Ronald E. Bush, Chief U.S. Magistrate Judge.
Pending before the Court is Defendant Shannon Poe's Motion to Dismiss Plaintiff Idaho Conservation League's ("ICL") Complaint (Dkt. 17). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
1. The South Fork Clearwater River is a navigable water located in north-central Idaho, which the State of Idaho has designated as a State Recreational River. See Compl., ¶ 40 (Dkt. 1). The South Fork Clearwater River is also eligible for designation under the federal Wild and Scenic Rivers Act due to its remarkable values. See id.
2. The South Fork Clearwater River is a habitat for many native fish species, including those listed as "threatened" under the Endangered Species Act (Snake River steelhead trout, Snake River fall Chinook salmon, and Columbia Basin bull trout). See id. at ¶ 42. The Nez Perce Tribe also rely on the South Fork Clearwater
3. The South Fork Clearwater River is designated by the State of Idaho as an "impaired" water body along its entire length due to excessive sediment and temperature pollution. See id. at ¶ 44. Bank stabilization, channel stabilization, bank re-vegetation, and sediment traps have been implemented on the South Fork Clearwater River in an effort to control sediment pollutants. See id. at ¶ 45.
4. Suction dredge mining involves using a floating watercraft device with a pump to suck water, riverbed sands, and minerals through a nozzle in an effort to sort gold. See Opp. to MTD, p. 3 (Dkt. 20). The water, sand, and minerals are then discharged back into the river, along with sediments and potential pollutants. See id.
5. Under the Clean Water Act ("CWA"), a National Pollutant Discharge Elimination System ("NPDES") permit is required to operate a suction dredge due to potential sediment pollution arising from the activity. See id. NPDES permits are issued by the Environmental Protection Agency ("EPA") on a yearly basis to dredgers that meet and follow certain conditions to prevent harm to aquatic environments. See id.
6. The CWA prohibits the "discharge of any pollutant by any person" to waters of the United States, unless authorized by an NPDES permit. See 33 U.S.C. §§ 1311(a), 1342(a); see also Compl., ¶ 18 (Dkt. 1). The CWA defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12); see also Compl., ¶ 19 (Dkt. 1).
7. To facilitate NPDES permitting for pollution discharges from suction dredges in Idaho, the EPA issued the "NPDES General Permit" in 2013 and reissued it in 2018. See id. at ¶ 24. Suction Dredge General Permits are available to miners discharging pollutants from small suction dredges (dredges with intake nozzles less than or equal to five inches in diameter and a cumulative rating of 15 horsepower or less) to some but not all Idaho rivers.
8. To obtain authorization to discharge pollutants from a suction dredge for an operation that is not eligible for the Suction Dredge General Permit, a miner must apply for and receive an individual NPDES permit from the EPA. See Compl., ¶ 27 (Dkt. 1). Individual NPDES permits must include conditions that will ensure compliance with the CWA. See id. At a minimum, NPDES permits must include technology-based pollution limitations, any more stringent limitations necessary to meet water quality standards in the receiving water, and pollution discharge monitoring and reporting requirements. See id. (citing 33 U.S.C. §§ 1311, 1318, 1342).
9. In addition to obtaining an NPDES permit, dredgers in the State of Idaho must also obtain a permit from the Idaho Department of Water Resources ("IDWR") under the Stream Channel Protection Program, and may be required to obtain approval from the Idaho Department of Lands when dredging in state-designated navigable streams. See Compl., ¶ 35 (Dkt. 1) (citing I.C. § 42-3801, et seq.). The IDWR's mining instructions notify dredgers of the need to obtain an NPDES permit through the EPA. See id. at ¶ 37 (citing Stream Channel Alteration by Recreational Mining Activities: IDWR Instructions for 2018, IDWR (Rev. Jun. 22, 2018), p. 1).
