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Waterkeeper v. City of Gulfport

United States District Court, M.D. Florida, Tampa Division

May 1, 2017

SUNCOAST WATERKEEPER, ET AL., Plaintiffs,
v.
CITY OF GULFPORT, Defendant.

          ORDER

          SUSAN C. BUCKLEW UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on two motions: (1) Defendant's Amended Motion to Dismiss (Doc. No. 22), which Plaintiffs oppose (Doc. No. 36); and (2) Defendant's Request for Judicial Notice (Doc. No. 21), which Plaintiffs oppose (Doc. No 37). As explained below, both motions are denied.

         I. Background

         On January 4, 2017, Plaintiffs, Suncoast Waterkeeper (“SCWK”), Our Children's Earth Foundation (“OCEF”), and Ecological Rights Foundation (“ERF”), filed this action against Defendant, the City of Gulfport, Florida, under the citizen-suit enforcement provision of the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”). (Doc 1-2 at 1). Plaintiffs allege Defendant has violated the CWA by (1) discharging pollutants into waters of the United States without National Pollution Discharge Elimination System (“NPDES”) Permit authorization and (2) violating the terms of its NPDES Permit, No. FLS000005-003, through these discharges. (Doc. 1-2 at 2).

         SCWK, OCEF, and ERF are non-profit public benefit corporations with members in the Tampa Bay area. (Doc. 1-2 at 2-3). The Complaint states that all three organizations work to protect and/or improve the quality of local waterways “for water contact recreation, aesthetic enjoyment, fishing, wildlife observation, educational study, and spiritual contemplation” and that the organizations' members “use and enjoy the ocean and bay waters and other waters adjoining and in Gulfport for body contact water sports and other forms of recreation, wildlife observation, aesthetic enjoyment, educational study, and spiritual contemplation.” (Doc. 1-2 at 2-4).

         Plaintiffs brought this action on behalf of their members, alleging that, through a series of sanitary sewer overflows (“SSOs”) and in violation of the CWA, Defendant “has repeatedly spilled raw and partially treated sewage” from its wastewater collection system into Tampa Bay, the Gulf of Mexico, and other waters near Gulfport. (Doc. 1-2 at 4-6). Plaintiffs further allege that, because wastewater collected within Gulfport is ultimately transported to St. Petersburg's publicly owned treatment works (“POTW”) facilities, Defendant has also caused or contributed to SSOs from St. Petersburg's POTW by contributing to the overload on the system during wet weather events in the Tampa Bay area. (Doc. 1-2 at 5, 9). Table 1, attached to the end of the Complaint, documents 19 SSOs Defendant allegedly caused or contributed to. (Doc. 1-2 at 24- 25). Based on similar allegations against the City of St. Petersburg, Plaintiffs have filed a similar suit against St. Petersburg. Suncoast Waterkeeper v. City of St. Petersburg, No. 8:16-cv-03319-JDW-AEP.

         The Complaint in the instant case includes a fairly extensive discussion of Gulfport's wastewater collection systems (Doc. 1-2 at 5-7) and the ways in which Gulfport's alleged SSOs may harm the ecologically sensitive waters of the Tampa Bay area, including risks to fisheries, wildlife habitat, and human health, by loading the waters with pathogens, nutrients, and toxic chemicals. (Doc. 1-2 at 7-10). Plaintiffs explain the effects of the alleged SSOs on their members as follows:

Gulfport's illegal discharges of raw and/or partially treated sewage to ocean and bay waters and other waters adjoining and in Gulfport degrade water quality and harm aquatic life in these waters, and thus impairs [sic] Plaintiffs' members' use and enjoyment of the ocean and bay waters and other waters adjoining and in Gulfport.

(Doc 1-2 at 4). As illustrative examples, the Complaint names nine SCWK members and one ERF member who claim to be affected by Gulfport's SSOs and describes how each has had his or her enjoyment of the area's waters impaired. (Doc. 1-2 at 10-13). For example, the Complaint provides the following description of one member of SCWK and his alleged injuries:

John Rice, current SCWK member who has been a member since before this action was filed, lives in Temple Terrace, Florida. He regularly fishes from a kayak in Simmons Park and Cockroach Bay. On Monday, September 26, 2016, following the massive sewage discharges from St. Petersburg's sewage wastewater collection and transmission system, he observed a smell “like a urinal” and a “film of brown foam” in the shallow waters of Cockroach Bay. Due to the high water level of the bay and river during the St. Petersburg SSOs in November, Mr. Rice believes that the foul smell in Cockroach Bay is likely due to sewage from St. Petersburg's SSOs (which were also contributed to by excessive sewage flows from Gulfport into St. Petersburg's sewage wastewater collection and transmission system) accumulating six inches to a foot above the regular water level in the Cockroach Bay mangroves, which usually do not experience much tidal fluctuation. Mr. Rice and his wife fish or engage in other recreational activities in and around Cockroach Bay from 20 to 25 times per year, and the SSOs from St. Petersburg (including those caused or contributed to by Gulfport) have caused them to lessen the frequency and enjoyment of their fishing and recreation.

