWA) is subject to judicial review. Following the lead of our sister circuits which have already considered this issue, we conclude the CWA provides no basis for such a proceed- ing, despite strong due process arguments advanced by the appellant. We therefore affirm the judgment of the district court. Plaintiff Laguna Gatuna, Inc., is a New Mexico corpo- ration whose sole business is disposing of industrial waste water. It dumps the water in a “sinkhole” known as Laguna Gatuna, to which the company has appropriate rights. Defendants are the Environmental Protection Agency and its Administrators. In 1987, Laguna’s predecessor in interest inquired of the EPA whether the sinkhole was included in “waters of the United States” as defined by 40 C.F.R. Sec. 122.2, App. 3 subjecting it to EPA jurisdiction. The EPA responded by | letter that it was not, based on the representation the sinkhole was “not hydrologically connected” to other waters and there were “no recreational, industrial, or other uses that could affect interstate commerce.” In 1991, in the course of a study of playa lakes in New Mexico, the EPA discovered dead migratory birds near the sinkhole. In 1992, the EPA issued a compliance order to Laguna, directing it to cease dumping wastes into the sinkhole. Laguna complied with the order and discontinued opera- tions. Laguna filed an action for declaratory relief in dis- trict court, claiming the EPA had no jurisdiction to regu- late the sinkhole because it was not “waters of the United States,” and the issuance of the compliance order violated Laguna’s procedural and substantive due process rights. The district court dismissed the action for lack of subject matter jurisdiction. This appeal was brought to review that dismissal. Questions of jurisdiction are reviewed de novo. Com- munity Action of Laramie County, Inc. v. Bowen, 866 F.2d 347, 351 n. 1 (10th Cir.1989). When deciding a question of jurisdiction, a court must construe all relevant allegations in the light most favorable to the plaintiff. See Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Accordingly, the facts set forth above are as alleged in the complaint. Laguna has asserted federal question jurisdiction under 28 U.S.C. Sec. 1331. This court has not yet spoken on this precise issue. But see Child v. United States, 851 F.Supp. 1527 (D.Utah 1994); Howell v. United States Army Corps of Eng’rs, 794 App. 4 F.Supp. 1072 (D.N.M.1992). We follow the authority of our sister circuits in Southern Ohio Coal Co. v. Office of Surface Mining, 20 F.3d 1418 (6th Cir.), cert. denied, __ U.S. __, 115 S.Ct. 316, 130 L.Ed.2d 278 (1994); Rueth v. United States EPA, 13 F.3d 227 (7th Cir.1993); and Southern Pines Assocs. v. United States, 912 F.2d 713 (4th Cir.1990). Accordingly, we affirm the dismissal for lack of jurisdic- tion. In Southern Pines, the EPA issued a compliance order to cease dumping in the wetlands on its land in Chesa- peake, Virginia, required Southern Pines to commence restoration, and requested further information to make a “final determination” about the wetlands. 912 F.2d at 714. Southern Pines filed a complaint for declaratory and injunctive relief, and the district court dismissed for lack of subject matter jurisdiction. Id. Based on the legislative history and language of the CWA, and analogous author- ity concerning the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Clean Air Act (CAA), the court was “persuaded that Congress meant to preclude judicial review of com- pliance orders under the CWA.” Id. at 716. Southern Pines argued lack of review was a denial of due process, but the court rejected this argument. Id. at 717. In Rueth, the EPA issued Rueth a compliance order to cease discharges into a wetlands area and to commence restoration of the wetlands. 13 F.3d at 228. Rueth sought an injunction in district court against enforcement of the order, and the case was dismissed for lack of jurisdiction. Id. On appeal to the Seventh Circuit, Rueth challenged the EPA’s jurisdiction to regulate the wetlands, claiming, as Laguna does in the instant case, that the wetlands were App. 5 not part of the “waters of the United States.” Id. at 231. The Seventh Circuit nevertheless upheld the dismissal. Id.; see also Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.1990). In Southern Ohio, the plaintiff coal company proposed to discharge “untreated and minimally treated” floodwa- ter from a coal mine into tributaries of the Ohio River. 20 F.3d at 1420. The Office of Surface Mining, Reclamation and Enforcement of the Department of the Interior (OSM) issued a cessation order against the company. The com- pany filed suit seeking a temporary restraining order against OSM. The cessation order was vacated, and Southern Ohio began pumping. Id. at 1421. The EPA then threatened to issue a cease and desist order if Southern Ohio did not cease pumping. Southern Ohio joined the EPA as a party and obtained a restraining order against the EPA as well. The EPA moved to vacate the order for lack of jurisdiction. Id. at 1422. The district court denied the motion. On appeal, the Sixth Circuit joined the Fourth and Seventh Circuits in holding Congress did not intend to allow judicial review of compliance orders. Id. at 1427. It reversed, noting the “enforcement provisions of the CWA were modeled after the enforcements provisions of the Clean Air Act,” and “review of the caselaw under the CAA reveals the uniform holding that judicial review of pre-enforcement orders, similar to those issued under the CWA, is not available.” Id. at 1426. Laguna argues Southern Ohio is distinguishable because it involved a different quality of waste water from that discharged into the sinkhole in the instant case. App. 6 This argument goes to the merits of Laguna’s dispute with the EPA, not to the federal court’s jurisdiction to hear that dispute. Laguna further argues Rueth and South- ern Pines are distinguishable because in the instant case the EPA is not in the process of conducting any fact- finding and has issued a final response to Laguna. How- ever, these distinctions speak to the issue of finality, not reviewability. The EPA accurately points out that finality and reviewability are separate issues. Thunder Basin Coal Co. v. Reich, OS. .., .. & 23, 14S.CL 778, The i. Za, 127 L.Ed.2d 29 (1994). A decision must be final to be reviewable, but all final decisions are not reviewable. We consider Rueth, Southern Pines, and Southern Ohio to be indistinguishable from this case. The plaintiffs in those cases made challenges to