Atchafalaya Basinkeeper v. Sandra Thompson
682 F.3d 356
5th Cir.
2012
Check Treatment
Docket

ATCHAFALAYA BASINKEEPER; Louisiana Environmental Action Network, Plaintiffs-Appellants, v. Stephen CHUSTZ, in his official capacity as Acting Director of the Atchafalaya Basin Program, Defendant-Appellee.

No. 11-30471.

United States Court of Appeals, Fifth Circuit.

April 25, 2012.

679 F.3d 356

and CEO of CBS and the Chairman of the Board and an officer of Waterford. Second, both firms shared the same majority shareholder, AIC, of which Skaltsounis was a director and President. Third, Collier, another of the three directors of Waterford, was also Executive Vice President of CBS. Thus, as the district court concluded, “the controlling members of Waterford were vested with indirect control of Gilbert through Mitchell.” .

Additionally, the firms had an overlapping compliance manager, Freeland. The district court concluded that this dual role gave Freeland‘s “superiors at Waterford ample opportunity to indirectly control Gilbert through Freeland.” Id. Waterford attempts to downplay Freeland‘s role by challenging the court‘s conclusion that she was one of Gilbert‘s “immediate supervisors.” Appellant‘s Br. at 21. However, Gilbert himself acknowledged that he reported directly to just two persons: Freeland and Mitchell. The mere fact that Mitchell was an officer and Freeland a manager does not establish, as Waterford suggested at oral argument, that Freeland had no authority or ability to influence Gilbert. Rather, the record contains considerable uncontroverted contrary evidence. Namely, Freeland made compliance requests of Gilbert that he dutifully fulfilled. And it was Freeland, as a representative of CBS, who officially informed Gilbert of his termination from CBS, and, as a representative of Waterford, officially welcomed Gilbert to Waterford less than a week later.

In light of the undisputed evidence of the extensive overlap in owners, directors, officers, and employees of Waterford and CBS and their shared office space and other resources, and given the federal presumption in favor of arbitration, we agree with the district court that Waterford had the power to influence Gilbert and, thus, “indirectly controlled” him. Accordingly, we hold that FINRA Rule 12200 is “susceptible to a meaning” that Gilbert was an “associated person” of Waterford, and, consequently, that the arbitration clause in Rule 12200 “covers the Investors’ dispute.” . In short, the Investors can compel Waterford to arbitrate their claims.6

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

Adam Babich (argued), Chester Fields (argued), Corinne Jacqueline Van Dalen, Supervisory Atty., Tulane University, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiffs-Appellants.

Ryan Michael Seidemann, Louisiana Dept. of Justice, Megan Kathleen Terrell, Asst. Atty. Gen. (argued), Office of the Atty. Gen. for the State of Louisiana, Baton Rouge, LA, for Defendant-Appellee.

Before DeMOSS, CLEMENT and ELROD, Circuit Judges.

PER CURIAM:

The Atchafalaya Basinkeeper and the Louisiana Environmental Action Network (collectively “Appellants“) are private entities with an interest in protecting Bayou Postillion in Iberia Parish, Louisiana. They sued the Atchafalaya Basin Program (“Program“), alleging that the Program violated the conditions of a permit issued to it by the Army Corps of Engineers (“Corps“) under the Clean Water Act (“Act“), 33 U.S.C. § 1344. The district court dismissed Appellants’ case after determining that the Act does not allow citizen suits to enforce the conditions of a § 1344 permit. We AFFIRM.

I.

The Corps issued the Program a permit under § 1344 of the Act, allowing it to dredge Bayou Postillion in Iberia Parish, Louisiana. Dredging activities such as those allowed under the Program‘s permit result in “spoil banks,” which are large piles of dredged material that must be deposited along the sides of the Bayou. According to the complaint, the Program violated the conditions of its permit by failing to maintain appropriate gaps in its spoil banks to allow the natural water flow and flooding necessary to sustain certain wetland plant life.

Appellants sued the Program and its Acting Director under the Act‘s citizen suit provision, § 1365, to enforce the conditions of the Program‘s § 1344 permit. The district court concluded that § 1365 does not allow such a citizen suit. This appeal followed.

II.

We review a district court‘s grant of a Rule 12(b)(6) motion to dismiss de novo. (citing ). We accept as true the facts pleaded in the complaint. (citing ). For a complaint to state a claim, the non-moving party must plead enough facts to state a claim to relief that is plausible on its face. .

The Clean Water Act is a comprehensive statutory regime designed “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.” 33 U.S.C. § 1251(a). To that end, it prohibits “the discharge of any pollutant,” including dredged spoil, unless in compliance with certain enumerated exceptions. §§ 1311(a), 1362(6). Two of those exceptions, § 1342 and § 1344(a), create permitting schemes through which the discharge of pollutants may be authorized. Section 1344 grants the Corps the authority to issue permits “for the discharge of dredged or fill material,” and § 1342 authorizes the Environmental Protection Agency to issue a permit for the discharge of all other pollutants.

