United States Public Interest Research Group v. Atlantic Salmon of Maine, LLC

United States Court of Appeals
For the First Circuit

No. 03-1830

UNITED STATES PUBLIC INTEREST RESEARCH GROUP,
STEPHEN E. CRAWFORD, CHARLES FITZGERALD,

Plaintiffs, Appellees,
____________________

NANCY ODEN,

Plaintiff,

v.

ATLANTIC SALMON OF MAINE, LLC,

Defendant, Appellant.
___________________

No. 03-1831

UNITED STATES PUBLIC INTEREST RESEARCH GROUP,
STEPHEN E. CRAWFORD, CHARLES FITZGERALD,

Plaintiffs, Appellees,
_____________________

NANCY ODEN,

Plaintiff,

v.

STOLT SEA FARM, INC.,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]
 Before

Boudin, Chief Judge,
Torruella, Circuit Judge, and
Baldock,* Senior Circuit Judge.

Richard E. Schwartz with whom Adam D. Wilson and Crowell &
Moring LLP were on brief for appellants.
David A. Nicholas, with whom Joshua R. Kratka, Joseph J. Mann,
National Environmental Law Center and Bruce M. Merrill were on
brief for appellees.
G. Steven Rowe, Attorney General, State of Maine, and
Christopher C. Taub, Assistant Attorney General, State of Maine, on
brief for State of Maine, amicus curiae.

August 6, 2003

*
Of the Tenth Circuit, sitting by designation.
 BOUDIN, Chief Judge. This is an appeal by two companies

("the companies") engaged in operating salmon farms in Maine:

Atlantic Salmon of Maine, LLC, and Stolt Sea Farm, Inc. In a

citizen-suit civil action under the Clean Water Act, 33 U.S.C. §

1365 (2000), the district court found the companies liable for

polluting Maine waters, USPIRG v. Atl. Salmon, LLC, 215 F. Supp. 2d

239 (D. Me. 2002) ("Atlantic Salmon I"), and granted injunctive

relief, USPIRG v. Atl. Salmon, LLC, 257 F. Supp. 2d 407 (D. Me.

2003) ("Atlantic Salmon II"). The companies claim that the

district court's authority to grant injunctive relief has been

superceded by a subsequent state permit.

We recount only what is needed to frame the legal issues

before us. The two companies are engaged in sea-farming or

"aquaculture." Its key feature is that young salmon, called

"smolts," are transferred from freshwater hatcheries to sea cages

called "net pens," the net pens being submerged in ocean water.

The smolts are held in these net pens for 18 months or so while

they mature and the salmon are then harvested. The origin of this

case is the pollution that occurs in various forms incident to the

net pen operations.

Atlantic Salmon began operating salmon farms along the

Maine coast in 1988 and currently operates four farms (previously

five) in Machias Bay and two in Pleasant Bay. It also owns two

other companies that together operate seven more farms. Stolt,

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which began operating in Maine in 1987, runs three farms in

Cobscook Bay and has a subsidiary operating two more salmon farms.

Both parent companies hold aquaculture leases from the Maine

Department of Marine Resources and site permits from the Army Corps

of Engineers.

The Clean Water Act provides that, except as otherwise

authorized, "the discharge of any pollutant [into navigable waters]

by any person shall be unlawful." 33 U.S.C. §§ 1311(a), 1362(12)

(2000). One of the exceptions allows discharge where the person

holds a discharge permit from the Environmental Protection Agency

("EPA") or, if the state has been authorized by EPA to conduct its

own program, a state discharge permit. 33 U.S.C. §§ 1342(a)(1) &

(b) (2000). Where the state issues a permit, EPA retains power to

veto it, 33 U.S.C. § 1342(c)(3) (2000), subject to review in the

federal courts of appeals. 33 U.S.C. § 1369(b)(1) (2000).

The permits may be either "general," authorizing a class

of operations by anyone, or "individual," i.e., specific to one

permit holder. Tex. Oil & Gas Ass'n v. EPA, 161 F.3d 923, 929

(5th Cir. 1998); Atlantic Salmon I, 215 F. Supp. 2d at 245 n.2.

