Amigos Bravos v. E.P.A., 02-2030.

• Decision Date: 02 April 2003
• Docket Number: No. 02-2030.,02-2030.
• Parties: AMIGOS BRAVOS, a nonprofit corporation, and New Mexico Citizens for Clean Air and Water, a nonprofit corporation, Plaintiffs-Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, United States; Carol Browner, Administrator of the Environmental Protection Agency; and Greg Cook, EPA Regional Administrator for Region VI, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

324 F.3d 1166

AMIGOS BRAVOS, a nonprofit corporation, and New Mexico Citizens for Clean Air and Water, a nonprofit corporation, Plaintiffs-Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, United States; Carol Browner, Administrator of the Environmental Protection Agency; and Greg Cook, EPA Regional Administrator for Region VI, Defendants-Appellees.

No. 02-2030.

United States Court of Appeals, Tenth Circuit.

April 2, 2003.

COPYRIGHT MATERIAL OMITTED

Matthew K. Bishop, Taos, NM, for Plaintiffs-Appellants.

Kathryn E. Kovacs, U.S. Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, DC (Thomas L. Sansonetti, Assistant Attorney General; David C. Shilton and Mary F. Edgar, U.S. Department of Justice, Environment & Natural Resources Division, Appellate Section, Richard T. Witt, U.S. Environmental Protection Agency, Office of General Counsel, Washington, DC, and Renea Ryland, U.S. Environmental Protection Agency, Office of Regional Counsel, Dallas, TX, of counsel, with her on the brief), for Defendants-Appellees.

Before BRISCOE, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

This appeal concerns the availability of an award for litigation costs (including attorney fees) under § 505(d) of the Clean Water Act (CWA), 33 U.S.C. § 1365(d), when a lawsuit has been mooted by government conduct in apparent response to the lawsuit.

Plaintiffs Amigos Bravos and New Mexico Citizens for Clean Air and Water brought suit to compel the Environmental Protection Agency (EPA) to take action against pollution by Molycorp, Inc. The suit was dismissed as moot when the EPA issued Molycorp a permit with respect to the pollution at issue. Contending that their lawsuit was what caused the EPA to act, Plaintiffs moved to recover their costs under the "catalyst theory." The catalyst theory permits a plaintiff to recover costs even when the defendant's acts render the suit moot if the plaintiff can "show: (1) that [the] lawsuit is causally linked to securing the relief obtained and (2) that the defendant's conduct in response to the lawsuit was required by law." Ctr. for Biological Diversity v. Norton, 262 F.3d 1077, 1081 (10th Cir.2001) (internal quotation marks omitted). The magistrate judge, presiding with the consent of the parties under 28 U.S.C. § 636(c)(1), denied Plaintiffs' request for costs because they had failed to establish that the EPA's actions were "required by law."

Exercising jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291, we affirm. We hold that even if the catalyst theory applies to requests for costs under § 505(d), Plaintiffs are not entitled to recover their costs because EPA's action — issuing the permit to Molycorp — was not a legally required response to Plaintiffs' lawsuit.

I. Background

This case arose out of the EPA's initial refusal to recognize pollution of the Red River arising from waste rock piles at Molycorp's molybdenum mine as a point source discharge subject to regulation under the CWA. The CWA provides that "the discharge of any pollutant by any person" is generally unlawful. 33 U.S.C. § 1311(a). "`[D]ischarge of a pollutant'" includes "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12)(A). A "point source" is "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged." § 1362(14). A point source discharge otherwise prohibited by the CWA is lawful if authorized by a National Pollutant Discharge Elimination System (NPDES) permit issued by the EPA. See §§ 1311(a), 1342.

In 1977 Molycorp obtained an NPDES permit for its mine operations. When it applied for renewal in 1992, some members of the public complained that the mine's waste rock piles were contaminating ground water that was then seeping into the Red River. They contended that the discharges from the piles should be considered point sources subject to regulation under the CWA. The EPA disagreed and issued Molycorp an NPDES permit that did not address the discharge of pollutants from the waste rock piles.

Three years later Plaintiffs sued Molycorp under 33 U.S.C. § 1365(a)(1), alleging that Molycorp was in violation of the CWA because discharges from the waste rock piles were point source discharges for which no NPDES permit had been obtained. The district court characterized the suit as a challenge to the Administrator's decision to reissue Molycorp's permit without regulating these discharges, a decision that could be challenged only by appealing the issuance of the permit to the court of appeals. See id. § 1369(b)(1)(F). Accordingly, it dismissed the action. We affirmed. Amigos Bravos v. Molycorp, Inc., 166 F.3d 1220 (10th Cir.1998) (unpublished).

