Monet v. State of Hawaii et al
Filing
34
ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS 19 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/7/11. (All remaining claims in this action are dismissed. Plaintiff may file a motion seeking leave to file an Amended Complai nt no later than August 1, 2011. "If Monet fails to timely file such a motion, the Clerk of Court is directed to automatically enter judgment in favor of Defendants and to close this case." ) (emt, ) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Sam Monet served by first class mail at the address of record on July 7, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SAM MONET,
Plaintiff,
vs.
STATE OF HAWAII;
HAWAII DEPARTMENT OF LAND AND
NATURAL RESOURCES;
WILLIAM AILA, DIRECTOR OF THE
DEPARTMENT OF LAND AND
NATURAL RESOURCES, in his
official capacity;
LORETTA J. FUDDY, ACTING
DIRECTOR OF THE DEPARTMENT OF
HEALTH, in her official
capacity;
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; and
LISA P. JACKSON, ADMINISTER
OF THE UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY, in her official
capacity,
Defendants.
_____________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIV. NO. 11-00211 SOM/RLP
ORDER GRANTING FEDERAL
DEFENDANTS’ MOTION TO DISMISS
ORDER GRANTING FEDERAL DEFENDANTS’ MOTION TO DISMISS
I.
INTRODUCTION.
Plaintiff Sam Monet, proceeding pro se, claims
violations of various environmental laws, including the Clean
Water Act, 33 U.S.C. §§ 1251-1387 (“CWA”), the Comprehensive
Environmental Response Compensation, and Liability Act, 42 U.S.C.
§§ 9601-9675 (“CERCLA”), and possibly the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11101-11050
(“EPCRA”).
This court has already dismissed Monet’s claims against
the State of Hawaii, the State of Hawaii Department of Land and
Natural Resources, William Aila, and Loretta J. Fuddy,
(collectively, “State Defendants”).
The remaining Defendants,
the United States Environmental Protection Agency (“EPA”) and
Lisa P. Jackson in her official capacity as Administrator of the
United States EPA (collectively, “Federal Defendants”), have
moved to dismiss Monet’s claims against them.
That motion is
granted without a hearing pursuant to Local Rule 7.2(d), which
gives this court discretion to rule on any motion without a
hearing.
II.
BACKGROUND.
The factual background for this case was previously set
forth in the court’s order dismissing Monet’s claims against the
State Defendants.
See ECF No. 25.
That background is
incorporated herein by reference.
III.
MOTION TO DISMISS STANDARD.
The various standards for motions to dismiss were
previously set forth in the court’s order dismissing Monet’s
claims against the State Defendants.
See ECF No. 25.
Those
standards are also incorporated herein by reference.
IV.
ANALYSIS.
The Federal Defendants move to dismiss the
environmental claims asserted against them, arguing that they
2
have sovereign immunity with respect to those claims.
To the
extent that the United States Government has waived its sovereign
immunity, the Federal Defendants argue that Monet has not
complied with notice prerequisites to filing suit.
The court
agrees and dismisses the claims against the Federal Defendants.
A.
The Federal Defendants Have Sovereign Immunity.
“The United States, as sovereign, is immune from suit
save as it consents to be sued . . ., and the terms of its
consent to be sued in any court define that court’s jurisdiction
to entertain the suit.”
538 (1980).
The Government’s waiver of sovereign immunity may
not be implied.
Id.
United States v. Mitchell, 445 U.S. 535,
Instead, it “must be unequivocally expressed.”
“The waiver of sovereign immunity is a prerequisite to
federal-court jurisdiction.”
Tobar v. United States, 639 F.3d
1191, 1195 (9th Cir. 2011); accord Alvarado v. Table Mountain
Rancheria, 509 F.3d 1008, 1015 (9th Cir. 2007) (“Sovereign
immunity limits a federal court’s subject matter jurisdiction
over actions brought against a sovereign.”).
The Federal Defendants argue that, to the extent the
Government has not waived its sovereign immunity, Monet may not
bring claims under the CWA, CERCLA, or EPCRA.
Monet’s Opposition
did not specifically address this argument, instead merely
arguing that he had valid claims.
The court agrees that, to the
extent Monet may be asserting claims not authorized by the
3
citizen suit provisions of the CWA, CERCLA, or EPCRA, the Federal
Defendants have sovereign immunity with respect to those claims.
B.
The CWA Citizen Suit Claims Against the Federal
Defendants Are Dismissed.
Monet brings a citizen suit against the Federal
Defendants for violations of the CWA pursuant to 33 U.S.C.
§ 1365(a)(1), which provides:
(a) Authorization; jurisdiction
Except as provided in subsection (b) of this
section and section 1319(g)(6) of this title,
any citizen may commence a civil action on
his own behalf-(1) against any person (including
(i) the United States, and (ii) any other
governmental instrumentality or agency to the
extent permitted by the eleventh amendment to
the Constitution) who is alleged to be in
violation of (A) an effluent standard or
limitation under this chapter or (B) an order
issued by the Administrator or a State with
respect to such a standard or limitation, . .
