Bullseye Glass Co. v. Brown

• Decision Date: 02 January 2019
• Docket Number: Case No. 3:17-cv-1970-JR
• Citation: 366 F.Supp.3d 1190
• Parties: BULLSEYE GLASS CO., Plaintiff, v. Governor Kate BROWN, et al., Defendants.
• Court: U.S. District Court — District of Oregon

366 F.Supp.3d 1190

BULLSEYE GLASS CO., Plaintiff,

v.Governor Kate BROWN, et al., Defendants.

Case No. 3:17-cv-1970-JR

United States District Court, D. Oregon.

Signed January 2, 2019

Allan M. Garten, Kent S. Robinson, and Carrie Menikoff, GRM Law Group, 5285 Meadows Road, Suite 330, Lake Oswego, OR 97035. Of Attorneys for Plaintiff.

Ellen F. Rosenblum, Oregon Attorney General, Scott J. Kaplan and Carla Scott, Senior Assistant Attorneys General, Oregon Department of Justice, 100 SW Market Street, Portland, OR 97201. Of Attorneys for Defendants Kate Brown, Richard Whitman, and Patrick Allen.

Jenny M. Madkour, Multnomah County Attorney, and James G. Rice and Jacqueline Sadker Kamins, Senior Assistant County Attorneys, Office of the Multnomah County Attorney, 501 SE Hawthorne Boulevard, Suite 500, Portland, OR 97214. Of Attorneys for Defendant Multnomah County Health Department.

OPINION AND ORDER

Michael H. Simon, United States District Judge

Plaintiff Bullseye Glass Co. ("Bullseye") brings this lawsuit against Defendants Governor Kate Brown ("Brown"), Director of the Oregon Department of Environmental Quality ("DEQ") Richard Whitman ("Whitman"), Director of the Oregon Health Authority ("OHA") Patrick Allen ("Allen"),¹ and the Multnomah County Health Department ("Multnomah County"). Bullseye asserts two claims. As Claim One, Bullseye alleges that all Defendants have denied Bullseye "substantive due process" in violation of 42 U.S.C. § 1983.² As a remedy for Claim One, Bullseye seeks declaratory and injunctive relief against all Defendants and money damages only against Multnomah County.

As Claim Two, Bullseye seeks only declaratory and injunctive relief against the State Defendants. Specifically, Bullseye seeks a declaration that a specific federal air quality regulation, 40 C.F.R. Part 63, Subpart SSSSSS, § 63.11448, ("Regulation 6S"), does not apply to Bullseye or its operations. Under the Clean Air Act, the United States Environmental Protection Agency ("EPA") is responsible for regulating emissions of hazardous air pollutants. Pursuant to that authority, EPA has issued National Emission Standards for Hazardous Air Pollutants ("NESHAPS"), including Regulation 6S. As a further remedy for Claim Two, Bullseye requests injunctive relief, enjoining the State Defendants from enforcing either Regulation 6S—or its state equivalent—against Bullseye.

All Defendants have moved to dismiss Bullseye's first claim. The State Defendants also have moved to dismiss Bullseye's second claim. In his Findings and Recommendation ("F & R"), United States Magistrate Judge Paul Papak recommended dismissing both claims with prejudice.³ For the reasons that follow, the Court adopts the F & R in part and declines to adopt it in part. Because Bullseye has not stated a claim under § 1983, the Court grants Defendants' motion to dismiss Plaintiff's first claim without prejudice. Regarding Plaintiff's second claim, because the Court has subject matter jurisdiction to address that claim and neither Eleventh Amendment immunity nor the doctrine of claim preclusion bars that claim, the Court denies the State Defendants' motion to dismiss Plaintiff's second claim.

STANDARDS

A. Magistrate Judge's Findings and Recommendation

Under the Federal Magistrates Act, a court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). If a party files an objection to a magistrate judge's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. ; Fed. R. Civ. P. 72(b)(3). Plaintiff and the State Defendants have objected to portions of the F&R, and the Court has reviewed those portions de novo.

B. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction.

Gunn v. Minton , 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013). A federal court must presume "that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted); see also Robinson v. United States , 586 F.3d 683, 685 (9th Cir. 2009) ; Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, because it involves a court's power to hear a case, "can never be forfeited or waived." United States v. Cotton , 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either "facial" or "factual." See Safe Air for Everyone , 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id.

C. Failure to State a Claim

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1140 (9th Cir. 2012). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution , 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The Court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A complaint must contain factual allegations sufficient to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr , 652 F.3d at 1216. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epsten Grinnell & Howell , 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

BACKGROUND⁴

Bullseye is an Oregon corporation that manufacturers colored glass for use in both art and architecture. Both its headquarters and its manufacturing facility are in Portland, Oregon. In 2015 and early 2016, the DEQ concluded that airborne emissions from Bullseye's glass-making operations might contain pollutants presenting serious public health concerns. This discovery originated in part from a study that DEQ conducted with the United States Forest Service beginning in 2013. The study investigated the presence of heavy metals in moss found on trees in Portland ("Moss Study"). The final Forest Service report on the Moss Study was released on June 9, 2016. The report indicated that the sample with the highest readings for cadmium and arsenic was located only several blocks north of Bullseye's colored glass manufacturing facility.

Based on the preliminary results of the Moss Study and before the release of the final Forest Service report, a DEQ official contacted Bullseye. The official explained that DEQ would be conducting emissions testing by placing an air quality monitor close to Bullseye's facility. DEQ then measured the air quality during 18 days of testing in October and early November 2015. On January 19, 2016, DEQ received the test results. The results showed maximum daily concentrations of arsenic and cadmium above typical urban concentrations, as defined by the federal Agency for Toxic Substances and Disease Registry, which is part of the United States Department of Health and Human Services. Neither DEQ nor the Forest Service informed Bullseye of these results at the time they were received.

During the same period when DEQ was monitoring the air quality near Bullseye's facility, the Forest Service collected soil samples from directly below the moss-bearing trees. The results of this soil sampling indicated that the average arsenic and cadmium levels in the soil around Bullseye were below "background levels." The background level of a metal is the concentration at which it is expected to occur in an area due to natural sources and general urban contamination.

On approximately February 1, 2016, the results from DEQ's air quality testing were disclosed to the news media. The results of the soil sampling, however, were not publicly disclosed. On that same day, February 1, 2016, DEQ officials visited the Bullseye facility, provided Bullseye with a copy of the air quality test results, and informed Bullseye that these results had been given to the press. The resulting news accounts included substantial criticism of Bullseye.

On February 9, 2016, the Multnomah County Health Department released a map, purporting to show estimated...