Tan Phu Cuong Investment LLC et al v. King County, No. 2:2018cv01102 - Document 77 (W.D. Wash. 2019)
Court Description: ORDER granting in part Defendant's 40 MOTION for Summary Judgment. The Court declines to rule on Plaintiffs' state law claims and DIRECTS the Clerk to REMAND this case to the Snohomish County Superior Court.Per LCR 3(i), case will be remanded 14 days from the date of this Order, on 11/26/2019. Signed by U.S. District Judge John C Coughenour. (TH)
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Tan Phu Cuong Investment LLC et al v. King County Doc. 77 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 TAN PHU CUONG INVESTMENT LLC, a Washington Limited Liability Company, and EMILIYA SHUPARSKAYA, a married woman as her separate property, CASE NO. C18-1102-JCC ORDER Plaintiffs, 12 v. 13 14 KING COUNTY, a political subdivision of the State of Washington, 15 Defendant. 16 17 18 19 20 21 22 23 This matter comes before the Court on Defendant’s motion for summary judgment (Dkt. No. 40). Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion in part and REMANDS Plaintiffs’ state law claims for the reasons explained herein. I. BACKGROUND This case arises out of Plaintiffs’ purchase of lots of land located in Lake Geneva Park Plats Nos. 3 and 4 in Federal Way, Washington. (See Dkt. Nos. 40 at 2, 41-6 at 2, 69 at 2–3.) 1 In 24 25 26 1 Defendant has submitted a map of the relevant area showing Plaintiff Shuparskaya’s lot outlined in red and Plaintiff Tan Phu Cuong Investment LLC’s lots outlined in blue. (See Dkt. Nos. 40 at 2 n.1, 41-6 at 2.) ORDER C18-1102-JCC PAGE - 1 Dockets.Justia.com 1 the spring of 2015, Plaintiff Emiliya Shuparskaya purchased a lot (403120-0010) in Plat No. 4 2 for $15,000—$20,000 below the asking price. (Dkt. Nos. 41-6 at 2, 41-8 at 3–4, 65 at 2, 69 at 2.) 3 In August 2015 and July 2016, Plaintiff Cuong LLC 2 purchased nine lots in Plat No. 3 (403110- 4 0330, 403110-0340, 403110-0460, 403110-0470, 403110-0480, 403110-0550, 403110-0560, 5 403110-0570, and 403110-0580). (Dkt. Nos. 41-6 at 2, 67 at 2.) Plaintiff Cuong LLC paid 6 $36,000 or $40,000 in total for Lots 46, 47, and 48, and paid $200,000 in total for Lots 33, 34, 7 55, 56, 57, and 58. (Dkt. No. 41-9 at 15.) Plaintiff Cuong LLC has since sold Lots 55, 56, and 57. 8 (See Dkt. No. 67 at 2.) 9 10 A. Plat Nos. 3 and 4 Plat Nos. 3 and 4 slope from north to south with the low point located at the boundary 11 between the plats, causing water to naturally flow south toward Plaintiff Shuparskaya’s Lot 01 12 and Plaintiff Cuong LLC’s Lot 58. (Dkt. Nos. 45 at 2–3, 53 at 7–10.) The plats’ natural drainage 13 channel is a shallow open ditch or swale along the plats’ north-south boundary. (Dkt. Nos. 45 at 14 4–5, 34, 36; 53 at 9–10.) Prior to development, water flowed across private parcels. (Dkt. No. 53 15 at 9.) Around 1939, a culvert was built to allow water flowing north-to-south to go under a street 16 and continue its natural drainage path. (Dkt. No. 53 at 4, 7–10, 64; see Dkt. No. 45 at 3–4.) 17 Many lots in the plats are underpinned by “hardpan” that sits close to the ground’s 18 surface and restricts the downward flow of water, which causes percolation issues and generally 19 precludes having a septic system safely installed on individual lots. (See Dkt. Nos. 44 at 2, 48 at 20 2–4, 49 at 1–2.) The King County Assessor’s Office has historically categorized Plaintiffs’ lots 21 as “non-buildable parcels” and assigned them low appraisal values. (Dkt. No. 43 at 3–4.) 