The grant or denial of a federal permit is reviewable in the

appropriate federal court of appeals, 33 U.S.C. § 1369(b)(1)

(2000), and state permits are reviewable under state law and

subject to EPA veto. However, while a permit is in effect, it

protects the holder (with exceptions not here relevant) against

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claims that the holder is violating the Clean Water Act, thus

providing a kind of safe harbor or shield. 33 U.S.C. § 1342(k)

(2000).1

The companies in this case say that in the late 1980s EPA

told them that they did not need a permit under the Clean Water

Act; but indisputably in 1990 EPA told the companies that they did

need permits. In the same year the companies began to seek permits

for one or more sites, and further applications (and entreaties for

action) followed but EPA never issued permits for any of the

companies' sites. Instead, EPA began what appears to have been a

leisurely process of consultation, ending in January 2001 with EPA

delegating to Maine the authority to issue permits.

On September 25, 2000, the United States Public Interest

Research Group and two of its members (collectively, "USPIRG"),

filed suit against the companies in district court to enjoin the

discharge of pollutants without a permit. The Clean Water Act

permits such citizen suits and invests the district courts with

authority to enjoin violations. 33 U.S.C. § 1365(a) (2000). There

ensued discovery and cross motions for summary judgment before a

magistrate judge. In February 2002, the magistrate judge

1
Atl. States Legal Found. v. Eastman Kodak, Co., 12 F.3d 353,
357 (2d Cir. 1993); see also E.I. du Pont de Nemours & Co. v.
Train, 430 U.S. 112, 138 n.28 (1977) ("The purpose of § 402(k)
seems to be to insulate permit holders from changes in various
regulations during the period of a permit and to relieve them of
having to litigate in an enforcement action the question whether
their permits are sufficiently strict.").

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recommended that summary judgment be granted against the companies.

Atlantic Salmon I, 215 F. Supp. 2d at 241-42; USPIRG v. Stolt Sea

Farm, Inc., Civ. No. 00-149-B-C, 2002 WL 240386 (D. Me. Feb. 19,

2002).

On June 17, 2002, the district judge issued a decision

adopting the recommendation, determined that the companies had

violated the Clean Water Act, and ordered a hearing on injunctive

relief and civil penalties. Atlantic Salmon I, 215 F. Supp. 2d at

241. After a lengthy evidentiary hearing in October 2002 followed

by more briefing, the district court on May 28, 2003, issued a

decision making further fact findings, rejecting various legal

defenses by the companies, imposing a statutory civil penalty of

$50,000 on each of the two companies, and ordering injunctive

relief. Atlantic Salmon II, 257 F. Supp. 2d at 416-27, 434-36.2

The two injunctive provisions of principal concern here

required specified periods of fallowing (that is, temporary idling)

of net pens after the next harvest and prohibited the future

stocking of any of the companies' net pens with non-native strains

of salmon. Atlantic Salmon II, 257 F. Supp. 2d at 435-36. The

court also ordered that each pen be stocked with only a one-year

2
In early May 2003, the district court also held Atlantic
Salmon in civil contempt for violating an interim directive issued
in January 2003 against stocking any new class of fish pending the
decision on full-scale injunctive relief. USPIRG v. Atl. Salmon,
LLC, Civ. No. 00-151-B-C, 2003 WL 21068373, at *13-*14 (D. Me. May
9, 2003).

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class of fish at any time. Id. at 435. However, the court did

allow fish currently in the pens to be harvested, both to avoid

irreparable loss and because the environmental harm would be

reparable. Id. at 435-36.

While the district court was considering this case, the

Maine Board of Environmental Protection was conducting proceedings

looking to the issuance of a general permit covering all Maine

salmon farming operations. Draft permit provisions were made known

to the district court during its deliberations. Atlantic Salmon

II, 257 F. Supp. 2d at 430 n.19. On June 19, 2003, the Maine Board

issued its general permit, which is currently being challenged in

the Maine Superior Court by USPIRG. USPIRG v. Bd. of Envtl. Prot.,

Docket No. AP-03-43. The permit is currently effective but

provides protection for individual companies only after a notice

period.

The companies have now appealed to this court to challenge

the injunction. Because of the impact on their ongoing operations,

they sought expedited briefing and oral argument, which we granted,

and a stay of the injunction pending our decision, a request that

we denied immediately after the oral argument on July 29, 2003. The

companies have primarily focused on a single claim, namely, that the

district court's injunction is beyond its "jurisdiction" insofar as

the terms of the injunction differ from those of the Maine general

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permit. Maine regulators have filed an amicus brief supporting this

position.