the compliance orders similar to those brought by Laguna: that their land lay without the definition of “waters of the United States” and that the compliance order and lack of federal review violated guarantees of substantive and procedural due process. Our sister circuits held there was no jurisdiction to make such challenges, and we see no reason to dis- agree. Laguna argues Riverside Irrigation Dist. v. Stipo, 658 F.2d 762 (10th Cir.1981), is binding authority for the prop- osition judicial review is available when “the penalties are so severe that they foreclose a testing of authority by proceeding with the work.” Id. at 767. However, Laguna takes this proposition out of context. Riverside is factually distinguishable: it did not involve a compliance order; it involved denial of a nationwide permit for which there was no application procedure; and it involved the con- templated construction of a water reservoir requiring a S ebendinel ~~ RET A Ee App. 7 large capital outlay. Riverside is doctrinally distinguish- able: it was written before the 1987 amendment to the CWA providing for judicial review of civil penalties;! and like Laguna’s arguments on appeal, Riverside addressed the issue of finality, not reviewability. Laguna’s policy argument that it should not be neces- sary to violate an EPA order and risk civil and criminal penalties to obtain judicial review is well taken. Nev- ertheless, following the reasoning of our sister circuits, we reject Laguna’s conclusion such a situation is “consti- tutionally intolerable.” Judicial review of every unen- forced compliance order would undermine the EPA’s regulatory authority. The law in other circuits squarely precludes jurisdic- tion on these facts. The district court’s order dismissing this case is AFFIRMED. 1 The Water Quality Act of 1987 added a mechanism for the assessment of administrative penalties and judicial review in federal court of any such penalties. Pub.L. No. 100-4, Title III, Sec. 314(a), 101 Stat. 48 (1987) (codified as amended at 33 U.S.C. Sec. 1319(g)). App. 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO LAGUNA GATUNA, INC., Plaintiff, ae CIV 93-772 vs. JC/WWD CAROL BROWNER, JOE D. WINKLE, and the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants. Nm me ee eee ee ee eee” ORDER THIS MATTER came on for consideration of the Defendant United States Environmental Protection Agency’s Motion to Dismiss, filed September 20, 1993. The Court heard oral argument on the motion April 8, 1994 at 1:30 p.m: The Court shall adopt the reasoning set forth in Rueth v. United States EPA, 13 F.3d 227 (7th Cir.1993); and Southern Pines Assocs. v. United States, 912 F.2d 713 (4th Cir.1990), Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.1990) and Howell v. United States Army Corps of Eng’rs, 794 F.Supp. 1072 (D.N.M.1992). For the reasons set forth therein, and for the further reasons set forth on the record, Defendants’ Motion shall be granted. Wherefore, IT IS HEREBY ORDERED that, Defendant United States Environmental Protection Agency’s Motion to Dis- miss be, and hereby is granted. IT IS FURTHER ORDERED that this action be, and hereby is dismissed, in its entirety, for lack of subject SRI AE BHR CPPS PSOE MAS App. 9 matter jurisdiction. All other motions currently pending in this action are hereby denied as moot. April 8, 1994 /SIGNED/ JOHN E. CONWAY UNITED STATES DISTRICT JUDGE App. 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO LAGUNA GATUNA, INC., A New) Mexico Corporation, sieascauas Civil Action No: vs CIV-93-0772-JC CAROL M. BROWNER, Administrator of the Environmental Protection Agency, JOE D. WINKLE, Acting Regional Administrator, Region VI of the Environmental Protection Agency, and the ENVIRONMENTAL PROTECTION AGENCY, Defendants. i COMPLAINT AND JURY DEMAND PARTIES 1. Plaintiff Laguna Gatuna, Inc. (Plaintiff Gatuna) is a corporation, organized and existing under the laws of the State of New Mexico and is currently in good stand- ing. Plaintiff Gatuna’s principal place of business is in Hobbs, Lea County, New Mexico. Plaintiff Gatuna holds an ownership interest in 400 acres of real property located in Sections 17 & 18, Range 32 East, Township 20 South, Lea County, New Mexico. 2. Defendant Carol M. Browner is the Administrator for the Environmental Protection Agency (EPA) and is sued in her official capacity. 3. Defendant Joe D. Winkle is Acting Regional Administrator for Region VI of the EPA and is sued in his App. 11 official capacity. The State of New Mexico is located in EPA Region VI. 4. The Environmental Protection Agency is an inde- pendent agency of the United States of America charged with the duty to enforce laws protecting the environment. JURISDICTION AND VENUE 5. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331. 6. Venue is proper in the United States District Court for the District of New Mexico pursuant to 28 U.S.C. § 1391(e)(3), in that the real property which is involved in this action is located in the State of New Mexico. FACTS 7. Plaintiff Gatuna is in the business of disposing of oil field production waters produced in the area around Laguna Gatuna (Laguna). Plaintiff Gatuna has con- structed the necessary facilities to operate its business at Laguna Gatuna. Plaintiff Gatuna has invested $1,000,000.00 in the construction of said facilities. 8. Laguna Gatuna is a “sinkhole” located in sections 7, 17, 18, and 19 of Township 20 South, Range 33 East N.M.P.M., Lea County, New Mexico. No streams empty into Laguna Gatuna; no streams drain out of Laguna Gatuna; and there are no surface or groundwater connec- tions between Laguna Gatuna and any other water body. Laguna Gatuna consists of approximately 398 acres, of which a portion is owned by the Federal Government and App. 12 managed by the Bureau of Land Management (BLM). Another portion is owned by the State of New Mexico. The remainder is owned or held with sufficient legal interest by Plaintiff Gatuna. 9. The land owned by the Federal Government and managed by the BLM is legally described as follows: S'/2 of the SE'/s of Section 7; W'/2 of the NW'/s of the NW!/s, SW'/s of the NW'/s, and NW'!/s of the SW'/s of Section 17, NE'/s and N'/2 of the SE'/s of Section 18, N'/2 of the NE'/s of the NE’/s of Section 19, and that part of the S'/2 of the NE'/s of the NE'/s of Section 19, lying North of U.S. Highway 62-180, Township 20 South, Range 33 East N.M.P.M., Lea County, New Mexico. 