Ninth Circuit: Four 60-Day Notices Not Enough, Rejects Clean Water Act Challenge
Center for Biological Diversity v. Marina Point Development, (Aug. 6, 2008, 9th Cir. Nos. 06-56193, 07-55243, 07-56574) ___ F.3d ____
In Center for Biological Diversity v. Marina Point Development, the Ninth Circuit rejected citizen suits against the Marina Point Development Company and others (“Marina Point”). The Center for Biological Diversity and other environmental organizations (“Center”) had sued Marina Point for violations of the Clean Water Act under the Act’s citizen suit provision.  On appeal, the court vacated the district court’s judgment on the merits and ordered the district court to dismiss for lack of subject matter jurisdiction. The court held that the four 60-day notices sent by the Center to Marina Point and the U.S. Army Corps of Engineers (“Corps”) were insufficient for lack of specificity or untimely because either the alleged violator or the Corps had already responded to alleged violations.
 The Center also sued under the citizen suit provision of the Endangered Species Act. The Ninth Circuit found the Endangered Species Act claims moot, as conceded by the Center, because the bald eagle was delisted while the case was on appeal.
The alleged violations occurred after the expiration of a Section 404 permit issued by the Corps that authorized Marina Point to strengthen the existing shoreline of property along Big Bear Lake and to dredge the shoreline and interior of an existing marina for fill material. After Marina Point’s permit had expired, the Corps agreed that Marina Point could continue dredging activities without a permit if that dredging did not result in more than incidental fallback of soil or “any pushing or pulling of materials along the lake bed.” In July 2003, the Corps issued a cease and desist order, because Marina Point was causing more than incidental fallback within the Corps’ jurisdiction and was stockpiling below the ordinary high water mark. That October, the Corps issued an Initial Corrective Measure Order (“ICMO”) requiring Marina Point to complete specified remedial actions by December 1, 2003. This deadline was extended to December 24th based on unforeseen difficulties. During the period from June 30, 2003 to December 1, 2003, the Center sent four 60-day notices of intent to commence a citizen suit against Marina Point. The Center filed suit in April 2004.
The district court denied Marina Point’s pre-trial motion to dismiss for lack of subject matter jurisdiction. At trial, it ruled that Marina Point had violated the Clean Water Act. It permanently enjoined Marina Point, directed them to follow any remedial orders, and imposed a statutory penalty. Subsequently, it awarded attorney fees to the Center and found Marina Point in contempt. Marina Point appealed all the rulings.
Citizen Suit Provisions
The Clean Water Act’s citizen suit provision requires that the citizen provide a 60-day notice of intent to sue to the alleged violator, the Administrator of the U.S. Environmental Protection Agency, and the State. The Ninth Circuit stated that the 60-day notice is a jurisdictional necessity. Absent notice, the action is prohibited. The court emphasized the importance of the public purposes that notice serves. The court quoted the U.S. Supreme Court’s opinion in Hallstrom v. Tillamook County, 493 U.S. 20 (1989), identifying the purposes of the notices to be (1) to allow the agency to take responsibility for enforcing environmental regulations and (2) to provide the alleged violator an opportunity to comply with the regulation. Both purposes serve to obviate the need for the citizen suit. Citizen suits are only proper where the government fails to exercise its enforcement responsibility over an ongoing violation.
Specific and Clear Requirements
In order to accomplish these purposes, the notice must be sufficient. The court began its review by reciting EPA’s “specific and clear statement” of what is required. EPA regulations require that the notice provide sufficient information to allow the recipient to identify: (1) the specific standard, limitation or order alleged to have been violated, (2) the activity alleged to constitute a violation, (3) the persons responsible, (4) the location, (5) the dates, and (6) the contact information of the person giving notice. See 40 C.F.R. § 135.3. Only under limited circumstances has the court varied from the precise language of EPA’s regulation. It has never abandoned the requirement that the notice identify precisely the alleged violation and when it occurred.
Finding of Lack of Subject Matter Jurisdiction
When the court applied these notice requirements to each of the Center’s four notices, it found the district court lacked subject matter jurisdiction. The court concluded that “the notices were insufficient at their inception regarding [Section 404] wetlands and possible § 402 violations.” None of the notices (nor even the complaint or pretrial conference order) mentioned a Section 402 claim.
On other Section 404 claims, the notices did not detail what wetlands were affected, how they were affected, or on what specific dates. Therefore, the court concluded that the notices were barely sufficient and “their efficiency was limited by prompt action by Marina Point and the Corps.” The two earliest notices failed to meet the EPA’s notice requirements. An October notice had “done its job” despite potential deficiencies. Marina Point applied for a permit to undertake remedial work prior to the end of the 60-day period for that notice and properly awaited authorization from the Corps before undertaking corrective action. The Corps issued the ICMO soon after the 60-day period, prior to the commencement of the action.
A December 2003 notice was not sufficiently informative and did not take into account an extension on the remedial work granted by the Corps. Marina Point’s work was completed within the time provided by that extension. At that time, there was no further action for Marina Point to take. The citizen suit was not necessary. The court declared this “a perfect example of speedy government enforcement.”
Brenna Moorhead, AICP, is an associate in the Real Estate, Land Use and Environmental Practice Group in Sheppard Mullin's San Francisco office.