3 In 22 2003, prior to Plaintiffs’ purchase of their lots, the City of Federal Way designated Plaintiff 23 2 24 25 Giang “John” Vo is the sole partner and manager of Plaintiff Cuong LLC. (See Dkt. Nos. 40 at 2, 67 at 2.) For clarity, actions attributable to either Vo or Plaintiff Cuong LLC will be attributed to solely Plaintiff Cuong LLC. 3 26 Plaintiffs have not challenged the valuations of their lots or the Assessor’s Office’s finding that the lots are unbuildable. (See Dkt. No. 43 at 4.) ORDER C18-1102-JCC PAGE - 2 1 2 Shuparskaya’s Lot 01 and Plaintiff Cuong LLC’s Lot 58 “as containing wetlands.” (Id. at 2.) Plat Nos. 3 and 4 were privately developed, and Plat No. 3’s developer reserved the right 3 to allow surface water to flow west to the drainage channel on the western border of the plat. 4 (See Dkt. Nos. 40 at 4; 41-6 at 2; 45 at 32; 53 at 9, 66.) A storm drainage system, including a 5 north-south concrete drainage pipe (the “main line”), was installed on the plats to collect and 6 convey runoff to the drainage ditch. (See Dkt. Nos. 40 at 4; 45 at 3–4; 53 at 8, 70; 71 at 4.) The 7 main line sits close to the ground’s surface and is vulnerable to damage caused by heavy items 8 driving over or falling onto it. (Dkt. No. 46 at 4.) Beginning in 1972, Defendant obtained several 9 drainage easements to allow it to make necessary repairs to the main line. (Dkt. No. 53 at 7–8, 10 44–62.) The easements referenced drainage issues on several lots that would be alleviated. (See 11 Dkt. No. 66 at 4–5, 184–192.) Since obtaining the easements, Defendant has performed general 12 maintenance on the drainage system and responded to specific issues on three occasions. (See 13 Dkt. Nos. 46 at 3; 53 at 10; 64 at 17–18; 68 at 59, 69, 74; 69 at 57.) 14 15 B. Plaintiff Shuparskaya Plaintiff Shuparskaya purchased Lot 01 as a vacant lot intending to build a house on the 16 land. (See Dkt. No. 41-8 at 4.) Plaintiff Shuparskaya walked Lot 01 to inspect it but did not have 17 an inspection done prior to purchasing it. (Id. at 5–6.; Dkt. No. 65 at 4.) Plaintiff Shuparskaya 18 obtained a clearing permit, and in the summer of 2015 she cleared leaves and foliage from Lot 19 01. (See Dkt. Nos. 41-8 at 9–11, 53 at 35–36.) Plaintiff Shuparskaya was aware of Defendant’s 20 easement for the main line but did not see the main line itself before Lot 01 was cleared. (See 21 Dkt. No. 41-8 at 6.) In the winter of 2015, after clearing Lot 01, Plaintiff Shuparskaya noticed 22 flooding on the land when it rained and found water flowing from the main line. (Id. at 13.) 23 Plaintiff Shuparskaya asked various employees of Defendant for assistance but did not receive 24 substantive help. (See Dkt. No. 65 at 5–6.) 25 26 In the summer or fall of 2016, Plaintiff Shuparskaya hired a contractor from Craigslist known as “Vasily,” who connected two pipes to the main line: one in the northwest corner of Lot ORDER C18-1102-JCC PAGE - 3 1 01 and one running from north to south and terminating in the culvert. (See Dkt. Nos. 40 at 6; 41- 2 8 at 11, 14–16, 31–32; 53 at 2–7, 14, 16, 18, 31, 40; 65 at 6.) 4 Vasily’s work created a “tight 3 line” that caused water that would have flowed off Plaintiffs’ lots to instead pool on their 4 property. (See Dkt. Nos. 45 at 5–6, 53 at 4.) Plaintiff Shuparskaya later sought a grading permit 5 for Lot 01 from Defendant. (See Dkt. Nos. 41-8 at 10, 33; 65 at 2.) Although Plaintiff 6 Shuparskaya did not obtain the permit, Defendant’s employees gave her 10 trucks’ worth of fill 7 dirt for free. (See Dkt. No. 65 at 6, 8.) 5 Following complaints from her neighbors about the dirt, 8 an employee of Defendant told Plaintiff Shuparskaya that she needed a permit. (See Dkt. Nos. 49 9 at 2; 65 at 8, 72–73.) When Plaintiff Shuparskaya attempted to obtain a permit, she was told that 10 Lot 01 contained a wetland and was directed to remove the dirt. (Id. at 8–9; Dkt. No. 41-8 at 27.) 11 In December 2018, a wetland reconnaissance on Lot 01 identified and delineated a wetland 12 through the eastern half of the lot. (Dkt. No. 50 at 3.) Plaintiff Shuparskaya has not removed the 13 dirt, sought a reasonable use exception, or performed a wetlands analysis on Lot 01. (See Dkt. 14 Nos. 41-8 at 22–25, 51 at 3.) Instead, she has filed a tort claim for damages against Defendant 15 relating to Lot 01’s water issues. (See Dkt. No. 65 at 10, 76–81.) 