Bishop v. Alabama Dep't Environmental Management, Civ.A. 00-A-810-N.

• Decision Date: 17 August 2000
• Docket Number: No. Civ.A. 00-A-810-N.,Civ.A. 00-A-810-N.
• Parties: Otis Curtis BISHOP & Ricky Lee, Jarrett, Plaintiffs, v. The ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

108 F.Supp.2d 1323

Otis Curtis BISHOP & Ricky Lee, Jarrett, Plaintiffs, v. The ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, et al., Defendants.

No. Civ.A. 00-A-810-N.

United States District Court, M.D. Alabama, Northern Division.

August 17, 2000.

G. Keith Clark, Clark & Nelms, Montgomery, AL, for Otis Kurtis Bishop, plaintiff.

Harry A. Lyles, Alabama Department of Environmental Management, Montgomery, AL, for The Alabama Department of Environmental Management, defendant.

Robert E. Sasser, Rebecca W. Pritchett, Thomas R. Head, III, Charlanna W. Spencer, Sirote & Permutt, P.C., Montgomery, AL, for The Water Works & Sanitary Sewer Board of the City of Montgomery, Alabama, defendant.

MEMORANDUM OPINION

ALBRITTON, Chief Judge.

I. INTRODUCTION

This cause is before the court on a Motion to Remand filed by the Plaintiffs, Otis Kurtis Bishop and Ricky Lee Jarrett ("the Plaintiffs") on June 28, 2000.

The Plaintiffs originally filed a Petition for Certiorari and Complaint for Declaratory Judgment in the Circuit Court for Montgomery, Alabama. The Water Works & Sanitary Sewer Board of the City of Montgomery ("the Board") filed a Notice of Removal on June 21, 2000, stating that this court had federal question and supplemental jurisdiction over the Plaintiffs' claims. The Alabama Department of Environmental Management ("ADEM"), James Warr, and Charles Horn filed a Joinder in the Notice of Removal on June 21, 2000.

For reasons to be discussed, the Motion to Remand is due to be GRANTED.

II. FACTS

In this suit, originally filed in the Circuit Court of Montgomery County, Alabama, the Plaintiffs bring a Petition for Certiorari and a Complaint for Declaratory Judgment ("the Petition") against ADEM, the Director of ADEM, the Chief of the Water Division of ADEM, and the Board.

The Plaintiffs allege that a waste water treatment plant had discharged pollution into Miller Creek, impacting the Plaintiffs' recreational pursuits and environmental interests. The Plaintiffs allege that the Board took ownership and control of the plant, and the Board requested that ADEM issue an administrative consent order to the Board for violations that were occurring. The Plaintiffs say that the order which was issued by ADEM required the Board to submit an application for a new discharge permit, and also excused compliance with the effluent limitations in the future permit for three years. Petition at ¶ 11. The Plaintiffs state that when a draft of the new permit was presented for public access, neither the permit rationale nor the draft permit referenced the terms of the consent order. Id. at ¶ 14.

The Plaintiffs contend that by failing to publicly notice the terms of the proposed permit, ADEM violated ADEM Administrative Code Rules. The Plaintiffs ask that the permit be declared void, and that the rule or standard ADEM adopted which allowed the permit to be issued without putting the terms of the consent order on public notice also be declared void.

III. REMAND STANDARD

Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (1994); Wymbs v. Republican State Executive Committee, 719 F.2d 1072, 1076 (11th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1600, 80 L.Ed.2d 131 (1984). As such, federal courts only have the power to hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673. Because federal court jurisdiction is limited, the Eleventh Circuit favors remand of removed cases where federal jurisdiction is not absolutely clear. See Burns, 31 F.3d at 1095.

