Cal. Sportfishing v. Chico Scrap Metal

In order to bar an action under 33 U.S.C. § 1365(b)(1)(B), the prior state claim must have been brought against the defendant to “require compliance” with the Clean Water Act, being comparable is not sufficient; additionally, criminal and civil proceedings are not administrative penalty actions so as to bar a claim under 33 U.S.C. § 1319(g)(6)(A)(ii).

Sportfishing Protection Alliance (“the Alliance”), brought suit against Chico Scrap Metal (“Chico”), alleging they violated a National Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant to the Clean Water Act (“the Act”). This appeal came after the district court ruled that 33 U.S.C. § 1365(b)(1)(B), barred the claim. On appeal, defendants argued that 33 U.S.C. § 1319(g)(6)(A)(ii) was also a bar. Section 1365(b)(1)(B) bars action, “if [a state or federal authority] has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with the standard, limitation, or order….” Chico argued that an action is barred if the government action is comparable to the one brought under the Act. The word comparable is not used in § 1365(b)(1)(B). The Ninth Circuit held that this bar only applies if the government’s action seeks to “require compliance” with the standard, limitation, or order that is the subject of a citizen suit. The records showed that California has never sought judicial enforcement of the Permit and the prior proceedings were judicial enforcement of laws other than the Clean Water Act. The panel held that § 1365(b)(1)(B) was not an applicable bar. Section 1319(g)(6)(A)(ii), states that, “any violation…with respect to which a State has commenced an diligently prosecuting an action under a State law comparable to this subjection… shall not be the subject of a civil penalty action by a citizen.” Chico argued that because they had been prosecuted under California statutes, which contain penalties, and because they are liable for administrative penalties under a consent order, § 1319(g)(6)(A)(ii) is a bar. However, because the state’s actions in court were not administrative penalties comparable to those under the Act, § 1319(g)(6)(A)(ii) was not a bar. REVERSED and REMANDED.