Document bBgZBX82pBGZ6y20OrMEy07Oy

To: Cc: From: Sent: Subject: pdf, pdf Traylor, Patrick[traylor.patrick@epa.gov] Jackson, Ryan|jackson.ryan@epa.gov] A.J. Ferate Mon 8/7/2017 7:42:20 PM Duarte motion to dismiss Mr. Traylor: Thanks for briefly taking my call this afternoon. I understand that Mr. Pollins is out of the office through next week, so I have left a message for Mr. Tice to return. Attached is the motion to dismiss we discussed. Put plainly, under the Clean Water Act, CoA/DOJ have no subject matter jurisdiction in the Duarte case unless EPA is a party to the matter. As you have mentioned, EPA is not a party in this case. (CoA only has enforcement authority where a 404 permit has been issued; EPA has authority where the questions is should the party be required to have a 404 permit.) This case goes to trial next week. Your review and thoughts on this matter prior to the case going to hearing would be helpful. Again, thank you very much for your time, A.J. Ferate Anthony J. "A.J." Ferate, JD (202)486.7211 (cell) 17cv1906 Sierra Club v. EPA ED_001523_00001556-00001 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 1 of 14 1 M. REED HOPPER (Bar No. 131291) ANTHONY L. FRANOIS (Bar No. 184100) 2 Pacific Legal Foundation 930 G Street 3 Sacramento, CA 95814 (916)419-7111 (p) 4 (916)419-7747 (f) mrh@pacificlegal.org 5 alf@pacificlegal.org 6 Attorneys for Plaintiffs and Counterclaim-Defendants DUARTE NURSERY, INC. and JOHN DUARTE 7 See next page for additional attorneys 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE, an individual,, 12 Plaintiffs, 13 v. 14 UNITED STATES ARMY CORPS OF 15 ENGINEERS, 16 Defendant. No. 2:13-CV-02095-KJM-DB MOTION TO DISMISS COUNTERCLAIM FOR LACK OF SUBJECT-MATTER JURISDICTION NOTICE OF MOTION ALTERNATIVE APPLICATION FOR HEARING ON SHORTENED TIME OR FOR CONTINUANCE OF TRIAL 17 MEMORANDUM IN SUPPORT 18 UNITED STATES OF AMERICA, 19 Counterclaim-Plaintiff, 20 21 v. Date: August 25, 2017 Time: 10:00am Courtroom: 3 Hon. Kimberly J. Mueller Accompanying documents: Declaration of Peter Prows 22 DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE, an individual, 23 Counterclaim Defendants. 24 25 26 27 28 Motion To Dismiss Counterclaim 17cv1906 Sierra Club v. EPA Case No. 13-CV-2095 ED 001523 00001557-00001 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 2 of 14 1 DAVID M. IVESTER (Bar No. 76863) PETER PROWS (Bar No. 257819) 2 LAWRENCE S. BAZEL (Bar No. 114641) Briscoe Ivester & Bazel LLP 3 155 Sansome Street, Seventh Floor San Francisco, CA 94104 4 (415) 402-2700 (p) (415) 398-5630 (f) 5 divester@briscoelaw.net lbazel@briscoelaw.net 6 pprows@briscoelaw.net 7 GERALD E. BRUNN (Bar No. 107004) Law Offices of Brunn & Flynn 8 928 12th Street, Suite 200 Modesto, CA 95354 9 (209) 521-2133 (p) (209) 521-7584 (f) 10 gbrunn@brunn-flynn.com 11 GARY BAISE (pro hac vice) Olsson Frank Weeda Terman Matz PC 12 600 New Hampshire Ave., NW, Suite 500 Washington, DC, 20037 13 (202) 789-1212 (p) (202 234-3550 (f) 14 gbaise@ofwlaw.com 15 Attorneys for Plaintiffs and Counterclaim-Defendants DUARTE NURSERY, INC. and JOHN DUARTE 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion To Dismiss Counterclaim 17cv1906 Sierra Club v. EPA Case No. 13-CV-2095 ED_001523_00001557-00002 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 3 of 14 1 TABLE OF CONTENTS 2 3 NOTICE OF MOTION AND MOTION.............................................................................................5 4 ALTERNATIVE APPLICATION FOR HEARING ON SHORTENED TIME OR FOR CONTINUANCE OFTRIAL.........................................................................6 5 MEMORANDUM IN SUPPORT........................................................................................................6 6 I. INTRODUCTION..................................................................................................................... 6 7 II. RELEVANT BACKGROUND................................................................................................. 7 8 III. THIS COURT LACKS SUBJECT-MATTER JURISDICTION...............................................8 9 A. Courts Have Jurisdiction Only Insofar As A Statute Confers Jurisdiction...................8 10 B. This Court Does Not Have Jurisdiction To Hear The Counterclaim............................9 11 C. Courts Must Give Effect To The Unambiguously Expressed Intent Of Congress...........................................................................................................11 12 D. Cases To The Contrary Are Not Consistent With The Statute Or Supreme 13 Court Precedent...............................................................................................12 14 1. Kelcourse......................................................................................................... 