10. The IDWR approved the South Fork Clearwater River Plan — Comprehensive State Water Plan in 2004, designating the South Fork Clearwater River as a State Recreational River under Idaho Code § 42-1735A. See id. at ¶ 38. The plan limits/prohibits certain activities (including recreational dredge mining) to preserve water quality and/or wildlife habitat, and requires that dredge sites be inspected by the IDWR with a fisheries biologist. See id. at ¶ 38.
11. Since 2005, ICL has devoted time and resources every year to protect and restore water quality and fisheries throughout the rivers and streams of Idaho, including the South Fork Clearwater River watershed. See ICL's Opp. to MTD p. 5 (Dkt. 20); See also Oppenheimer Decl., ¶¶ 19-47 (Dkt. 20-16).
12. Defendant Shannon Poe is a miner and the Chief Executive Officer and/or President of the American Mining Rights Association ("AMRA"). See Compl., ¶ 56 (Dkt. 1). AMRA's website lists four AMRA mining claims in north Idaho totaling 80 acres, including the South Fork Clearwater River. See id.
13. In 2014, Mr. Poe applied for and received approval from IDWR to suction dredge mine in Idaho for the 2014 season. See id. at ¶ 54. However, he did not apply for or receive an NPDES permit authorizing
14. From July 14, 2014 to August 15, 2014 (the 2014 dredge season), Mr. Poe operated a suction dredge and discharged sediment and/or other pollutants into the South Fork Clearwater River on more than one day. See id. at ¶ 55. Mr. Poe admitted to dredging on Idaho rivers in 2014, including 13 days on the South Fork Clearwater River in online posts. See id. at ¶ 57. On August 16, 2014, Mr. Poe wrote an online post, recognizing the necessity of obtaining an NPDES permit and his defiance to do so. See id. at ¶ 59.
15. Following the 2014 dredging season, on or around October 17, 2014, Mr. Poe received a notice from the EPA, notifying him that he was in violation of the CWA by operating a suction dredge and discharging pollutants into the South Fork Clearwater River without an NPDES permit. See Mem. ISO MTD, p. 7 (Dkt. 17-1) (citing Ex. 1, Att. A to Poe Decl. (Dkt. 17-2)). The EPA requested information from Mr. Poe for each day that a dredge was operated on the South Fork Clearwater River in July and August of 2014. See id.
16. On November 13, 2014, Mr. Poe's attorney responded to the EPA, citing case law holding that dredge operations did not result in a discharge of pollutants and, therefore, Mr. Poe's operations did not require an NPDES permit under the CWA. See Mem. ISO MTD, pp. 7-8 (Dkt. 17-1) (citing Ex. 1, Att. B to Poe Decl. (Dkt. 17-2)). The EPA never responded and did not pursue enforcement in 2014 or later. See Poe Decl., ¶ 7 (Dkt. 17-2).
17. In 2015, Mr. Poe obtained approval from the IDWR to suction dredge mine in Idaho during the 2015 season. See ICL's Compl., ¶ 60 (Dkt. 1). Mr. Poe operated a suction dredge on the South Fork Clearwater River in 2015 on one or more days without applying for or receiving an NPDES permit for that year. See id. at ¶ 61.
18. In July 2015, the Forest Service performed site inspections on the South Fork Clearwater River. See Ex. G to Oppenheimer Decl. (Dkt. 20-23). The Forest Service prepared and attempted to deliver notices of noncompliance to Mr. Poe while he was dredging on the South Fork Clearwater River. See Opp. to MTD p. 6 (Dkt. 20) (citing Ex. G to Oppenheimer Decl. (Dkt. 20-23)).
19. In August 2015, Mr. Poe admitted dredging on the South Fork Clearwater River in an online post. See Compl., ¶ 62 (Dkt. 1). In August and September 2015, Mr. Poe made several online posts discussing standing up to the EPA and the Forest Service while dredging. See id. at ¶¶ 63-64.