10. The land owned or held with sufficient legal interest by Plaintiff Gatuna is legally described as fol- . lows: SW'/s of the SW'/s of Section 17; S'/2 of the SE'/s, SW'/s, E'/2 of the NW'/s, and the SW'/s of the NW'/s of Section 18, Township 20 South, Range 33 East N.M.P.M., Lea County, New Mexico. 11. The land leased by Plaintiff Gatuna from the State of New Mexico for the purpose of disposing of oilfield brine is legally described as follows: That portion of the NW'/s of the NE'/s and N'/2 of the SE'/s of Section 18, N'/2 of the NE’/s of the NE!/s of Section 19, and that part of the S'/2 of the NE?/s of the NE'/s of Section 19, lying North of U.S. Highway 62-180, Township 20 South, Range 33 East N.M.P.M., Lea County, New Mex- ico. ; App. 13 12. The nearest stream to Laguna Gatuna is the Pecos River, located approximately 40 miles away. 13. In 1969, Pollution Control Inc., the predecessor company of Plaintiff Gatuna, obtained a permit from the BLM and a business lease from the State of New Mexico to dispose of brine water produced during oil extraction activities. In 1979, the BLM permit was reissued for a thirty (30) year period. In 1988 the permit and leases were transfered to Plaintiff Gatuna and Plaintiff Gatuna owned and operated same until they were canceled by the BLM, as hereinafter stated. 14. In 1987, Plaintiff Gatuna’s predecessor in inter- est, Snyder Ranches, Inc., approached the EPA and requested a ruling concerning whether Laguna Gatuna was “waters of the United States” and, therefore, subject to the provisions of the Clean Water Act 33 U.S.C. § 1311 et seq. On or about August 13, 1987, EPA sent a letter to Plaintiff Gatuna indicating that Laguna Gatuna was not “waters of the United States” and disposal was allowed without a permit. 15. Plaintiff Gatuna alleges upon information and belief that in the spring of 1991, the United States Fish and Wildlife Service (FWS) stated in a letter that birds might use Laguna Gatuna. 16. Plaintiff Gatuna alleges upon information and belief that based on the information from the FWS, the EPA indicated Laguna Gatuna may be “waters of the United States” 33 U.S.C. § 1362(8) and subject to the Clean Water Act. Plaintiff Gatuna contacted the EPA, Region VI, and requested a meeting to provide informa- tion on the status of Laguna Gatuna as waters of the App. 14 United States. At the meeting EPA indicated it was neces- sary to make additional studies to ascertain the status of Laguna Gatuna. Plaintiff Gatuna alleges on information and belief that the promised studies were never com- pleted. 17. After the meeting, FWS and EPA, in the course of studying all of the playa lakes in New Mexico, discov- ered dead birds in the vicinity of Laguna Gatuna and without further study or discussion ordered Plaintiff Gatuna to cease operations. 18. In May of 1992, EPA sent to Plaintiff Gatuna an Administrative Order requiring Plaintiff Gatuna to cease all operations involving the disposal of production waters at Laguna Gatuna or face the possibility of crimi- nal or civil penalties pursuant to the Clean Water Act. 19. Asa result of the Administrative Order, Plaintiff Gatuna contacted EPA, Region VI, to present evidence clearly refuting that Laguna Gatuna was “waters of the United States” subject to the Clean Water Act. 20. During the course of the meeting, Plaintiff Gatuna showed EPA that: a. 1992 was an abnormally wet year with rain in the Hobbs area being more than 300% of normal; b. surveys in the spring of 1991 showed no sign that Laguna Gatuna was being used by any wildlife, migratory or otherwise; c. that the dead birds found at Laguna Gatuna in the spring of 1992 died of “salt poisoning” according to the autopsy; App. 15 d. an independent water analysis conducted in June of 1992 showed the water of Laguna Gatuna to have 263,000 mg/1 of sodium chloride and a nat- ural spring flowing into Laguna Gatuna had 251,000 mg/I of sodium chloride; e. the produced water Plaintiff Gatuna was placing in Laguna Gatuna had only 35,000 mg/I of sodium chloride and, therefore, was doing more to prevent the salt poisoning of the birds than it was to cause it; f. birds do not nest or feed on or near Laguna Gatuna; g- Laguna Gatuna, under normal circumstances, is dry; h. Laguna Gatuna has no shelter or food source for migratory birds; and i. the presence of water fowl in the spring of 1992 was an aberration not likely to reoccur under normal circumstances. 21. Pursuant to the criminal penalty provisions of the Clean Water Act, a person “who willfully or negli- gently violates [the CWA] .. . shall be punished by a fine . . . or imprisonment . . . or by both.” 33 U.S.C. § 1319(c)(1). 22. Pursuant to the civil penalty provisions of the Clean Water Act, any person “who violates [the CWA]. . . or violates any order issued by the Adminis- trator . . . shall be subject to a civil penalty not to exceed $25,000 per day... . ” 33 U.S.C. § 1319%d). 23. Subsequently, the BLM revoked the permit pre- viously held by Plaintiff Gatuna and Plaintiff Gatuna is semeeiiiiimiiiiiiiieiaaiiii App. 16 now out of business as a result of the decision of the EPA and the BLM. 24. The issuance of the Administrative Order is final agency action and this matter is ripe for judicial review pursuant to the Administrative Procedure Act (APA) 5 U.S.C. § 706 et seq. and because of the due process claims under the United States Constitution. COUNT I DECLARATORY JUDGMENT AS TO CLEAN WATER ACT JURISDICTION 25. Plaintiff Gatuna realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 21 of its complaint. 26. Section 301 of the Clean Water Act, 33 U.S.C. § 1311, provides that the discharge of any “pollutant” into “navigable waters” is unlawful unless authorized by a permit. The Clean Water Act defines “navigable waters” as the “waters of the United States, including the terri- torial seas.” 33 U.S.C. § 1362(8). 27. The EPA has promulgated certain regulations, which purport to “define” “waters of the United States.” Pursuant to 40 C.F.R. § 230.3(s) “waters of the United States” are defined to include: all waters which are currently used or were used in the past, or may be susceptible to use in interstate or foreign commerce; all . . . playa lakes .. . the use, degradation or destruction of which could affect interstate or foreign com- merce including . . . waters which are or could be used by interstate or foreign travelers for App. 17 recreational or other purposes . . . [and waters] which are used or could be used for industrial purposes by industries in interstate commerce.” 28. Asa result of the regulations, the United States Government, through the EPA, has asserted Clean Water Act jurisdiction over the property owned by Plaintiff Gatuna and the property managed by the BLM for which Plaintiff Gatuna has a permit. 