The Ninth Circuit is well known for its bizarre judicial opinions that throw the law into chaos for over 40 percent of the country. It’s better than it used to be, by all means, but its marked improvements still haven’t fixed things.
The archetypal Ninth Circuit problem tends to look something like this. A case comes before the court, and the majority feels strong sympathy for one of the litigants — largely in a way that happens to correspond with their liberal political views. They proceed to “do a little justice,” often ignoring what other, more sober courts have said. Before you know it, there’s circuit precedent that leaves an area of law cockeyed, with perverse incentives that flood its docket with similar cases, causing the problem to spiral.
It so happens that one such case came down just the other week, Washington v. Crown Resources Corp. The opinion was by Judge Willy Fletcher, so it’s a doozy. Throw in that he was joined by Judges Margaret McKeown and Lucy Koh, and you realize that you’re in for a wild ride. While not as headline-grabbing as the Ninth Circuit’s forays into immigration or gun control, it sits firmly in the court’s venerable practice of fouling up environmental cases — and in the finest tradition of doing so, the opinion promises to confound litigants and cast open the courthouse gates if the en banc court fails to correct it.
The case involves a gold mine in eastern Washington and a consolidated pair of “citizen suits” brought against its owner under the Clean Water Act (CWA). The CWA is a complex statute that provides for multiple forms of enforcement. An exercise in “cooperative federalism,” its primary intrastate enforcement power is left to the states. But if states fail to enforce, it allows for “private attorneys general” to bring citizen suits to enforce the law and vindicate the public’s interests.
Apparently, after the attorney general declined to bring an enforcement action against the mine as the primary enforcer of the CWA, a private NGO — the Okanogan Highlands Alliance — brought a citizen suit. So far so good; it’s a citizen suit under the CWA. But that’s when things get weird, because a little over a month later Washington brought its own citizen suit against the mine. The private attorney general was the actual attorney general.
This is allowable under the CWA, it seems, but very strange. Each enforcement approach has benefits and drawbacks. State enforcement, for example, gets priority and allows the state to call the tune with its significant public resources. Private enforcement, on the other hand, has higher penalties and allows for attorney fees. For whatever reason — but probably for the possibility of fees — Washington decided to forgo control and take the second course, privatizing its attorney general.
The two cases were consolidated in front of Judge Mary Dimke — an eminently sensible Biden appointee who clerked for the great Judge Richard Tallman of the Ninth Circuit — and eventually Crown and the NGO reached a settlement that was confirmed in a properly executed consent decree before Judge Dimke, to which Washington did not object and that was informed by comments from the Biden Department of Justice.
Following the consent decree, Crown moved for judgment on the pleadings in the separate action by Washington on the theory that its suit was barred by nonparty preclusion. When Washington chose to pursue a citizen suit instead of state enforcement, it forwent its enforcement primacy and instead subjected itself to the standard rules of federal-court practice, including this one. Once a claim is resolved in federal court, that’s the end of it; successive suits are barred. Known generally as the principle of res judicata, this outcome has long been required by judicial economy and fairness. Here the CWA claim against Crown for its mine was resolved by the consent decree, therefore vindicating the public’s interests under the CWA and precluding any duplicative or successive claims such as Washington’s. Judge Dimke agreed and granted the motion. This is where the Ninth Circuit comes in.
Washington appealed the dismissal, arguing that Judge Dimke applied the law incorrectly as to nonparty preclusion. Shockingly — but not surprisingly — Judge Fletcher agreed with them.
Judge Fletcher, true to form, tortured Supreme Court precedent to conclude that the parties don’t need to be merely aligned for preclusion to attach, but rather “precisely” aligned. Even assuming that’s a correct reading of precedent (doubtful), it’s hard to see how the NGO and Washington weren’t sufficiently aligned: They both brought citizen suits that were predicated on the same facts, brought under the same law and litigated in tandem for four years, even using the same experts.
To the contrary, per Judge Fletcher. Apparently, Washington wants more onerous relief from Crown, so the claim is different. Really? He justified this by quoting Washington’s whining about things that could have been in the consent decree but weren’t. “Our shared interest was not resolved to my satisfaction” hardly seems to undermine the fact that the interest was shared, which is what matters for preclusion. Preclusion rules don’t care whether the party bringing the second suit liked the first suit’s result (presumably the party doesn’t, hence the second suit).
Washington also wanted attorney fees. Again, so what? If the Gaia Coalition of Takoma tried to bring a successive citizen suit, it wouldn’t get attorney fees because it would be precluded. Either seeking new fees eliminates the identity of claims and opens the door to endless, successive citizen suits, or states get some sort of super-citizen-suit right to collect fees when private parties can’t. Both options are absurd.
This is where Crown Resources moves from a mere bad CWA case (common enough in the Ninth Circuit) to one that will do real mischief. If the preclusive effects of consent decrees under the CWA can be so easily evaded, what incentive would defendants have to enter into them? Part of why you enter into a consent decree is to buy peace; if successive suits are allowed on spurious grounds, why bother? The rational incentive that Judge Fletcher is establishing is more protracted litigation with all the attendant harms to both the judicial and real economies.
Or perhaps it only applies to a public-private attorney general, like Washington’s. That, too, is an intolerable perversion of the law. Again, under the CWA there are two paths, each with its own advantages and drawbacks: state enforcement and citizen suits. There is no mysterious third path that allows states to maintain their primary enforcement powers and reap the benefits that accrue to citizen suits, no matter how badly the Clinton-era senior judges on the Ninth Circuit wish there were. Under Crown Resources, states won’t have to ask at the outset, “To enforce or not to enforce?” Instead what dreams may come to liberal attorneys general realizing they can now both have the final say in litigation and also stick defendants with the enforcement bill? It’s the same story as before: a proliferation of litigation that comes from externalized costs coupled with a disincentive to resolve cases because whatever deal gets struck with the private attorney general won’t buy peace from the public-private one.
The en banc Ninth Circuit should nip these problems in the bud. I hope Crown seeks en banc review. Even if it doesn’t, the judges of the Ninth Circuit who care about the fair and rational application of the law should pursue it.