HALLSTROM v. TILLAMOOK COUNTY

Transcript: 

Argument of Kim T. Buckley

Chief Justice Rehnquist: We'll hear argument next in Number 88-42, Olaf A. Hallstrom versus Tillamook County.

Mr. Buckley, you may proceed whenever you are ready.

Mr. Buckley: Thank you, Mr. Chief Justice, and may it please the Court:

This case presents the question of interpreting the citizen suit provisions of the Resource Conservation and Recovery Act.

These citizen suit provisions are virtually identical in many other citizen suit provisions in other federal environmental laws.

This case presents the question whether dismissal and refiling is required if there has been a failure to notify the government of the violation.

In this particular case, through inadvertence on my part, I notified Tillamook County that it was in violation of the Resource Conservation and Recovery Act in the operation of its landfill operation.

At the time that I notified Tillamook County, I intended also to notify the government.

The statute requires that the EPA and the Oregon Department of Environmental Quality also be notified of the violation.

And I was aware of that statute and aware of the regulation, but somewhere between the execution... the intention and the execution something went wrong.

Nevertheless, a year later, the citizen suit was filed and approximately, say nine months later, Tillamook County moved for summary judgment, asking the Court to dismiss the case on the ground that there was lack of subject matter jurisdiction because notice to the government had not been given.

Immediately after having received the motion for summary judgment I sent notice to the EPA and DEQ, upon learning, to my surprise, that I had not done so; in fact, I thought I had done so and was very surprised to learn that I hadn't.

The case came on for hearing approximately 50 days after the motion was filed, and about 50 days after I sent a notice to the EPA and the Oregon Department of Environmental Quality.

And, at that time, the District Court said that he thought it would be a waste of judicial resources, given the fact that the EPA and the Oregon Department of Environmental Quality had not indicated either any objection or that they intended to do anything.

Unknown Speaker: Mr. Buckley, you say the case came on for hearing; this was in the District Court in Portland--

Mr. Buckley: Yes, yes.

Unknown Speaker: --What sort of a hearing?

Mr. Buckley: Motion for summary judgment--

Unknown Speaker: A hearing on the motion for summary judgment filed by your opponents?

Mr. Buckley: --Yes.

And that hearing took place approximately 50 days after the motion for summary judgment was filed and after I gave the formal notice required by the statute, and the judge said that it would be a waste of judicial resources to require dismissal at this time.

About two years later, and about two years after--

Unknown Speaker: May I ask, though, at that time, was one of the grounds of the motion the failure to comply with the notice requirement?

Mr. Buckley: --Yes, that was the whole ground of the motion.

Unknown Speaker: The whole ground, yeah.

Mr. Buckley: After the district judge essentially said to me that I had done everything that was required because the defect had been cured, the case went to trial about two years later and an injunction was entered against Tillamook County.

A finding was made that it was in violation of the Resource Conservation and Recovery Act standards.

So we are here today under this, what I consider to be a fairly unusual factual situation, to determine whether or not a dismissal and refiling would be necessary.

The way to determine whether or not a dismissal and refiling would be necessary is to take a look at the statute itself to determine whether or not the statute makes giving the notice a jurisdictional requirement that would require dismissal and refiling.

Now, of course, the first place... this obviously presents a question of statutory interpretation and the starting point, obviously, is the text of the statute.

The text of the statute has one sentence that refers to the jurisdiction of the District Court.

And that one sentence says that the District Court shall have jurisdiction to enforce an order brought in a citizen suit, enforce compliance.

That is the one sentence that talks about the District Court's jurisdiction.

The rest of the statute, the rest of the provision, refers to timing requirements of the notice and timing; it refers to how and who may intervene; it refers to attorney fees.

And, in the most recent amendments to the Resource Conservation and Recovery Act, there is also an additional requirement that if the citizen is going to bring an action for immediate endangerment to the health or the environment, that he must serve a copy of the complaint on the Attorney General and the administrator of the EPA.

So the question that we have here is, are these additional requirements jurisdictional requirements--

Unknown Speaker: I wonder, Mr. Buckley, if you are quite right in calling the question here, is it a jurisdictional requirement.

To me a jurisdictional requirement might mean that, if you had litigated this issue without it ever having been, litigated you case without the question ever having been raised all through the District Court, the Ninth Circuit, the judgment become final, you know, could it be set aside because the Court didn't have jurisdiction.

We are not obviously talking about something like that.

We're just talking about a precondition to the commencement of the action.

Now, whether that is "jurisdictional" or not, I don't know, but I wonder if it is quite that stark a requirement.

Mr. Buckley: --Well, I think it is, Your Honor, because the Ninth Circuit ruled that it was a jurisdictional requirement.

Unknown Speaker: I mean, we don't have to follow the interpretation of the Ninth Circuit if we are not convinced of its wisdom.

Mr. Buckley: Well, I hope that the Court does not follow the Ninth Circuit.

[Laughter]

Unknown Speaker: But I, you know, to the extent that the requirement would prevent you from proceeding with your suit and refiling, and still not be a jurisdictional one, that analysis really doesn't help you.

I mean, the analysis I have suggested I don't think helps your case.

Mr. Buckley: Well, I agree, Your Honor, that it is a requirement.

I mean, Congress indicated that giving notice to the government and to the violator was a requirement, and I agree that it is a requirement.

