Center For Environmental Law And Policy et al v. United States Fish And Wildlife Service et al

MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment

E.D. Wash.October 3, 2016

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice KENT E. HANSON SHEILA BAYNES Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (202) 514-2617 Attorneys for Defendants UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON THE CENTER FOR ENVIRONMENTAL LAW AND POLICY; and WILD FISH CONSERVANCY, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE; and DANIEL M. ASHE, in his official capacity as Director of the United States Fish and Wildlife Service, Defendants . NO. 2:15-cv-0264-SMJ DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 13) With Oral Argument: December 9, 2016 10:00 a.m. Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 INTRODUCTION Defendants United States Fish and Wildlife Service and Daniel M. Ashe, in his official capacity as Director of the United States Fish and Wildlife Service (collectively “FWS”), hereby respectfully request, pursuant to Fed. R. Civ. P. 56, that the Court enter judgment in its favor because the claim alleged in Plaintiffs Wild Fish Conservancy’s (“Wild Fish”) and the Center for Environmental Law and Policy’s (“CELP”) Complaint is barred under the doctrine of claim preclusion. Before reaching the parties’ cross-motions for summary judgment, the Court must first decide Defendants’ Motion for Judgment on the Pleadings (filed contemporaneously with this motion for summary judgment) pursuant to Fed. R. Civ. P. 12(c). The Motion for Judgment on the Pleadings demonstrates that this Court lacks subject matter jurisdiction, because the Court of Appeals has exclusive jurisdiction to decide the central issue on which Defendants base their claim— whether the National Pollutant Discharge Elimination System (“NPDES”) permit issued to the FWS is valid. That issue is also addressed below in response to Plaintiffs’ arguments regarding the validity of FWS’s NPDES permit. Supra at 13–16. If the Court were to hold that it has subject matter jurisdiction, Plaintiffs’ claims are nevertheless barred under the doctrine of issue preclusion. Plaintiffs’ Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 claim rests on their allegation that FWS does not have a “valid NPDES permit,” Complaint ¶ 15, which is the same claim asserted by Wild Fish (before it changed its name) in Washington Trout v. Leavenworth Nat’l Fish Hatchery, et al., No. CV- 2:05-0203-LRS (E.D. Wash. July 8, 2005) (“2005 lawsuit”). Because the 2005 lawsuit was dismissed with prejudice, Wild Fish’s claim in this lawsuit is barred by the doctrine of claim preclusion. CELP’s claim is similarly barred because the claims of all plaintiffs in both lawsuits have been asserted as private attorneys general, which places Wild Fish and CELP in privity for purposes of claim preclusion. For these reasons, the Court should deny Plaintiffs’ Motion for Summary Judgment and enter summary judgment in favor of Defendants. STATUTORY AND REGULATORY BACKGROUND Section 301(a) of the Clean Water Act (“CWA”) prohibits the “discharge of any pollutant” from a point source into navigable waters unless the discharge complies with certain other sections of the CWA, such as section 402. 33 U.S.C. § 1311(a). Section 402 provides for the issuance of National Pollutant Discharge Elimination System permits, which authorize the discharge of pollutants from a point source into the navigable waters of the United States. See 33 U.S.C. § 1342. The CWA’s citizen suit provision, 33 U.S.C. § 1365(a), allows private citizens to bring enforcement actions in district court against any person, including Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 the United States, who is alleged to be in violation of “an effluent standard or limitation” under the CWA, including actions against persons alleged to be illegally discharging a pollutant into waters of the United States without an NPDES permit. See 33 U.S.C. § 1365(f) (defining “effluent standard or limitation” for purposes of citizen suit provision). STATEMENT OF FACTS The Leavenworth National Fish Hatchery (“the Hatchery”) was authorized by Congress to mitigate the adverse impact of the Grand Coulee Dam on native fish populations in the Columbia River watershed. See, e.g., Wild Fish Conservancy v. Jewell, 730 F.3d 791, 794 (9th Cir. 2013). Construction of the Hatchery, located on Icicle Creek near Leavenworth, Washington, was completed in 1941. Id. On December 30, 1974, the Environmental Protection Agency (“EPA”) issued NPDES permit WA-00190-2 to FWS, authorizing discharges of pollutants from the Hatchery in compliance with the CWA. Knutsen Decl. (Doc. 15), Ex. 6. The permit became effective on January 30, 1975 and was to expire on August 31, 1979. On May 20, 1977, EPA modified the permit to specify the receiving waters as Icicle Creek, and not the Wenatchee River, of which Icicle Creek is a tributary. Id., Ex 8. The modification became effective on June 20, 1977. Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 On November 12, 1980, FWS applied to EPA for an updated NPDES permit for the Hatchery. Id., Ex 9. In a letter dated May 6, 1981, the Director of the Enforcement Division for EPA Region 101 informed the manager of the Hatchery that its NPDES permit, WA-00190-2, was extended indefinitely: “The terms and conditions of that permit remain in effect indefinitely until a decision is made to take formal action on permit reissuance based on the new NPDES permit application which you have submitted.” Id., Ex 10 (Letter from Lloyd A. Reed, Director, Enforcement Division, U.S. Environmental Protection Agency, to Ralph Malsam, Manager, Leavenworth National Fish Hatchery (May 6, 1981). FWS submitted applications for an updated permit to EPA on numerous occasions, including most recently in 2005 and in 2011. E.g., id., Ex 21. EPA has not taken final action on those applications. By the terms of EPA’s 1981 letter, NPDES permit WA-00190-2 remains in effect. 1 EPA has ten regional offices, designated EPA Region 1 through EPA Region 10. The chief of each regional office is the Regional Administrator. See 40 C.F.R § 1.5(a). EPA Region 10 is based in Seattle, and has responsibility for EPA matters in Alaska, Washington, Oregon and Idaho. Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 In 2005, Washington Trout (which subsequently changed its name to Wild Fish Conservancy, see http://wildfishconservancy.org/about (last visited October 2, 2016), Declaration of Kent E. Hanson, Ex. D), sued the Hatchery, along with FWS and EPA, in the United States District Court for the Eastern District of Washington. Washington Trout v. Leavenworth Nat’l Fish Hatchery, et al., No. cv-2:05-0203-LRS (E.D. Wash. July 8, 2005). Washington Trout’s complaint alleged that the Hatchery was violating the CWA by discharging without a permit or, alternatively, that the Hatchery was violating the conditions of its permit. Hanson Decl., Ex. A. As to EPA, the complaint alleged that EPA violated the APA and CWA by unlawfully extending the Hatchery’s permit or by failing to act or unreasonably delaying in issuing a new NPDES permit for the Hatchery. Id. After the parties reached a settlement agreement, Knutsen Decl., Ex. 12, that suit was dismissed with prejudice in 2007, Hanson Decl., Ex. C. Pursuant to the settlement agreement, EPA issued a proposed draft NPDES permit for the Hatchery in 2006. See Knutsen Decl., Ex. 13. EPA has not, however, taken final action to issue a new permit. STANDARD OF REVIEW Summary judgment is appropriate if the court finds there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Fed. R. Civ. P. 56(c). There is no genuine issue of material fact where the nonmoving party fails “to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989). “A summary judgment motion brought pursuant to Fed. R. Civ. P. 56(c) is a proper way to establish claim preclusion . . . .” Robi v. Five Platters, Inc., 918 F.2d 1439, 1441 (9th Cir. 1990); see also Taylor v. Sturgell, 553 U.S. 880, 888 (2008). ARGUMENT I. Plaintiffs’ Claims are Barred by the Doctrine of Claim Preclusion. “Claim preclusion ‘applies when there is (1) an identity of claims; (2) a final judgment on the merits; and (3) identity or privity between the parties.’ ” Cell Therapeutics, Inc. v. Lash Grp. Inc., 586 F.3d 1204, 1212 (9th Cir. 2009) (quoting Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002)); accord Garity v. APWU Nat'l Labor Org., No. 13-15195, 2016 WL 3607049, at *5 (9th Cir. July 5, 2016). Each of the requisite elements of claim preclusion is satisfied in the instant case for the reasons discussed below. A. The Two Suits Share an Identity of Claims Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 To determine if there is an “identity of claims,” the Ninth Circuit looks to four factors, “which [the court] do[es] not apply mechanistically”: (1) whether the two suits arise out of the same transactional nucleus of facts; (2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (3) whether the two suits involve infringement of the same right; and (4) whether substantially the same evidence is presented in the two actions. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (citation omitted). Though all four factors are considered, “[r]eliance on the transactional nucleus element is especially appropriate because the element is ‘outcome determinative.’” ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir. 2010) (quoting Mpoyo, 430 F.3d at 988). A comparison of the complaints in the 2005 lawsuit and the current lawsuit establishes that all four “identity of claims” factors are present here. First, the complaint in each lawsuit alleges an identical “transactional nucleus of facts.” Two suits arise from the same transaction or series of transactions when they are “related to the same set of facts” and “could conveniently be tried together.” Mpoyo, 430 F.3d at 987 (quoting W. Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992)). In the current lawsuit, Plaintiffs’ sole cause of action is predicated on the allegation that the Hatchery is discharging pollutants without a “valid permit.” Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Complaint ¶¶ 15, 47, 51. Specifically, Plaintiffs contend that EPA’s 1981 action to indefinitely extend the Hatchery’s permit, which it had issued to FWS in 1974 and which became effective in 1975, was contrary to law. Plaintiffs’ First Motion for Partial Summary Judgment (ECF No. 13) at 10, 23–28. Similarly, in the 2005 lawsuit, Plaintiff Washington Trout (which subsequently became Wild Fish) alleged that the Hatchery was discharging pollutants “without a valid permit” due to EPA’s “unlawful extension” in 1981 of the permit issued in 1974. Hanson Decl., Ex. A at ¶¶ 2, 3, 26; ¶ 30 (“First Cause of Action – Hatchery’s Violation of CWA by Violation Without a Valid Permit”); ¶¶ 37–38 (“Third Cause of Action— APA Claim Against EPA for Unlawfully Extending an Expired Permit”). The two suits, therefore, arise from precisely the same nucleus of transactional facts. Second, the “same evidence” factor is satisfied because the complaints in both suits allege the same facts and identical grounds for the claims that the Hatchery does not have a valid permit. Third, the “infringement of the same rights” element is also satisfied. “While [Ninth Circuit] precedents do not offer a great deal of clarification as to how this element should be analyzed, we generally perform a basic matching exercise.” Garity, 2016 WL 3607049, at *6 (citing Sidhu v. Flecto Co., 279 F.3d 896, 900 (9th Cir. 2002) (explaining that “rights asserted in the two actions [we]re Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 different” because they involved infringement of different provisions of a contract)). In other words, courts should compare the two lawsuits to determine if they seek to validate the same legal right or requirement. That is the case here. In both the 2005 and the current lawsuits, the plaintiffs, acting as private attorneys general pursuant to the citizen suit provision of the CWA,2 have sought to validate the same administrative law requirement: the requirement that EPA’s action to extend the Hatchery’s NPDES permit be carried out in a manner that is not arbitrary, capricious, or contrary to law. Fourth, rights or interests established in the 2005 lawsuit would be destroyed or impaired by prosecution of the second action. Specifically, the judgment of dismissal with prejudice entered in the 2005 lawsuit provided the Hatchery with the assurance that it could continue to rely on EPA’s extension of its NPDES permit until such time as EPA acted on the Hatchery’s application for a new permit. Since then, the Hatchery has continued to update its permit application as it awaited the issuance of a new permit. E.g., Ex. B to Defendants’ Verified Statement in Opposition to Plaintiffs’ Statement of Material Facts (ECF 24). In the absence of the judgment in favor of defendants in the 2005 lawsuit, the Hatchery 2 See section C, below, regarding the role of private attorneys general. Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 would have confronted completely different considerations in deciding how to operate its facility while it waited for EPA to issue a new permit. B. The 2005 Suit Resulted in a Final Judgment on the Merits For purposes of claim preclusion, a voluntary dismissal with prejudice serves as a dismissal on the merits. See, e.g., Int’l Union of Operating Eng’rs. v. Karr, 994 F.2d 1426, 1429 (9th Cir. 1993) (applying res judicata to dismissal pursuant to settlement); Baker v. Voith Fabrics U.S. Sales, Inc., No. 07-003, 2007 WL 1549919 at *5 (E.D. Wash. May 24, 2007) (citing Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (stating that the