Suncoast Waterkeeper et al v. City of Gulfport
Filing
48
ORDER denying 22 motion to dismiss, denying 21 motion for judicial notice. Signed by Judge Susan C Bucklew on 5/1/2017. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SUNCOAST WATERKEEPER, ET AL.,
Plaintiffs,
v.
CASE NO. 8:17-cv-35-T-24 MAP
CITY OF GULFPORT,
Defendant.
_______________________________/
ORDER
This cause comes before the Court on two motions: (1) Defendant’s Amended Motion to
Dismiss (Doc. No. 22), which Plaintiffs oppose (Doc. No. 36); and (2) Defendant’s Request for
Judicial Notice (Doc. No. 21), which Plaintiffs oppose (Doc. No 37). As explained below, both
motions are denied.
I.
Background
On January 4, 2017, Plaintiffs, Suncoast Waterkeeper (“SCWK”), Our Children’s Earth
Foundation (“OCEF”), and Ecological Rights Foundation (“ERF”), filed this action against
Defendant, the City of Gulfport, Florida, under the citizen-suit enforcement provision of the
Federal Water Pollution Control Act (“Clean Water Act” or “CWA”). (Doc 1-2 at 1). Plaintiffs
allege Defendant has violated the CWA by (1) discharging pollutants into waters of the United
States without National Pollution Discharge Elimination System (“NPDES”) Permit
authorization and (2) violating the terms of its NPDES Permit, No. FLS000005-003, through
these discharges. (Doc. 1-2 at 2).
1
SCWK, OCEF, and ERF are non-profit public benefit corporations with members in the
Tampa Bay area. (Doc. 1-2 at 2–3). The Complaint states that all three organizations work to
protect and/or improve the quality of local waterways “for water contact recreation, aesthetic
enjoyment, fishing, wildlife observation, educational study, and spiritual contemplation” and that
the organizations’ members “use and enjoy the ocean and bay waters and other waters adjoining
and in Gulfport for body contact water sports and other forms of recreation, wildlife observation,
aesthetic enjoyment, educational study, and spiritual contemplation.” (Doc. 1-2 at 2–4).
Plaintiffs brought this action on behalf of their members, alleging that, through a series of
sanitary sewer overflows (“SSOs”) and in violation of the CWA, Defendant “has repeatedly
spilled raw and partially treated sewage” from its wastewater collection system into Tampa Bay,
the Gulf of Mexico, and other waters near Gulfport. (Doc. 1-2 at 4–6). Plaintiffs further allege
that, because wastewater collected within Gulfport is ultimately transported to St. Petersburg’s
publicly owned treatment works (“POTW”) facilities, Defendant has also caused or contributed
to SSOs from St. Petersburg’s POTW by contributing to the overload on the system during wet
weather events in the Tampa Bay area. (Doc. 1-2 at 5, 9). Table 1, attached to the end of the
Complaint, documents 19 SSOs Defendant allegedly caused or contributed to. (Doc. 1-2 at 24–
25). Based on similar allegations against the City of St. Petersburg, Plaintiffs have filed a similar
suit against St. Petersburg. Suncoast Waterkeeper v. City of St. Petersburg, No. 8:16-cv-03319JDW-AEP.
The Complaint in the instant case includes a fairly extensive discussion of Gulfport’s
wastewater collection systems (Doc. 1-2 at 5–7) and the ways in which Gulfport’s alleged SSOs
may harm the ecologically sensitive waters of the Tampa Bay area, including risks to fisheries,
wildlife habitat, and human health, by loading the waters with pathogens, nutrients, and toxic
2
chemicals. (Doc. 1-2 at 7–10). Plaintiffs explain the effects of the alleged SSOs on their
members as follows:
Gulfport’s illegal discharges of raw and/or partially treated sewage
to ocean and bay waters and other waters adjoining and in Gulfport
degrade water quality and harm aquatic life in these waters, and thus
impairs [sic] Plaintiffs’ members’ use and enjoyment of the ocean
and bay waters and other waters adjoining and in Gulfport.