Unknown Speaker: So, how stringent is the requirement is really what we're talking about.

Mr. Buckley: I guess that's the point.

And it seems to me that the best way to effectuate the intent of Congress to accomplish the purpose that Congress intended is to grant or recognize that the District Courts have limited jurisdiction to fashion an order that will somehow serve both the overlying purpose of the statute, which is to protect the environment; the secondary purpose of the statute, which is to encourage citizen enforcement; and the third purpose, which, of course, is to try to trigger government action and to also trigger voluntary compliance.

Unknown Speaker: Well, the language of the statute, of course, is rather explicit.

It says that subsection (a) authorizes citizens to commit civil actions, except as provided in subsection (b) or (c).

And subsection (b) says actions prohibited... no action may be commenced under subsection (a) unless the notice is given.

Mr. Buckley: Yes, the language is very--

Unknown Speaker: I mean, that's pretty explicit.

Mr. Buckley: --Well, yes, it is.

But this Court, in a number of other cases where private attorney generals have been entrusted by Congress with the right to bring an action to enforce policies that Congress deems important, has held that similarly explicit requirements are not a basis for requiring dismissal and refiling.

Unknown Speaker: Well, of course it's possible that the legislative history here indicates that at least, in part, those provisions were intended to prevent the federal courts from having to deal with litigation until after the government agencies had an opportunity at least to act.

Mr. Buckley: Right, and the legislative history in this case dealt primarily with a situation, this particular situation, that there are going to be lots and lots and lots of violations of environmental law out there, and it can't be expected that the government is going to be able to monitor every single violation out there.

And it was thought that it would be a good idea to enlist the aid and the eyes and the ears of the citizens to uncover those violations.

And so it was thought that if there is an unknown violation out there that the government doesn't know about, then it's a good idea to allow the citizens to bring that to the attention of the government so the government can make its own investigation or prioritize.

I mean, it has to prioritize because it doesn't have the... pardon me... it doesn't have the resources to go after every single violation.

And, of course, it was thought then that if the government did not act, that the citizen could then bring a suit.

Well, in this particular case, and the reason that I focus on the facts of this case is because there are going to be unique facts presented all the time, and the reason, since there are going to be unique facts presented all the time, it's a good idea to let the District Courts have the flexibility to meet real life situations.

Unknown Speaker: Or is it a good idea to have a rule that everybody can understand?

Mr. Buckley: Well, that is true.

You know, a bright line rule always has the advantage of giving clarity and a bright line rule, but that's also--

Unknown Speaker: In this case, I take it, under this statute, one of the prohibitions on bringing this suit is if the government has itself brought a suit, correct?

Mr. Buckley: --Yes.

Unknown Speaker: And how do you know whether or not that statutory exception has been met by the government?

Mr. Buckley: You mean how do I know if the government has brought a suit or not?

Unknown Speaker: Yes.

What do you look for?

The first thing you do to see whether action, what... has been filed?

Mr. Buckley: Well, I suppose that you could do that.

Usually, I suppose--

Unknown Speaker: But isn't, doesn't, isn't the point that the statute (b)(2) says that if the administrator or state has commenced and is diligently prosecuting.

Mr. Buckley: --Um hum.

Unknown Speaker: So the statute itself makes a distinction between commencement and prosecution, and it seems to me that we should interpret the word commencement the same way in the previous paragraph.

Mr. Buckley: Well, I think that is the apparent way to interpret it, Your Honor.

I do.

Unknown Speaker: But if that is so, commencement means filing, doesn't it?

Mr. Buckley: Yes, it does.

I agree.

I don't think... I think there's room for disagreement given the legislative history, but I think that that is the best interpretation.

But also in the legislative history there was--

Unknown Speaker: But if you agree with that it seems to me that you must lose, because you commenced the action without going through the waiting period and the notice period.

Mr. Buckley: --Well, if I may answer, yes, that is true if you look only at that particular section and don't try to interpret that section in the context of the statute as a whole, and if you don't instead also look to the purpose that that provision was intended to serve.

Unknown Speaker: You have to argue that this is one of those rare instances when the Court shouldn't apply the statute as it is written.

Mr. Buckley: Yes.

Unknown Speaker: That is basically what you are saying, that we shouldn't--

Mr. Buckley: Yes, I am making that argument.

Unknown Speaker: --We don't do that very often, but you think that's what we should do here.

Mr. Buckley: I think that would effectuate the will of Congress in this particular case, when--

Unknown Speaker: And yet, it certainly would be workable as a scheme and as a statute if we did enforce it as it's written.

Mr. Buckley: --I think it would be at the cost of injustice in many cases, and I think it would also be at the cost of defeating the will of Congress on the statute as a whole.

Unknown Speaker: Well, don't you think once the rule is clear that people would understand that that is the requirement?

So how would it result in injustices thereafter?

Mr. Buckley: Well, first of all, if there are other lawyers like me out there, who realize that that is a requirement, and yet, as I said between the intention and the execution something falls through the cracks, and, at the same time the government in fact has, the government with enforcement authority has actual authority, has actual notice, and decides to do nothing, then to have the Court impose a bright line rule would have the result, in this case, of requiring a dismissal and refiling to serve no congressional purpose.

Unknown Speaker: Congress could have written it that way.

Congress could have said, you know, no action may be commenced unless the administrator has been given notice or is given notice within a reasonable period after commencement.