The companies do not challenge the district court's

ruling that they have been violating the Clean Water Act for over

a decade or its rejection of their various defenses (e.g., laches,

estoppel, de minimus effects). Yet the liability ruling is a

necessary backdrop for demarcating the district court's authority

vis-à-vis that of EPA and Maine. Congress set out in the Clean

Water Act to solve a set of practical problems, and any useful

construction of the statute must be responsive to this objective.

See, e.g., Chapman v. United States, 500 U.S. 453, 473 (1991).

In this case, the district court found that both

companies had discharged into navigable waters, in violation of the

statute, five types of pollutants: non-North American salmon that

escape from the pens; large quantities of salmon feces and urine

that exit the pens; uneaten salmon feed containing a range of

chemicals for combating infection and providing coloring; other

chemicals to fight sea lice; and copper that flakes from the net

pens themselves. Atlantic Salmon I, 215 F. Supp. 2d at 247-49;

USPIRG v. Stolt Sea Farm, Inc., Civ. No. 00-149-B-C, 2002 WL

240386, at *5-*7 (D. Me. Feb. 19, 2002), aff'd USPIRG v. Stolt Sea

Farm, Inc., Civ. No. 00-1490B0C, 2002 WL 1552165, at *1 (D. Me.

June 17, 2002).

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 That the wastes and chemicals should be classified as

pollutants of the sea floor and waters is hardly surprising; but

the district court also found that non-native strains of salmon are

pollutants under the statute and regulations. Atlantic Salmon II,

257 F. Supp. 2d at 420-22. The reason is that through a variety of

causes, some of the penned salmon tend to escape and to interbreed

with native North Atlantic salmon;3 and through competition from

the non-native salmon and the genetic effects of interbreeding, the

native strain's survival is threatened. Id. North Atlantic salmon

is currently listed as an endangered species. Id. at 420.

Just how serious and immediate this threat may be is a

matter of dispute. But the companies do not challenge the ultimate

finding that non-native species are a pollutant and can be banned.

The Maine Board's general permit also has a ban on non-native

species, although one more flexible than that adopted by the

district court. The companies do not dispute that the other

pollutants are regularly released by their operations nor do they

now claim that their past operations complied with the statute.

Instead, the companies argue that in three respects the

injunction, as applied to their future operations, is at odds with

more lenient regulation limned by the Maine Board general permit.

3
The escapes, well documented in the case of Atlantic Salmon
and less so as to Stolt, result from natural wear or injury to the
pens, accidents in delivering the fish, submergence of the open
pens tops in bad conditions, and other documented causes. Atlantic
Salmon II, 257 F. Supp. 2d at 412, 414.

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The areas of alleged conflict are the treatment of non-native

salmon, the fallowing schedule, and (potentially) the limits on

one-class year stocking--all matters described more fully below.

However, the threshold question is whether it is premature for us

to consider this so-called jurisdictional attack at all.

At the time the injunction was issued, the general permit

itself had not been issued. Indeed, after it was issued, it did

not apply to the two companies until a notice period expired.

However, the general permit became effective for at least one farm

of each company in late July 2003. Although the permit has itself

been challenged in state court by USPIRG, it would--but for the

injunction--be the main regime governing the companies' future

operations.

Yet, the general permit is an event occurring after the

issuance of the injunction, and ordinarily the proper course would

be for the appellants to seek a modification by the district court

before raising the conflict issue with us. Cf. Fed. R. App. P.

8(a)(1)(c); Daubert v. Schmidt, 498 F. Supp. 1344, 1346 (E.D. Wis.

1980). Until then, ordinarily there would be no error to be

reviewed. However, in this instance the district court anticipated

the permit, drafts of which were known to it, and expressly

addressed the then-prospective question of conflict between the

injunction and the general permit.

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 On the two main issues--fallowing and non-native species-

-the district court's decision adopting the injunction makes clear

that the obligations imposed by the injunction are intended to

apply notwithstanding any less stringent regulation of the same

topics that might be imposed by the state permit. Atlantic Salmon

II, 257 F. Supp. 2d at 435-36. In short, the district court in

issuing the injunction considered and rejected the companies'

present claim that the injunction should be qualified by the

permit. The district court reaffirmed this position when, on June

25, 2003, it denied the companies' motion for a stay of the

injunction pending this appeal. USPIRG v. Atl. Salmon, LLC, Civ.

No. 00-151-B-C (D. Me. July 25, 2003).