(Doc 1-2 at 4). As illustrative examples, the Complaint names nine SCWK members and one
ERF member who claim to be affected by Gulfport’s SSOs and describes how each has had his
or her enjoyment of the area’s waters impaired. (Doc. 1-2 at 10–13). For example, the Complaint
provides the following description of one member of SCWK and his alleged injuries:
John Rice, current SCWK member who has been a member since
before this action was filed, lives in Temple Terrace, Florida. He
regularly fishes from a kayak in Simmons Park and Cockroach Bay.
On Monday, September 26, 2016, following the massive sewage
discharges from St. Petersburg’s sewage wastewater collection and
transmission system, he observed a smell “like a urinal” and a “film
of brown foam” in the shallow waters of Cockroach Bay. Due to the
high water level of the bay and river during the St. Petersburg SSOs
in November, Mr. Rice believes that the foul smell in Cockroach
Bay is likely due to sewage from St. Petersburg’s SSOs (which were
also contributed to by excessive sewage flows from Gulfport into St.
Petersburg’s sewage wastewater collection and transmission
system) accumulating six inches to a foot above the regular water
level in the Cockroach Bay mangroves, which usually do not
experience much tidal fluctuation. Mr. Rice and his wife fish or
engage in other recreational activities in and around Cockroach Bay
from 20 to 25 times per year, and the SSOs from St. Petersburg
(including those caused or contributed to by Gulfport) have caused
them to lessen the frequency and enjoyment of their fishing and
recreation.
(Doc. 1-2 at 10–11). Describing the injuries alleged by ERF member Rachel Rosner, the
Complaint provides, in part:
Both Ms. Rosner and her son enjoy wading and swimming at
[Tampa Bay-area] beaches, observing shorebirds and marine life,
including sea turtles and manatees; enjoying the view of ocean
waters, and the smell of clean saltwater air. She observed the severe
3
red tide conditions created in the ocean waters adjacent to Sarasota
in September and October 2016 in person when she visited beaches
in Sarasota. She observed first hand dead fish washed up on the
beach and floating in the nearshore waters. . . . These red tide
conditions substantially impaired her enjoyment of Sarasota
beaches. The dead fish were disturbing to look at and she was upset
to view the loss of marine life caused by the red tide conditions.
Additionally, the dead fish created a strong stench that made it
unpleasant to be by the oceanside. She avoided going to St. Pete
Beach or Treasure Island knowing that there were red tide
conditions there as well. She has a well-founded fear that these red
tide conditions were exacerbated by the series of very large SSOs
from St. Petersburg in June, August, and September 2016 (which
were caused both by problems in St. Petersburg's sewage collection
system and in Gulfport's sewage collection system as well which
sends it sewage to St. Petersburg and has old, leaky sewage pipes.
These problems with Gulfport's sewage collection system cause
Gulfport's flows of sewage to St. Petersburg to spike in a big way
during rain storms. This overwhelms St. Petersburg's system leading
to SSOs). She is aware that sewage has nutrients that are well-known
to be capable of promoting algae blooms that are the cause of red
tides. She is further aware that prevailing ocean currents flow from
the St. Petersburg area south towards Sarasota and thus risk
transporting nutrients from SSOs toward Sarasota. Indeed, she is
aware that news accounts have quoted reputable scientists, such as
Kelly Redmond of Florida's Fish and Wildlife Research Institute
(which monitors toxic algae blooms) as indicating that SSOs have
risked making these red tides worse. She is apprehensive that future
SSOs from St. Petersburg and Gulfport will continue to add
nutrients to local waters and increase the risk of red tides in the
future unless comprehensive steps are taken to improve the sewage
collection systems of St. Petersburg and Gulfport.
(Doc. 1-2 at 12–13). No individual members of OCEF are named in the Complaint. (Doc. 1-2).
On March 3, 2017, Defendant moved to dismiss this case under Rule 12(b)(1) of the
Federal Rules of Civil Procedure for lack of standing and filed a Request for Judicial Notice of
several declarations offered by Plaintiffs in the St. Petersburg case. (Doc. 21; Doc. 22).
Accordingly, the Court will address both motions.
4
II.
