Case 3:20-cv-00741-DMS-AHG Document 29 Filed 12/31/20 PageID.273 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
` Case No. 20-cv-741 DMS (AHG)
`
`ORDER DENYING MOTION
`TO DISMISS FIRST AMENDED
`COMPLAINT
`
`
`RANDALL FARRAR, individually
`and as trustee of the Minsuend
`Property Trust (5-15-00) and
`Mobile Home Park Trust UDT (5-
`15-00); SAN PASQUAL BAND
`OF MISSION INDIANS,
`
`
`
`Plaintiffs,
`
`
`v.
`
`FLUEGGE EGG RANCH 3, INC.;
`FLUEGGE EGG RANCH 2, INC.;
`AUGUST FLUEGGE JR.,
`individually and as trustee of the
`Fluegge Trust dated April 12, 2007;
`AND DOES ONE THROUGH
`TEN, INCLUSIVE,
`
`
`
`Defendants.
`
`
`Pending before the Court is Defendants’ motion to dismiss Plaintiffs’ First
`
`Amended Complaint based on lack of subject matter jurisdiction. Plaintiffs filed an
`opposition, and Defendants filed a reply. For the following reasons, Defendants’
`motion to dismiss is denied.
`//
`//
`//
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`I.
`BACKGROUND
`Defendants have an egg farm located at 27023 N. Lake Wohlford Road,
`Valley Center, California, 92082 (“Egg Farm”). (FAC, ¶ 1.) Plaintiff Randall Farrar
`owns and manages the real property and business located at 27024 N. Lake Wohlford
`Road, Valley Center, California, 92082. (FAC, ¶ 2.) Plaintiff San Pasqual Band of
`Mission Indians owns and manages the real property located at 27220 N. Lake
`Wohlford Road and 16120 Woods Valley Road in Valley Center, California, 92082.
`(FAC, ¶2.) Plaintiffs allege that they have been damaged by the flow of polluted
`wastewater from the Egg Farm coming onto their properties. (FAC, ¶ 2.)
`More specifically, Plaintiffs allege that the Egg Farm sends waste and water
`runoff into a cement culvert that is directed under N. Lake Wohlford Road. (FAC,
`¶ 23.) Plaintiffs further allege that the Egg Farm’s waste and water runoff goes onto
`and through Plaintiffs’ properties and then into Moosa Canyon Creek. (Id.)
`According to Plaintiffs, Moosa Canyon Creek is recognized as “waters of the United
`States” under the Clean Water Act. (FAC, ¶ 24.) Plaintiffs allege that one or more
`water quality tests from the Egg Farm’s cement culvert indicate the presence of the
`following pollutants: E. Coli, Enterococcus, Fecal Coliforms, and Total Coliforms.
`(FAC, ¶ 26.)
`On December 20, 2019, Plaintiffs provided Defendants and federal and state
`agencies with a letter setting forth the alleged Clean Water Act violations and
`providing them with a 60-day notice of their intention to file a citizen lawsuit to
`enforce the Clean Water Act. (FAC, ¶ 8.) Since then, Plaintiffs allege that no
`enforcement action has been commenced by any federal or state agency and none of
`the Clean Water Act violations have been corrected. (Id.)
`On April 17, 2020, Plaintiffs filed a Complaint against Defendants. On June
`4, 2020, Plaintiffs filed a First Amended Complaint (FAC) because the names of the
`Defendants had been mislabeled in the original complaint. Plaintiffs bring a federal
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`Case 3:20-cv-00741-DMS-AHG Document 29 Filed 12/31/20 PageID.275 Page 3 of 7
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`claim pursuant to the Clean Water Act’s citizen suit provision under 33 U.S.C. §
`1365, seeking declaratory and injunctive relief, and civil penalties. (FAC, ¶ 3.)
`Plaintiffs also bring state claims of negligence, nuisance, and trespass, seeking
`money damages and a cleanup and abatement order. (FAC, ¶ 4.)
`II.
