1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ALPINE COUNTY, a political No. 2:20-cv-01514 WBS CKD subdivision of the State of 13 California 14 Plaintiff, MEMORANDUM AND ORDER RE:

SOUTH TAHOE PUBLIC UTILITY

15 v. DISTRICT’S MOTION TO DISMISS 16 SOUTH TAHOE PUBLIC UTILITY DISTRICT, a public utility 17 district; UNITED STATES BUREAU

OF LAND MANAGEMENT; UNITED

18 STATES DEPARTMENT OF AGRICULTURE

FOREST SERVICE; UNITED STATES

19 ENVIRONMENTAL PROTECTION AGENCY;

FEDERAL EMERGENCY MANAGEMENT

20 AGENCY 21 Defendants. 22 23 ----oo0oo---- 24 Plaintiff Alpine County brought this action against the 25 South Tahoe Public Utility District (“defendant”), United States 26 Bureau of Land Management (“BLM”), United States Department of 27 Agriculture Forest Service (“USFS”), United States Environmental 28 Protection Agency (“EPA”), and the Federal Emergency Management 1 Agency (“FEMA”) (collectively, “federal agencies”),1 alleging 2 breach of the terms of federal grants and agreements with the 3 federal agency defendants, breach of contract, breach of the 4 implied covenant of good faith and fair dealing, unjust 5 enrichment, nuisance, trespass, and common law waste. Defendant 6 South Tahoe Public Utility District has moved to dismiss 7 plaintiff’s complaint. (Docket No. 8). 8 I. Relevant Allegations 9 This case arises out of a dispute between plaintiff 10 Alpine County, a county located just south of the Lake Tahoe 11 Basin, and defendant South Tahoe Public Utility District, a 12 public entity that provides water and sewer service to South Lake 13 Tahoe and portions of El Dorado County. (Compl. ¶¶ 4-5.) In 14 1967, plaintiff and defendant entered into an agreement (the 15 “Agreement”) to export defendant’s treated sewage effluent 16 generated outside the Lake Tahoe Basin. (Id. ¶ 15.) The 17 Agreement authorized defendant to construct, operate, and 18 maintain pipelines for the export of sewage effluent from the 19 Lake Tahoe Basin into Alpine County in exchange for an annual 20 fee. (Id. ¶ 16.) Defendant was also authorized to construct, 21 operate, and maintain facilities in Alpine County where effluent 22 could be discharged. (Id. ¶ 17.) 23 Beginning in summer 2019, a dispute arose between the 24 parties as to the termination date of the contract. (Id. ¶¶ 38- 25 49.) The complaint alleges that defendant notified plaintiff it 26 1 As of the date of this Order, none of the federal agencies 27 named in plaintiff’s complaint have appeared in this matter. It is not clear whether plaintiff has served any of them with the 28 summons and complaint. 1 was terminating the Agreement in October 2019 but has continued 2 to export sewage effluent into Alpine County without making the 3 annual payment set out in the contract. (Id.) 4 Plaintiff brought this suit in response, alleging: (1) 5 violations of federal law and federal grants, permits, and 6 agreements; (2) violations of a number of substantive laws giving 7 rise to declaratory relief; (3) breach of contract; (4) breach of 8 the implied covenant of good faith and fair dealing; (5) unjust 9 enrichment; (6) nuisance; (7) trespass; and (8) waste. (See 10 generally Compl.) 11 II. Legal Standard 12 Federal Rule of Civil Procedure 12(b)(6) allows for 13 dismissal when the plaintiff’s complaint fails to state a claim 14 upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The 15 inquiry before the court is whether, accepting the allegations in 16 the complaint as true and drawing all reasonable inferences in 17 the plaintiff’s favor, the complaint has stated “a claim to 18 relief that is plausible on its face.” Bell Atl. Corp. v. 19 Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is 20 not akin to a ‘probability requirement,’ but it asks for more 21 than a sheer possibility that a defendant has acted unlawfully.” 22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 23 recitals of the elements of a cause of action, supported by mere 24 conclusory statements, do not suffice.” Id. 25 III. Discussion 26 The only federal claim that plaintiff’s complaint 27 raises against defendant South Tahoe Public Utility District is 28 that defendant has violated the Clean Water Act (“CWA”), 33 1 U.S.C. §§ 1251-1387.2 The complaint alleges that defendant 2 cannot comply with the CWA without a contract to operate in 3 Alpine County, and thus defendant’s termination of the Agreement 4 has led it to violate the CWA’s discharge requirements. (See 5 Compl. ¶¶ 79-82.) The only specific provision of the CWA 6 mentioned in plaintiff’s complaint is section 303(d). (See 7 Compl. ¶¶ 69-72.) The complaint alleges that (1) section 303(d) 8 requires states to identify waters that do not meet water quality 9 standards; (2) Lake Tahoe has been identified as an impaired 10 water body under the statute; (3) sewage must be exported to 11 avoid polluting Lake Tahoe; and (4) as a result, California and 12 its subdivisions are required to comply with numerous discharge 13 requirements and seek various approvals from the EPA. (See 14 Compl. ¶¶ 69-72.) 15 These allegations do not sufficiently allege a 16 violation of the Clean Water Act. The complaint cites to CWA 17 section 303(d) to provide background information on the CWA’s 18

