Jones v. City of Lakeland, 97-5917

• Decision Date: 20 April 1999
• Docket Number: No. 97-5917,97-5917
• Citation: 175 F.3d 410
• Parties: Rudolph JONES, Jr.; Susan Jones; Tandy Jones Gilliland, Plaintiffs-Appellants, v. CITY OF LAKELAND, Tennessee, a Tennessee Municipal Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 410

175 F.3d 410

48 ERC 1353

Rudolph JONES, Jr.; Susan Jones; Tandy Jones Gilliland Plaintiffs-Appellants, v. CITY OF LAKELAND, Tennessee, a Tennessee Municipal Corporation, Defendant-Appellee.

No. 97-5917.

United States Court of Appeals Sixth Circuit.

Argued Aug. 5, 1998.

Decided April 20, 1999.

Saul C. Belz (argued and briefed), David A. McLaughlin (briefed), Memphis, TN, for Plaintiffs-Appellants.

Richard L. Winchester, Jr. (argued and briefed), The Winchester Law Firm, Memphis, TN, for Defendant-Appellee.

Before: KRUPANSKY, NORRIS, and SILER, Circuit Judges.

NORRIS, J., delivered the opinion of the court, in which SILER, J., joined. KRUPANSKY, J. (pp. 417-422), delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

Plaintiffs Rudolph Jones, Jr., Susan Jones, and Tandy Jones Gilliland, three Tennessee citizens, filed suit against the City of Lakeland, Tennessee, to enforce provisions of the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. § 1251-1376 (1988). In their complaint, plaintiffs alleged that the city was discharging pollution into Tennessee waterways in violation of its National Pollutant Discharge Elimination System ("NPDES") permit. The district court granted the city's motion to dismiss pursuant to 33 U.S.C. § 1365(b), concluding that the court lacked subject matter jurisdiction over plaintiffs' suit. Although we disagree with the court's rationale, we nevertheless affirm the court's decision because the court lacked subject matter jurisdiction over this matter in view of the limitations placed by 33 U.S.C. § 1319(g)(6) on the institution of lawsuits by citizens to enforce provisions of the Clean Water Act.

I.

In their complaint, plaintiffs alleged that the city violated the Clean Water Act and the Tennessee Water Quality Control Act ("TWQCA"), Tenn.Code Ann. §§ 69-3-101--131 (1997), by discharging impermissible amounts of waste into Oliver Creek. The city held a NPDES permit authorizing it to discharge waste from its stabilization lagoon into Oliver Creek at a rate not to exceed 62,000 gallons a day. ¹ The city had obtained the permit from the permit's previous holder, Lakeland Development Corporation, which, during the time it held the permit, was cited on more than one occasion by the Tennessee Department of Environment and Conservation ("the TDEC") for violating the permit's provisions regarding authorized amounts of discharge.

Like its predecessor, the city had been cited on two occasions by the TDEC for exceeding the limits of the NPDES permit. On November 22, 1994, the city and the TDEC entered into their third agreed order in which the city pledged to eliminate all discharge from the waste stabilization lagoon into Oliver Creek by March 1, 1996. ² In hopes of remedying the pollution problem, the city committed to building a new basin. Due to unforeseen problems, however, the construction of the basin was delayed and the March 1, 1996, deadline passed with the city still discharging waste into Oliver Creek. Ultimately, on August 26, 1996, the TDEC issued a fourth order requiring the city to cease all discharge by July 1, 1997, and fining the city $4,000 with the possibility of additional fines totaling $26,000.

On September 30, 1996, plaintiffs filed this action. ³ The city filed a motion to dismiss arguing that the Clean Water Act did not permit the filing of enforcement actions by citizens when the Administrator of the federal Environmental Protection Agency ("EPA") or a particular state is already prosecuting a parallel action. In response, plaintiffs argued that the limitation applies only when the government is "diligently prosecuting" a claim in a "court." 33 U.S.C. § 1365(b)(1)(B). According to plaintiffs, the TDEC failed to take effective action against the city even though the city had violated the third agreed order, and that any action that had been taken by the TDEC was not pursued in a state or federal court but consisted merely of administrative sanctions.