12 15 2. Reichelt............................................................................................................ 13 3. Hallmark.......................................................................................................... 13 16 IV. CONCLUSION.......................................................................................................................14 17 18 19 20 21 22 23 24 25 26 27 28 ________________________________________ 3 Motion To Dismiss Counterclaim Case No. 13-CV-2095 17cv1906 Sierra Club v. EPA ED_001523_00001557-00003 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 4 of 14 1 TABLE OF AUTHORITIES 2 Cases 3 Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995)...................................................................... 11 Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002).......................................................................... 11 4 Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988)............................................... 8 Connecticut Nat. Bankv. Germain, 503 U.S. 249 (1992)................................................................. 11 5 Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005).......................................................... 8 6 Gwaltney ofSmithfield v. Chesapeake Bay Foundation, 484 U.S. 49 (1987)................................... 10 Healy v. Ratta, 292 U.S. 263 (1934)..................................................................................................... 9 7 KMart Corp. v. Cartier, Inc., 486 U.S. 281 (1988).......................................................................... 11 Kokkonen v. Guardian Life Ins. Co. ofAmerica, 511 U.S. 375 (1994)................................................ 8 8 Kontrickv. Ryan 540 U.S. 443 (2004).................................................................................................. 9 Kontrickv. Ryan, 540 U.S. 443 (2004)................................................................................................. 8 9 Las Vegas v. Clark County, 755 F.2d 697 (9th Cir. 1984)................................................................ 10 10 Louisiana Public Service Com 'n v. F.C.C., 476 U.S. 355 (1986)..................................................... 12 Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379 (1884).................................................................. 9 11 Middlesex County Sewerage Authority v. National Sea Clammers Ass 'n, 453 U.S. 1 (1981)............10 Phillips v. Osborne, 403 F.2d 826 (9th Cir. 1968)............................................................................... 9 12 Reichelt v. United States Army Corps ofEng'rs, 969 F.Supp. 519 (N.D.Ind. 1996)......................... 13 13 Rubin v. United States, 449 U.S. 424 (1981)..................................................................................... 11 Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401 (2011)................................... 11 14 Sullivan v. Stroop, 496 U.S. 478 (1990)............................................................................................ 11 United States v. Hallmark Constr. Co., 14 F.Supp.2d 1065 (N.D.I11. 1998)..................................... 13 15 United States v. Kelcourse, 721 F.Supp. 1472 (D.Mass. 1989)......................................................... 12 16 Statutes 5 U.S.C. 302.................................................................................................................................... 12 17 28 U.S.C. 1331............................................................................................................................. 8, 10 28 U.S.C. 1345............................................................................................................................ 8, 10 18 33 U.S.C. 1251(d)............................................................................................................................. 9 19 33 U.S.C. 1319(a)........................................................................................................................... 