It could have written it a lot of different ways.

It happened to write it this way, and this way you... you're clearly wrong.

You have an appealing case, your case, because the judge told you never mind, I won't dismiss the suit, go file, don't, you'll just have to file it all over again, we'll shortcut it all.

I agree that your case is an appealing one, but you're asking us to adopt a general rule that will permit this to be done regularly.

I wish you were just arguing some kind of judicial estoppel or something, but that is not what you're arguing.

Mr. Buckley: Well, I am arguing judicial estoppel.

Unknown Speaker: Well, no, you're arguing the statute should generally, for everyone, be interpreted this way so that judges in the future can do just what this judge did here, and could say, it doesn't matter that you haven't given notice.

So long as it's here, give notice now, and we'll keep the case.

That is how I read your brief.

Mr. Buckley: Well, I'm arguing that the Court should interpret the requirement of notice to be a procedural requirement, one that the District Court can have flexibility to meet real life situations.

Unknown Speaker: Right.

So that District Courts can rewrite the statute.

Mr. Buckley: Well, no, I disagree, Your Honor.

Not to rewrite the statute.

To enforce the intent of the statute.

I mean, this Court has held--

Unknown Speaker: We are not in the business of enforcing intent.

We are in the business of enforcing statutes.

There are a lot of different ways of achieving the possible congressional intent.

It chose one way, and you acknowledged the word commenced means commenced.

Mr. Buckley: --Well, in other situations in the civil rights context, this Court has held that similar prelitigation requirements specified by Congress in similar mandatory language are, in fact, requirements where the Court can fashion a remedy.

In fact, in the Oscar Mayer case, this Court said that dismissal and refiling is not good, that a stay would be far more appropriate to allow the litigant in that case time to provide the notice to the state.

And the same thing was held in the Baldwin case; however in the Baldwin case, the Court held that the Plaintiff in that case had not satisfied the requirement because she had been told three times what she had to do.

And that's not what happened in this case.

And in Baldwin, this Court specifically said that this, that Baldwin wasn't a case where the District Court had led the plaintiff in that case--

Unknown Speaker: Well, I suspect there are cases where we've stuck by the strict wording and cases where we haven't struck by, stuck by the strict wording.

Is there any rhyme nor reason to when we do and when we don't?

Mr. Buckley: --I think that the rhyme or reason is that the Court generally tries to construe remedial statutes, and particularly statutes that are enforced by private attorney generals, to effectuate the remedial purpose of the statute.

And to require dismissal and refiling in this case would be, would serve no purpose.

I mean after all, the Department of Environmental Quality knew about the violation before the case was filed, before the notice was given, and didn't do anything.

It knew about the filing of the case even before the formal notice was given and didn't do anything.

Unknown Speaker: It had served the purpose of making that inquiry unnecessary in future cases.

If we simply held today commenced means commenced, you can look on the paper record and say, you know, was the notice given before it was commenced or not?

That is an end of the matter.

What you argue for is a rule that says, in every case we'll have to look to whether the substance of the rule, whether the real purpose to be achieved by the rule, was somehow achieved in another fashion.

If your case is an exception, I don't know how many others there are out there that the lower courts might have to wrestle with.

Mr. Buckley: But there probably are not many other exceptions.

I mean, one of the advantages of giving flexibility to the District Court, is to rule in the exceptional case, as this one is, that... that to require dismissal and refiling when there is only nine days left in the period would be a waste of judicial resources.

Unknown Speaker: Well, this won't be exceptional if we say that this doesn't mean what it says, is what I am saying.

This case will not be exceptional.

If this exception can be made, why not a lot of other ones that achieve the substantial purpose of the statute?

Mr. Buckley: Well, I think that... that's what this Court should hold, and I think that's what this Court has held repeatedly.

That when the words of the statute compel a result that is plainly at variance with the policy of the statute, that you have to go along and look behind the statute to try to interpret the statute to achieve the purpose.

I mean, the language here says it's mandatory, but at the same time... look at the Save Our Sounds versus Callaway case.

I mean, that's a wonderful example of the District Court having struggled with the idea, that thinking that it was a jurisdictional requirement that required dismissal and refiling, and yet came up with a theory that there had been some kind of substantial compliance, when, in fact, there really hadn't been.

That case involved a dredging question, the Army Corps of Engineers had known that there was a citizen group that was concerned about--

Unknown Speaker: What's the name of that court case, Mr. Buckley?

Mr. Buckley: --It was in the District of Rhode Island, and it is Save Our Sounds versus Callaway.

Unknown Speaker: Oh, it's a District Court case?

Mr. Buckley: It's a District Court case, and the point of that is not that it has precedential value, but that it presented a unique factual situation, as this case does, where it made sense for the District Court to have discretion.

In that particular case, the Army Corps of Engineers knew that the citizens were concerned about the dumping of polluted, dredged material on a beach somewhere, and knew that it was also, under statutory requirements, under the National Environmental Protection Act, the Marine Protection Act, and the Water Pollution Act, that it had to have public hearings and notices and certain time periods had to be... had to be observed, like 90 days for circulation of a draft environmental impact statement.

And what the Army Corps of Engineers was... did was that it was so anxious to get the case going, that it shortcut those.

It violated those statutes and let the contract out before the 90-day period had run, without any public hearing or anything like that.

