Rogue Advocates v. Mountain View Paving, Inc

Filing 30

Opinion and Order on Motion to Dismiss 25 . As a reminder on the Motion for Preliminary Injunction 6 , the Defendant's opposition is due by December 23, 2015. Plaintiff's optional reply brief is due by January 7, 2016. An in-person hearing is scheduled for January 14, 2016 at 10 AM. Ordered and Signed on 12/07/2015 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

ROGUE ADVOCATES, an Oregon nonProfit membership corporation,

Plaintiff,

Case No. 1: 15-cv-0 1854-CL

ORDER

V.

MOUNTAIN VIEW PAVING, INC., an
Oregon corporation,

Defendant.

CLARKE, Magistrate Judge.
Defendant Mountain View Paving, Inc. ("Defendant") is an asphalt batching plant and
paving business located in Talent, Oregon. Plaintiff Rogue Advocates ("Plaintiff') is a non-profit
with members who live, work, and spend time near Defendant's operation. On September 30,
2015, Plaintiff filed the present citizen suit against Defendant alleging that it is operating in
violation of the Clean Air Act (the "CAA''). On October 21, 2015, Plaintiff filed a Motion for
Preliminary Injunction (#6) prohibiting Defendant from operating at its current location. The
Court has postponed briefing deadlines for Plaintiffs motion in order to address the threshold
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issue of jurisdiction. Defendant moves the Court to dismiss Plaintiffs case for lack of subjectmatter jurisdiction or, alternatively, to abstain in deference to state proceedings. Because
Plaintiff's claim falls within the Court's jurisdiction and abstention is not necessary, Defendant's
motion (#25) is DENIED.

BACKGROUND
Defendant qualifies as an air contaminant "source" under the CAA. Compl.

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16. It

operates under a General Air Contaminant Discharge Permit issued by the Oregon Department of
Environmental Quality ("DEQ"). Compl.

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17. The standards and limitations set forth in

Defendant's permit are enforceable requirements of the CAA. 40 C.F.R. § 52.1988. Violations of
the permit's terms are considered violations of the CAA itself, and are subject to enforcement
under the federal statute's citizen suit provision. Compl.

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24.

Condition 1.4 ofDefendant's CAA permit provides:
This permit is not valid . . . at any location where the operation of the
permitee' s processes, activities, and insignificant activities would be in
violation of any local land use or zoning laws .... It is the permitee's sole
responsibility to obtain local land use approvals as, or where, applicable
before operating this facility at any location.
Compl. Ex. B, at 2. The local land use laws applicable to Defendant- and thus incorporated
into its CAA permit through condition 1.4 Development Ordinance ("LDO"). Compl.

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are found in the Jackson County Land

20. The LDO provides that it is a violation of local

law to "[ u]se land ... or conduct any activity on land, in any manner not in accordance with the
standards set forth in [the LDO]" or to "[ c]onduct, without a permit, any activity for which a
permit is required by [the LDO]." LDO 1.8.1.
Defendant has operated its asphalt batch plant at 530 West Valley View Road, Talent,
Oregon 97540 since 2001. Compl.

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11, 26. The subject property is zoned for rural residential

development; industrial uses, like asphalt batch plants, are not allowed. Compl.

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26. Defendant

has not acquired special authorization to operate in the residential zone. Compl.

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27. The

property is also located within the floodplain of a tributary to the Rogue River, Bear Creek.
Compl.

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30. Defendant does not have a Floodplain Development Permit. Compl.

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31. Because

Defendant does not have authorization to operate in a residential zone or floodplain, Plaintiff
asserts it is violating local land use law and condition 1.4 of its CAA permit.
Since 2011, Defendant has submitted multiple applications to Jackson County for
approval of its operation within a residential zone. Compl.
been approved. Compl.

