Fitzgibbons et al v. Cook and Thorburn County Drainage Districts et al

Filing 26

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

S H E IL A FITZGIBBONS, RICHARD ELLISON, and AQUATIC SPORTS, LTD., P l a i n t if f s , F ile No. 1:08-CV-165 v. H O N . ROBERT HOLMES BELL T H E COOK AND THORBURN AND HANCOCK COUNTY DRAINAGE DISTRICTS, and the INGHAM COUNTY D R A I N COMMISSIONER PATRICK E. L IN D E M A N N , D e f e n d a n ts . / OPINION T h is matter is before the Court on Defendants' motion to dismiss pursuant to Rules 1 2 (b )(1 ) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 11.) Plaintiffs filed a response to Defendants' motion to dismiss (Dkt. No. 16), and Defendants filed a reply to P la in tif f s' response. (Dkt. No. 18.) The Court heard oral argument on November 13, 2008, a n d permitted the parties to submit supplemental briefs within fourteen days. Both Plaintiffs ( D k t . No. 24) and Defendants (Dkt. No. 22) submitted supplemental briefs. Defendants argue three bases for dismissal of Plaintiffs' claims: (1) lack of subject m a tte r jurisdiction for failure of Plaintiffs to comply with the jurisdictional prerequisites of 3 3 U.S.C. § 1365, (2) failure to state a claim for which relief can be granted in Count I of

P la in tif f s' complaint due to failure to allege a "discharge" into "navigable waters of the U n ite d States" from a "point source" as required by the Federal Clean Water Act, 33 U.S.C. 1 2 5 1 et seq. ("CWA"), and (3) failure to state a claim for which relief can be granted in C o u n ts II and III of Plaintiffs' complaint due to governmental immunity. For the reasons d is c u ss e d herein, Defendants' motion to dismiss shall be granted for lack of subject matter ju r is d ic tio n . I. Plaintiffs own and operate a scuba-diving business on a body of water known as " C e d a r Lake." According to Plaintiffs, in 2003, Defendant Ingham County Drain

C o m m iss io n e r realigned certain drains in the Cook and Thorburn and Hancock County D ra in a g e Districts, causing them to discharge into Cedar Lake. Plaintiffs allege that this d ra in a g e has resulted in degradation in the quality of the water in Cedar Lake. As a result, P la in t if f s claim that they are no longer able to use the lake for the operation of their business a n d have suffered damages. Plaintiffs provided notice to Defendant Ingham County Drain Commissioner (" C o m m is s io n e r" ) of their intent to sue pursuant to the citizen-suit provisions of the CWA b y letter dated October 13, 2007.1 The notice letter stated, in part: [ T ] h e Cook and Thorburn County Drainage Districts, under the jurisdiction of the

Defendants submitted the notice letter as an attachment to their brief in support of their motion to dismiss. (Dkt. No. 15, Defs.'Br. in Supp. of Mot. to Dismiss, Ex. D.) Plaintiffs acknowledge that this letter constitutes the notice that Plaintiffs provided. (Dkt. No. 17, Pls.' Br. in Opp'n to Mot. to Dismiss 8.) 2