This brings us to the merits of the so-called

jurisdictional objection that the companies assert. The term

"jurisdiction" has several reasonably distinct usages in relation

to court authority (e.g., subject matter jurisdiction, personal

jurisdiction), although it is sometimes used simply as an epithet

meaning little more than that an issue is fundamental or important.

The more specific usages entail specific consequences: here, the

companies urge that their objection is based on subject matter

jurisdiction and therefore (among other consequences) requires de

novo review of everything but raw factual findings. Francis v.

Goodman, 81 F.3d 5, 7 (1st Cir. 1996).

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 The companies' characterization of their objection is

doubtful. The Clean Water Act expressly grants the district court

authority--that is, subject matter jurisdiction--to enforce the

statute against violators and to provide equitable relief, and the

companies do not contest that they violated the statute. Their

main argument is essentially a substantive claim, based on language

in the statute, that in granting relief the district court must

refrain from ordering conduct that an effective permit would allow.

Still, this is an issue of law even if non-jurisdictional so in any

event we review the issue de novo.

The companies' statutory argument is straightforward.

Although the statute authorizes the court to enforce the Clean

Water Act against violators, it also provides--in the so-called

shield provision--that compliance with an effective permit is

compliance with the statute. 33 U.S.C. § 1342(k) (2000); Atl.

States Legal Found. v. Eastman Kodak, Co., 12 F.3d 353, 357 (2d

Cir. 1993). Thus, say the companies, the injunction must give way

to the permit wherever they "conflict"--a concept they construe

generously. Otherwise, the district court would be overriding the

substantive protection granted by the shield provision.

The supposed conflicts between court and agency authority

in this case are several. The sharpest contrast between what is

required by the injunction and by the permit concerns the stocking

of non-native species. Up to now, the companies have included in

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their pens non-native species of salmon which are apparently bred

for economically desirable characteristics. Atlantic Salmon II,

257 F. Supp. 2d at 420-22. Such non-native salmon were in the pens

when the injunction issued. The district court did not require

removal of those salmon already in the pens but did ban outright

any future introduction of non-native species. Id. at 435-36.

The Maine general permit, by contrast, says that non-

native salmon can be re-stocked until July 31, 2004; thereafter the

stocking must be of native salmon unless the permit holder proves

that native stock is not available in sufficient quantities to

match the farm's prior stocking level based on historical data.

Maine Permit 24. The injunction thus provides a flat ban for

future stocking effective immediately, preventing the companies

from transferring smolts due to be placed into the pens this summer

(July-August 2003); the permit by contrast would permit this

stocking.

The second supposed conflict is slightly less direct.

The district court ordered that the companies' pens once emptied

remain fallow for fixed periods: 24 months for most, 36 months for

one badly degraded site, and 6 months for the least afflicted site.

Atlantic Salmon II, 257 F. Supp. 2d at 435. The Maine permit

requires fallowing only "for a sufficient time to avoid harboring

or spread of diseases from one class year to the next," allowing

retention of carryover stock for reproduction purposes of up to 10

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percent of the prior fish in the last year class, unless otherwise

directed. Maine Permit 30.

Lastly both the injunction and the Maine permit seek to

reduce the risk of pathogens inside the pens, which can also infect

fish outside the pens, by requiring that operators stock individual

pens with only a single-year class of salmon at any one time. Thus

a net pen stocking salmon of the 2003 year class would have to be

emptied before 2004 salmon were introduced. Atlantic Salmon II,

257 F. Supp. 2d at 435; Maine Permit 30. The companies see a

potential conflict because the district court ban would apply--

unless modified--even if the Maine Board were in the future to

relax this restriction.4

It is evident that the conflict in all three instances is

of a specific kind, namely, that the district court's restriction

is more demanding than the state permit. Hypothetically, the

vaguely phrased state fallowing restriction might turn out to be

more stringent in a specific case; but this would probably be rare.

In all events, the injunction in this case would be unlikely to

impair a stricter permit because the injunction explicitly requires

compliance with federal and state requirements as well as the more

4
As to this provision, there is arguably a ripeness objection
to litigating the matter now, Abbott Labs. v. Gardner, 387 U.S. 136
(1967), but it turns out not to matter in this case. The other two
conflicts are live enough to justify consideration of the legal
issues addressed in this decision and no issue peculiar to the
single-year class stocking is presented in the briefs.