20. In May 2016, ICL sent Mr. Poe a written notice letter ("2016 Notice of Intent to Sue") by certified mail, advising him that ICL intended to initiate a CWA citizen suit against him if he continued to suction dredge in Idaho without an NPDES permit. See id. at ¶ 65; see also Ex. 1, Att. C to Poe Decl. (Dkt. 17-2) ("Given your involvement with AMRA, your past dredging, and your public statements, ICL reasonably believes that you will continue to suction dredge mine in the South Fork Clearwater River and/or other Idaho rivers and streams without a valid NPDES permit, in violation of the Clean Water Act.").
21. Mr. Poe received ICL's letter and responded in a June 14, 2016 letter, stating: "I have no plans, or intent to dredge the SF Clearwater this year, and do not intend to dredge in future years without the appropriate permits." See Compl., ¶ 66 (Dkt. 1); see also Poe Decl., ¶ 10 (Dkt. 17-2); Ex. C to Oppenheimer Decl. (Dkt. 20-19).
23. Prior to each dredging season in 2017 and 2018, ICL mailed (via regular mail) and emailed follow-up notice letters, informing Mr. Poe of ICL's continuing intent to file suit if he operated a suction dredge in Idaho again without an NPDES permit. See Compl., ¶ 67 (Dkt. 1); see also Ex. 1, Atts. D, E to Poe Decl. (Dkt. 17-2). Mr. Poe does not recall ever receiving the 2017 notice letter, and only received the 2018 notice letter upon returning to his California residence after the 2018 dredge season on the South Fork Clearwater River. See Poe Decl., ¶¶ 12, 15 (Dkt. 17-2).
24. In May 2018, Mr. Poe obtained approval from the IDWR to suction dredge in Idaho for the 2018 season. See Compl., ¶ 68 (Dkt. 1); see also Ex. D to Oppenheimer Decl. (Dkt. 20-20). Again, however, he never applied for or received an NPDES permit authorizing him under the CWA to suction dredge mine in Idaho in 2018. See Compl., ¶ 68 (Dkt. 1).
25. Mr. Poe operated a suction dredge on the South Fork Clearwater River for one or more days. See id. at ¶¶ 70, 83; see also Poe Decl., ¶ 17 (Dkt. 17-2).
26. In online posts, Mr. Poe admitted to dredging on the South Fork Clearwater River on multiple days during the 2018 season and admitted to purposefully failing to obtain an NPDES permit. See Compl., ¶¶ 73-82 (Dkt. 1). Mr. Poe also admitted he planned to continue dredging through August 15, 2018, and in future years. See id.
27. On August 10, 2018, ICL initiated this action, alleging that Mr. Poe was committing ongoing violations of the CWA by failing to obtain an NPDES permit while dredging and discharging sediment and other pollutants contributing to the water quality impairment in the South Fork Clearwater River on multiple occasions in 2014, 2015, and 2018. See Compl., ¶¶ 98-100 (Dkt. 1); see also Opp. to MTD, p. 7 (Dkt. 20). ICL alleges that these violations were/are continuing and are reasonably likely to recur in 2018 and in future years. See id.
28. On December 21, 2018, Mr. Poe filed the at-issue Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that (1) this Court lacks subject matter jurisdiction because, in part, ICL's 2017 and 2018 notice letters were not sent via certified mail as required by the CWA and the implementing regulations; and (2) ICL lacks standing to bring this suit in the first instance. See generally Mem. ISO MTD, pp. 1-2, 9-20 (Dkt. 17-1).
Mr. Poe moves to dismiss ICL's Complaint under Federal Rule of Civil Procedure 12(b)(1), claiming that the Court lacks subject matter jurisdiction based on his notice and standing arguments. Federal Rule of Civil Procedure 12(b)(1) permits a challenge to the authority of the federal court to consider a dispute because "[f]ederal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); cf. Fed. R. Civ. P. 12(b)(1) (requiring dismissal of complaint where court lacks subject matter jurisdiction). Thus, a court is "presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears," Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989), and the plaintiff bears the burden of establishing that such jurisdiction exists, KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 S.Ct. 183 (1936). When
ICL contends that, because the EPA has not pursued any CWA enforcement action against Mr. Poe since sending him the 2014 notice of violation for dredging on the South Fork Clearwater River without an NPDES permit (see supra), the CWA's citizen suit provision is "particularly important here." Opp. to MTD, p. 8 (Dkt. 20). The significance is self-evident, as it is through the CWA's citizen suit provision that ICL brings this action.
