Ecological Rights Found. v. Pacific Lumber Co.

• Decision Date: 30 October 2000
• Docket Number: No. 99-17076,99-17076
• Parties: (9th Cir. 2000) ECOLOGICAL RIGHTS FOUNDATION; MATEEL ENVIRONMENTAL JUSTICE FOUNDATION, Plaintiffs-Appellants, v. PACIFIC LUMBER COMPANY, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1141

230 F.3d 1141 (9th Cir. 2000)

ECOLOGICAL RIGHTS FOUNDATION; MATEEL ENVIRONMENTAL JUSTICE FOUNDATION, Plaintiffs-Appellants, v. PACIFIC LUMBER COMPANY, Defendant-Appellee.

No. 99-17076

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 8, 2000

Filed October 30, 2000

[Copyrighted Material Omitted] Sharon E. Duggan, San Francisco, California, and William Verick, Klamath Environmental Law Center, Eureka, California, for the plaintiffs-appellants.

Jared G. Carter, Scotia, California, and Michael D. Macomber and Frank Shaw Bacik, Ukiah, California, for the defendant appellee.

Appeal from the United States District Court for the Northern District of California Marilyn Hall Patel, District Judge, Presiding. D.C. No.CV-97-00292-MHP

Before: Robert Boochever, Stephen S. Trott and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:

Plaintiff organizations Ecological Rights Foundation ("ERF") and Mateel Environmental Justice Foundation ("Mateel") brought this lawsuit against Pacific Lumber Company alleging various violations of the Federal Water Pollution Control Act of 1972, better known as the Clean Water Act, see 33 U.S.C. 1251 et seq ., at Pacific Lumber's Yager Camp and Carlotta mill operations in Humboldt County, California. The district court granted Pacific Lumber's motion for summary judgment on the ground that the plaintiffs lacked standing to sue. ERF and Mateel appeal the district court's standing ruling. We conclude that the district court's approach to standing cannot be squared with Friends of the Earth v. Laidlaw, 528 U.S. 167, 120 S. Ct. 693 (2000), decided after the district court judgment issued in this case, and that applying Laidlaw, the two plaintiff organizations do have standing to pursue this litigation. Because Pacific Lumber's other arguments, whether valid or not, would not support dismissal of this case, we reverse the judgment and remand the case for further district court proceedings.

I. Background

1. Yager Creek

Yager Camp and the Carlotta sawmill both abut Yager Creek. Runoff from these two facilities drains into the creek and waterways further downstream. The creek flows through Yager Camp, a 150-acre site that includes a truck wash operation, a composting area, and log decks to store logs before they are sent to the Carlotta sawmill. The mill, located just downstream of Yager Camp, occupies more than 70 acres alongside the creek. The mill facility also includes truck shops, an aggregate crusher, and more log decks.

Yager Creek flows into the Van Duzen River about a mile below the Carlotta mill. The Van Duzen in turn empties into the Eel River, and the Eel reaches the Pacific Ocean about 12 miles from Pacific Lumber's facilities. Yager Creek and the other rivers in the Eel River system are used for swimming, boating, and other recreational activities. Various forms of wildlife inhabit the area nourished by Yager Creek, and fish use the creek to migrate to their spawning grounds.

Several members of ERF and Mateel use Yager Creek for recreation. They particularly enjoy their visits because they can view wildlife in and around the creek. The organizations' members avoid some activities they would otherwise enjoy in and around Yager Creek, however, because they fear that runoff from Pacific Lumber's two facilities is damaging the creek and its wildlife, and enjoy other activities less than they would if there were no such runoff. Among the several members of the plaintiff organizations who use the creek for recreational activities, two are particularly significant for this case.

Christopher Hinderyckx, a member of Mateel, began visiting the creek in 1989 when he was commuting from his home in southern Humboldt County to attend classes at the College of the Redwoods in Arcata. Since completing his course work, he has continued to drive to Arcata often, sometimes stopping along the creek. Over the years, Hinderyckx has gone swimming in Yager Creek at least a dozen times. Although Hinderyckx has enjoyed swimming in Yager Creek, he is less likely to swim there in the future, because he now has information that suggests to him that the creek may be polluted. Hinderyckx also hesitates to fish in the creek because he is concerned about harmful pollutants in the water. And because the creek is not as clean as it should be, Hinderyckx maintains, he aesthetically enjoys his recreational activities there less than he otherwise would.