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specific requirements of the injunction. Atlantic Salmon II, 257

F. Supp. 2d at 435.

Accordingly, our concern here is with an injunction that

requires more of the companies than an agency permit sanctioned by

the federal statute. And, if the companies had never violated the

statute and now held a valid state permit, the shield provision in

the statute would protect the companies as to future operations, 33

U.S.C. § 1342(k) (2000). In such a case we would agree that the

district court could not substitute its view as to what the Clean

Water Act required for that of the agency.

Here, however, the companies have violated the statute;

and, despite the companies' argument to the contrary, nothing in

the shield provision's language directly addresses the question

whether and when in such a situation the district court's authority

gives way to the agency's. This is hardly unique: overlapping

grants of authority are the common stuff of statutes and the fare

of judicial decisions. 2 Pierce, Administrative Law Treatise § 14-

1 (4th ed. 2002). Here Congress may never have thought about the

precise issue of how the shield provision should affect a district

court order issued before a permit and designed to remedy pre-

permit violations. Certainly nothing definitive is cited to us.

Sensibly reconciling court and agency power is not very

difficult. In our view, the fact that violations have occurred in

the past does not generally strip the violator of the shield's

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protection as to future operations; but so long as a district court

does not reduce the environmental protection provided by the

permit, the court may grant additional injunctive relief governing

the post-permit operations of the companies insofar as the court is

remedying harm caused by their past violations. This is a loose

formulation, but it is sufficient for the present case.

This premise gives meaning to the statute's grant of

enforcement authority to the court without undercutting the ability

of the agency to regulate generally through the permitting process.

Conventionally, a court's equitable power to enforce a statute

includes the power to provide remedies for past violations--an area

in which the courts have settled authority and competence,

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), and "the

comprehensiveness of this equitable jurisdiction is not to be

denied or limited in the absence of a clear and valid legislative

command." Id. at 313 (quoting Porter v. Warner Holding Co., 328

U.S. 395, 398 (1946)); accord United States v. Mass. Water Res.

Auth., 256 F.3d 36, 48 (1st Cir. 2001).

The language of the enforcement provision is generous: it

says that the district court has authority "to enforce [] an

effluent standard or limitation," 33 U.S.C. § 1365(a), a phrase

that encompasses the pollution ban in this case. Atlantic Salmon

I, 215 F. Supp. 2d at 245-46, 256-57. Nothing in this language

precludes, as part of this enforcement authority, measures

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remediating the harm caused by an existing violation, nor have we

been cited to any legislative history or circuit precedent imposing

such a limitation. Cf. United States v. Alcoa, 98 F. Supp. 2d 1031

(N.D. Ind. 2000).

This view does not disregard the shield provision which

still fully protects non-violators and also protects violators

except so far as more may be required of them than of others until

they have repaired the damage they have done. True, for this

limited purpose, the agency's judgment that less is necessary will

not control; but it is hardly inevitable that the agency's general

permit calculus will focus on the special remediation that may be

required by a violator's individual past transgressions. In any

case the statute gives the district court authority to make this

judgment so far as it is remedial.

Of course, if the district court thought that the

agency's general permit requirements were themselves adequate to

remedy past violations, it might defer to the agency's solution.

But, so far as authority goes, the remedying of past violations, so

long as it does not reduce protection ordered by the agency, is a

matter of district court judgment reviewed for abuse of discretion.

United States v. Deaton, 332 F.3d 698, 714 (4th Cir. 2003). That

does not mean that a district court's judgment is untrammeled but

only that it is not ousted by the later grant of a permit.

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 There is not much direct precedent but the closest case

in point comports with our own reading.5 In National Resources

Defense Council v. Southwest Marine, Inc., 236 F.3d 985 (9th Cir.

2000), the district court was concerned with a company that had a

permit but had been violating its terms--not a situation identical

to our case but somewhat analogous. On appeal, the question was

whether the district court was confined to merely ordering that the

permit be observed or whether it could impose additional

obligations to remedy the violation. The court rejected the more

restrictive view, saying (id. at 1000 (quoting Alaska Ctr. for

Env't v. Browner, 20 F.3d 981, 986 (9th Cir. 1994))):

According to Defendant, a court may do little
more than tell the violator to comply with the
applicable [state plan] requirements. . . .
We do not agree that a district court's
equitable authority is so cramped. The
authority to "enforce" an existing requirement
is more than the authority to declare that the
requirement exists and repeat that it must be
followed. So long as the district court's
equitable measures are reasonably calculated
to "remedy an established wrong," they are not
an abuse of discretion.