Relevant here, the CWA requires citizens to provide 60 days' notice to the alleged violator prior to filing suit. See 33 U.S.C. § 1365(b)(1)(A). As to the "notice" itself, EPA regulations require service by certified mail (along with copies to the EPA Administrator, the EPA Regional Administrator, and the head of the water pollution control agency in the state where the CWA violation is alleged to have occurred), as well as:
See id.; see also 40 C.F.R. §§ 135.2(a)(1), 135.3.
Mr. Poe argues subject matter jurisdiction is lacking in this case because ICL failed to meet the CWA's notice requirement in three ways: (1) the 2016 Notice of Intent to Sue relies on wholly past alleged violations, which the 2017 and 2018 follow-up notices incorporated by reference; (2) the 2017 and 2018 follow-up notices were not sent by certified mail as required by the regulations, Mr. Poe did not receive the 2018 follow-up notice until after ICL filed this lawsuit, and ICL filed suit less than 60 days after sending the 2018 follow-up notice; and (3) all three notices lack specificity as to the location of the alleged violations. See Mem. ISO MTD, p. 11 (Dkt. 17-1) (citing Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir. 2009) (properly sent or formulated 60-day notice is "jurisdictional necessity")). The Court disagrees.
Significantly, CWA notice requirements are "strictly construed," but the applicable regulations do not require "that plaintiffs list every specific aspect or detail of every alleged violation" — rather, it is "reasonable specificity" that is required. S.F. Baykeeper v. Tosco Corp., 309 F.3d 1153, 1157-58 (9th Cir. 2002) (citation omitted). "The key language in the notice
After reviewing the record of this case, the Court concludes that it is incorrect to suggest that ICL's 2016 Notice of Intent to Sue improperly relied solely on past alleged violations. Considered in toto, the 2016 Notice of Intent to Sue notified Mr. Poe directly that:
Ex. 1, Att. C to Poe Decl. (Dkt. 17-2) (emphasis added).
Mr. Poe properly acknowledges that a plaintiff (here, of course, ICL) "must have a good faith allegation of continuing or intermittent violations for a court to have jurisdiction over a suit." Mem. ISO MTD, p. 10 (Dkt. 17-1) (citing Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 64-67, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)). The Ninth Circuit has held that intermittent pollution violations are "ongoing" when either: (1) violations "continue on or after the date the complaint is filed," or (2) "by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations." NRDC v. Southwest Marine, Inc.,
In short, Mr. Poe's cessation of suction dredging activities on the South Fork Clearwater River in 2016 and 2017 proved to be only temporary; on the record now before the Court, they do not upend the fact of Mr. Poe's (borne out) continuing and/or intermittent suction dredging activities on the South Fork Clearwater River without any NPDES permit.
Second, even though the 2017 and 2018 follow-up notices were not sent by certified mail, the 2016 Notice of Intent to Sue was sent by certified mail and Mr. Poe received the same. See supra. In other words, whether the two follow-up notices were sent by certified mail is immaterial for the purposes of ICL's claims against Mr. Poe — premised, as they are, upon the 2016 Notice of Intent to Sue. Said another way, had ICL never sent the 2017 and 2018 follow-up notices, its citizen suit against Mr. Poe under the CWA would still exist. Viewed thusly, the fact that neither follow-up notice was sent by certified mail does not matter; they were simply "reminders," tethered to the already CWA-compliant 2016 Notice of Intent to Sue.
Third, ICL's 2016 Notice of Intent to Sue reasonably specified the nature and location of Mr. Poe's alleged violations, and said in relevant part:
Ex. 1, Att. C to Poe Decl. (Dkt. 17-2) (emphasis added).
