United States District Court, D. Colorado
PAMELA STONE, a citizen of the United States, TWYLA RUSAN, a citizen of the United States, M. JAMIE MORROW, a citizen of the United States, THE SOUTH PARK COALITION, INC., a non-profit 501c4 Colorado corporation, and BE THE CHANGE USA, a non-profit 501c4 Colorado corporation, Plaintiffs,
HIGH MOUNTAIN MINING COMPANY, LLC, a Wyoming limited liability company, and JAMES R. MURRAY, a citizen of the United States, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M. Tafoya, Magistrate Judge
case comes before the court on “High Mountain Mining
Company's and James S. Murray's Motion to Dismiss
Complaint” (Doc. No. 13 [Mot.], filed July 11, 2017).
Plaintiffs filed their response on August 1, 2017 (Doc. No.22
[Resp.]), and Defendants filed their reply on August 15, 2017
(Doc. No. 24 [Reply]).
OF THE CASE
bring claims pursuant to the Federal Water Pollution Control
Act, more commonly referred to as the Clean Water Act
(“CWA”), 33 U.S.C. § 1251, et seq.,
against Defendant High Mountain Mining Co, LLC (“High
Mountain”), which operates the Alma Placer Mine, which
Plaintiffs allege has discharged pollutants from its lands
into the Middle Fork of the South Platte River (“Middle
Fork”) without a National Pollution Discharge
Elimination System permit or “dredge and fill”
permit, in violation of §301, §402, and §404
of the CWA, 33 U.S.C. §§1311, 1342 and 1344.
(See Doc. No. 1 [Compl.].) Plaintiffs also assert
claims against Defendant James R. Murray, the managing member
(owner) of High Mountain Mining, on the same bases.
Lack of Subject Matter Jurisdiction
Rule of Civil Procedure Rule 12(b)(1) empowers a court to
dismiss a complaint for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff's case. Rather, it
calls for a determination that the court lacks authority to
adjudicate the matter, attacking the existence of
jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited
jurisdiction and may only exercise jurisdiction when
specifically authorized to do so). The burden of establishing
subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974). A court lacking
jurisdiction “must dismiss the cause at any stage of
the proceedings in which it becomes apparent that
jurisdiction is lacking.” See Basso, 495 F.2d
at 909. The dismissal is without prejudice. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for
lack of jurisdiction should be without prejudice because a
dismissal with prejudice is a disposition on the merits which
a court lacking jurisdiction may not render).
12(b)(1) motion to dismiss “must be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir.
1971). When considering a Rule 12(b)(1) motion, however, the
Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995). Where a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume
the truthfulness of the complaint's “factual
allegations . . . [and] has wide discretion to allow
affidavits, other documents, and [may even hold] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id.
Failure to State a Claim Upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6) (2007). “The court's function on a Rule
12(b)(6) motion is not to weigh potential evidence that the
parties might present at trial, but to assess whether the
plaintiffs complaint alone is legally sufficient to state a
claim for which relief may be granted.” Dubbs v.
Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003)
(citations and quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff s factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir.
1991). “To survive a motion to dismiss, 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,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. The Iqbal evaluation
requires two prongs of analysis. First, the court identifies
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations which are legal conclusion, bare assertions, or
merely conclusory. Id. at 679-81. Second, the Court
considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 679.
the court need not accept conclusory allegations without
supporting factual averments. Southern Disposal, Inc., v.
Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S at 678. Moreover,
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.' ”
Id. (citation omitted).
CWA Notice Requirements and Applicable Law
Clean Water Act provides for citizen suits, which may be
commenced by “any citizen” against a person or
entity “alleged to be in violation of” effluent
standards or limitations under the Act or related orders.
