American Canoe v. City of Louisa Water

• Citation: 389 F.3d 536
• Decision Date: 01 November 2004
• Docket Number: No. 02-6018.,02-6018.
• Parties: AMERICAN CANOE ASSOCIATION, INCORPORATED; Sierra Club, Plaintiffs-Appellants, v. CITY OF LOUISA WATER & SEWER COMMISSION; Louisa Water Treatment Plant; City of Louisa, Kentucky, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

389 F.3d 536

AMERICAN CANOE ASSOCIATION, INCORPORATED; Sierra Club, Plaintiffs-Appellants, v. CITY OF LOUISA WATER & SEWER COMMISSION; Louisa Water Treatment Plant; City of Louisa, Kentucky, Defendants-Appellees.

No. 02-6018.

United States Court of Appeals, Sixth Circuit.

Argued: December 4, 2003.

Decided and Filed: November 1, 2004.

COPYRIGHT MATERIAL OMITTED

ARGUED: Sarah A. Adams, Terris, Pravlik & Millian, Washington, D.C., for Appellants. Eldred E. Adams, Jr., Adams & Adams, Louisa, Kentucky, for Appellees. ON BRIEF: Bruce J. Terris, Demian Asa Schane, Terris, Pravlik & Millian, Washington, D.C., for Appellants. Eldred E. Adams, Jr., Adams & Adams, Louisa, Kentucky, for Appellees.

Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which MOORE, J., joined. KENNEDY, J. (pp. 547-50), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Pursuant to the citizen-suit provision of the Clean Water Act, 33 U.S.C. § 1365, American Canoe Association and Sierra Club filed a complaint on both their own behalf and their members' behalf alleging that the defendants violated the terms of the National Pollutant Discharge Elimination System permit issued to the City of Louisa Water & Sewer Commission and, in so doing, also violated the Act. The district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing. For the reasons that follow, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

I.

A. Statutory Background

In 1972, Congress enacted the Clean Water Act with the stated objective of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In order to achieve this laudable goal, "the Act prohibits `the discharge of any pollutant by any person' unless done in compliance with some provision of the Act." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, ___, 124 S.Ct. 1537, 1541, 158 L.Ed.2d 264 (2004) (quoting 33 U.S.C. § 1311(a)). Thus, the Act authorizes the issuance of National Pollutant Discharge Elimination System permits — commonly referred to as "NPDES permits" — which "place limits on the type and quantity of pollutants that can be released into the Nation's waters." Id. Additionally, permit-holders are generally required both to monitor their effluent discharges and to report these results. See 33 U.S.C. § 1318(a) (noting that monitoring and reporting requirements may be imposed when necessary to fulfill the objectives of the Act). If monitoring and reporting requirements are imposed, the Act requires that the information collected be available to the public unless disclosure would expose a trade secret. 33 U.S.C. § 1318(b).

"Congress enlisted the help of the public in attaining [the Act's] goal by authorizing citizens to bring suits against those who violated the Act." Pub. Interest Res. Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 114 (3d Cir.1997). "Citizen suits are merely intended to supplement, not supplant, enforcement by state and federal government agencies." Ailor v. City of Maynardville, Tenn., 368 F.3d 587, 591 (6th Cir.2004). Noncompliance with a National Pollutant Discharge Elimination System permit constitutes a violation of the Act, such that the citizen-suit provisions are triggered. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

B. Factual Background

On May 21, 2001, American Canoe and Sierra Club, which are national, not-for-profit organizations dedicated to the protection of the environment, filed a complaint against the City of Louisa Water & Sewer Commission and the Louisa Water Treatment Plant alleging violations of the Clean Water Act. On August 17, the plaintiffs amended their complaint to add the City of Louisa as a defendant. This opinion will collectively refer to these entities as the "defendants" unless further explanation is necessary. The complaint alleged that the defendants failed to comply with the terms of the National Pollutant Discharge Elimination System permit issued by the Kentucky Department for Environmental Protection to the City of Louisa Water & Sewer Commission, which authorized the discharge of a specified level of effluents into the Levisa Fork of the Big Sandy River and imposed monitoring and reporting requirements.

