Cal. Sportfishing Prot. Alliance v. Shiloh Grp., LLC

Decision Date24 July 2017
Docket NumberCase No. 16–cv–06499–DMR
Citation268 F.Supp.3d 1029
Parties CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, Plaintiff, v. The SHILOH GROUP, LLC, et al., Defendants.
CourtU.S. District Court — Northern District of California

268 F.Supp.3d 1029

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, Plaintiff,
v.
The SHILOH GROUP, LLC, et al., Defendants.

Case No. 16–cv–06499–DMR

United States District Court, N.D. California.

Signed July 24, 2017


Andrew L. Packard, William Nazar Carlon, Law Offices of Andrew L. Packard, Petaluma, CA, Reed Wayne Super, Super Law Group, LLC, New York, NY, for Plaintiff.

Linda Catherine Beresford, Environmental Law Group LLP Varco & Rosenbaum, San Diego, CA, for Defendants.

ORDER RE DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Donna M. Ryu, United States Magistrate Judge

Plaintiff California Sportfishing Protection Alliance ("Plaintiff"), a non-profit environmental organization, filed this citizen suit against Defendants The Shiloh Group, LLC ("TSG") and Thomas Nelson ("Nelson") (collectively "Defendants") seeking to enforce the Clean Water Act ("CWA"). According to Plaintiff, Defendants own and operate a large industrial park that unlawfully discharges polluted storm water associated with industrial activities in violation of the CWA.

Defendants now move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Motion to Dismiss ("MTD") [Docket No. 8]. Plaintiff opposes the motion to dismiss, and also moves for leave to file a First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 15. Motion to Amend ("MTA") [Docket No. 29]. Having considered the parties' submissions as well as oral argument, and for the reasons stated below, the court DENIES Defendants' motion to dismiss, and GRANTS Plaintiff's motion to amend.

I. FACTUAL AND PROCEDURAL HISTORY

In response to Defendants' motion to dismiss, Plaintiff submitted its opposition brief and also filed a motion for leave to amend the complaint, along with a proposed FAC. Given that the motion to dismiss and motion for leave to amend are heavily intertwined, and in light of the fact that the court grants leave to file the FAC, the court sets forth the relevant facts based on the FAC, the exhibits attached to the FAC, and judicially noticeable documents. In the interests of clarity and judicial efficiency, the court will analyze the sufficiency of the allegations in the FAC rather than the complaint. For the purposes of adjudicating these motions, the court accepts the allegations in the FAC as true, except with respect to the analysis of the jurisdictional issue of mootness, as discussed below.

The court discusses the CWA in more detail below, and sets forth this brief background to provide context for the relevant facts. The CWA is intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To that end, Section 301(a) of the CWA prohibits the "discharge of any pollutant" into navigable waters from any "point source" unless certain statutory exceptions apply. See 33 U.S.C. §§ 1311(a), 1362(12). "One such exception is for discharges by entities or individuals who hold [National Pollutant

268 F.Supp.3d 1034

Discharge Elimination System, or NPDES] permits." Nat. Res. Def. Council, Inc. v. County of Los Angeles, 673 F.3d 880, 891 (9th Cir. 2011), rev'd on other grounds sub nom. Los Angeles Cty. Flood Control Dist. v. Nat. Res. Def. Council, Inc. , 568 U.S. 78, 133 S.Ct. 710, 184 L.Ed.2d 547 (2013) ; see also 33 U.S.C. § 1342. For storm water discharge, a permit is required only if the discharge falls into one of five categories. See 33 U.S.C. § 1342(p)(2)(A) through (E) (listing the five categories of storm water discharges that are subject to the permit requirement). One of these categories is storm water associated with "industrial activity." See 33 U.S.C. § 1342(p)(2)(B). The relevant EPA regulation, 40 C.F.R. § 122.26(b)(14), defines "storm water discharge associated with industrial activity [as] the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." The regulation sets forth categories of facilities which are considered to be engaging in "industrial activity," and identifies those industrial activities mainly by "Standard Industrial Classification" codes, otherwise known as SIC codes.

