Natural Resources Defense Council Santa Monica Baykeeper, Inc. Terry Tamminen v. California Department of Transportation, and James W. Van Loben Sels

96 F.3d 420 43 ERC 1193 , 65 USLW 2201 , 27 Envtl. L. Rep. 20,173, 96 Cal. Daily Op. Serv. 6944 , 96 Daily Journal D.A.R. 11 ,341 NATURAL RESOURCES DEFENSE COUNCIL; Santa Monica Baykeeper, Inc.; Terry Tamminen, Plaintiffs-Appellees, v. CALIFORNIA DEPARTMENT OF TRANSPORTATION, Defendant, and James W. Van Loben SELS, Defendant-Appellant. No. 94-56558. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 8, 1996. Decided Sept. 17, 1996. Glenn B. Mueller, State of California Department of Transportation, Los Angeles, California, for defendant-appellant. Gail Ruderman Feuer, Mitchell S. Bernard, Nancy Marks, David S. Beckman, Natural Resources Defense Council, Los Angeles, California, for plaintiffs-appellees. Appeal from the United States District Court for the Central District of California, Edward Rafeedie, District Judge, Presiding. D.C. No. CV-93-06073-ER. Before HALL, O'SCANNLAIN, and KLEINFELD, Circuit Judges. Opinion by Judge HALL; Concurrence by Judge O'SCANNLAIN. CYNTHIA HOLCOMB HALL, Circuit Judge: 1 This dispute is a citizen enforcement action brought pursuant to the citizens' suit provision of the Clean Water Act, 33 U.S.C. § 1365 .…

specially concurring; Circuit Judge KLEINFELD joining:

I concur in Judge Hall’s opinion because it accurately reflects the state of Ninth Circuit law. Our decision in this case is compelled by the two holdings of this court in Almond Hill Sch. v. United States Dep’t of Agriculture, 768 F.2d 1030 (9th Cir.1985) (holding Eleventh Amendment does not bar action against state officials to enforce a federal statutory right); and Coeur d’Alene Tribe of Idaho v. Idaho, 42 F.3d 1244 (9th Cir.1994) (holding Eleventh Amendment does not bar a claim for injunctive relief against state officials seeking to preclude future violations of federal law).

Nevertheless, I want to express my concern about the persistent erosion of the Eleventh Amendment by expanding judicial exceptions within this circuit. In my view, we took a wrong turn in Almond Hill, which Coeur d’Alene follows. It is reassuring, therefore, to learn that the Supreme Court of the United States, having granted certiorari in Coeur d’Alene, has scheduled oral argument for mid-October. Whatever the result of the Supreme Court’s review, its timely attention to the delicate interaction between the federal and state governments in the…

Opinion by Judge HALL; Concurrence by Judge O’SCANNLAIN.

This dispute is a citizen enforcement action brought pursuant to the citizens’ suit provision of the Clean Water Act, 33 U.S.C. § 1365 . Plaintiffs-Appellees 1 filed suit against Defendants-Appellants, the California Department of Transportation (“Cal-trans”) and its director, James Van Loben Seis, claiming that Caltrans was not in compliance with a Clean Water Act permit that required it to control polluted stormwater runoff from roadways and maintenance yards in Southern California.

The defendants submitted a motion to dismiss for lack of subject matter jurisdiction claiming that the ease was barred by the Eleventh Amendment. The district court dismissed all claims against Caltrans because, as an arm of the state, Caltrans is immune from suit under the Eleventh Amendment. In addition, the court dismissed plaintiffs’ claims against Van Loben Seis for civil penalties and declaratory relief, because they too were barred by the Eleventh Amendment. However, the court proceeded to trial on plaintiffs’ claims for prospective injunctive relief against Van Loben Seis individually. District Court’s Order of 11/02/94 (Excerpts of…