[00:00:11] Speaker 00:
on behalf of the Pellant Coastal Environmental Rights Foundation, or CERF, and I'd like to reserve five minutes for a bit if I can.

[00:00:18] Speaker 00:
I'll mark the clock.

[00:00:20] Speaker 00:
Your Honors, the lower court's determination in this case was incorrect on two different issues.

[00:00:28] Speaker 00:
It was clearly erroneous on the evidentiary findings as to the normal operation of fireworks, in concluding that that does not result in a discharge.

[00:00:40] Speaker 00:
and it was legally incorrect in the application of the Section 505 Clean Water Act jurisdictional requirements for citizen suits.

[00:00:52] Speaker 00:
In light of the video evidence, the photographic evidence, the eyewitness testimony, the three regional board findings, and NPDES permits in this case, the monitoring data in the prior years that was submitted on behalf of NEPALS

[00:01:15] Speaker 00:
that the fireworks do constitute a point source, all that points to the clearly erroneous conclusion that fireworks do not result in a discharge when normally operating.

[00:01:31] Speaker 00:
Before you get to those merits, can you address the mootness question?

[00:01:36] Speaker 03:
Yes.

[00:01:36] Speaker 03:
That there is now a license here?

[00:01:39] Speaker 00:
Yes, Your Honor.

[00:01:40] Speaker 00:
As the respondent Naples can see,

[00:01:48] Speaker 00:
because so long as the court can award civil penalties, that keeps the controversy alive because the penalties serve a deterrent effect.

[00:01:56] Speaker 01:
I'm not sure that's correct because under the citizen suit provision, you have to show an ongoing violation as the Supreme Court has – I think as the Supreme Court has construed that language.

[00:02:06] Speaker 01:
And so if we have a permit and the parties in this

[00:02:14] Speaker 01:
are simply that they were doing something that is in violation of the Clean Water Act without a permit.

[00:02:21] Speaker 01:
How do we have a live case?

[00:02:23] Speaker 00:
You're absolutely correct, Your Honor, that the Supreme Court in Waltney decided, interpreted the Section 505 language that the discharger has to be in violation, but the language is actually alleged to be

[00:02:41] Speaker 00:
And the test is at the time of the filing of the complaint.

[00:02:46] Speaker 00:
So there is an ongoing violation at the time of the filing of the complaint and that can be proven by the time the case goes to trial.

[00:02:58] Speaker 00:
So when you have a 60-day notice letter,

[00:03:07] Speaker 00:
the violation and by the time you go to trial you have to allege in good faith that the discharger is in violation and at the time of trial prove the ongoing violation.

[00:03:20] Speaker 00:
Here if there was an ongoing violation at the time of the filing of the complaint that's when the penalties are accrued and so even if the activity

[00:03:35] Speaker 00:
there's no chance that the activity can continue, even if the facility, in this case, the fireworks, completely shut down.

[00:03:43] Speaker 00:
Because the civil penalties accrue at the time of the violation, the case is not wholly moved.

[00:03:50] Speaker 00:
And even respondents acknowledge they're not arguing that the case is moved.

[00:03:55] Speaker 01:
I guess I'm struggling with how citizen suits work, because any sort of financial penalty is not coming to your client.

[00:04:01] Speaker 01:
It's going to the government.

[00:04:06] Speaker 01:
When the statutory language for a citizen suit says that it has to be an ongoing violation, and our doctrine says that we have to have jurisdiction at all stages of the case, and at some point along in this case, we no longer have an ongoing violation, I'm not clear why it is that we still have the ability to give relief here.

[00:04:34] Speaker 00:
So the ongoing violation has to be proven for subject matter jurisdiction in terms of citizen suits to attach.

[00:04:48] Speaker 00:
Moodness is a separate issue, and the court has said it has to be absolutely clear.

[00:05:17] Speaker 03:
So it's totally – there's no reason to believe that that would – that violation would reoccur.

[00:05:24] Speaker 00:
Well, Your Honor, that's under the second prong of quality.

[00:05:28] Speaker 00:
But under the first prong, so long as you show that there's a post-complaint violation that jurisdiction attaches, and that's the Section 505 jurisdictional requirement.