.
. . . .
The district courts shall have jurisdiction,
without regard to the amount in controversy
or the citizenship of the parties, to enforce
such an effluent standard or limitation, or
such an order, or to order the Administrator
to perform such act or duty, as the case may
be, and to apply any appropriate civil
penalties under section 1319(d) of this
title.
The Supreme Court has held that Congress waived federal
sovereign immunity via the citizen suit provision of the CWA.
See United States Dept. of Energy v. Ohio, 503 U.S. 607, 613-14
4
(1992); see also Sierra Club v. United States Environ. Protection
Agency, 475 F. Supp. 2d 29, 31 (D.D.C. 2007) (“The citizen-suit
provision of the CWA provides a limited waiver of sovereign
immunity for claims where there is alleged a failure of the EPA
Administrator to perform any act or duty under the this chapter
which is not discretionary with the Administrator.” (quotations
omitted)).
Notwithstanding this limited waiver of federal
sovereign immunity, and as noted in the court’s earlier order,
except for suits brought under 33 U.S.C. §§ 1316 and 1317a,
anyone filing a citizen suit under CWA must first send a notice
to the Administrator of the EPA, the state in which the violation
occurred, and to any alleged violator.
See 33 U.S.C.
§ 1365(b)(1)(A) (stating that no citizen suit may be commenced
under § 1365(a)(1) “(A) prior to sixty days after the plaintiff
has given notice of the alleged violation (i) to the
Administrator, (ii) to the State in which the alleged violation
occurs, and (iii) to any alleged violator of the standard,
limitation, or order”); 33 U.S.C. 1251(d) (defining
“Administrator” as used in the CWA as “the Administrator of the
Environmental Protection Agency”).
This 60-day notice
requirement is a “mandatory condition precedent to the filing of
a citizen suit under the Clean Water Act.”
Nat’l Environ. Found.
v. ABC Rail. Corp., 926 F.2d 1096, 1097 (11th Cir. 1991).
5
The
Complaint itself suggests that Monet has failed to comply with
the 60-day notice provision contained in the CWA, and the record
does not suggest such compliance.
Moreover, Monet fails to
identify a nondiscretionary act or duty that the Administrator of
the EPA did not perform such that the Government can be said to
have waived its sovereign immunity.
Monet has failed to demonstrate that jurisdiction
exists.
In opposing the Federal Defendants’ motion to dismiss,
Monet does not identify any document purporting to be the
required “notice.”
Even if the court considers the “Report of an
Environmental Violation” attached to the Complaint to be a
“notice” for purposes of the CWA, it is insufficient.
The CWA’s
implementing regulations describe the required contents of the
required notice:
Notice regarding an alleged violation of an
effluent standard or limitation or of an
order with respect thereto, shall include
sufficient information to permit the
recipient to identify the specific standard,
limitation, or order alleged to have been
violated, the activity alleged to constitute
a violation, the person or persons
responsible for the alleged violation, the
location of the alleged violation, the date
or dates of such violation, and the full
name, address, and telephone number of the
person giving notice.
40 C.F.R. § 135.3(a).
Although Monet’s “notice” complained that
the “boatyard” was a “superfund site,” it did not describe what
effluent standard or limitation was being violated.
6
See
Complaint, Ex. B, ECF No. 1-2.
The “notice” Monet attached to
his opposition to the State Defendants’ motion to dismiss, even
if considered here, was similarly deficient.
See ECF No. 16-1.
The insufficiency of the content of the “notice” requires
dismissal.
See Ctr. for Biological Diversity v. Marina Point
Dev. Co., 566 F.3d 794, 803-04 (9th Cir. 2009) (holding that a
district court lacked jurisdiction to adjudicate CWA claims when
CWA notices were insufficient).
This court lacks subject matter jurisdiction over
Monet’s CWA citizen suit claims against the Federal Defendants.
See Ctr. for Biological Diversity, 566 F.3d at 800; Waterkeepers
N. Cal. v. AG Indus. Mfg., 375 F.3d 913, 916 (9th Cir. 2004);
Wash. Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354-55 (9th
Cir. 1995).
Monet’s CWA claims must be dismissed.
See Swanson
v. U.S. Forest Serv., 87 F.3d 339 (9th Cir. 1996) (affirming
dismissal of CWA claims against all defendants when notice was
not sent to EPA); accord Allens Creek/Corbetts Glen Pres. Group
v. Caldera, 88 F. Supp 2d 77, 85 (W.D.N.Y. 2000).
C.
The CERCLA Citizen Suit Claims Against the Federal
Defendants Are Dismissed.
Congress enacted CERCLA “in response to the serious
environmental and health risks posed by industrial pollution.”