10 33 U.S.C. 1319(b)....................................................................................................................passim 20 33 U.S.C. 1344.......................................................................................................................... 10, 12 33 U.S.C. 1344(s)............................................................................................................................ 11 21 33 U.S.C. 1344(s)(l).................................................................................................................... 9, 13 22 33 U.S.C. 1344(s)(3)................................................................................................................ 6, 9, 13 33 U.S.C. 1344(s)(4)....................................................................................................................... 9 23 33 U.S.C. 1365(a)(1)....................................................................................................................... 10 24 Federal Rules of Civil Procedure Rule 12(b)(1).................................................................................................................................... 5, 6 25 Rule 12(h)(3).................................................................................................................................... 5, 9 Rule 12(i).............................................................................................................................................. 6 26 Constitutional Provisions 27 Art. Ill, 1............................................................................................................................................ 8 28 ________________________________________ 4 Motion To Dismiss Counterclaim Case No. 13-CV-2095 17cv1906 Sierra Club v. EPA ED_001523_00001557-00004 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 5 of 14 1 NOTICE OF MOTION AND MOTION 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 Please take notice that on August 25, 2017, at 10:00am, in Court 3, 15th floor, of the Robert 4 T. Matsui United States Courthouse, 5011 Street, Sacramento, CA, or soon thereafter as the matter 5 may be heard, counterclaim-defendants Duarte Nursery, Inc. and John Duarte (jointly "Duarte") 6 shall move and hereby move for an order dismissing the counterclaim in its entirety. 7 This motion is brought in accordance with Rule 12(h)(3) and Rule 12(b)(1) of the Federal 8 Rules of Civil Procedure ("FRCP"), on the ground that the Court lacks subject-matter jurisdiction 9 over the counterclaim. 10 Counsel certifies that meet-and-confer efforts have been exhausted. On July 18, 2017, 11 counsel for Duarte emailed counsel for the United States, explained the issue, and proposed the 12 following: 13 Before we bring a Rule 12(b)(1) motion to dismiss (which can be brought at any time), we'd like to invite you to provide us, by the end 14 of this week, with the authorities, if any, you think show why this action is properly brought under Section 309(b), or else a proposed 15 dismissal of the counterclaim with prejudice. We'd also ask for your 16 agreement that such a motion to dismiss, if a motion is necessary, should be briefed and heard before the presentation of evidence at trial, 17 as well as a proposed briefing schedule. 18 Counsel for the United States responded on July 21 as follows: 19 As set forth in our counterclaim, it is the United States' position that the district court has subject matter jurisdiction. We do not consent to 20 dismissal of the case. In addition, you have repeatedly informed the court over the past two years that you do not contest jurisdiction. We 21 do not agree to delay the trial, or shorten time for any motion, in order 22 for you to raise the late-breaking assertion that the court lacks jurisdiction. 23 This motion is based on this Notice of Motion and Motion, the following Memorandum, the 24 accompanying Declaration of Peter Prows, the pleadings and other documents filed in this matter, 25 and on any additional argument and evidence that may be presented at the hearing on this motion. 26 27 28 5 Motion To Dismiss Counterclaim Case No. 13-CV-2095 17cv1906 Sierra Club v. EPA ED 001523 00001557-00005 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 6 of 14 1 ALTERNATIVE APPLICATION FOR HEARING ON SHORTENED TIME OR FOR CONTINUANCE OF TRIAL 2 FRCP Rule 12(i) provides as follows: 3 Hearing Before Trial. If a party so moves, any defense listed in Rule 4 12(b)( 1)--(7)--whether made in a pleading or by motion--and a motion under Rule 12(c) must be heard and decided before trial unless 5 the court orders a deferral until trial. 