16 17 C. Plaintiff Cuong LLC Plaintiff Cuong LLC’s Lots 33, 34, 46, 47, and 48 have faced issues with their suitability 18 for septic tank installation. (See Dkt. Nos. 41-2 at 2, 41-3 at 2, 41-9 at 37–40.) Plaintiff Cuong 19 LLC’s requests for septic permits have been denied, and Plaintiff Cuong LLC has filed two 20 pending Land Use Petition Act appeals challenging the denials in Snohomish County Superior 21 Court. (See Dkt. Nos. 40 at 9, 41 at 2, 41-7, 51 at 2.) 22 4 23 24 25 26 Plaintiff Shuparskaya did not check if Vasily possessed a business license, and she paid cash for his services. (See Dkt. No. 41-8 at 16.) She was also unaware of the culvert when Vasily performed his work and does not know whether he inserted the second pipe into it. (See id. at 17–19.) 5 Plaintiff Shuparskaya asserts that Defendant’s employees argued amongst one another about whether Lot 01 contained a wetland and that their computer did not show a wetland on Lot 01. (See Dkt. No. 65 at 6.) ORDER C18-1102-JCC PAGE - 4 1 Plaintiff Cuong LLC’s Lot 58 has proven difficult to develop. In 2014, a wetland 2 delineation concluded that Lot 58 “likely contained a wetland.” (Dkt. No. 50 at 2.) In November 3 2016, around the time Plaintiff Cuong LLC purchased its lots, Robert King inspected the lots on 4 Plaintiff Cuong LLC’s behalf and determined that Lot 58 was encumbered by a wetland and was 5 likely unbuildable. (See Dkt. No. 47 at 2.) Plaintiff Cuong LLC applied for a single-family 6 residence building permit for Lot 58 and a subsequent environmental review conducted by 7 Defendant concluded that both Lot 58 and Plaintiff Shuparskaya’s Lot 01 were encumbered by a 8 wetland and its buffer. (See Dkt. No. 42 at 2–3, 6.) To satisfy its obligation under the King 9 County Code to perform a wetland study, Plaintiff Cuong LLC filed a hydrology report prepared 10 by Stephen Neugebauer, which concluded that none of Plaintiff Cuong LLC’s lots contained 11 wetlands. (See Dkt. Nos. 40 at 10, 42 at 3–4, 51 at 4.) Defendant rejected Neugebauer’s report 12 for failing to comply with applicable provisions of the King County Code and Washington law. 13 (See Dkt. No. 42 at 5–6.) Plaintiff Cuong LLC did not apply for a reasonable use exception or 14 continue in the building permit application process; instead, it notified Defendant of its intent to 15 file suit. (See Dkt. Nos. 40 at 10, 41-9 at 24, 41-5 at 2, 42-3 at 2–3, 51 at 4–5.) During a site 16 inspection conducted in December 2018, Defendant discovered a septic test pit that was surveyed 17 and mapped by a surveyor retained by Plaintiff Cuong LLC. (See Dkt. Nos. 41-9 at 22–23; 45 at 18 4–5; 53 at 7, 40, 42.) The septic test pit significantly damaged the main line and could have 19 interfered with the functionality of the drainage ditch and culvert. (See Dkt. Nos. 41-9 at 22–23; 20 45 at 4–5; 53 at 7, 40, 42.) 21 22 D. Procedural History On July 6, 2018, Plaintiffs filed suit in Snohomish County Superior Court alleging 23 numerous violations of Washington and federal law. (See Dkt. No. 1-3 at 5–10.) In addition to 24 monetary damages, Plaintiffs seek declaratory relief regarding Defendant’s alleged violations of 25 the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., and injunctive relief. (Id. at 11–12.) 26 Defendant removed the case to pursuant to 28 U.S.C. § 1441(c), (see Dkt. No. 1), and now ORDER C18-1102-JCC PAGE - 5 1 moves for summary judgment on Plaintiffs’ claims, (see Dkt. No. 40). 2 II. DISCUSSION 3 A. Summary Judgment Legal Standard 4 “The court shall grant summary judgment if the movant shows that there is no genuine 5 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 6 Civ. P. 56(a). In making such a determination, the Court must view the facts and justifiable 7 inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. 8 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly 9 made and supported, the opposing party “must come forward with ‘specific facts showing that 10 there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 11 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Material facts are those that may affect the 12 outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence 13 for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248–49. 