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Garrison v. New Fashion Pork LLP

United States District Court, N.D. Iowa, Central Division

October 22, 2019

GORDON GARRISON, Plaintiff,
v.
NEW FASHION PORK LLP; and BWT HOLDINGS LLLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          C.J. Williams United States District Judge.

         This matter is before the Court on plaintiff's Motion to Alter or Amend Judgment and for Leave of Court to Amend Plaintiff's RCRA Claim (Doc. 35), defendant's Renewed Motion to Strike (Doc. 43), and defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 39). Both sides timely resisted the opposing side's motion (Docs. 36, 40, 44). Plaintiff timely filed a reply in support of its motion (Doc. 37), and defendants timely filed a reply in support of their motion to dismiss (Doc. 42). For the following reasons, plaintiff's Motion to Alter or Amend Judgment (Doc. 35) is granted in part and denied in part, defendants' Renewed Motion to Strike (Doc. 43) is denied in part and denied as moot in part, and defendants' motion to dismiss (Doc. 39) is denied as moot.

         I. BACKGROUND

         Plaintiff alleges that defendant New Fashion Pork LLP (“New Fashion Pork”) “owns and operates a confined animal feeding operation [“CAFO”] adjacent to [plaintiff's] property in Emmet County, Iowa.” (Doc. 1, at 1). The CAFO is located on land owned by New Fashion Pork's subsidiary, BWT Holdings LLLC (“BWT Holdings”). (Id.). Plaintiff further alleges that defendants have violated and continue to violate Section 7002(a) of the Resource Conservation and Recovery Act (“RCRA”), the Clean Water Act (“CWA”), the conservation plan required by the Natural Resource Conservation Service (“NRCS”), and several Iowa laws and regulations by improperly disposing animal waste. (Doc. 1, at 3-15). Specifically, plaintiff alleges that hog manure has previously been and continues to be misapplied to fields, causing the manure to overflow onto plaintiff's adjacent property, including into water on his property. (Doc. 1, at 10).

         Defendants timely sought to dismiss plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) and 12(b)(1). (Docs. 9, 13). The Court dismissed plaintiff's RCRA claim with prejudice because plaintiff failed to allege that the overapplied manure was “solid waste” within the meaning of RCRA, and thus failed to state a claim on which relief could be granted. (Doc. 31, at 12-13). In the same Order, the Court granted plaintiff leave to amend his CWA claim to assert facts showing that defendants are making discharges into “navigable waters, ” as defined by the CWA, on plaintiff's land, and that the violations alleged are not wholly past. (Doc. 31, at 17).

         Plaintiff timely filed his Amended Complaint (Doc. 34) in which he asserts the same violations of state and federal law as in the original complaint. (Compare Doc. 1, with Doc. 34). Plaintiff's amended complaint further alleges that the discharge from defendants' property is being made into plaintiff's stream, that plaintiff's stream constitutes “navigable waters” under the CWA, and that the discharge is ongoing. (Doc. 34, at 8).

         Plaintiff also moved for relief from the Court's Order dismissing the RCRA claim with prejudice and sought leave of Court to file the second amended complaint appended to plaintiff's motion. (Doc. 35). Plaintiff's proposed second amended complaint includes allegations of the same state and federal violations as the previous complaints but also includes a modified RCRA claim with additional information regarding whether the manure discharged from defendant's property onto plaintiff's property qualifies as “solid waste.” (Doc. 35-1, at 2-3, 7).