IV. DISCUSSION

Removal of a case to federal court is only proper if the case originally could have been brought in federal court. See 28 U.S.C. § 1441(a). In a motion to remand, the removing party bears the burden of showing the existence of federal jurisdiction. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996), cert. denied, 520 U.S. 1162, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997). In this case, the Defendants argue that removal was proper because the court has federal question jurisdiction. Federal question jurisdiction requires that the action arise under the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 1331. In deciding whether a federal question exists, the court must apply the well-pleaded complaint rule whereby the court looks to the face of the complaint, rather than to any defenses asserted by the defendant. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). There are, however, exceptions to this well-pleaded complaint rule. One exception to the well-pleaded complaint rule is that a plaintiff cannot avoid federal jurisdiction by "omitting to plead necessary federal questions in a complaint." Franchise Tax Board v. Laborers Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (citations omitted).

In Franchise Tax Board, the Supreme Court stated that although a plaintiff's cause of action is created by state law, the "case might still `arise under' the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Id. at 13, 103 S.Ct. 2841. In other words, "some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims." Id.

One basis for jurisdiction asserted by the Board is that the Plaintiffs have brought a claim under the Fourteenth Amendment to the United States Constitution. The Plaintiffs state in response that they do not bring such a claim in their Petition, and that even if the allegations of their Petition could support a federal due process claim, they have chosen not to plead such a claim and this court must respect that choice. The court agrees. On the face of the Petition, there is no claim asserted under the Fourteenth Amendment to the United States Constitution. Simply because the Plaintiffs could have asserted a federal claim, but chose not to, does not give this court federal question jurisdiction, as long as federal law is not essential to the state law claim which is advanced. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 810, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988).

The other basis for jurisdiction asserted by the Board is that the Plaintiffs' claims necessarily require an application of federal law. The Plaintiffs dispute that any interpretation of federal law is required to resolve their state law claims. They state that they are "questioning whether ADEM followed its own state procedures which were duly adopted according to state law." Plaintiffs' Motion to Remand, page 3. The Plaintiffs cite this court to authority for the proposition that federal jurisdiction does not lie where only a state-issued permit is at issue. The Plaintiffs point out that this court has previously determined that it lacked federal question jurisdiction over a complaint which presented a challenge only under state law to the issuance of a NPDES permit under the State's procedures. See Peters v. The Harper Group, Civ. Action 00-A-88-S (M.D.Ala. March 10, 2000). The Plaintiffs also cite this court to authority for the proposition that federal law does not govern if the federal statute which may be relevant to the state law claims advanced does not provide a private cause of action.

The Board agrees with both of the propositions relied on by the Plaintiffs. The Board concedes that if the Plaintiffs were challenging only the issuance of a single permit, this court would lack federal question jurisdiction. The Board argues, however, that neither proposition relied on by the Plaintiffs applies in this case. According to the Board, "Plaintiffs challenge both the NPDES [National Pollutant Discharge Elimination System] permit issued by the Board and, of importance for federal jurisdiction, the permitting process pursuant to which the permit was issued." Opposition to Plaintiff's Motion to Remand, page 3. The Board states that in addition to their claim based on the issuance of the permit, the Plaintiffs also ask the court to determine that ADEM's procedures for administering the NPDES permitting program are flawed and deprive the public of proper notice. In support of their argument, the Board cites the court to two paragraphs of the Plaintiffs' Petition. In paragraphs 16 and 21 the Plaintiffs allege as follows:

16. By knowingly putting a draft permit on notice that contained false, misleading or erroneous terms, ADEM corrupted the entire permitting process.

21. ADEM has adopted an exception to ADEM Administrative Code Rule 335-6-621(4). Said exception allows ADEM to put terms of draft permits on public notice that have been waived or overridden by separate administrative action without specifying the same in the permit's public notice. ADEM has applied this exception to permits for both industrial and municipal facilities which are located in different parts of the State and are in different waterways; therefore, this exception is one of general applicability which directly contravenes duly adopted regulations and which inherently misleads and harms the public.

The Plaintiffs do not deny that they have challenged both a specific permit and a specific ADEM rule. The Plaintiffs insist, however, that their allegations do not state as broad a claim as the Board has argued is stated. The Plaintiffs state that in paragraphs 16 and 21, as set out above, the reference to the permitting process is with regard to the single permit which has been issued, not the entire permitting program. The Plaintiffs point out that in paragraphs 17 and 18 they state that ADEM provided "misleading and erroneous notice of the terms of the proposed permit," and that...