29. The property owned by Plaintiff Gatuna and the property owned by the BLM for which Plaintiff Gatuna holds a permit contain no “waters of the United States” subject to the regulations of the Clean Water Act. 30. The EPA regulations provide that the only administrative process which would allow Plaintiff Gatuna to challenge the decision of the EPA that Laguna Gatuna is “waters of the United States” is if Plaintiff Gatuna violates the cease and desist order and subjects itself to the criminal and civil penalties authorized by the Clean Water Act which amount to the possibility of goiig to jail or $25,000 per day as a civil penalty. 31. Additionally, the United States Government and the EPA are precluded from asserting Clean Water Act jurisdiction over the property of Plaintiff Gatuna and the BLM property for which Plaintiff Gatuna holds a permit for one or more of the following reasons: ) a. The EPA’s purported “interpretation” and/or “construction” of “waters of the United States” as applied to Plaintiff Gatuna’s property exceeds the scope of the EPA’s statutory authority; b. As applied, the EPA’s purported “interpretation” and/or “construction” of “waters of the United App. 18 States” would exceed Congress’ power to regu- late interstate commerce under Article 1, Section 8 of the United States Constitution; c. The EPA’s actions in expanding, and in effect amending, “waters of the United States” under the guise of purported “interpretation” and/or ~—~ “construction” of “waters of the United States” constitutes rulemaking and as such is invalid because the rulemaking was and is being carried out in violation of the public notice and comment provisions of the Administrative Procedures Act, 5 U.S.C. § 553; and d. The Government's assertion of Clean Water Act jurisdiction as applied violates Plaintiff Gatuna’s rights of due process and equal protection under the law. 32. Gatuna has suffered irreparable harm as a result of the decision by the EPA. If the declaratory judgment sought herein is not granted, Plaintiff Gatuna will con- tinue to suffer irreparable harm in that: a. Plaintiff Gatuna will be forced to choose between exercising its rights to use its private property and “violating” the Clean Water Act; b. BLM has revoked the permit held by Plaintiff Gatuna as a result of the decision made by the EPA that Laguna Gatuna is “waters of the United States;” c. If Plaintiff Gatuna does continue its permitted operation, the government will accuse Plaintiff Gatuna of being a “flagrant and multiple viola- togs” d. Plaintiff Gatuna has been and continues to be harmed, if not destroyed, by the “impending App. 19 charges” threatened explicitly and implicitly in the EPA’s cease and desist order, in that Plaintiff Gatuna’s business reputation has been dimin- ished; e. Plaintiff Gatuna may be subjected to criminal liability even though the question as to whether Laguna Gatuna is “waters of the United States” has not been established and is based on reason- able differences of opinion; and f. Plaintiff Gatuna’s credit relationship with lenders has been impaired. 33. A declaration as to the rights and other legal relations with respect to the property owned by Plaintiff Gatuna and the ability of the United States Government and the EPA to assert Clean Water Act jurisdiction over this property is required. 34. Plaintiff Gatuna is entitled to a plenary trial on the merits before this Court on the issue of whether the United States Government has Clean Water Act jurisdic- tion over Laguna Gatuna. COUNT II PROCEDURAL DUE PROCESS VIOLATION (Taking of a liberty interest) 35. Plaintiff Gatuna realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 21 of its complaint. 36. Procedures implemented by the EPA do not allow Plaintiff Gatuna the opportunity to challenge, before an unbiased decision maker, that Laguna Gatuna is “waters of the United States,” unless Plaintiff Gatuna is App. 20 willing to Violate the “cease and desist order” and subject itself and its employees, directors, officers and represen- tatives to possible civil and criminai penalties of the Clean Water Act. 37. Plaintiff Gatuna has a constitutional liberty interest in its ability to contract and to engage in the business of disposing of production waters within the bounds established by the law. 38. Since the actions of the EPA affect the above described liberty interest of Plaintiff Gatuna, Plaintiff Gatuna is guaranteed the right to a procedure to deter- mine the factual basis and legality of the decision of the EPA to declare Laguna Gatuna “waters of the United States.” 39. Whether Laguna Gatuna is “waters of the United States” is a factual dispute in need of resolution. 40. The actions of the EPA deprive Plaintiff Gatuna of constitutional liberties without due process of law as guaranteed by the Fifth Amendment and, as such, are unconstitutional actions. COUNT Iil PROCEDURAL DUE PROCESS VIOLATION (Taking of a property interest) 41. Plaintiff Gatuna realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 21 of its complaint. 42. EPA is an independent agency of the United States. The actions of the EPA in declaring Laguna Gatuna “waters of the United States” are state actions, App. 21 subject to the due process protections of the Fifth Amend- ment to the United States Constitution. 43. The actions of the EPA in declaring Laguna Gatuna “waters of the United States” deprives Plaintiff Gatuna of a property right without due process as guar- anteed by the Fifth Amendment to the United States Constitution. 44. Whether Laguna Gatuna is “waters of the United States” is a factual dispute in need of resolution. 45. Actions of the EPA in depriving Plaintiff Gatuna of a constitutionally protected property right without due process is unconstitutional state action. COUNT IV SUBSTANTIVE DUE PROCESS VIOLATION (Violation of constitutional equal protection guarantees) 46. Plaintiff Gatuna realleges and incorporates by reference herein each and every allegation contained in paragraphs 1 through 21 of its complaint. 