Petition for Writ of Certiorari — Lawson v. United States

Supreme Oourt &&.

1) ri.i.22

DG 739 NOV 1 219%

NO. __gepice OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

JOHN A. LAWSON

and

SPANISH COVE SANITATION, INC. PETITIONERS

v.

UNITED STATES OF AMERICA RESPONDENT

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

J. MICHAEL POOLE

The Starks Building, Suite 610

455 South Fourth Avenue

Louisville, Kentucky 40202

(502)587-0063

COUNSEL OF RECORD

Of Counsel

Bruce G. Anderson

Ed Monarch

Attorneys for Petitioners

Il.

QUESTIONS PRESENTED FOR REVIEW

WHETHER, IN A CRIMINAL PROCEEDING

UNDER THE CLEAN WATER ACT, 33 U.S.C.

§1251, ET SEQ., THE DISTRICT COURT HAS

JURISDICTION TO ENTER JUDGMENT

WHERE A UNITED STATES ATTORNEY

INSTITUTED THE PROCEEDINGS WITH NO

PRIOR REQUEST FROM THE

ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY.

WHETHER THE COURT OF APPEALS FOR

THE SIXTH CIRCUIT ERRED IN REFUSING

TO REVERSE THE TRIAL COURTS ORDER

EXCLUDING FROM EVIDENCE CLEAR

PROOF OF SELECTIVE AND VINDICTIVE

PROSECUTION.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .......

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

FURISIICTION OF THE COURL ..ivcnecescss

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED ..........

SLATEMENT Ol TE CARE. <sos cewee cee ces

REASONS FOR GRANTING THE WRIT .......

I. THE DISTRICT COURT HAS NO

JURISDICTION TO ENTER JUDGMENT

IN ACRIMINAL PROCEEDING UNDER

THE CLEAN WATER ACT, 33 U.S.C.

§1251, ET SEQ.. WHERE A UNITED

STATES ATTORNEY INSTITUTED

CRIMINAL PROCEEDINGS WITH NO

PRIOR REQUEST FROM THE

ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION

AGENCY.

ee ee oe ae ae ee ee ae ee ee eee es

ii

II. THE COURT OF APPEALS FOR THE

SIXTH CIRCUIT ERRED IN REFUSING

TO REVERSE THE TRIAL COURT'S

ORDER EXCLUDING FROM

EVIDENCE CLEAR PROOF OF

SELECTIVE AND VINDICTIVE

UNOS oy sk v's KW Ghee ve he ve 16

I I gs i Sr Py 22

PT a a stg y Ye

A. OPINION, COURT OF APPEALS FOR

Det AEE GUGAIEN hk bk ve cs App-1

B. ORDER DENYING PETITION FOR

a a ain cag ae App-13

Sia 33 U.S.C. §1319(c)(1)(A);

FF Win BIS UGR GIA) «oc 0-0: App-15

D. VOLUNTARY ENVIRONMENTAL

SELF-POLICING AND SELF-

DISCLOSURE INTERIM POLICY

Ee Se trae App-17

E. LETTER FROM AUSA REAM TO

PETITIONERS, AUGUST 25, 1992App-34

lil

TABLE OF CITED AUTHORITIES

CASES

Soe Fide Se INTE Kissed civiaics 7

Blackledge v. Perry,

417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d

ee ROE AG ve oes at os EY 0 18

Vv v. N | A

eT ht Oe CEE, he kk nee hese ws 12

Pr r v. V :

401 U.S. 402, 28 L.Ed.2d 136,

Pe hes UM CEPT EE eo bn ieee Sew ebeeeee 14

Bs Fea Cece TEs oo a Bs eta ee 7

mmi for th nsiderati yf_th nes_ Falls

Sewage System v. Train, 387 F.Supp. 526

eh Bf RD ee ere re ie 15

monwealth _ of n rel. Hancock v

Ruckleshaus, 497 F.2d 1172 (C.A.6 1974); cert.

granted 426 U.S. 167, 48 L.Ed.2d 555,

PE Gisks RNC CAS 5 Fo Ob eta oo 13

nfiscation Cases,

7 Wall 454, 19 L.Ed. 196 (1869) ......... 14

iv

EPA v. California,

426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578

(1976)