19 2 Plaintiff styles his first two claims against defendant as claims for “injunctive relief” and “declaratory relief.” While 20 plaintiff argues that these are also separate federal claims, neither a claim for injunctive relief nor a claim for declaratory 21 relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, can 22 act as a free-standing claim sufficient to confer federal question jurisdiction under 28 U.S.C. § 1331. See, e.g., Jensen 23 v. Quality Loan Serv. Corp., 702 F. Supp. 2d 1183, 1201 (E.D. Cal. 2010) (“A request for injunctive relief by itself does not 24 state a cause of action . . . .”); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (“The operation of the 25 Declaratory Judgment Act is procedural only. [It] enlarge[s] the range of remedies available in the federal courts but d[oes] not 26 extend their jurisdiction.”) (internal quotation marks and 27 citations omitted). Plaintiff’s claims for injunctive and declaratory relief therefore depend upon the Complaint’s claim 28 for violations of the Clean Water Act. 1 water quality standards program and to explain why treated sewage 2 must be transported out of the Lake Tahoe watershed, but it does 3 not identify a single provision of the statute that defendant is 4 violating or make anything other than conclusory statements that 5 defendant must necessarily be violating the CWA now that the 6 Agreement has been terminated. (See Compl. ¶¶ 69-72.) These 7 types of conclusory allegations and “threadbare recitals” are 8 insufficient to state a claim upon which relief can be granted. 9 See Iqbal, 566 U.S. at 678. 10 Plaintiff’s allegations regarding the Clean Water Act 11 suffer from another fatal flaw. “Like substantive federal law 12 itself, private rights of action to enforce federal law must be 13 created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286- 14 87 (2001). To maintain a cause of action under a federal 15 statute, the plaintiff must be able to point to a specific 16 provision of the statute that “display[s] an intent to create not 17 just a private right but also a private remedy.” Id. 18 Plaintiff’s complaint does not identify a single source of 19 federal law, and the court is unaware of any--in the CWA or 20 otherwise--that authorizes plaintiff to sue defendant over its 21 alleged violations of the CWA. See id. 22 Notably, plaintiff’s counsel conceded at oral argument 23 that the complaint does not adequately allege a basis for a cause 24 of action against defendant under the CWA. When asked how 25 plaintiff could amend the complaint to sufficiently allege 26 violations of federal law against defendant, plaintiff’s counsel 27 stated that plaintiff could allege violations of an entirely 28 different federal law, the Tahoe Regional Planning Compact, Pub. 1 L. 96-551, art. 6(j), 94 Stat. 3233 (1980). However, plaintiff 2 did not reference the Compact in its complaint or in its 3 Opposition to Defendant’s Motion to Dismiss -- this was mentioned 4 for the first time at oral argument. 5 The court is not willing to entertain plaintiff’s 6 efforts to state a federal claim through vague allegations and 7 the addition of brand new claims by amendment. Plaintiff’s claim 8 under the Clean Water Act will therefore be dismissed. See 9 Iqbal, 566 U.S. at 678. If plaintiff wishes to state an entirely 10 new and different claim against defendant, plaintiff is free to 11 do so in another action, assuming such a claim is plausible and 12 is not barred by the statute of limitations. If plaintiff wishes 13 to bring a claim that arises under federal law, it can bring that 14 action in federal court. See 28 U.S.C. § 1331. Otherwise, a 15 state court is the more appropriate forum to adjudicate 16 plaintiff’s claims against defendant. 17 Because the court will dismiss plaintiff’s only federal 18 claim against defendant South Tahoe Public Utility District, the 19 court no longer has federal question jurisdiction with respect to 20 plaintiff’s claims against defendant. See id. Federal courts 21 have “supplemental jurisdiction over all other claims that are so 22 related to claims in the action within such original jurisdiction 23 that they form part of the same case or controversy under Article 24 III of the United States Constitution.” 28 U.S.C. § 1367(a). 25 But a district court “may decline to exercise supplemental 26 jurisdiction ... [if] the district court has dismissed all claims 27 over which it has original jurisdiction.” 28 U.S.C. § 1367(c); 28 see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 1 (9th Cir.1997) (en banc) (explaining that a district court may 2 decide sua sponte to decline to exercise supplemental 3 jurisdiction). The Supreme Court has stated that “in the usual 4 case in which all federal-law claims are eliminated before trial, 5 the balance of factors to be considered under the pendent 6 jurisdiction doctrine--judicial economy, convenience, fairness, 7 and comity--will point toward declining to exercise jurisdiction 8 over the remaining state-law claims.” Carnegie–Mellon Univ. v. 9 Cohill, 484 U.S. 343, 350 n.7 (1988). 10 Comity weighs in favor of declining to exercise 11 supplemental jurisdiction over plaintiff’s state law claims 12 against defendant because the state court is competent to hear 13 those claims and may have a better understanding of the relevant 14 state law. As for judicial economy, this action is still at the 15 motion to dismiss stage, and plaintiff’s state law claims have 16 not been the subject of any litigation. Judicial economy does 17 not weigh in favor of exercising supplemental jurisdiction. 18 Lastly, convenience and fairness do not weigh in favor of 19 exercising supplemental jurisdiction. The federal and state fora 20 are equally convenient for the parties. There is no reason to 21 doubt that the state court will provide an equally fair 22 adjudication of the issues. Accordingly, the court declines to 23 exercise supplemental jurisdiction and will dismiss plaintiff’s 24 remaining state law claims against defendant South Tahoe Public 25 Utility District. 26 IT IS THEREFORE ORDERED that defendants’ motion to 27 dismiss (Docket No. 8) be, and the same hereby is, GRANTED. 28 Plaintiff’s claim against defendant South Tahoe Public 2 EUV VEG EIT VV RO INES MVEUETIOCTE aw POO Ve Te TAY OU VIO

1 Utility District under the Clean Water Act is DISMISSED WITH 2 PREJUDICE. Plaintiff’s claims under California law against 3 | defendant South Tahoe Public Utility District are DISMISSED 4 WITHOUT PREJUDICE to refiling in state court. The Clerk of Court 5 shall enter final judgment in favor of defendant South Tahoe 6 Public Utility District. 7 Dated: September 23, 2020 vohbbte a “~ ak. □□ 8 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

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