Request for Judicial Notice
Defendant asks this Court to take judicial notice of certain facts and documents, specifically
eight sworn declarations filed by Plaintiffs in the St. Petersburg Action. The request lists the
eight declarations and includes copies of each as attachments. (Doc. 21 at 2, Exhibits A–H).
Plaintiffs respond that the St. Petersburg declarations are not proper to consider in the instant
case because they do not indisputably establish any facts relevant to Plaintiffs’ allegations
against Gulfport, and they are not central to Plaintiffs’ claims in this case. As explained below,
the Court agrees with Plaintiffs.
A. Rule 201(b)
Under Federal Rule of Evidence 201(b), “[a] judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” United States v. Jones, 29 F.3d 1549,
1553 (11th Cir. 1994) (citing F.R.E. 201(b)). Based on this standard, when evaluating documents
from other, related court proceedings, “a court may take judicial notice of a document filed in
another court not for the truth of the matters asserted in the other litigation, but rather to establish
the fact of such litigation and related filings.” Id. (quoting Liberty Mut. Ins. Co. v. Rotches Pork
Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (internal quotation marks omitted)). In Jones,
the Eleventh Circuit determined that it was inappropriate for the district court to take judicial
notice of facts in another court’s order because the other court’s findings were not sufficient to
indisputably establish facts that the parties still disputed. Id. In making this determination, the
court approvingly cited FDIC v. O'Flahaven, 857 F. Supp. 154, 157 (D.N.H. 1994), in which the
“court could not judicially notice [the] veracity of allegations in affidavits from [a related] state
court case; rather it could only take notice that the affidavits were filed and the averments were
5
made.” Id.; see also Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999)
(determining that the court could take judicial notice of public documents filed in a securities
fraud case “for the purpose of determining what statements the documents contain and not to
prove the truth of the documents’ contents,” but declining to address whether those statements
could be considered if their truth were at issue).
As noted by Defendant, in Cash Inn of Dade, Inc. v. Metropolitan Dade County, the
Eleventh Circuit held that, in evaluating community members’ statements that appeared in
minutes from a county commission meeting, “[a] district court may take judicial notice of public
records within its files relating to the particular case before it or other related cases.” 938 F.2d
1239, 1242–43 (11th Cir. 1991). However, the records at issue in Cash Inn—community
members’ statements contained in minutes from a county commission meeting—had already
been introduced into evidence in the same case, and the court was not necessarily relying on
them to establish their truth but merely whether the county had a permissible governmental
interest, which the documents helped establish by describing the county’s motivation for the
regulation.
Applying the Eleventh Circuit’s general rule to the instant case, the Court can only take
judicial notice of the fact that declarations were filed in the St. Petersburg case. The Court will
not take judicial notice of their contents.
Even if the Court did look to the contents of the St. Petersburg declarations, they still
would not conclusively establish any facts that would merit dismissal of this case. Defendant has
requested judicial notice not of what the St. Petersburg declarations do say but of what they do
not say. In effect, Defendant is asking the Court to take judicial notice of its assertion that, if
Plaintiffs had any accusations against the City of Gulfport, they would have made those
6
accusations as part of their declarations given against the City of St. Petersburg. That, however,
would require the Court to assume that Plaintiffs are unable to make any factual allegations
against Defendant Gulfport merely because Plaintiffs did not make those allegations in
declarations that were prepared and submitted in a separate case against a separate defendant.
Even if this Court took judicial notice of all of the facts in the St. Petersburg declarations—
which would be improper since they are not generally known or undisputed—those facts still
would not conclusively disprove Plaintiffs’ allegations against Gulfport.
B. Extrinsic Evidence Central to Plaintiffs’ Claims
Defendant also argues “that a district court may consider an extrinsic document even on
Rule 12(b)(6) review if it is (1) central to the plaintiff's claim, and (2) its authenticity is not
challenged.” United States ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th Cir. 2015)
(citing SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010)).
