Coastal Env't Rts. Found. v. Naples Rest. Grp. et al. (2022)

Proceedings: (IN CHAMBERS) ORDER RE: PLAINTIFF'S AND DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 23, 24)

Plaintiff Coastal Environmental Rights Foundation and Defendants Naples Restaurant Group, LLC and John Morris filed motions for summary judgment on September 19, 2022, (Pl.'s Mot. ECF No. 23-1; Defs.' Mot., ECF No. 24), their oppositions on October 3, 2022, (Defs.' Opp'n, ECF No. 28; Pl.'s Opp'n, ECF No. 26), and their replies on October 10, 2022, (Pl.'s Reply, ECF No. 31; Defs.' Reply, ECF No. 32.) The Court heard oral argument on October 24, 2022. (Mins., ECF No. 33.)

I. REQUESTS FOR JUDICIAL NOTICE AND EVIDENTIARY OBJECTIONS

Plaintiff requests judicial notice of administrative orders and permits from various California regional water boards and a guidance document from the Singapore Defense Science & Technology Agency (“SDSTA”). (Pl.'s RJN, ECF No. 23-12.) “Defendants object to the extent that Plaintiff seeks judicial notice of these public records for the purpose of proving the truth of the specific factual statements contained therein, which is improper.” (Defs.' Objs. to RJN, ECF No. 28-6.) The Court takes judicial notice of administrative documents from the regional water boards, which are public records not subject to reasonable dispute. Fed. R. Evid. 201(b); see Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”).

Judicial notice of the SDTSA document is inappropriate insofar as it serves as proof of the truth of a disputed fact—here, whether Defendants' fireworks operated as described in the SDTSA document. (Defs.' Disputes ¶¶ 41–47, ECF No. 29); United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 974 (E.D. Cal. 2004) (“[A] court can only take judicial notice of the existence of those matters of public record ․ but not of the veracity of the arguments and disputed facts contained therein.”). The Court takes judicial notice of the STDSA document only to the extent that such document exists and presents undisputed evidence.

The parties submitted evidentiary objections and disputed facts, many of which need not be addressed to resolve the motions. (Pl.'s Evid. Objs., ECF No. 26-14; Defs.' Evid. Objs., ECF No. 28-5; Pl.'s Disputes, ECF No. 27; Defs.' Disputes.) To the extent this Order rests on evidence subject to objections, those objections are overruled unless otherwise stated.

II. BACKGROUND

Plaintiff is a “non-profit public benefit corporation ․ established to advocate for the protection and enhancement of coastal natural resources and the quality of life for coastal residents.” (Pl.'s SUF ¶¶ 26–28, ECF No. 23-10.) Plaintiff brings a single claim under the Clean Water Act (“CWA”) against Defendants, (Compl. ¶¶ 70–74, ECF No. 1), who, since 2011, have held an annual event called “Big Bang on the Bay” each July 3rd (Pl.'s SUF ¶ 13; Defs.' SUF ¶ 1, ECF No. 24-17). As part of this Independence Day celebration, Defendants organize a fireworks show, during which Defendants launch hundreds of fireworks from mortars placed on the deck of a barge floating in Alamitos Bay. (Pl.'s SUF ¶ 17, 41–42; Defs.' SUF ¶ 2.)

Defendants were unable to obtain valid National Pollutant Discharge Elimination System (“NDPES”) permits for their fireworks shows because the Los Angeles Regional Water Quality Control Board (“LA Water Board”) had never developed one for issuance. (Pl.'s SUF ¶ 19; Defs.' SUF ¶ 12.) Rather than preparing an NPDES permit for Defendants, the LA Water Board issued investigative orders for the 2017, 2018, and 2022 fireworks shows. (Defs.' SUF ¶¶ 14, 32.) In the 2017 and 2018 investigative orders, the LA Water Board noted that when fireworks displays are “conducted over or near surface waters, residual firework pollutant wastes from the fireworks displays fall into the surface waters in the vicinity of the fireworks displays.” (2017 Investigative Order 1, ECF No. 23-13; 2018 Investigative Order 1, ECF No. 23-14.) The 2022 investigative order offered no opinion on whether fireworks shows generally or Defendants' show specifically resulted in the addition of fireworks-related waste into receiving waters. (See generally 2022 Investigative Order, ECF No. 23-15.)