The district court granted the city's motion to dismiss for lack of subject matter jurisdiction. The court held that the TDEC was diligently prosecuting a civil action against the city and that plaintiffs had "failed to show, or even argue, that the TDEC is not a court." Plaintiffs now appeal. ⁴

II.

A. Standard of Review

Holding that it did not have subject matter jurisdiction over plaintiffs' action, the district court dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(1). When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction in order to survive the motion. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990). The city argues that the facts alleged by plaintiffs in their complaint are insufficient to establish subject matter jurisdiction. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, a similar safeguard to that employed under 12(b)(6) which governs motions to dismiss. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). Any factual findings made by the district court in resolving a motion to dismiss are reviewed only for clear error. Gafford v. General Electric Co., 997 F.2d 150, 161 (6th Cir.1993). Of course, we review de novo a district court's determination on the issue of subject matter jurisdiction. Greater Detroit Resource Recovery Auth. v. EPA, 916 F.2d 317, 319 (6th Cir.1990).

B. 33 U.S.C. § 1365

The Clean Water Act, in requiring states to establish water pollution prevention programs in compliance with federal laws and regulations, allows states to issue NPDES permits. 33 U.S.C. § 1342(b). An NPDES permit allows the holder to discharge waste into a waterway at a daily level not to exceed the effluent limitations established by the permit. An entity holding a NPDES permit is subject to both federal and state enforcement actions, along with suits brought by citizens, to enforce the effluent limitations contained in each permit. 33 U.S.C. § 1365(a). Citizen suits, however, are merely intended to supplement, but not supplant, enforcement by state and federal government agencies. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). As a result, the Clean Water Act contains restrictions on the public's ability to bring enforcement suits. According to the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a), a citizen may commence a civil action on his own behalf, subject to limitations found in § 1365(b) and 33 U.S.C. § 1319(g)(6).

We first take up § 1365(b). That section provides the following:

No action may be commenced ... if the Administrator [of the U.S. Environmental Protection Agency] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

33 U.S.C. § 1365(b). Thus, where a state has filed an action in a federal or state court to require compliance with a "standard, limitation, or order" and the action is being diligently prosecuted, § 1365(b) operates to bar parallel citizen suits. Relying upon § 1365(b), the district court dismissed plaintiffs' action.

(1) diligent prosecution

In their complaint, plaintiffs alleged that the "TDEC failed to undertake any action to prevent or abate the continuing current discharge by [the city] into Oliver Creek from the existing stabilization lagoon and thereby allowed the wrongful discharge to increase." Plaintiffs' primary contention appears to be not that the TDEC is doing nothing but, rather, that its prosecution cannot be diligent if it continues to allow the city to dump impermissible amounts of waste into Oliver Creek and if its attempts to remedy the problem are limited to entering a series of ineffective administrative orders.

We cannot agree with plaintiffs' view of the record. In concluding that the state was in fact diligently prosecuting an action against the city, the district court noted that four orders had been entered between the city (or its predecessor in interest) and the TDEC, the last of which was on August 26, 1996, one month prior to plaintiffs' filing of this action. This latest order required that the city be in full compliance with its NPDES permit by July 1, 1997. The court cited this fourth order as an example of the state's diligent prosecution of its action against the city. The record before this court on appeal further reflects that the city has attempted to comply with the orders and that the TDEC has extended deadlines in response to practical difficulties the city encountered in reaching full compliance. The fourth order required the city to pay a fine and provided for additional fines should the city fail to meet the full requirements of the order. The district court recognized that an enforcing agency must be accorded the latitude to respond to circumstances that delay remedial projects and warrant reassessment of compliance target dates. In using the term "diligently prosecuting," Congress did not contemplate the rigidity plaintiffs would have us visit upon the Act's enforcement scheme. It is clear that the TDEC is attempting to remedy the specific problems plaintiffs cite in their complaint. Accordingly, we are unable to say that the district court erred when it concluded that the TDEC's continued enforcement represents diligent prosecution as contemplated by the statute.

(2) action in court

Plaintiffs also contend that the administrative action taken by the TDEC against the city does not qualify as an "action in a federal or state court" to satisfy the requirements of § 1365(b)(1)(B). In dismissing plaintiffs' action, the district court explained that they had "failed to show, or even...