Natural Resources Defense Council v. County of Los Angeles

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 31 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

NATURAL RESOURCES DEFENSE No. 15-55562
COUNCIL; SANTA MONICA
BAYKEEPER, D.C. No.
2:08-cv-01467-BRO-PLA
Plaintiffs-Appellants,

v. OPINION

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.

Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding

Argued and Submitted October 13, 2016
Pasadena, California

Before: HARRY PREGERSON and MILAN D. SMITH, JR., Circuit Judges, and
H. RUSSEL HOLLAND, * Senior District Judge.

Opinion by Judge Milan D. Smith, Jr.

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.

*
The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.

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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

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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

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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

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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

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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 (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

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“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). 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 court

expressly stated that it was eliminating the claims for injunctive relief:

“Defendants’ motion to dismiss is GRANTED in part and DENIED in part on the

basis that Plaintiffs’ claims for injunctive relief are moot, but the Plaintiffs’ claims

for monetary civil penalties remain active[.]” The Plaintiffs’ interlocutory appeal

therefore “falls squarely within the language of section 1292(a)(1),” and Carson’s

additional requirement of irreparable injury does not apply. Shee Atika, 39 F.3d at

248–49.

Our conclusion that the district court’s dismissal of the claims for injunctive

relief on the basis of mootness confers jurisdiction pursuant to 28 U.S.C. §

1292(a)(1) is consistent with the persuasive reasoning of a sister-circuit case,

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Holmes v. Fisher, 854 F.2d 229 (7th Cir. 1988). In Holmes, the plaintiff brought a

§ 1983 claim after being detained by police for eight days before his probable

cause and bail hearings, and sought both injunctive relief and damages. Id. at 230.

The district court dismissed the injunction case as moot, on the ground that Holmes

had since been arraigned and there was no reasonable prospect that he would again

be subject to prolonged detention. Id. The Seventh Circuit held that the order was

immediately appealable because the district court had “stripped the case of its

equitable component,” and “[t]his denies the request for an injunction, activating

the right to seek interlocutory review under 28 U.S.C. § 1292(a)(1).” Id. Because

the plaintiff had “suffered total defeat on his request for an injunction,” the

Seventh Circuit held that “§ 1292(a)(1) allows him an immediate appeal.” Id. at

231. The Holmes court specified that “a conclusive denial of all equitable relief is

appealable even though a request for damages lives on.” Id. at 230 (emphasis

added).

The district court’s order is indistinguishable from the order in Holmes. The

district court’s mootness determination conclusively denied the Plaintiffs all

chance of an injunction, directly “stripp[ing] the case of its equitable component.”

Id. Accordingly, the Plaintiffs’ interlocutory appeal falls directly under 28 U.S.C.

§ 1292(a)(1), and we therefore have jurisdiction in this appeal.

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 II. Mootness

a. Standard of Review

A district court’s mootness determination is reviewed de novo, while the

underlying factual determinations are reviewed for clear error. Rosebrock v.

Mathis, 745 F.3d 963, 970 n.8 (9th Cir. 2014).

b. Application

The Plaintiffs’ claims for injunctive relief are not moot because the County

Defendants are still subject to receiving water limitations, which are substantially

the same as the limitations in the 2001 Permit. Although the County Defendants

are significantly less likely to violate those limitations under the 2012 Permit,

because of the delay and partial exemption afforded by the safe harbor of WMPs

and EWMPs, it is not “absolutely clear” that their violations will not recur.

“In seeking to have a case dismissed as moot . . . the defendant’s burden is a

heavy one.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484

U.S. 49, 66 (1987) (citation omitted). “The defendant must demonstrate that it is

absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” Id. (emphasis and internal quotation marks omitted). The

County Defendants defend the district court’s mootness determination on two

grounds. First, they argue that the 2012 Permit superseded the 2001 Permit by

drastically changing compliance requirements. Second, they argue that the

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evidence of their current compliance with the 2012 Permit is undisputed.

1. The Permits

A new permit, in and of itself, does not moot a case for injunctive relief. See

Nat. Res. Def. Council, Inc. v. Sw. Marine, Inc., 236 F.3d 985, 992, 1002 (9th Cir.