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In g h a m County Drain Commissioner, (hereinafter collectively referred to as " C o m m is s io n e r" ) are engaged in operations directly resulting in numerous discharges o f pollutants into the waters of the United States in violation of the Federal Water P o llu tio n Control Act, 33 U.S.C. §§ 1251-1376 (hereinafter "CWA") . Spec ifica lly, the Commissioner has violated the CWA by discharging, from numerous p o in t sources throughout the Cedar Lake watershed, pollutants into the waters of the U n ite d States without having either applied for or obtained the requisite National P o llu ta n t Discharge Elimination System ("NPDES") permits. . . . U n d e r the CWA, it is unlawful to discharge pollutants from a "point source" to n a v ig a b le waters without obtaining and complying with a permit governing the q u a n tity and quality of discharges. . . . Section 301(a) of the Clean Water Act p ro h ib its "the discharge of any pollutants by any person . . ." except as in compliance w ith , among other sections of the Act, Section 402, the NPDES permitting re q u ir e m e n ts . . . . T h e Commissioner has never applied for any NPDES permits that govern the d is c h a rg e of nitrogen, phosphorous, nutrients, sediment, debris, pesticides, and other p o llu ta n ts from those point sources to Cedar Lake. Nor has the Commissioner been is s u e d any such NPDES permits . . . . The Commissioner's failure to apply for the necessary NPDES permits has resulted in over 1,381 violations by the Commissioner of the CWA since January 1, 2004. . . . [Plaintiffs] will allege that the Commissioner has been and continues to be required to apply for a NPDES permit for actual and potential discharges of pollutants into the C e d a r Lake watershed. The Commissioner has violated the duty to apply for and has f a ile d to obtain or receive the requisite NPDES discharge permit for point sources w ith i n the Cedar Lake watershed every day for at least the last three (3) and 3/4 years, o r on 1,381 separate occasions. In addition to violation of its duty to apply for an NPDES permit, the Commissioner is also in violation of Section 301's prohibition on discharges of pollutants from point so u rc e s into Cedar Lake without having first obtained the requisite NPDES permit. . . . This notice of intent to sue puts the Commissioner on notice that [Plaintiffs] a lle g e [] that the Commissioner has violated Section 301(a) on at least 1,381 days for e a c h and every point source within the Cedar Lake watershed. . . . (Dkt. No. 12, Ex. D.)

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B y reply letter dated November 6, 2007, counsel for the Commissioner notified P la in tif f s that, among other things, "on November 6, 2003 the EPA provided the [Ingham C o u n ty Drain Commissioner ("ICDC")] a Certificate of Coverage under NPDES General P e r m i t No. MIG619000" pursuant to which the ICDC "is authorized `to discharge storm w a te r through a separate storm water drainage system to waters of the state.'" (Dkt. No. 12, E x . E.) O n February 20, 2008, Plaintiffs filed its complaint seeking injunctive relief and d a m a g e s , based on three counts: (1) violation of the CWA, (2) nuisance (including public and p riv a te nuisance, nuisance per se, nuisance in fact, and trespass-nuisance), and (3) trespass to land. (Dkt. No. 1, Compl.) II. A . Count I - Subject Matter Jurisdiction and Failure to State a Claim D e f e n d a n ts argue that the Court should dismiss Count I of Plaintiffs' complaint, v io la tio n of the CWA, for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 1 2 (b )(1 ) and for failure to state a claim for which relief can be granted pursuant to Fed. R. C iv . P. 12(b)(6). Defendants argue that (1) the Court lacks subject matter jurisdiction for C o u n t I of the complaint because Plaintiffs have not satisfied the jurisdictional prerequisite o f the CWA to provide notice of the alleged violation, and (2) Count I of the complaint fails to state a claim for which relief can be granted because Plaintiffs have not properly alleged th a t the violation of the CWA at issue involves a "discharge" from a "point source" into a

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" n a v ig a b le water of the United States." Defendants also argue that Counts II and III of the c o m p la in t are not valid because Defendants are immune from tort liability. The issue of s u b je c t matter jurisdiction must be decided before the Court can determine whether the c la im s are valid. Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th C ir. 1990). A court must dismiss an action when it appears that the court lacks jurisdiction. Fed. R . Civ. P. 12(h)(3). When the defendant challenges subject matter jurisdiction, the plaintiff b e a r s the burden of establishing jurisdiction. Moir, 895 F.2d at 269. Plaintiffs' burden to e s ta b lis h federal question jurisdiction and survive a motion to dismiss under Fed. R. Civ. P. 1 2 (b )(1 ) is "not onerous," as Plaintiffs need only show that "the complaint alleges a claim u n d e r federal law, and that the claim is `substantial.'" Metro Hydroelectric Co. v. Metro P a r k s, 541 F.3d 605, 610 (6th Cir. 2008) (quoting Musson Theatrical, Inc. v. Fed. Express C o r p ., 89 F.3d 1244, 1248 (6th Cir. 1996)). A federal claim is substantial "`unless prior d e c is io n s inescapably render [it] frivolous.'" Id. Plaintiffs can survive the motion to dismiss b y showing "any arguable basis in law" for the claims in the complaint. Id. Moreover, "the c o u rt is empowered to resolve factual disputes when subject matter jurisdiction is c h a lle n g e d ." Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007). P la in tif f s' sole asserted basis for federal question jurisdiction is the citizen-suit provision of th e CWA, 33 U.S.C. § 1365.2