Documents deemed central to a plaintiff’s claim most often are contracts that establish the basis
for the plaintiff’s cause of action. See, e.g., SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600
F.3d 1334, 1337 (11th Cir. 2010) (affirming the district court’s consideration of terms and
conditions contained within certain account-opening documents referenced in the complaint in
the same case); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (concluding a dealership
contract was central to the plaintiffs’ claims where it was “a necessary part of their effort to
make out a claim that the relationship between U-Haul and its independent dealers is not a
genuine agency, but a sham agency,” and the issue was “at the very heart of the appellants' resale
price maintenance claim”).
Applying this rule, Defendant’s argument fails because, even though the St. Petersburg
declarations’ authenticity is not challenged, Defendant has not established that those declarations
are central to Plaintiffs’ claims in this case. Plaintiffs’ allegations against a different defendant in
7
a different, albeit related, case are not “a necessary part” of their ability to make a claim against
Defendant Gulfport nor are they “at the very heart” of their claims against Defendant Gulfport.
Although many of the claims made in the St. Petersburg declarations overlap with the claims
made in the Complaint in the instant case (which makes sense where part of the case against
Defendant Gulfport involves its contributions to the SSOs of St. Petersburg’s POTW facilities),
the individual members of Plaintiffs could provide separate declarations or other evidence in
support of their claims against Defendant Gulfport in this case without necessarily having to rely
on their declarations from the St. Petersburg case at all. This contrasts with the documents in
SFM Holdings and Day, where the contracts were referenced in the plaintiff’s complaints and
were absolutely necessary for making determinations about the relationships and terms they
established, since there was no other source of this information. Furthermore, as previously
discussed, even if the contents of the St. Petersburg declarations were considered in this case,
they would not establish that Defendant has not caused harm to Plaintiffs.
III.
Motion to Dismiss for Lack of Standing
In its other motion, Defendant moves to dismiss Plaintiffs’ complaint for lack of
standing. Specifically, Defendant argues: (1) OCEF’s claims should be dismissed with
prejudice because none of its individual members were named in the Complaint; and (2)
SCWK’s and ERF’s claims should be dismissed with prejudice because they have failed to
allege an actual injury that is fairly traceable to Defendant’s conduct.1 Accordingly, the
Court will address both arguments.
1
Defendant also argues that Plaintiffs should not be allowed to submit any declarations in this case in order to
establish standing, because they previously filed declarations in the St. Petersburg case. The Court rejects this
argument. Because the Court has denied Defendant’s request to take judicial notice of the St. Petersburg
declarations, Defendant has not submitted any evidence as to Plaintiffs’ lack of standing, and as such, Plaintiffs do
not need to submit any declarations in response at this time. Without evidence proffered by Defendant, the Court
considers Defendant’s attack to be a facial attack on Plaintiffs’ standing. If Defendant later pursues a factual attack
8
A. Standing
Defendant has challenged Plaintiffs’ standing to bring this suit. To satisfy the standing
requirements of Article III, a plaintiff must satisfy a three-part test, showing the following:
(1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S. Ct.
693, 704, 145 L. Ed. 2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61,
(1992)).
In evaluating a motion to dismiss based on lack of standing, the Court “must accept as
true all material allegations of the complaint, and must construe the complaint in favor of the
complaining party.” Kawa Orthodontics, LLP v. Sec., U.S. Dept. of the Treas., 773 F.3d 243, 245
(11th Cir. 2014) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). In addition, regarding a
Rule 12(b)(1) motion to dismiss for lack of standing, the defendant may move under a facial or
factual attack on the complaint, and this affects the scope of the Court’s review:
A defendant can move to dismiss a complaint under Rule 12(b)(1)
for lack of subject matter jurisdiction by either facial or factual
attack. “A facial attack on the complaint requires the court merely
to look and see if the plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in his complaint are
taken as true for the purposes of the motion.” By contrast, a factual
attack on a complaint challenges the existence of subject matter
jurisdiction using material extrinsic from the pleadings, such as
affidavits or testimony.
Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232–33 (11th Cir.
2008) (quoting McElmurray v. Consol. Gov't of Augusta–Richmond County, 501 F.3d 1244,
on Plaintiffs’ standing and submits evidence in support of its attack, the Court will allow Plaintiffs to submit
declarations in opposition.