2000) (upholding injunctive relief on the basis of three stormwater permits issued

during the pendency of the litigation where the provisions at issue remained

consistent across the permits); see also Nat. Res. Def. Council, Inc. v. Texaco Ref

& Mktg., Inc., 719 F. Supp. 281, 290 (D. Del. 1989) (“[W]here the limits contained

in a superceded permit are incorporated into or made more strict in the new permit,

there is no reason to allow a defendant to avoid enforcement of those limits.”),

vacated on other grounds, 906 F.2d 934 (3d Cir. 1990). The relevant inquiry is

whether the 2012 Permit maintains the receiving water limitations from the 2001

Permit such that an injunction could still provide effective relief. Jerron West, Inc.

v. Cal. State Bd. of Equalization, 129 F.3d 1334, 1336 (9th Cir. 1997) (holding that

in a mootness inquiry, “[t]he question is not whether the precise relief sought at the

time the application for an injunction was filed is still available . . . [but] whether

there can be any effective relief.” (quotation marks omitted)); Vill. of Gambell v.

Babbitt, 999 F.2d 403, 406 (9th Cir. 1993) (“The basic question is whether there

exists a present controversy to which effective relief can be granted.” (quotation

marks omitted)).

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 Given the purpose of the mootness inquiry, the district court was in error

when it broadly stated that if the standards of an NPDES permit are relaxed, “a

plaintiff’s claims for violations of the superceded permit do indeed become moot.”

Other than this broad language from Massachusetts Public Interest Research

Group. v. ICI Americas. Inc., 777 F. Supp. 1032, 1035 (D. Mass 1991), neither the

County Defendants nor the district court has cited authority for this proposition. It

may be that if the standards of the permit are relaxed to such an extent that

injunctive relief would no longer be effective (in other words, the activity is no

longer a violation), the case is moot. But it is not the law that any relaxation of

NPDES permit standards, no matter how de minimis, necessarily moots the case.

Viewed through this lens, both the facts and law of Massachusetts Public are

distinguishable. In that case, the defendants had continuously violated the flow

limitations of a 1976 permit, but were issued a new permit in 1990. Id. at 1034.

Under the more lenient standards of the 1990 Permit, no flow violations had been

detected for over four and a half years, and even over the entire life of the 1976

Permit, “only a handful of violations” would have violated the new permit. Id. In

short, the new standards had been relaxed to such an extent that in essence,

“conduct that was impermissible before is now permissible.” Id. at 1035.

The 2012 Permit substantially retains the baseline receiving water

limitations from the 2001 Permit. However, impermissible violations of the 2001

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Permit are now permissible under the 2012 Permit, but only if the County

Defendants qualify for the safe harbor program by “keep[ing] up with all

requirements and deadlines” for the WMPs and EWMPs. Whether or not their

actions are enjoinable violations of the 2012 Permit depends on their continuing to

voluntarily participate in (and meet the requirements of) the WMP and EWMP

process. Because compliance is conditional on the success of these programs, the

County Defendants bear the burden of demonstrating that it is “absolutely clear”

the violations will not recur, either through the use of the safe harbor of the WMPs

and EWMPs or through actual pollution reduction measures.

2. Likelihood of Future Violations

The County Defendants’ theory of mootness based on current compliance

with the 2012 Permit is best described as “voluntary cessation” of illegal activity.

“[M]ere cessation of illegal activity in response to pending litigation does not moot

a case, unless the party alleging mootness can show that the ‘allegedly wrongful

behavior could not reasonably be expected to recur.’” Rosemere Neighborhood

Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (quoting

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 189

(2000)).

Under this standard, the district court also erred in dismissing the Plaintiffs’

injunctive claims. Although it cited the appropriate legal standard from Gwaltney,

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which requires a defendant to demonstrate that it is “absolutely clear” that no

violations will recur, the district court applied a preponderance of the evidence

standard and impermissibly shifted the evidentiary burden to the Plaintiffs.

Furthermore, the district court’s factual determination that “Defendants cannot

reasonably be expected to fall out of compliance” is not based on evidence in the

record, and is therefore clearly erroneous.

First, the district court erroneously implied that the Plaintiffs bore the burden

of proof. After finding that the County Defendants were committed to compliance,

the district court stated that “the Court has been provided with no evidence that

Defendants will not comply to the fullest extent.” Such analysis “impermissibly

attempts to shift the burden to [the Plaintiffs] to defeat mootness[,]” when it is the

Defendants “that bear[] the ‘heavy burden’ in this case.” Rosemere, 581 F.3d at

1173 (quoting Laidlaw, 528 U.S. at 189). A defendant “cannot meet this burden

solely by claiming that [the Plaintiff] has not done enough to show the likelihood

of further [violations].” Id.