Greene v. Costle,

557 F.Supp. 1225 (W.D.Tenn. 1983) ........ 9

Heckler v. Chaney,

470 U.S. 821, 84 L.Ed.2d 714, 105 S.Ct. 1649

COMMER ec a a aes pe eric = 13, 14

North Carolina v. Pearce,

395 U.S. 711, 89 S.Ct. 2072,

23 L.Ed.2d 656 (1969)

Save the Bay, Inc. v. Administrator of the EPA,

DOR Kidde Ate (Geiae BOTT) vi eeu. 7

Southern Ohio Coal Company v. Office of Surface Mining,

Reclamation and Enforcement, Department of _the

Interior, 20 F.3d 1418, 1420 (C.A. 6 1994) ..... 20, 21

South Carolina Wild! ife Federation v. Alexander,

ast Pama 45 GOS 7) uw... 9, 15

United States v. Anderson,

923 F.2d 450 (C.A.6 1991), cert. denied

NED babiekt FEO LOE). 225: obo as; 18, 19, 20

United States v. Andrews,

633 F.2d 449 (1980)

United States v. Batchelder,

442 US. 114, 60 L.Ed.2d 755, 99 S.Ct. 2198

Co ey a eee 14

United States v. Bustamonte

Ms £5d 2 A G18) 17

332 US. 19, 91 LEd. 1889, 67 S.Ct. 1658

es eo eee dees is 8

United States v. Cargill, Inc.,

508 F.Supp 734 (D.Delaware 1981) ...... 7,9

it Vv r

222 U.S. 274, 32 S.Ct. 81, 56 L.Ed. 198 (1911) 8

United States v. Nixon,

418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090

CRE. oP eA ORES AAR E OCR OE Oe CONS ON 14

ni tates v. Phelps D oration,

391 F.Supp. 1181 (D.Arizona 1975) ....... 15

USI Properties Corp. v. EPA, 517 F.Supp. 1235, 1237

Cee eens Cate LOE? 2 chs da woe eee eee 21

Vaca v. Sipes,

386 U.S. 171, 17 L.Ed.2d 842 (1967) ...... 14

CONSTITUTION AND OTHER STATUTES

Fo Bans ee Bn Perr er ay yes a ea l

PT REE: ik so ELE a eee ORs hee 1, 6, 9

Gg iS Gah & |: Se near Ior Eire gar op yy a 3

vi

Oe SR TPEE ohne nt gig ig. pe > 9, 9, 10

CSE EE 8 = See RRR ibe pen os iets SER foo Mec ea 2, 10

ee i II ihe Gee oo ee 1,8

MISCELLANEOUS

GD Pacer Remet 16.875 <0; 6

Legislative History of the Federal Water Pollution

Control Act of 1972 (P.L. 92-500: US.

Congressional and Administrative News,

Pre es BEGG kids okt, BS os ck 10

State/EPA Relations Strained, General Accounting

Office Report Says, 11 Env.Rep. Current

Developments 649 (August 29, 1980) ...... 7

Vii

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit is cited as Numbers 94-6508 and 94-

6509 (6th Cir. 1996) and is set forth in this Appendix at

App-l.

JURISDICTION OF THIS COURT

The judgment of the Court of Appeals for the Sixth

Circuit was entered on June 28, 1996. (App-1) Petition

for Rehearing was denied on August 20, 1996. (App-13)

This Court has jurisdiction to review the judgment of the

Court of Appeals pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS

D ST TES INV D

The Clean Water Act, 33 U.S.C. § 1366, provides

in pertinent part:

§ 1366. Appearance

The Administrator [of the Environmental

Protection Agency] shall request the

Attorney General to-appear and represent

the United States in any civil or criminal

action instituted under this chapter to which

the Administrator is a party.

The Clean Water Act, 33 U.S.C. § 1251(d),

provides:

§ 1251. Congressional declaration of goals

and policy

(d) Administrator of Environmental

Protection Agency to administer

chapter

Except as otherwise expressly provided in

this chapter, the Administrator of the

Environmental Protection Agency

(hereinafter in this chapter called

‘Administrator’) shall administer _ this

chapter.

The Clean Water Act, 33 U.S.C. § 1342(i),

provides:

§ 1342. National pollutant discharge

elimination system

(i) Federal enforcement not limited

Nothing in this section shall be construed to limit

the authority of the Administrator to take action

pursuant to section 1319 of this title.

STATEMENT OF THE CASE

Petitioner John A. Lawson is the president and

principal shareholder of Spanish Cove Sanitation, Inc.

[Spanish Cove], Petitioner, Spanish Cove is a Kentucky

corporation which owns a small wastewater treatment

facility located in Jefferson County, Kentucky.

