United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants' motion to
dismiss (Dkt. No. 21). Having thoroughly considered the
parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS in part and
DENIES in part Defendants' motion to dismiss for the
reasons explained herein.
Northwest Environmental Advocates (“NWEA”)
asserts that the U.S. Environmental Protection Agency
(“EPA”) and the National Oceanic and Atmospheric
Administration (“NOAA”), in working with the
State of Washington, failed to meet their obligations under
the Clean Water Act (“CWA”), the Coastal Zone
Management Act (“CZMA”), and the Endangered
Species Act (“ESA”) to protect Washington's
coastal waters and the creatures that live in its waters from
nonpoint source pollution. (Dkt. No. 18 at 1-2.) NWEA
requests this Court order the agencies to do so.
(Id. at 32-33.)
addresses sources of pollution in the waters of the United
States through a model of shared responsibility. Arkansas
v. Oklahoma, 503 U.S. 91, 101 (1992). Within this
scheme, CWA Section 319 addresses nonpoint sources (e.g.
runoff). It requires states to develop and implement a
Nonpoint Management Program (“CWA Nonpoint
Program”). 33 U.S.C. § 1329. Under Section 319,
EPA's role is limited to approving each state's
Nonpoint Program, assessing whether a state is making
satisfactory progress towards the Program's
implementation schedule, and making grants (“CWA
Assistance Grants”) to partially fund the Program.
Coastal Zone Reauthorization Amendments of 1990
(“CZARA”), 16 U.S.C. § 1455b represent a
portion of CZMA. CZARA provides a separate, but distinct
Coastline Nonpoint Pollution Management Program
(“Coastal Nonpoint Program”) to CWA's
Nonpoint Program. Its focus is on coastal areas. Any state
with a Coastal Zone Management Program must include a Coastal
Nonpoint Program. 16 U.S.C. § 1455b(a)(1). A state's
Coastal Nonpoint Program must be approved both by EPA and
NOAA, the latter of which does so on behalf of the U.S.
Department of Commerce. (Dkt. No. 18 at 6.) Like CWA Section
319's Nonpoint Program, once a state submits an
approvable Coastal Nonpoint Program, the state is eligible to
receive federal grants under CZMA (“Coastal Assistance
Grants”) to assist it in its implementation. 16 U.S.C.
Administrative Procedure Act (“APA”) allows
persons to sue a government agency if harmed by the
agency's failure to comply with its statutory mandate.
Sackett v. E.P.A., 566 U.S. 120, 125 (2012). The APA
only applies to the extent a remedy would not otherwise exist
for the impacted person. 5 U.S.C. § 704. Suit can be
brought under the APA against agencies who “unlawfully
with[o]ld or unreasonably delay” actions required by
law, or take actions that are “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(1), (2)(A). Neither CWA
Section 319 nor CZARA provide a cause of action for
violations of the Acts. Therefore, such claims must be
brought under the APA.
ESA, on the other hand, contains its own cause of action. 16
U.S.C. § 1540(g). This provision provides a direct cause
of action for any violation of the Act. Id. The ESA
was established to protect and conserve species threatened
with extinction. Nat'l Ass'n of Home Builders v.
Defs. of Wildlife, 551 U.S. 644, 651, (2007). Section 7
requires federal agencies taking discretionary action that
may jeopardize the existence of listed species or adversely
affect critical habitat of such species to consult with the
U.S. Fish and Wildlife Service (“FWS”) and the
National Marine Fisheries Service (“NMFS”) before
taking action. 16 U.S.C. § 1536(a)(2); Nat. Res.
Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir.
1998). Generally, action may only be taken if FWS and NMFS
determine that it will not jeopardize the existence of such
species or its critical habitat. 16 U.S.C. § 1536(b)(4).
asserts its members have been harmed by EPA and NOAA's
inaction and the agencies' unlawful actions. First, the
agencies failed to make a final CZARA approval decision on
Washington's Coastal Nonpoint Program (Claim #1). (Dkt.
No. 18 at 27-28.) Next, the agencies failed to withhold
required amounts from Washington's CWA Assistance Grants
and Coastal Assistance Grants (Claims #2-3). (Id. at
28-29.) In addition, the EPA acted arbitrarily and
capriciously when it approved Washington's 2015 CWA
Nonpoint Program update despite clear evidence that the
Program did not meet relevant CWA Section 319 requirements
(Claim #4). (Id. at 29-30.) EPA also acted
arbitrarily and capriciously when it determined Washington
made satisfactory progress towards its CWA Nonpoint Program
implementation schedule and awarded resulting CWA Assistance
Grants to Washington in 2015 and 2016 despite clear evidence
that such progress had not been made (Claim #5).