In the meantime, the EPA Region 6 NPDES Permits Branch had requested "assistance in determining if mining activities at the ... Molycorp ... Mine ... are a source of contamination to the Red River." Aplt.App. at 36. The request was "[s]pecifically ... to determine if the[] mining activities [we]re resulting in the discharge of ... [pollutants] via seeps along the Red River...." Id. In response, the Region 6 Ground Water Center of Excellence conducted a study of the Molycorp site. EPA geologist David Abshire summarized the study's results in a February 1998 document entitled "Report on Hydrological Connection Associated With Molycorp Mining Activity, Questa, New Mexico." For purposes of this appeal, we will assume that Plaintiffs have accurately characterized the report as concluding that pollution from the waste rock piles was "traveling to seeps along the Red River via a ground water hydrological connection." Aplt. Br. at 5.

Approximately a year after the report was issued, Plaintiffs brought this action against Defendants under the CWA's citizen-suit provision, 33 U.S.C. § 1365(a)(2). That provision states that "any citizen may commence a civil action on his own behalf... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty ... which is not discretionary with the Administrator." Id.

Plaintiffs' complaint contained two counts. Count I alleged that the EPA was aware that Molycorp was illegally discharging pollutants and therefore had a nondiscretionary duty under § 309(a)(3) of the CWA, 33 U.S.C. § 1319(a)(3), to take one of two enforcement actions: either issue a compliance order or file a civil action against Molycorp. Plaintiffs asked the court to declare that the EPA had failed to fulfill this duty under § 309(a)(3), and to order the EPA to take one of the two enumerated enforcement actions against Molycorp. Count II alleged that under §§ 301 and 402 of the CWA, the EPA had a nondiscretionary duty to either prohibit Molycorp's illegal discharges or issue a permit for them. Plaintiffs asked the court to declare that the EPA had violated this duty and to order the EPA to issue a permit or prohibit Molycorp's discharges. The district court dismissed the case, ruling that in light of Plaintiffs' earlier action against Molycorp itself, Plaintiffs' action against the EPA and its administrators was barred by the doctrine of collateral estoppel.

We reversed and remanded because the elements of collateral estoppel had not been established. See Amigos Bravos v. E.P.A., 236 F.3d 621 (10th Cir.2001). While rehearing before this court was pending, the EPA issued Molycorp a permit for the discharges referred to in Plaintiffs' complaint, on condition that within two years Molycorp would install a specified "seepage interception and management system" for the purpose of preventing all but trace amounts of pollutants from being discharged into the Red River from the waste rock piles. Permit at Pt. I, 17 and Pt. II, 1. The permit also provided that Molycorp would be subject to monitoring and reporting requirements. All parties agreed that issuance of the permit mooted Plaintiffs' case. We therefore vacated the order of reversal, withdrew our opinion, and remanded to the district court with instructions to vacate its earlier judgment, opinion, and order. See Amigos Bravos v. E.P.A., 6 Fed. Appx. 719 (10th Cir. 2001).

In the remand order, however, we said that the district court had not been divested of jurisdiction to decide whether Plaintiffs were entitled to recover litigation costs under § 505(d) of the CWA, 33 U.S.C. § 1365(d). That section allows the court to "award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d). On remand Plaintiffs contended that they were entitled to an award of litigation costs under the catalyst theory because Defendants had acted in response to their lawsuit. But the magistrate judge denied Plaintiffs' motion for costs because "Defendants' action was not required by law." Amigos Bravos v. E.P.A., No. 99-CV-00327, slip op. at 8 (D.N.M.Jan.16,2002).

On appeal Plaintiffs challenge the magistrate judge's decision on two grounds. First, they argue that Defendants' actions were mandated by law, and not discretionary. Second, they contend that the judge incorrectly applied the catalyst test because to meet the "required by law" element, a plaintiff need not demonstrate that the defendant had a nondiscretionary duty. In Plaintiffs' view, the "element is satisfied if defendants' action is more than a `wholly gratuitous response to an action that in itself was frivolous or groundless.'" Aplt. Br. at 26 (quoting J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1475 (10th Cir.1985)).

Defendants respond that the district court correctly denied Plaintiffs' request for costs because Plaintiffs failed to establish either the causation element or the required-by-law element of the catalyst test. Alternatively, they claim that after the Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health...