American Canoe sued on behalf of its members alleging that their "health, economic, recreational, aesthetic and environmental interests" are adversely affected by the defendants' discharge, monitoring, and reporting violations. Additionally, American Canoe sued on its own behalf alleging that the defendants' monitoring and reporting violations adversely affected its organizational interests. In support of its allegations, American Canoe provided the affidavit of David Jenkins, the Director of Conservation and Public Policy for American Canoe, which stated that American Canoe and its members' interests were harmed by the defendants' monitoring and reporting violations.

Sierra Club made similar allegations, but substantiated them with the affidavit of Daniel Hurst Kash, a resident of Ashland, Kentucky and member of Sierra Club since 1975. Kash alleged that he had recreated in the Big Sandy River near Louisa in the past and would like to do so in the future, but maintained that he refuses to recreate there currently because of the pollution. The Sierra Club also provided the affidavit of Lane E. Boldman, the Chair of its Cumberland Chapter, stating that the interests of Sierra Club were adversely affected by the defendants' monitoring and reporting violations.

The defendants filed a motion to dismiss arguing that the plaintiffs lacked standing. The district court granted the motion on June 11, 2002, holding that the plaintiffs lacked standing because none of its members had standing to sue in their own right. Thereafter, the plaintiffs filed a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e), which the district court denied on July 25. This timely appeal followed.

II.

This Court reviews a district court's dismissal of a complaint for lack of standing as it reviews other dismissals pursuant to Federal Rule of Civil Procedure 12(b): de novo. Jones v. City of Lakeland, Tenn., 224 F.3d 518, 520 (6th Cir.2000). Thus, this Court must accept as true all material allegations contained in the complaint and liberally construe them in favor of the complaining party. Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir.1996); Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

A. Representational Standing

Plaintiff Sierra Club argues that it has standing to sue as the representative of its members. Although American Canoe originally sued on its own behalf and in its representational capacity, it does not argue on appeal that it has standing to sue in its representational capacity. Sierra Club has standing to sue on behalf of its members when "its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Laidlaw, 528 U.S. at 181, 120 S.Ct. 693. A member of Sierra Club would have standing to sue in his own right when he has suffered a concrete and particularized injury in fact that is fairly traceable to the defendant's actions and a favorable decision would redress his injury. Ailor, 368 F.3d at 596. The district court concluded that Sierra Club did not have standing to sue in its representational capacity because it could not establish that any of its members would have standing to sue in their own right. We disagree.

Sierra Club provided the affidavit of a member, Daniel Kash, in support of its standing to sue as the representative of its members for the defendants' violations of the Act. Kash's affidavit contained the following pertinent averments:

¶ 3. For many years I traveled to Louisa, Kentucky, which borders the Big Sandy River, as part of my duties as supervisor, Kentucky Division of Air Quality, State of Kentucky. I made this trip once per week. On many of these occasions I thought to myself what a terrible shame it was that the Big Sandy River was so polluted that I could not fish it, canoe it, or swim in it. As an avid fisherman this was emotionally upsetting to me.

¶ 4. Almost from the beginning of these trips, I was aware that the Louisa Water Treatment Plant was violating water pollution standards.... The river appeared to be dark and oily and smelled like petroleum products....

¶ 6. About 10 years ago, I went canoeing on the Big Sandy River near Louisa. However, the water pollution and odor emanating from the River detracted from my enjoyment and, for this reason, I have not attempted to recreate on the River since then.

¶ 7. I will not currently fish or canoe in the Big Sandy River near Louisa. I do fish in the Ohio River about 12 miles downstream from the confluence of the Big Sandy River and the Ohio River. If the Big Sandy River near Louisa were not as polluted as it currently is, I would canoe and fish in it. In my opinion, not being able to canoe and fish on the Big Sandy River is a great loss to me and every other citizen in Kentucky.

¶ 8. Counsel for plaintiffs has informed me that the Louisa Waste Water Plant is violating its permit discharge limits, including for total suspended solids and oil and grease. I am very concerned about the harmful impacts that this pollution will continue to have on the water quality of these waters, including its fish and plant life.

¶ 9. I am interested in obtaining correct information about the amount of pollution in the Big Sandy River near...