(Id. at 30-31.) Finally, the agencies failed to
engage in required ESA consultation when taking such actions
(Claim #6). (Id. at 31- 32.)
seeks the following relief: (a) declarations that EPA and
NOAA violated CZARA in failing to definitively rule on
Washington's Coastal Nonpoint Program, violated CWA in
approving Washington's CWA Nonpoint Program, and violated
the ESA in failing to engage in required consultation; (b)
order EPA and NOAA to make a definitive ruling on
Washington's Coastal Nonpoint Program and reconsider the
adequacy of Washington's 2015 CWA Nonpoint Program update
based on appropriate criteria; (c) order NOAA and EPA to
withhold the required amounts from CWA Assistance Grants and
Coastal Assistance Grants until such time as the agencies
provide definitive approval for Washington's Coastal
Nonpoint Program; (d) order EPA to withhold all CWA nonpoint
funding until such time as EPA has determined, using
appropriate criteria, that Washington has made satisfactory
progress in implementing its CWA Nonpoint Program; and (e)
order EPA and NOAA to engage in required consultation before
taking further actions. (Id. at 27-33.)
move to dismiss all claims pursuant to Rule 12(b)(1). (Dkt.
No. 21 at 3.) Should that challenge fail, Defendants move
pursuant to Rule 12(b)(6) to dismiss all but two of
NWEA's four ESA claims. (Id. at 31.)
This Court Has Subject Matter Jurisdiction
courts must dismiss a complaint lacking subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). The burden of
establishing subject matter jurisdiction falls on the party
asserting it. Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). If a moving party
factually attacks a district court's subject matter
jurisdiction, the nonmoving party must put forward such
“evidence necessary to satisfy its burden of
establishing subject matter jurisdiction.” Savage
v. Glendale Union High Sch. Dist. No. 205, 343 F.3d
1036, 1039 n.2 (9th Cir. 2003). Otherwise, “[t]he
district court resolves a facial attack as it would a motion
to dismiss under Rule 12(b)(6): Accepting the plaintiff's
allegations as true and drawing all reasonable inferences in
the plaintiff's favor” and then determining whether
they are legally sufficient to invoke jurisdiction. Leite
v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014);
see also Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)
(party seeking relief need plead sufficient facts to allow
the court to draw a reasonable inference that defendant is
liable for alleged misconduct). Defendants claim to be making
a factual challenge to NWEA's standing, but present no
evidence to support such a challenge. (Dkt. No. 21 at 14.);
see St. Clair v. City of Chico, 880 F.2d 199, 201
(9th Cir. 1989) (facial challenge requires evidence
demonstrating that subject matter jurisdiction is lacking).
Therefore, the court will assess NWEA's standing on the
basis of its legal sufficiency.
must sufficiently plead, through plausible facts, that (1) it
has suffered a particularized and concrete injury, (2) that
is fairly traceable to the challenged conduct, (3) which is
likely to be redressed by a favorable decision of this Court.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). In addition, NWEA, as an association, must
demonstrate that (1) its members would otherwise have
standing to bring suit individually, (2) the interests at
stake are germane to the organization's purpose, and (3)
neither the claim nor the relief requested requires the
participation of individual members to the lawsuit.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 181 (2000).
describes itself as a non-profit organization that works to
“protect and restore water quality and fish habitat in
the Northwest.” (Dkt. No. 18 at 3.) It claims that its
members “reside near, visit, use, and/or enjoy rivers,
streams, and other surface waters in Washington State,
including Washington's coastal areas.”
(Id. at 3.) NWEA further claims that its members
have a “specific interest in the full and proper
implementation of the laws passed to control water pollution
and protect wildlife” and have “interests in
complete implementation of environmental laws.”
(Id. at 5-6).
correspondingly alleges that its members have been injured as
a result of Defendants' failure to take required actions
and in arbitrarily and capriciously taking other actions
required by CZARA, CWA, and ESA. Specifically, NWEA claims
Defendants have failed to provide Washington the incentive
mandated through CZARA and CWA to reduce Washington's
sources of nonpoint pollution by withholding portions of
Program Assistance Grants as required by law. (Id.
at 4.) NWEA further alleges that Defendants failed to engage
in required consultation under the ESA. (Id. at 5.)
NWEA claims that, as a result of Defendant's failures,
its members have suffered ...