Barnum Timber Co. v. United States Environmental Protection Agency et al, No. 3:2008cv01988 - Document 33 (N.D. Cal. 2008)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND by Judge Alsup denying 28 Motion to Amend/Correct ; (whalc2, COURT STAFF) (Filed on 12/4/2008)
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Barnum Timber Co. v. United States Environmental Protection Agency et al Doc. 33 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 For the Northern District of California United States District Court 10 11 BARNUM TIMBER CO., a California limited partnership, 12 Plaintiff, 13 No. C 08-01988 WHA v. 16 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and STEPHEN L. JOHNSON, in his official capacity as Administrator of the United States Environmental Protection Agency, 17 Defendants. 14 15 ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND / 18 19 INTRODUCTION 20 In this action under the Administrative Procedures Act, plaintiff Barnum Timber claims 21 that the EPA’s retention of Redwood Creek on the list of water bodies deemed environmentally 22 impaired under Section 303(d) of the Clean Water Act was arbitrary and capricious. A prior 23 motion to dismiss filed by defendant was granted on the grounds that plaintiff lacked standing. 24 Plaintiff now moves for leave to amend the complaint. This order finds that amendment 25 would be futile because the proposed amendment would not cure the standing problem. 26 Plaintiff’s motion for leave to amend, therefore, is DENIED. 27 28 For the Northern District of California United States District Court 1 STATEMENT 2 The facts of the case and the pertinent regulatory background were set forth in the 3 September 2008, order granting defendant’s motion to dismiss (Dkt. No. 27). Barnum Timber 4 owns property along Redwood Creek, a creek located near Eureka, California. The Clean 5 Water Act’s Section 303(d) requires each state periodically to develop a list of environmentally 6 impaired water bodies and to submit the list to the EPA for approval or disapproval. In 1992, 7 California recommended and the EPA approved the Section 303(d) designation of Redwood 8 Creek as impaired by sediment. In 2002, California and the EPA retained Redwood Creek on 9 the Section 303(d) list as impaired by sediment and also designated the creek as impaired by 10 water temperature. Another Section 303(d) review process in 2006 resulted in Redwood Creek 11 remaining listed as impaired by both sediment and water temperature. These impairment 12 listings, plaintiff alleges, were predicated at least in part on the EPA’s determination that 13 Redwood Creek was unable to support fish populations at historical levels. In this lawsuit, 14 plaintiff challenges the EPA’s retention of Redwood Creek on the 2006 Section 303(d) list. 15 Resolution of this motion requires an understanding of the structure of the Clean 16 Water Act (“Act”) and the interplay between federal and state regulation of water quality. 17 The September 2008 order discussed the federal statutory scheme and its interplay with state 18 environmental regulation in detail (Dkt. No. 27 at 3–5). Suffice it to say that, for any waters 19 included on a state’s EPA-approved Section 303(d) list, the state and EPA must develop 20 maximum pollution levels for the impaired water body called “total maximum daily loads” 21 (“TMDLs”): “[e]ach State shall establish for the waters identified in paragraph (1)(A) of this 22 subsection . . . the total maximum daily load for those pollutants which the Administrator 23 identifies . . . as suitable for such calculation.” 33 U.S.C. 1313(d)(1)(C) (emphasis added). 24 “A TMDL defines the specified maximum amount of a pollutant which can be discharged 25 or ‘loaded’ into the waters at issue from all combined sources.” Pronsolino v. Nastri, 26 291 F.3d 1123, 1127–28 (9th Cir. 2002). The state must undertake an environmental planning 27 process to develop appropriate remedial mechanisms to bring the listed water body into 28 compliance. The Act specifically requires controls on “point sources” of pollution, but the Act 2 1 largely leaves it to the states to control “non-point sources” of pollution to the extent necessary 2 to satisfy the TMDL. As the Ninth Circuit explained, 3 4 5 6 For the Northern District of California United States District Court 7 [t]he upshot of th[e] intricate scheme is that the [Act] leaves to the states the responsibility of developing plans to achieve