CA Sportfishing Protection Alliance v. Allison

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 CALIFORNIA SPORTFISHING No. 2:20-cv-02482 WBS AC PROTECTION ALLIANCE, 13 Plaintiff, 14 ORDER RE: DEFENDANTS’ MOTION v. FOR SUMMARY JUDGMENT 15 KATHLEEN ALLISON, et al., 16 Defendants. 17

18 COUNTY OF AMADOR, a public agency of the State of 19 California, 20 Plaintiff, 21 v. 22 KATHLEEN ALLISON, et al., 23 Defendants. 24 25 ----oo0oo---- 26 Plaintiffs California Sportfishing Protection Alliance 27 and County of Amador (“Amador”) brought this now-consolidated 28 action against Kathleen Allison, in her official capacity as 1 Secretary of the California Department of Corrections and 2 Rehabilitation, and Patrick Covello, in his official capacity as 3 Warden of CDCR’s Mule Creek State Prison (collectively 4 “defendants”), seeking declaratory and injunctive relief for 5 alleged violations of the Clean Water Act, as amended by the 6 Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. 7 (See First Amended Complaint (Docket No. 35); Order Consolidating 8 Cases (Docket No. 18).) 9 The court previously held in its order dated August 29, 10 2022, that Amador has Article III standing because it suffered 11 sufficient economic injury. (Docket No. 60 at 10.) Defendants 12 now move for summary judgment on the issue of Amador’s standing 13 to bring this action as a “citizen” under the Clean Water Act. 14 (Docket No. 73.) The court does not recite a full background of 15 the case as it has done so in its prior order. (Docket No. 60 at 16 2-5.) 17 I. Discussion 18 Summary judgment is proper “if the movant shows that 19 there is no genuine dispute as to any material fact and the 20 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 21 P. 56(a). A party may move for summary judgment either for one 22 or more claims or defenses, or for portions thereof. Id. Where 23 a court grants summary judgment only as to a portion of a claim 24 or defense, it “may enter an order stating any material fact . . 25 . that is not genuinely in dispute and treating the fact as 26 established in the case.” Id. at 56(g). 27 A material fact is one “that might affect the outcome 28 of the suit under the governing law,” and a genuine issue is one 1 that could permit a reasonable trier of fact to enter a verdict 2 in the non-moving party’s favor. Anderson v. Liberty Lobby, 3 Inc., 477 U.S. 242, 248 (1986). The moving party bears the 4 initial burden of establishing the absence of a genuine issue of 5 material fact and may satisfy this burden by presenting evidence 6 that negates an essential element of the non-moving party’s case. 7 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 8 Alternatively, the movant may demonstrate that the non-moving 9 party cannot provide evidence to support an essential element 10 upon which it will bear the burden of proof at trial. Id. The 11 burden then shifts to the non-moving party to set forth specific 12 facts to show that there is a genuine issue for trial. See id. 13 at 324. Any inferences drawn from the underlying facts must, 14 however, be viewed in the light most favorable to the non-moving 15 party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 16 475 U.S. 574, 587 (1986). 17 A. Reconsideration of Prior Order 18 The parties presented arguments concerning whether it 19 is appropriate for the court to reconsider its prior order 20 concerning Amador’s standing. (Pl.’s Opp’n at 6-8 (Docket No. 21 66), Defs.’ Reply (“Reply”) at 2 (Docket No. 73).) However, the 22 court need not reach this issue, as the instant motion does not 23 require reconsideration. The prior order dealt with Amador’s 24 Article III standing to bring suit in federal court. (Docket No. 25 60 at 10.) At issue here is Amador’s statutory standing to bring 26 suit under the Clean Water Act. 27 B. County of Amador’s Standing 28 In interpreting a statute, courts “look first to the 1 words that Congress used. Rather than focusing just on the word 2 or phrase at issue, [courts] look to the entire statute to 3 determine Congressional intent.” Defs. of Wildlife v. Browner, 4 191 F.3d 1159, 1164 (9th Cir. 1999), opinion amended on denial of 5 reh’g, 197 F.3d 1035 (9th Cir. 1999) (internal quotation marks 6 and citations omitted). 7 The Clean Water Act (“the Act”) allows “any citizen” to 8 bring a civil action “against any person . . . who is alleged to 9 be in violation of [ ] an effluent standard or limitation under 10 [the Act].” 33 U.S.C. § 1365(a). “For purposes of [the citizen 11 suit provision],” the Act defines “citizen” as a “person or 12 persons having an interest which is or may be adversely 13 affected.” 33 U.S.C. §1365(g). The Act defines “person” as “an 14 individual, corporation, partnership, association, State, 15 municipality [including counties], commission, or political 16 subdivision of a State, or any interstate body.” 33 U.S.C. §§ 17 1362(4), 1362(5). 