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28. None of those applications have

28. Most recently, on September 24, 2015, the County's Hearing

Officer denied Defendant's application to be considered a lawful alteration of a preceding non1

conforming concrete batch plant use. Rothermich Dec!. Ex. J, at 41-42. On October 13, 2015,
Defendant appealed to Oregon's Land Use Board of Appeals ("LUBA"). R.othermich Dec!. Ex.
K. On Defendant's motion, LUBA stayed enforcement of the Hearing Officer's denial for the
pendency of the appeal on the grounds that Defendant had established a colorable claim of error
and shown that it would suffer irreparable injury if the stay was not granted. Rothermich Dec!.
Ex. L, at 14. LUBA has not yet ruled on the matter. Defendant cannot apply for a f1oodplain
permit until and unless it acquires approval of its nonconforming industrial use. Rothermich
Dec!. Ex. F, at 9.

LEGAL STANDARD
Where the Court lacks subject-matter jurisdiction, the action must be dismissed. FED. R.
Crv. P. 12(b)(l). "[W]hen considering a motion to dismiss pursuant to Rule 12(b)(l) the district
court is not restricted to the face of the pleadings, but may review any evidence, such as
affidavits and testimony, to resolve factual disputes concerning -the existence of jurisdiction."
1

The at-issue property has been used for batching operations since 1963. Rotherrnich Dec!. Ex. B, at 21.

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"

i\lfcCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988); FED. R. Crv. P. 12(d). The plaintiff
bears the burden of proving the Court has subject matter jurisdiction. Prescott v. United States,
973 F .2d 696, 701 (9th Cir. 1992).
DISCUSSION
Plaintiff alleges that Defendant has violated and is currently violating its CAA permit by
operating without required local land use approvals. Defendant requests dismissal of this case on
four separate grounds. It asserts that this Court lacks subject-maner jurisdiction and,
alternatively, invokes the doctrines of ripeness, Burford abstention, and Colorado River
abstention. At the heart of Defendant's motion is the concern that this Court would preempt land
use proceedings pending before LUBA if it proceeded forward with Plaintiffs CAA action.

I.

The Court has Jurisdiction over Plaintiff's CAA Citizen Enforcement Action.
Plaintiff brings this suit pursuant to the CAA' s citizen suit provision, which allows "any

person" to "commence a civil action on his own behalf ... against any person ... who is alleged
to have violated ... or to be in violation of ... an emission standard or limitation[.]" 42 U.S.C. §
7604(a)(l y "Emission standard or limitation" is defined broadly to include "any other standard,
limitation, or schedule established under any permit issued ... under any applicable State
implementation plan approved by the Administrator, any permit term or condition, and any
requirement to obtain a permit as a condition of operations." 42 U.S.C. § 7604(£)(4). Plaintiffs
complaint fits squarely within this definition. It claims that Defendant is operating in violation of
a permit condition.
There is no dispute that Plaintiff satisfied the two statutory prerequisites for a citizen suit.
First, the CAA requires a citizen to give notice of a violation to the Environmental Protection
Agency ("EPA"), DEQ, and the alleged violator at least 60 days prior to filing suit. 42 U.S.C. §

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7604(b)(l)(A); Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th
Cir. 2009) (describing the Clean Water Act's similar notice provision as "a jurisdictional
necessity."). Plaintiff notified Defendant of its intent to sue more than seven months before
commencing this action. Compl. Ex. A. Second, a citizen suit is not permitted "if the
Administrator or State has commenced and is diligently prosecuting a civil action ... to require
compliance with the standard, limitation, or order[.]" 42 U.S.C. § 7604(b)(1)(B); see also Ctr.