47. The Clean Water Act and its implementing regu- lations are an arbitrary and invidious use of government power in that Plaintiff Gatuna has no opportunity to challenge the decision without subjecting itself to the civil and criminal penalties of the Clean Water Act and as such is an unconstitutional exercise of authority. App. 22 PRAYER FOR RELIEF WHEREFORE, Plaintiff Gatuna respectfully requests: 1. An Order of Declaratory Judgment declaring that Laguna Gatuna, as described above, is not “navigable water,” is not “water of the United States,” and is not in any way subject to jurisdiction under the Clean Water Act by the United States Government, including the Army Corps of Engineers and the EPA; 2. An order declaring that EPA must provide due process before constitutionally guaranteed liberty and property interests are taken; 3. An order declaring that the actions of EPA are an unconstitutional exercise of authority; 4. Plaintiff Gatuna’s costs and attorneys’ fees incurred in bringing this action; and 5. Such other and further relief as to the court seems just and equitable in the premises. App. 23 JURY DEMAND PLAINTIFF GATUNA DEMANDS A TRIAL BY JURY OF ANY AND ALL ISSUES IN THIS ACTION TRIABLE OF RIGHT BY A JURY. DATED this day 22nd of June, 1993. /signed/ Todd S. Welch WILLIAM PERRY PENDLEY TODD S. WELCH MOUNTAIN STATES LEGAL FOUNDATION 1660 Lincoln Street Suite 2300 Denver, Colorado 80264 (303) 861-0244 AND /signed/ J.W. Neal J.W. NEAL J.W. NEAL, P.C. Box 278 Hobbs, New Mexico 88240 (505) 397-3614 Attorneys for Plaintiff Laguna Gatuna, Inc. App. 24 FIFTH AMENDMENT No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. App. 25 33 U.S.C.A. § 1319. Enforcement (a) State enforcement; compliance orders (1) Whenever, on the basis of any information avail- able to him, the Administrator finds that any person is in violation of any condition or limitation which implements section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title in a permit issued by a State under an approved permit program under section 1342 or 1344 of this title, he shall proceed under his authority in paragraph (3) of this subsection or he shall notify the person in alleged viola- tion and such State of such finding. If beyond the thir- tieth day after the Administrator’s notification the State has not commenced appropriate enforcement action, the Administrator shall issue an order requiring such person to comply with such condition or limitation or shall bring a civil action in accordance with subsection (b) of this section. (2) Whenever, on the basis of information available to him, the Administrator finds that violations of permit conditions or limitations as set forth in paragraph (1) of this subsection are so widespread that such violations appear to result from a failure of the State to enforce such permit conditions or limitations effectively, he shall so notify the State. If the Administrator finds such failure extends beyond the thirtieth day after such notice, he shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such conditions and limitations (hereafter referred to in this section as the period of “federally assumed enforcement”), except where an extension has App. 26 been granted under paragraph (5)(B) of this subsection, the Administrator shall enforce any permit condition or limitation with respect to any person - (A) by issuing an order to comply with such condition or limitation, or (B) by bringing a civil action under subsection (b) of this section. (3) Whenever on the basis of any information avail- able to him the Administrator finds that any person is in violation of section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title, or is in violation of any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by him or by a State or in a permit issued under section 1344 of this title by a State, he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section. (4) A copy of any order issued under this subsec- tion shall be sent immediately by the Administrator to the State in which the violation occurs and other affected States. In any case in which an order under this subsec- tion (or notice to a violator under paragraph (1) of this subsection) is issued to a corporation, a copy of such order (or notice) shall be served on any appropriate cor- porate officers. An order issued under this subsection relating to a violation of section 1318 of this title shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator concern- ing the alleged violation. App. 27 (5)(A) Any order issued under this subsection shall be by personal service, shall state with reasonable speci- ficity the nature of the violation, and shall specify a time for compliance not to exceed thirty days in the case of a violation of an interim compliance schedule or operation and maintenance requirement and not to exceed a time the Administrator determines to be reasonable in the case of a violation of a final deadline, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. (B) The Administrator may, if he determines (i) that any person who is a violator of, or any person who is otherwise not in compliance with, the time requirements under this chapter or in any permit issued under this chapter, has acted in good faith, and has made a commit- ment (in the form of contracts or other securities) of necessary resources to achieve compliance by the earliest possible date after July 1, 1977, but not later than April 1, 1979; (ii) that any extension under this provision will not result in the imposition of any additional controls on any other point or nonpoint source; (iii) that an application for a permit under section 1342 of this title was filed for such person prior to December 31, 1974; and (iv) that the facilities necessary for compliance with such require- ments are under construction, grant an extension of the date referred to in section 1311(b)(1)(A) of this title to a date which will achieve compliance at the earliest time possible but not later than April 1, 1979. (6) Whenever, on the basis of information available to him, the Administrator finds (A) that any person is in violation of section 1311(b)(1)(A) or (C) of this title, (B) that such person cannot meet the requirements for a time App. 28 extension under section 1311(i)(2) of this title, and (C) that the most expeditious and appropriate means of com- pliance with this chapter by such person is to discharge into a publicly owned treatment works, then, upon request of such person, the Administrator may issue an order requiring such person to comply with this chapter at the earliest date practicable, but not later than July 1, 1983, by discharging into a publicly owned treatment works if such works concur with such order. Such order shall include a schedule of compliance. (b) Civil actions The Administrator is authorized to commence a civil action for appropriate relief, including a permanent or temporary injunction, for any violation