And the citizens found out that this contract was going to be let, and if they waited for the entire 60 days, that dredged material would have been dredged and deposited.

And the Court said that it thought, in a footnote, that it was a jurisdictional requirement, but, at the same time, it said that it thought that there had been substantial compliance because the citizens had made their objections known to the Army Corps of Engineers several months before.

But, in that case, there had been no notice sent to the Environmental Protection Agency and there hadn't been any notice sent to the state Department of Environmental Quality.

So there had been no compliance with the letter of the statute.

You know, long ago in the 1800s, this Court decided the Holy Trinity case, and went and said and provided the principle, that this Court said that it can look through the letter to the spirit of the statute.

And it gave several examples.

I mean, one example was that there's a law that prevents a prisoner from trying to escape prison.

Apparently there was a case where there was a fire in the prison and the prisoner escaped, and somebody--

Unknown Speaker: The result in Holy Trinity... that was a case in which a statute categorically prohibited the importation of people to work in the court just out of whole cloth created an exception for clergymen.

Mr. Buckley: --Well, I remember--

Unknown Speaker: You thought that was a correct result?

Mr. Buckley: --I do think that was a correct result because when the Court looked at the legislative history... and I believe that was a unanimous decision... when the Court looked at the legislative history, it determined that the whole purpose of the statute was to prevent the wholesale importation of unskilled manual labor.

And that the Court determined that that... that there was even some discussion just before the statute was enacted, that the Senate was concerned that well, you know, if we just leave this broad language here--

Unknown Speaker: They didn't make a skilled laborer exception; they made a clergyman except.

Mr. Buckley: --I'm sorry, I misspoke.

They made a, I think they made a brain toil exception I think is what they said.

We're not short of people who toil by their brains.

You know, it seems to me that the only reason why this case would have to be refiled, dismissed and refiled, when it would serve no purpose, is if it is interpreted as a jurisdictional requirement, and Congress has had no problem interpreting, has had no problem saying that, when a requirement is jurisdictional.

I mean, for example, in the Norris LaGuardia Act it says that no Court shall--

Unknown Speaker: Counsel, we are telling District Courts all over the country to expedite their dockets.

We are telling them the minute a case is filed to call the counsel in, to schedule it.

Under your rule, the judge would first be required to determine whether or not notice had been... can be given over a period of time.

It would have to enter a stay order.

It would then have to wait to see if the administrator or the state has commenced.

And under your interpretation of commenced, it's not even clear when the administrator or the state has commenced.

So you are compounding the work in the District Courts, and you must not forget that case load and expeditious management is really one of the keys to justice.

Mr. Buckley: --Well, one of the purposes to be served by the notice requirement... in the legislative history, one of the purposes to be served by the notice requirement was to ease the burden on the courts.

I mean, that was one of the thoughts.

I, last week I looked in the, a report of the Administrator of the District Courts to determine exactly what kind of burden citizen suits impose on the Courts.

And in fiscal 1987, there were 239,000 cases filed, 270 of which were private environmental cases.

These do not present a huge burden on the Court.

If the Court looks through West's publication of USCA, the citizen suit cases are very, very slight.

There is just not that many of them and the reason is because it is a very expensive business to get in, for a private citizen to get into the business of trying to enforce federal law.

And, of course, the preferred procedure would be to have the government do it.

But if the government knows about the action and does not act, then it seems to me that it serves the purpose to allow the citizens to proceed.

Now, I think that also one of the other... one of the other points is that since this Court has interpreted similar prelitigation requirements, requirements for gaining access to federal court for private attorneys general, not to require dismissal and refiling, or to allow the Court to have discretion to fashion some kind of an order that is going to serve the purpose, the remedial purpose of the statute as a whole, as well as the particular purpose of the particular requirement, the notice requirement--

Unknown Speaker: Counsel, there is comment through these papers that once a suit is filed the position of the parties hardens, and that this is one reason for the preliminary giving of notice before the commencement of an action.

You haven't commented on that, today anyway.

Do you have any comments?

Mr. Buckley: --Yes, I do.

I don't think that is true.

I mean, I disagree with that conclusion.

I believe that was one that was advanced by Judge Merritt initially in a dissenting opinion in the Ada-Cascade case, and then eventually was a majority opinion.

I just don't think that is true, in general.

Positions don't become hardened when litigation is filed, not particular, not in this kind of a case.

I know that my clients' position became hardened as soon as the Tillamook County began operating the landfill in violation, in flagrant violation with the requirements.

The positions--

Unknown Speaker: If this case had to be refiled, do you think the county would immediately resume the action that it had previously taken, or do you think the problem is now corrected?

Mr. Buckley: --The problem is not now corrected.

The county has gone a long way toward correcting the problem, but it is not now corrected.

Unknown Speaker: And you think that if this suit had to be refiled that the county would go right back to its former practices?

Mr. Buckley: No, I don't think that the county would go back to its former practices, but I do think that the case would be refiled... I don't think this is a situation of mootness.

You know, I mean, one of the things that happened in this case was in its efforts, in their efforts to try to get an injunction against the county, the Hallstroms spent $95,000 in attorney fees and expert witness fees.

And, it seems to me, that if the Court were to say that this case had to be dismissed and refiled, that the message that citizens and citizens groups would be hearing throughout the country is that this Court is going to interpret strictly provisions that are against the citizens.

