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.
2
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
12
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.
17
No petition for rehearing will be entertained and the mandate shall issue
forthwith. See Fed. R. App. P. 2.
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