for Biological Diversity, 566 F .3d at 800 (explaining that citizen suits are only proper if federal,
state, and local agencies fail to enforce). Neither EPA nor the DEQ is prosecuting Defendant.
Because Plaintiffs allegations fit within 42 U.S.C. § 7604(a)(1) and Plaintiff has met the
two preconditions to suit, the CAA expressly confers jurisdiction to this Court. 42 U.S.C. §
7604(a) ("The district courts shall have jurisdiction, without regard to the amount in controversy
or the citizenship of the parties, to enforce such an emission standard or limitation .... ").
Nevertheless, Defendant asserts dismissal is appropriate because this action turns on a local land
use decision over which LUBA has exclusive jurisdiction. Or. Rev. Stat. § 197.825(1)("[T]he
Land Use Board of Appeals shall have exclusive jurisdiction to review any land use decision or
limited land use decision of a local government, special district or a state agency in the manner
provided in ORS 197.830 to 197.845."). Defendant argues that Plaintiff is attempting to
unlawfully short-circuit state processes by bringing the present federal action.
The Court disagrees with Defendant's analysis. First, this Court's jurisdiction is not
invalidated because Plaintiffs CAA claim implicates state and local law. Indeed, the CAA
encourages this overlap. 42 U.S.C. § 7402(a) (explicitly requiring the federal government to
facilitate "cooperative activities by the States and local governments for the prevention and
control of air pollution[.]"). It "creates a partnership between the federal government and the

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states to combat air pollution." California Dump Truck Owners Ass 'n v. Nichols, 784 F.3d 500,
502 (9th Cir. 2015), cert. denied, No. 15-123, 2015 WL 4554965 (U.S. Nov. 2, 2015). While
EPA prescribes national ambient air quality standards, the states are responsible for
implementing them. Jd. Each state must adopt a state implementation plan (SIP) that includes,
among other things, "enforceable emission limitations" geared toward minimizing air pollution
within its borders. !d. at 502-03. The Court must read the citizen suit provision in harmony with
the CAA' s scheme of cooperative federalism. See Nat 1 Ass 'n of Home Builders

v.

Defs. of

Wildlife, 551 U.S. 644, 666 (2007). Second, the present case and LUBA's pending appeal

involve separate, albeit closely related, inquiries. Regardless of the future outcome of the LUBA
appeal, Plaintiff states a valid claim that Defendant is currently violating the CAA. The U.S.
Supreme Court instructs "where the complaint ... is so drawn as to seek recovery directly under
the Constitution or laws of the United States, the federal court ... must entertain the suit." Bell v.
Hood, 327 U.S. 678, 681-82 (1946). Plaintiffs allegations clearly arise under federal law and,

therefore, this Court must assume jurisdiction. In doing so, the Court assures Defendant that it
will remain mindful ofLUBA's jurisdiction and refrain from encroaching thereon.
II.

Plaintiff's CAA Claim is Ripe for Review.

Defendant contends that Plaintiffs claim is not npe for adjudication. The ripeness
doctrine is "designed 'to prevent the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative policies, and also to protect
the agencies from judicial interference until an administrative decision has been formalized and
its effects felt in a concrete way by the challenging parties."' Nat 'l Park Hasp. Ass 'n v. Dep 't of
Interior, 538 U.S. 803, 807-08 (2003) (quoting Abbott Laboratories v. Gardner. 387 U.S. 136,

148-49 (1967)). "Ripeness is more than a mere procedural question; it is determinative of

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jurisdiction." S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990). If
Plaintiffs claim is not ripe -

or, put differently, if it presents abstract legal issues -then it

must be dismissed for lack of subject matter jurisdiction, !d.; see also Oklevueha Native Am.
Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 837 (9th Cir. 2012) (a ripe claim presents

concrete legal issues).
Federal courts have used the ripeness doctrine to dismiss challenges to land use decisions
that have not yet been finalized. In Williamson Cty. Reg 'l Planning Comm 'n v. Hamilton Bank of
Johnson City, the U.S. Supreme Court found a regulatory takings claim umipe where the

plaintiff had not "obtained a final decision regarding the application of the zoning ordinance and
subdivision regulations to its property." 473 U.S. 172, 186 (1985). In Spring Spectrum L.P. v.
City of Carmel, Indiana, the Seventh Circuit affirmed the dismissal of a zoning challenge

because the plaintiff had not "allow[ ed] local authorities to act with finality before pursuing a
claim in federal court." 361 F.3d 998, 1004 (7th Cir. 2004). Defendant asks the Court to follow
the reasoning of these cases and dismiss the present action as premature. It argues the Court
cannot determine whether the CAA has been violated until LUBA issues its final determination
on Defendant's non-conforming use application.
The present case is distinguishable from Williamson Cty. Reg 'l Planning Comm 'n and
Spring Spectrum L.P.. Plaintiff is not challenging a land use authority's decision or policy.