6 Here Duarte is asserting a defense listed in Rule 12(b)(1), lack of subject-matter jurisdiction. Rule 7 12(i) therefore requires this motion to be heard and decided before trial. Trial is scheduled for 8 August 15, 2017, which does not allow for a full briefing schedule on this motion. The briefing 9 schedule should accordingly be shortened, or the trial be continued, so that this motion can be heard 10 and decided first. 11 MEMORANDUM IN SUPPORT 12 Duarte submits the following memorandum in support of this motion. 13 I INTRODUCTION 14 The Clean Water Act gives specified authority to bring civil enforcement actions to the 15 Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers (the "Corps"). 16 (Clean Water Act, 309(b), 33 U.S.C. 1319(b) (EPA's authority); 404(s)(3), 33 U.S.C. 17 1344(s)(3) (Corps's authority).) These two sections give both agencies authority to bring civil 18 enforcement actions to prosecution discharges in violation of a permit. But only EPA has authority 19 to bring civil enforcement actions to prosecute discharges without a permit. 20 Here, Duarte sued the Corps, and the Corps (styling itself as the United States of America) 21 filed a counterclaim. That counterclaim does not allege any violations of a permit; it alleges only 22 discharges without a permit. But the Corps does not have authority to prosecute discharges without 23 a permit. Although EPA does have that authority, the counterclaim does not allege that EPA is 24 bringing the claim, and the Corps admitted in deposition that this matter was never even referred to 25 EPA for prosecution. 26 A federal district court has jurisdiction only to the extent a statute confers jurisdiction. As 27 the Supreme Court has made clear, Congress intended to limit jurisdiction to enforce the Clean 28 Water Act to the express enforcement provisions of the Act. Because Congress did not authorize the ________________________________________6________________________________________ Motion To Dismiss Counterclaim Case No. 1 3-cv-2095 17cv1906 Sierra Club v. EPA ED 001523 00001557-00006 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 7 of 14 1 Corps to prosecute discharges without a permit, this Court does not have jurisdiction to hear the 2 Corps's counterclaim. 3 The words of the statute are clear and unambiguous. EPA is given authority to prosecute 4 discharges without a permit; the Corps is not. Because the statute is clear, deference to EPA or the 5 Corps is not appropriate. 6 Duarte has, however, found three out-of-circuit district court decisions, issued between 1989 7 and 1998, that allowed the Corps to prosecute discharges without a permit notwithstanding the clear 8 language of the statute. These cases are wrongly decided. The first acknowledges that the statute 9 does not provide the Corps with authority, and then holds that EPA can delegate its authority to the 10 Corps. But that case did not cite or apply the Supreme Court decisions holding that jurisdiction 11 under the Clean Water Act is limited to the express provisions of the statute. Nor did it consider the 12 federal delegation statute, which authorizes an agency head to delegate authority to his or her 13 "subordinates" only--not to another agency. The other two decisions rely on the first, and on a 14 generalized sense of the role of the Corps under the Clean Water Act--which cannot override the 15 clear and explicit provisions of the statute. None of these cases cites or applies the relevant Supreme 16 Court decisions. For these reasons, the three cases are neither binding nor persuasive authority. 17 The Clean Water Act is clear. Congress did not authorize the Corps to bring the type of 18 counterclaim it has brought here. This Court therefore lacks jurisdiction over the counterclaim. The 19 counterclaim should be dismissed without leave to amend. 