I mean, it is not, I guess... I hate to say this, but it is just not fair to say to the citizens, sure, it is fine for you to spend $95,000 and get an injunction, but we're still going to require you, as this Court said in the Newman-Green case, to jump through a judicial hoop that would really serve no purpose.

Unknown Speaker: Mr. Buckley, that is not fair.

I really don't think it is a judicial hoop, and I don't see why you say it is a matter of interpreting it strictly.

I think that is fair language where you have an ambiguous word and you can interpret it one way or another.

But this is not at all ambiguous.

It says no action may be commenced.

Mr. Buckley: Well, whenever the Court looks and focuses on one specific sentence in an entire statute and says that that is not ambiguous, I think the Court disregards the whole context of the statute.

Unknown Speaker: It happens to be the sentence that relates to the matter at issue here.

Mr. Buckley: But it also... but the whole statute also does as well, Your Honor.

I mean, the whole statute was enacted to protect the environment, to encourage citizen enforcement, and also to trigger governmental action and to trigger action by the violator to come into complete compliance.

I mean, that is the context that we find that sentence in.

And the context is also when the Court takes a look at the legislative history.

And the context is also including this Court's other decisions in other private attorney general cases as well.

And I think that it makes sense for similar prelitigation requirements in a similar context in analogous situations to be interpreted consistently.

And in the Baldwin case, this Court said that if the District Court has led the plaintiff to believe that she had done everything required of her, that it would be inequitable to then say that she hadn't.

And in this particular case, the District Court said that the requirement had been cured and that we had done everything required of us under the circumstances of this case.

And this case has gone far beyond just a motion to dismiss, as in many of the cases.

This case went to trial.

An injunction was entered, the environment was protected, the government was notified and the government decided not to do anything, either because of resources or because of some other reason, I don't know.

Unknown Speaker: If you lose, do you think the case will be refiled?

Mr. Buckley: It will be refiled.

There is one that has been refiled already, because I gave another notice as well for the violation that is ongoing now.

It's stayed pending the decision in this Court.

Thank you.

Unknown Speaker: Thank you, Mr. Buckley.

Mr. Hunsaker.

Argument of I. Franklin Hunsaker

Mr. Hunsaker: Mr. Chief Justice, and may it please the Court:

The issue before this Court is very straightforward, and that is what does the statute mean.

The answer we urge the Court to adopt is that the statute means exactly what it plainly and clearly says, that Plaintiff's failure to comply with the statutory notice requirement before filing their lawsuit, constituted a defect that compelled dismissal of the lawsuit.

And this morning I intend to focus--

Unknown Speaker: --say that.

Mr. Hunsaker: --I think it does, Your Honor, and I would like to respond--

Unknown Speaker: Well, it doesn't say that in those words.

Mr. Hunsaker: --It doesn't say that in those words, but I think the overall statute, taking all of the sections together, and the statute as it is relevant to this case as set forth in the appendix to our Respondent's brief.

I would like to touch upon the words of the statute, its plain, ordinary meaning; if you construe those words together, why it compels a dismissal in this case, the congressional intent which this Court recognized in the 1987 Gwaltney of Smithfield versus Chesapeake Bay--

Unknown Speaker: Well, do you think you have to look at something besides the words that no case may be commenced without a notice?

Do you have to look beyond those words?

Mr. Hunsaker: --I don't think you do, Justice White.

Unknown Speaker: Because that just, everybody agrees that you are supposed to give a notice before there is a commencement.

But the question is, if you fail to do that, what's the remedy.

Mr. Hunsaker: That is correct.

But this morning is the first time I have heard Plaintiff's attorney concede... I believe he conceded that commence means begin or initiate.

In the past, and I think their briefs are replete with the argument... that and before the District Court and the Court of Appeals... replete with the argument that commence means other than to initiate or begin.

Unknown Speaker: Well, let's start with that.

It does mean what it says.

Mr. Hunsaker: I'd also this morning like to touch upon a matter that several of the justices raised this morning, and that is why a decision by this Court affirming the Court of Appeals and construing the statute as written will bring about predictability and even-handed administration of this law, rather than the litigation generating result advanced by the plaintiffs.

Unknown Speaker: Well, it might, but it certainly results in some unfortunate, an unfortunate situation in this case, doesn't it?

Mr. Hunsaker: There is no question about that, Justice O'Connor, and I think this Court has said on a number of occasions that the Court's sympathy for a particular plaintiff is no reason to ignore the clear meaning of a statute.

Unknown Speaker: And, of course, the Court has overlooked, apparently, clear meaning in the Title 7 context?

Mr. Hunsaker: It has, but Justice O'Connor, those cases do not contain anywhere near the kind of clear language, we submit, that is in this statute.

It, I really believe that, as I said a few minutes ago, that the Plaintiffs are essentially urging, by their argument, that the word commence means maintaine.

And I submit that the concurring opinion of Justice Scalia in Gwaltney, and joined in by Justices Stevens and O'Connor, draws that distinction between commence and maintain, and it just, it's untenable to say that it means something other than what it says.

But as to the argument that somehow this statute does not speak, the notice provision is not jurisdictional.

As Justice O'Connor pointed out, I believe in her question, the subsection (a) which speaks in terms of jurisdiction... that provides that a citizen may bring this law suit, this kind of lawsuit... expressly begins with the words except as provided in subsection (b) or (c) of this section any person may commence.

