The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Previously pending on this court's law and motion calendar for March 15, 2012, were defendant Callaway's motion to dismiss, filed January 25, 2012, and plaintiff CalSpa's motion to compel discovery, filed November 14, 2011. Callaway appeared in pro se. CalSpa was represented by Erik Roper. Having reviewed the papers on support of and in opposition to the motions, the court now issues the following order and findings and recommendations. BACKGROUND
This case is proceeding on the amended complaint, filed June 21, 2011. California Sportfishing Protection Alliance ("CalSpa") is proceeding as a "citizen enforcer," under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., alleging that William Callaway, dba Paradise Ready Mix, Inc. ("PRM") is continuing to violate the terms of the National Pollutant Discharge Elimination System (NPDES) Permit based on storm water discharged to a "wash" at the border of the cement facility from Callaway's ready mix concrete facility in Paradise. In addition to these alleged violations, CalSpa further alleges that Callaway failed to implement the required Best Available Technology Economically Achievable ("BAT") for toxic and non-conventional pollutants, and Best Conventional Pollutant Control Technology ("BCT") for conventional pollutants, and that he failed to develop and implement an adequate Storm Water Pollution Prevention Plan and adequate Monitoring and Reporting Program. CalSpa seeks civil penalties, injunctive relief and costs.
II. Callaway's Motion to Dismiss
A. CalSpa's Request for Judicial Notice
CalSpa has filed a request for judicial notice, which Callaway has not opposed.
CalSpa requests judicial notice of its Exhibit A, which is an 83 page document entitled, "State Water Resources Control Board (State Water Board) Water Quality Order No. 97-03-DWQ National Pollutant Discharge Elimination System (NPDES) General Permit No. CAS000001 (General Permit) Waste Discharge Requirements (WDRS) For Discharges of Storm Water Associated with Industrial Activities Excluding Construction Activities (hereafter "General Industrial Storm Water Permit" or "General Permit)."
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). However, not all court records are equal with respect to the ability to take judicial notice. The sine qua non for any judicial notice request is that the information sought to be noticed is of a character that is generally known, or cannot reasonably be disputed. Fed. R. Ev. 210(b). Also, the facts have to be relevant to the proceeding before the court. Because CalSpa failed to object to this request for judicial notice, and because the documents appear to relevant to this litigation, the request is granted. Thus, for the purposes of this motion, CalSpa will have established the storm water requirements applicable to this property.
There are two general bases for the motion to dismiss -- Callaway disputes the applicability/constitutionality of the Clean Water Act as applied to him and/or his property, and CalSpa's standing to pursue this Clean Water Act citizen's enforcement action. Thus, there are two possible legal standards in play -- Fed. R. Civ. P. 12(b)(6) and 12(b)(1).
With respect to the applicability of the Act, or its constitutionality, the parties mistake the issues as being "jurisdictional," which would permit disputed fact resolution as set forth below. However, the constitutionality of a law, or the applicability of a law, especially here whether Callaway is discharging pollutants into "navigable waters," does not impact the subject matter jurisdiction of the Court. See Sierra Club v. City and County of Honolulu, 2008 WL 3850495 (D. Haw. 2008), and cases cited therein. Thus, unless the facts of the complaint do not state a claim as a matter of law, not taking into account filings which demonstrate disputed facts, that "applicability/constitutionality" aspect of the motion to dismiss must fail. On the other hand, the question of standing does go to the subject matter jurisdiction of this court for which the parties could submit facts outside the pleadings.
Rule 12(b)(6) - Failure to State a Claim
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the CalSpa pleads factual content that allows the court to draw the reasonable inference that the Callaway is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
Rule 12(b)(1) - Subject Matter Jurisdiction
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, CalSpa bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).
First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and CalSpa enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, CalSpa and Callaway must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699-700, 7 L. Ed. 2d 663 (1962).
Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, Callaway challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to CalSpa's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn1
Callaway brings his motion under Rules 12(b)(1) and 12(b)(6). In summary, his arguments are: (1) the Clean Water Act is unconstitutional as applied to him; (2) this action is penal in nature and therefore unconstitutional as applied to him as the accused; (3) injunctive relief is improper where there are adequate remedies including criminal action; (4) the Clean Water Act is unconstitutional in permitting private citizens to prosecute under it where it is penal in nature; (5) lack of subject matter jurisdiction because inland water is not federal navigable water, the subject property is near a "normally dry wash, " and not within Congressional intent, and there is no point source which discharges into navigable waters, (6) CalSpa has no standing because it is not a real party in interest, and (7) in the alternative, the court should stay the action and order limited discovery on the issues of jurisdiction and standing. With respect to all categories, except for (6), the motion will be decided on the facts of the complaint, and those facts for which judicial notice could be taken.
The first amended complaint provides (quoted with ellipses):
5. This complaint seeks relief for Callaway's discharges of pollutants from an approximately three acre concrete manufacturing facility owned and/or operated by Callaway. The Facility collects and discharges storm water and unauthorized non-storm water to Honey Run Creek and/or the local storm water conveyance system, both of which ultimately drain to the Sacramento River, and the Sacramento-San Joaquin Delta. Callaway's discharges of pollutants from the Facility are in violation of the Act and the ....Permit for storm water discharges.
6. ....With every rainfall event, hundreds of thousands of gallons of polluted storm water originating from industrial facilities discharge to Honey Run Creek, the Sacramento River, and the Sacramento-San Joaquin Delta.
25. In order to discharge storm water lawfully in California, industrial dischargers [such as Callaway] must comply with the terms of the General Permit or have obtained and complied with an individual NPDES permit.
36. The Facility is classified under Standard Industrial Classification ("SIC")....Industrial activities occur throughout the Facility. The Facility is primarily used as a concrete manufacturing facility.....Many of these activities occur outside in areas that are exposed to storm water and storm flows due to the lack of overhead coverage, functional berms and other storm water controls. CalSpa is informed and ...