20 II RELEVANT BACKGROUND 21 In October 2013, Duarte filed suit against the Corps. (ECF Doc. 1.) Duarte did not file suit 22 against EPA or the United States of America. (Id.) In May 2014, the Corps responded with a 23 document, entitled "Answer and Counterclaim", asserting that it is both an answer filed by the Corps 24 and a counterclaim filed by the United States of America (the "United States") "acting through the 25 Corps". (ECF Doc. 28 at 2.) There is no allegation that the United States is acting through EPA, or 26 that EPA is otherwise bringing the suit. 27 The counterclaim alleges that Duarte discharged pollutants without a permit in violation of 28 the Clean Water Act. (Id. at 16, 1 ("without authorization by the Corps") and at 28, 101 (alleging 7 Motion To Dismiss Counterclaim_________________________________ Case No. 1 3-cv-2095 17cv1906 Sierra Club v. EPA ED_001523_00001557-00007 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 8 of 14 1 Duarte did not "apply for, secure, and comply with a CWA section 404 permit to discharge 2 pollutants at the Site").) The counterclaim alleges that "[t]his Court has jurisdiction over the subject 3 matter of this action pursuant to 33 U.S.C. 1319(b) [authorizing EPA to prosecute violations of the 4 Clean Water Act] and 28 U.S.C. 1331 [general federal question jurisdiction] and 1345 5 [jurisdiction over "suits or proceedings commenced by the United States, or by any agency or officer 6 thereof expressly authorized to sue by Act of Congress"]." 7 The Corps decided not to refer the matter to EPA. As James Robb, a Corps enforcement 8 employee, testified at his deposition, this case was not sent to EPA because the Corps "had been 9 sued": 10 Q I think I asked before and you said no. Was the referral actually sent to EPA? 11 A No, it was not. 12 Q Why not? 13 A Asi indicated before, we had been sued and we needed to talk about what the next steps would be. 14 Q When was the decision made not to send the referral to EPA? 15 A Sometime in the next couple of weeks. (ECF 113 at 150:8-16 (page numbers of transcript).) 16 17 A. Ill THIS COURT LACKS SUBJECT-MATTER JURISDICTION Courts Have Jurisdiction Only Insofar As A Statute Confers Jurisdiction 18 "Courts created by statute can have no jurisdiction but such as the statute confers." 19 (Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818 (1988).) "[T]he district courts 20 may not exercise jurisdiction absent a statutory basis". (Exxon Mobil Corp. v. Allapattah Servs., 21 545 U.S. 546, 552 (2005).) District courts have limited jurisdiction: 22 The district courts of the United States, as we have said many times, 23 are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute... 24 (Id., quoting Kokkonen v. Guardian Life Ins. Co. ofAmerica, 511 U.S. 375, 377 (1994), quotation 25 marks omitted.) "Only Congress may determine a lower federal court's subject-matter jurisdiction." 26 (Kontrickv. Ryan, 540 U.S. 443, 452 (2004), citing U.S. Const., Art. Ill, 1.) 27 "[S]tatutes extending federal jurisdiction.. .are narrowly construed so as not to reach beyond 28 ________________________________________ 8 Motion To Dismiss Counterclaim Case No. 13-CV-2095 17cv1906 Sierra Club v. EPA ED_001523_00001557-00008 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 9 of 14 1 the limits intended by Congress." (Phillips v. Osborne, 403 F.2d 826, 828 (9th Cir. 1968), citing 2 Healy v. Ratta, 292 U.S. 263, 270 (1934).) 3 "If the court determines at any time that it lacks subject-matter jurisdiction, the court must 4 dismiss the action." (FRCP Rule 12(h)(3).) A party "may raise a court's lack of subject-matter 5 jurisdiction at any time". (Kontrickv. Ryan 540 U.S. 443, 455 (2004), citing Mansfield, C. & L.M.R. 6 Co. v. Swan, 111 U.S. 379, 382 (1884)). 7 B. This Court Does Not Have Jurisdiction To Hear The Counterclaim 8 The counterclaim asserts that this Court has jurisdiction under section 1319(b) of title 33 of 9 the U.S. Code. (See section II above.) Section 1319 gives the "Administrator" authority to file suit: 10 The Administrator is authorized to commence a civil action for appropriate relief.. .for any violation for which he is authorized to 11 issue a compliance order under subsection (a) of this section. 12 (33 U.S.C. 1319(b)). The "Administrator" is the Administrator of EPA. (33 U.S.C. 1251(d).) 13 Because the Corps is not the Administrator, 1319(b) does not authorize the Corps to file suit. Nor 14 does 1319(b) authorize the United States, acting on behalf of the Corps, to file suit. The 15 counterclaim is therefore not authorized by 1319(b). 16 There is no doubt that Congress intended 1319(b) to refer to EPA and not to the Corps. 17 The Clean Water Act provides specific authority to the Corps to file suit in section 1344(s)(3), which 18 starts with language almost identical to 1319(b): 19 The Secretary is authorized to commence a civil action for appropriate relief... for any violation for which he is authorized to issue a 20 compliance order under paragraph (1) of this subsection. 