Spanish Cove is operated under the direction and

authority of the Environmental Protection Agency [EPA]

and the Commonwealth of Kentucky Natural Resources

and Environmental Protection Cabinet [the

Commonwealth], pursuant to the National Pollutant

Discharge Elimination System [NPDES], 33 U.S.C. §1342,

and the Kentucky Pollutant Discharge Elimination System

[KPDES], KRS 224, respectively. Spanish Cove holds

permit number KY0039802 under the Kentucky law.

Under its permit, Commonwealth and Federal law,

Spanish Cove is required to, and regularly has, submitted

monthly discharge monitoring reports which state truthful

accounts of the levels of various effluents discharged from

the Spanish Cove plant. During all times relevant to this

proceeding, Petitioners were actively working with officials

from the Commonwealth to bring Spanish Cove into full

compliance with the permitted levels of effluent discharge.

In August, 1992, Assistant United States Attorney

Randy Ream notified Petitioners of his intention to seek

grand jury indictment against them regarding alleged

violations of 33 U.S.C. §1319. At no time were the

Petitioners contacted by the Commonwealth or the EPA

regarding the possibility of criminal charges under the

Clean Water Act. Of his own authority, AUSA Ream

informed Petitioners that to avoid indictment, they would

be required to enter a plea of guilty to three violations of

33 U.S.C. $1319. Following entry of the plea, a fine would

be deterred and a redesign of the Spanish Cove facility

ordered. AUSA Ream offered no guidance as to the level

of the fine or the cost of redesign. (App. 34) Petitioners

refused.

On February 2, 1993, under the supervision of

AUSA Rean, the grand jury returned indictment number

CR93-00015-L(M), charging Petitioners with seventeen

counts of violating of 33 U.S.C. §§ 1311(a), 1319(c)(1)(A)

and (c)(2)(A). (App. 15) The indictment was based

entirely upon the discharge monitoring reports which

Petitioners were required to submit to the Commonwealth

under the KPDES program.

Prior to trial, Petitioners offered proof of literally

thousands of violations of the KPDES permit effluent

discharge levels which resulted in no criminal prosecution.

The United States was unable to produce evidence of even

a single criminal prosecution brought in the

Commonwealth, despite the thousands of violations. The

trial court granted the United States’ motion in limine to

exclude Petitioner’s evidence of the other non-prosecuted

violators, apparently in reliance upon the United States

offer of two prior civil matters which had been prosecuted

through the Department of Justice’s Louisville office at

the request of the EPA.

At the trial of this matter, the United States offered

no proof of actual environmental harm from the effluent

discharge at Spanish Cove. The jury returned a verdict of

guilty on fourteen of the seventeen counts alleged in the

indictment. On November 8, 1994, the United States

District Court for the Western District of Kentucky

entered judgment against the Petitioners and sentenced

Mr. Lawson to serve six months in prison. The Sixth

Circuit Court of Appeals affirmed as to all matters except

the imposition of a fine, upon which issue it reversed.

Resentencing on the fine has been stayed by the district

court pending the exhaustion of Petitioners right to

appeal.

ASONS FOR GRANTING T

I. THE DISTRICT COURT HAS NO

JURISDICTION TO ENTER JUDGMENT

IN A CRIMINAL PROCEEDING UNDER

THE CLEAN WATER ACT, 33 U.S.C.

§1251, ET SEQ., WHERE A UNITED

STATES ATTORNEY INSTITUTED

CRIMINAL PROCEEDINGS WITH NO

PRIOR REQUEST FROM THE

ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION

AGENCY.

There is no clear precedent on this important issue.

In the absence of clear precedent, the Attorney

General, acting through Assistant United States Attorneys,

may usurp from the Administrator of the EPA

[Administrator] the authority to bring criminal

enforcement proceedings under 33 U.S.C. § 1319(c) to the

detriment of the objectives of the Clean Water Act. The

defect here is jurisdictional in that Congress has clearly

and unambiguously placed enforcement authority,

including criminal enforcement authority, within the

discretion of the Administrator of the EPA.

The criminal provisions set forth in 33 U.S.C.

$1319(c) are strict liability offenses carrying substantial

fines and imprisonment. The Attorney General, acting

through Assistant United States Attorneys, is without the

technical and scientific expertise to determine when, and

if, criminal sanctions are required in a particular case.

Prior referral of criminal cases from the Administrator to

the Department of Justice is the only means by which the

O_O

goals of the Clean Water Act can be accomplished.

