Natural Resources Defense Councll, Inc. v. Southwest Marine, Inc.

No. 00-55621 (242 F.3d 1163) (9th Cir. March 20, 2001)

ELR Digest

The court holds that a district court had jurisdiction and discretion to make post-appeal modifications of an injunction issued against a shipyard for Clean Water Act violations. The original injunction required the shipyard to test the water column around vessels being blasted or painted at its piers and docks by taking water samples "at the surface" and at each 20-foot interval below the water surface, and required it to capture all pier stormwater runoff in a "reasonably expeditious" manner. The court stayed the enforcement of these two measures, and the shipyard appealed the case. While the appeal was pending, the court lifted the stay and substituted testing "at the surface" with testing of the surface of the "microlayer," and replaced the "reasonably expeditious" capture of pier stormwater runoff with an 18-month deadline. The court first holds that because the changes preserved the status quo and did not materially alter the status of the case on appeal, the court possessed jurisdiction to modify the injunction while the appeal was pending. The post-judgment modifications were minor adjustments that effectuated the underlying purpose of the original requirements. The court further holds that the district court acted within its sound discretion to make those modifications.

[Prior decisions in this litigation are published at 27 ELR 20564 and 29 ELR 20273 and 21189.]

The full text of this decision is available from ELR (9 pp., ELR Order No. L-350).

Counsel for Plaintiffs
Charles S. Crandall
Milberg, Weiss, Bershad, Hynes & Lerach
1800 One American Plaza
600 W. Broadway, San Diego CA 92101
(619) 231-1058

Counsel for Defendant
David L. Mulliken
Latham & Watkins
701 B St., Ste. 2100, San Diego CA 92101
(619) 236-1234

[31 ELR 20503]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]