21 But paragraph 1 ( 1344(s)( 1)) authorizes the Corps to issue compliance orders only for violation of 22 a permit ("any person is in violation of any condition or limitation set forth in a permit issued by the 23 Secretary"), not for discharges without a permit. Congress clearly intended to limit the authority of 24 the Corps to violations of a Corps permit, because it imposed the same limit in another paragraph. 25 The penalty provision, paragraph 1344(s)(4), limits the imposition of penalties to a person who 26 "violates any condition or limitation in a permit issued by the Secretary under this section", or who 27 violates a permit-compliance order issued by the Corps--but not a person who has discharged 28 without a permit. 9 Motion To Dismiss Counterclaim_________________________________ Case No. 1 3-cv-2095 17cv1906 Sierra Club v. EPA ED 001523 00001557-00009 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 10 of 14 1 EPA's authority, in comparison, is much broader. It can issue a compliance order for any 2 violation of the Clean Water Act. (33 U.S.C. 1319(a).) The Corps, therefore, plainly does not 3 have authority to file suit for discharges without a permit, only for discharges in violation of Corps 4 permits. The counterclaim effectively admits this point by not asserting jurisdiction under 1344. 5 Because 1319(b) authorizes only EPA to file enforcement actions against discharges 6 without a permit, and because the Corps is not EPA, this Court does not have subject-matter 7 jurisdiction under 1319(b). 8 The counterclaim also asserts jurisdiction under sections 1331 and 1345 of title 28 of the 9 U.S. Code. But 1331 does not provide jurisdiction: 10 The Supreme Court in Middlesex County Sewerage Authority v. National Sea Clammers Ass 7/, 453 U.S. 1, 21, 69 L. Ed. 2d 435, 101 11 S. Ct. 2615 (1981), concluded that Congress intended to limit access to federal court to enforce the CWA to the express enforcement 12 provisions of the Act.... This precludes suits brought under 28 U.S.C. 1331.... 13 (Las Vegas v. Clark County, 755 F.2d 697, 703 (9th Cir. 1984).) This rationale would also prohibit 14 jurisdiction under other statutes providing a general authorization ofjurisdiction, including 1345. 15 In any case, 1345 is not applicable by its own terms, because it provides jurisdiction only when an 16 "agency or officer [of the United States is] expressly authorized to sue by Act of Congress." Here 17 there is no express authorization for the Corps to sue for the alleged unpermitted discharges. 18 In the Gwaltney case, the Supreme Court considered "whether 505(a) of the Clean Water 19 Act.. .confers federal jurisdiction over citizen suits for wholly past violations". (Gwaltney of 20 Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 52 (1987).) Section 505 authorizes "any 21 citizen" to bring a civil enforcement action against any person "who is alleged to be in violation" of 22 the Act. ( 505(a)(1), 33 U.S.C. 1365(a)(1).) The Supreme Court concluded that "[t]he most 23 natural reading of `to be in violation' is a requirement that citizen-plaintiffs allege a state of either 24 continuous or intermittent violation", and held that "citizens, unlike the Administrator, may seek 25 civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation". (Gwaltney 26 at 57, 59.) The Court vacated lower court rulings denying a Rule 12(b)(1) motion. 27 The Court's jurisdiction to hear enforcement claims brought under the Clean Water Act is, 28 10 Motion To Dismiss Counterclaim_________________________________ Case No. 1 3-cv-2095 17cv1906 Sierra Club v. EPA ED 001523 00001557-00010 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 11 of 14 1 therefore, limited to the express enforcement provisions of that act. Those express provisions give 2 EPA--but not the Corps--authority to prosecute discharges without a permit. Here, the United 3 States on behalf of the Corps alleges that Duarte discharged without a permit. Because Congress has 4 not authorized the Corps to file this suit, this Court lacks jurisdiction to hear it. 5 The counterclaim should be dismissed. 6 C. Courts Must Give Effect To The Unambiguously Expressed Intent Of Congress 7 When the language of a statute is unambiguous, a court must apply the statute as it was 8 written: 9 If the statute is clear and unambiguous that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously 10 expressed intent of Congress. ...In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at 11 issue, as well as the language and design of the statute as a whole. 