14 Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not 15 be “presumed.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). Ultimately, 16 summary judgment is appropriate against a party who “fails to make a showing sufficient to 17 establish the existence of an element essential to that party’s case, and on which that party will 18 bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 19 B. 20 Plaintiffs’ Federal Claims 1. Inverse Condemnation 21 Plaintiffs assert that Defendant has inversely condemned their property in violation of the 22 Washington and federal constitutions. (See Dkt. No. 1-3 at 9.) Plaintiffs claim that Defendant has 23 “effectively appropriated the lots . . . as a water storage facility, or in the alternative, [Defendant] 24 deems the water storage facility a wetland and [Defendant] has created it.” (See id. at 3.) 25 “No private property shall be taken or damaged for public or private use without just 26 compensation having been first made.” Wash. Const. art. I, § 16; see U.S. Const. amends. V, ORDER C18-1102-JCC PAGE - 6 1 XIV. “Inverse condemnation” describes “an action alleging a governmental ‘taking,’ brought to 2 recover the value of property which has been appropriated in fact, but with no formal exercise of 3 the power of eminent domain.” Phillips v. King County, 968 P.2d 871, 876 (Wash. 1998) 4 (quoting Lambier v. City of Kennewick, 783 P.2d 596, 598 (Wash. Ct. App. 1989)). A county 5 may be liable for damages under a taking theory if it causes surface water to trespass across a 6 plaintiff’s land in quantities greater than or different from the natural flow thereof. See Wilber 7 Dev. Corp. v. Les Rowland Constr., Inc., 523 P.2d 186, 189 (Wash. 1974); King County v. 8 Boeing Co., 384 P.2d 122, 126 (Wash. 1963) (collecting cases); Hoover v. Pierce County, 903 9 P.2d 464, 468–69 (Wash. Ct. App. 1995). 10 “A party alleging inverse condemnation must establish the following elements: (1) a 11 taking or damaging (2) of private property (3) for public use (4) without just compensation being 12 paid (5) by a governmental entity that has not instituted formal proceedings.” Phillips, 968 P.2d 13 at 876. The measure of damages in a taking case is the diminution in the property’s fair market 14 value caused by the taking. Id. The right to damages for property is personal to the owner and 15 does not pass to a subsequent purchaser unless expressly conveyed by the seller; therefore, “a 16 new taking cause of action requires additional governmental action causing a measurable decline 17 in market value.” Hoover, 903 P.2d at 470 (collecting cases). Thus, a purchaser should not be 18 awarded taking damages if he or she “acquired property for a price commensurate with its 19 diminished value” absent additional governmental action that further diminishes the property’s 20 value. See id. at 469. 21 Defendant has offered evidence demonstrating that the Plaintiffs’ asserted bases for their 22 inverse condemnation claim predated their purchase of the lots and that Plaintiffs purchased the 23 lots for prices commensurate with the lots’ diminished value. Plaintiffs’ lots have historically 24 been categorized as non-buildable parcels due to issues with poor percolation, standing water, 25 and unsuitability for septic systems. The lots have, accordingly, been assigned low appraisal 26 values. (See Dkt. Nos. 41-9 at 34–44; 43 at 3–4, 7–14; 44 at 2–3; 48 at 2–4; 49 at 2.) These ORDER C18-1102-JCC PAGE - 7 1 issues substantially predated Plaintiffs’ purchase of the lots. (See, e.g., Dkt. No. 49 at 2) 2 (neighbor declaring that, “There has been standing water on the Shuparskaya property since I 3 first moved in 22 years ago.”). Multiple studies conducted prior to Plaintiffs’ purchase of the lots 4 concluded that Plaintiff Shuparskaya’s Lot 01 and Plaintiff Cuong LLC’s Lot 58 are encumbered 5 by wetlands. (See Dkt. Nos. 43 at 2, 50 at 2.) These studies were corroborated by King’s 6 investigation, conducted shortly after Plaintiffs’ purchase of their land. (See Dkt. No. 47 at 2.) 