Knee Deep Cattle Company, Inc. Mike Stevenson Bill Stevenson and Lois Stevenson v. Bindana Investment Company Limited and Abraham Kool

ORDER

The memorandum decision filed July 29, 1996 is redesignated as an authored opinion by Senior District Judge Samuel P. King.

OPINION

Knee Deep Cattle Company (“Knee Deep”) appeals from the district court’s grant of Bindana Investment Company Limited’s (“Bindana”) motion to dismiss. Knee Deep challenges the district court’s decision that it lacked subject matter jurisdiction over the action because the Oregon Department of Environmental Quality’s (“DEQ”) actions regarding effluent discharges by Bindana into a nearby creek constituted diligent prosecution under a comparable state law as described in § 1319(g) of the Clean Water Act (“CWA”) 38 U.S.C. § 1319 (g). We have jurisdiction pursuant to 28 U.S.C. 1291 and reverse and remand.

Knee Deep runs a cattle and feeder operation in Lane County, Oregon, which borders an RV park and sewage treatment facility owned by Bindana. Bindana holds a National Pollution Discharge Elimination System (“NPDES”) permit issued pursuant to Or. Rev.Stat. § 468.740 and the CWA, which allows Bindana to discharge treated effluent into the Creek adjacent to both Bindana’s and Knee Deep’s property.

Bindana faded to comply with the terms of the…