Natural Res. Def. Council v. Cnty. of L.A.

• Decision Date: 31 October 2016
• Docket Number: No. 15-55562,15-55562
• Parties: Natural Resources Defense Council; Santa Monica Baykeeper, Plaintiffs–Appellants, v. County of Los Angeles; Los Angeles County Flood Control District ; Michael Antonovich, in his official capacity as Supervisor; Don Knabe, in his official capacity as Supervisor; Hilda L. Solis, in her official capacity as Supervisor; Mark Ridley–Thomas, in his official capacity as Supervisor; Sheila Kuehl, in her official capacity as Supervisor; Gail Farber, in her official capacity as Director of Los Angeles County Department of Public Works, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

840 F.3d 1098

Natural Resources Defense Council; Santa Monica Baykeeper, Plaintiffs–Appellants,

v.County of Los Angeles; Los Angeles County Flood Control District ; Michael Antonovich, in his official capacity as Supervisor; Don Knabe, in his official capacity as Supervisor; Hilda L. Solis, in her official capacity as Supervisor; Mark Ridley–Thomas, in his official capacity as Supervisor; Sheila Kuehl, in her official capacity as Supervisor; Gail Farber, in her official capacity as Director of Los Angeles County Department of Public Works, Defendants–Appellees.

No. 15-55562

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 13, 2016 Pasadena, California

Filed October 31, 2016

OPINION

M. SMITH, Circuit Judge:

Plaintiffs–Appellants Natural Resources Defense Council and Santa Monica Baykeeper (collectively, the Plaintiffs) file this interlocutory appeal from the district court's dismissal of their claims for injunctive relief as moot. We hold that we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(a)(1), and that the Plaintiffs' claims for injunctive relief are not moot.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, the Plaintiffs filed suit against the County of Los Angeles and the Los Angeles County Flood Control District (collectively, the County Defendants) alleging that the County Defendants were discharging polluted stormwater in violation of the terms of their National Pollutant Discharge Elimination System (NPDES) permit, issued pursuant to the Federal Water Pollution Control Act (the Clean Water Act), 86 Stat. 816, codified as amended at 33 U.S.C. §§ 1251, et seq . In 2013, we held that as a matter of law, the County Defendants had violated their permit because their monitoring stations recorded levels of pollution that exceeded the receiving water limitations in the 2001 Permit. Nat. Res. Def. Council, Inc. v. Cnty. of Los Angeles , 725 F.3d 1194, 1196–97 (9th Cir. 2013). We remanded the case to the district court for a remedies determination. Id. at 1197.

In 2012, during the pendency of appellate proceedings, the County Defendants sought and received a new NPDES permit from the Los Angeles Regional Water Quality Control Board (the Regional Board), which now governs the County Defendants' stormwater discharges. Id. at 1199 n.7. Both permits have substantially the same baseline receiving water limitations, which are the crux of the Plaintiffs' claims.

However, the 2012 Permit made significant changes concerning how the receiving water limitations requirement could be met. In the 2001 Permit, the prohibition against pollution exceedances was specific and straightforward: “[d]ischarges from the MS4 that cause or contribute to the violation of Water Quality Standards or water quality objectives are prohibited.” If the pollution levels exceeded the limitations as detected by a relevant monitoring station, the permittees were in violation of the 2001 Permit. Id. at 1206–07.

The 2012 Permit is more complicated. First, the 2012 Permit establishes total maximum daily loads (TMDLs) for impaired water bodies. This is a measure of the maximum quantity of a pollutant that can be sustained by a water body that is already impaired, and it is used to calculate effluent limitations specific to the already-polluted area. The 2012 Permit contains interim requirements to ensure that permittees are making progress toward achieving water quality standards in those areas, as well as final deadlines for permittees to actually meet TMDL targets. Failing to meet an interim or final TMDL requirement is a violation of the permit. Conversely, if a permittee meets the TMDL standards, it is deemed to be in compliance with baseline receiving water limitations. The 2012 Permit has thirty-three TMDLs for different bodies of water and pollutants. Where no TMDL is assigned to a certain body of water, the baseline receiving water limitations apply.