phrase ‘final judgment on the merits’ is often used interchangeably with ‘dismissal with prejudice.’)). Accordingly, the judgment of dismissal with prejudice entered in the 2005 lawsuit is a final judgment that gives rise to claim preclusion. C. The Parties in the Two Suits Are Identical or Share Privity Washington Trout, the plaintiff in the 2005 lawsuit, is the same entity as Wild Fish Conservancy, one of the plaintiffs in the current lawsuit. As Wild Fish states on its website: “The organization was founded in 1989 under the name Washington Trout. In February 2007 we changed our name to Wild Fish Conservancy. . . .” http://wildfishconservancy.org/about (last visited October 3, 2016). Wild Fish cannot escape claim preclusion by having changed its name. Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Wild Trout (now Wild Fish) and CELP, the other plaintiff in the current lawsuit, are in privity. “‘Privity’—for the purposes of applying the doctrine of res judicata—is a legal conclusion designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.” FTC v. Garvey, 383 F.3d 891, 897 (9th Cir. 2004) (citation omitted). “Privity is a flexible concept dependent on the particular relationship between the parties in each individual set of cases.” Id. (quotation omitted); see also Va. Sur. Co. v. Northrop Grumman Corp., 144 F.3d 1243, 1247 (9th Cir. 1998) (“It is the identity of interest that controls in determining privity, not the nominal identity of the parties.” (internal quotation marks and citation omitted)). Here, the plaintiffs in both lawsuits have asserted claims as private attorneys general to enforce a public right, rather than an individual right that is unique to each plaintiff. Where a governmental body files suit to enforce a public right on behalf of its citizens, all citizens are “parties” to that suit “within the meaning of res judicata.” Alaska Sport Fishing Assoc. v. Exxon Corp., 34 F.3d 769, 773 (9th Cir.1994); see also Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 758-59 (7th Cir. 2004) (“[A] person not a party to a previous action can be said to be in privity with an ‘official or agency invested by law with Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 authority to represent the person’s interests.’ Restatement (Second) of Judgments § 41(1)(d).”). By the same principle, all citizens share privity with the plaintiffs in a citizen suit, such as the 2005 suit prosecuted by Wild Trout. “The citizens’ [suit] provision of the CWA casts the citizen in the role of a private attorney general.” EPA v. City of Green Forest, Ark., 921 F.2d 1394, 1403 (8th Cir. 1990) (citing Atlantic States Legal Found. v. Tyson Foods, Inc., 897 F.2d 1128, 1131 n. 5 (11th Cir.1990)). “[A]s noted by the Eighth Circuit in Green Forest, and by numerous other courts, a party who brings a citizens’ suit pursuant to the CWA is acting in the role of a private attorney general, based on the government’s lack of enforcement action, in order to vindicate the rights of society as a whole, rather than to vindicate his own private rights.” DP Marina, LLC v. City of Chattanooga, Tenn., 41 F. Supp. 3d 682, 689 (E.D. Tenn. 2014) (citation omitted); see also Ellis v. Gallatin Steel Co., 390 F.3d 461, 477 (6th Cir. 2004) (noting that citizens acting as private attorneys general under the citizen suit provision of the Clean Air Act “seek relief not on their own behalf but on behalf of society as a whole. . . .”) (citation omitted). Here, Wild Trout in its 2005 suit and CELP in this suit “represent precisely the same right,” see FTC v. Garvey, 383 F.3d at 897, because both act as private Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 attorneys general seeking relief on behalf of the public for the Hatchery’s alleged CWA violation (i.e., discharging pollutants without a valid permit). Accordingly, Wild Trout (now Wild Fish) and CELP are in privity with respect to the claims asserted in the two lawsuits. II. Plaintiffs’ Claim that the Hatchery is Operating without a NPDES Permit is Dependent on a Determination that EPA’s Decision Extending the Hatchery’s Permit is Invalid that can only be made by the Court of Appeals. Plaintiffs’ claim is predicated on their argument that EPA’s 1981 letter extending the Hatchery’s NPDES permit was ineffective to actually extend the permit. Pls.’ Mot. Partial Summ. J. 25. And that argument is itself based on Plaintiffs’ mischaracterization of the legal import of EPA’s 1981 letter as only a “letter from an EPA employee.” Id. In fact, the 1981 letter memorialized EPA’s final agency action extending the Hatchery’s permit. Moreover, the Courts of Appeals have exclusive jurisdiction to determine the validity of the type of final agency action at issue here. In the 1981 letter, the Director of the Enforcement Division for EPA Region 10 informed the Hatchery that its NPDES permit was extended indefinitely, stating: “The terms and conditions of that permit remain in effect indefinitely until a decision is made to take formal action on permit reissuance based on the new NPDES permit application which you have submitted.” Knutsen Decl., Ex. 10. Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 The 1981 letter constituted agency action. See Envt’l Prot. Info. Ctr. v. Pac. Lumber Co., 266 F. Supp. 2d 1101, 1113–14 (N.D. Cal. 2003) (listing the extension of existing NPDES permits among those actions that the Ninth Circuit has deemed “functionally equivalent to issuing or denying a permit”); 5 U.S.C. § 551(13) (“’agency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof”). In addition, EPA’s letter satisfied the two conditions that must be met for agency action to be “final.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997). “First, the action must mark the ‘consummation’ of the agency’s decision- making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Id. (internal citations omitted). The first condition was satisfied because the 1981 letter informed the Hatchery of EPA’s decision that the Hatchery’s permit was extended. Nothing more had to happen to determine the Hatchery’s rights. The second condition was satisfied because EPA’s decision established the legal consequence that the Hatchery was authorized to continue operating under its NPDES permit. An additional legal consequence of EPA’s decision was to shield the Hatchery from liability pursuant to Section 402(k) of the CWA, which provides Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 that “[c]ompliance with a permit issued pursuant to this section shall be deemed compliance” with CWA discharge limitations for the purposes of enforcement actions by the government or in citizen suits. 33 U.S.C. § 1342(k). Thus, “[w]here a permittee discharges pollutants in compliance with the terms of its NPDES permit, the permit acts to ‘shield’ the permittee from liability under the CWA.” Nat’l Res. Def. Council v. Cnty. of L.A., 725 F.3d 1194, 1204 (9th Cir. 2013) (citing 33 U.S.C. § 1342(k)). Plaintiffs argue that EPA’s 1981 decision was contrary to law. That issue is more complicated than Plaintiffs suggest,3 but, regardless of how simple or complicated the issue might be, CWA section 509 mandates that only the Courts of Appeals have jurisdiction to decide the validity of agency decisions extending permits. See 33 U.S.C. § 1369(b)(1)–(2), and cases cited in Defendants’ Motion for Judgment on the Pleadings. Moreover, CWA section 509(b)(2) expressly 3 For example, Plaintiffs do not dispute EPA’s authority to issue a regulation under which permits can be extended without agency action. Although the Court need not decide the issue and, indeed, does not have jurisdiction to do so, EPA arguably could have exercised its permit-extension authority by issuing a letter informing the Hatchery that its permit was extended. Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 prohibits judicial review of agency permitting decisions in civil enforcement proceedings in the District Courts. 33 U.S.C. § 1369(b)(2). Plaintiffs cannot evade these jurisdictional requirements by dismissing statements in EPA’s letter as contrary to law and not worthy of deference. Until the Court of Appeals rules that EPA’s extension of the Hatchery’s permit was contrary to law and the permit extension is invalid, Plaintiffs’ Motion for Partial Summary Judgment must be denied. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court deny Plaintiffs’ Motion. In addition, because the dismissal with prejudice of the 2005 lawsuit bars Plaintiffs’ claim in this case, the United States respectfully requests that the Court dismiss that claim with prejudice and enter judgment in favor of Defendants. Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice /s/ Kent E. Hanson KENT E. HANSON SHEILA BAYNES Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (206) 639-5544 (Hanson) (202) 514-2617 (Baynes) Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 CERTIFICATE OF SERVICE I hereby certify that on October 3, 2016, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notice of such filing to all counsel of record in this matter. s/ Sheila Baynes Sheila Baynes Trial Attorney U.S. Department of Justice Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16