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1251 (11th Cir. 2007)) (internal citations omitted). Notwithstanding the foregoing statement in
Kawa Orthodontics, the Eleventh Circuit elaborated on the differing level of review as follows:
These two forms of attack [facial versus factual] differ substantially.
On a facial attack, a plaintiff is afforded safeguards similar to those
provided in opposing a Rule 12(b)(6) motion—the court must
consider the allegations of the complaint to be true. . . . But when
the attack is factual, “the trial court may proceed as it never could
under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual
12(b)(1) motion is the trial court's jurisdiction—its very power to
hear the case—there is substantial authority that the trial court is free
to weigh the evidence and satisfy itself as to the existence of its
power to hear the case. In short, no presumptive truthfulness
attaches to plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims.”
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting Williamson v. Tucker, 645
F.2d 404, 412–13 (5th Cir.), cert. denied, 454 U.S. 897 (1981)).
Even so, when the defendant’s challenge to jurisdiction implicates the merits of the
claim, the court should find that jurisdiction exists and review under a summary judgment
standard:
“[T]he proper course of action . . . is to find that jurisdiction exists
and deal with the objection as a direct attack on the merits of the
plaintiff's case.”
.
.
.
When the jurisdictional basis of a claim is intertwined with the
merits, the district court should apply a Rule 56 summary judgment
standard when ruling on a motion to dismiss which asserts a factual
attack on subject matter jurisdiction.
Id. at 1529, 1530 (quoting Williamson, 645 F.2d at 415–16) (citing Eaton v. Dorchester
Development, Inc., 692 F.2d 727 (11th Cir. 1982); Chatham Condominium Ass'n v. Century
Village, Inc., 597 F.2d 1002, 1011 (5th Cir. 1979)). Under summary judgment review,
“[s]ummary judgment may be inappropriate even where the parties agree on the basic facts, but
10
disagree about the factual inferences that should be drawn from these facts . . . . If reasonable
minds might differ on the inferences arising from disputed facts, then the court should deny
summary judgment.” Impossible Electronics Techniques, Inc. v. Wackenhut Protective Sys. Inc.,
669 F.2d 1026, 1031 (5th Cir. Unit B 1982) (quoted in Lawrence, 919 F.2d at 1530).
In the instant case, Defendant attempts to assert both facial and factual attacks on
Plaintiffs’ standing. However, the only evidence proffered by Defendant for its factual attack are
the St. Petersburg declarations, for which Defendant asks this Court to take judicial notice. As
stated above, this Court denied Defendant’s request to take judicial notice of those declarations,
and as a result, the Court considers Defendant’s attack on Plaintiffs’ standing to be a facial attack
only.
B. OCEF’s Standing
Defendant argues that OCEF lacks standing in this case, because it has failed to name any
individual affected members within the Complaint. Defendant claims OCEF’s failure negates its
ability to prove that any of its members would be able to sue in their own right, as required to
establish organizational standing. However, Eleventh Circuit precedent indicates that it is not
necessary to name an individual member at the pleading stage. Because this challenge is facial,
“the court must consider the allegations of the complaint to be true.” Lawrence, 919 F.2d at
1529.
In addition to the standard elements of standing, organizations suing on behalf of their
members must meet three additional requirements to establish standing:
[A]n association has standing to bring suit on behalf of its members
when its members would otherwise have standing to sue in their own
right, the interests at stake are germane to the organization's purpose,
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and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.2
Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006) (citing Laidlaw, 528
U.S. at 181; Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1344 (11th Cir. 2005)). In the
Eleventh Circuit, associational plaintiffs are not required to demonstrate anything beyond this,
and the organization does not have to name individual plaintiffs on whose behalf the case was
brought:
These [three requirements of associational standing] are the sole
requirements. Accordingly, . . . an association may bring suit on
behalf of its members or constituents despite the fact that individual
members have not actually brought suit themselves. Nor must the
association name the members on whose behalf suit is brought. As
we have stated, “neither unusual circumstances, inability of
individual members to assert rights nor an explicit statement of
representation are requisites.”