for which he is authorized to issue a compliance order uader subsection (a) of this section. Any action under this subsection may be brought in the district court of the United States for the district in which the defendant is located or resides or is doing business, and such court shall have jurisdiction to restrain such violation and to require compliance. Notice of the commencement of such action shall be given immediately to the appropriate State. (c) Criminal penalties (1) Negligent violations Any person who - (A) negligently violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this App. 29 title by the Administrator or by a State, or any require- ment imposed in a pretreatment program approved - under section 1342(a)(3) or (b)(8) of this title or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State; or (B) negligently introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or rea- sonably should have known could cause personal injury or property damage or, other than in compliance with all applicable Federal, State, or local requirements or per- mits, which causes such treatment works to violate any effluent limitation or condition in any permit issued to the treatment works under section 1342 of this title by the Administrator or a State; shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprison- ment for not more than 1 year, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punish- ment shall be by a fine of not more than $50,000 per day of violation, or by imprisonment of not more than 2 years, or by both. (2) Knowing violations Any person who - (A) knowingly violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or any requirement App. 30 imposed in a pretreatment program approved under sec- tion 1342(a)(3) or (b)(8) of this title or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State; or (B) knowingly introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or rea- sonably should have known could cause personal injury or property damage or, other than in compliance with all applicable Federal, State, or local requirements or per- mits, which causes such treatment works to violate any effluent limitation or condition in a permit issued to the treatment works under section 1342 of this title by the Administrator or a State; shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprison- ment for not more than 3 years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punish- ment shall be by a fine of not more than $100,000 per day of violation, or by imprisonment of not more than 6 years, or by both. (3) Knowing endangerment (A) General rule Any person who knowingly violates section 1311, 1312, 1313, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or any permit condition or limitation imple- menting any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State, or in a permit issued under section 1344 of this title App. 31 by the Secretary of the Army or by a State, and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than $250,000 or imprisonment of not more than 15 years, or both. A person which is an organization shall, upon conviction of violating this subparagraph, be subject to a fine of not more than $1,000,000. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, the maximum pun- ishment shall be doubled with respect to both fine and imprisonment. (B) Additional provisions For the purpose of subparagraph (A) of this para- graph —- (i) in determining whether a defendant who is an individual knew that his conduct placed another person in imminent danger of death or serious bodily injury - (I) the person is responsible only for actual awareness or actual belief that he possessed; and (II) knowledge possessed by a person other than the defendant but not by the defendant him- self may not be attributed to the defendant, except that in proving the defendant’s possession of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information; (ii) it is an affirmative defense to prosecu- tion that the conduct charged was consented to by the App. 32 person endangered and that the danger and conduct charged were reasonably foreseeable hazards of - (I) an occupation, a business, or a pro- fession; or (II) medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made aware of the risks involved prior to giving consent; and such defense may be established under this sub- paragraph by a preponderance of the evidence; (iii) the term “organization” means a legal entity, other than a government, established or organized for any purpose, and such term includes a corporation, company, association, firm, partnership, joint stock com- pany, foundation, institution, trust, society, union, or any other association of persons; and (iv) the term “serious bodily injury” means bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (4) False statements Any person who knowingly makes any false material statement, representation, or certification in any applica- tion, record, report, plan, or other document filed or required to be maintained under this chapter or who knowingly falsifies, tampers with, or renders inaccurate ea App. 33 any monitoring device or method required to be main- tained under this chapter, shall upon conviction, be pun- ished by a fine of not more than $10,000, or- by imprisonment for not more than 2 years, or by both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or by both. (5) Treatment of single operational upset For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation. (6) Responsible corporate officer as “person” For the purpose of this subsection, the term “person” means, in addition to the definition contained in section 1362(5) of this title, any responsible corporate officer. (7) Hazardous substance defined For the purpose of this subsection, the term “hazard- ous substance” means (A) any substance designated pur- suant to section 1321(b)(2)(A) of this title, (B) any element, compound, mixture, solution, or substance des- ignated pursuant to section 9602 of Title 42, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. Sec. 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C.A. Sec. 6901 et seq.