18 At issue here is whether state and local governmental 19 bodies, including counties, fall within the Act’s definition of 20 “citizen.” The court concludes that they do based on the 21 statute’s unambiguous language. Because § 1365 does not provide 22 a separate definition of “person,” see 33 U.S.C. § 1365, the 23 general definition of the term applies, see Patagonia Corp. v. 24 Bd. of Governors of Fed. Rsrv. Sys., 517 F.2d 803, 810 (9th Cir. 25 1975). The definition of “person” includes counties, and 26 therefore the definition of “citizen”--which implicitly 27 incorporates the definition of “person”--also includes counties. 28 See 33 U.S.C. §§ 1362(4), 1362(5), 1365(g). Although the Act’s 1 definitions of “person” and “citizen” depart from the ordinary 2 meaning of those terms, the court must nonetheless follow those 3 definitions. See U.S. v. W.R. Grace & Co., 429 F.3d 1224, 1238 4 (9th Cir. 2005) (citing Stenberg v. Carhart, 530 U.S. 914, 942 5 (2000)). 6 This interpretation aligns with the Supreme Court’s 7 finding that “a State is a ‘citizen’ under the [Clean Water Act] 8 . . . and is thus entitled to sue under [the citizen suit 9 provision].” See U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 616 10 (1992).1 The Department of Energy court provided a brief 11 discussion of the statutory language, which followed the same 12 reasoning delineated above by this court. See id. at 613 n.5. 13 Multiple other courts have found that a state is a citizen based 14 on the same analysis of the statutory text. See Illinois v. 15 Outboard Marine Corp., 619 F.2d 623, 631 (7th Cir. 1980), vacated 16 on other grounds, Outboard Marine Corp. v. Illinois, 453 U.S. 917 17 (1981); Massachusetts v. U.S. Vet. Admin., 541 F.2d 119, 121 n.1 18 (1st Cir. 1976); City of Cincinnati, No. 103-cv-731, 2007 WL 19 956432, at *4 n.3 (S.D. Ohio Mar. 27, 2007); United States v. 20 City of Toledo, 867 F. Supp. 595, 597 (N.D. Ohio 1994). 21 Defendants cite two cases holding that a state is not a 22 citizen under the Act: California v. Dep’t of Navy, 631 F. Supp. 23 584 (N.D. Cal. 1986), aff’d on other grounds, California v. U.S. 24 Dep’t of Navy, 845 F.2d 222 (9th Cir. 1988); and U.S. v. 25 Hopewell, 508 F. Supp. 526 (E.D. Va. Dec. 4, 1980). These 26 1 Contrary to defendants’ mischaracterization (see Reply 27 at 14), this statement was in the body of the opinion, not a footnote. See Dep’t of Energy, 503 U.S. at 616. 28 1 decisions are not binding on this court, nor are they persuasive, 2 as both were issued prior to the Supreme Court’s decision in 3 Department of Energy. 4 Defendants also make various arguments from statutory 5 text and structure, legislative history, and policy, which the 6 court will address in turn. 7 A. Statutory Text and Structure 8 Defendants first cite the statutory canon of 9 construction, expressio unius. (See Reply at 11.) According to 10 this canon, “[w]here Congress includes particular language in one 11 section of a statute but omits it in another section of the same 12 Act, it is generally presumed that Congress acts intentionally 13 and purposely in the disparate inclusion or exclusion.” See 14 Defs. of Wildlife, 191 F.3d 1159 at 1165 (citing Russello v. 15 United States, 464 U.S. 16, 23, (1983)). This canon “applies 16 only when circumstances support[] a sensible inference that the 17 term left out must have been meant to be excluded.” N.L.R.B. v. 18 SW Gen., Inc., 580 U.S. 288, 137 (2017) (internal quotation marks 19 and citation omitted). 20 Defendants argue that a municipality is not a citizen 21 because Congress expressly included municipalities in the 22 definition of “person” at § 1362(5), but not in the definition of 23 “citizen” at § 1365(g). (Reply at 11.) This argument is wholly 24 unconvincing. Section 1362(5) is contained within the 25 “Definitions” section of the Act, which provides detailed 26 definitions of relevant terms. See 33 U.S.C. § 1362. In 27 contrast, § 1365(g) is part of the “Citizen Suit” provision, 28 which does not purport to define “person” at all and makes no 1 effort to enumerate all potential plaintiffs or defendants. See 2 33 U.S.C. § 1365. Section 1365(g) also fails to explicitly 3 reference private citizens as plaintiffs, see 33 U.S.C. 1365(g), 4 but it would be absurd to conclude from this omission that 5 private citizens are not proper plaintiffs under the Act. Rather 6 than unnecessarily listing the class of all potential plaintiffs, 7 § 1365(g) defines “citizen” with reference to the term “person,” 8 thereby incorporating the general definition of “person.” See 9 id. 10 At oral argument, defendants pointed to language in § 11 1362 that states: “Except as otherwise specifically provided, 12 when used in this chapter . . . ” 33 U.S.C. § 1362. This 13 language is followed by the definitions of twenty-seven terms, 14 including “person.” See id. Defendants argued that this 15 prefatory language indicates that a different definition of 16 “person” should apply to the citizen suit provision. However, 17 defendants did not suggest an alternative textual definition of 18 “person” or “citizen,” instead arguing that the court should 19 assume that the term “citizen” includes only natural persons. 20 This argument is unavailing, as defendants fail to identify any 21 language in the statute “otherwise specifically provid[ing]” an 22 alternative definition. See 33 U.S.C. § 1362. 