U.S. v. Bestfoods, 524 U.S. 51, 55 (1998).
The Supreme Court has
characterized CERCLA as “a comprehensive statute that grants the
President broad power to command government agencies and private
7
parties to clean up hazardous waste sites.”
Id. (quoting Key
Tronic Corp. v. U.S., 511 U.S. 809, 814 (1994)).
Like CWA, CERCLA allows citizen suits, stating with
exceptions not relevant here that:
any person may commence a civil action on his own
behalf-(1) against any person (including the United
States and any other governmental
instrumentality or agency, to the extent
permitted by the eleventh amendment to the
Constitution) who is alleged to be in
violation of any standard, regulation,
condition, requirement, or order which has
become effective pursuant to this chapter
(including any provision of an agreement
under section 9620 of this title, relating to
Federal facilities) . . . .
42 U.S.C. § 9659(a)(1).
Courts have construed CERCLA’s citizen
suit provision as a limited waiver of federal sovereign immunity
for claims asserted under it.
See, e.g., United States v.
Sensient Colors, Inc., 649 F. Supp. 2d 309, 331 (D.N.J. 2009).
Also like CWA, CERCLA requires notice of a violation to
be sent to the following at least 60 days before a citizen suit
can be filed pursuant to § 9659(a)(1):
(A) The President.
(B) The State in which the alleged violation
occurs.
(C) Any alleged violator of the standard,
regulation, condition, requirement, or order
concerned (including any provision of an
agreement under section 9620 of this title).
42 U.S.C. § 9659(d)(1).
Proper notice is necessary to give this
court subject matter jurisdiction over such a citizen suit.
8
See
Rennie v. T&L Oil Inc., 540 F. Supp. 2d 1198, 1202 (N.D. Okla.
2007); Frost v. Perry, 919 F. Supp. 1459, 1469 (D. Nev. 1996);
Pollution Control Indus. of Am., Inc. v. Reilly, 715 F. Supp 219,
221 (N.D. Ill. 1989).
Here, nothing in the record indicates that
the notice was provided to the President.
Accordingly, the
CERCLA citizen suit claims against the Federal Defendants are
dismissed.
D.
The EPCRA Citizen Suit Claims Against the Federal
Defendants Are Dismissed.
Because the Complaint only mentions EPCRA, it is
unclear whether Monet meant to assert a claim under it.
Even
construing the Complaint liberally as asserting such a claim
because Monet is pro se, any citizen suit claim under EPCRA
against the Federal Defendants must be dismissed for lack of
subject matter jurisdiction.
The Supreme Court has explained:
EPCRA establishes a framework of state,
regional, and local agencies designed to
inform the public about the presence of
hazardous and toxic chemicals, and to provide
for emergency response in the event of
health-threatening release. Central to its
operation are reporting requirements
compelling users of specified toxic and
hazardous chemicals to file annual “emergency
and hazardous chemical inventory forms” and
“toxic chemical release forms,” which
contain, inter alia, the name and location of
the facility, the name and quantity of the
chemical on hand, and, in the case of toxic
chemicals, the waste-disposal method employed
and the annual quantity released into each
environmental medium.
9
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 86-87
(1998).
Like CWA and CERCLA, EPCRA contains a citizen suit
provision.
See 42 U.S.C. § 11046(a)(1)(A)-(C).
But as with CWA
and CERCLA, at least 60 days before a citizen suit alleging an
EPCRA violation is filed, certain notices must be provided.
That
is, before a citizen suit against the Administrator of the EPA is
filed, prior notice is required.
See 42 U.S.C. § 11046(d)(2).
Failure to comply with the notice requirements for citizen suits
under EPCRA deprives this court of jurisdiction.
See Alt. States
Legal Found. v. United Musical Instruments, U.S.A., Inc., 61 F.3d
473, 478 (6th Cir. 1995); Hassain v. City of Chicago, 1999 WL
89612, *2 (N.D. Ill. Feb. 12, 1999).
Because noting in the
record suggests that proper notice was provided for the EPCRA
claims against the Federal Defendants, Monet’s citizen suit
claims under EPCRA are dismissed.
10
V.
CONCLUSION.
For the foregoing reasons, all of the remaining claims
in this action are dismissed.
Because Monet is proceeding pro
se, the court invites him to file a motion seeking leave to file
an Amended Complaint no later than August 1, 2011.
Any such
motion must attach the proposed Amended Complaint.
If Monet
fails to timely file such a motion, the Clerk of Court is
directed to automatically enter judgment in favor of Defendants
and to close this case.
The court cautions Monet, however, that
he may not salvage his CWA, CERCLA, or EPCRA claims by now
sending out proper notices while this action is pending, as the
notices were required before the suit was filed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 7, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Monet v. State of Hawaii, et al., Civil No. 11-00211 SOM/BMK; ORDER GRANTING FEDERAL
DEFENDANTS’ MOTION TO DISMISS
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?