Supreme Court Update: Los Angeles County Flood Control District v. Natural Resources Defense Council (11-460), Ryan v. Valencia Gonzales (10-930), and Tibbals v. Carter (11-218)

January 10, 2013 Supreme Court Update

Greetings, Court fans!

The Court is off to a quick start in the new year, with four decisions in two days. This Update will cover Los Angeles County Flood Control District v. Natural Resources Defense Council (11-460), on what constitutes a "discharge of pollutants" under the Clean Water Act; and the consolidated cases of Ryan v. Valencia Gonzales (10-930) and Tibbals v. Carter (11-218), regarding the competence of prisoners during habeas proceedings.

In Los Angeles County Flood Control District v. Natural Resources Defense Council (11-460), the Court considered whether water flowing from a river, through a concrete channel, and back into the river constituted a "discharge of pollutants" under the Clean Water Act ("CWA"). As the San Gabriel River and Los Angeles River approach Los Angeles, they flow through concrete channels controlled by the Flood Control District, then back into unimproved portions of the rivers. The District operated a storm sewer system that flowed into the rivers at various points. Because storm water is often heavily polluted, the storm water had to meet certain minimum water quality levels under a CWA permit. Monitoring stations in the concrete portions of the rivers indicated that water quality standards had been exceeded for everything from aluminum to zinc. This is not shocking: movies have taught us that motorcycle chases (Terminator 2) and drag races (Grease) routinely happen in L.A. riverbeds.

The NRDC sued under the CWA, but the district court granted summary judgment in favor of the District because there was insufficient evidence that the District's storm sewers caused the pollution, as opposed to other upstream polluters. Reversing the district court, the Ninth Circuit worked around this problem by holding that the discharge of pollutants occurred not when the water came out of the drains of the various polluters, but rather when the polluted water flowed from the concrete channels back into the rivers. Because the District controlled the concrete channels, the Ninth Circuit reasoned, it was liable for all pollutants in the water.

Everyone, including the litigants, disagreed with the Ninth Circuit. Justice Ginsburg took the pen in this unanimous opinion with which Justice Alito concurred in the judgment. The Court noted that "discharge" under the CWA means "any addition of any pollutant to navigable waters." Previously, in South Fla. Water Management Dist. v. Miccosukee Tribe (2004), the Court had held that no "addition" of pollutants occurred when water was transferred between different portions of a water body. The Miccosukee Court explained that "if one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not ‘added' soup or anything else to the pot." It logically followed, the Court reasoned, that no discharge occurs when water simply flows from one portion of the water body to another. Because of the narrow scope of the writ of certiorari, the Court declined to consider the NRDC's alternative argument that the high pollution levels violated the express terms of the CWA permit, which the NRDC contended triggered CWA liability regardless of who discharged the pollutants.

In Ryan v. Valencia Gonzales (10-930), consolidated with Tibbals v. Carter (11-218), the Court considered whether an indefinite stay in federal habeas proceedings is required any time a state prisoner is adjudged incompetent. Ernest Valencia Gonzales and Sean Carter—on death row for murder in Arizona and Ohio, respectively—each commenced habeas proceedings in federal district court but, while their petitions were pending, moved to stay the proceedings on grounds that they were no longer competent and therefore incapable of rationally communicating with or assisting counsel. Both the Ninth and Sixth Circuits held that indefinite stays were warranted because capital habeas petitioners have a statutory right to competence. The Ninth Circuit that such a right derives from 18 U.S.C. § 3559(a)(2), while the Sixth Circuit relied on 18 U.S.C. § 4241.

In a unanimous opinion authored by Justice Thomas, the Supreme Court held that neither statute (nor any other) provides a right to competence in habeas proceedings, just as there is no such constitutional right. Though § 3559(a)(2) provides capital habeas petitioners a statutory right to counsel, it does not require that a prisoner also be competent to assist his counsel. Rather, in most cases, "[a]ttorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients' assistance." The Court also made quick work of the Sixth Circuit's candidate, § 4241, noting that the statute has nothing to do with the competency rights of state prisoners seeking habeas relief, as it addresses competency hearings for federal criminal defendants and probationers. The Court also took the opportunity to address the import of its enigmatic orders in the case of Melvin Davis Rees, a convicted serial killer who sought to withdraw a petition for certiorari filed by his counsel. After Rees was adjudicated incompetent, the Court ordered his cert petition "held without action" and did nothing further until Rees died in prison 28 years later, at which point it simply dismissed the petition without comment. Though both the Ninth and Sixth Circuits relied in part on Rees, the Court held that "the unique, one-sentence order in Reese . . . offers no support for federal petitioners seeking to stay district court proceedings."

The Court did recognize that district judges have the equitable discretionary authority to stay habeas proceedings for lack of competency, but it effectively limited the permissible exercise of that discretion to the rare case where a habeas claim is unexhausted, but not procedurally defaulted. Where claims have been exhausted in state court, the Court's recent decision in Cullen v. Pinholster (2011) mandates that review be limited to the record that was before the state court, which in the Court's view more or less eliminates the need for a petitioner's assistance. Even where Pinholster does not apply, the Court cautioned that a stay cannot be indefinite: "At some point, the State must be allowed to defend its judgment of conviction."

We'll be back soon with the other two decisions from this week. Until then, as always, thanks for reading!

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400