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California Sportfishing Protection Alliance v. All Star Auto..., 860 F.Supp.2d 1144...
75 ERC 1628
DENIED.
[10] Environmental Law 1 This matter was determined to be suitable for decision
Reporting, notice, and monitoring without oral argument. E.D. Cal. L.R. 230(g). Oral
argument was scheduled for January 25, 2012.
requirements
Organization sufficiently alleged a claim under I. FACTUAL ALLEGATIONS AND SUMMARY OF
Clean Water Act (CWA) for violation of ARGUMENTS
wrecking company’s general permit requirement
to develop an adequate monitoring and reporting Plaintiff CSPA brings this civil suit under the citizen suit
program; complaint alleged that company failed enforcement provisions of the Federal Water Pollution
to collect and analyze storm water samples from Control Act, 33 U.S.C. § 1251, et seq., (known as the
all discharge locations, failed to analyze the Clean Water Act or “CWA”) and alleges five causes of
samples for all likely toxic chemicals, and failed action for various violations of the CWA permit
to file their required annual reports with the conditions as well as a sixth claim under state law for
regional water quality board. Clean Water Act, § chemical discharges in violation of California’s
402(p), 33 U.S.C.A. § 1342(p). Proposition 65. Plaintiff alleges that Defendants are in
violation of the CWA and Proposition 65 because their
Cases that cite this headnote auto salvage yard facility discharges pollutants into the
*1147 surface waters of Rice Creek, which flows into and
Attorneys and Law Firms joins Sour Grass Creek and Burch Creek, then drains into
the Sacramento River and the San Joaquin River Delta,
*1146 Robert J. Tuerck, Jackson & Tuerck, Quincy, CA, which are navigable waters of the United States. Plaintiff,
Andrew L. Packard, Erik Michael Roper, Law Offices of a non-profit public benefit corporation whose mission is
Andrew L. Packard, Petaluma, CA, for Plaintiff. to preserve and protect the environment, wildlife and
natural resources of the water of California, alleges that
Therese Y. Cannata, Cannata, Ching & O’Toole LLP, San its members are injured by Defendants’ discharges of
Francisco, CA, for Defendants. pollutants because they threaten and impair Plaintiff’s
ability to use, enjoy, and study the waters at issue.
Plaintiff seeks injunctive and declaratory relief, civil
penalties and attorney’s fees.
ORDER DENYING DEFENDANTS’ MOTION TO Defendants move to dismiss the FAC on the grounds that
DISMISS Plaintiff lacks standing to bring the suit and has failed to
properly state the fourth cause of action (Failure to
JOHN A. MENDEZ, District Judge. develop and implement an adequate monitoring and
reporting program). Defendants also argue that should the
This matter is before the Court on Defendants All Star Court dismiss the federal claims, it should not retain
Auto Recycling, Inc., (“All Star”); Joseph Cream, SR., jurisdiction over the pendent state law claim.
and Joseph Cream, JR.’s (“Defendants”) Motion to
Dismiss (Doc. # 10) Plaintiff California Sportfishing II. OPINION
Protection Alliance’s (“CSPA”) First Amended
Complaint (“FAC”) (Doc. # 7). The motion to dismiss is A. Legal Standard
brought for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) and for failure to 1. Rule 12(b)(1) Dismissal
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). Plaintiff opposes the motion (Doc. 13).1 For the
reasons set forth below, the motion to dismiss is
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