This information was reasonably specific so that Mr. Poe could understand ICL's allegations of law-breaking (suction dredging on the South Fork Clearwater River without any NPDES permit) and how he could correct the problem (by not dredging on the South Fork Clearwater River again without an NPDES permit). Mr. Poe even wrote back to ICL in June 2016, stating: "I have no plans, or intent to dredge the SF Clearwater this year, and do not intend to dredge in future years without the appropriate permits." Poe Decl., ¶ 10 (Dkt. 17-2); Ex. C to Oppenheimer Decl. (Dkt. 20-19).
Accordingly, the Court finds that ICL's 2016 Notice of Intent to Sue provided Mr. Poe with reasonable specificity of the basis for its claim and, thus, complied with the CWA and its implementing regulations.
Mr. Poe argues that "ICL's Complaint fails to meet Article III Standing."
Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693; see also Summers v. Earth Island Inst., 555 U.S. 488, 494, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ("While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interest of the plaintiff, that will suffice.").
ICL's Complaint contains specific allegations addressing each of the above-referenced standing prongs. See Compl., ¶¶ 9-15, 40-53, 91-102, Prayer for Relief (Dkt. 1). But ICL goes further, including supporting declarations responding to Mr. Poe's Motion to Dismiss in an effort to establish that its members frequently and extensively use the South Fork Clearwater River and their aesthetic and recreational values have been and will be lessened by Mr. Poe's suction dredging there. See generally Inghram Decl. (Dkt. 20-15); Oppenheimer Decl. (Dkt. 20-16). For example:
These allegations are sufficient allegations of injury in fact — they allege that ICL's members derive recreational and aesthetic benefit from their use of the South Fork Clearwater River (including near Mr. Poe's dredging and other locations affected by it); and their enjoyment has been altered and their use has been curtailed because of their concerns about the damaging impacts of Mr. Poe's suction dredge mining. This is enough to support organization standing. See Cottonwood Envtl. L. Ctr. v. U.S. Forest Serv., 789 F.3d 1075,
The injury is also fairly traceable to the challenged activity. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (there must be "a causal connection between the injury and the conduct complained of — the injury has to be `fairly ... trace[able] to the challenged action of the defendant, and not ... the[e] result [of] the independent action of some third party not before the court.'") (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). ICL presented evidence that Mr. Poe discharged sediment into the South Fork Clearwater River while suction dredge mining in 2014, 2015, and 2018 without an NPDES permit; these discharges cause or contribute to the kinds of injuries ICL (through members like Inghram and Oppenheimer) suffers on the South Fork Clearwater River, including injuries due to decreased water quality, altered streambanks and riverbeds, and disturbance of fish, birds, and wildlife. See supra. Such evidence is sufficient to demonstrate that ICL's injuries were fairly traceable to Mr. Poe's conduct. See NRDC v. Southwest Marine, Inc., 236 F.3d at 995 ("[T]he threshold requirement of traceability does not mean that plaintiffs must show to a scientific certainty that defendant's effluent caused the precise harm suffered by the plaintiffs in order to establish standing. To satisfy this requirement, rather than pinpointing the origins of particular molecules, a plaintiff must merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern.") (internal quotation marks and citations omitted).
The allegations within ICL's Complaint adequately allege a sufficient injury in fact and, in turn, the allegations sufficiently trace the injury to Mr. Poe's challenged conduct. The alleged injury is redressable by enjoining Mr. Poe from violating the CWA and imposing civil penalties as a deterrent. ICL therefore has Article III standing. Obviously, ICL's allegations may be tested during the course of this action, but they are sufficient to establish ICL's standing to proceed.
Based on the foregoing, IT IS HEREBY ORDERED that Defendant Shannon Poe's Motion to Dismiss Plaintiff Idaho Conservation League's Complaint (Dkt. 17) is DENIED. By separate notice, the Court will set a scheduling conference to address the case management deadlines moving forward.