7 The purchase prices of Plaintiffs’ lots were commensurate with their low appraisal values and 8 obstacles to development, (see Dkt. Nos. 41-8 at 3–4, 41-9 at 15, 65 at 2), and the record does 9 not show that the sellers of the lots expressly conveyed any preexisting right to takings damages 10 to Plaintiffs. Moreover, many of the events that have caused or have had the potential to increase 11 the lots’ water issues since Plaintiffs’ purchase are attributable to Plaintiffs, not Defendant. (See 12 Dkt. Nos. 44 at 4; 45 at 5–6; 53 at 4, 7, 40.) 13 In response, Plaintiffs assert that Defendant has committed acts amounting to inverse 14 condemnation after Plaintiffs purchased their lots. (See Dkt. No. 69 at 20–21.) Plaintiffs rely on 15 their perceptions of the lots’ suitability for development and argue that Defendant began 16 describing the area as a wetland only after Plaintiffs purchased their lots. (See id.; see also Dkt. 17 Nos. 65 at 3–4, 67 at 3–10.) Plaintiffs’ perceptions regarding the suitability of the lots for 18 development at the time of purchase are insufficient to overcome Defendant’s evidence that 19 obstacles to development, including percolation issues, standing water, the presence of wetlands, 20 and unsuitability for septic system installation, predated Plaintiffs’ purchase. (See Dkt. Nos. 41-9 21 at 34–44; 43 at 2–4, 7–14; 44 at 2–3; 48 at 2–4; 49 at 2; 50 at 2.) Similarly, Plaintiffs’ professed 22 lack of knowledge about the presence of wetlands does not contravene Defendant’s evidence that 23 one in fact existed on the lots prior to Plaintiffs’ purchase. (See Dkt. Nos. 43 at 2, 50 at 2; see 24 also Dkt. No. 47 at 2.) 25 26 In addition, Plaintiffs have not established that Defendant’s identification of a preexisting wetland on the lots and requirement that Plaintiffs obtain necessary permits or reasonable use ORDER C18-1102-JCC PAGE - 8 1 variances prior to development caused a new inverse condemnation cause of action to accrue to 2 Plaintiffs. See Hoover, 903 P.2d at 470; (Dkt. No. 69 at 21). And although Plaintiffs argue that 3 they have been precluded from developing their property due to Defendant’s identification of 4 wetlands encumbering their property, (see Dkt. No. 69 at 21), that is not the measure of damages 5 in a takings case. Rather, Plaintiffs must offer evidence showing that the fair market value of 6 their property has been diminished by an affirmative action of Defendant taken after Plaintiffs 7 purchased the lots. See Phillips, 968 P.2d at 876; Hoover, 903 P.2d at 469–70. Plaintiffs have not 8 cited such evidence or evidence showing that a seller of the lots expressly conveyed a right to 9 recover for a prior taking to Plaintiffs. (See generally Dkt. Nos. 66, 69.) 10 11 Therefore, Defendant’s motion for summary judgment is GRANTED as to Plaintiffs’ inverse condemnation claims arising under the Washington and federal constitutions. 12 13 2. Declaratory Relief under the CWA The CWA regulates the discharge of pollutants into waters of the United States and 14 regulates quality standards for surface waters. 33 U.S.C. §§ 1251 et seq. The CWA prohibits the 15 discharge of pollutants from a “point source” into the waters of the United States unless the 16 discharger holds a permit issued under the terms of the National Pollutant Discharge Elimination 17 System (“NPDES”). See 33 U.S.C. §§ 1311(a), 1342, 1362(14). NDPES permits may be issued 18 by the Environmental Protection Agency (“EPA”) or a state authorized by the EPA to act as a 19 permitting authority. See 33 U.S.C. § 1342(a)–(b). In Washington, the EPA has delegated the 20 authority to issue NDPES permits to the Washington State Department of Ecology. See Wash. 21 Rev. Code § 90.48.260(1). Defendant’s “Phase I Permit,” at issue in this litigation, was issued by 22 the Washington Department of Ecology pursuant to Wash. Rev. Code § 90.48. (See Dkt. Nos. 52 23 at 2–4, 70 at 3); see also Snohomish County v. Pollution Control Hearings Bd., 386 P.3d 1064, 24 1067–68 (Wash. 2016) (discussing history and requirements of Phase I Permit). 