See generally 33 U.S.C. § 1365(a). Such citizen
suits require that a 60-day notice letter be sent prior to
commencing litigation, as set out by Section 505(b) of the
Act. See 33 U.S.C. § 1365. Environmental
Protection Agency has promulgated the following regulation
regarding 60-day notice letters prerequisite to CWA citizen
Violation of standard, limitation or order. Notice
regarding an alleged violation of an effluent standard or
limitation or of an order with respect thereto, shall include
sufficient information to permit the recipient to identify
 the specific standard, limitation, or order alleged to
have been violated,  the activity alleged to constitute a
violation,  the person or persons responsible for the
alleged violation,  the location of the alleged violation,
 the date or dates of such violation, and  the full
name, address, and telephone number of the person giving
40 C.F.R. § 135.3(a) (italicized text in original).
case law has strictly construed the notice requirements set
out above. In Hallstrom v. Tillamook County, 493
U.S. 20 (1989), the Supreme Court addressed “whether
compliance with the 60-day notice provision is a mandatory
precondition to suit or can be disregarded by the district
court at its discretion, ” id. at 23, and
concluded that the requirement is a “mandatory
conditio[n] precedent to commencing suit, ”
id. at 31, and “a specific limitation on a
citizen's right to bring suit, ” id. at
26. Hallstrom observed that the notice requirement
“strike[s] a balance between encouraging citizen
enforcement . . . and avoiding burdening the federal courts
with excessive numbers of citizen suits, ” and
concluded that “[g]iving full effect to the words of
the statute preserves the compromise struck by
held that dismissal was the correct remedy for non-compliance
with the notice requirement, noting although the Court was
“sympathetic” to the possibility that dismissal
“would unnecessarily waste judicial resources, ”
dismissal would nevertheless “further the congressional
purpose of giving agencies and alleged violators a 60-day
nonadversarial period to achieve compliance.”
Id. at 32. Therefore, “where a party . . .
fails to meet the notice and 60- day delay requirements . . .
the district court must dismiss the action as barred by the
terms of the statute.” Id.
Hallstrom, the Tenth Circuit has embraced a strict
approach to the notice requirement. In New Mexico
Citizens for Clean Air v. Espanola Mercantile Co., Inc.,
72 F.3d 830, 833 (10th Cir. 1996) (“New Mexico
Citizens”), plaintiffs included both a
citizens' group and the Pueblo of San Juan. “The
citizens group gave the sixty-day notice . . . but the Pueblo
did not.” 72 F.3d at 832. While the court observed that
“some district courts have adopted a pragmatic view
that notice by one plaintiff acts as notice by all, ”
it expressly rejected that approach. Id. at 833. The
court emphasized that “the purpose of pre-suit notice
is to allow . . . a nonadversarial time period” to seek
a resolution and “[i]f the defendant and the agencies
do not know the parties involved, effective negotiation is
not possible.” Id. (citing Washington
Trout v. McCain Foods, Inc., 45 F.3d 1351, 1352-54 (9th
Cir. 1995)). New Mexico Citizens also reiterated the
statement from Hallstrom endorsing “strict
adherence to the procedural requirements, ” as
“the best guarantee of even-handed administration of
the law.” Id. at 833 (quoting
Hallstrom, 493 U.S. at 31). The court therefore held
that “one plaintiff's compliance with the pre-suit
notice requirements of the Clean Water Act . . . does not
satisfy the duty of another plaintiff to give notice on its
own behalf, ” id. at 831, and that
“failure to give proper notice before bringing
suit” meant the Pueblo “was not a proper party to
the action, ” id. at 833.
recently, in Karr v. Hefner, 475 F.3d 1192 (10th
Cir. 2007), the plaintiffs had sent a 60-day notice letter,
but the Tenth Circuit reviewed whether its contents were
sufficient to meet the requirements of 33 U.S.C. §
1365(b) and 40 C.F.R. § 135.3(a)-the same analysis which
the Court must undertake here. Karr first observed
that the “guiding principle” of the notice
requirement “is to give the [alleged violator] an
opportunity to bring itself into complete compliance with the
Act and thus . . . render unnecessary a citizen suit.”
Karr, 475 F.3d at 1200 (internal quotation marks
omitted). “Accordingly, notice is to be evaluated from
the recipient's perspective, and the notice's
identification of the alleged violations must be
clear.” Id. Karr also stated that it is
insufficient if the notice “generally orients the . . .
violator as to the type of violation.” Id.
(quoting Cal. Sportfishing Prot. Alliance v. City of W.
Sacramento, 905 F.Supp. 792, 799 (E.D. Cal. 1995)).
Rather, “the recipient of the notice must understand
from the notice what the citizen is alleging-not
what the citizen could allege if the citizen knew
more.” Id. (emphasis in original).
decisions in other courts, Karr further noted that
notice letters must “provid[e] enough information to
make the defendant's alleged violations easy to
understand, ” and cited approvingly to a notice letter
that “listed at least specific pollutants, specific
locations, and specific permits the defendant was alleged to
have violated.” Id. at 1201 (citing
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