Rather, it alleges a private actor is currently operating in violation of a federally enforceable
CAA permit. that incorporates local land use law. Plaintiffs claim is not contingent on the
outcome ofthe pending LUBA appeal. Regardless ofLUBA's future actions, Plaintiff alleges its
constituents are presently injured by Defendant's noncompliance with land use law and its CAA
permit. This is sufficient to satisfy the ripeness doctrine.

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Defendant argues that this Court cannot accurately assess its compliance with the local
laws referenced in its CAA permit without considering the equities built into Oregon's land use
scheme. Jackson County's LDO. contemplates that existing violations may be "remedied [on a
post-hoc basis] as part of the development application." LDO 1.7.6. Oregon land use decisionmakers allow technically unapproved uses to continue for equitable reasons where a land owner
is actively seeking necessary approvals. Leach et al. v. Lane County, 45 Or LUBA 580, 597
(2003 ). Indeed, LUBA is allowing Defendant to continue operations while its application is on
appeal. However, the state's decision to defer enforcement does not mean that there has been no

.

violation. Nor does the fact the Defendant mav remedv its situation at a later date detract from
.
the ripeness of Plaintiffs claim for relief from current violations. Accordingly, the Court
concludes that this action is ripe for review.
III.

Abstention Principles Do Not Weigh in Favor of a Stay or Dismissal.

Alternatively, Defendant urges the Court to abstain from hearing this case in deference to
ongoing state proceedings. Ordinarily, a district court must hear all cases properly before it.
Knudsen Corp. v. Nevada State Dairy Comm 'n, 676 F.2d 374, 376 (9th Cir. 1982). "Abstention

from the exercise of federal jurisdiction 'is the exception, not the rule."' I d. (quoting Colorado
River Water Conservation District v. United States, 424 U.S. 800, 813 (1976)). However,

Defendant asserts that abstention is appropriate under both the Burford and Colorado River
doctrines. The Court will consider the applicability of each in tum.
A. Abstention is Not Appropriate under the Burford Doctrine.
First, Defendant asserts that Burford counsels in favor of abstention. In Burford v. Sun
Oil Co., the Supreme Court allowed a district court to decline to exercise jurisdiction in order to

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avoid confusing or disrupting a complicated state regulatory scheme. 319 U.S. 315, 334 (1943).
Three factors must be present in order for Burford abstention to be appropriate:
first, that the state has chosen to concentrate suits challenging the actions of
the agency involved in a particular court; second, that federal issues could
not be separated easily from complex state law issues with respect to which
state courts might have special competence; and third, that federal review
might disrupt state efforts to establish a coherent policy.
United States v. AJ-orros, 268 F.3d 695, 705 (9th Cir. 2001) (quoting Knudsen Corp., 676 F.2d at
377).
These essential factors are not met here. First and foremost, Congress has explicitly
granted jurisdiction to federal district courts to hear CAA citizen enforcement actions. 42 U.S.C.
§ 7604(a). Plaintiff has not pled any claims that fall within a state body's jurisdiction. Indeed,
Burford contemplates a different kind of suit than Plaintiffs present action. Burford involved an
oil company's "attack [on] the validity of a permit that the [Texas Railroad] Commission had
granted[.]" A:forros, 268 F.3d at 704. It was a federal suit challenging the actions and policies of
a state agency. Plaintiff is not challenging any state or local agencies' decisions or efforts. It is
questioning the lawfulness of a private entity's conduct, which happens to be under review by
LUBA. Neither Oregon DEQ, nor LUBA, are involved in the present suit. Nor are their decisions
at issue. Both CAA cases cited by Defendant are inapposite for this reason. In Sugarloaf Citizens
Ass 'n v.