[00:05:39] Speaker 00:
And the Court isn't divesting

[00:05:53] Speaker 03:
of the fireworks.

[00:05:55] Speaker 03:
That's fine.

[00:06:27] Speaker 00:
of the court, but I just would like to parse out the difference between what I believe Your Honor is getting at is the abatement, the ability to abate and offer injunctive relief.

[00:06:39] Speaker 00:
That may be true.

[00:06:40] Speaker 03:
The three prongs of Article 3 jurisdiction, injury, traceability, and redressability, I don't see what redress we can offer to your clients.

[00:06:50] Speaker 00:
Our clients would still be benefited by a favorable decision because the civil penalty served a deterrent

[00:07:00] Speaker 00:
with article three.

[00:07:19] Speaker 00:
do go to the Treasury, they do serve a purpose in deterring the unlawful activity, and that in and of itself is enough to redress the harms to the plaintiff.

[00:07:31] Speaker 03:
Does that make sense in this case where they've gotten the permit, so there's nothing to incentivize?

[00:07:48] Speaker 00:
permit and to comply with the permit.

[00:07:50] Speaker 00:
And in late law, I believe the facility had completely shut down and the court

[00:08:25] Speaker 02:
every year but

[00:08:57] Speaker 00:
is no permit.

[00:08:58] Speaker 00:
There are also no parameters to define what constitutes the authorized discharge.

[00:09:05] Speaker 00:
So in looking at the permit, if you take judicial notice of it, you can see that it requires more monitoring than was conducted.

[00:09:13] Speaker 00:
It requires certain cleanup

[00:09:38] Speaker 01:
now but I guess I'm struggling with that a little bit because the way that the complaint is set out is this was unlawful because you don't have a permit and now the argument would be this is unlawful because you're not following the permit but there was no there was no allegation for the courts to wrestle with when this case started about as you just said parameters because there weren't any because the problem was no permit so I don't know how we would expand the case that was a

[00:10:14] Speaker 00:
I think the most analogous – Dr. Penner, I can think of, Your Honor – is I think in the Southwest Brain case where – NRDC versus Southwest Brain, where the court found that at the time a notice letter is sent, if it's sufficient to put the party on notice, the discharger on notice of what the allegations are,

[00:10:43] Speaker 00:
steps to remediate that issue and new issues arise, then does that make that notice no longer valid?

[00:10:53] Speaker 00:
And the court said no.

[00:10:55] Speaker 00:
So long as the notice is sufficient at the time and the parties proceed and the case proceeds and there's still a continuing or ongoing violation, that's sufficient.

[00:11:03] Speaker 00:
So I think we could interpret the complaint in a way that

[00:11:11] Speaker 00:
not make the case smooth, but I still do really want to emphasize that just the civil penalties keep the case or controversy alive.

[00:11:18] Speaker 00:
And I would like to refer to our brief at Page's – I'm sorry, Your Honors, let me – if I could find the citation.

[00:11:32] Speaker 03:
Yeah, I mean, I would agree it keeps it alive for the government at least, but I just don't understand what your client's interest is if the government receives a penalty.

[00:11:41] Speaker 00:
Again, Your Honor, I think that's directly addressed in laid law, the Supreme Court decision in laid law.

[00:11:46] Speaker 00:
And I do think there is a benefit to our client in redressing the harms through the deterrence effect of the penalties.

[00:11:55] Speaker 03:
To not just Naples, but other people, you're saying?

[00:11:59] Speaker 01:
Both.

[00:11:59] Speaker 01:
Yes, Your Honor.

[00:12:01] Speaker 01:
Well, we've thrown you a curve ball this morning, and we recognize that.

[00:12:05] Speaker 01:
So why don't you go ahead and address the merits arguments which you have prepared to present today?

[00:12:23] Speaker 00:
in violation language in Waltonian and the Supreme Court's decision and then the Fourth Circuit on remand.

[00:12:31] Speaker 00:
The test is looking at the allegations at the time the complaint was filed and whether the discharger was in violation or there was a continuous violation at the time.

[00:12:51] Speaker 00:
And

[00:12:53] Speaker 00:
It's inconsistent, Your Honors, to find that there was a violation at the time of the 2022 show, which is post-complaint.