Second, the 2012 Permit creates a safe harbor program for permittees that initiate, develop, revise, and implement a voluntary watershed management program (WMP) or enhanced watershed management program (EWMP). If a permittee initiates a WMP and timely meets the requirements of the program, the permittee is deemed to be in compliance with both baseline receiving water limitations (where there is no overriding TMDL requirement) and interim TMDL requirements, but must still meet final TMDL requirements. If a permittee successfully completes an EWMP, it is exempt from all receiving water limitations and TMDL requirements, including the final deadlines. The “deemed compliance” begins as soon as a permittee “[p]rovides timely notice of its intent to develop a WMP or EWMP.” This declaration of intent triggers a schedule requiring the permittee to keep up with implementation requirements and deadlines. But this safe harbor is not guaranteed to last. “If a [p]ermittee fails to meet any requirement or date for its achievement in an approved [WMP] or EWMP,” the permittee shall be immediately subject to the receiving water limitations for the waterbody at issue.

The County Defendants have initiated a total of seven WMPs and twenty-three EWMPs, covering all the watershed areas for which they have responsibility. After declaring their intent to develop their WMPs and EWMPs, the County Defendants submitted their initial plans to the Regional Board in June 2014. The Regional Board returned “Comments and Necessary Revisions” to the WMP drafts in October 2014. The County Defendants submitted revised drafts in January 2015, and the Board returned “conditional approvals” of the drafts in April 2015, requiring the permittees to make additional revisions. The County Defendants ultimately obtained final approval for at least three WMPs.

As for the EWMPs, work plans were submitted in June 2014, and initial drafts were due in June 2015. The County Defendants obtained final approval from the Regional Board for at least one EWMP.

But even with the approved WMPs and EWMPs, the permittees must actually comply with the requirements in those plans, and the Regional Board will review the implementation efforts every two years thereafter. Implementing WMPs will require “new programs and new construction that address water quality on a watershed basis[,]” and implementing EWMPs will require “construction of large-scale regional projects....” At this point in time, the record does not reflect whether the County Defendants have taken any actual steps to implement the requirements of the WMPs or EWMPs. The County Defendants concede that compliance is voluntary, and that the WMPs and EMPs will “require substantial new resources and time for implementation.”

In January 2015, the County Defendants filed a motion to dismiss the Plaintiffs' entire lawsuit on mootness grounds, arguing that the 2012 Permit supplanted the 2001 Permit and therefore relief was not available to the Plaintiffs. The district court denied the motion with regard to the claims for civil penalties for past violations. However, the district court granted the motion with regard to injunctive relief, on the basis that the County Defendants were currently in compliance with the 2012 Permit, combined with the fact that “the Court has been provided with no evidence that Defendants will not comply to the fullest extent.” The district court noted that the County Defendants' recently-submitted revised plans in response to the Regional Board's comments on the initial draft “suggest[ ] (even if [they do] not establish) a commitment to compliance more than a likelihood of falling out of compliance.” On this basis, the district court concluded that “it is absolutely clear that Defendants cannot reasonably be expected to fall out of compliance,” and “[a]s a result, the Court finds Plaintiffs' remaining claims for injunctive relief to be moot.” On April 14, 2015, the Plaintiffs filed a timely interlocutory appeal of the district court's dismissal of injunctive relief.

ANALYSIS

I. Jurisdiction

As a threshold matter, we must determine whether jurisdiction exists over this appeal. “As a general rule, appellate jurisdiction is limited to ‘final decisions of the district courts of the United States.’ ” In re Lorillard Tobacco Co. , 370 F.3d 982, 983 (9th Cir. 2004) (quoting 28 U.S.C. § 1291 ). But pursuant to 28 U.S.C. § 1292(a)(1), we have appellate jurisdiction over “[i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions[.]” The Plaintiffs filed this interlocutory appeal of the district court's order as one “refusing ... [an] injunction[ ]” under 28 U.S.C. § 1292(a)(1). The County Defendants argue that the district court's order was not a denial of an injunction on its face, but only had the “practical effect” of denying an injunction. The County Defendants maintain that under the test in Carson v. American Brands, Inc. , 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), the Plaintiffs cannot show the irreparable harm necessary to make the district court's order immediately appealable.

In Shee Atika v. Sealaska Corp , 39 F.3d 247 (9th Cir. 1994), we held that when a district court “specifically denie[s] [a] request for an injunction,” the “appeal ... falls squarely within the language of section 1292(a)(1).” Id. at 248. In contrast, we noted that when an order only has the “ ‘practical effect’ of denying an injunction,” Carson requires “that the would-be appellant show[ ] that the order ‘might have a serious, perhaps irreparable consequence’ ” in order to invoke jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Id. at 249 (quoting Carson , 450 U.S. at 84, 101 S.Ct. 993 ). However, we clarified that Carson's “requirement of irreparable injury” does not apply to “appeals from the direct denial of a request for an injunction.” Id.

A straightforward application of Shee Atika compels the conclusion that we have jurisdiction over the Plaintiffs' interlocutory appeal. The district...