Congress set forth its goals in 33 U.S.C. §$1251(a) which

states, "The objective of this chapter is to restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters."

Subsequent to the Petitioner’s prosecution, on

March 31, 1995, the Administrator published an interim

policy regarding criminal referrals to the Department of

Justice (60 Fed.Reg. 16, 875). This interim policy is

relevant to the current prosecution for two reasons. First,

it presumes that the EPA has, and always has had, the

sole authority to refer cases to the Department of Justice

for prosecution. Second, it demonstrates that EPA

enforcement policies will be utterly confounded unless the

Clean Water Act’s criminal provisions are authoritatively

placed within the sole discretion of the Administrator. In

relevant part, this interim policy states:

Voluntary Environmental Self-Policing and Self-

Disclosure Interim Policy Statement

I. Background

D. Principles for Voluntary Compliance

The interim policy that EPA is announcing today

is based on seven principles:

l. Self-policing by regulated entities can play a

crucial role in finding, fixing and preventing

violations.

x *

3. Regulated entities that self-police and that

voluntarily disclose and self-correct violations in

accordance with this policy should be assessed

penalties that are consistently and predictably lower

than penalties for those who do not.

4. Regulated entities that self-police and

voluntarily disclose and self-correct violations in

accordance with this policy should also not be

recommended for criminal prosecution.

ss *

In United States v. Cargill, Inc., 508 F.Supp. 734,

740 (D.Delaware 1981), the United States, at the request

of the EPA, sued under the Clean Water Act to enjoin a

wastewater treatment facility for violations of its permit

and to impose civil penalties for past violations. The

district court expressed the difficulty caused by the

uncertainty of the Act’s enforcement provisions. The

district court stated:

The means prescribed by the [Clean Water]

Act for implementing the primary goal of

cleaning up the nation’s waters reflects the

Congressional intent to encourage

cooperative federalism. However, the Act’s

imprecision in delineating the exact roles of

the various participants has often done

much to exacerbate federal/state tensions,

as shown by the present case. See, EPA v.

California, 426 U.S. 200, 96 S.Ct. 2022, 48

L.Ed.2d 578 (1976); Cleveland Electric

[luminating Co. v. EPA, 603 F.2d 1 (C.A.6,

1979); Save the Bay, Inc. v. Administrator of

the EPA, [556 F.2d 1282 (C.A.5, 1977)];

American Iron and Steel Institute v. EPA,

(526 F.2d 1027 (C.A.3, 1975)]; ’State/EPA

Relations Severely Strained, General f

Accounting Office Report Says, 11 7

Env.Rep. Current Developments 649

(August 29, 1980).

In bypassing the Administrator’s authority to decide

whether to prosecute criminally, AUSA Ream has created

a great threat to an already strained system. The threat of

federal criminal prosecution is a virtual guarantee that

individual permit holders will refuse to incriminate

themselves through their discharge monitoring reports.

Self-policing by permit holders will fail.

An Act passed by Congress and signed by the

President can limit the power previously granted the

Attorney General to prosecute claims for the Government.

United States v. California, 332 U.S. 19, 27, 67 S.Ct. 1658,

91 L.Ed. 1889, 1893 (1947). Limitations on the authority

of the Department of Justice to proceed under the

criminal laws require a clear and unambiguous expression

of the legislative will. United States v. Morgan, 222 U.S.

274, 282, 32 S.Ct. 81, 82, 56 L.Ed. 198, 200 (1911).

The Clean Water Act of 1977, 33 U.S.C. §1366

contains such a clear and unambiguous expression of

Congressional intent. This statute states:

$1366. Appearance

The Administrator shall request the

Attorney General to appear and represent

the United States in any civil or criminal

action instituted under this chapter to which

the Administrator is a party. Unless the

Attorney General notifies the Administrator

within a reasonable time, that he will

appear in a civil action, attorneys who are

officers or employees of the Environmental!

Protection Agency shall appear and

represent the United States in such action.

Statutory language that an act ’shall’ be carried out

is generally regarded as mandatory. South Carolina

Wildlife Federation v. Alexander, 457 F.Supp. 118, 130

(D.S.C. 1978); Greene v. Costle, 557 F.Supp. 1225, 1228-30

(W.D.Tn. 1983)(noting that Congress uses the terms "may"

and "authorized" in the Clean Water Act, but not

interchangeably with “shall.") In bringing this criminal

action, AUSA Ream was acting without prior request from

the Administrator.

