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California Sportfishing Protection Alliance v. All Star Auto..., 860 F.Supp.2d 1144...
75 ERC 1628
Citizens for a Better Environment, 523 U.S. 83, 102, 118
S.Ct. 1003, 140 L.Ed.2d 210 (1998).
[5] Additionally, when a plaintiff seeks injunctive and
declaratory relief, the plaintiff must also demonstrate that Defendants. Along with the Reply brief Defendants
“he has suffered or is threatened with a concrete and
particularized legal harm, coupled with a significant
likelihood that he will again be wronged in a similar
way.” Canatella v. State of California, 304 F.3d 843, 852
(9th Cir.2002) (internal citations omitted).
[6] The FAC alleges that, “Members of CSPA reside in
California and use and enjoy California’s numerous rivers
for recreation and other activities. Members of CSPA use
and enjoy the waters of the Sacramento River, and the
Sacramento–San Joaquin Delta, into which Defendants
have caused, are causing and will continue to cause,
pollutants to be discharged. Among other things,
members of CSPA use these areas to fish, sail, boat,
kayak, swim, bird watch, view wildlife and engage in
scientific study, including monitoring activities.
Defendants’ discharges of pollutants threaten or impair
each of those uses or contribute to such threats and
impairments. Thus, the interests of CSPA’s members
have been, are being, and will continue to be adversely
affected by Defendants ongoing failure to comply with
the Clean Water Act. The relief sought herein will redress
the harms to Plaintiff caused by Defendants’ activities.”
FAC, ¶ 13. In addition, Plaintiff attached the declaration
of four of its members to the opposition brief, containing
further allegations relevant to standing. As discussed
above, Defendants have objected to parts of those
declarations.
The FAC contains allegations regarding the
organization’s purpose (FAC, ¶ 12), and Defendants do
not contend that the suit is inconsistent with the CSPA’s
mission, nor do they contend that the suit requires the
participation of individual members. Defendants’ motion
to dismiss instead argues that the allegations of the FAC
are insufficient to establish that individual members have
standing to sue, because they are vague and do not
sufficiently allege injury that is traceable to Defendants’
conduct.
Plaintiff contends that the allegations of the FAC are
sufficient to establish standing, as the allegations specify actual environmental harm. Ecological Rights
how members use and enjoy the waters at issue, and the
injuries to members’ interests that are traceable to
pollution discharges by Defendants. Plaintiff submitted
affidavits along with the opposition brief, and asserted
that the affidavits provide even greater detail to support
the allegations of standing in the FAC.
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
In response, Defendants’ Reply brief contends that the
declarations are vague or based on unsubstantiated
beliefs. Defendants also argue that the affidavits cannot
show that the alleged harms are fairly traceable to
submitted several documents that they argue show they
are in compliance with the conditions of their permit
under the CWA. (Doc. # 15, Exs. 4–15.) Therefore,
Defendants contend that Plaintiff has not shown that the
injury complained of is traceable to Defendants and not to
one of the other businesses or individuals that discharge
pollution into the waterways.
Though both parties have supplied the Court with
extrinsic evidence, Defendants’ motion to dismiss clearly
attacked the sufficiency of the allegations in the FAC to
establish jurisdiction on its face. See, e.g., Coalition for a
Sustainable Delta v. City of Stockton, 2009 WL 6697824,
*2 (E.D.Cal. Aug. 21, 2009) (noting that despite both
parties including extrinsic evidence *1151 in their filings
in the form of declarations and affidavits, the defendant
made a facial attack because it asserted that the complaint
was, on its face, insufficient to invoke federal
jurisdiction). Viewed as a facial attack, and taking the
allegations of the FAC as true, the Court finds that
Plaintiff has sufficiently alleged standing to bring this
suit. The allegations identify how Plaintiff’s individual
members use and enjoy the waters at issue, how their use
and enjoyment is harmed by concerns about violations of
environmental laws, and that the injury is traceable to
Defendants.
[7] [8] In Ecological Rights Foundation v. Pacific Lumber
Company, 230 F.3d 1141 (9th Cir.2000), the Ninth Circuit
found that individual members of two organizations had
standing to sue under the CWA when the individual
members submitted affidavits stating their recreational
and aesthetic interests in the creek at issue. The affidavits
stated that the affiants were deterred from fully enjoying
the creek because of concerns about pollutants discharge
from the defendant’s facilities adjacent to the creek. As
the Ninth Circuit noted, the threshold question of standing
under the CWA is whether an individual can show that
she has been injured in her use of a particular area
because of concerns about violation of environmental
laws, not whether the plaintiff can show there has been
Foundation, 230 F.3d at 1151, citing Friends of the Earth
v. Laidlaw, 528 U.S. 167, 120 S.Ct. 693, 704, 145
L.Ed.2d 610 (2000). Requiring the plaintiff “to show
actual environmental harm as a condition for standing
confuses the jurisdictional inquiry (does the court have
power under Article III to hear the case?) with the merits
inquiry (did the defendant violate the law?).”
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