Page 226 - California Stormwater Workshop Handouts

California Sportfishing Protection Alliance v. All Star Auto..., 860 F.Supp.2d 1144...
75 ERC 1628
Rights Foundation, 230 F.3d at 1150. Further, “the causal
connection put forward for standing purposes cannot be
too speculative, or rely on conjecture about the behavior
of other parties, but need not be so airtight at this stage of [9] Further, this Court disagrees with Defendants’
the litigation as to demonstrate that the plaintiffs would
succeed on the merits.” Id. at 1152. Thus, Defendants’
facial attack fails.
With respect to Defendant’s factual attack, although it is
not clearly spelled out in the opening brief, in response to
Plaintiff’s opposition, Defendants have in their Reply
brief, further developed and made clear that this is also a
factual attack. However, this argument also fails. Here
Defendants’ argue that the statements in the individual
members’ affidavits about specific pollutants being
traceable to Defendants’ facility are inadmissible because
the affiants are lay people without the firsthand
knowledge or technical expertise necessary to render a
scientific opinion about pollutants. At the same time,
Defendants’ assert that Plaintiffs are unable to sufficiently
show individual harm and injuries fairly traceable to
Defendants, because they cannot show that Defendants
are in violation of their permits or that the pollution
complained of comes from Defendants and not from other
businesses. Defendants argue that the affidavits in no way
meet the minimum requirement for standing set forth in
Ecological Rights Foundation because they do not present
a believable nexus to show individual harm, and do not
show traceable injury because the declarations do not
factually establish that Defendants are violating their
permit. Defendants argue that there are hundreds of other
businesses around the waterways, and Plaintiff cannot
show that any injury arising from that pollution is fairly
traceable to Defendant and not to another business.
Defendants argue that the only evidence Plaintiff has put
forth is the exceedance of an EPA benchmark detailed by
Plaintiff in its notice of violation to Defendants.
Defendants argue that a sample in excess of the EPA
benchmarks does not necessarily *1152 constitute a
violation of the NPDES permit, citing Santa Monica
Baykeeper v. International Metals Ekco, Limited, 619
F.Supp.2d 936, 946 (2009).
Despite these more developed assertions in the Reply
brief, the Court finds that Plaintiff has still sufficiently
shown standing. To bring a successful factual attack,
Defendants would have to demonstrate that the
allegations in the FAC which give rise to standing are
untrue. However, in doing so, Defendants must not
confuse the jurisdictional inquiry with the merits inquiry,
as Plaintiff need not prove the merits of the case at this
early stage of the pleadings. The Reply brief is a not so
well disguised request by Defendants to have this Court
prematurely decide the merits of the case. The Court
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must, however, refuse this request at this early stage of
the litigation.
argument that Plaintiff fails to meet the standard
articulated in Ecological Rights Foundation. In
Ecological Rights Foundation, the Ninth Circuit reversed
the District Court’s grant of summary judgment for lack
of standing, finding instead that the plaintiffs had
standing. In so doing, the Ninth Circuit stated that an
individual plaintiff in a CWA case need only claim that
his or her enjoyment of various activities on the
waterways at issue is lessened due to alleged violation of
various provisions of the CWA. Ecological Rights
Foundation, 230 F.3d at 1152. Plaintiff does not need to
prove to a scientific certainty that Defendants have in fact
discharged pollutants in violation of its permits, in order
to obtain standing.
The affidavits discuss individual members’ use and
enjoyment of the waters at issue, their concerns about
alleged pollution from Defendants’ facility, and how these
concerns are impeding their use and enjoyment of the
Sacramento River and the other bodies of water at issue in
this litigation. While the paragraphs that Defendants
successfully objected to provide greater background on
why individual plaintiffs believe that Defendants are
responsible for violating the CWA and polluting the
waterways, these paragraphs are not necessary to establish
standing. Accordingly, the motion to dismiss the FAC for
lack of subject matter jurisdiction is denied.
C. Dismissal For Failure to State a Claim
[10] Plaintiff’s fourth claim for relief alleges that
Defendants are violating the permit conditions of their
CWA permit by failing to develop and implement an
adequate monitoring and reporting program. Plaintiff
alleges that Defendants have failed to collect and analyze
storm water samples from all discharge location, failed to
analyze the samples for all likely toxic chemicals, and
have failed to file their required annual reports with the
Regional Water Quality Board. Defendants argue that this
claim should be dismissed for failure to state a claim,
because they have submitted all the required annual
reports, and taken all the necessary steps to comply with
the permit conditions. In response to Plaintiff’s objections
to Defendants’ request for judicial notice of the reports
that Defendants initially filed, Defendants filed a second
set of annual reports (Doc. # 15, Exs. 4–13) which they
again assert are true and complete copies of the records.
Additionally, Defendants argue that permit compliance
conditions are altered by their participation in a group
monitoring plan.
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