Washington Trout v. McCain Foods, Inc.

No. 93-35857 (9th Cir. January 24, 1995)

The court affirms the dismissal for lack of subject matter jurisdiction of a Federal Water Pollution Control Act (FWPCA) citizen suit because the citizens groups'notice to the potato processing plant that was allegedly in violation of the Act did not provide theinformation required under applicable regulations. The court first declines to address whether by stating that the "pollution is substantial, longstanding, and continuing" the plaintiffs complied with the regulation's requirements of specifying the dates of the violation. The court holds that the notice the citizens groups served on the plant does not satisfy the 40 C.F.R. § 135.3(a) notice requirement because it did not provide the names of two additional plaintiffs or the addresses and phone numbers of any of the plaintiffs. The purpose of giving 60-days' notice is to allow the parties to resolve their conflicts in a nonadversarial time period and to alert the appropriate federal or state agency so administrative action may initially provide the relief the parties seek before a court must become involved. Therefore, because neither the U.S. Environmental Protection Agency nor the plant knew other plaintiffs were involved, they were not in a position to negotiate with the citizens groups or to seek an administrative remedy, making any sort of resolution between the parties during the notice period impossible.

Counsel for Plaintiffs
William Kloos
Johnson & Kloos
767 Willamette St., Ste. 203, Eugene OR 97401
(503) 687-1004

Counsel for Defendant
Jerry Neal
Preston, Thorgrimson, Shidler, Gates & Ellis
1400 Seafirst Financial Ctr.
W. 601 Riverside Ave., Spokane WA 99201
(509) 624-2100

Before Wood,^* Hug and Tang, JJ.

[25 ELR 20539]

Wood, J.:

Washington Trout, the United Food and Commercial Workers, Local 1439, and the Central Basin Audubon Society brought a Clean Water Act citizen suit against McCain Foods alleging violations of 33 U.S.C. § 1251 et seq., and R.C.W. § 90.40.010 et seq., based on the discharge of pollutants from a potato processing plant owned by the defendant. The district court dismissed the lawsuit for lack of subject matter jurisdiction after determining that the plaintiffs had not complied with the notice provisions of 33 U.S.C. § 1365 and 40 C.F.R. § 135.3(a).¹ Specifically, the district court found that the plaintiffs had not properly provided the dates of the alleged violations or the addresses and phone numbers of any of the plaintiffs as required by the statute and regulation. Plaintiffs appeal.

On February 25, 1992, plaintiffs' attorney, Bill Kloos, sent McCain Foods [McCain] a sixty-day notice under the Clean Water Act [CWA] alleging that McCain's potato processing plant in Othello, Washington was discharging pollutants into the Owl Creek and/or its tributaries without a National Pollution Discharge Elimination System [NPDES ] permit. The letter stated in part that "the United Food and Commercial Workers, Local 1439, among perhaps others, intend to file a suit against McCain for violations of the Clean Water Act." Regarding the potential plaintiffs, the letter did not provide the address and phone number of the named plaintiff, nor did it furnish the identity, address, and phone number of Washington Trout and the Central Basin Audubon Society. Further, the notice failed to specifically identify the dates of the alleged violations. The letter alleged that "[t]his pollution is substantial, longstanding, continuing, and unpermitted by an NPDES penmit."²

Plaintiffs also argue that technical deficiencies in the notice do not defeat jurisdiction because the purposes of giving presuit notice are served. As noted by other courts, the purpose of giving a sixty-day notice is to allow the parties time to resolve their conflicts in a nonadversarial time period. Once the suit is filed, positions harden and compromise is less likely. Second, the notice alerts the appropriate state or federal agency, so administrative action may initially provide the relief the parties seek before a court must become involved. Here, the notice Mr. Kloos served, fails to satisfy either purpose. The notice provided to McCain and the copy sent to the EPA Administrator did not provide the names of the two additional plaintiffs. Therefore, because neither the EPA nor McCain knew other plaintiffs were involved, they were not in a position to negotiate with the plaintiffs or seek an administrative remedy. This made any sort of resolution between the parties during the notice period an impossibility.

We are guided by the Court's decision in Hallstrom and find its holding applicable to the notice requirements under the Clean Water Act. The notice provided to McCain was insufficient as required by the regulations promulgated under the CWA. Therefore, the district court was correct in dismissing the action for lack of subject matter jurisdiction.

AFFIRMED

* The honorable Harlington Wood, Jr., Senior Circuit Judge for the Seventh Circuit Court of Appeals, is sitting by designation.

1. The district court treated McCain's motion for summary judgment as a motion to dismiss for lack of subject matter jurisdiction.

2. The plaintiffs argue that by stating in their notice that the "pollution is substantial, longstanding, and continuing" they have complied with the regulation's requirement of specifying the dates of the violation. Because of our resolution of the case on other grounds, we need not reach this issue.