Clean Water and Air Legacy, LLC v. Tofte Wastewater Treatment Association

Background

Clean Water and Air Legacy, LLC (CWAL) brought the action for itself and a proposed class of people who visited Tofte Town Park between November 30, 2018, and August 31, 2021. CWAL alleged that Tofte Wastewater Treatment Association, doing business as Bluefin Bay on Lake Superior Wastewater Treatment Plant, discharged wastewater into Lake Superior under a federal discharge permit. CWAL alleged repeated permit violations involving mercury, fecal matter, coliform, and suspended solids, and claimed that the discharges reduced a member’s enjoyment of the park and nearby shoreline.

CWAL asserted a claim under the federal Clean Water Act and state-law claims for public nuisance, private nuisance, and negligence. It sought an injunction and civil penalties. Before filing suit, CWAL sent the required notice to the Environmental Protection Agency, the Minnesota Pollution Control Agency, and Bluefin Bay. After receiving the notice, Bluefin Bay entered into a compliance agreement with the Minnesota Pollution Control Agency. The agreement required certain procedures for future permit violations, and the agency waived specified enforcement remedies as long as Bluefin Bay complied with the agreement.

Bluefin Bay moved to dismiss all claims for lack of subject-matter jurisdiction and failure to state a claim. It alternatively moved for summary judgment on all claims.

Subject-Matter Jurisdiction and Standing

The court denied the motion to dismiss for lack of subject-matter jurisdiction. It concluded that CWAL had adequately alleged standing, which is the constitutional requirement that a plaintiff show a concrete injury connected to the defendant’s conduct that the requested relief could remedy.

The complaint alleged that at least one CWAL member had visited and enjoyed the North Shore and Tofte Town Park, but that Bluefin Bay’s alleged discharges diminished that member’s aesthetic and recreational enjoyment. The court held that these allegations were sufficient at the pleading stage to show an injury fairly traceable to the alleged pollution and capable of being addressed by an injunction or civil penalties. The court also held that CWAL could assert the claim on behalf of that member.

Motion to Dismiss

The court denied the motion to dismiss Count I, the Clean Water Act claim. A Clean Water Act citizen suit cannot be based only on violations that are entirely in the past. But the court found that CWAL had alleged enough to support a good-faith claim of continuing or intermittent violations. The complaint alleged violations in each year since 2018 and alleged that Bluefin Bay was continuously violating its permit when the lawsuit was filed. The compliance agreement also did not clearly address every alleged violation, leaving questions about whether the violations had stopped.

The court granted the motion to dismiss Count II, the public-nuisance claim. Under the Minnesota law discussed in the opinion, a private plaintiff must allege special or peculiar damage that is different from the harm suffered by the general public. The court held that visitors to Tofte Town Park had not been alleged to have a special relationship with the park, such as land ownership, exclusive membership, or employment. Because enjoying the park was a privilege shared with the general public, the alleged harm was not sufficiently special.

The court granted the motion to dismiss Count III, the private-nuisance claim. Minnesota law, as interpreted by the court, limits private nuisance claims to people with an interest in real property. CWAL did not allege that any member owned or possessed property in Tofte Park. The court held that merely visiting and enjoying a public park did not create a real-property interest.

The court denied the motion to dismiss Count IV, the negligence claim, including the negligence-per-se theory. CWAL alleged that Bluefin Bay’s permit violations showed a breach of duty and that the alleged pollution diminished a member’s enjoyment of the park and shoreline. The court held that these allegations were sufficient at this stage to plead duty, breach, causation, and injury.

Challenge Based on State Enforcement

The court also denied Bluefin Bay’s argument that the lawsuit was an improper collateral attack on the Minnesota Pollution Control Agency’s enforcement actions. A citizen suit may be barred when a government agency has diligently prosecuted the same violations. The court found that the available allegations raised questions about whether the agency’s enforcement was sufficiently diligent, including because the compliance agreement imposed no civil penalty and because the agreement might not fully address all alleged violations. The court therefore allowed the citizen suit to proceed at this stage.

Summary Judgment

The court denied Bluefin Bay’s motion for summary judgment on all remaining claims. Summary judgment is a decision without a trial when no genuine dispute over an important fact exists and the moving party is entitled to judgment under the law. The court found unresolved factual disputes about what caused the alleged violations, whether Bluefin Bay’s remedial efforts addressed those causes, and whether the compliance agreement fully remedied the alleged violations. Those disputes concerned whether the alleged Clean Water Act violations were continuing.

Disposition

The order denied in part and granted in part Bluefin Bay’s motion to dismiss: it denied the motion as to Count I, the Clean Water Act claim, and Count IV, the negligence claim; and it granted the motion as to Count II, the public-nuisance claim, and Count III, the private-nuisance claim. The court denied Bluefin Bay’s motion for summary judgment on all remaining claims.