So you can't read subsections (a) and (b) separately.

They have to be read together.

And I think by saying that somehow, as the Plaintiffs have said, that subsection (b), the notice provision, is entirely separate, to use their words, from subsection (a) just doesn't follow.

It's tied in.

And that subsection (b) is titled, "Actions Prohibited".

And that was in the original act as passed by Congress.

Unknown Speaker: Well, now tell me why those words unequivocally say that if you fail to give notice that, something that is filed without the notice must be dismissed, rather than just stayed.

Why isn't a stay with notice given then an adequate remedy for this failure?

If there hadn't been the failure you certainly wouldn't stay a case, but the judge says I think it's a perfectly adequate remedy for this failure, for this unfortunate failure, to stay the case.

Why isn't that an adequate remedy for it?

Mr. Hunsaker: Justice White, I think it is not an adequate remedy, again because of the clear words, the use of prohibited--

Unknown Speaker: Well, tell me what clear words require dismissal?

Mr. Hunsaker: --Prohibited.

Prohibited.

No action.

You cannot bring this action, it is prohibited.

Or it cannot be commenced, begun, by filing the complaint.

They had... if you say it can be stayed, you said that the words prohibit and commenced are meaningless, or don't mean what they say, because you have said that you can go ahead and commence but we will stay, but you can't maintain it until you give the notice or the 60 days runs.

So I think those two words show that the Congress did, in fact, intend for this to be a prohibition and require a dismissal.

But the more... I think an equally important reason is the overall statutory scheme; it wasn't to allow citizens to come in and file these suits without first triggering the administrative action.

And as this Court recognized in Gwaltney, the primary enforcement tool is supposed, should be the administrative agencies, either the EPA or the state.

As the Court said in Gwaltney, the central purpose of these citizen provisions, and they were talking about now the Clean Air and Clean Water Acts which are identical to this act, the central purpose of these provisions is to permit citizens to abate pollution when the government cannot or will not command compliance.

And the Court in Gwaltney also said that the purpose of the citizen suit notice provision is to give the alleged violator an opportunity to bring itself into complete compliance and render unnecessary a citizen suit.

But significantly they said it is intended to encourage citizen participation, but only as a supplement or secondary to.

Justice White, if you say that you can simply stay these procedures, notwithstanding the fact that no notice has been given, then it seems to me you undermine the whole purpose of the statutory scheme which is clearly set forth that the primary purpose is to allow the agencies to enforce.

And, in fact, it is significant, as one of the justices pointed out this morning, that one of the, the statute clearly provides that if the government, the administrator or state has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, no citizen suit can be maintained.

That is in subsection (b) too.

Unknown Speaker: Do you think the, whoever was entitled to the notice, could waive this requirement?

Mr. Hunsaker: Well, I guess my first response would be that is clearly not the case here, but no, I don't think so.

Unknown Speaker: Well, you have to say that if you claim the jurisdictional, I suppose.

Mr. Hunsaker: Right.

Unknown Speaker: And a court would... could raise it on its own motion, would have to raise it on its own motion.

Mr. Hunsaker: Yes.

If it is jurisdictional it could be raised at any time as the, as has been done where courts have raised it.

The Court of Appeals in the one case relied upon by Plaintiffs raised it for the first time on appeal.

But, so I think the words, the statutory scheme, the congressional intent as evidenced in that statutory scheme was to bring about a meaningful opportunity for the agencies to have the opportunity to have the first bite at the apple, if you will, and eliminating the need for citizen law suits--

Unknown Speaker: What do you gain by your present position?

Counsel has said the case will be refiled if necessary.

What do you gain except to effectuate a lot of waste, judicially, in this particular case?

Mr. Hunsaker: --Perhaps little in this case, Justice Blackmun, but I think as a matter of public policy what is gained by this Court enforcing the, or construing the statute as written and saying that it must be... a notice must be given and, if not, a case must be dismissed... is that predictability in the future, even handed administration of the law--

Unknown Speaker: Well, if it is dismissed I guess the county doesn't pay the attorneys fees and costs?

Mr. Hunsaker: --Well, there were no attorney fees awarded, and that was one of the bases for the appeal taken by the Plaintiffs to the Ninth Circuit, was that no attorney fees were awarded.

I think the record demonstrates that while this matter went to trial the relief sought by the Plaintiffs was not anywheres near what they had wanted.

And while the Court did enter an order requiring the county to bring about some corrections to the landfill, it refused to close down the landfill as the Plaintiffs had requested.

And it ended up not awarding any fees, as it was within its discretion to do.

But I'd like to amplify, if I may, on this clear bright line that we asked this Court to draw in this case because of the predictability aspect.

If this Court draws that bright line and says that a citizen must give at least 60 days notice before commencing a lawsuit and if not then the lawsuit must be dismissed, I think you make the statute and its enforcement predictable, and you make it even-handed.

On the other hand, if you hold, as the Plaintiffs contend, that the suit may be stayed until the requisite notice is given, you make every citizen suit amenable to appeals and after the fact wrangling over whether or not the plaintiff, the citizen, complied with the statute and whether adequate notice was given, whether the administrative agencies, if you will, were given that meaningful opportunity.

And I think that will surely guarantee endless litigation and wasteful litigation.