The criminal provisions of 33 U.S.C. §1319(c) are

within Title 33 U.S.C., Chapter 26 - Water Pollution

Prevention and Control. Congress clearly and

unambiguously placed the authority to administer the

criminal provisions within the sole authority of the

Administrator under 33 U.S.C. §1251(d), which states:

§1251. Congressional declaration of goals

and policy

(d) Administrator of Environmental

Protection Agency to administer

chapter

Except as otherwise expressly provided in

this chapter, the Administrator of the

Environmental Protection Agency

(hereinafter in this chapter called the

‘Administrator’) shall administer _ this

chapter.

The Clean Water Act establishes a system of

concurrent jurisdiction between the Federal and State

authorities to apply and enforce the provisions of the Act.

United States _v. Cargill, Inc., 508 F.Supp. 734, 736

(D.Delaware 1981). Among the mechanisms for

accomplishing the objectives of the Act is 33 U.S.C. §

1342, which permits the states to administer their own

effluent discharge permit programs following approval of

the state program by the EPA Administrator. At issue in

the Petitioners’ case is a violation of a permit issued under

the Commonwealth’s KPDES program. That Congress

intended the jurisdiction over this program to be

concurrently held between the states and _ the

Administrator, as opposed to the Department of Justice,

is clearly set forth in 33 U.S.C. § 1342(i). This statute

States:

§ 1342. National pollutant discharge

elimination system

(i) Federal enforcement not limited

Nothing in this section shall be construed

to limit the authority of the Administrator

to take action pursuant to section 1319 of

this title.

Congress’ intent that either the State or the

Administrator initiate criminal prosecutions under the

Clean Water Act is evident from the legislative history of

the legislation preceding the Clean Water Act of 1977. the

Federal Water Pollution Control Act Amendments of 1972

(P.f 92-500; U.S. Congressional and Administrative News.

p. 3809). Initially, the Senate bill required the

Administrator to initiate civil actions or criminal

proceedings. This requirement was modified by House

Amendment to the extent that the Administrator is

authorized, but not required, to bring civil or criminal

proceedings. The House Amendment was adopted by

Senate Conference. The House Amendment to Section

309 (33 U.S.C. §1319) states:

10

House Amendment

Section 309 is basically the same as the

Senate bill except that the Administrator is

authorized rather than required to initiate

civil actions or criminal proceedings. Civil

penalties cannot exceed $10,000 per day of |

violation, and criminal penalties cannot

exceed $50,000 per day of violation and two

years imprisonment.

Conference substitute

This is the same as the House amendment.

a ale

Senate Report Number 92-414, Section 309 -

Federal Enforcement, presumes a scheme of Federal

enforcement within the sole authority of the

Administrator. In relevant part, the Senate report states:

The Committee again, however, notes that

the authority of the Federal Government

should be used judiciously by the

Administrator in those cases (sic) deserve

Federal action because of their national

character, scope, or seriousness. The

Committee intends the great volume of

enforcement actions be brought by the

State. It is clear that the Administrator is

not to establish an enforcement bureaucracy

but rather to reserve his authority for the

cases of paramount interest.

*-* *

ee The Administrator retains, without

qualification, the authority presently available

under the Refuse Act to prosecute for unlawful

discharges.

11

Decisions of the various Circuit Courts of Appeals

and United States District Courts lend persuasive, but not

decisive, authority on this issue. From these authorities,

it is clear that the defect is jurisdictional.

In DuBois v. Thomas, 820 F.2d 943, 950 (8th Cir.

1987), the Court bifurcated its analysis of the

Administrator's enforcement duties under the Clean Water

Act into the duty to investigate and the duty to enforce.

The Court of Appeals for the Eighth Circuit ruled that the

duties of the Administrator to investigate violations were

discretionary. DuBois, 820 F.2d at 948 (8th Cir. 1987).

With regard to the duty to enforce, the Court emphasized

that the statutory language regarding enforcement is not

clear and, therefore, upheld the Administrator’s

interpretation that enforcement is discretionary. The

Court stated:

We believe that neither the language of §

309(a)(3) nor its legislative history can be

said to evince a clear intent of Congress as

to whether the enforcement duties of the

Administrator are mandatory or

discretionary. Under such circumstances,

the Administrator’s interpretation is a

permissible construction of § 309(1)(3).

That interpretation therefore must stand.