water quality standards if the statutorily-mandated point source controls will not alone suffice, while providing federal funding to aid in the implementation of the state plans. Pronsolino, 291 F.3d at 1128–29. California’s 2002 and 2006 impairment designations followed extensive proceedings in 8 the State Water Board and California’s regional North Coast Water Board. The State Water 9 Board ultimately accepted the North Coast Board’s recommendation that Redwood Creek be 10 designated for impairments and submitted its Section 303(d) list to the EPA for approval 11 (Compl. ¶¶ 20, 26–28). The EPA adopted the State Water Board’s findings and 12 recommendations in all respects pertinent to this action, and approved California’s 13 Section 303(d) list with Redwood Creek designated as impaired both by sediment and 14 temperature (Compl. ¶¶ 29–35). Plaintiff alleges that the California State Water Board’s 15 recommendations were based on faulty assumptions and determinations. 16 Plaintiff contends that it has suffered various injuries as a result of the EPA’s 2006 17 decision to retain Redwood Creek on the Section 303(d) list of impaired water bodies. 18 Plaintiff raises three claims for relief, in turn, challenging the EPA’s Section 303(d) 19 determinations pertaining to (1) decreased fish populations, (2) sediment, and (3) temperature. 20 Plaintiff claims that these determinations were contrary to the Clean Water Act and were 21 arbitrary and capricious and not supported by substantial evidence in the record under the 22 Administrative Procedure Act. Plaintiff seeks a declaratory judgment that each of these 23 decisions was improper and injunctive relief. 24 An order entered on September 29, 2008, granted defendant’s motion to dismiss, ruling 25 that plaintiff lacked standing. Plaintiff had averred that it suffered injuries caused by the 26 application of California forestry regulations. CAL. CODE REGS. tit. 14, § 916.9. Those 27 regulations imposed compliance costs and restrictions on the use of plaintiff’s land. Those state 28 regulations, however, were not fairly traceable to the challenged federal Section 303(d) 3 1 decision. The TMDL had yet to be developed for Redwood Creek and the regulations allegedly 2 causing plaintiff’s injury bore no discernible relationship to the challenged EPA decision or the 3 Section 303 planning process. Plaintiff also alleged that the value of its property had decreased 4 from the mere Section 303(d) listing itself, but plaintiff offered only the bare allegation in 5 support of this claim. Plaintiff now moves for leave to file a proposed first amended complaint. 6 ANALYSIS For the Northern District of California United States District Court 7 Under FRCP 15(a), leave to amend a complaint shall be freely given when justice so 8 requires, but “[l]eave to amend need not be granted when an amendment would be futile.” 9 In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1097 (9th Cir. 2002). Plaintiff reiterates its 10 two prior theories of standing, albeit with slightly more careful pleading, and adds a third. 11 Plaintiff first reiterates its claim that the retention of Redwood Creek on the 12 Section 303(d) list directly caused the value of plaintiff’s property to fall. Plaintiff offers the 13 declarations of two California licensed professional foresters, Mr. Herman and Mr. Able. 14 Both opine that although the impact cannot be quantified, in their opinion the Section 303(d) 15 listing of a water body reduces the value of nearby properties because the public perceives that 16 onerous regulations will be forthcoming (Herman Decl. ¶¶ 6–7; Able Decl. ¶¶ 5–6). The Ninth 17 Circuit, in San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996), rejected 18 a similar economic-injury theory of standing because “the [challenged] Act [was] neither the 19 only relevant piece of legislation nor the sole factor affecting the price of grandfathered 20 weaponry . . . . Thus, any finding that the Crime Control Act had a significant impact on the 21 increase in prices of weapons would be tantamount to sheer speculation.” Id. at 1130 (further 22 explaining that “where injury is alleged to occur within a market context, the concepts of 23 causation and redressability become particularly nebulous and subject to contradictory, and 24 frequently unprovable, analyses”) (citation omitted). This claim was previously dismissed 25 because here, as in Reno, “a broad spectrum of