After the 2018 show, Defendants' consultant, who collected a half pound of spent fireworks casings and 1.8 pounds of event-related paper wrap, issued a water quality report. (Pl.'s SUF ¶ 36.) And during the 2022 show, two members of Plaintiff's organization stated that they witnessed embers fall into Alamitos Bay, (Kajer Decl. ¶ 31, ECF No. 23-8; Geever Decl. ¶ 21, ECF No. 23-9), though Defendants dispute whether either show added any fireworks-related material into the Bay, (Defs.' Disputes ¶ 40). At the hearing, Defendants indicated that they were prepared to proffer credible evidence disputing whether the Big Bang on the Bay was the true source of any fireworks-related debris recovered from Alamitos Bay.

III. LEGAL STANDARD

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing law, the resolution of that fact might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The burden of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex, 477 U.S. at 322–23, and the court must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party, Scott v. Harris, 550 U.S. 372, 378 (2007). To meet its burden,

[t]he moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000). Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). There is no genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. at 587.

IV. DISCUSSION

“The CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit.” N. Plains Res. Council v. Fid. Expl. & Dev. Co., 325 F.3d 1155, 1160 (9th Cir. 2003) (citing 33 U.S.C. §§ 1311(a), 1342). Under the CWA, a discharge is “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). A pollutant is “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” Id. § 1362(6). A point source is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” Id. § 1362(14).

Defendants concede that Alamitos Bay is a navigable water and that they did not obtain NPDES permits for the Big Bang on the Bay fireworks shows. (Defs' Disputes ¶¶ 7, 19.) The parties dispute the other elements of a CWA claim, disagreeing whether Defendants' fireworks display is a discharge of any pollutant from a point source into Alamitos Bay. (See Pl.'s Mot. 7–11; Defs.' Mot. 10–17.) For the reasons set forth below, the Court finds genuine disputes of material fact and denies both sides' motions for summary judgment.

A. Discharge

Plaintiff presents evidence that the Big Bang on the Bay added fireworks-related debris during the 2018 and 2022 shows. (Pl.'s SUF ¶ 36; Kajer Decl. ¶ 31; Geever Decl. ¶ 21.) For the 2018 show, Plaintiff's primary evidence is Defendant's consultant's post-event report. (Pl.'s SUF ¶ 36; Beaudin Decl. Ex. H, ECF No. 23-5.) For the 2022 show, Plaintiff relies on the declarations of two of its organizational members, (Kajer Decl. ¶ 31; Geever Decl. ¶ 21), and photo and video evidence of the 2022 show, (Beaudin Decl. Ex. O, ECF No. 26-5; Beaudin Decl. Ex. P, ECF No. 26-6).

1. 2018 Show

As to the 2018 show, Plaintiff asserted at the hearing that the consultant's 2018 report, and Defendants' failure to dispute its findings, constituted an admission that the event added fireworks-related paper and other debris into Alamitos Bay. (See Pl.'s SUF ¶ 36.) Defendants countered that that they were prepared to introduce evidence at trial that boaters and beachgoers launch fireworks in and around the Bay. While the consultant collected debris “immediately after the event,” the report also mentioned the “the high presence of boat traffic, stand-up paddleboarders, kayakers, and swimmers” in the vicinity. (Morris Decl. Ex. 8, at 3, ECF No. 24-16.) Viewed in the light most favorable to Defendants, a reasonable factfinder could find, with the submission of evidence at trial, that other boaters or beachgoers launched the fireworks debris into the Bay rather than Defendants. See Anderson, 477 U.S. at 248.

In their own motion, Defendants simply point to the LA Water Board's 2018 water sampling results, which found “no material harmful impact on the water quality of Los Alamitos Bay.” (Defs.' Mot. 17.) However, Defendants fail to address the 2018 consultant's report, (Pl.'s SUF ¶ 36), which is affirmative evidence capable of raising a fact dispute, Anderson, 477 U.S. at 257. Viewed in the light most favorable to Plaintiff, a reasonable fact finder could find that the 2018 consultant's report, given the collection of debris immediately after the show, provides affirmative proof that Defendants discharged fireworks-related debris into Alamitos Bay. See id. at 248.