Chevron [U.S.A._v. Natural Resources

Detense Council, 467 U.S, 837. 844-45,]

We hold that the duties imposed on

appellants by § 309(a)(3) of the FWCPA

are discretionary. The district court should

have dismissed the FWCPA claim against

appellants for lack of subject matter

jurisdiction.

In Commonwealth of Kentucky, ex rel. Hancock v.

Ruckelshaus, 497 F.2d 1172, 1177 (6th Cir. 1974), the Sixth

Circuit was called upon to interpret the enforcement

provisions of the Clean Air Act, 42 U.S.C. $1857, et seq.

There, the Commonwealth brought suit to compel the

Administrator of the EPA to require various federal

agencies operating air pollutant emitting equipment within

the Commonwealth to seek a permit issued by the

Commonwealth. The Sixth Circuit found, under the Clean

Air Act, that there had been a waiver of sovereign

immunity with respect to the Administrator and he could

be so compelled if the decision to enforce the Clean Air

Act was mandatory, rather than discretionary. The Sixth

Circuit ruled:

The district court correctly held that it had

no power to review the decision of EPA not

to commence actions under section 113

since this was a decision on ’agency action

committed to agency discretion by law.’ 5

U.S.C. §701(a)(2).

If, as argued by Petitioners, the EPA has the sole

authority at the federal level to determine whether to

criminally prosecute a permit holder, then the district

court is without jurisdiction to enter judgment against the

permit holder for violations of 33 U.S.C. $1319 in the

absence of an EPA request for criminal prosecution. This

Court spoke to this point in the context of the

reviewability of an agency decision not to enforce in

Heckler v. Chaney, 470 U.S. 821, 831, 84 L.Ed.2d 714, 723,

105 S.Ct. 1649 (1985). This Court stated:

This Court has recognized on several

occasions Over many years that an agency’s

13

decision not to prosecute or enforce,

whether through civil or criminal process, is

a decision generally committed to an

agency’s absolute discretion. See, United

States v. Batchelder, 442 U.S. 114, 123-124,

60 L.Ed.2d 755, 99 S.Ct. 2198 (1979);

l s v. Nixon, 418 U.S. 683, 693,

41 L.Ed.2d 1039, 94 S.Ct. 3090 (1974); Vaca

v. Sipes, 386 U.S. 171, 182, 17 L.Ed.2d 842,

87 S.Ct. 903 (1967); Confiscation Cases, 7

Wall 454, 19 L.Ed. 196 (1869). This

recognition of the existence of discretion is

attributable in no small part to the general

unsuitability for judicial review of agency

decisions to refuse enforcement.

This Court ruled, Heckler v. Chaney, 470 U.S. at

837-838, 84 L.Ed.2d at 727 (1985):

We therefore conclude that the presumption

that agency decisions not to institute

proceedings are umnreviewable under

§701(a)(2) of the APA is not overcome by

the enforcement provisions of the FDCA.

The FDA’s decision not to take

enforcement actions requested by

respondents is therefore not subject to

judicial review under the APA. The general

exception to reviewability provided by

§701(a)(2) for action ‘committed to agency

discretion’ remains a narrow one, see

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 28 L.Ed.2d 136, 91 S.Ct. 814

(1971), but within that exception are

included agency refusals to institute

14

investigative or enforcement proceedings,

unless Congress has indicated otherwise. In

so holding, we essentially leave to Congress,

and not to the courts, the decision as to

whether an agency’s refusal to institute

proceedings should be judicially reviewable.

In the context of citizens suits pursuant to 33 U.S.C.

§ 1365, the courts have routinely held that, even though

the Administrator may be required to enforce certain

provisions of the Act, the method of enforcement is

discretionary. DuBois v. EPA, 646 F.Supp. 741, 745 (W.D.

Missouri 1986) (finding duty to enforce mandatory, but

method of enforcement discretionary with Administrator);

South Carolina Wildlife Federation v. Alexander, 457

F.Supp. 118, 134 (D.S.C. 1978) (Administrator’s duty to

enforce mandatory, but ". . . this court is not of the

opinion that he is mandated to begin enforcement

proceedings in the courts by initiating either a civil or

criminal action."); Committee for the Consideration of the

Jones Falls Sewage System v. Train, 387 F.Supp. 526, 530

(D.Maryland 1975) ("The Administrator has enforcement

powers under various provision of the Act. He must be

allowed to determine how a particular discharger should

be proceeded against to best achieve the objectives of the

Act."); Untied States v. Phelps Dodge Corporation, 391

F.Supp. 1181, 1184 (D.Arizona 1975) ("Thus, it seems

clear that the bill as finally submitted and passed was

intended to provide that while the Administrator must act

in case of any violations, he has alternative methods of

acting; i.e., either by civil or by criminal proceedings.”).