[00:13:26] Speaker 00:
district court found that it requires two two violations in order to meet the section 505 requirements and that's just inconsistent with the plain language of the statute which says in relevant part any citizen may commence a civil action on his own behalf against any person

[00:15:05] Speaker 00:
decisions in Guadalupe at the Supreme Court or at the Fourth Circuit indicated that you have to have plural violations, and the language is quoted in our briefs, but the – The thing is, John, that I'm not really focusing on plural.

[00:15:17] Speaker 02:
I'm just focusing on ongoing and continuing, both of which imply something more than a single, discrete, and time event.

[00:15:27] Speaker 00:
Your Honor, I think it's – the language is

[00:15:33] Speaker 00:
And I think the ongoing and continuous language is just a looking forward.

[00:15:41] Speaker 00:
A, does the court have the ability to abate?

[00:15:46] Speaker 00:
Will an injunction afford any kind of relief?

[00:15:58] Speaker 00:
ability to get an injunction and so in violation is a state of being and if as in the Carr versus Altadena decision that was out of the Fifth Circuit if there is a violation post-complaint that shows that the discharger was in violation at the time of the filing because they're the court found and and I think your honor alluded

[00:16:33] Speaker 00:
once or twice or however many times by failing to obtain a permit and then discharging that's a continuous state of violation and until that permit is obtained that's being in violation and so I think that gets to the point your honor of showing that it's different based on the type of violation alleged and if I could just use an analogy if there

[00:17:06] Speaker 00:
was not submitted or prepared a complaint is filed and then six months go by after the complaint was filed and then finally the discharger submits the report that via that discharger was in violation for that whole time it was a continuous violation even though it was one and so

[00:17:36] Speaker 00:
of the Fourth Circuit's remand instructions.

[00:17:41] Speaker 00:
And when Waltney was remanded to the Fourth Circuit, there were multiple violations.

[00:17:46] Speaker 00:
I think it was in the hundreds of violations.

[00:17:48] Speaker 00:
They were all pre-complaint violations.

[00:17:51] Speaker 00:
So in articulating that standard for remand, the court was focused on, how do I instruct that court when it goes back to the district court and say,

[00:18:05] Speaker 00:
continuing violations after the filing of the complaint or evidence of recurring violations that are reasonably likely to recur.

[00:18:19] Speaker 00:
And so I don't think that's a foreclosure of one violation.

[00:18:24] Speaker 00:
I think it's just a

[00:18:41] Speaker 00:
Core also uses a singular.

[00:18:43] Speaker 00:
It's sort of interchangeable.

[00:18:44] Speaker 00:
I think it's just a copy and paste of the standard runner.

[00:19:05] Speaker 04:
May it please the court.

[00:19:06] Speaker 04:
My name is Anusha Pillay, and together with my colleagues at Collier Walsh Nakazawa, we represent the Apolize Naples Restaurant Group and John Morris.

[00:19:14] Speaker 04:
Good morning, Your Honors.

[00:19:15] Speaker 04:
Without express authorization from Congress, surface asked this court to expand the EPA's authority to regulate fireworks under the Clean Water Act.

[00:19:24] Speaker 04:
To address Judge Donato's

[00:19:27] Speaker 04:
even if the civil penalties keep the controversy alive.

[00:19:30] Speaker 04:
Ongoing and continuous under Gwaliori is much less strict.

[00:19:36] Speaker 04:
The permit completely forecloses potential for future violations, particularly by the claim of relief, where the claim for relief is that of a discharge without a permit.

[00:19:47] Speaker 04:
And that is the single cause of action in a plaintiff's operative complaint, a discharge without a permit under the Clean Water Act.

[00:20:00] Speaker 04:
giving it an ongoing violation of the Act.

[00:20:02] Speaker 04:
Second, I will argue why fireworks are not a point source under the Act.

[00:20:06] Speaker 04:
And lastly, why the Act does not apply to fireworks.

[00:20:10] Speaker 03:
Now, Sir, if you'd like to address some of the jurisdictional questions, the mootness questions we had.

[00:20:14] Speaker 03:
Yes, Your Honor.

