Summary
The Ninth Circuit withdrew its prior opinion, denied the petition for rehearing en banc as moot without prejudice, and issued a replacement opinion. The court vacated the district court’s judgment in favor of Naples Restaurant Group and John Morris and remanded with instructions to dismiss the Clean Water Act citizen suit as moot because Naples obtained and maintained an NPDES permit, making recurrence of the alleged unpermitted discharges not reasonably expected. The court also held that the requests for declaratory and injunctive relief, civil penalties, and attorneys’ fees did not keep the case alive.
Topics
Practice areas
Questions Presented
- Whether Naples's acquisition and maintenance of a general NPDES permit made CERF's requests for declaratory and injunctive relief moot.
- Whether CERF's request for Clean Water Act civil penalties remained justiciable after it became absolutely clear that Naples's alleged unpermitted discharges were not reasonably likely to recur.
- Whether CERF's request for attorney's fees independently preserved an Article III case or controversy.
Holdings
- CERF's requests for declaratory and injunctive relief were moot because Naples obtained a general NPDES permit authorizing the challenged discharges, and the alleged unpermitted conduct was not reasonably expected to recur.
- CERF's claim for civil penalties was moot because, under the Clean Water Act and Laidlaw, civil penalties lose their deterrent and redress-related effect when it is absolutely clear that the alleged violation cannot reasonably be expected to recur.
- CERF's request for attorney's fees could not preserve an Article III case or controversy after the underlying claims became moot.
Key quotations
“When it’s “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” a citizen suit under the Clean Water Act becomes moot.” (6)
“In sum, following Laidlaw, a claim for civil penalties is moot when the defendant shows that it’s absolutely clear that the alleged violation could not reasonably be expected to recur.” (23)
Factual background
Naples hosted an annual Fourth of July fireworks event over Alamitos Bay and, in 2022, one firework malfunctioned in a low break, causing stars and embers to fall into the Bay. CERF alleged that Naples violated the Clean Water Act by discharging pollutants without an NPDES permit and sought declaratory and injunctive relief, civil penalties, and attorney's fees. After the lawsuit and district court judgment, Naples obtained a general NPDES permit authorizing public-firework discharges and continued paying the required annual fee, including curing an administrative payment discrepancy.
Procedural history
CERF sued Naples and Morris under the Clean Water Act, alleging that fireworks discharged pollutants into Alamitos Bay without a permit. After a two-day bench trial, the district court found one low-break discharge but held that CERF failed to establish continuous and ongoing violations. The Ninth Circuit initially issued an opinion holding the case moot, withdrew that opinion after CERF raised a factual issue concerning permit-fee payment, and remanded for limited factual findings. After the district court found that Naples had continued paying the permit fee and that recurrence was not reasonably likely, the Ninth Circuit again concluded that the case was moot.
Remand instructions
Vacate the district court's judgment and remand with instructions to dismiss the case as moot. Each party shall bear its own costs on appeal.