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Ninth Circuit:
Party Securing Fireworks Permit After Judgment Moots Clean Water Act Suit
Majority Says Civil Penalties Unavailable Because It’s Absolutely Clear Defendant Unlikely to Hold Future Show Without Authorization; Opinion Draws Dissent
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals held yesterday that a lawsuit brought by an environmental group against the owner of a restaurant—alleging violations of legislation prohibiting the discharge of pollutants into the water without a permit relating to the hosting of an annual Fourth of July fireworks show—is moot following the defendants’ securing a newly available license for pyrotechnic shows after judgment was entered in its favor.
Appealing the judgment was Coastal Environmental Rights Foundation (“CERF”) which filed a complaint on Nov. 23, 2021 alleging that Naples Restaurant Group LLC and its managing member John Morris committed violations of the Clean Water Act, codified at 33 U.S.C. §1251 et seq.
Specifically, the plaintiff alleges that the annual “Big Bang on the Bay” event hosted at the Naples restaurant Boathouse on the Bay caused fireworks debris to fall into Alamitos Bay in violation of §1311, which requires a permit for activities that may cause water pollution. The restaurant has hosted the event since 2011 and has never obtained an individual permit for the show, which takes place off of a barge in front of the establishment.
CERF filed suit under provisions of the act authorizing citizens to bring enforcement actions and seeks declaratory and injunctive relief, as well as civil penalties.
Following a bench trial, District Court Judge Mark Scarsi of the Central District of California found that the plaintiffs proved that during one show a firework malfunctioned, exploding prematurely and falling into the water, but that single violation was insufficient to establish that Naples was in continuing violation of the act as required for relief.
After the April 2023 verdict, the Los Angeles Regional Water Quality Control Board began issuing a National Pollutant Discharge Elimination System (“NPDES”) general permit authorizing public fireworks displays over area waterways. Naples applied for and received an NPDES permit.
Circuit Judge Patrick J. Bumatay authored the opinion, vacating the judgment and remanding with instructions to dismiss the case as moot. Circuit Judge Danielle J. Forrest joined in the opinion.
Bumatay noted the existence of a circuit division as to whether a civil penalties claim survives when a request for injunctive or declaratory relief is determined to be moot and, agreeing with the minority view, said that the same standard applies to both types of claims. He wrote:
“While we may have anticipated an appeal filled with pyrotechnic testimony, launch angles, and video replays, we are now left with a simple question: Does the general NPDES permit moot this case?
“….When it’s ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,’ a citizen suit under the Clean Water Act becomes moot….That’s the situation here. CERF alleged Naples violated the Act by discharging pollutants without a permit, but Naples now has a permit authorizing that very discharge. So this case is moot, having fizzled like a malfunctioning firework.”
District Court Judge James Donato of the Northern District of California, sitting by designation, dissented, agreeing with the majority that the same legal standard applies to both injunctive claims and requests for civil penalties under the act, but disagreeing that it is absolutely clear that the wrongful behavior could not be reasonably expected to recur.
Mootness Principles
Bumatay noted that two U.S. Supreme Court cases provide guideposts as to the live controversy question in litigation under the Clean Water Act—the 1987 decision in Gwaltney v. Chesapeake Bay Foundation and the 2000 opinion in Friends of Earth Inc. v. Laidlaw Environmental Services.
In an opinion by Justice Thurgood Marshall (now deceased), the high court in Gwaltney held that, because the legislative text authorizing citizen suits requires that a defendant “be in violation” of the act, it “does not permit citizen suits for wholly past violations.”
The Laidlaw decision, authored by Justice Ruth Bader Ginsburg (also deceased), reaffirmed that courts must apply a “stringent” standard when deciding whether a defendant’s voluntary conduct has mooted a case under the act. Ginsburg said that a Clean Water Act case would become moot only when “events made it absolutely clear that [the defendant’s] permit violations could not reasonably be expected to recur.”
Looking at these cases together, Bumatay said:
“A few principles emerge from Gwaltney and Laidlaw. First, the touchstone for civil penalties under the Clean Water Act is deterrence. Civil penalties deter current or future violations—they do not remedy wholly past violations. Second, to establish mootness, the defendant bears a heavy burden to show that it’s absolutely clear that past violations could not reasonably be expected to recur….And finally, when there’s no reasonable possibility of a future violation, civil penalties lose their deterrent effect and become moot.”
As to the plaintiffs’ claims for injunctive and declaratory relief, Bumatay said:
“[A]ny request for injunctive or declaratory relief would not afford CERF any relief from current or future violations of the Clean Water Act. Nor can CERF seek injunctive relief for wholly past violations.
“Further, there’s no ground to believe that Naples’s alleged Clean Water Act violations are reasonably likely to reoccur. Naples obtained the NPDES permit precisely to comply with its Clean Water Act obligations. And the record does not indicate that Naples acquired its permit to moot the case. Rather the Los Angeles Regional Water Quality Control Board did not issue its general NPDES permit for fireworks displays until after the trial here, and Naples applied for a permit to cover its annual firework show promptly after it became available.”
The jurist said that the Second, Third, Fourth, Seventh, and 11th Circuits “all view civil penalties as distinct from injunctive relief for mootness purposes and agree that, even when injunctive relief becomes inappropriate, any request for civil penalties defeats mootness.” However, he noted that each of these cases were decided before Laidlaw and said:
“None of these cases…involved the type of Clean Water Act violation alleged here—discharging pollutants without having a permit. Rather, they all involved allegations that the defendant violated an existing NPDES permit, but later came into compliance.”
Bumatay continued by noting that “[o]nly the Eighth Circuit has addressed facts like ours and it split with the other circuits.” Siding with the Eighth Circuit, he wrote:
“[A] claim for civil penalties is moot when the defendant shows that it’s absolutely clear that the alleged violation could not reasonably be expected to recur. And here, when CERF’s only claim is that Naples violated the Clean Water Act by discharging fireworks without a…permit, Naples’s acquisition of a permit makes it clear that this violation is not reasonably expected to recur. This moots CERF’s claim for civil penalties.”
Donato’s View
Donato said:
“I agree that there is just one standard for determining the mootness of a citizen’s lawsuit under the Clean Water Act…for both injunctive relief and civil penalties claims: Did the defendant meet its ‘heavy’ burden of demonstrating that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur?’ ”
Applying the standard, he reasoned:
“In the haste to declare ‘case closed,’ the majority concludes that Naples has met that heavy burden without providing any evidence to make it absolutely clear that Naples’ wrongful behavior could not reasonably be expected to recur….The danger of the majority’s holding is that it will dilute the protections of the Clean Water Act by allowing a defendant to escape liability on grounds of mootness without an evidentiary showing that it absolutely will comply with the Act going forward.”
Unpersuaded that it was absolutely clear that the allegedly wrongful conduct in the present case is not likely to recur, he wrote:
“This is hardly a record of ‘dedication to past and future compliance’ with the Clean Water Act….Nothing in this record establishes why it might be ‘absolutely clear’ that Naples will not discharge without a permit again. The general NPDES permit that Naples holds requires the payment of an annual fee. There is no evidence that Naples will pay the annual fee going forward. The District Court certainly did not find that it would. The fact that Naples was perfectly comfortable launching fireworks without a permit for over 12 years is a substantial reason to doubt its commitment to compliance.”
The case is Coastal Environmental Rights Foundation v. Naples Restaurant Group LLC, 23-55469.
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