(Doc. 1-2 at 10-11). Describing the injuries alleged by ERF member Rachel Rosner, the Complaint provides, in part:

Both Ms. Rosner and her son enjoy wading and swimming at [Tampa Bay-area] beaches, observing shorebirds and marine life, including sea turtles and manatees; enjoying the view of ocean waters, and the smell of clean saltwater air. She observed the severe red tide conditions created in the ocean waters adjacent to Sarasota in September and October 2016 in person when she visited beaches in Sarasota. She observed first hand dead fish washed up on the beach and floating in the nearshore waters. . . . These red tide conditions substantially impaired her enjoyment of Sarasota beaches. The dead fish were disturbing to look at and she was upset to view the loss of marine life caused by the red tide conditions. Additionally, the dead fish created a strong stench that made it unpleasant to be by the oceanside. She avoided going to St. Pete Beach or Treasure Island knowing that there were red tide conditions there as well. She has a well-founded fear that these red tide conditions were exacerbated by the series of very large SSOs from St. Petersburg in June, August, and September 2016 (which were caused both by problems in St. Petersburg's sewage collection system and in Gulfport's sewage collection system as well which sends it sewage to St. Petersburg and has old, leaky sewage pipes. These problems with Gulfport's sewage collection system cause Gulfport's flows of sewage to St. Petersburg to spike in a big way during rain storms. This overwhelms St. Petersburg's system leading to SSOs). She is aware that sewage has nutrients that are well-known to be capable of promoting algae blooms that are the cause of red tides. She is further aware that prevailing ocean currents flow from the St. Petersburg area south towards Sarasota and thus risk transporting nutrients from SSOs toward Sarasota. Indeed, she is aware that news accounts have quoted reputable scientists, such as Kelly Redmond of Florida's Fish and Wildlife Research Institute (which monitors toxic algae blooms) as indicating that SSOs have risked making these red tides worse. She is apprehensive that future SSOs from St. Petersburg and Gulfport will continue to add nutrients to local waters and increase the risk of red tides in the future unless comprehensive steps are taken to improve the sewage collection systems of St. Petersburg and Gulfport.

(Doc. 1-2 at 12-13). No individual members of OCEF are named in the Complaint. (Doc. 1-2).

         On March 3, 2017, Defendant moved to dismiss this case under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of standing and filed a Request for Judicial Notice of several declarations offered by Plaintiffs in the St. Petersburg case. (Doc. 21; Doc. 22). Accordingly, the Court will address both motions.

         II. Request for Judicial Notice

         Defendant asks this Court to take judicial notice of certain facts and documents, specifically eight sworn declarations filed by Plaintiffs in the St. Petersburg Action. The request lists the eight declarations and includes copies of each as attachments. (Doc. 21 at 2, Exhibits A-H). Plaintiffs respond that the St. Petersburg declarations are not proper to consider in the instant case because they do not indisputably establish any facts relevant to Plaintiffs' allegations against Gulfport, and they are not central to Plaintiffs' claims in this case. As explained below, the Court agrees with Plaintiffs.

         A. Rule 201(b)

         Under Federal Rule of Evidence 201(b), “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citing F.R.E. 201(b)). Based on this standard, when evaluating documents from other, related court proceedings, “a court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” Id. (quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (internal quotation marks omitted)). In Jones, the Eleventh Circuit determined that it was inappropriate for the district court to take judicial notice of facts in another court's order because the other court's findings were not sufficient to indisputably establish facts that the parties still disputed. Id. In making this determination, the court approvingly cited FDIC v. O'Flahaven, 857 F.Supp. 154, 157 (D.N.H. 1994), in which the “court could not judicially notice [the] veracity of allegations in affidavits from [a related] state court case; rather it could only take notice that the affidavits were filed and the averments were made.” Id.; see also Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999) (determining that the court could take judicial notice of public documents filed in a securities fraud case “for the purpose of determining what statements the documents contain and not to prove the truth of the documents' contents, ” but declining to address whether those statements could be considered if their truth were at issue).

         As noted by Defendant, in Cash Inn of Dade, Inc. v. Metropolitan Dade County, the Eleventh Circuit held that, in evaluating community members' statements that appeared in minutes from a county commission meeting, “[a] district court may take judicial notice of public records within its files relating to the particular case before it or other related cases.” 938 F.2d 1239, 1242-43 (11th Cir. 1991). However, the records at issue in Cash Inn-community members' statements contained in minutes from a county commission meeting-had already been introduced into evidence in the same case, and the court was not necessarily relying on them to establish their truth but merely whether the county had a permissible governmental interest, which the documents helped establish by describing the county's motivation for the regulation.

         Applying the Eleventh Circuit's general rule to the instant case, the Court can only take judicial notice of the fact that declarations were filed in the St. Petersburg case. The Court will not take judicial notice of their contents.

         Even if the Court did look to the contents of the St. Petersburg declarations, they still would not conclusively establish any facts that would merit dismissal of this case. Defendant has requested judicial notice not of what the St. Petersburg declarations do say but of what they do not say. In effect, Defendant is asking the Court to take judicial notice of its assertion that, if Plaintiffs had any accusations against the City of Gulfport, they would have made those accusations as part of their declarations given against the City of St. Petersburg. That, however, would require the Court to assume that Plaintiffs are unable to make any factual allegations against Defendant Gulfport merely because Plaintiffs did not make those allegations in declarations that were prepared and submitted in a separate case against a separate defendant. Even if this Court took judicial notice of all of the facts in the St. Petersburg declarations- which would be improper since they are not generally known or undisputed-those facts still would not conclusively disprove Plaintiffs' allegations against Gulfport.

         B. Extrinsic Evidence Central to ...


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