It is significant in this case, or telling, that the District Court premised his decision denying the motion for summary judgment which was raised, which was filed as soon as the Defendant, the county found out about the lack of notice, based its decision on the fact that it would be a waste of judicial resources to dismiss.

And we submit that what has happened has been a waste of judicial resources, and, in fact, if this Court were to rule in favor of the Plaintiffs as they contend that would amount to a waste of judicial resources in the future.

It will impose a hardship on these Plaintiffs, no question, if this Court affirms the Court of Appeals.

But imagine what would have happened if in March or April of 1983 when we filed, when the county filed its motion, the District Court would have granted the motion for summary judgment and dismissed the lawsuit because of the undisputed failure by the Plaintiffs to file their notice.

And Plaintiffs could then have given the 60 days notice and then refiled their lawsuit, as they indicated in their notice that they ultimately gave the EPA and DEQ a year after the lawsuit was filed, they could have refiled.

We would have gone ahead, tried the case without any jurisdictional cloud hanging over the case, and we wouldn't be here before this Court today.

And I think that demonstrates why a clear bright line will avoid waste of judicial resources.

Unknown Speaker: But, presumably, with the same result that took place the first time.

Presumably.

How can you escape the waste of judicial resources and time and attorneys time and everything else?

Mr. Hunsaker: If I understand your question, Justice Blackmun, it would be avoided simply because you wouldn't have these lawsuits going on, as this one did, with an appellate court ending up saying there was no jurisdiction in the first place.

Unknown Speaker: Well, maybe the appellate court was wrong.

After all, it was a divided decision, wasn't it?

Mr. Hunsaker: Two to one, two to one.

Unknown Speaker: Yes, that is circular because if we rule for the Plaintiff then that won't happen.

You have assumed the point.

If we rule for the Plaintiff then it won't be an issue any more.

Mr. Hunsaker: In this case, Justice Kennedy, it wouldn't happen.

But we submit what would, the dangerous precedent that we would be set would be clogging of the courts as you pointed out.

We submit in conclusion that the Court of Appeals correctly ruled based on Judge Wisdom's sound reasoning in the Garcia case, first that the notice requirement is part of the jurisdictional conferral from Congress that cannot be altered by the courts, that anything other than a literal interpretation of the plain language of the notice requirement would effectively render the provision worthless; and that to rule as Plaintiffs contend would in effect constitute judicial amendment in abrogation of explicit, unconditional statutory language.

On that basis we ask that this Court affirm the Court of Appeals.

Unknown Speaker: Thank you, Mr. Hunsaker.

Mr. Martin, we'll hear now from you.

Argument of Brian J. Martin

Mr. Martin: Thank you, Mr. Chief Justice, and may it please the Court:

This is, we submit, a case of statutory construction.

It is not a case that asks the Court to adopt the best rule or to interpret one of its own rules or a rule of federal common law.

So to answer your question, Justice White, this isn't a case that poses a question is the stay more efficient than complete dismissal.

We submit that dismissal is required by the statute.

Congress said that a certain type of action is RCRA, but brought without prior notice and a 60 day waiting period.

Such action is prohibited.

We don't think there is any basis for this Court to adopt a stay which would be inconsistent with that ruling, because a stayed action was nevertheless commenced without prior notice.

Petitioners have framed the question as to whether the prior notice requirement is mandatory or procedural, and we think that that mistakes, that is their primary mistake, because it is both.

It is a rule of Congress, a statute of Congress which is partly procedural but it is mandatory.

We can see no exceptions in the express terms of the statute and we have heard no evidence from Petitioners which would evidence an implied exception.

They have mentioned in their brief a concept of equitable modification.

I don't know what that means.

If a statute is not unconstitutional and there are no exceptions expressed or implied, I don't know how this Court gets the authority or where it derives the authority to adopt a different rule.

Unknown Speaker: Well, what about the Holy Trinity case, Mr. Martin?

Mr. Martin: I'm not on the Holy Trinity team today, I don't think.

[Laughter]

I'm on the plain meaning team today.

[Laughter]

Unknown Speaker: That's like, the Holy Trinity team is kind of like the Hail Mary.

Mr. Martin: Well, that's right.

There are cases, last year in Public Citizens against the Department of Justice case, there can be a statute where the result just seems too odd, absurd, unbelievable, Congress--

Unknown Speaker: That isn't what the, the majority said absurd.

The majority raised Holy Trinity and it--

Mr. Martin: --Difficult to fathom, unlikely to believe, difficult to fathom.

Others would have required absurdity.

But neither is present in this case.

The statutory scheme is completely coherent if it is applied according to its terms.

In fact we, there may be some inefficiency in particular cases.

This is one.

But that has never been a reason, as Justice O'Connor noted, to disregard the statute.

And I don't know that there is, the Court need to be too concerned about sympathy for the Plaintiff in this case because the Plaintiff lost on its state law judgments which were vacated along with the federal court judgments.

So they have resurrected their state common law claims for trespassing and reverse condemnation and the like.

That is largely beside the point, I just wanted to bring it up because it came up earlier.

So we do not think this is a case like Newman-Green where the question is, does the Court have some authority to adopt a procedural rule in the absence of congressional action.

Congress has spoken to this question and we think that it is mandatory.

We have seen no exceptions implied or expressed.