23 In briefing, defendants made a similar argument that an 24 alternative definition of “person” should apply. However, they 25 instead pointed to § 1365(a)(1), which states in relevant part 26 that citizens may bring suits “against any person (including (i) 27 the United States, and (ii) any other governmental 28 instrumentality or agency to the extent permitted by the eleventh 1 amendment to the Constitution).” See 33 U.S.C. § 1365(a)(1). 2 Defendants argued that this language constitutes an alternative 3 definition of “person” that should apply instead of the general 4 definition at § 1362(5). (See Reply at 3, 11-12.) However, the 5 parenthetical text is clearly not meant to serve as an exclusive 6 definition of the term “person,” but rather as a clarification 7 that such government bodies are included in the class of proper 8 defendants. If the court were to interpret the parenthetical as 9 an alternative definition of the term “person” as defendants seem 10 to suggest, then citizen suits would be improper as against all 11 private defendants, which is clearly incorrect. And even if the 12 parenthetical text was a narrow definition of “person” for 13 purposes of § 1365, it would counsel in favor of municipalities 14 as citizens, as it includes “any other governmental 15 instrumentality or agency.” See 33 U.S.C. § 1365(a)(1)(ii). 16 Defendants also argue that the inclusion of 17 governmental bodies in § 1365(a)(1)(ii) (quoted above) but not in 18 § 1365(g) indicates Congressional intent to make such bodies 19 potential defendants, not potential plaintiffs. Once again, this 20 argument is unconvincing as § 1365(g) does not purport to 21 enumerate the class of potential plaintiffs, whether public or 22 private actors. Further, private citizens may act as both 23 plaintiffs and defendants under the Act, and the statutory scheme 24 does not indicate that government bodies must be treated 25 differently. 26 Defendants next allude to the canon against 27 superfluity. (See Reply at 3, 12.) According to this canon, 28 “[a] statute should be construed so that effect is given to all 1 its provisions, so that no part will be inoperative or 2 superfluous, void or insignificant.” Corley v. United States, 3 556 U.S. 303, 314 (2009) (internal quotation marks and citations 4 omitted). Defendants point out that § 1365(h) gives state 5 governors the ability to commence “civil actions (not citizen 6 suits)”2 against the EPA Administrator. (Reply at 3.) They 7 conclude that the general definition of “persons” (which includes 8 states and municipalities) cannot apply to the definition of 9 “citizen,” as such an interpretation would render § 1365(h) 10 superfluous. Id. Defendants fail to note that § 1365(h) permits 11 governors to bring civil actions in certain circumstances, 12 “without regard to the [notice requirements] of subsection (b) of 13 this section,” which otherwise apply to all citizen suits. 33 14 U.S.C. § 1365(h). This provision appears to be merely an 15 exception to the notice requirements. Because § 1365(h) does 16 more than provide that state governors may bring civil suits, the 17 court’s interpretation does not render it superfluous. 18 B. Legislative History and Policy 19 Defendants next argue that the Act’s legislative 20 history evinces Congressional intent to exclude governmental 21 bodies from the class of potential plaintiffs. (Reply at 15-18.) 22 However, the court’s “inquiry begins with the statutory text, and 23 ends there as well if the text is unambiguous.” BedRoc Ltd. v. 24 United States, 541 U.S. 176, 183 (2004). But see ASARCO, LLC v. 25

26 2 Defendants’ attempt to draw a distinction between “civil actions” and “citizen suits” is nonsensical. The term 27 “citizen suit” is only used in the title of § 1365. Otherwise, the term “civil action” is used to refer to citizen suits 28 throughout § 1365. See generally 33 U.S.C. § 1365. ee ee eee I EE OS OE OSE eee

1 Celanese Chem. Co., 792 F.3d 1203, 1210 (9th Cir. 2015) (citing 2 Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th 3 Cir. 2001) (resort to legislative history may be appropriate 4 “even where the plain language is unambiguous, where the 5 legislative history clearly indicates that Congress meant 6 something other than what it said”) (internal quotation marks and 7 citation omitted). The court has reviewed the legislative 8 | history presented by defendants and finds that it does not 9 clearly indicate contrary Congressional intent such that ignoring 10 the plain language of the statute is warranted. The court 11 likewise rejects defendants’ policy arguments. (See Reply at 18- 12 19). It is not for this court to decide upon the best policy 13 outcome when the statutory text is clear. Accordingly, the court 14 finds that Amador County has statutory standing as a “citizen” 15 under the Clean Water Act and will deny the motion for summary 16 || judgment. 17 IT IS THEREFORE ORDERED that defendants’ motion for 18 partial summary judgment (Docket No. 59) be, and the same hereby 19 is, DENIED. 20 | Dated: November 1, 2022 bette 2d. □□ 21 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 10