Northwest Environmental Advocates, a Non-Profit Oregon Corporation and Nina Bell v. City of Portland

56 F.3d 979 40 ERC 1801 , 63 USLW 2777 , 25 Envtl. L. Rep. 21,250 NORTHWEST ENVIRONMENTAL ADVOCATES, a Non-Profit Oregon Corporation; and Nina Bell, Plaintiffs-Appellants, v. CITY OF PORTLAND, Defendant-Appellee. No. 92-35044. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 6, 1993. Opinion Filed Dec. 10, 1993. Opinion Withdrawn June 7, 1995. Decided June 7, 1995. Patrick A. Parenteau, Perkins Coie, Portland, OR, for plaintiffs-appellants, Northwest Environmental Advocates and Nina Bell. Terence L. Thatcher, Deputy City Atty., Portland, OR, for defendant-appellee, City of Portland. Catherine M. Flanagan, U.S. Dept. of Justice, Washington, DC, for amicus. Appeal from the United States District Court for the District of Oregon. Before: PREGERSON, KLEINFELD, Circuit Judges, and INGRAM, District Judge. * Opinion by Judge PREGERSON; Dissent by Judge KLEINFELD. ORDER The opinion and dissent filed December 10, 1993 is withdrawn. OPINION PREGERSON, Circuit Judge: 1 Northwest Environmental Advocates and Nina Bell ("NWEA") appeal the district court's judgment in favor of Portland on their claims that the City is violating the Clean Water Act ("CWA"), 33 U.S.C. Sec.…

Opinion by Judge PREGERSON; Dissent by Judge KLEINFELD.

ORDER

The opinion and dissent filed December 10, 1993 is withdrawn.

OPINION

Northwest Environmental Advocates and Nina Bell (“NWEA”) appeal the district court’s judgment in favor of Portland on their claims that the City is violating the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. On April 16, 1991, NWEA filed suit in the district court alleging that Portland’s practice of discharging raw sewage during times of precipitation from 54 outfall points was not covered by a permit and that the practice had caused and was continuing to cause violations of Oregon’s water quality standards. After a trial on the written record, the district court held that (1) the contested discharge points were covered by Portland’s pollution permit, and (2) the court lacked jurisdiction to consider NWEA’s water quality violation claims.

In Northwest Environmental Advocates v. City of Portland, 11 F.3d 900 (9th Cir.1993) (Northwest), we affirmed. We held that the contested discharge points were covered by Portland’s pollution permit, id. at 903-06 , and we held that Northwest Environmental Advocates lacked standing to bring a citizen *981…

dissenting:

I respectfully dissent from Part II-B of the opinion. I concur in Part II-A.

We decided this case and filed our opinion in 1993, at 11 F.3d 900 . As the majority concedes in footnote 1, the full court voted on whether to go en banc, and decided against it. We were required by Federal Rule of Appellate Procedure 41(a) to issue our mandate seven days after entry of the order denying the petition for rehearing. I do not know why this was not done.

The only justification I can see for us to issue a new decision, contrary to our previous one and contrary to what we said in Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842 (9th Cir.1987), would be a Supreme Court decision to the contrary. When the Supreme Court makes a decision which renders a decision of ours erroneous, we sometimes recall a mandate and revise our disposition in light of the Supreme Court decision. The majority opinion suggests that PUD No. 1 of Jefferson County v. Washington Department of Ecology, — U.S. -, 114 S.Ct. 1900 , 128 L.Ed.2d 716 (1994), has changed the law. If it did with respect to an issue dispositive of the case before us, I would not object to recalling our mandate to…