Clean Water & Air Legacy, LLC v. Tofte Wastewater Treatment Ass'n

649 F.Supp.3d 764

CLEAN WATER AND AIR LEGACY, LLC, Plaintiff, v. TOFTE WASTEWATER TREATMENT ASSOCIATION,d/b/a Bluefin Bay on Lake Superior WWTP, Defendant.

Civil No. 22-386 (JRT/LIB)

United States District Court, D. Minnesota

Signed January 4, 2023

Chad Throndset and Patrick W. Michenfelder, THRONDSET MICHENFELDER, LLC, One Central Avenue West, Suite 203, Saint Michael, MN 55376, for plaintiff.

Seth Leventhal, LEVENTHAL PLLC, 4406 West Forty-Second Street, Edina, MN 55416; Jeremy P. Greenhouse, FREDRIKSON & BYRON, P.A., 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402; and Vanessa Lee Parvin Johnson, 7811 West Ninety-Fifth Street, Bloomington, MN 55438, for defendant.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOHN R. TUNHEIM, United States District Judge

Clean Water and Air Legacy, LLC ("CWAL"), on behalf of itself and a class of people who have recently visited Tofte Town Park along Minnesota's North Shore, brings this action against Tofte Wastewater Treatment Association ("Bluefin Bay"), asserting a claim under the Clean Water Act and state law claims of public nuisance, private nuisance, and negligence stemming from Bluefin Bay's alleged pollution of Lake Superior and harm to nearby Tofte Park. Bluefin Bay now moves to dismiss all claims or, in the alternative, moves for summary judgment on all claims. Because CWAL has not alleged facts sufficient to state a public nuisance or a private nuisance claim, the Court will grant the Motion to Dismiss only on those claims. However, because CWAL has alleged enough facts at this stage to support its claims for violation of the Clean Water Act and negligence, the Court will deny Bluefin Bay's Motion to Dismiss in all other aspects. Finally, because issues of material fact remain for the remaining claims, the Court will deny Bluefin Bay's Motion for Summary Judgment.

BACKGROUND

CWAL is an organization formed to advocate for clean waterways and air and the preservation of natural resources through enforcement of the country's environmental laws. (Am. Compl. ¶ 5, Apr. 19, 2022, Docket No. 9.) Bluefin Bay is a facility located on the North Shore of Lake Superior in Tofte, Minnesota and discharges wastewater directly into Lake Superior pursuant to its National Pollutant Discharge Elimination System ("NPDES") permit, No. MN-0054593. (Id. ¶¶ 6, 9.) CWAL alleges that for 312 days since November 30, 2018, Bluefin Bay has intermittently failed to comply with its NPDES permit and is currently in violation of that permit. (Id. ¶ 3.) On October 28, 2021, in accordance with 33 U.S.C. § 1365(b)(1)(A), CWAL provided notice of intent to file suit under the Federal Clean Water Act ("60-Day Notice Letter") to the administrator of the Environmental Protection Agency ("EPA"), the regional administrator of EPA Region 5, the commissioner of the Minnesota Pollution Control Agency ("MPCA"), and to Bluefin Bay. (Id. ¶ 15.)

Following receipt of the 60-Day Notice Letter, Bluefin Bay entered into a "Compliance Agreement" with the MPCA, effective January 4, 2022. As part of that agreement, the MPCA waived its right to seek penalties or exercise "any administrative, legal or equitable remedies available to the MPCA to address the alleged violations . . . as long as the Regulated Party performs according to and has complied with the terms and conditions contained in [the compliance agreement]." (Id. ¶ 32.) According to that agreement, Bluefin Bay agreed to "submit a standard operating procedure (SOP) to be implemented on discovery of any future effluent limit violation" and to "follow the steps as required by NPDES/SDS permit No. MN0054593" if Bluefin Bay "discovers that non-compliance with a condition of the permit has occurred which could endanger human health, public drinking water supplies, or the environment." (Id. ¶¶ 38, 39 (emphasis in original).)

