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United States v. Alder Creek Water Co.

Citation: 17 ELR 21095
No. No. 85-4203, 823 F.2d 343/26 ERC 1369/(9th Cir., 07/29/1987) Challenge to district court's orders moot, civil penalties upheld

The court holds that a challenge to a district court's placement of a company into receivership for Safe Drinking Water Act (SDWA) violations is moot, and separate issuance of a contempt order by the district court and assessment of civil penalties by a magistrate for the SDWA violations did not violate the constitutional prohibition against double jeopardy. Defendants repeatedly violated a preliminary injunction ordering them to take specific steps to bring their water supply into compliance with Environmental Protection Agency regulations concerning drinking water. The district court placed the company into receivership; the company's assets were eventually sold and the district court distributed its assets in a series of interlocutory orders. The lower court also found defendants willfully liable under the SDWA and assessed civil penalties. The appellate court first holds that the president of the company does not have standing to challenge the district court's interlocutory orders, since the court previously held that this defendant did not have standing to challenge these orders. The court then holds that the company's challenges to the validity of the receivership, sale of the assets, and distribution of funds are moot. The company's failure to seek stays of the interlocutory orders has resulted in changes occurring that make it inequitable for the court to address the merits of the company's appeal, thus depriving it of the ability to redress defendant's injuries. The assets have been sold, most of the proceeds have been distributed, and the water authority that took control of the water system instituted significant changes, implementing financing plans and making long-range improvements. The court then holds that the president of the company was not placed in double jeopardy by the district court's judgment for contempt of court and the magistrate's imposition of civil penalties. The two items are not within the protection of this constitutional prohibition, and the violations were civil rather than criminal.

[Two of the district court's decisions are published at 13 ELR 20989 and 14 ELR 20430.]

Counsel for Appellant
Brian W. O'Brien
4035 NE Sandy Blvd., Portland OR 97212
(503) 288-7056

Edward J. Sullivan
Mitchell, Lang & Smith
2000 One Main Place, 101 SW Main St., Portland OR 97204
(503) 221-1011

Counsel for Appellee
Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Before Anderson and Hug, JJ.