[00:20:15] Speaker 03:
So you're saying that the case is still alive, but why do they have Article III standing?

[00:20:21] Speaker 04:
Your Honor, the only reason that they had standing in the first place is because they had a good faith allegation that they alleged

[00:20:28] Speaker 04:
a continuing ongoing violation.

[00:20:31] Speaker 04:
While that was challenged, the standard is under Rule 11.

[00:20:34] Speaker 04:
The court found that they had met that threshold jurisdictional standard for standing.

[00:20:39] Speaker 04:
However,

[00:20:41] Speaker 04:
field makes clear that the most natural reading of to be in violation of the act, in fact, that phrase ambiguous and resolve the ambiguity by finding that to be in violation is a requirement that citizen plaintiffs alleged a state of either continuous or intermittent violation that is a reasonable likelihood that a past polluter

[00:21:04] Speaker 04:
will continue to pollute in the future.

[00:21:06] Speaker 04:
And then the Supreme Court in Guadalajara said...

[00:21:17] Speaker 04:
Your Honor, under the case law, mootness, we do not concede, Naples does not concede there is no mootness here at this point in time.

[00:21:27] Speaker 04:
However, mootness- Sorry, what is it?

[00:21:31] Speaker 04:
This case is a moot, yes or no?

[00:21:33] Speaker 04:
We believe the case is moot.

[00:21:35] Speaker 04:
However, we do believe the case is moot.

[00:21:39] Speaker 04:
That said, Gwaltmey of Smithfield,

[00:21:46] Speaker 04:
So while they may meet that threshold jurisdictional standing by merely alleging, in good faith, continuing ongoing violations, at the end of the day, they had to prove their case and they didn't hear.

[00:21:58] Speaker 01:
So that's why, I mean, you haven't challenged jurisdiction in your briefing, even though you were aware of the permit.

[00:22:04] Speaker 01:
And so I'm trying to sort of figure that out.

[00:22:05] Speaker 01:
You really want a merits ruling, it seems.

[00:22:08] Speaker 04:
Your Honor, both would be great, yes.

[00:22:11] Speaker 04:
But a merits ruling, of course, the court enables

[00:22:18] Speaker 04:
correct in applying the evidence to the facts with respect to finding that plaintiffs did not, or CERF did not prove its case of an ongoing and continuous violation.

[00:22:28] Speaker 04:
They had to prove a past, some sort of past, multiple violations of facts.

[00:22:34] Speaker 04:
So either- In your argument, I mean, as I'm hearing your argument, none of that depends on the permit or not.

[00:22:40] Speaker 01:
You just think that the facts show that they're

[00:22:49] Speaker 04:
that there was a violation in the past.

[00:22:52] Speaker 04:
The court found that one discharge in 2022 was a violation.

[00:22:56] Speaker 04:
We do not contest that there was a discharge in 2022.

[00:23:01] Speaker 04:
We do contest that it was by point source, which I'll address further.

[00:23:06] Speaker 04:
And there is no likelihood, reasonable likelihood of a future violation because based on the court's findings, which are sound,

[00:23:18] Speaker 04:
the very exceptional instance

[00:23:51] Speaker 02:
wouldn't be moot in your view, is that right?

[00:23:53] Speaker 04:
Well, Your Honor, they would have to, if they, if the, if CERF had alleged that, um, another unauthorized discharge, regardless of, of whether there was a permit, then the next question would be, well, was, was, if there was a permit, was it violated?

[00:24:07] Speaker 04:
And none of that was before the court.

[00:24:33] Speaker 03:
And given that, you know, they, I think they properly alleged an injury.

[00:24:39] Speaker 03:
And then, and then given, prior to getting the permit, we could have remedied that injury by issuing an injunction.

[00:24:47] Speaker 03:
But now that, that's off the table because, um,

[00:25:03] Speaker 03:
That's what I'm trying to get at.

[00:25:05] Speaker 04:
Your Honor, we don't see that there is any remedy for.

[00:25:10] Speaker 04:
Number one, we don't see that there was a pass injury in the first place.

[00:25:14] Speaker 03:
So we assume that that's correct, that they sustained an injury because there was a discharge into the bay.