The Sixth Circuit has recognized that there is no basis for federal jurisdiction under the CWA for a private right of action outside of § 1365. Bd. of Trustees v. City of Painesville, 200 F.3d 396, 400 (6th Cir. 1999). 5

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D e f en d a n ts argue that Plaintiffs have not satisfied the jurisdictional requirements of th e citizen-suit provision of the CWA because they have not provided Defendants with the n o tic e required under 33 U.S.C. § 1365. Federal district courts have jurisdiction over citizen su its enforcing the CWA pursuant to 33 U.S.C. § 1365(a), which provides, in relevant part: E x c e p t as provided in subsection (b) of this section . . . 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 in s tru m e n ta lity or agency to the extent permitted by the eleventh amendment to the C o n s titu tio n ) who is alleged to be in violation of (A) an effluent standard or limitation u n d e r this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . . T h e district courts shall have jurisdiction, without regard to the amount in controversy o r the citizenship of the parties, to enforce such an effluent standard or limitation, or s u c h an order, or to order the Administrator to perform such act or duty, as the case m a y be, and to apply any appropriate civil penalties under section 1319(d) of this title. Id . In order to bring such a "civil action," however, the citizen-plaintiff must satisfy the re q u ire m e n t in § 1365(b) to give "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 sta n d a rd , limitation, or order . . . ." 33 U.S.C. § 1365(b). The requirements for the contents o f the notice are as follows: N o tic e regarding an alleged violation of an effluent standard or limitation or of an o rd e r 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 a c tiv ity alleged to constitute a violation, the person or persons responsible for the a lle g e d violation, the location of the alleged violation, the date or dates of such v io la tio n , and the full name, address, and telephone number of the person giving n o tic e .

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4 0 C.F.R. § 135.3; see 33 U.S.C. § 1365(b) ("Notice under this subsection shall be given in s u c h manner as the Administrator shall prescribe by regulation."). This notice requirement is considered a "jurisdictional prerequisite" requiring dismissal of the claim if the re q u ire m e n t is not satisfied. City of Painesville, 200 F.3d at 400; see Hallstrom v. Tillamook C o u n ty , 493 U.S. 20, 33 (1989) (requiring dismissal for noncompliance with the timing re q u ire m e n ts of a similar notice provision in the Resource Conservation and Recovery Act o f 1976, 42 U.S.C. § 6972 ("RCRA")). T h e purpose of the notice requirement is to "allow Government agencies to take re sp o n s ib ility for enforcing environmental regulations, thus obviating the need for citizen s u its ." Hallstrom, 493 U.S. at 29. In addition, "notice gives the alleged violator `an o p p o rtu n ity to bring itself into complete compliance with the Act and thus likewise render u n n e c es s a ry a citizen suit.'" Id. (quoting Gwaltney of Smithfield, Inc. v. Chesapeake Bay F o u n d ., Inc., 484 U.S. 49, 60 (1987)). Defendants argue that the notice letter is insufficient because it notified Defendants o f a violation of the CWA for not applying for or obtaining an NPDES permit. In contrast, th e complaint alleges that Defendants violated the CWA by violating an existing NPDES p e r m it. In particular, the complaint alleges that Defendants "failed to employ [best

m a n a g em e n t practices] pursuant to a [maximum extent practicable] standard, as required by th e effluent limitations contained within [the permit]" and that Defendants have "effectively v io la te d " the permit by violating certain Michigan water quality standards. (Compl. ¶¶ 181-

