Nat'l Resources Defense Council v. SW Marine Incorp.

• Decision Date: 20 March 2001
• Docket Number: No. 00-55621,00-55621
• Citation: 242 F.3d 1163
• Parties: (9th Cir. 2001) NATURAL RESOURCES DEFENSE COUNCIL, INC.; SAN DIEGO BAYKEEPER, INC.; KENNETH J. MOSER, Plaintiffs-Appellees, v. SOUTHWEST MARINE INCORPORATED, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1163

242 F.3d 1163 (9th Cir. 2001)

NATURAL RESOURCES DEFENSE COUNCIL, INC.; SAN DIEGO BAYKEEPER, INC.; KENNETH J. MOSER, Plaintiffs-Appellees, v. SOUTHWEST MARINE INCORPORATED, Defendant-Appellant.

No. 00-55621

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 8, 2001

Filed March 20, 2001

David L. Mulliken; Dorn G. Bishop, Latham & Watkins, San Diego, California, for the defendant-appellant.

Charles S. Crandall, San Luis Obispo, California; Everett L. DeLano, II, San Marcos, California, for the plaintiffs appellees.

Appeal from the United States District Court for the Southern District of California Rudi M. Brewster, District Judge, Presiding. D.C. No.CV-96-01492-RMB

Before: Harry Pregerson, William C. Canby, Jr., and David R. Thompson, Circuit Judges.

CANBY, Circuit Judge:

This is the third appeal by Defendant Southwest Marine, Inc., arising from an action brought against it by Plaintiffs Natural Resources Defense Council, San Diego Baykeeper, and Kenneth J. Moser under the citizen suit provisions of the Clean Water Act, 33 U.S.C. S 1365(a). Southwest Marine's first two appeals, challenging the district court's judgment in favor of Plaintiffs and the imposition of injunctive relief and a civil penalty, were consolidated and earlier heard by this court, which affirmed the district court. See Natural Resources Defense Council v. Southwest Marine, Inc. , 236 F.3d 985 (9th Cir. 2000). In this appeal, Southwest Marine challenges for lack of jurisdiction and abuse of discretion the district court's modification, while the consolidated appeal was pending, of certain of the injunctive measures contained in the original judgment. We conclude that the district court had jurisdiction and discretion to make the post-appeal modifications, which slightly modified and enforced the injunction, to preserve the status quo. Accordingly, we affirm.

I.

For a comprehensive procedural history and factual background of this Clean Water Act enforcement action, we refer the reader to Judge Graber's opinion resolving the consolidated appeal of the original judgment. See Natural Resources Defense Council, 236 F.3d at 990-94. We set forth here only a general overview of the litigation and the background necessary to an understanding of this subsequent, limited appeal of the district court's post-judgment modifications to the injunction.

Southwest Marine repairs and maintains marine vessels at its shipyard on San Diego Bay. Work is conducted at its five piers and two floating dry docks. Shipyards like Southwest Marine's generate pollutants, including paint chips, abrasive grit, and "antifouling paints" that prevent growth of aquatic organisms on ships and are toxic to aquatic life. These pollutants are discharged into adjacent waters primarily through leaks, spills, and storm water runoff. Plaintiffs sued Southwest Marine in 1996 under the Clean Water Act, alleging that Southwest Marine had not properly developed nor implemented pollution prevention plans to control its discharges into San Diego Bay as required by its various government permits.

After a trial, in a judgment dated September 7, 1999, the district court found against Southwest Marine and imposed an injunction and a civil penalty. The injunction required that Southwest Marine, inter alia, (1) test the water column around each vessel being blasted or painted by taking water samples "at the surface and at each 20-foot interval between the water surface and the bottom of the Bay," and (2) capture all pier storm water runoff "in a reasonably expeditious manner." The district court simultaneously issued a limited stay. That portion of the limited stay relevant here stayed enforcement of (1) the water column testing requirement, pending further argument and briefing on whether the district court should substitute testing of the surface "microlayer" for testing "at the surface," and (2) the pier storm water capture requirement, pending further argument and evidence on possible engineering alternatives.