[00:25:23] Speaker 03:
The rest is, how can we redress that injury?

[00:25:29] Speaker 04:
At this stage, there

[00:25:36] Speaker 04:
We have not, Naples has not contested the court's finding of lack of Article 3 standing at this point.

[00:25:45] Speaker 03:
I wonder, it seems like both sides would prefer to give a supplemental briefing on this issue.

[00:25:50] Speaker 03:
Yes, Your Honor.

[00:25:51] Speaker 04:
That would be helpful for you.

[00:26:04] Speaker 04:
that has been adopted by the Ninth Circuit.

[00:26:07] Speaker 04:
The test is that violations that continue, they have to show violations that continue on or after the date the complaint is filed, or by adducing evidence from which a reasonable trier of fact could find the continuing likelihood of recurrence in intermittent or sporadic violations.

[00:26:23] Speaker 04:
And the court assessed either, it wasn't a situation where the court required them to prove both.

[00:26:30] Speaker 04:
It required them to prove

[00:26:32] Speaker 04:
Neither.

[00:26:34] Speaker 04:
And the case law is clear that there must be proof of multiple violations, continuing violations, a past polluter continuing to violate into the future, continuing to violate the present or the future.

[00:26:49] Speaker 04:
And QSURF has not identified any case in which only a single violation was deemed sufficient to meet the

[00:27:19] Speaker 02:
ocean.

[00:27:20] Speaker 02:
Was there any evidence to that effect?

[00:27:21] Speaker 04:
Your honor, there was in the year in which the discharge was found in 2022, that there was one low break under 10 feet.

[00:27:33] Speaker 04:
Otherwise, the evidence from the only expert on fireworks at trial testified that

[00:27:49] Speaker 04:
However, there was no evidence set forth by SURF or otherwise a trial that would suggest that as to the likelihood of an exceptionally low break.

[00:28:02] Speaker 04:
In fact, the court found that this was incredibly rare based on the evidence at trial, the number of years in the show, and the lack of proof of any other low break of that magnitude.

[00:28:16] Speaker 04:
And here, the district court's findings are, as the triger of fact, the district court was in a superior position to appraise and waive the evidence.

[00:28:25] Speaker 04:
Indeed, the district court's findings took into effect the account of speculative nature of eyewitness testimony, the conditions at night that impact visibility, the distance between the eyewitnesses and the fireworks displays, and the obfuscation of the bay's reflection of fireworks stars in the air as opposed to actual contact.

[00:28:40] Speaker 04:
They took into account the eyewitness evidence of other

[00:28:45] Speaker 04:
homeowner surrounding the bay that was not sanctioned by Maples.

[00:28:50] Speaker 04:
And the trial court properly weighed the eyewitness testimony, the testimony before it, the scientific evidence, and there was substantial evidence to support the findings in this case that there was no proof of a continuing and ongoing violation.

[00:29:08] Speaker 04:
The water quality reports that plaintiff has brought forth to court's attention also do not show any consistently yielded increases or decreases in the elements at issue.

[00:29:21] Speaker 04:
The permitting schemes that plaintiff relies on are not judicially noticeable, although the fact that there were permitting schemes by other

[00:29:36] Speaker 04:
were not subject to judicial notice, whether permissively or mandatorily.

[00:29:43] Speaker 04:
They cannot be accurately and readily determined from sources whose accuracy cannot be questioned.

[00:29:50] Speaker 04:
And the low break, the singular low break in 2022 was an extraordinary event, and CERF offered no competing evidence as to the probability of that occurring in the future.

[00:30:03] Speaker 04:
Surf also ignores the definition of purpose of a fallout zone as established on the record, inserting its own speculative definition without any scientific evidence.

[00:30:10] Speaker 04:
The fallout zone is not, as Surf argues, the expected radius of fireworks-related debris.

[00:30:16] Speaker 04:
It is there because of safety.

[00:30:18] Speaker 04:
The undisputed expert testimony is that the fallout zone is the area designated as a safeguard against spectator injuries in the unlikely event that a fireworks shell fires laterally from a displaced mortar into

[00:30:33] Speaker 04:
That's in the record for ER 638.

[00:30:35] Speaker 04:
That follow-up zone is established whether the show occurs on land or on water.