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8 4 .) Plaintiffs acknowledge that the notice letter contained "inaccurate allegations," but a r g u e that the notice was sufficient because it contained "substantially or all of the express re q u ire m e n ts" of 35 U.S.C. § 1365(b)(1) and 40 C.F.R. § 135.3. (Pls.' Resp. to Mot. to D is m is s 3.) T h e parties disagree as to the legal standard applicable to the contents of a notice u n d e r § 1365. Plaintiffs argue that such notices are adequate if, despite any technical nonc o m p lia n c e, they have provided "substantially complete, if not complete" notice to the a p p ro p ria te parties, citing National Wildlife Federation v. Consumers Power Co., 657 F. S u p p . 989, 998 (W.D. Mich. 1987), rev'd on other grounds 862 F.2d 580 (6th Cir. 1988). D e f en d a n ts respond that the standard in National Wildlife Federation is not consistent with s u b s e q u e n t rulings by the Supreme Court, in Hallstrom, and by the Sixth Circuit Court of A p p e a ls decisions interpreting Hallstrom, such as Atlantic States Legal Foundation, Inc. v. U n ite d Musical Instruments, U.S.A., Inc., 61 F.3d 473 (6th Cir. 1995). Defendants argue that th e se latter decisions require "strict" compliance with the requirements of § 1365, an a p p ro a c h contrary to the holding in National Wildlife Federation. In National Wildlife Federation, the plaintiff sent a letter notifying the defendant of its intent to sue for "discharging pollutants . . . without a permit . . . in violation of § 301(a) o f the Clean Water Act." Nat'l Wildlife Federation, 657 F. Supp. at 998. The court held that, "although it could have been more specific, the notice satisfied the regulatory re q u ire m e n ts ." Id. Because plaintiff's notice was "timely and substantially complete, if not

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c o m p le te ," and because "plaintiff has sufficiently alleged and established the actual notice th a t the statute and the regulations require" the court held that plaintiff had complied with th e notice requirements of § 1365. Id. Plaintiffs assert that their notice letter is sufficient b e c a u s e , like the notice in National Wildlife Federation of a violation of section 301(a), P la in tif f s ' letter notified Defendants that they were in violation of the CWA generally, ref erring to the second paragraph of the notice letter which states that Defendants were re sp o n sib le for "numerous discharges of pollutants into the waters of the United States in v io latio n of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 . . . ." (Dkt. N o . 12, Ex. D.) However, even if this Court were to accept that a general notice of a v i o la tio n of "Section 301(a)" of the CWA is sufficient, as the court found in National W ild life Federation, the second paragraph of Plaintiffs' notice cites the CWA generally, w ith o u t additional specificity. Providing a general notice of a violation of the CWA does not p ro v id e "sufficient information to permit the recipient to identify the specific standard, lim ita t io n , or order alleged to have been violated . . ." 40 C.F.R. § 135.3 (emphasis added). M o re o v e r, unlike National Wildlife Federation, this is not a case where the plaintiffs p ro v id e d a non-specific notice of violation of the CWA and later asserted more specific c la im s in their complaint that were consistent with the notice. After making a passing re f e re n c e to the CWA generally, the rest of Plaintiffs' notice letter focuses on a specific v io la tio n of the CWA, i.e. the discharge of pollutants without applying for or obtaining a N a tio n a l Pollutant Discharge Elimination System ("NPDES") permit as required under 33

