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California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc.

United States Court of Appeals, Ninth Circuit

July 22, 2013

California Sportfishing Protection Alliance, Plaintiff-Appellant,
v.
Chico Scrap Metal, Inc.; George Scott, Sr .; George Scott, Jr.; George W. Scot t, Sr., Revocable Inter Vivos Trust, Defendants-Appellees.

Argued and Submitted April 16, 2013—San Francisco, California.

Appeal from the United States District Court for the Eastern District of California No. 2:10-CV-01207-GEB GGHGarland E. Burrell, Jr., Senior District Judge, Presiding.

Andrew L. Packard (argued) and Emily J. Brand, Law Offices of Andrew L. Packard, Petaluma, California, for Plaintiff-Appellant.

Therese Y. Cannata, Cannata, Ching & O'Toole LLP, San Francisco, California, for Defendants-Appellees.

Harold M. Thomas, Special Deputy District Attorney, Office of Butte County District Attorney, Oroville, California, for Amicus Curiae.

Before: Susan P. Graber and Morgan Christen, Circuit Judges, and John R. Tunheim, [*] District Judge.

OPINION

SUMMARY[**]

Environmental Law

The panel reversed the dismissal of a citizen suit under the Clean Water Act alleging that the defendants violated a National Pollutant Discharge Elimination System permit governing industrial storm water discharges at their scrap metal recycling facilities.

The panel held that 33 U.S.C. § 1365(b)(1)(B) did not bar the plaintiff conservation organization's claims even though a district attorney had filed prior criminal and civil actions against the defendants. The panel concluded that the state had commenced no action in court "to require compliance" with the storm water permit. The panel held that § 1319(g)(6)(A)(ii) also did not bar the plaintiff's claims because the state had commenced no administrative penalty action comparable to one under the Clean Water Act.

COUNSEL

OPINION

GRABER, Circuit Judge:

The Federal Water Pollution Control Act, or Clean Water Act ("the Act"), 33 U.S.C. § 1365(a)(1), allows a citizen to sue to enforce the Act's prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System ("NPDES") permit. In this citizen suit, Plaintiff, California Sportfishing Protection Alliance, a conservationist organization, alleges that Defendants, Chico Scrap Metal, Inc.; George Scott, Sr.; George Scott, Jr.; and George W. Scott, Sr., Revocable Inter Vivos Trust, have violated an NPDES permit that governs industrial storm water discharges at three scrap metal recycling facilities that Defendants operate.

The district court dismissed this action after ruling that 33 U.S.C. § 1365(b)(1)(B) bars Plaintiff's claims. On appeal, Defendants argue that another statutory bar, 33 U.S.C. § 1319(g)(6)(A)(ii), also applies. We hold that § 1365(b)(1)(B) does not apply because the state has commenced no action in court "to require compliance" with the storm water permit and that § 1319(g)(6)(A)(ii) does not apply because the state has commenced no administrative penalty action ...


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