Similarly, Frederic Evenson, a Humboldt County resident since 1990 and an ERF member, takes part in various recreational activities on and downstream of Yager Creek, including swimming and snorkeling in the creek near Carlotta and observing wildlife. He "derive[s] immense pleasure, strength and inspiration" from these visits. Evenson plans to continue these visits to Yager Creek, but his enjoyment of Yager Creek and the downstream waterways is impaired by discharges of pollutants from Carlotta and Yager Camp.

2. Statutory Background

Yager Camp and the Carlotta sawmill are subject to the mandates of the Clean Water Act ("CWA"). See 33 U.S.C. 1251 et seq. A linchpin of the CWA's regulatory scheme is the National Pollution Discharge Elimination System("NPDES") permit program, which allows certain discharges of pollutants only if in compliance with government-issued permits, and imposes related monitoring and reporting requirements. See 33 U.S.C. 1342. The Clean Water Act makes illegal any discharges of pollutants that are not specifically allowed by an NPDES permit. 33 U.S.C. 1311(a).

Under the Clean Water Act, the states, with EPA's approval, may issue and administer NPDES permits. See 33 U.S.C. 1342(b); see also Cal. Water Code 13370 (expressing California's intent to implement an NPDES program at the state level). In California, the State Water Resources Control Board ("SWRCB") issues and administers a so-called General Permit that regulates discharges of pollutants into California's waters. Industrial facilities in California subject to the Clean Water Act must either comply with the General Permit or obtain individualized NPDES permits. See SWRCB Water Quality Order No. 97-03-DWQ, NPDES General Permit No. CAS000001 at 2 P 5 (hereinafter "General Permit").

Among the conditions imposed by the 1997 General Permit are prohibitions on non-storm water discharges of pollutants into the state's waterways except those specifically allowed, as well as strict limits on the discharge of pollutants into storm water.¹ In addition, each facility subject to the General Permit must develop and implement an effective Storm Water Pollution Prevention Plan ("SWPPP") "to reduce or prevent pollutants associated with industrial activity in storm water discharges and authorized non-storm water discharges." 1997 General Permit at 2 P 10. Substantially similar, albeit less detailed, requirements were in place in the precursor to the 1997 General Permit that was in effect from 1992 through 1996.

3. This Litigation

The plaintiff organizations brought this action pursuant to the CWA's citizen suit provision, claiming violations of the General Permit. The Clean Water Act allows any citizen to sue "any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under this chapter or . . . an order issued by the [EPA] Administrator or a State with respect to such a standard or limitation." 33 U.S.C. 1365. An "effluent standard or limitation" is further defined to include "a permit or condition thereof issued under section 1342 of this title." 33 U.S.C. 1365(f)(6).

At least 60 days before filing a lawsuit, a potential plaintiff must notify the alleged violator of her intent to sue. See 33 U.S.C. 1365(b)(1)(A); see also National Envtl. Found. v. ABC Rail Corp. 926 F.2d 1096, 1097-98 (11th Cir. 1991) (compliance with 1365(b) is a mandatory prerequisite to citizen suit). Such notice must include

sufficient information to permit the recipient to iden tify the specific standard, limitation, or order alleged to have been violated, the activity alleged to consti tute a violation, the person or persons responsible for the alleged violation, the location of the alleged vio lation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.

40 C.F.R. 135.3.

To comply with this notice requirement, ERF and Mateel sent letters to Pacific Lumber on October 30 and November 12, 1996, giving notice of intent to sue regarding alleged CWA violations at Yager Camp and Carlotta, respectively. The Yager Camp letter alleged the following violations of the 1992 General Permit: unpermitted discharges of contaminated storm water; failure to prepare and implement an adequate SWPPP;² failure to comply with the General Permit's reporting and monitoring conditions; and failures to conduct required visual observations and to collect storm water samples. The Carlotta letter alleged: discharges of pollutants in violation of the 1992 General Permit; failure to prepare and implement an adequate SWPPP; failure to monitor discharges of pollutants in violation of the General Permit's conditions; failures to conduct visual observations and to collect and analyze storm water samples; inadequate record-keeping and reporting; failure to mitigate discharges of pollutants; and failure to properly operate and maintain facilities to minimize pollution. The letters also alleged that both sites were in violation of California's "Proposition 65," Cal. Health & Safety Code 25249.5.³

On January 28, 1997, ERF and Mateel filed a complaint against Pacific Lumber, reiterating the allegations of 1992 General Permit violations that were set forth in the Yager Camp and Carlotta letters.⁴ The plaintiffs filed their first amended complaint, alleging violations of the 1997 General Permit then in effect, on August 12, 1998, without first sending new 60-day notice letters to Pacific Lumber. Both the...