25 26 A private citizen may bring an action to enforce the provisions of the CWA, commonly known as a “citizen suit.” See 33 U.S.C. § 1365(a). “However, before [a citizen suit] is ORDER C18-1102-JCC PAGE - 9 1 commenced, the citizen must give a 60-day notice of intent to sue . . . . In fact, absent that notice, 2 the action is prohibited.” Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 3 800 (9th Cir. 2009) (citing 33 U.S.C. § 1365(b)(1)(A)). “[T]he notice must be given not only to 4 the alleged violator, but also to the Administrator [of the EPA], and to the State where the 5 alleged violation occurred.” Id. (footnotes omitted) (citing 33 U.S.C. §§ 1365(b)(1)(A)(i)–(iii)). 6 “In [the Ninth Circuit], compliance with this notice provision is required for jurisdiction.” 7 Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913, 916 (9th Cir. 2004) (citing Nat. Res. 8 Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 995 (9th Cir. 2000)). The EPA has promulgated 9 regulations governing the contents of the notice required for citizen suits, which “are not to be 10 looked upon as mere technicalities to be accepted with cold reserve and embraced with velleity. 11 They are to be taken serious as a means of carrying out important public policies. [The Ninth 12 Circuit’s] deviations from their precise language have been minor.” Ctr. for Biological Diversity, 13 566 F.3d at 802 (citing 40 C.F.R. § 135.3). 14 In their complaint, Plaintiffs assert that Defendant has violated its “general storm water 15 permit” and thus is in violation of the CWA. (See Dkt. No. 1-3 at 10.) Plaintiffs argue that 16 Defendant “should be ordered to bring its storm water system up to compliance with its storm 17 water permit and to maintain and improve its system consistent with the storm water permit and 18 current storm water and surface water regulations.” (Id.) It is undisputed that Plaintiffs did not 19 provide Defendant, the Administrator of the EPA, or the State of Washington with the requisite 20 notice prior to filing suit against Defendant for alleged violations of the CWA. 33 U.S.C. 21 § 1365(b)(1)(A)(i)–(iii); (see Dkt. Nos. 40 at 13, 69 at 6–9). Thus, the Court lacks jurisdiction 22 over Plaintiffs’ claims arising under the CWA. See Waterkeepers N. Cal., 375 F.3d at 916. 23 Therefore, Plaintiffs’ requests for declaratory relief regarding Defendant’s alleged violations of 24 the CWA and for an order directing Defendant to comply with its NDPES permit are 25 DISMISSED. 26 // ORDER C18-1102-JCC PAGE - 10 1 C. Supplemental Jurisdiction 2 District courts have original jurisdiction over “actions arising under the Constitution, 3 laws, or treaties of the United States.” 28 U.S.C. § 1331; see also 28 U.S.C. § 1441(b). A claim 4 may “arise under” federal law if a state law claim necessarily raises a substantial federal issue. 5 See Gunn v. Minton, 568 U.S. 251, 257–58 (2013). But “the presence of the federal issue as an 6 element of the state tort is not the kind of adjudication for which jurisdiction would serve 7 congressional purposes and the federal system.” Merrell Dow Pharm. Inc. v. Thompson, 478 8 U.S. 804, 814 (1986); see also Mays v. City of Flint, 324 F. Supp. 3d 918, 925 (E.D. Mich. 9 2016), aff’d sub nom. Mays v. City of Flint, Mich., 871 F.3d 437 (6th Cir. 2017) (“Even if 10 Plaintiffs sought to demonstrate that Defendants were negligent because they failed to comply 11 with the SDA or its regulations, this does not raise a substantial federal question.”). 12 “The decision whether to continue to exercise supplemental jurisdiction over state law 13 claims after all federal claims have been dismissed lies within the district court’s discretion.” 