Page 240 - California Stormwater Workshop Handouts

Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141 (2000)
51 ERC 1545, 31 Envtl. L. Rep. 20,246, 00 Cal. Daily Op. Serv. 8692...
of these contentions, however, would justify the dismissal
of the entire case.
[14] As to the first, new permit issue: Even if the plaintiffs’ or the deterrent effect of civil penalties any less potent.
claims for injunctive or declaratory relief for violations of
the earlier General Permit became moot when the 1997
General Permit went into effect—an issue we do not
decide—the plaintiffs’ claims for civil penalties and
attorneys’ fees would remain viable. See Laidlaw, 120
S.Ct. at 706–10; Northwest Environmental Advocates v.
City of Portland, 56 F.3d 979, 990 (9th Cir.1995)
(changes to defendant’s NPDES permit did not moot
claims for attorney’s fees based on alleged violations of
old permit).
[15] An action becomes moot if the controversy is no
longer live because an event occurs that precludes the
court from ordering effective relief, a circumstance that is
not before us. American Rivers v. National Marine
Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir.1997). The
district court retained subject matter jurisdiction in this
case whether or not the alleged violations persist
throughout the duration of the litigation, because Mateel
and ERF alleged violations of the Clean Water Act that
were ongoing at the time the complaint was filed. See
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98
L.Ed.2d 306 (1987). Therefore, we cannot say that the
controversy as regards Pacific Lumber’s violations of the
1992 General Permit are no longer live even if the
plaintiffs have not properly claimed violations of the 1997
General Permit, as long as effective relief is possible.
There is no reason the district court could not order
effective relief in this case. As is ordinarily the case with
monetary relief, liability for civil penalties under the
Clean Water Act attaches at the time the violations occur,
not at the time of the judgment. See 33 U.S.C. § 1319(d)
(“Any person who violates [various sections of the Clean
Water Act or permits issued under the Act] shall be
subject to a civil penalty not to exceed $25,000 per day
for each violation.”). Further, such monetary penalties
continue to fulfill their purpose after the issuance of a new
permit: Civil penalties deter future violations of the Clean
Water Act even when injunctive relief is inappropriate.
See Laidlaw, 120 S.Ct. at 706 (“civil penalties in Clean
Water Act cases do more than promote immediate
compliance ...; they also deter future violations”); id. at
710. Monetary penalties can serve their general deterrent
function as well now that Pacific Lumber’s discharges are
regulated under a new, stricter permit as they could under
the old permit. The underlying statutory rule appellants
seek to enforce in this case precludes any discharges
except in compliance with an applicable permit. 33 U.S.C.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
§ 1311(a). There is no basis for believing that the bare
fact of a new, stricter permit makes future permit
violations any less likely, deterrence any less necessary,
We must conclude that civil penalties, if appropriate on
the merits, would serve their deterrent purpose in this
case.
[16] Nor does Pacific Lumber’s claim that the Yager Camp
60–day notice letter *1154 was inadequate, even if correct
(again, an issue we do not address), provide a reason for
affirming the district court’s judgment of dismissal.
Pacific Lumber has not argued that the plaintiffs’ notice
letter pertaining to the Carlotta mill is, with respect to
alleged violations of the 1992 General Permit, in any way
deficient. Consequently, Pacific Lumber’s allegation
regarding the 60–day notice requirement could, at most,
support striking the parts of plaintiffs’ complaint
pertaining to the Yager facility; the case could still go
forward with respect to the alleged violations of the 1992
General Permit at Carlotta.
We cannot, therefore, affirm the district court’s outright
dismissal of the plaintiffs’ lawsuit on the basis of Pacific
Lumber’s alternative arguments. Under these
circumstances, it would be entirely improper for us to
address those arguments any more extensively than we
have, for two reasons.
First, the rule that a case may be affirmed on any ground
supported by the record is one driven by efficiency
considerations. Where precisely the same result could
have been reached on other grounds apparent from the
record, sending the case back to the district court is
wasteful both for the courts and for the litigants. See SEC
v. Chenery, 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626
(1943).
At the same time, the affirm-on-any-ground rule does
disregard the usual relationship between trial and
appellate courts. Usually, an appellate court does not
consider legal issues in the first instance but instead has
the benefit of the district judge’s initial analysis. Our
judicial system generally assumes that consideration of an
issue at both the trial court and appellate court level is
more likely to yield the correct result, because the issue
will be more fully aired and analyzed by the parties,
because more judges will consider it, and because trial
judges often bring a perspective to an issue different from
that of appellate judges. It is to assure two-level
consideration that issues usually cannot be raised in
appellate courts in the first instance, but instead are
waived (or reviewed only for plain error) if not raised
before the district court. See, e.g., In re E.R. Fegert, Inc.,
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