The companies say that in Southwest Marine there was less

or no "conflict" between the plan and the injunctive relief. But

the Ninth Circuit's broad proposition--that the court may go where

5
There are also some consonant cases involving different
sections of the Clean Water Act that are in accord with our
approach. See, e.g., Deaton, 332 F.3d at 713-14 (affirming remedial
injunction for violation of the statute, even though the remedial
order required defendants to do more than what would be required to
comply with the statute had they never violated the Act).

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the agency's plan did not in order to remedy a past violation--is

what is relevant. As we have seen, the "conflict" in this case is

not a dangerous one. It is confined to injunctive measures that do

or may go beyond state protections for the purpose of remedying

past violations and vindicating the statutory prohibition on non-

permitted pollution.

Whether this last proposition governs the present case is

debated by the companies, and this is not surprising. The district

court's injunction, after all, was framed before the general permit

became effective. Thus, the district court was not at the time

necessarily confined to remedying past violations (as opposed to

preventing new ones based on its own view of the Clean Water Act).

Nevertheless, as we will see, the district court's remedial aim is

sufficiently clear as to the three contested provisions that a

remand merely to make the court spell out this remedial purpose

even more clearly would be a waste of time.

The district court's decision as to all three of the

contested requirements had a remedial purpose. This is borne out

by statements of the district court, Atlantic Salmon II, 257 F.

Supp. 2d at 414, 419-21, 419 n.3, 420 n.5, 428-30, and by ample, if

originally disputed, evidence as to the ongoing harm to the ocean

and the native fish population caused by past violations. The

varying periods set for fallowing further evidence a purpose to

remedy past violations and not just to set general standards for

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the future based on a different view of how all companies should

operate.

In what is really a legal argument rather than one

concerned with actual intent, the companies say that the purpose

cannot be remedial because the injunction--like a permit--regulates

future conduct. This is a classic non sequitur. Injunctive

remedies for past harm commonly dictate future conduct so as to

mitigate past harm. Lovell v. Brennan, 728 F.2d 560, 562-63 (1st

Cir. 1984). To say that the injunction looks to the future does

not alter the fact that it is rooted in past violations, nor

prevent its aims or its effects from being remedial.

Conceivably, the companies could have challenged the

substantive findings linking the admitted past violations to the

remedial provisions of the injunction. They do so only in one

respect, namely, by arguing at the very end of their main brief

that escaping non-native salmon do not degrade the native species

and so the remedial provision is without support even if it is

otherwise within the district court's authority. They point to

gaps in the testimony of USPIRG's expert, along with testimony by

their own expert at the remedy hearing that non-native salmon do

not cause genetic damage to native salmon.

This is a permissible attack but hopeless on the facts.

The companies' expert may or may not take a minority view among

experts, but in any event USPIRG presented an expert who took the

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opposite view and specifically refuted the companies' expert. The

district court credited USPIRG's expert and was satisfied "beyond

any reasonable doubt that use of [non-native salmon] stocks

imperils the survival of wild salmon." Atlantic Salmon II, 257 F.

Supp. 2d at 428 n.16. This conclusion was neither clearly

erroneous nor irrational. That the Maine Board's own general

permit severely limits non-native stocking further undermines the

position urged by the companies.

In their reply brief, the companies now offer a further

quite different legal argument against treating the injunction as

a remedial measure. They say that, whether so intended or

supported, any remedial injunction is barred by statutory language

that precludes citizen suits where there is no current violation

but only a past violation that has ceased. Specifically, the

citizen suit provision says: "[A]ny citizen may commence a civil

action on his own behalf . . . against any person . . . who is

alleged to be in violation of . . . an effluent standard or

limitation. . . . The district courts shall have jurisdiction .

. . to enforce such an effluent standard or limitation. . . ." 33

U.S.C. § 1365(a) (2000) (emphasis added).

This argument may be forfeit because not presented in the

opening brief, Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354

(1st Cir. 1992), but it is useful to lay it to rest. The statute's

use of the present tense does limit the district court's

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authority; only citizen suits alleging that defendants are in

violation of the Clean Water Act at the time suit is brought are

cognizeable. Gwaltney v. Chesapeake Bay Found., 484 U.S. 49, 64-67

(1987). Accordingly, if the suit alleges a past violation but no

present violation, it is subject to dismissal, at least assuming a

timely objection (whether the requirement is jurisdictional or can

be waived need not be decided here). Id. at 57-64.

