FINDINGS AND RECOMMENDATIONS
This case came before the court on December 11, 2009, for hearing of defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 7.) Tom Blake, Esq. appeared telephonically on behalf of the moving party. Plaintiff, who is proceeding pro se in this action, appeared in court on his own behalf.
Less than an hour prior to the December 11, 2009 hearing on defendant's motion to dismiss, plaintiff filed a request to continue the hearing to February 26, 2010. (Doc. No. 11.) In his written request and in open court, plaintiff represented that he sought a continuance in order to retain counsel and allow counsel time to prepare a response to defendant's motion. Defendant did not oppose a continuance for these purposes. The court granted plaintiff's request in part and continued the hearing to February 19, 2010. In light of plaintiff's representations about retaining counsel, the undersigned ordered that if an amended complaint were filed prior to February 5, 2010, defendant's motion to dismiss would be dropped from the calendar and denied as moot. (Doc. No. 13.)
On February 4, 2010, plaintiff, still proceeding pro se, filed a document titled "First Amended Complaint." (Doc. No. 14.) By order filed February 11, 2010, the new pleading was dismissed for several reasons, including plaintiff's attempt to join and represent an entity plaintiff that can proceed only through counsel, and his attempt to add numerous defendants and allege new claims and new legal theories arising from events unrelated to those alleged in his original pleading. (See Doc. No. 15.) The court also took judicial notice of court records showing that the proposed new claims arising from events that occurred in Arizona are duplicative of claims already alleged by plaintiff in several lawsuits pending in federal court in Arizona. The court declined to dismiss defendant's pending motion as moot, and the hearing of defendant's motion was continued to March 5, 2010. Plaintiff was ordered to file any opposition to the motion on or before February 19, 2010. Plaintiff was cautioned that no further extension of time would be granted for filing opposition to defendant's motion. Plaintiff was also cautioned that failure to file timely opposition could result in a recommendation that this case be dismissed for lack of prosecution and as a sanction for failure to comply with court orders and applicable rules.
On February 19, 2010, plaintiff filed what he characterized as a second amended complaint and an objection to the order dismissing his first amended complaint. (Doc. No. 16.) Plaintiff did not file any opposition to defendant's motion to dismiss. By order filed March 3, 2010, plaintiff's objection to the February 11, 2010 order was overruled and the proposed second amended complaint was disregarded. (Doc. No. 19.) Defendant's unopposed motion to dismiss was taken under submission, and the hearing set for March 5, 2010 was vacated.
Upon consideration of all written materials filed in connection with defendant's motion to dismiss as well as relevant portions of the file, the undersigned recommends that defendant's motion to dismiss be granted and that this action be dismissed with prejudice.
On September 16, 2009, the plaintiff filed a 327-page complaint and paid the required filing fee. The Clerk issued a summons for California Governor Arnold Schwarzenegger, the sole named defendant.
The complaint commences with a jurisdictional statement in which plaintiff asserts jurisdiction "under 33 U.S.C. § 1365(a) over violations of any effluent standard or limitation established pursuant to 33 U.S.C. Chapter 26 - Water Pollution Prevention and Control effective July 1, 1973." (Compl. ¶ 1.) Plaintiff asserts that venue is proper in the Eastern District of California because the state capital is located in this district, the defendant, as governor of the State of California, resides in this district, and all events and omissions giving rise to plaintiff's claims are the result of the defendant's failure to act in accordance with his duty as governor. Plaintiff states that his address is a residence in Los Osos, California. (Compl. ¶¶ 2-4.)
In his complaint plaintiff alleges as follows. The community of Los Osos was identified as being responsible for degrading water quality along the Central Coast of California by pollutant discharges from approximately 4,500 conventional septic systems. In 1983, the Regional Water Quality Control Board (Water Board) passed a resolution prohibiting the use of onsite disposal systems, i.e., septic systems, in the Los Osos community in San Luis Obispo County (County) on Morro Bay. The resolution went into effect on November 1, 1988. Approximately 15,000 residents live in approximately 4,500 homes in the prohibition zone. Los Osos does not have a community sewage collection system or a wastewater treatment plant. In 1992 and 1993, plaintiff and others urged the County and the Water Board to consider, as a solution for the prohibition zone, the "at-source innovative and alternative control technology" developed by Advanced Environmental Systems, Inc. (AES).*fn1 Plaintiff believed his alternative technology would reduce nitrate discharges to an amount well within the requirements of the resolution that went into effect on November 1, 1988. The County and the Water Board requested a third-party evaluation and certification to verify the denitrification performance capability of the AES system.