On April 19, 2022, CWAL filed an Amended Complaint alleging violations of the Clean Water Act, public nuisance, private nuisance, and negligence on behalf of a class defined as "[a]ll individuals who have visited Tofte Town Park from November 30, 2018, to August 31, 2021." (Id. ¶¶ 44-73.) Tofte Town Park is immediately adjacent to Bluefin Bay and shares access to the same stretch of Lake Superior shoreline. (Id. ¶ 56.) The Amended Complaint alleges that CWAL's membership includes at least one individual who resides in Minnesota and has visited and enjoyed the quietude and natural beauty of the North Shore, including visits to Tofte Town Park for many years, (Id. at ¶ 19.), but that Bluefin Bay's repeated unlawful discharges lessen the aesthetic and recreational values of the North Shore in and near Tofte and diminish this person's enjoyment of the North Shore in and near Tofte, Minnesota. (Id. at ¶ 43.) CWAL alleges that Bluefin Bay was continuously violating its NPDES permit at the time it filed suit. Lastly, CWAL seeks an injunction and civil penalties to redress those injuries. (Id. ¶ 4, Relief Requested.) On May 13, 2022, Bluefin Bay moved to dismiss all claims based on lack of subject matter jurisdiction and failure to state a claim and, in the alternative, moved for summary judgment on all claims. (Mot. Dismiss, May 13, 2022, Docket No. 10.)

DISCUSSION

I. RULE 12(B)(1) SUBJECT MATTER JURISDICTION

A. Standard of Review

A Rule 12(b)(1) motion challenges the Court's subject matter jurisdiction and requires the Court to examine whether it has authority to decide the claims. The party seeking to invoke a federal court's subject matter jurisdiction bears the burden of showing, by a preponderance of the evidence, that the court has jurisdiction. Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 822 (8th Cir. 2011). A court must dismiss an action if it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). "A court deciding a motion under Rule 12(b)(1) must distinguish between a 'facial attack' and a 'factual attack.' " Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In deciding a facial attack, "the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Id. (internal citations omitted). The Court, therefore, may also consider "materials that are necessarily embraced by the pleadings." Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (internal quotation marks omitted).¹ The Court also accepts as true all facts alleged in the complaint construing all reasonable inferences in the plaintiff's favor. Id. "The general rule is that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Osborn, 918 F.2d at 729 n.6 (citations and internal quotation marks omitted). "In a factual attack, the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards." Id. (citations omitted).

B. Analysis

Bluefin Bay brings a factual attack on the Court's subject matter jurisdiction by presenting a declaration of an MPCA Compliance Coordinator regarding the steps MPCA took in response to the alleged violation and evidence of the Compliance Agreement. Bluefin Bay asserts the Court does not have subject matter jurisdiction because CWAL has failed to show injury-in-fact and CWAL has not established associational standing.

Article III of the Constitution limits federal court jurisdiction to cases or controversies. Spokeo, Inc. v. Robins, 578 U.S. 330, 337, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (citing U.S. Const. art. III, § 2). Therefore, Plaintiffs must demonstrate standing to sue by showing that they have suffered an injury-in-fact that is both fairly traceable to the defendant's conduct and likely to be redressed by the relief sought. Id. at 338, 136 S.Ct. 1540.

To establish an injury-in-fact, plaintiffs must show their injury is " 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' " Id. at 339, 136 S.Ct. 1540 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). During pleading, plaintiffs must clearly allege facts demonstrating the elements of standing. Id. at 338, 136 S.Ct. 1540. "An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

The Supreme Court has recognized that a future injury can establish Article III standing, but the future injury must be "certainly impending," or that there is "a substantial risk that the harm will occur." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (cleaned up). And in an environmental suit in particular, "plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Friends of the Earth, 528 U.S. at 183, 120 S.Ct. 693 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)).

Here, CWAL meets the low burden required at this stage of litigation. See Zanders v. Swanson, 573 F.3d 591, 594 (8th Cir. 2009) (explaining that general factual allegations of injury may suffice to establish standing); Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669, 674 (5th Cir. 1992) (explaining that the Article III standing inquiry is "not too heavy a burden on a prospective plaintiff because even 'a probabilistic...