factors, both regulatory and non-regulatory, 26 affect the value of plaintiff’s property. Plaintiff [had] not even attempted, much less 27 succeeded, to isolate Section 303(d) listing from other factors affecting the value of its 28 property” (Dkt. No. 27 at 11). The claim was dismissed even accepting arguendo that the 4 For the Northern District of California United States District Court 1 declaration Mr. Able then offered expressed substantially the same opinion that he now offers 2 (although his prior declaration was ambiguous in that regard). Even with that declaration, 3 plaintiff offered nothing but conclusory and unsupported contentions. The proposed 4 amendment offers nothing new. 5 Plaintiff next claims once again that standing may be predicated on injuries inflicted by 6 California regulations governing watersheds with threatened or impaired values (“T/I Rules”). 7 CAL. CODE REGS. tit. 14, § 916.9. Plaintiff now acknowledges (implicitly) that under the plain 8 language of California’s forestry regulations, application of the T/I Rules allegedly causing 9 plaintiff’s injury are triggered not by Section 303(d) listing but rather by impairment listings 10 under federal or state endangered species acts.1 Plaintiff now argues, however, that “the T/I 11 Rules are triggered de facto by a waterbody’s listing under Section 303(d)” and that “[t]he 12 divergence between theory and practice is likely a function of the regulatory terminology” 13 (Br. at 4). Plaintiff relies on the declaration of Mr. Herman, who explains that “[a]mong 14 California Registered Professional Foresters, the T/I Rules are deemed applicable to a given 15 timber operation based solely upon the existence of a Section 303(d) listed waterbody in or near 16 the place of proposed timber operations” (Herman Decl. ¶ 9). If it is the common understanding 17 of professional foresters or state regulators — one that is contrary to the plain language of the 18 regulations — that has caused plaintiff’s injury, plaintiff may have a grievance with the state. 19 The EPA cannot be blamed for the understandings of California’s foresters or the actions of 20 California’s regulators. Statutory interpretation, however, is a task for courts. The plain 21 language of Section 916.9 indicates that any injury the regulation has caused is not triggered by, 22 and therefore is not fairly traceable to, the EPA’s Section 303(d) determination. 23 24 25 1 26 27 28 As explained in the September 2008 order, the regulation states: “[i]n addition to all other district Forest Practice Rules, the following requirements shall apply in any planning watershed with threatened or impaired values.” CAL. CODE REGS. tit. 14, § 916.9 (emphasis added). The phrase “watershed with threatened or impaired values” is a defined term: “‘Watersheds with threatened or impaired values’ means any planning watershed where populations of anadromous salmonids that are listed as threatened, endangered, or candidate under the State or Federal Endangered Species Acts with their implementing regulations, are currently present or can be restored.” Id. at 895.1 (emphasis added). 5 1 Finally, plaintiff adds one new theory of standing. Plaintiff asserts that a different 2 California forestry regulation, CAL. CODE REGS. tit. 14, § 898, has caused plaintiff injury which 3 is triggered by the Section 303(d) listing of Redwood Creek. That regulation states: 4 After considering the rules of the Board and any mitigation measures proposed in the plan, the [registered professional forester (“RPF”)] shall indicate whether the operation would have any significant adverse impact on the environment. 5 6 * * * 7 Cumulative impacts shall be assessed based upon the methodology described in Board Technical Rule Addendum Number 2, Forest Practice Cumulative Impacts Assessment Process and shall be guided by standards of practicality and reasonableness. 8 9 * 11 For the Northern District of California United States District Court 10 * * When assessing cumulative impacts of a proposed project on any portion of a waterbody that is located within or downstream of the proposed timber operation and that is listed as water quality limited under Section 303(d) of the Federal Clean Water Act, the RPF shall assess the degree to which the proposed operations would result in impacts that may combine with existing listed stressors to impair a waterbody’s beneficial uses, thereby causing a significant adverse effect on the environment. The plan preparer shall provide feasible mitigation measures to reduce any such impacts from the plan to a level of insignificance, and may provide measures, insofar as feasible, to help attain water quality standards in the listed portion of the waterbody. 