The district court eventually received additional briefing and held a hearing on the injunctive measures that had been temporarily stayed, but not until after Southwest Marine had appealed the original judgment, including the injunction. After the hearing, in an order dated March 7, 2000, the district court modified the injunction and lifted the stay. Among the modifications made, the district court (1) substituted testing of the surface "microlayer" for testing "at the surface," and (2) substituted an 18-month deadline (running from the March 7, 2000 order) for the requirement of "reasonably expeditious" construction of a facility to capture pier storm water runoff. Southwest Marine then brought the present appeal, challenging the district court's jurisdiction and discretion to make these two particular modifications.

While this appeal was pending, the earlier consolidated appeal was decided and an opinion issued affirming the district court's original judgment against Southwest Marine including the injunction and the civil penalty. See Natural Resources Defense Council, 236 F.3d at 990. That opinion purported to affirm the injunction "in its entirety," the court having been made well aware by the parties of the district court's post-judgment modifications to the injunction. See id. at 1001. The issue of the district court's jurisdiction to modify the injunction, however, was neither argued nor resolved in the consolidated appeal, and thus remains to be decided here.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. S 1291. The district court's post-judgment order modifying the injunction and lifting the stay is final and appealable, because it disposed completely of the issues raised in the post-judgment proceedings. See United States v. One 1986 Ford Pickup, 56 F.3d 1181, 1184-85 (9th Cir. 1995) (per curiam); United States v. Washington, 761 F.2d 1404, 1406-07 (9th Cir. 1985).

III.

This court reviews de novo the district court's exercise of subject matter jurisdiction. Burlington N. Sante Fe Ry. Co. v. International Bhd. of Teamsters Local 174, 203 F.3d 703, 707 (9th Cir. 2000) (en banc). We conclude that the district court possessed jurisdiction to modify the injunction while the consolidated appeal was pending, because the changes preserved the status quo and did not materially alter the status of the case on appeal.

Once a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam); McClatchy Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir. 1982). This rule is judge-made; its purpose is to promote judicial economy and avoid the confusion that would ensue from having the same issues before two courts simultaneously. Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956 (9th Cir. 1983); 20 James Wm. Moore, Moore's Federal Practice, S 303.32[1] (3d ed. 2000). The principle of exclusive appellate jurisdiction is not, however, absolute. Masalosalo, 718 F.2d at 956; 20 Moore's S 303.32[2][b]. The district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo. Newton v. Consolidated Gas Co., 258 U.S. 165, 177 (1922); Hoffman v. Beer Drivers & Salesmen's Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir. 1976); United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th Cir. 1951).

This exception to the jurisdictional transfer principle has been codified in Rule 62(c) of the Federal Rules of Civil Procedure, which allows a district court to "suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party." This Rule grants the district court no broader power than it has always inherently possessed to preserve the status quo during the pendency of an appeal; it "does not restore jurisdiction to the district court to adjudicate anew the merits of the case." McClatchy Newspapers, 686 F.2d at 734. Thus, any action taken pursuant to Rule 62(c) "may not materially alter the status of the case on appeal." Allan Ides, The Authority of a Federal District Court to Proceed After a Notice of Appeal Has Been Filed, 143 F.R.D. 307, 322 (1992).

In this case, both of the district court's challenged modifications to the injunction preserved the status quo. The status quo as of the filing of Southwest Marine's consolidated appeal required Southwest Marine to conduct water column testing, including testing "at the surface," and to take steps to capture storm water runoff from piers "in a reasonably expeditious manner." The purpose of the water column testing is to determine whether blasting or painting operations conducted by Southwest Marine on each vessel in dry dock or at pier side is contributing to pollution levels in San Diego Bay. The purpose of the storm water capture requirement is to prevent Southwest Marine from discharging storm water that degrades the marine habitat of its offshore leasehold, which the district court found to be "devoid of life. " The district court's post-judgment modifications to the injunction were minor adjustments that effectuated the underlying purposes of the original requirements.

The district court noted at the post-judgment hearing that the phrase "at the surface" was vague and did not ensure that Southwest Marine's water column testing would accomplish the purpose behind the requirement--finding the source of the degraded condition around the piers. Southwest Marine said at the post-judgment hearing that it had been conducting water column testing, but could not tell the district court precisely how much of the surface layer it was capturing in its samples--e.g., whether it was scooping down below the surface as far as several inches to take its surface...