In 1994, AES invested approximately $150,000 in a six-month performance evaluation. Despite certified results and federal law favorable to AES technology, the County refused to recognize federal law, refused to comply with the Water Board's prohibition resolution, and refused to consider implementing the AES alternative. By 1999 the County's efforts to develop a solution for the Los Osos prohibition zone had failed. In 1999, the Los Osos Community Service District (Service District) was formed to develop a community sewage system. The Water Board confirmed a state of emergency in the Los Osos prohibition zone in May 1999 and caused Los Osos owners and operators of sources of point-source discharge to be served with cease-and-desist orders. In 2005 the Service District obtained permits from the Water Board to build a sewer system without considering innovative alternatives. The system was funded by a $135 million loan issued by the state to the Service District. Local residents opposed to the sewer system project successfully recalled three of the five Service District board members and replaced them with members who were opposed to the project. In September 2005, the newly constituted Service District board issued stop-work notices to the contractors who were building the sewer system. In August 2006, the District filed for bankruptcy due to money owed to unpaid contractors and is now approximately $40 million in debt. In September 2006, the Water Board attempted to force the citizens of Los Osos to support the County sewer project by issuing 46 individual state cease-and-desist orders mainly to individuals who were opposed to the sewer system. The Water Board was willing to approve the AES alternative system, but the Service District and the County refused to consider the AES proposal. Authority to develop a community sewage treatment system was transferred from the bankrupt Service District to the County by state legislation. The County did not accept responsibility for the Los Osos project.
In August 2007 plaintiff presented the alternative technology to the Water Board as a solution. In the fall of 2007, the County obtained voter approval, through threats and intimidation tactics, to place liens on the homes in the Los Osos prohibition zone to obtain bond funding to build a community sewer system estimated to cost about $250 million. The sustainable alternative water source (SAWS) system would cost only $25 million at most, with federal and state financial assistance. In February 2008, plaintiff installed a SAWS technology system at his residence in Los Osos. The County Planning and Building Department issued plaintiff a permit for his SAWS installation, but the Service District refused to allow plaintiff to disconnect from the publicly owned water treatment works and began to take the new water produced by plaintiff's system instead of permitting him to benefit from re-use of that water. In October 2008, AES again submitted a proposed agreement to the County, but the County disregarded it. In November 2008, AES presented a proposal to the County's Director of Public Works, but the County disregarded the proposal and continued studying the project. When the two-year study was complete, the County submitted its findings to the California Coastal Commission for acceptance, but the findings were rejected. In February 2009, the County Public Works Department sent out a questionnaire to all residents of the Los Osos prohibition zone about two different types of waste managing systems, but did not include the SAWS technology as one of the options despite the fact that plaintiff had been operating a SAWS system for about a year.
On February 9, 2009, plaintiff delivered to the Governor's Office in Sacramento draft proposed alternative requirements and regulations for water treatment, as well as a draft executive order addressing the need to control toxic discharges into drinking water. The defendant did not respond to plaintiff's written request for a meeting. On February 27, 2009, the defendant issued a State of Emergency - Water Shortage Proclamation finding California to be in an official drought condition. In March 2009, the California Coastal Commission sent a letter to the director of the County Public Works Department rejecting all options proposed. Plaintiff believes that the Service District, the County, and the Water Board do not intend to consider alternatives that would eliminate the need for an expensive and unnecessary system of sewage collection and centralized treatment, i.e., publicly owned treatment works. (Compl ¶¶ 5-43.)
In a claim titled "Negligence of Defendant," plaintiff alleges that the governor has strict liability to exercise a duty of care commensurate with the foreseeable risk of danger to public health resulting from emergencies proclaimed within his jurisdiction. 33 U.S.C. § 1370. In this regard, plaintiff claims that the governor has a duty to adopt standards that establish "a value of public water supplies." 33 U.S.C. § 1313(c)(1) and (c)(2)(A). The governor has a non-discretionary duty to uphold federal environmental laws to protect the quality of the human environment. 33 U.S.C. §§ 1365 & 1371(c)(1). The governor has a duty to adopt and enforce effluent limitations and various other limitations and standards for control of pollutants. 33 U.S.C. §§ 26, 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, 1342, 1345, & 1370. Defendant Schwarzenegger breached his duty to protect the public health or welfare, enhance the quality of water, and protect the value of public water supplies. He was negligent for failing to recognize various federal laws, adopt and enforce various limitations and standards, establish "a value of public water supplies," uphold federal environmental laws, exercise his authority to adopt and enforce standards and limitations, and uphold other federal environmental laws. He was complicit with San Luis Obispo County and various agencies in violation of federal bankruptcy law by not paying plaintiff for new water they took from him. Defendant Schwarzenegger was acting within the scope of his duties as governor, and as a result of his negligence and complicity, plaintiff's livelihood was endangered, the cease-and-desist order on plaintiff's property could not be complied with, the prohibition zone continued, plaintiff suffered economic hardship by the placement of a lien on his property, and plaintiff was caused to be in violation of defendant's emergency drought proclamation. (Compl. ¶¶ 44-57.)
In his prayer for relief, plaintiff seeks orders requiring defendant Schwarzenegger to (1) pay plaintiff $580.40 for water that was produced by his alternative water system but was taken from him, (2) adopt certain standards, (3) direct San Luis Obispo County to take certain actions, (4) lift all cease-and-desist orders within the Los Osos prohibition zone, (5) lift the liens on properties ...