`LEGAL STANDARD
`A. Federal Rule of Civil Procedure 12(b)(1)
`A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1)
`is a challenge to the court’s subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).
`Dismissal for lack of subject matter jurisdiction is proper only when the claim is “so
`insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or
`otherwise completely devoid of merit as not to involve a federal controversy.” Steel
`Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (citations omitted). A
`jurisdictional attack under Rule 12(b)(1) can be either “facial” or “factual.” White v.
`Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). “A ‘facial’ attack accepts
`the truth of the plaintiff’s allegations but asserts that they ‘are insufficient on their
`face to invoke federal jurisdiction.’” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th
`Cir. 2014) (citation omitted). “A ‘factual’ attack, by contrast, contests the truth of the
`plaintiff’s factual allegations, usually by introducing evidence outside the pleadings.”
`Id. In a factual attack, as is here, the court may look beyond the complaint and
`consider other evidence without converting the motion to dismiss into a motion for
`summary judgment. White, 227 F.3d at 1242 (citations omitted). “The party asserting
`subject matter jurisdiction bears the burden of proving its existence.” See Chandler
`v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) (citing
`Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
`//
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`B. Clean Water Act
`The Clean Water Act (CWA) is intended to “restore and maintain the chemical,
`physical, and biological integrity of the Nation’s waters.” See WaterKeepers N. Cal.
`v. AG Indus. Mfg., Inc., 375 F.3d 913, 915 (9th Cir. 2004) (quoting 33 U.S.C. § 1251).
`The CWA “prohibits the discharge of pollutants into United States waters except as
`authorized by the statute.” Id. (citing 33 U.S.C. § 1311). The CWA is administered
`through the National Pollutant Discharge Elimination System (NPDES) permit
`program, and “[t]he discharge of pollutants without a NPDES permit, or in violation
`of a permit, is illegal.” Id. (citations omitted). Much of the responsibility for
`administering the NPDES permitting system has been delegated to the states. Id.
`The CWA permits private citizens to bring a lawsuit against any person
`“alleged to be in violation” of the CWA. 33 U.S.C. § 1365(a)(1). Before a lawsuit
`can be commenced, the citizen must give a 60-day notice of their intent to sue. 33
`U.S.C. § 1365(b)(1)(A). The purposes of the notice are to give government agencies
`an opportunity to enforce environmental regulations without the need for a citizen
`suit, and to give the alleged violator an opportunity to bring itself into complete
`compliance with the CWA and thus likewise render unnecessary a citizen suit. See
`Ctr. For Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir.
`2009) (citation and quotation marks omitted).
`The CWA “does not permit citizen suits for wholly past violations”; rather,
`the statute “confers jurisdiction over citizen suits when the citizen-plaintiffs make a
`good-faith allegation of continuous or intermittent violation.” Nat. Res. Def. Council
`v. Sw. Marine, Inc., 236 F.3d 985, 998 (9th Cir. 2000) (citation omitted). “The
`citizen plaintiff, however, need not prove the allegations of ongoing noncompliance
`before jurisdiction attaches.” Sierra Club v. Union Oil Co. of California, 853 F.2d
`667, 669 (9th Cir. 1988). Rather, the plaintiff need only satisfy the good-faith
`pleading requirements set forth in Rule 11 of the Federal Rules of Civil Procedure.
`Id. The citizen plaintiff’s allegations must be based on good-faith beliefs, “formed
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`after reasonable inquiry,” that are “well grounded in fact.” Id. (quoting Fed. R. Civ.
`P. 11).
`
`III.
`DISCUSSION
`Defendants move to dismiss on the ground that Plaintiffs’ claims are moot
`because (1) there are no continuing and ongoing violations under the CWA; and (2)
`the issuance of a state waiver implies that there is no federal issue under the CWA.
`(Mot. to Dismiss at 7.)
`In seeking to have a case dismissed as moot, the defendant’s burden is a
`“heavy one” where the defendant must demonstrate that it is “absolutely clear that
`the allegedly wrongful behavior could not reasonably be expected to recur.”
`Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 66 (1987)
`(citations omitted). The “[m]ootness doctrine thus protects defendants from the
`maintenance of suit under the [CWA] based solely on violations wholly unconnected
`to any present or future wrongdoing, while it also protects plaintiffs from defendants
`who seek to evade sanction by predictable protestations of repentance and reform.”
`Id. at 66-67 (citation omitted). “It is well settled that a defendant’s voluntary
`cessation of a challenged practice does not deprive a federal court of its power to
`determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl.
`Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citation omitted). When a defendant
`seeks to moot an action based on the voluntary cessation of the conduct constituting
`a violation, courts apply a “stringent” standard. Id.
`Here, Plaintiffs contend that Defendants “failed, and continues to fail, to
`properly manage and operate its Egg Farm facility with a Clean Water Act pollution
`discharge permit or any waiver or exception therefor.” (FAC, ¶ 4.) Plaintiffs allege
`that Defendants “caused, and continues to cause, the flow and deposition of
`pollutants and contaminates into and through Plaintiffs’ properties, and further
`downgrade properties, including lower Moosa Canyon Creek.” (FAC, ¶ 25.)
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`Plaintiffs assert that one or more water quality tests from the Egg Farm’s point
`source cement culvert and discharge point indicate various levels of pollutants.
`(FAC, ¶ 26.) Plaintiffs allege that Defendants are in violation of various CWA
`requirements regarding recording, monitoring, and reporting the Egg Farm’s
`discharge of pollutants. (FAC, ¶¶ 38, 41.) Finally, Plaintiffs specifically allege that
`violations of the CWA will be ongoing and therefore ask the Court for declaratory
`and injunctive relief. (FAC, ¶ 45.) The Court finds that Plaintiffs sufficiently allege
`a continuous and ongoing pattern of noncompliance with the CWA.
`On the other hand, Defendants contend that they remedied all alleged
`violations in the FAC before Plaintiffs filed their complaint. (Mot. to Dismiss at 7.)
`Defendants submit their Application and Notice of Intent for Conditional Waiver to
`the California Regional Water Quality Control Board (RWQCB) as evidence which
`purportedly establishes that Defendants remedied all deficiencies at the Egg Farm.
`(Id.) In their RWQCB Application, Defendants simply state that “manure is stored
`on plastic tarp and covered if precipitation is forecasted within 24 hours” and that
`“manure is disposed of at least every two weeks” in their RWQCB Application.
`(Mot. to Dismiss, Exh. 1.) Defendants also contend that the issuance of a RWQCB
`waiver on June 12, 2020, which is after Plaintiffs filed their complaint, further
`implies that there is no violation of the CWA. (Mot. to Dismiss at 8.) Defendants
`argue that their application for, and issuance of, the RWQCB waiver render the
`lawsuit moot. However, while “matters of public record” are proper subjects of
`judicial notice, a court may take notice only of the existence and authenticity of an
`item, not the truth of its contents. See Lee v. City of Los Angeles, 250 F.3d 668, 689-
`90 (9th Cir. 2001). The Court does not take judicial notice of the truth of the content
`of the RWQCB application or waiver because the parties contest the facts in both
`documents. The Court finds that Plaintiffs allege a continuous and ongoing pattern
`of noncompliance with the CWA, and Defendants do not meet their “heavy burden”
`to show that “the allegedly wrongful behavior could not reasonably be expected to
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`recur.” The Court denies Defendant’s motion to dismiss for lack of jurisdiction on
`mootness grounds at this early stage of the case.
`Finally, Defendants argue that if no CWA claims remain, the Court should
`dismiss the state claims for lack of supplemental jurisdiction. (Mot. to Dismiss at
`11.) However, because the Court has denied Defendants’ motion to dismiss the
`federal claims in this case, the Court will retain supplemental jurisdiction over the
`state claims at this time.
`
`IV.
`CONCLUSION AND ORDER
`For the reasons set out above, Defendants’ motion to dismiss is DENIED.
`IT IS SO ORDERED.
`
`Dated: December 31, 2020
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