Defendants own and operate a 31–acre industrial park located at 930 Shiloh Road in Windsor, California (the "Facility"). FAC ¶¶ 10, 51 [Docket No. 37–1]. Defendants lease industrial lots at the Facility to approximately 60–80 tenant businesses. FAC ¶ 10. Industrial activities occur throughout the Facility and contribute to polluted storm water discharges. Id. ¶¶ 51–54, 61–64. These industrial activities include or have included fencing installation, wood pallet construction, structural rebar assembly, auto repair, and trucking operations. Id. ¶ 51. The industrial activities fall under a number of SIC codes, see 40 C.F.R. § 122.26(b)(14), depending on which businesses are operating at the Facility at a given time. FAC ¶ 52; see also First 60–Day Notice at 3–4 (Ex. A to FAC) (listing SIC codes for the industrial activities occurring at the Facility as of June 25, 2015) [Docket No. 29–2].

According to Plaintiff, as owners and operators of the Facility, Defendants maintain and control the Facility's common infrastructure including its ditches and pipes, and thereby control the discharges of storm water associated with industrial activities that flow from the Facility into waters covered by the CWA. FAC ¶¶ 54–64. The Facility discharges polluted storm water associated with the industrial activities in a number of ways. For example, the Facility has multiple subsites containing polluted soil from past industrial activities. Id. ¶ 54. Although some of these subsites are the subject of environmental remediation efforts, they remain exposed to storm water and storm water flows. Id. ¶ 54. Additionally, the Facility has ditches and pipes that collect and combine storm water from different parts of the Facility, see id. ¶ 57, and a paved road that runs throughout the Facility on which storm water collects and flows north into the Pruitt Creek. Id. ¶ 58. Moreover, because the Facility does not have "essential structural controls such as grading, berming, and roofing" to prevent storm water from coming into contact with contaminants and pollutants created by the industrial activities when it rains, id. ¶ 73, storm water flows across materials associated with industrial activities, becomes contaminated, and leaves the Facility. Id. The polluted storm water discharges from the Facility through concrete conveyances into the Pruitt Creek, which joins Pool Creek and Windsor Creek, both of which drain into Mark West Creek, which drains into the Russian River. Id. ¶¶ 50–51, 64; see also First 60–Day Notice at 4.

268 F.Supp.3d 1035

Starting in 2002, Defendants maintained a permit for the Facility's storm water discharges under California's statewide general permit for industrial activities ("General Permit"). See FAC ¶ 65; December 9, 2002 Receipt of Notice of Intent (Ex. B to Pltf's RJN) [Docket No. 17]. Under the General Permit, a permit holder must comply with three requirements: "1) discharge prohibitions; 2) Storm Water Pollution Prevention Plan ("SWPPP") requirements; and 3) monitoring and reporting requirements, including the requirement to prepare an annual report." FAC ¶ 31.

According to Plaintiff, although Defendants continuously have maintained coverage under the General Permit since 2002, they have failed to comply with the General Permit requirements, notwithstanding their expressed intent to abide by them. Plaintiff claims that Defendants have repeatedly and consistently exceeded discharge prohibitions, receiving water limitations, and effluent limitations, and have failed to develop and implement adequate SWPPPs. See First 60–Day Notice at 4–13; see e.g., FAC ¶¶ 68, 73–78.

On September 7, 2016, in order to address these and other violations of General Permit requirements, Plaintiff served Defendants with a 60–Day Notice of its intention to file a private citizen lawsuit to enforce the CWA. See First 60–Day Notice.

On November 7, 2016, in response to Plaintiff's First 60–Day Notice, Defendants submitted a Notice of Termination ("NOT") of their coverage under the General Permit to the California State Water Resources Control Board ("SWRCB"). See November 7, 2016 NOT (Ex. B to Defs' First RJN) [Docket No. 8–4].

A day later, on November 8, 2016, Plaintiff filed this citizen suit alleging four claims under the CWA for discharging polluted storm water associated with industrial activity in excess of the limits set forth in the General Permit, and for failing to implement the plans required under the General Permit necessary to reduce and/or prevent the discharge of pollutants in storm water discharges associated with industrial activity.

On December 9, 2016, Plaintiff served Defendants with its Second 60–Day Notice, alleging that Defendants violated the CWA by unlawfully discharging storm water associated with industrial activities without a required permit. See Second 60–Day Notice (Ex. B to FAC) [Docket No. 29–3].

On December 21, 2016, Defendants moved to dismiss the complaint on the ground that the action is moot because Defendants...

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