United States District Court, N.D. Iowa, Central Division
MEMORANDUM OPINION AND ORDER
Williams United States District Judge.
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.
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).
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).
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).
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).
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).
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).
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
[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.
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.). ...