Doe v. Stincer, 175 F.3d 879, 882 (11th Cir. 1999) (quoting Church of Scientology v. Cazares,
638 F.2d 1272, 1279 (5th Cir. 1981) (emphasis added)).3
This Court recognizes that the U.S. Supreme Court has stated that its cases “require[]
plaintiff-organizations to make specific allegations establishing that at least one identified
member had suffered or would suffer harm.” Summers v. Earth Island Inst., 555 U.S. 488, 498
(2009). However, the Court finds OCEF’s allegations sufficient at the pleading stage, since it
alleges that its members have been, are being, and will continue to be adversely affected by
Defendant’s failure to comply with the CWA. See Yount v. Salazar, No. CV11-8171-PCT DGC,
2
Defendant only challenges OCEF’s standing based on the first element—its members’ standing
to sue in their own right—but the other two elements are also met by OCEF: one of its
organizational purposes is to improve and protect the quality of Tampa Bay-area waterways, and
this suit does not require participation of any of OCEF’s individual members.
3
Although the plaintiffs in Stincer ultimately failed to establish standing, it was due to their
failures to allege any concrete injury or how a favorable decision would address their injuries—
not based on a failure to name individual plaintiffs.
12
2013 WL 93372, at *6 (D. Ariz. Jan. 8, 2013) (distinguishing Summers and—citing Stincer—
holding that “[t]he fact that [the plaintiff organization] NWMA has not specifically identified
these members does not deprive it of standing at the pleading stage”). However, based on
Summers, OCEF will be required to ultimately prove that at least one of its identified members
was injured by Defendant’s alleged CWA violations. If Defendant wishes to file another motion
to assert a factual attack on OCEF’s standing, the Court will allow OCEF to submit affidavits
supporting its allegations that at least one of its members has been, is being, and will continue to
be adversely affected by Defendant’s failure to comply with the CWA.
C. SCWK and ERF’s Standing
Next, Defendant argues that SCWK’s and ERF’s claims should be dismissed because
they have failed to allege an actual injury that is fairly traceable to Defendant’s conduct. As
explained below, the Court rejects this argument.4
Defendant’s argument on this issue relies on the contents of declarations offered in the St.
Petersburg case by individual members of SCWK and ERF. As previously discussed, reliance on
alleged facts from declarations in another case is improper, and moreover, Defendant’s
challenges are intertwined with the merits of whether Defendant discharged pollutants into the
waters in and around Gulfport in violation of the CWA, causing degradation to the quality of the
4
Although Defendant did not directly challenge SCWK and ERF’s standing based on the
element of redressability, the requisite standard has been met. Recognizing that civil penalties
generally have a deterrent effect—and that, particularly in CWA cases, penalties may deter
violations—the Court has found the element of redressability satisfied by the potential
imposition of CWA penalties. Laidlaw, 528 U.S. at 185 (citing Hudson v. United States, 522
U.S. 93, 102 (1997); Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 778
(1994)). Here, SCWK and ERF are seeking CWA penalties against Defendant and, thus, satisfy
the test.
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waters. Under this review, Defendant’s argument must be rejected, because these facts are still
disputed.
1. Injury
The U.S. Supreme Court has held that, in establishing standing, “environmental plaintiffs
adequately allege injury in fact when they aver that they use the affected area and are persons
‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged
activity.” Laidlaw, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972);
see also Tenn. Valley Auth., 430 F.3d at 1344 (citing Laidlaw, 528 U.S. at 183–84) (“In an
environmental case, an individual plaintiff may show . . . injury in fact[] by attesting that he uses,
or would use more frequently, an area affected by the alleged violations and that his aesthetic or
recreational interests in the area have been harmed.”).
In this case, Defendant argues that SCWK’s and ERF’s members’ injuries are “based on
conjecture and hypotheticals” because—relying on the contents of the declarations from the St.