2. 2022 Show

As to the 2022 show, there is a genuine dispute whether any embers or other fireworks-related debris fell into Alamitos Bay. Defendants' consultant was unable to find any debris “indicative of the fireworks themselves” or any “measurable deleterious effect on receiving waters” that would indicate an addition of debris. (Wilson Decl. Ex. D, at 13, ECF No. 24-5.) While Plaintiff's photo and video evidence shows a significant amount of debris on the deck of the barge and fireworks embers falling in the distance, (Beaudin Decl. Exs. O–P), Plaintiff does not provide undisputed, affirmative evidence that fireworks-related debris fell into Alamitos Bay. Further, Defendants stated at the hearing that they would offer expert testimony that fireworks completely consume themselves in the air before any material could enter the Bay. Viewing these evidentiary proffers in the light most favorable to Defendants, a reasonable factfinder could find that Defendants' fireworks show did not result in the addition of embers or other fireworks-related debris into Alamitos Bay. See Anderson, 477 U.S. at 248.

Defendants contend that Plaintiff provides “no admissible evidence or proof that [a discharge] happened in 2022.” (Defs.' Mot. 16.) However, Plaintiff has submitted the declarations of two eyewitnesses, (Kajer Decl. ¶ 31; Geever Decl. ¶ 21), and photo and video evidence of the 2022 show, (Beaudin Decl. Exs. O–P). Defendants challenge the admissibility of the declarations but not the photo or video evidence. (See Defs.' Evid. Objs.; Defs.' Disputes to Add'l Facts ¶¶ 4–5, ECF No. 32-2 (disputing whether Plaintiff's video and photo evidence prove a discharge).) Viewing the photo and video evidence in the light most favorable to Plaintiff, a reasonable factfinder could find that the embers falling in the distance and the collection of fireworks-related debris from the barge deck prove that such debris fell into Alamitos Bay. See Anderson, 477 U.S. at 248.

However, these factual disputes are material only if fireworks-related debris are pollutants originating from a point source. See 33 U.S.C. § 1362(12)(A) (defining “discharge” as “any addition of any pollutant to navigable waters from any point source”). Thus, the Court considers whether there are material issues as to the pollutant and point source elements.

B. Pollutant

Whether a substance is a pollutant under the CWA is a “purely legal question of statutory interpretation.” Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1428 (9th Cir. 1998). “It is well settled that the starting point for interpreting a statute is the language of the statute itself.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987) (internal quotation marks omitted). When interpreting statutory text, courts apply “traditional tools of statutory construction” to determine whether Congress directly addressed the “precise question at issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). “If the precise question at issue is addressed, then the ‘unambiguously expressed intent of Congress’ controls.” Olympic Forest Coal. v. Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018) (quoting Chevron, 467 U.S. at 843). “A ‘clear and unambiguous’ statutory provision is one in which the meaning is not contradicted by other language in the same act.” Id. at 905–06 (citing, inter alia, Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 460–62 (2002)).

Plaintiff contends that Defendants' fireworks show resulted in the addition of spent fireworks casings, event-related paper wrap, plastic, water-saturated cardboard, and embers, which are the only substances allegedly added into Alamitos Bay. (Pl.'s SUF ¶ 36; Pl.'s Mot. 10.) Plaintiff asserts that such debris constitute pollutants as residue, chemical waste, or garbage. (Pl.'s Mot. 10.) Defendants resist each of these characterizations under the CWA. As to residue, Defendants argue that Plaintiff inexplicably omits “incinerator” from its statutory analysis. (Defs.' Opp'n 14.) As to chemical waste, Defendants contend that because the constituent elements of spent fireworks are “inert, non-toxic compounds or particulate in the atmosphere,” any leftover debris would not satisfy the CWA definition. (Id.) And as to garbage, Defendants stated at the hearing that fireworks-related debris is better understood as trash and not garbage.

Under the plain meaning of the CWA, the Court finds that spent fireworks casings, event-related paper wrap, plastic, and water-saturated cardboard constitute garbage and are thus pollutants.¹ These constituent elements of spent fireworks no longer serve any function and are discarded. Further, Defendants' description of fireworks-related debris as trash only reinforces this conclusion, as trash and garbage are synonymous terms. See Garbage, OXFORD ENGLISH DICTIONARY, https://www.oed.com/view/Entry/76687 (last visited Nov. 9, 2022) (defining garbage as, inter alia, trash).