The Corps has played an important role in the management of the navigable waters of the United States for over 100 years. Long before the Clean Water Act, the Rivers and Harbors Act of 1899 prohibited construction in navigable waters without permission from the Corps. 33 U.S.C. § 401. The § 1344 permit framework largely preserves the Corps’ historical responsibilities for the navigable waters of the United States. Accordingly, the Corps can enforce § 1344 itself as well as the conditions of the permits it issues under § 1344(s).

The Act also allows citizen enforcement of certain specific and limited types of violations. Section 1365(a)(1), the Act‘s citizen-suit provision, provides, in relevant part, that “any citizen may commence a civil action on his own behalf ... (1) against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter.” Section 1365(f), in turn, provides a seven-part definition of “effluent standard or limitation under this chapter.” Two of § 1365(f)‘s grounds for citizen suit are relevant here. First, § 1365(f)(1) allows citizen suits for “an unlawful act under subsection (a) of section 1311 of this title.” Section 1311(a), titled “[i]llegality of pollutant discharges except in compliance with law,” provides that “[e]xcept as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.” Second, § 1365(f)(6) allows citizen suits for violations of “a permit or condition thereof issued under section 1342 of this title.”

III.

Appellants claim a private right to sue the Program for violating a condition of a permit issued and administered by the Corps. The district court rejected Appellants’ argument for two reasons. First, it explained that Appellants’ interpretation of one subsection of the Act renders another subsection of the Act redundant. Second, the district court explained that the subsection of the Act under which Appellants claim a private right of action does not actually address § 1344 permit condition violations. We need not reach the district court‘s second reason because we agree that Appellants’ interpretation of the Act renders one of its subsections redundant.

It is an established rule of statutory interpretation that no provision should be construed to be entirely redundant. See (invoking the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant“). Appellants claim a right to sue under § 1365(f)(1), arguing that violations of § 1342 and § 1344 permit conditions are “unlawful acts” under § 1311(a). As the district court explained, however, if § 1365(f)(1) provided citizen suits for § 1342 permit condition violations, then § 1365(f)(6), which provides citizen suits in the case of a violation of “a permit or condition thereof issued under section 1342 of this title,” would have been unnecessary.

Appellants attempt to explain away this redundancy objection, but the interpretation they must support to avoid it simply cannot be called a plain reading of the Act. They point out that § 1311(a) renders only “discharges” in violation of § 1342 and § 1344 unlawful acts and, therefore, proper grounds for citizen suit. Noting that § 1365(f)(6) never mentions “discharges,” Appellants insist that Congress‘s one-word omission indicates its intent to limit § 1365(f)(6) to non-discharge related § 1342 permit condition violations. According to Appellants, § 1365(f)(6) thus covers something § 1365(f)(1) does not, and reading § 1365(f)(1) to provide citizen suits for permit condition violations would not render § 1365(f)(6) redundant.

We reject that interpretation. Only someone who consulted § 1311(a) could notice the absence of the word “discharge” in § 1365(f)(6). But it is unclear why anyone interpreting § 1365(f)(6) would ever look to § 1311(a) in the first place. After all, § 1311(a) is not part of the Act‘s citizen suit provision, and § 1365(f)(6) does not reference it. Yet Appellants contend that the presence of the word “discharge” in § 1311(a) is evidence of a drastic limitation on the scope of § 1365(f)(6), which omits the term and is otherwise unrelated. It is highly unlikely that Congress would so obliquely signal an extreme departure from § 1365(f)(6)‘s plain language.

That conclusion is strongly reinforced by Congress‘s provision of citizen suits for § 1342 permit condition violations in the unmistakably clear language of § 1365(f)(6). It would be especially odd for Congress to provide citizen suits for § 1342 permit condition violations so plainly in the text of § 1365(f)(6) and simultaneously to bury the right to sue for § 1344 permit condition violations within a tri-level maze of statutory cross-references. If Congress had intended to allow citizen suits for § 1344 permit condition violations, it did not need to resort to the complicated method Appellants urge. Instead, it could have simply added another subsection to § 1365(f), providing the same right to sue for § 1344 permit condition violations that it provided for § 1342 permit condition violations in § 1365(f)(6). See (“In sum, the better view [of the statute] is the simpler one.“).

This reasoning is also consistent with the Supreme Court‘s warning to lower courts not to infer private rights of action from such oblique statutory interpretations. Where a statute has “elaborate enforcement provisions,” as does the Act at issue here, the Supreme Court has warned that:

[I]t cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens .... [I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it. In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.

(in-ternal quotation marks and citations omitted). Congress has relied on the Corps to enforce the permits it issues for more than 100 years, and there are no strong indicia of congressional intent to provide citizen suits for § 1344 permit condition violations. Cf. (“[T]he citizens’ role in enforcing the Act is ‘interstitial’ and should not be ‘intrusive.‘“) (citing ).

IV.

For these reasons, we hold that the Act does not provide citizens the right to sue to enforce the conditions of § 1344 permits. AFFIRMED.

Before DeMOSS, CLEMENT and ELROD, Circuit Judges.

Notes

6
Given our holding that, because Gilbert was an “associated person” of Waterford, the Investors were entitled to arbitrate their claims against Waterford, we need not consider the district court‘s alternative holding that arbitration was appropriate because Waterford was a “mere continuation” of CBS. See .
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