Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hayes Oyster Co. v. Oregon Department of Environmental Quality

United States District Court, D. Oregon

April 17, 2017

HAYES OYSTER COMPANY, Plaintiff,
v.
OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY and RICHARD WHITMAN, in his official capacity as its interim director, Defendants.

          Thomas R. Benke The Environmental Compliance Organization LLC Attorney for Plaintiff

          Ellen Rosenblum, Attorney General Christina L. Beatty-Walters, Senior Assistant Attorney General Attorney for Defendants

          OPINION AND ORDER

          John Jelderks U.S. Magistrate Judge

         Plaintiff Hayes Oyster Company brings this action against Defendants Oregon Department of Environmental Quality (“DEQ”) and Richard Whitman in his official capacity as DEQ’s interim director (collectively “Defendants”). Plaintiff asserts claims for public nuisance; unjust taking under Article I, Section 18 of the Oregon Constitution; and unjust taking under the Fifth Amendment of the United States Constitution. Defendants now move to dismiss Plaintiff’s claims pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and alternatively under Rule 12(b)(6) for failure to state a claim for relief.

         For the reasons set out below, Defendants’ Rule 12(b)(1) motion is granted. Having concluded that this Court lacks jurisdiction to hear the case, it is neither necessary nor appropriate to rule on the alternative motion. Ex parte McCardle, 74 U.S. 506, 514 (1868).

         Factual Background

         According to Plaintiff’s Complaint, Plaintiff holds six hundred acres of oyster plats located in Tillamook Bay, Tillamook County, Oregon. Plaintiff holds these acres in accordance with leases administered by the State of Oregon and by right in accordance with Oregon law.

         Defendant DEQ regulates commercial oyster culture and harvesting according to its Tillamook Management Plan for Commercial Shellfish Harvesting. Defendant DEQ’s Management Plan is designed to ensure compliance with the U.S. Food and Drug Administration’s National Shellfish Sanitation Program (“NSSP”) standards for commercial shellfish harvesting. The NSSP sets standards for fecal coliform bacteria in shellfish growing waters.

         In addition to the NSSP standards, the State of Oregon has a duty under 33 U.S.C. § 1313(d)(1)(C) to establish a Total Maximum Daily Load (“TMDL”) for bacteria, including fecal coliform, in the Wilson River, the Trask River, the Tillamook River, and Tillamook Bay. Defendant DEQ established a TMDL for the Tillamook Watershed in 2001.

         TMDLs allocate the amounts of pollutants, including fecal coliform, that sources in the watershed are allowed to discharge. TMDL allocations cover two types: wasteload allocations and load allocations. Wasteload allocations relate to point sources of pollution and guide the development of discharge limits set in National Pollutant Discharge Elimination System (“NPDES”) permits. Load allocations relate to nonpoint sources and guide targets that dairy farm manure management practices are designed to meet.

         Plaintiff’s Complaint takes issue with the way that the Tillamook Watershed TMDL determines wasteload allocations and load allocations. First, Plaintiff alleges that Defendant DEQ established wasteload allocations for NPDES permitted dischargers in the Tillamook Watershed with the understanding that water quality standards for growing shellfish would be met in portions of Tillamook Bay while they would not be met in other portions of Tillamook Bay.

         Second, Plaintiff alleges that Defendant DEQ adopted a “zero (load) allocation” for dairy farms operating pursuant to specific permits, based on the assumption that these permits prohibited pollutant discharges to surface water from the land application of manure. But dairy farms’ land application of manure is not prohibited provided that the application is done in accordance with an approved Animal Waste Management Plan.

         Therefore, according to Plaintiff, the wasteload allocations for NPDES permitted dischargers in the Tillamook Watershed are not reasonably calculated to attain compliance with the water quality standard for all shellfish growing waters in Tillamook Bay, and the zero load assumption does not meet Defendant DEQ’s duty under federal law. Plaintiff further alleges that Defendant DEQ’s 2001 TMDL for the Tillamook Bay Watershed does not meet the TMDL standard set out in 33 U.S.C. § 1313(d)(1)(C).

         Plaintiff brings the following claims against Defendants, all stemming from Plaintiff’s theory that Defendants have failed to regulate pursuant to their duty under federal law: public nuisance; unjust taking under Article I, Section 19 of the Oregon Constitution; and unjust taking under the Fifth Amendment of the United States Constitution.

         Discussion

         Defendants move to dismiss Plaintiff’s claims for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The motion has merit for the reasons discussed below.

         I. Subject Matter Jurisdiction

         Defendants’ motion for lack of subject matter jurisdiction is granted because: (1) Plaintiff’s Fifth Amendment claim is barred as unripe given that Plaintiff has not first sought compensation in state court; (2) Plaintiff’s claims are barred by Eleventh Amendment sovereign immunity as Defendants have not impliedly or explicitly waived their sovereign immunity; (3) Plaintiff may not seek injunctive relief in this court using its state law claims given that they are state law claims and Defendants’ sovereign immunity covers such claims; and, (4) even if the state law claims had survived Eleventh Amendment scrutiny, they do not establish federal question jurisdiction under Gunn v. Minton. 133 S. Ct. 1059, 1065 (2013).

         1. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.