Second, the district court’s order did not cite any positive evidence that the

County Defendants would not violate the receiving water limitations in the future.

Instead, the district court found that “[the] Defendants are currently deemed to be

in compliance with the 2012 Permit at least based on their participation in WMP

and EWMP work plans.” But Gwaltney makes clear that the relevant consideration

14
is the likelihood of future violations, not current cessation. 484 U.S. at 66–67. As

to this point, the district court reasoned that because the “Defendants at least

revised their programs in response to the Regional Board’s comments and

revisions,” this “suggests (even if it does not establish) a commitment to

compliance more than a likelihood of falling out of compliance.” Under Gwaltney,

the County Defendants must present evidence to show that there is “no reasonable

expectation that the wrong will be repeated,” and that it is “absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur,” 484 U.S.

at 66 (emphasis and quotation marks omitted), not just “more likely than not.” In

other words, they must actually establish, not merely suggest, that they will be in

compliance into the future. This heavy burden “protects plaintiffs from defendants

who seek to evade sanction by predictable protestations of repentance and reform.”

Id. at 67 (quotation marks omitted).

The County Defendants cannot satisfy this heavy burden in light of the

potential invalidation of the 2012 Permit’s safe harbor program. The County

Defendants’ evidence of current and future compliance with the 2012 Permit

consists of their continuing compliance with their WMPs and EWMPs; in other

words, the County Defendants’ compliance with the 2012 Permit is dependent on

the safe harbor program. However, the Plaintiffs have filed a writ of mandate in

California Superior Court, alleging that the safe harbor program of the 2012 Permit

15
violates the anti-backsliding provision of the Clean Water Act. The anti-

backsliding provision of the Clean Water Act prohibits permits from being

“renewed, reissued, or modified . . . to contain effluent limitations which are less

stringent than the comparable effluent limitations in the previous permit.” 33

U.S.C. § 1342(o)(1)1; see also 40 C.F.R. § 122.44(l) (EPA regulation imposing

identical restrictions). The Plaintiffs allege that the 2012 Permit is “less stringent”

than the 2001 Permit because the safe harbor provision “excuse[s] violations . . . as

long as permitees are developing or implementing WMPs or EWMPs,” whereas

the 2001 Permit “imposed an absolute prohibition on discharges. . . .” In contrast,

the County Defendants argue that the 2012 Permit’s terms are no less stringent, as

the effluent limitations remain the same. As such, the safe harbor provision merely

provides a system whereby the County Defendants can gradually move toward

compliance. Whatever the merits of this dispute, the Plaintiffs’ legal challenge to

the safe harbor provision creates a significant possibility that County Defendants

will be forced to demonstrate strict compliance with the baseline receiving water

limitations.

But even if the safe harbor program is upheld, the County Defendants still

must actually implement the complicated and expensive watershed management

1
The Clean Water Act provides for three exceptions to its general prohibition
on backsliding. 33 U.S.C. § 1342(o)(2). However, the County Defendants
conceded at oral argument that none apply to the 2012 Permit.

16
plans. The Plaintiffs have cited to evidence in the record suggesting that the

success of the WMPs and EWMPs is not likely. For example, the Lower Los

Angeles River Watershed Group, of which the District is a part, stated in a

publication that “[f]inancing the implementation of the Lower LAR WMP is the

greatest challenge confronting the Watershed Group. In the absence of stormwater

utility fees, the Participating Agencies [including the District] have no dedicated

revenue stream to pay for implementation of the WMP.” Until the County

Defendants have finished the process of financing and implementing the WMPs,

there is a significant likelihood that they will be subject to and violate the baseline

receiving water limitations. Initiation of a reform process cannot, standing alone,

make it “absolutely clear” that the reformation will last.

Even with the substantial changes of the WMPs and EWMPs in the 2012

Permit, the baseline receiving water limitations may still apply, and thus it is still

possible for the district court to award effective injunctive relief to the Plaintiffs.

The County Defendants have not met their burden of making it “absolutely clear”

that no violation will recur in the future. Accordingly, the Plaintiffs’ injunctive

claims are not moot.

CONCLUSION

For the foregoing reasons, the district court’s dismissal of the Plaintiffs’

claims for injunctive relief as moot is REVERSED.

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 No petition for rehearing will be entertained and the mandate shall issue

forthwith. See Fed. R. App. P. 2.

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