By entering judgment against Petitioners without

prior request from the EPA for the institution of criminal

proceedings, the district court invaded the discretion of the

15

Administrator. The Court of Appeals for the Sixth Circuit

similarly invaded this discretion in affirming Petitioners’

convictions. As Congress has clearly and unambiguously

placed the discretion to bring criminal enforcement

proceedings within the authority of the Administrator, the

courts below were without jurisdiction to enter judgment.

Respectfully, writ of certiorari should issue to

review the judgments herein and to prevent future

unrequested criminal proceedings from confounding the

objectives of the Clean Water Act.

II. THE COURT OF APPEALS FOR THE SIXTH

CIRCUIT ERRED IN REFUSING TO

REVERSE THE TRIAL COURTS ORDER

EXCLUDING FROM EVIDENCE CLEAR

PROOF OF SELECTIVE AND VINDICTIVE

PROSECUTION.

This issue was presented upon appeal and in

petition for rehearing to the Court of Appeals for the

Sixth Circuit. The court below erred in refusing to reverse

on this issue.

Prior to the trial of this matter, Petitioners offered

into evidence proof of thousands of effluent limit

violations under the KPDES system, emphasizing that

none of the violating permit holders had been subjected to

criminal prosecution. Petitioners further offered proof of

829 discharge monitoring violations by the Louisvi!'e-

Jefferson County Metropolitan Sewer District [MSD]

between January, 1989 and January, 1993. The United

States moved the court in limine to exclude this evidence

from trial, offering proof of only two prior civil

prosecutions for KPDES violations which were initiated by

16

the United States Attorney’s Office at the direct request

of the EPA. One of these civil actions was against MSD

in 1977; no proof was offered as to any sanction against

MSD from 1989 through 1993. In granting the United

States’ motion, the district court erred.

In United States v. Bustamonte, 805 F.2d 201, 202

(C.A.6 1986), the Court of Appeals for the Sixth Circuit

adopted the majority standard for selective prosecution.

The Court stated:

Accordingly, it has been held that a

defendant asserting selective prosecution:

... bears the heavy burden of establishing, at

least prima facie, (1) that while others

similarly situated have not generally been

proceeded against because of conduct of the

type forming the basis of the charge against

him, he has been singled out for prosecution

and (2) that the government’s discrimination

of him has been invidious or in bad faith,

i.e. based upon. such _ impermissible

considerations as race, religion, or the

desire to prevent the exercise of his

constitutional rights. Citations omitted.

The trial court excluded, pursuant to the United

States’ motion in limine, Petitioners’ evidence of

thousands of violations contained in discharge monitoring

reports submitted pursuant to the KPDES system. The

United States offered no proof of other criminal

prosecutions under the Clean Water Act.

Petitioner Lawson has twice before been subject to

17

prosecution by AUSA Ream. In 1989, Ream prosecuted

Lawson with regard to a minor infraction involving the

destruction of foliage on Corps of Engineers property at

Rough River, Breckinridge County, Kentucky (Citation

No. AH883). Upon proof that the property actually

belonged to Petitioner Lawson, this charge was dismissed.

AUSA Ream again prosecuted Petitioner Lawson in 1992

(Citation No. AS87634) for a minor infraction involving

the placement of a utility building on Corp of Engineers

property at Rough River, Kentucky. The current

prosecution is, at least prima facie, "invidious."

In United States v. Andrews, 633 F.2d 449, 454

(1980), the Court of Appeals for the Sixth Circuit

interpreted this Court’s decision in Blackledge v. Perry,

417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The

lower court stated:

We emphasize that Blackledge does not

require that a defendant show that a

prosecutor was actually vindictive.

Blackledge’s proscriptions are triggered

where a defendant shows that there is a

realistic likelihood that a prosecutor acted

vindictively. There are sound reasons for

this. First, this takes into account the due

process value that defendants be ’freed of

apprehension of such a retaliatory

motivation’ on the part of a judge or

prosecutor. Blackledge, supra, 417 U.S. at

28, 94 S.Ct. at 2102, quoting [North

Carolina v.] Pearce, [395 U.S. 711, 725, 89

S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969)].