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U .S .C . § 1311. In contrast, Plaintiffs' complaint focuses on an entirely different claim, v i o la tio n of the NPDES permit issued to Defendants. There is no suggestion in Plaintiffs' n o tic e letter of an intent to sue for violation of an existing NPDES permit; there is no m e n tio n in the notice letter of violation of water quality standards (Compl.¶¶ 183-84), or of f a ilu re to implement "best management practices" under a "maximum extent practicable" s ta n d a rd (Compl. ¶¶ 180-81). Thus, even under the standard set forth in National Wildlife F e d e ra tio n , Plaintiffs' notice letter fails to satisfy the requirements of § 1365; Plaintiffs' n o tice was not even a "substantially complete" notice of violation of the NPDES permit held b y Defendants. T h e opinions in Hallstrom and United Musical Instruments provide additional grounds f o r finding that Plaintiffs' notice letter is insufficient. In Hallstrom, the Supreme Court a n a lyz e d a similar 60-day notice provision in the Resource Conservatory and Recovery Act o f 1976, 42 U.S.C. § 6972 ("RCRA").3 Hallstrom, 493 U.S. at 20. The Supreme Court held th a t a court did not have discretion to retain an action where the plaintiff has not complied w ith the 60-day notice requirement. Id. at 33. The statutory notice provisions must be in te rp re te d strictly in accordance with their terms, and a court must dismiss the action if the p la in tif f has not complied. Id. Thus, where the plaintiffs provided notice to the defendants

The citizen-suit notice provision in the RCRA at issue in Hallstrom is substantively the same as the notice provision in the CWA. Frilling v. Village of Anna, 924 F. Supp. 821, 832 (S.D. Ohio 1996); see Hallstrom, 493 U.S. at 23 n.1 (the RCRA and the CWA notice provisions were modeled after the notice provision in the Clean Air Act, 42 U.S.C. § 7604); Greene v. Reilly, 956 F.2d 593, 594 (6th Cir. 1992) (applying the holding of Hallstrom to the CWA). 10

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le ss than sixty days before filing its court action, the district court was required to dismiss the a c tio n . Id. at 23-24. In United Musical Instruments, the Sixth Circuit applied the holding of Hallstrom to d is m is s a claim based on the citizen-suit notice provision in the Emergency Planning and C o m m u n ity Right-to-Know Act of 1986, 42 U.S.C. §§ 11001-11050 ("EPCRA").4 United M u sic a l Instruments, 61 F.3d at 473. The notice at issue in United Musical Instruments m e n tio n e d violations occurring in the years 1987-1990, as well as other "violations not yet k n o w n ." Id. at 478. In the complaint, however, the plaintiff included a violation occurring in 1991. Id. The Sixth Circuit held that the district court did not have jurisdiction over the 1 9 9 1 violation because notice of "violations not yet known" was not sufficient. Id. The c o u rt reasoned that: O n e of the important purposes of the notice requirement under environmental statutes is to facilitate "dispute resolution by EPA negotiation [and thereby] reduce the volume o f costly litigation." . . . Here, [plaintiff's] failure to include the 1991 violation in its n o tic e may have contributed to the EPA's decision not to act. Moreover, the vague w a rn in g of other possible claims failed to inform [defendant] of the additional alleged v io la tio n or even the specific EPCRA reporting requirement involved. Id . at 478 (quoting Walls v. Waste Resource Corp., 761 F.2d 311, 317 (6th Cir. 1985)) (c ita tio n s omitted; emphasis added). Plaintiffs contend that the notice letter provided D e f en d a n ts with notice of the activities alleged to be a violation, the location of the alleged

The citizen-suit notice provision in the EPCRA is substantively the same as the notice provision in the CWA. Frilling v. Village of Anna, 924 F. Supp. 821, 832 (S.D. Ohio 1996); see Hallstrom, 493 U.S. at 23 n.1 (the EPCRA and the CWA notice provisions were modeled after the notice provision in the Clean Air Act, 42 U.S.C. § 7604). 11