| has been suspended by Act of Congress), (D) any toxic App. 34 pollutant listed under section 1317(a) of this title, and (E) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15. (d) Civil penalties; factors considered in determining amount Any person who violates section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator, or by a State, or in a permit issued under section 1344 of this title by a State, or any requirement imposed in a pretreatment program approved under sec- tion 1342(a)(3) or (b)(8) of this title,! and any person who violates any order issued by the Administrator under subsection (a) of this section, shall be subject to a civil penalty not to exceed $25,000 per day for each violation. In determining the amount of a civil penalty the court shall consider the seriousness of the violation or viola- tions, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require. For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation. 1 So in original. App. 35 (e) State liability for judgments and expenses Whenever a municipality is a party to a civil action brought by the United States under this section, the State in which such municipality is located shall be joined as a party. Such State shall be liable for payment of any judg- ment, or any expenses incurred as a result of complying with any judgment, entered against the municipality in such action to the extent that the laws of that State prevent the municipality from raising revenues needed to comply with such judgment. (f) Wrongful introduction of pollutants into treatment works Whenever, on the basis of any information available to him, the Administrator finds that an owner or operator of any source is introducing a pollutant into a treatment works in violation of subsection (d) of section 1317 of this title, the Administrator may notify the owner or operator of such treatment works and the State of such violation. If the owner or operator of the treatment works does not commence appropriate enforcement action within 30 days of the date of such notification, the Administrator may commence a civil action for appropriate relief, including but not limited to, a permanent or temporary injunction, against the owner or operator of such treatment works. In any such civil action the Administrator shall join the owner or operator of such source as a party to the action. Such action shall be brought in the district court of the United States in the district in which the treatment works is located. Such court shall have jurisdiction to restrain such violation and to require the owner or operator of the treatment works and the owner or operator of the source App. 36 to take such action as may be necessary to come into compliance with this chapter. Notice of commencement of any such action shall be given to the State. Nothing in this subsection shall be construed to limit or prohibit any other authority the Administrator may have under this chapter. (g) Administrative penalties (1) Violations Whenever on the basis of any information available — (A) the Administrator finds that any person has violated section 1311, i312, 1316, 1317, 1318, 1328, or 1345 of this title, or has violated any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administra- tor or by a State, or in a permit issued under section 1344 of this title by a State, or (B) the Secretary of the Army (hereinafter in this subsection referred to as the “Secretary”) finds that any person has violated any permit condition or limita- tion in a permit issued under section 1344 of this title by the Secretary, ‘the Administrator or Secretary, as the case may be, may, after consultation with the State in which the viola- tion occurs, assess a class I civil penalty or a class II civil penalty under this subsection. (2) Classes of penalties (A) Class I The amount of a class I civil penalty under paragraph (1) may not exceed $10,000 per violation, except that the App. 37 maximum amount of any class I civil penalty under this subparagraph shall not exceed $25,000. Before issuing an order assessing a civil penalty under this subparagraph, the Administrator or the Secretary, as the case may be, shall give to the person to be assessed such penalty written notice of the Administrator’s or Secretary's pro- posal to issue such order and the opportunity to request, within 30 days of the date the notice is received by such person, a hearing on the proposed order. Such hearing shall not be subject to section 554 or 556 of Title 5, but shall provide a reasonable opportunity to be heard and to present evidence. (B) Class Il The amount of a class II civil penalty under para- graph (1) may not exceed $10,000 per day for each day during which the violation continues; except that the maximum amount of any class II civil penalty under this subparagraph shall not exceed $125,000. Except as other- wise provided in this subsection, a class II civil penalty shall be assessed and collected in the same manner, and subject to the same provisions, as in the case of civil penalties assessed and collected after notice and oppor- tunity for a hearing on the record in accordance with section 554 of Title 5. The Administrator and the Secre- tary may issue rules for discovery procedures for hear- ings under this subparagraph. (3) Determining amount In determining the amount of any penalty assessed under this subsection, the Administrator or the Secretary, as the case may be, shall take into account the nature, circumstances, extent and gravity of the violation, or App. 38 violations, and, with respect to the violator, ability to pay, any prior history of such violations, the degree of cul- pability, economic benefit or savings (if any) resulting from the violation, and such other matters as justice may require. For purposes of this subsection, a single opera- tional upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation. (4) Rights of interested persons (A) Public notice Before issuing an order assessing a civil penalty under this subsection the Administrator or Secretary, as the case may be, shall provide public notice of and rea- sonable opportunity to comment on the proposed issu- ance of such order. (B) Presentation of evidence Any person who comments on a proposed assess- ment of a penalty under this subsection shall be given notice of any hearing held under this subsection and of the order assessing such penalty. In any hearing held under this subsection, such person shall have a reason- able opportunity to be heard and to present evidence. (C) Rights of interested persons to a hearing If no hearing is held under paragraph (2) before issuance of an order assessing a penalty under this sub- section, any person who commented on the proposed assessment may petition, within 30 days after the issu- ance of such order, the Administrator or Secretary, as the case may be, to set aside such order and to provide a hearing on the penalty. If the evidence presented by