12 13 14 15 16 17 Ibid. (emphasis added). 18 Defendant admits that the obligations to “assess the degree to which the proposed 19 operations would result in impacts . . .” and to “provide feasible mitigation measures to reduce 20 any such impacts” constitute injury-in-fact. Defendant also acknowledges that “the application 21 of Section 898 to a particular water may be triggered by the water’s appearance on and 22 EPA-approved Section 303(d) list.” Defendant contends, however, that plaintiff lacks standing 23 because any injury from this provision arises from the independent and intervening actions of a 24 third-party: the state of California. Defendant argues that the injury is fairly traceable only to 25 California’s adoption of the forestry regulation, not to the EPA’s Section 303(d) decision 26 (Opp. at 7–8). 27 The mere fact that the EPA’s Section 303(d) decision contributed in some identifiable 28 way to plaintiff’s injury and a court ruling striking the EPA’s action would therefore alleviate 6 For the Northern District of California United States District Court 1 that injury does not mean that the injury necessarily is fairly traceable to defendant’s conduct 2 for standing purposes. Allen v. Wright, 468 U.S. 737, 753 n.19 (“[e]ven if the relief respondents 3 request might have a substantial effect on the desegregation of public schools, whatever 4 deficiencies exist in the opportunities for desegregated education for respondents’ children 5 might not be traceable to IRS violations of law-grants of tax exemptions to racially 6 discriminatory schools in respondents’ communities”). Allen explained that even if the relief 7 sought — forcing the IRS to cease granting tax exemptions to racially discriminatory schools — 8 would have a “substantial effect” on the injury alleged, “[f]rom the perspective of the IRS, the 9 injury to respondents is highly indirect and results from the independent action of some third 10 party not before the court.” Id. at 757 (internal quotation and citation omitted). See also 11 Citizens for Better Forestry v. U.S. Dept. of Agriculture, 341 F.3d 961, 975 (9th Cir. 2003) 12 (“The causation question concerns only whether plaintiffs’ injury is dependent upon the 13 agency’s policy, or is instead the result of independent incentives governing [a] third part[y’s] 14 decisionmaking process”) (quoting Idaho Conservation, 956 F.2d at 1518). 15 As in Allen, from the perspective of the EPA, plaintiff’s injury is “highly indirect and 16 results from the independent action of some third party not before the court.” California’s 17 Forestry Department, not the EPA, promulgated the regulations that caused plaintiff’s injury. 18 Its decision to do so was in no way related to the Section 303(d) listing of Redwood Creek. 19 The TMDL for Redwood Creek has not yet been developed; whatever regulatory impacts the 20 Section 303(d) listing may ultimately occasion have yet to occur. California’s forestry rules 21 comprehensively regulate plaintiff’s conduct irrespective of Redwood Creek’s Section 303(d) 22 listing. See, e.g., CAL. PUB. RES. CODE §§ 4581–82 (duty to complete timber harvesting plan 23 and contents thereof); CAL. CODE REGS. tit. 14, § 897 (goals of the forestry implementing 24 regulations); Id. at §§ 911–29 (forestry district rules). The fact that California independently 25 chose to condition one of those rules in part on the EPA’s otherwise-unrelated Section 303(d) 26 decision does not mean that plaintiff’s harm is fairly traceable to the EPA. At root, the injuries 27 plaintiff alleges arise from California forestry regulations, not any action of the EPA. 28 Community for Creative Non-Violence v. Pierce, 814 F.2d 663, 668 (D.C. Cir. 1987) (plaintiffs 7 1 lacked standing because they “seek ‘to change [appellee’s] behavior only as a means to alter the 2 conduct of third part[ies], not before the court, who [are] the direct source of [appellant’s] 3 injury’”) (citation omitted). 4 5 6 CONCLUSION For the reasons stated above, plaintiff’s motion for leave to amend is DENIED. The accompanying judgment will be entered. 7 8 IT IS SO ORDERED. 9 Dated: December 4, 2008. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8