Olaf A. Hallstrom and Mary E. Hallstrom, Husband and Wife, and Cross-Appellees v. Tillamook County, a Municipal Corporation, and Cross-Appellant

ORDER

The panel voted unanimously to deny the petition for rehearing. The majority of the panel voted to reject the suggestion for rehearing en banc. Judge Pregerson was in favor of granting the suggestion for rehearing en banc.

A call for an en banc vote was made and the case failed to receive a majority of the votes of the active circuit judges in favor of rehearing en banc.

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.

AMENDED OPINION

This case requires us to determine whether failure to comply with the 60 day notice requirement of the Resource Conservation and Recovery Act of 1976 (RCRA) deprived the district court of subject matter jurisdiction to hear this case. Of the seven circuits that have considered this issue, three have found that notice is a jurisdictional prerequisite and four have held that notice is merely procedural.

We hold that proper notice is a precondition of the district court’s jurisdiction. Because the Hallstroms failed to notify the Environmental Protection Agency (EPA) and the Oregon Department of Environmental Quality (DEQ) before filing suit, the district court lacked subject matter jurisdiction to…

dissenting:

The majority holds that the 60-day notice requirement of 42 U.S.C. § 6972 (b) is jurisdictional. It therefore holds that the district court lacked jurisdiction over this action, even though the EPA and the Oregon Department of Environmental Quality received written notice of the action more than two years before trial began. By requiring dismissal, the majority exalts form over substance. I therefore dissent.

*602 The Hallstroms filed their complaint on April 9, 1982. They gave written notice to the EPA and the Oregon Department of Environmental Quality (DEQ) on March 2, 1983. The EPA had actual notice in December 1982; the DEQ in January 1983. The trial began on July 22, 1985.

Section 6972 of the Resource Conservation Recovery Act (RCRA), 42 U.S.C. § 6972 allows for citizen enforcement of certain statutory provisions. Section 6972(b)(1) provides that “[n]o action may be commenced under ... this section ... prior to 60 days after the plaintiff has given notice of the violation to — (1) the Administrator; (ii) the State in which the alleged violation occurs; and (iii) to any alleged violator_” We must decide whether this requirement acts to deprive a district court…

844 F.2d 598 18 Envtl. L. Rep. 20 ,606 Olaf A. HALLSTROM and Mary E. Hallstrom, husband and wife, Plaintiffs-Appellants, and Cross-Appellees, v. TILLAMOOK COUNTY, a municipal corporation, Defendant-Appellee, and Cross-Appellant. Nos. 86-4016, 86-4100 and 86-4257. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 10, 1987. Decided Nov. 3, 1987. As Amended on Denial of Rehearing and Rehearing En Banc April 7, 1988. Kim T. Buckley and John W. Stephens, Portland, Or., for plaintiffs-appellants and cross-appellees. I. Franklin Hunsaker, James G. Driscoll and Thomas D. Adams, Portland, Or., for defendant-appellee and cross-appellant. Appeal from the United States District Court for the District of Oregon. Before WRIGHT, WALLACE and PREGERSON, Circuit Judges. ORDER 1 The panel voted unanimously to deny the petition for rehearing. The majority of the panel voted to reject the suggestion for rehearing en banc. Judge Pregerson was in favor of granting the suggestion for rehearing en banc. 2 A call for an en banc vote was made and the case failed to receive a majority of the votes of the active circuit judges in favor of rehearing en banc. 3 The petition for rehearing…