There remain factual issues with respect to the falling embers. Plaintiff has proffered no admissible, affirmative evidence of the approximate temperature of a post-combustion ember at the point of entry into receiving waters. (See generally Pl.'s SUF; Pl.'s Disputes.) At the hearing, Plaintiff suggested that the CWA regulates heat as a disturbance of the ambient conditions of navigable waters, but it fails to explain how the embers disturb the Bay's ambient conditions. And, as noted above, there is a genuine dispute whether the falling embers totally consume themselves and therefore expend their heat before any entry into the Bay.

C. Point Source

Whether a discharge originated from a point source is a question of fact. See Concerned Area Residents for the Env't v. Southview Farm, 834 F. Supp. 1410, 1417–18 (W.D.N.Y. 1993) (collecting cases). Courts have interpreted the statutory definition of point source as “extremely broad.” Borden Ranch P'ship v. U.S. Army Corps of Eng'rs, 261 F.3d 810, 815 (9th Cir. 2001).

Neither side has submitted undisputed, admissible evidence explaining the operation of Defendants' fireworks. As Defendants asserted at the hearing, without any admissible evidence of their fireworks' trajectory and post-combustion chemical composition, the Court is unable to determine whether the conveyance of fireworks-related debris is “discernible, confined and discrete,” as the CWA requires. 33 U.S.C. § 1362(14). Plaintiff, on the other hand, maintains that the Court need only recognize that what goes up must come down.

To support its application of § 1362(14), Plaintiff points to two cases, which held that firing ranges over navigable waters are point sources. See Stone v. Naperville Park Dist., 38 F. Supp. 2d 651 (N.D. Ill. 1999); Long Island Soundkeeper Fund, Inc. v. N.Y. Athletic Club of City of N.Y., No. 94 Civ. 0436 (RPP), 1996 WL 131863 (S.D.N.Y. Mar. 22, 1996). In finding a point source, the Long Island Soundkeeper court reasoned that a trap shooting range “is designed to concentrate shooting activity from a few specific points and systematically direct it in a single direction—over Long Island Sound.” 1996 WL 131863, at *14. The Stone court similarly reasoned that a shooting range “channels the discharge of pollutants by inviting individuals to come shoot at airborne clay targets that land in the water with lead shot that also lands in the water.” 38 F. Supp. 2d at 655.

The Court agrees with Defendants as to Plaintiff's motion. Without admissible evidence of the operation of Defendants' fireworks, there remain disputed facts that would allow the Court to determine whether any conveyance of pollutants was discernible, confined, and discrete. 33 U.S.C. § 1362(14). While the mortars are indisputably pointed over Alamitos Bay, Defendants indicated at the hearing that they would offer expert testimony that a firework's combustion changes the trajectory of its constituent parts and consumes itself while in flight. Long Island Soundkeeper is distinguishable, as a firework's combustion redirects its broken-down elements and produces a seemingly random, multi-directional flight path. Stone is distinguishable, as Defendants dispute whether any fireworks-related debris landed in Alamitos Bay. Thus, when viewing the evidence in the light most favorable to Defendants, a reasonable trier of fact could find that neither the mortars nor the barge constitutes a point source under the CWA. See Anderson, 477 U.S. at 248.

The Court also finds a material factual dispute as to Defendants' motion, which primarily raises legal and policy-based arguments on the point source issue. (See Defs.' Mot. 10–15.) Viewing the totality of the admissible evidence in the light most favorable Plaintiff, a reasonable trier of fact could find that Defendant's fireworks show is a discernible, confined, and discrete conveyance of fireworks-related debris. See Anderson, 477 U.S. at 248.

V. CONCLUSION

Accordingly, the Court finds genuine, triable issues of material fact as to whether Defendants' 2018 and 2022 Big Bang on the Bay events resulted in the addition of fireworks-related debris into Alamitos Bay from a point source. The Court denies Plaintiff's and Defendants' motions for summary judgment.

IT IS SO ORDERED.

FOOTNOTES

1.   The Court expresses no opinion whether the spent casings, event-related paper, plastic, or discarded cardboard are Defendants' pollutants.

The Honorable Mark C. Scarsi, United States District Judge