Petersburg case rather than the allegations in the Complaint from the instant case—the claims
are based on SCWK’s and ERF’s members fears of future sewage spills and the harm they may
cause to Tampa Bay-area waterways. However, SCWK’s and ERF’s allegations in the Complaint
meet the requisite standard of attesting that their members do use, and would more frequently
use, their local waterways if not for Defendant’s alleged SSOs into those waterways. For
example, regarding SCWK member John Rice and his wife, the Complaint provides, “SSOs from
St. Petersburg (including those caused or contributed to by Gulfport) have caused them to lessen
the frequency and enjoyment of their fishing and recreation.” SCWK and ERF further have
averred their members’ aesthetic and recreational enjoyment has been lessened by Defendant’s
alleged SSOs into the water. For example, regarding ERF member Rachel Rosner, the Complaint
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states, “These red tide conditions [which Plaintiffs allege were caused or contributed to by
Defendant’s SSOs] substantially impaired her enjoyment of Sarasota beaches.” SCWK and ERF
have sufficiently pled an injury in fact, and at best, Defendant merely disputes these facts.
2.
Causation
To establish the causation element of standing in CWA cases, plaintiffs must only show
that the defendant contributes to the pollution that impairs their ability to use local waters for
recreation or aesthetic purposes:
[A] plaintiff need not prove that their injury can be traced to specific
molecules of pollution emitted by the alleged polluter. It is enough
that a plaintiff “‘show that a defendant discharges a pollutant that
causes or contributes to the kinds of injuries alleged’ in the specific
geographic area of concern.”
Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1280 (11th Cir.
2015) (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 161
(4th Cir. 2000) (en banc)) (affirming the district court’s finding, at the summary judgment stage,
that the plaintiffs had CWA standing against the Army Corps of Engineers where the agency had
granted a § 404 permit allowing mining operations to discharge dredge or fill material into the
river the plaintiffs used for recreational and other purposes). In Gaston Copper, the Fourth
Circuit further elaborated:
The “fairly traceable” requirement ensures that there is a genuine
nexus between a plaintiff's injury and a defendant's alleged illegal
conduct. But traceability “does not mean that plaintiffs must show
to a scientific certainty that defendant's effluent . . . caused the
precise harm suffered by the plaintiffs.” If scientific certainty were
the standard, then plaintiffs would be required to supply costly, strict
proof of causation to meet a threshold jurisdictional requirement—
even where, as here, the asserted cause of action does not itself
require such proof. Thus, the “fairly traceable” standard is “not
equivalent to a requirement of tort causation.” Other circuits have
refused to interpret it as such.
15
204 F. 3d at 161 (quoting Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974,
980 n. 7 (4th Cir. 1992)) (citing Lujan, 504 U.S. at 560; Sierra Club v. Cedar Point Oil Co., 73
F. 3d 546, 557 (5th Cir. 1996); Natural Resources Defense Council, Inc. v. Texaco Ref. & Mktg.,
Inc., 2 F. 3d 493, 505 (3d Cir. 1993); Public Interest Group of New Jersey, Inc. v. Powell
Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir. 1990)).
Defendant, again relying on the statements made by Plaintiffs’ members in their
declarations from the St. Petersburg case, claims that SCWK’s and ERF’s alleged injuries cannot
be traced to Defendant’s conduct because none of the members attributed their injuries to
Gulfport in those declarations. However, the proper standard requires the Court to look to the
allegations made in the Complaint, not to documents submitted in another case, as previously
stated. SCWK and ERF have sufficiently pled causation between Defendant’s SSOs and
SCWK’s and ERF’s members’ impaired enjoyment of local waterbodies. SCWK and ERF have
alleged that Defendant itself has discharged sewage into waterways used by their individual
members and that Defendant has contributed to SSOs in St. Petersburg because Defendant shares
its POTW systems. Through both of these allegations, SCWK and ERF have claimed that
Defendant has discharged the type of pollutant that causes or contributes to their reduced
enjoyment of the waters near and in Gulfport. Thus, SCWK and ERF have sufficiently pled
causation, and at best, Defendant merely disputes these facts.
IV.
Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1) Defendant’s Amended Motion to Dismiss (Doc. No. 22) is DENIED.
(2) Defendant’s Request for Judicial Notice (Doc. No. 21) is DENIED.
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DONE AND ORDERED at Tampa, Florida, this 1st day of May, 2017.
Copies to:
Counsel of Record
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