To answer Justice Rehnquist's first observation, however, I suppose this case does not present the question whether the requirement is jurisdictional in its strictest sense.

Could it be waived if it is not raised by a Defendant, could it be noticed first by the Court on appeal or the Supreme Court.

It does not present that question because it was raised by the Defendant in the summary judgment motion.

And, also, it does not present the question could the EPA waive or be estopped from asserting some sort of requirement to notes because the EPA frankly was not notified.

We think--

Unknown Speaker: --I take it you are, maybe you don't have to answer this, but I take it you are representing the views of the EPA?

Mr. Martin: --I am.

And they take the prior notice requirement seriously, for two reasons.

One, the government, the EPA in particular, is primarily designated to enforcing environmental laws.

They welcome citizen suits; citizens are encouraged to become involved.

But the EPA wants to know about these suits and they can have an effect in compromising or preventing some litigation, both ways.

They can bring pressure to bear on a defendant or they could point out to a potential plaintiff you don't have a case.

And then with Rule 11 such a plaintiff might not come to courts.

So we think that really the incongruent result would be from Petitioners' reading of the statute, which would make the prior requirement somewhat trivial.

Why would a plaintiff give prior notice.

If it is not raised it would be waived, and even if it is raised, you could give notice at that time.

So we think that Congress certainly thought there was an important reason to have prior notice.

The EPA believes that notice is important.

So, we think that there is nothing to recommend an approach that would make that requirement, if not meaningless, less important and perhaps trivial.

Unknown Speaker: Mr. Martin, may I go back to Justice White's concern earlier that the language is plain as to the duty not to commence the action, but that the statute is silent as to the remedy for violating that duty.

Do you think in this case an action was commenced?

Mr. Martin: Yes.

Unknown Speaker: If it was commenced, then the question is what is the remedy for violating the statute.

You don't take the position that the action was never commenced?

Mr. Martin: No, I think an action is commenced when you file a complaint.

Unknown Speaker: Well then if it has been commenced, how can you say there is a wad of jurisdiction?

Mr. Martin: Actions are commenced and they remain on the court's docket until they are dismissed for some reason.

A court could, on its own motion, decide there is no jurisdiction and dismiss it.

But it is commenced, there is a docket number, you have to respond.

You're at some risk, I would think, as the defendant perhaps until it is dismissed.

The action was commenced, but it was a prohibited action when it was commenced.

That is our point.

Unknown Speaker: Well, doesn't that force you to confront the nature of the remedy that must be imposed and whether it is jurisdictional in the true sense or whether it is waivable, or whether the Court could enter a stay?

Mr. Martin: Well, the facts of this case--

Unknown Speaker: It seems to me that you can't avoid answering the Chief Justice's inquiry.

Mr. Martin: --Is it jurisdictional, could it be waived by a defendant?

We think not, but we seriously do not think it is presented by this case because it was raised as a defense in the normal course of litigation, timely--

Unknown Speaker: Yes, but the lower court took the position that it could remedy it by entering a stay and allowing--

Mr. Martin: --Well, we think that remedy is plainly inconsistent with the statute, whether it is a jurisdictional requirement that can never be waived or... we're talking about an intent of Congress, so Congress can intend anything they want along these lines.

We know that Congress did not want this action to proceed.

Now, whether it would allow another action to proceed if a defendant didn't raise it until it was up on Court of Appeals or in this Court, that is not presented.

In such a case, a party would have to give some evidence that Congress legislated against the background of waiver laws and estoppel laws, something like Zipes, where this Court held that requirement was like a statute of limitations where Congress knows of the background of waiver and estoppel.

That would be a different case.

But we know that this case was, is one that Congress thought was prohibited, that the objection was raised in a timely manner.

Unknown Speaker: --Mr. Martin, I'm worried about this commence point.

Suppose a man files a case and he is not, he is not 21 years old.

Would that case be commenced?

Mr. Martin: I believe it would be commenced.

Commenced--

Unknown Speaker: Well, what do you mean by commenced, that's what--

Mr. Martin: --I mean what Rule 3 of the Federal Rules of Civil Procedure mean, an action is commenced by filing a complaint.

So, if it looks like a complaint, it is commenced.

If there are no further questions, we think the judgment should be affirmed.

Chief Justice Rehnquist: Thank you, Mr. Martin.

The case is submitted.

Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 88-42, Hallstrom versus Tillamook County will be announced by Justice O’Connor.

Argument of Justice O'Connor

Mr. O'Connor: This case comes to us on writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

It requires the Court to determine whether compliance with the notice provision of the Resource Conservation and Recovery Act of 1976 is a mandatory precondition to commencing suit against an alleged violator of the regulations of that Act.

Section 6972(b) of that Act prohibits the commencement of such an action until 60 days after the parties have notified the appropriate state and federal agencies and the alleged violator of their intention to bring suit.

In an opinion filed today, we hold that compliance with the notice and 60-day delay requirement mandated by the Act is a mandatory, not an optional, prerequisite to suit under the Act.

Nothing in the language, structure, or legislative history of the statute permits us to disregard its plain meaning or to allow equitable modification of the statutory requirement.

Accordingly, if a party fails to comply with the 60-day notice requirement, the District Court must dismiss the action as barred by the terms of the statute.

The judgment of the Court of Appeals is accordingly affirmed.

Justice Marshall has filed a dissenting opinion with which Justice Brennan joins.