12 (Sullivan v. Stroop, 496 U.S. 478, 482 (1990) quoting KMart Corp. v. Cartier, Inc., 486 U.S. 281, 13 291-292 (1988), quotation marks omitted). `"Statutory construction must begin with the language 14 employed by Congress and the assumption that the ordinary meaning of that language accurately 15 expresses the legislative purpose'". (Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 16 401, 407 (2011), quoting Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995). A court must 17 presume that Congress meant what it said: 18 "We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what 19 it says there. When the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.'" Connecticut 20 Nat. Banks/. Germain, 503 U.S. 249, 253-254 (1992) (quotingRubin v. United States, 449 U.S. 424, 430 (1981)) (internal citations 21 omitted). We will not alter the text in order to satisfy the policy preferences of [an agency], 22 (Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-462 (2002), parallel citations omitted.) 23 Here, the language of 1319(b) unambiguously gives general Clean Water Act enforcement 24 authority only to EPA, and the language of 1344(s) unambiguously limits the Corps's authority to 25 permit violations. Congress clearly intended this restriction on the authority of the Corps. That, 26 then, is "the end of the matter". 27 28 11 Motion To Dismiss Counterclaim Case No. 13-CV-2095 17cv1906 Sierra Club v. EPA ED 001523 00001557-00011 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 12 of 14 1 D. Cases To The Contrary Are Not Consistent With The Statute Or Supreme Court Precedent 2 Duarte has identified three cases in which a district court considered the argument made here 3 and rejected it. None of these cases, however, offered persuasive reasons, and none applied the 4 relevant Supreme Court on Clean Water Act jurisdiction and statutory interpretation. 5 1. Kelcourse 6 In 1989, the District of Massachusetts acknowledged that "nowhere in the statute is it explicit 7 that the Secretary [i.e. the Corps] can bring an action under 33 U.S.C. sec. 1344 for a permitless 8 discharge". (UnitedStates v. Kelcourse, 721 F.Supp. 1472, 1473 (D.Mass. 1989).) Nevertheless, 9 the court concluded that the Corps could bring suit because EPA had delegated its authority to the 10 Corps in a "memorandum of agreement". (Id. at 1478.) The court reasoned that that "[b]y 11 delegating such enforcement authority, EPA, of course, did not expand the Corps' power", that "the 12 power delegated to the Corps by EPA derives directly from EPA's authority under 33 U.S.C. sec. 13 1311 and 33 U.S.C. sec. 1319", and that "[s]uch delegation is not statutory and may be revoked by 14 the EPA at any time." (Id.} 15 Kelcourse did not consider whether Congress had authorized EPA to delegate authority to the 16 Corps. Congress did not. "An agency literally has no power to act.. .unless and until Congress 17 confers power upon it." (Louisiana Public Service Com 'n v. F.C.C., 476 U.S. 355, 374 (1986).). An 18 agency cannot expand its power to override a Congressional limit on that power: 19 we simply cannot accept an argument that [an agency] may 20 nevertheless take action which it thinks will best effectuate a federal policy. An agency may not confer power upon itself. To permit an 21 agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override 22 Congress. 23 (Id. at 374-375.) In Kelcourse, the court should have recognized that EPA could not act to expand 24 the power of the Corps when that expansion would override the Congressional restrictions imposed 25 by 33 U.S.C. 1344. EPA, therefore, is not authorized to delegate authority to the Corps. 26 The court should also have considered whether Congress has allowed one agency to delegate 27 its authority to another agency. The federal delegation statute allows an agency head to delegate 28 authority only to his or her subordinates: "the head of an agency may delegate to subordinate 12 Motion To Dismiss Counterclaim_________________________________ Case No. 1 3-cv-2095 17cv1906 Sierra Club v. EPA ED 001523 00001557-00012 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 13 of 14 1 officials the authority vested in him...." (5 U.S.C. 302, emphasis added.) The Corps is not a 2 subordinate official of EPA. For this reason as well, EPA is not authorized to delegate authority to 3 the Corps. 