14 Foster v. Wilson, 504 F.3d 1046, 1051 (9th Cir. 2007) (citing 28 U.S.C. 1367(c)(3); Fang v. 15 United States, 140 F.3d 1243–44 (9th Cir. 1998)). While not mandatory, “in the usual case in 16 which all federal-law claims are eliminated before trial, the balance of factors to be considered 17 under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity— 18 will point toward declining to exercise jurisdiction over the remaining state-law claims.” 19 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). 20 Plaintiffs’ claim for continuing negligence cites two federal laws: the Safe Drinking 21 Water Act (“SDWA”), 42 U.S.C. §§ 300f–300j-27, and the CWA. (See Dkt. No. 1-3 at 6.) 22 Plaintiffs cite those federal statutes as evidence of Defendant’s alleged breach of a duty owed to 23 Plaintiffs under their state law negligence theory. (See Dkt. No. 69 at 6–7) (citing Wash. Rev. 24 Code § 5.40.050; Mathis v. Ammons, 928 P.2d 431, 435 (Wash. Ct. App. 1996)). 6 Plaintiffs’ 25 26 6 In their response to Defendant’s motion for summary judgment, Plaintiffs agree that they have not provided the requisite notice to bring a citizen suit under the CWA but argue that they may look to the statute as evidence of Defendant’s breach of a duty. (See Dkt. No. 69 at 6– ORDER C18-1102-JCC PAGE - 11 1 citations to the SDWA and CWA as establishing duties for the purposes of their state law 2 continuing negligence claim are insufficient to raise substantial federal questions and thus are not 3 subject to the Court’s original jurisdiction. See Merrell Dow Pharm. Inc., 478 U.S. at 814; Mays, 4 324 F. Supp. 3d at 925. Plaintiffs’ remaining claims for continuing trespass/waste, artificial 5 diversion of surface waters, artificial collection, concentration, channeling, and storage of 6 surface waters, failure to provide proper piping and outflow, continuing nuisance, tortious 7 interference with business interests and expectancies, and injunctive relief arise solely under 8 state law and thus are also not subject to the Court’s original jurisdiction. 28 U.S.C. § 1331; (see 9 Dkt. No. 1-3 at 5–11). 10 The Court’s granting of summary judgment on Plaintiffs’ claims for inverse 11 condemnation and for declaratory relief under the CWA eliminates the only causes of action over 12 which the Court has original jurisdiction. 28 U.S.C. §§ 1331, 1441(b); See supra Sections C.1., 13 C.2. The Court declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state law 14 claims. 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ., 484 U.S. at 350 n.7. The Court thus 15 refrains from ruling on the remaining issues raised by Defendant’s motion for summary 16 judgment and the various motions to strike declarations filed by the parties, preserving those 17 issues for adjudication in the appropriate state court. (See generally Dkt. No. 40; see Dkt. Nos. 18 70 at 11–12, 75 at 2.) 19 III. CONCLUSION 20 For the foregoing reasons, Defendant’s motion for summary judgment (Dkt. No. 40) is 21 GRANTED in part. Plaintiffs’ claims for inverse condemnation arising under the Washington 22 and federal constitutions and for declaratory relief under the CWA are DISMISSED. The Court 23 declines to rule on Plaintiffs’ state law claims and DIRECTS the Clerk to REMAND this case to 24 25 26 7.) Although Plaintiffs do not discuss the SDWA, the Court assumes Plaintiffs intended for their analysis to apply equally to both federal statutes cited in their continuing negligence claim. (See Dkt. Nos. 1-3 at 6, 69 at 6–7.) ORDER C18-1102-JCC PAGE - 12 1 the Snohomish County Superior Court. The Court further DIRECTS the Clerk to transmit a 2 certified copy of this order to the clerk of the Snohomish County Superior Court. 3 DATED this 12th day of November 2019. 6 A 7 John C. Coughenour UNITED STATES DISTRICT JUDGE 4 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER C18-1102-JCC PAGE - 13
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