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v io la tio n , and the relevant dates, and that "by constructive implication" Defendants "knew o r should have known" that what Plaintiffs meant is that Defendants were violating their N P D E S permit. (Dkt. No. 17, Pls.' Br. in Opp'n to Mot. to Dismiss 10.) However, c o n s tru c tiv e notice is not sufficient. Walls, 761 F.2d at 317. See also Greene, 956 F.2d at 5 9 4 (notice of the alleged violations is not sufficient without notice of intent to sue). M o r e o v e r , Plaintiffs' repeated and admittedly incorrect allegations in the notice that D e f e n d a n ts did not have an NPDES permit for the type of discharges at issue, in addition to the failure to specify any violations of that permit in the notice, may have, as the court re a so n e d in United Musical Instruments, contributed to any failure by Defendants, or by the E P A , to address any possible issues related to such discharges. To allow Plaintiffs to proceed in this action would thwart the purpose of the notice requirement to give Defendants an o p p o rtu n ity to rectify any violations of the NPDES permit alleged in the complaint. See H a lls tr o m , 493 U.S. at 29 (identifying the purpose of such notice requirements). F in a lly, the court in United Musical Instruments indicated that the notice in that case w a s not sufficient, in part, because it did not identify the "specific [statutory] requirement in v o lv e d ." United Musical Instruments, 61 F.3d at 478. The Court notes that there is d isa g re e m e n t among the courts as to how specific a notice letter must be with respect to p ro v id in g "sufficient information to permit the recipient to identify the specific standard, lim ita tio n , or order alleged to have been violated," as required by 40 C.F.R. § 135.3. C o m p a r e Frilling v. Village of Anna, 924 F. Supp. 821, 833 (S.D. Ohio 1996) (holding that

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U n ite d Musical Instruments requires that "plaintiffs bringing suit under 33 U.S.C. § 1365 m u s t provide notice of the specific limitations, standards, or orders alleged to be violated") w ith Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc., 50 F.3d 1239, 1 2 5 1 -52 (3d Cir. 1995) (holding that notice of violations of "the same type" or that are "d irec tly related" is sufficient); Carney v. Gordon County, No. CIVA 4:06CV36 RLV, 2006 W L 4347048, at *3-4 (N.D. Ga. Sept. 12, 2006) (holding that a notice alleging that either a p e rm it has not been obtained or it is being violated is sufficient because "40 C.F.R. § 135.3 . . . itself uses the language `sufficient information to permit the recipient to identify the sp ec ific standard, limitation, or order alleged to have been violated,' etc. (emphasis added). T h u s , even strict compliance would seem not to require specific information as to the alleged v io la tio n ." ). In Sierra Club Ohio Chapter v. City of Columbus, 282 F. Supp. 2d 756 (S.D. O h io 2003), the district court found that a notice given pursuant to the CWA was insufficient w h ere it did not specify "which of the five subparagraphs [of the NPDES permit] is or are a lle g e d to have been violated." Id. at 768. Under the facts of the instant case, however, it is not necessary for the Court to resolve this issue. The Court finds that Plaintiffs' notice is n o t sufficient because it notified Defendants of one violation (failure to apply for or obtain a n NPDES permit), but Plaintiffs sued Defendants for another (violation of an existing N P D E S permit). This does not satisfy the requirements of § 1365 and 40 C.F.R. § 135.3, u n d er either National Wildlife Federation or United Musical Instruments. Because Plaintiffs d i d not comply with the notice requirements of § 1365 of the CWA, the Court must dismiss C o u n t I of Plaintiffs' complaint. Hallstrom, 493 U.S. at 33.

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D e f e n d a n ts asserted other grounds for dismissal of Count I of Plaintiffs' complaint, s u c h as failure to state a claim for which relief can be granted. Because the Court is d i sm is s in g Count I for the reasons stated, the Court declines to rule on those grounds. B . Counts II and III In Counts II and III, Plaintiffs have asserted state law claims of trespass and nuisance. H a v i n g found that the Court does not have subject matter jurisdiction over Count I of the co m p lain t, the Court discerns no basis for which it has original jurisdiction over Counts II a n d III, and declines to exercise supplemental jurisdiction over these claims. 28 U.S.C. § 1367(c)(3); Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 583 (6th Cir. 2007).

Dated: December 8, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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