4 Moreover, as a matter of fact, it appears that EPA never did delegate authority to the Corps. 5 An EPA guidance document on delegation dated 1994 discusses to whom the EPA Administrator 6 has delegated authority, and there is no mention of the Corps. (Prows Deci., ex. 1.) 7 In any case, the delegation analysis in Kelcourse ignores the language of the statute, which 8 limits the authority of the Corps to enforcement of permit violations, and does not give the Corps 9 general enforcement authority. If Congress specifically limited the authority of the Corps, the statute 10 should not be interpreted to void that limit. 11 Kelcourse was, therefore, wrongly decided. 12 2. Reichelt 13 In 1996, the Northern District of Indiana relied on and followed Kelcourse. {Reichelt v. 14 United States Army Corps ofEng'rs, 969 F.Supp. 519, 523 (N.D.Ind. 1996).) The court did not 15 consider the language of the statute, the Supreme Court decisions on Clean Water Act jurisdiction 16 and instructions to interpret statutes as they are written, or any delegation issue. Reichelt is therefore 17 not persuasive, and was also wrongly decided. 18 3. Hallmark 19 In 1998, the Northern District of Illinois reasoned that "[i]f section 404(s)(l) allows the 20 Corps to issue a compliance order for permitless discharges, then section 404(s)(3) grants the Corps 21 authority to bring civil actions for permitless discharges." (UnitedStates v. Hallmark Constr. Co., 22 14 F.Supp.2d 1065, 1068 (N.D.I11. 1998).) But 404(s)(l) unambiguously does not authorize the 23 Corps to issue a compliance order for permitless discharges. That section reads, in full: 24 Whenever on the basis of any information available to him the Secretary finds that any person is in violation ofany condition or 25 limitation setforth in a permit issued by the Secretary under this section, the Secretary shall issue an order requiring such person to 26 comply with such condition or limitation, or the Secretary shall bring a civil action in accordance with paragraph (3) of this subsection. 27 (33 U.S.C. 1344(s)(l), emphasis added.) This section unambiguously authorizes a compliance 28 ________________________________________13_______________________________________ Motion To Dismiss Counterclaim Case No. 1 3-cv-2095 17cv1906 Sierra Club v. EPA ED_001523_00001557-00013 Case 2:13-cv-02095-KJM-DB Document 304 Filed 07/23/17 Page 14 of 14 1 order only when there is a violation of a Corps permit. The section says nothing about permitless 2 discharges. 3 Nevertheless, the court reasoned that "[i]f the Corps has permit control over wetland areas to 4 ensure their protection, it most certainly has the power to stop unlawful permitless activity that 5 endangers navigable waters." {Hallmark at 1068.) But this reasoning is untethered from the 6 language of the statute, which leaves enforcement authority over alleged unpermitted discharges to 7 EPA and restricts the Corps's authority to permit violations. This reasoning directly contradicts the 8 holdings of the Supreme Court on Clean Water Act jurisdiction and statutory interpretation. 9 The statute is clear. Congress did not give the Corps general enforcement authority. 10 Congress gave the Corps authority only to enforce permit violations. The statutory language is not 11 ambiguous, and it makes perfect sense. Congress intended to give EPA, and EPA alone, general 12 enforcement authority. Congress intended to limit the authority of the Corps. When Congress 13 makes its intent clear, and the words of the statute are unambiguous, a court must not substitute its 14 own policy preferences, or those of the agency, for the specific statutory provisions. 15 Hallmark was also wrongly decided. None of the three reported cases holding that the Corps 16 can file suit for a discharge without a permit complied with Supreme Court decisions holding Clean 17 Water Act enforcement jurisdiction is limited to the express provisions of the statute, or those 18 decisions holding that when a statute is clear, a court must implement it. 19 IV CONCLUSION 20 The counterclaim should be dismissed for lack of subject-matter jurisdiction. 21 DATED: July 23, 2017. Briscoe Ivester& Bazel llp 22 23 24 By:_____________________________ Lawrence S. Bazel 25 Peter Prows Attorneys for Plaintiffs and Counterclaim 26 Defendants DUARTE NURSERY, INC. and JOHN DUARTE 27 28 14 Motion To Dismiss Counterclaim Case No. 13-CV-2095 17cv1906 Sierra Club v. EPA ED 001523 00001557-00014