Summary of a Recent
Judicial Development in
Animal Feeding Operations

Court Denies CAFO Operator's FRCP 12(b)(1) Motion to
Dismiss CWA Citizen Suit

Eric Foy
National AgLaw Center Research Associate

Summary of Decision

In Coldani v. Hamm, No. Civ. S-07-660 RRB EFB, 2007 WL 2345016 (E.D. Cal. Aug. 16, 2007), Plaintiff Coldani, owner of land in the vicinity of Defendant ranch owner's ranching operations, filed a citizen suit seeking to enforce regulations promulgated under the Clean Water Act (CWA). The United States District Court for the Eastern District of California denied Defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1).

Background

Plaintiff sought a declaration that Defendant violated the CWA and injunctive relief in the form of an order to require Defendant to comply with regulations controlling its operations and to abate the consequences of its regulatory violations. Id. at *1. Defendant moved for a dismissal of the entire action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure section 12(b)(1). Id.

Arguments

Plaintiff alleged that Defendant's disposal of animal waste in disposal ponds and irrigation runoff caused the groundwater beneath his property to become polluted with nitrates. Id. Plaintiff based the CWA violation on the migration of polluted groundwater from Defendant's ranch onto his property, and into the White Slough, which is hydrologically connected to the Sacramento-San Joaquin River Delta system, a navigable water located less than a mile from Lima Ranch. Id. Defendant moved for dismissal of the entire action for lack of subject matter jurisdiction for the following reasons: (1) Plaintiff lacked standing under the CWA because he failed to serve notice on all required parties, (2) Plaintiff lacked standing under the CWA because he failed to allege a violation of any effluent standard or limitation as defined in the CWA, or a violation of an order issued by the Administrator or State regarding a CWA standard or limitation, and (3) Plaintiff lacked standing to assert a claim under the Resource Conservation and Recovery Act (RCRA) because he failed to allege that Defendant disposed of "hazardous waste." Id.

Analysis and Holdings

The plaintiff bears the burden of establishing subject matter jurisdiction. Id. at *2. District courts should only rely on FRCP 12(b)(1) if the facts necessary to sustain jurisdiction are independent of the facts necessary to sustain a plaintiff's cause of action. Id.

Defendant first asserted that the district court lacked subject matter jurisdiction in the case at bar because Plaintiff lacked standing to bring the CWA charges due to his failure to serve notice on all required parties. Id. at *4. As a precondition to suit, notice must be served on all required parties giving them no less than sixty days prior to bringing a cause of action. Id. at *3. The EPA adopted the notice requirement to give an alleged violator an opportunity to come into compliance with the CWA and render citizen suits unnecessary. Id. If the notice provided fails to satisfy the regulations promulgated under the CWA, dismissal for lack of subject matter jurisdiction is appropriate. Id. The court concluded that Plaintiff had satisfied the CWA's notice requirements by serving notice to the official charged with fulfilling the Agency Secretary's role on the State Water Resource Board. Id. at *5. The notice was sufficient because it fulfilled the purpose of the CWA's notice requirements by giving the state an opportunity to take administrative action and make citizen suits on the matter unnecessary. Id.

Defendant next asserted that Plaintiff lacked standing to assert a claim under the CWA because he failed to plead facts sufficient to satisfy the navigable water and point source elements of a CWA claim. Id. at *6. To establish a violation of the CWA act, Plaintiff must provide evidence that Defendant (1) discharged (2) a pollutant (3) to navigable waters (4) from a point source (5) without an NPDES permit. See id.

Plaintiff alleged that animal waste from Lima Ranch's dairy infiltrated and polluted groundwater that discharged into the White Slough, which in turn emptied into navigable waters, the San Joaquin River Delta System. Id. at *7. Because Plaintiff alleged that Defendant polluted groundwater that was hydrologically connected to navigable waters, the court found that the pleading was sufficient to survive a motion to dismiss. Id. at *8.

The entities listed as point sources in the CWA include concentrated animal feeding operations (CAFO). Id. When a dairy is classified as a CAFO, it is considered a point source. Id. The court held that the allegations in the complaint were sufficient to establish that Defendant's dairy was a CAFO. Id. Plaintiff alleged that Defendant was a dairy ranch engaged in "feeding and stabling of at least 1,000 dairy cows, milking, collecting animal waste, storing animal waste, and discharging waste water onto open lands." Id. Defendant did not dispute that its dairy cows were stabled or confined for a total of forty-five days or more in any twelve- month period; that the ranch sustained crops, vegetation, or crop residue; or that the ranch had more than 700 dairy cattle or engaged in manure spreading operations. Id. As such, the court concluded that Plaintiff sufficiently pled that Defendant was a point source within the meaning of the CWA. Id. Accordingly, dismissal was also not warranted on this ground. Id.

The court dismissed Plaintiff's RCRA claim, explaining that "because the animal waste discharged by Lima Ranch constitutes industrial discharge from a point source subject to NPDES permits under the CWA, it is excluded from the definition of 'solid waste.'" Id. at *10. Therefore, the court declined to exercise jurisdiction over the RCRA claim to avoid duplicative regulation. Id.

The case was decided on Aug. 16, 2007.