Blackstone Headwaters Coal. v. Gallo Builders, Inc.

United States Court of Appeals
For the First Circuit
_____________________
No. 19-2095
THE BLACKSTONE HEADWATERS COALITION, INC.,
Plaintiff, Appellant,
v.
GALLO BUILDERS, INC.; ARBORETUM VILLAGE, LLC;
STEVEN A. GALLO; and ROBERT H. GALLO,
Defendants, Appellees.
__________________
Before
Howard, Chief Judge,
Lynch, Thompson, Kayatta, Barron, and Gelpí, Circuit Judges.
__________________
ORDER OF COURT
Entered: October 26, 2021
A majority of the active judges who are not disqualified have voted to hear this case en
banc. Accordingly, Blackstone Headwaters Coalition, Inc.'s petition for rehearing en banc is
granted only as to the issue of whether to overrule the holding in North and South Rivers
Watershed Association, Inc. v. Town of Scituate, 949 F.2d 552, 558 (1st Cir. 1991), that citizen
suits seeking equitable relief under 33 U.S.C. § 1319 are not permitted when a state has
commenced and is diligently prosecuting an action under a state law comparable to § 1319(g). See
33 U.S.C. § 1319(g)(6)(A)(ii). In accordance with customary practice, the panel opinion released
on April 26, 2021 is withdrawn, and the judgment entered the same date is vacated. See 1st Cir.
I.O.P. X(D).
The en banc court will have copies of the previously filed briefs. The parties and amici are
invited to simultaneously file supplemental briefs on, or before, November 16, 2021, and shall
comply with applicable rules concerning format, service, and other requirements.
By the Court:
Maria R. Hamilton, Clerk
 Judge Gelpí did not vote on this matter.
cc: Hon. Timothy S. Hillman, Robert Farrell, Clerk, United States District Court for the District
of Massachusetts, Brian E. Murphy, James Parker Vander Salm, William D. Jalkut, Charles C.
Caldart, Jennifer Scheller Neumann, Matthew Oakes