[00:30:45] Speaker 04:
The district, here we must, Naples maintains that the district court did err as a matter of law in finding that even if the discharge originated from a non-point source,

[00:30:59] Speaker 04:
The Clean Water Act does not regulate all discharges of pollutants in the Navajo waters.

[00:31:04] Speaker 04:
It only regulates discharges from a point source.

[00:31:08] Speaker 04:
And while point sources can be broadly construed, the scope is not limitless.

[00:31:12] Speaker 04:
The Supreme Court in the County of Maui developed a test for the court to determine when a point source exists, where the discharge issue is indirect.

[00:31:20] Speaker 04:
And the County of Maui gets to the issue of what does from mean in the definition of a point source.

[00:31:32] Speaker 04:
clearly aired and not properly applying the county of Maui factors to this case.

[00:31:38] Speaker 04:
The factors, primarily factors four through seven.

[00:31:41] Speaker 04:
The extent to which a pollutant is diluted or chemically altered as it travels, the amount of pollutant

[00:31:52] Speaker 04:
in which the pollutant enters inaudible waters and the degree to which the pollutant at that point has maintained its specific identity.

[00:31:58] Speaker 04:
As the expert evidence at trial, the undisputed expert evidence at trial, set forth that fireworks are designed to consume themselves in flight.

[00:32:10] Speaker 04:
Where the exceptional low break occurred, there was no predictable flight path, in fact.

[00:32:14] Speaker 04:
And this all makes sense in the context of the U.S.

[00:32:18] Speaker 04:
Plaza Health Lab.

[00:32:21] Speaker 04:
As the statute stands today, the term point source is comprehensible only if it has held the context of industrial and municipal discharges.

[00:32:29] Speaker 03:
Wasn't there an expert that said a low break will happen like one hour every 400 or so?

[00:32:35] Speaker 04:
So that is to be, your honor, that you're correct.

[00:32:37] Speaker 04:
However, that is to be

[00:32:42] Speaker 04:
in the 2022 show, which was under 10 feet.

[00:32:44] Speaker 04:
The low break that the expert was referring to in terms of every 300 to 400 shells, that was a low break of 20 to 80 feet.

[00:32:51] Speaker 04:
And there was no evidence adduced by plaintiff or otherwise that as the likelihood of that sort

[00:33:16] Speaker 02:
that something's going to fall into the ocean.

[00:33:19] Speaker 02:
Why isn't that enough?

[00:33:20] Speaker 04:
Your Honor, that was two reasons.

[00:33:23] Speaker 04:
Number one, that's not what the evidence showed.

[00:33:25] Speaker 04:
The evidence over from 2016 to 2022, there was only one.

[00:33:32] Speaker 04:
And in fact, the extraordinary low break that was under 10 feet, just slightly high enough to not hit the walls of the barge, but low enough to

[00:33:49] Speaker 04:
center of the water.

[00:33:50] Speaker 04:
There was no actual evidence of that firework entering the water at the time, and we don't dispute the court's finding that it was more likely than not at that point in time.

[00:34:02] Speaker 04:
But the fact that that extraordinarily low rake occurred, it's akin to a random act that

[00:34:19] Speaker 04:
Number two, it didn't come from a point source discharge.

[00:34:23] Speaker 04:
We maintain there was no point source discharge here.

[00:34:25] Speaker 04:
And the reason that we have to strain to interpret the Clean Water Act's definition of a point source to include fireworks is because the Clean Water Act didn't intend to cover fireworks in the first place.

[00:34:39] Speaker 04:
Had Congress intended –

[00:34:51] Speaker 04:
Water Act to cover fireworks.

[00:34:52] Speaker 04:
It certainly knew how to do so.

[00:34:54] Speaker 04:
The Clean Air Act was contemplated to include fireworks, and then specifically the Congress excluded them from that act.

[00:35:02] Speaker 04:
Fireworks are shot in the air, not in the water.

[00:35:05] Speaker 04:
In closing, SIRF did not prove the case, and the Clean Water Act does not apply.

[00:35:08] Speaker 04:
Thank you, Your Honors.

[00:35:26] Speaker 00:
Thank you, Your Honors.