the App. 39 petitioner in support of the petition is material and was not considered in the issuance of the order, the Adminis- trator or Secretary shall immediately set aside such order and provide a hearing in accordance with paragraph (2)(A) in the case of a class I civil penalty and paragraph (2)(B) in the case of a class II civil penalty. If the Adminis- trator or Secretary denies a hearing under this subpara- graph, the Administrator or Secretary shall provide to the petitioner, and publish in the Federal Register, notice of and the reasons for such denial. (5) Finality of order An order issued under this subsection shall become final 30 days after its issuance unless a petition for judi- cial review is filed under paragraph (8) or a hearing is requested under paragraph (4)(C). If such a hearing is denied, such order shall become final 30 days after such denial. (6) Effect of order (A) Limitation on actions under other sections Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator’s or Secretary’s authority to enforce any provision of this chapter; except that any violation — (i) with respect to which the Administrator or the Secretary has commenced and is diligently pros- ecuting an action under this subsection, (ii) with respect to which a State has com- menced and is diligently prosecuting an action under a State law comparable to this subsection, or App. 40 (iii) for which the Administrator, the Secre- tary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be, shall not be the subject of a civil penalty action under subsection (d) of this section or section 1321(b) of this title or section 1365 of this title. (B) Applicability of limitation with respect to citizen suits The limitations contained in subparagraph (A) on civil penalty actions under section 1365 of this title shall not apply with respect to any violation for which - (i) a civil action under section 1365(a)(1) of this title has been filed prior to commencement of an action under this subsection, or (ii) notice of an alleged violation of section 1365(a)(1) of this title has been given in accordance with section 1365(b)(1)(A) of this title prior to commencement of an action under this subsection and an action under section 1365(a)(1) of this title with respect to such alleged violation is filed before the 120th day after the date on which such notice is given. (7) Effect of action on compliance No action by the Administrator or the Secretary under this subsection shall affect any person’s obligation to comply with any section of this chapter or with the terms and conditions of any permit issued pursuant to section 1342 or 1344 of this title. Peet eh ita atacand App. 41 (8) Judicial review Any person against whom a civil penalty is assessed under this subsection or who commented on the pro- posed assessment of such penalty in accordance with paragraph (4) may obtain review of such assessment - (A) in the case of assessment of a class I civil penalty, in the United States District Court for the District of Columbia or in the district in which the violation is alleged to have occurred, or (B) in the case of assessment of a class II civil penalty, in United States Court of Appeals for the District of Columbia Circuit or for any other circuit in which such person resides or transacts business, by filing a notice of appeal in such court within the 30-day period beginning on the date the civil penalty order is issued and by simultaneously sending a copy of such notice by certified mail to the Administrator or the Secretary, as the case may be, and the Attorney General. The Administrator or the Secretary shall promptly file in such court a certified copy of the record on which the order was issued. Such court shall not set aside or remand such order unless there is not substantial evi- dence in the record, taken as a whole, to support the finding of a violation or unless the Administrator’s or Secretary’s assessment of the penalty constitutes an abuse of discretion and shall not impose additional civil penal- ties for the same violation unless the Administrator’s or Secretary’s assessment of the penalty constitutes an abuse of discretion. App. 42 (9) Collection If any person fails to pay an assessment of a civil penalty - (A) after the order making the assessment has become final, or (B) after a court in an action brought under paragraph (8) has entered a final judgment in favor of the Administrator or the Secretary, as the case may be, the Administrator or the Secretary shall request the Attorney General to bring a civil action in an appropriate district court to recover the amount assessed (plus inter- est at currently prevailing rates from the date of the final order or the date of the final judgment, as the case may be). In such an action, the validity, amount, and appro- priateness of such penalty shall not be subject to review. Any person who fails to pay on a timely basis the amount of an assessment of a civil penalty as described in the first sentence of this paragraph shall be required to pay, in addition to such amount and interest, attorneys fees and costs for collection proceedings and a quarterly nonpay- ment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of such person’s penalties and nonpayment penalties which are unpaid as of the beginning of such quarter. (10) Subpoenas The Administrator or Secretary, as the case may be, may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, or documents in connection with hearings under this App. 43 subsection. In case of contumacy or refusal to obey a subpoena issued pursuant to this paragraph and served upon any person, the district court of the United States for any district in which such person is found, resides, or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the administrative law judge or to appear and produce documents before the administrative law judge, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. (11) Protection of existing procedures Nothing in this Subsection shall change the pro- cedures existing on ‘the day before February 4, 1987, under other subsections of this section for issuance and enforcement of orders by the Administrator. ea App. 44 5 U.S.C.A. § 704. Actions reviewable Agency action made reviewable by statute and final agency action for which there is no other adequate rem- edy in a court are subject to judicial review. A prelimi- nary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declar- atory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2247%3A1. Public record. Not legal advice.