         II. JURISDICTION

         Defendants allege that the Court lacks subject-matter jurisdiction over plaintiff's CWA claim because the amended complaint only addresses the alleged 2018 violation, and because plaintiff did not properly notify defendants of the alleged 2018 violation before bringing the present suit. (Doc. 42, at 2). The Court requested supplemental briefing to assist the Court in determining if it has subject-matter jurisdiction over plaintiff's CWA claim. (Doc. 46). Specifically, the Court asked the parties to address: 1) whether the CWA citizen suit notice requirement is a jurisdictional requirement; 2) what details, if any, defendants allege were missing from plaintiff's notice; and 3) whether any insufficiency in the notice would require the Court to dismiss plaintiff's CWA claim, even in the absence of any prejudice to defendants. (Id.). Defendants timely filed an opening brief on the supplemental issues (Doc. 50) and plaintiff timely filed a responsive brief (Doc. 51).

         Before a citizen may commence a CWA suit against an alleged violator, the citizen must provide notice to the alleged violator. 33 U.S.C. § 1365(b). As the supplemental briefing suggests, circuits are split on whether the notice provision for CWA citizen suits is jurisdictional or a condition precedent, and there is no controlling precedent. If giving proper notice under Title 33, United States Code, Section 1365 is a condition precedent to bringing suit, defendants' failure to raise that argument in response to the original complaint acted as a waiver of the right to argue that plaintiff failed to satisfy the condition precedent. If, however, giving proper notice is a jurisdictional requirement that must be met before a federal court may exercise jurisdiction, then defendants maintain the right to raise the argument at any time. Some courts treat the notice provision as jurisdictional. (Doc. 50, at 3-4) (citing Waterkeepers Northern California v. AG Indus. Mfg., Inc., 375 F.3d 913, 916 (9th Cir. 2004); Bd. Of Trustees of Painesville Twp. v. City of Painesville, Ohio, 200 F.3d 396, 400 (6th Cir. 1999); Atl. States Legal Foundation, Inc. v. Stroh Die Casting Co., 116 F.3d 814, 819 (7th Cir. 1997); Pub. Interest Research Grp. of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1189 n.15 (3d Cir. 1995)). Other courts consider the notice requirement to be a condition precedent. (Doc. 51, at 6-7) (citing Louisiana Envtl. Network v. City of Baton Rouge, 677 F.3d 737 (5th Cir. 2012)). The Eighth Circuit has not decided the issue, but the United States District Court for the Southern District of Iowa recently addressed the question, which provides persuasive authority. Hammes v. City of Davenport, 381 F.Supp.3d 1038 (S.D. Iowa 2019).

         The Court need not determine whether the CWA citizen suit notice provision is jurisdictional or a condition precedent because the notice sent by plaintiff provided defendants sufficient notice. The notice provision of the CWA for citizen suits states:

[a notice] shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.

40 C.F.R. § 135.3(a). Courts, however, should “avoid ‘an overly technical application of the regulatory requirements'” and “‘adequate notice does not mandate that citizen plaintiffs list every specific aspect or detail of every alleged violation.'” Hammes, 381 F.Supp.3d at 1042 (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 400 (4th Cir. 2011)). Because not every detail of every alleged violation is necessary and because courts should not be overly technical in evaluating the requirements, the Court finds that plaintiff provided defendants adequate notice before commencing this suit.

         First, plaintiff's notice included sufficient information to permit defendants to identify the specific standard, limitation or order alleged to be violated. A citizen suit may be based on an alleged violation of “an effluent standard or limitation” under the CWA or “an order issued by the Administrator or a State with respect to such a standard or limitation.” Williams Pipe Line Co. v. Bayer Corp., 964 F.Supp. 1300, 1317 (S.D. Iowa 1997) (citing 33 U.S.C. § 1365(a)(1)). “[A] citizen suit can [also] be based on allegations that the defendant is discharging without an NPDES permit.” Id. Plaintiff's notice contained both an alleged violation of a standard or limitation and an alleged NPDES permit violation. (Doc. 34-3, at 1, 5). Specifically, the notice contained information about the manure management plan which included information on how manure would be applied to fields. (Doc. 34-3, at 1, 5). Plaintiff alleges in his notice that defendants' plan called for applying manure 52 pounds per acre above the recommended rate for similar fields. (Id.). ...


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