~Montgomery

Cty., i\!Jd., the Fourth Circuit dismissed a citizen enforcement action under

Burford because it was essentially a "collateral attack of [a state agency's] permitting decisions."
33 F.3d 52, 1994 WL 447442, at *4 (4th Cir. 1994). In Ellis v. Gallatin Steel Co., the Sixth
Circuit declined to hear a party's claims that "boil [ed] down to allegations that [a] Kentucky
agency" had misapplied its lawful authority when it issued a CAA permit. 3 90 F .3d 461, 481
(6th Cir. 2004). Dissimilarly, the Court does not find the present action to be a preemptive

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challenge of state proceedings disguised as a citizen enforcement suit. Second, Plaintiffs federal
CAA claim can easily be separated from related issues of state law. The question before the
Court is whether Defendant is violating land use laws as incorporated into its CAA permit. This
is a distinct from the state's inquiry into whether it should grant post-hoc approval of
Defendant's nonconforming use. Third, Plaintiff is not asking the Court to review any state
efforts. It is attempting to enforce a joint state and federal law against a CAA permitee. The
Court can proceed forward without impeding on state policy. This is especially true given the
CAA's model of cooperative federalism: state and federal governments share an interest in
controlling air pollution. Accordingly, the Court finds the Burford doctrine inapplicable and
declines to abstain under it.
B. Abstention is Not Appropriate under the Colorado River Doctrine.
Next, Defendant invokes the Colorado River abstention doctrine which allows a district
court to dismiss a federal suit in favor of a concurrent state proceeding. Colorado River Water
Conservation Dist., 424 U.S. at 818. The doctrine applies in only "exceptional" circumstances.

!d. Generally, the pendency of an action in state court will not bar a federal suit on the same

matter. !d.
The Colorado River doctrine applies only when state and federal proceedings are
"substantially similar." Nakash v. Jv!arciano, 882 F.2d 1411, 1416 (9th Cir: 1989). A federal
court can abstain only if it is fully confident that the concurrent state proceeding will resolve the
case before it. Intel Corp. v. Advanced 1Vficro Devices, Inc., 12 F.3d 908, 913 (9th Cir. 1993). As
discussed above, the Court is not assured that the pending LUBA appeal will effectively end
Plaintiffs CAA litigation. The land use proceeding may, but is not certain to, cure the possibility
. of future CAA violations related to Defendant's nonconforming industrial use. However, it will

Page 10- ORDER

not address Defendant's unpermitted activities in a floodplain. Nor is there any indication that it
will address allegations that Defendant is violating the CAA now. The two proceedings involve
similar facts but different legal issues. Because there is substantial doubt that the state court
proceedings will sufficiently address Plaintiffs CAA claim, abstention is not appropriate. !d.
Since Defendant's request for Colorado River abstention fails on this threshold
requirement, the Court need not proceed forward with the doctrine's factored analysis. !d. at 913,
n. 7. However, it is worth noting that it would be particularly inappropriate to abstain here since
Plaintiffs claim is subject to exclusive federal jurisdiction. !d. "[T]he presence of federal-law
issues must always be a major consideration weighing against surrender." JV!oses H Cone J\!Jem 'l
Hasp. v. ivfercury Canst. Corp., 460 U.S. 1, 26 (1983). Plaintiff has not raised any state claims.

Its single claim arises under a federal statute that clearly confers jurisdiction to this Court. Under
these circumstances, Colorado River abstention is not warranted.
ORDER

For the reasons set forth above, Defendant's Motion to Dismiss (#25) is DENIED. The
Court will now proceed forward with Plaintiffs pending Motion for Preliminary Injunction (#6).
Defendant's opposition is due by December 23, 2015. Plaintiff's reply brief is due by January 7,
2016. A hearing is scheduled for January 14, 2016 at 10 A.M. . /

- r (.,_

It is so ORDERED and DATED this

day of Dece

United States Magistrate Judge ·

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