Second, such a standard is the only realistic

way to police vindictiveness. As the Court

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noted in Pearce, supra at 724 n.20, 89 S.Ct.

at 2080 n.20, ’the existence of a retaliatory

motivation would, of course, be extremely

difficult to prove in any individual case.

Third, there is an important policy

consideration. Prosecutors and criminal

defendants are adversaries and prosecutors

make honest mistakes. If the standard to be

applied was proof of actual vindictiveness, a

trial judge would have the Hobson’s choice

of either not barring the extra charge or of

saying that a prosecutor acted wrongly. In

some cases, a trial judge would, in effect, be

calling the prosecutor a liar where the

prosecutor claimed inadvertence and the

judge ruled against him. We do not think

that such confrontations before the judiciary

and the executive branch are desirable. A

standard of ’realistic likelihood of

vindictiveness’ allows the barring of charges

in appropriate situations without the need to

find that the prosecutor acted in bad faith.

Footnotes omitted.

In United States v. Anderson, 923 F.2d 450 (6th

Cir. 1991), cert. denied, 499 U.S. 980, 111 S.Ct. 1633, 113

L.Ed.2d 729, cert. denied, McNeil v. U.S., 111 S.Ct. 2062,

114 L.Ed.2d 467, the Court of Appeals set the "rule of

law" for vindictive prosecution in the Petitioners’ circuit.

The lower court stated:

A prosecutor vindictively prosecutes a

person when he or she acts to deter the

exercise of a protected right by the person

prosecuted. United States v. Andrews, 633

19

F.2d 449, 453-55 (6th Cir. 1980), cert.

denied, 450 U.S. 927, 101 S.Ct. 1382, 67

L.Ed.2d 358 (1981). A person who claims he

has been vindictively prosecuted must show

that the prosecutor has some ’stake’ in

deterring the petitioner’s exercise of his

rights, and that the prosecutor’s conduct was

somehow unreasonable.

Anderson, supra., does not require the Petitioners

to define what the prosecutor’s "stake" is, but only to

establish that he does have one. Petitioners have

established at least a "realistic likelihood of vindictiveness"

in that AUSA Ream has made two prior unsuccessful

attempts at prosecution for unsubstantial violations.

Second, and most concerning, AUSA Ream initiated this

prosecution without prior request from the EPA. Third,

the penalties sought by AUSA Ream in this prosecution

are so greatly disproportionate to the alleged wrong that

vindictiveness is apparent.

As is argued herein. AUSA Ream’s conduct in

seeking the prosecution of the Petitioners without prior

request from the EPA was unreasonable. Both prongs of

the Anderson and Andrews standards have been met.

A comparison of published cases to Petitioners’

case demonstrates that AUSA Ream’s conduct in

prosecuting the Petitioners’ was unreasonable due to the

great disparity between the degree of penalty in this case

and that in other cases. The vast majority of published

decisions involve EPA compliance on dues or civil fines.

In Southern Ohio Coal Company v. Office of Surface

Mining, Reclamation and Enforcement, Department of the

Interior, 20 F.3d 1418, 1420 (6th Cir. 1994), rehearing with

20

suggestion for rehearing en banc denied (1994), at issue

was the discharge of "an estimated one billion gallons of

water .... [which] contained levels of iron over 100 times

the legal limit as well as excessive levels of zinc,

manganese and copper." In Southern Ohio Coal

Company, the Commonwealth of Kentucky had approved

an emergency removal plan which would have allowed the

mining company discharge of this water directly into

surrounding creeks and streams, even though this was

known to be fatal to all aquatic life in the area. Even

though the EPA challenged the plan, no criminal penalty

is discussed. Similarly, in USI Properti v, EPA,

517 F.Supp. 1235, 1237 (D.Puerto Rico 1981), the EPA

issued a cease and desist order, not criminal punishment,

in a case involving the pumping of "110,000 gallons of

water per minute” off of an area determined to be

protected wetlands.

At the trial of this matter, the United States offered

absolutely no proof of environmental harm from the

Spanish Cove facility. Yet, Petitioner Lawson has served

six months in federal prison and is still potentially subject

to substantial fines.

al ee ee

PETE FI

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully Submitted,

J. MICHAEL POOLE

The Starks Building, Suite 610

455 South Fourth Avenue

Louisville, Kentucky 40202

(502)587-0063

COUNSEL OF RECORD

Attorneys for the Petitioners

John A. Lawson and

Spanish Cove Sanitation, Inc.

Bruce G. Anderson

Ed Monarch

Of Counsel

Date: November 6, 1996

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