But once a citizen suit is brought and establishes a

present violation, there is nothing in the statute or in Gwaltney

that prevents a court from ordering equitable relief to remedy the

harm done in the past. See Romero-Barcelo, 456 U.S. at 313, 318,

& related discussion above. Nor would it make policy sense to

allow such a suit or remedy, if legitimate when brought, to be

defeated by having the offender cease the violation as soon as the

suit is filed while leaving the past harm unremedied. Gwaltney,

484 U.S. at 69 (Scalia, J., concurring).

We turn, finally, to two arguments that the companies

have not made on this appeal. Notably, in the district court, the

companies invoked the doctrine of primary jurisdiction. They were

unsuccessful, Atlantic Salmon II, 257 F. Supp. 2d at 426, and have

not pursued the issue in this court. Nevertheless, the interests

served by the doctrine are such that a court may choose to invoke

it on its own even if neither side raises the concern. So

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something ought to be said about an issue implicit in the

controversy and one that could easily arise in future cases.

In a nutshell, the primary jurisdiction doctrine permits

and occasionally requires a court to stay its hand while allowing

an agency to address issues within its ken. Ass'n of Int'l Auto.

Mfrs. v. Comm'r, Mass. Dep't of Envt'l Prot., 196 F.3d 302, 304

(1st Cir. 1999); 2 Pierce, supra, § 14-1. Although sometimes

treated as a mechanical and rigid requirement, the modern view is

more flexible, United States v. W. Pac. R.R. Co., 352 U.S. 59, 64

(1956) ("No fixed formula exists . . . ."), and the decision

usually depends on whether a reference will advance the sound

disposition of the court case and whether failure to refer will

impair the statutory scheme or undermine the agency to which the

reference might be made. Pejepscot Indus. Park, Inc. v. Maine

Cent. R.R. Co., 215 F.3d 195, 205 (1st Cir. 2000) (listing relevant

factors).

In this instance, the underlying scientific issues are

clearly technical ones--a factor that encourages a reference to an

agency--but expert testimony was employed in the court proceeding.

Weighing against a reference were inter alia the need for

reasonable dispatch--matched against a decade of delay by the

pertinent agencies--and the necessary focus upon the actions of two

particular companies. Indeed, we were advised at oral argument

that USPIRG's efforts to broaden the Maine general permit

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proceeding to include special concerns raised by the companies'

past violations were rejected.

Conversely, because the district court's injunction does

no more than impose additional constraints, it cannot undermine the

central thrust of the Maine general permit regime; and, the court

proceedings having now been completed, invoking the assistance of

the agency would be a waste of time. Accordingly, a refusal in this

case to make a primary jurisdiction reference prior to the state's

issuance of the permit was neither a mistake of law nor an abuse of

discretion. See also Student Pub. Interest Research Group v.

Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528, 1537 (D.N.J.

1984) (suggesting that primary jurisdiction should be invoked

sparingly where it would preempt a citizen suit under the Clean

Water Act).

A second issue not squarely raised by appellants also

deserves mention. The injunction is inherently time limited as to

one aspect of relief; the fallowing periods prescribed are only for

one cycle beginning after the injunction. But the prohibitions on

non-native stocking and inclusion of more than a single-year class

of salmon in a pen appear to be permanent. Yet there may be doubt

whether such specific provisions are permanently needed to remedy

past harms which, in the nature of things, are likely to be

assuaged with the passage of time. Cf. Swann v. Charlotte-

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Mecklenburg Bd. of Ed., 402 U.S. 1, 32 (1971); Quinn v. City of

Boston, 325 F.3d 18, 27 (1st Cir. 2003).

Once the past violations are remedied, the companies are

normally entitled to be regulated as to the details of their

operations on the same basis as other companies that do or might

operate in Maine. If the Maine Board's permit is defective in its

detailed prescriptions, the remedy lies with an EPA veto or review

in the state courts. Given that the companies have not raised this

objection directly, we think the sound course is leave it to them

to seek modification of the injunction if and when they can show

that their past harms have been remedied.

The judgment of the district court is affirmed without

prejudice to future requests in the district court for

modifications of the injunction. The mandate shall issue forthwith

without prejudice to petitions for rehearing or rehearing en banc.

It is so ordered.

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