[00:35:28] Speaker 00:
Just quickly on the issue of whether the mootness argument was conceded or raised by Respondent Naples, in their opposition to our request for judicial notice, they stated at page 3, quote, but Epley's own brief belies any notion that the appeal is moot, confirming that point in a subsequent portion of its brief.

[00:35:48] Speaker 00:
Moreover, Epley's will not argue that this appeal is moot.

[00:36:05] Speaker 00:
If it helps inform the court, I did find the parts of the brief that we had some discussion of it, and I think it goes to the point of the civil penalties issue.

[00:36:16] Speaker 00:
We did cite at page 68 the proposition that in Clean Water Act cases, the mooting of injunctive relief does not move a plaintiff's prayer for civil penalties, and thus does not move the case as a whole.

[00:36:34] Speaker 00:
3rd, 493.

[00:36:36] Speaker 00:
We also cited... Which one is that last?

[00:36:38] Speaker 00:
That's the 1st Circuit case.

[00:36:40] Speaker 00:
3rd Circuit.

[00:36:41] Speaker 00:
There's a 2nd Circuit, an 11th Circuit, and a 4th Circuit.

[00:36:45] Speaker 03:
I think there's a circuit split on this question.

[00:36:46] Speaker 03:
That's the problem.

[00:36:47] Speaker 00:
So we did cite four cases.

[00:36:51] Speaker 00:
We did not cite Laidlaw.

[00:36:52] Speaker 00:
That is a Supreme Court case, so I think perhaps the supplemental briefing would be helpful.

[00:36:57] Speaker 03:
If there's an 8th Circuit case, I think it goes the opposite way.

[00:37:02] Speaker 00:
And I don't think that was cited

[00:37:25] Speaker 00:
the civil penalties attached.

[00:37:27] Speaker 00:
And my colleague here stated that not one case has shown that one violation is enough.

[00:37:34] Speaker 00:
I would say that the Alta Carvi Alta Verde Industries case is confident that there was only one discharge and it was pre-complaint.

[00:37:43] Speaker 00:
And the court nonetheless found that is a continuous violation.

[00:37:46] Speaker 00:
It's a Fifth Circuit case cited in our brief.

[00:37:49] Speaker 00:
The fallout area is an area where the debris is

[00:37:57] Speaker 00:
lower district court's opinion that the fireworks constitute a discharge.

[00:38:03] Speaker 00:
And the court actually said, quoting the expert, that the applicable fallout zone is 70 feet per inch of shell diameter, which suggests that some fireworks-related material is expected to approach surface waters within the predetermined fallout radius.

[00:38:28] Speaker 00:
burn rate and fallout zone.

[00:38:30] Speaker 00:
It's expected that the debris will fall out in that area and not all of it combusts.

[00:38:34] Speaker 00:
The stars may consume themselves before hitting the water, which I think the video evidence is contra that, but the shell casing the paper, as their expert testified at 4ER626, it does not combust.

[00:38:49] Speaker 00:
It merely fragments.

[00:38:50] Speaker 00:
So some debris is expected to fall out and it's of

[00:38:58] Speaker 00:
that's almost entirely over the water.

[00:39:01] Speaker 01:
So I think Judge Tanada raised a good point to your friend across the aisle about, you know, just as a matter of common sense, can't we just look at a situation like this and realize that some amount of firework debris is going to land in the water?

[00:39:14] Speaker 01:
And looking at the videos, that seems like a reasonable conclusion to draw.

[00:39:18] Speaker 01:
The problem is that we're

[00:39:42] Speaker 00:
where there was a determination on summary judgment, the court found that it had to view the facts as most favorable to the non-moving party, and the defendant, which was a police officer, was on a qualified immunity case, actually submitted the video evidence, and the Supreme Court said the video was contrary to what the court found, and the Court of Appeals should not have relied on such visible fiction

[00:40:20] Speaker 00:
It can't be contradictory to what the video shows.

[00:40:23] Speaker 00:
It can't be contradictory to what is, frankly, almost judicially noticeable that what goes up comes down, what their experts say to everything else in the record except for the expert opinion.

[00:41:12] Speaker 01:
for today.