Shark River Cleanup Coalition v. Township of Wall ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 21-2060
_______________________
SHARK RIVER CLEANUP COALITION,
Appellant
v.
TOWNSHIP OF WALL; ESTATE OF FRED MCDOWELL,
JR.
_______________________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 3-17-cv-08049
District Judge: Honorable Brian R. Martinotti
__________________________
Argued June 16, 2022
Before: HARDIMAN, SMITH, and FISHER, Circuit Judges
(Filed: August 24, 2022)
John P. Brennan, Jr. [ARGUED]
Suite 1
227 East Bergen Place
Red Bank, NJ 07701
Counsel for Appellant
M. James Maley, Jr.
Erin E. Simone [ARGUED]
MALEY GIVENS
1150 Haddon Avenue
Suite 210
Collingswood, NJ 08108
Counsel for Appellee Township of Wall
John J. Novak [ARGUED]
3 Franklin Avenue
Toms River, NJ 08753
Counsel for Appellee Estate of Fred McDowell, Jr.
__________________________
OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.
The Clean Water Act empowers citizens to sue for
violations of the Act, 33 U.S.C. § 1365(a)(1), subject to one
key condition. Before going to federal court, a citizen-suit
plaintiff must “give[] notice of the alleged violation” to the
2
“alleged violator,” and also to the U.S. Environmental
Protection Agency and to the state in which the alleged
violation occurs. 33 U.S.C. § 1365(b)(1)(A). Once the
plaintiff has provided the required notice, it must wait sixty
days before suing. Id.; Hallstrom v. Tillamook Cnty., 493 U.S.
20, 23 n.1, 26 (1989) (in holding that the Resource
Conservation and Recovery Act’s notice requirement “is a
mandatory, not optional, condition precedent for suit,”
referencing its Clean Water Act analogue at 33 U.S.C.
§ 1365(b)).
The sixty-day period following notice “gives the alleged
violator ‘an opportunity to bring itself into complete
compliance with the Act and thus . . . render unnecessary a
citizen suit.’” Pub. Int. Rsch. Grp. of N.J., Inc. v. Hercules,
Inc., 50 F.3d 1239, 1246 (3d Cir. 1995) (quoting Hallstrom,
493 U.S. at 29). But if the alleged violation continues
notwithstanding the notice, the statutory regime authorizes a
“citizen suit [as] the vehicle to achieve compliance.” Id.
The parties to the citizen suit before us do not dispute
whether Plaintiff Shark River Cleanup Coalition, a non-profit
citizen’s group, delivered a notice letter alleging a Clean Water
Act violation. Rather, they contest whether the contents of the
Cleanup Coalition’s Notice satisfy the more granular
3
requirements set forth by EPA regulation. 1 Under the
applicable regulation,
Notice regarding an alleged violation of an effluent
standard or limitation or of an order with respect thereto,
shall include sufficient information to permit the
recipient to identify the specific standard, limitation, or
order alleged to have been violated, the activity alleged
to constitute a violation, the person or persons
responsible for the alleged violation, the location of the
alleged violation, the date or dates of such violation, and
the full name, address, and telephone number of the
person giving notice.
40 C.F.R. § 135.3(a) (emphasis added).
In Hercules, we read the plain text of the regulation 2 as
requiring notices to provide “enough information to enable the
recipient”—here, Defendants Township of Wall and the Estate
of Fred McDowell, Jr.—to identify “the components of an
alleged violation.” 50 F.3d at 1248 (“We read the regulation
to require just what it says[.]”). Thus, although we observed in
Hercules that it would have been “helpful” to the defendant if
the plaintiff’s notice had provided more “detailed information”
1
See 33 U.S.C. § 1365(b) (“Notice under this subsection shall
be given in such manner as the Administrator [of the EPA]
shall prescribe by regulation.”).
2
The text of 40 C.F.R. § 135.3(a) is unchanged since we
interpreted it in Hercules.
4
regarding the alleged violation, we held that “such specificity
[wa]s not mandated by the regulation.” Id. at 1247. Following
the principles we articulated, several of our sister courts of
appeals have also concluded that citizen-suit plaintiffs need not
“list every specific aspect or detail of every alleged violation.”
Paolino v. JF Realty, LLC, 710 F.3d 31, 38 (1st Cir. 2013)
(quoting Hercules, 50 F.3d at 1248); Friends of the Earth, Inc.
v. Gaston Copper Recycling Corp., 629 F.3d 387, 400 (4th Cir.
2011) (quoting same language); Waterkeepers N. Cal. v. AG
Indus. Mfg., Inc., 375 F.3d 913, 917 (9th Cir. 2004) (same).
In this case, the District Court erred under Hercules by
requiring the Cleanup Coalition to provide more than what was
“enough” information for Defendants to identify the location
of the alleged violation. 50 F.3d at 1248. Yet the Cleanup
Coalition’s Notice was deficient on another ground: It did not
“include sufficient information to permit [Defendants] to
identify the specific standard, limitation, or order alleged to
have been violated[.]” 40 C.F.R. § 135(a). Accordingly, we
will affirm the District Court’s dismissal of the Cleanup
Coalition’s citizen suit. 3
3
The District Court had jurisdiction over this citizen suit
pursuant to 28 U.S.C. § 1331 and 33 U.S.C. § 1365(a). We
have jurisdiction over the Cleanup Coalition’s timely appeal
under 28 U.S.C. § 1291.
5
I
A.
In 1991, Wall Township recorded with the Monmouth
County Clerk’s Office an Amended Declaration of Taking,
establishing by eminent domain a “permanent” subterranean
easement on the property of the Estate that was to be used for
an underground municipal sewer line system. JA-V1 00426.
The Declaration described “a strip of land 25.00 feet in width”
and “containing 3.5 acres,” JA-V1 00436, delineated by metes
and bounds, and spanning a total distance that we will assume
adds up to three miles. 4 The Estate’s nearly 500-acre property
4
The Township asserted in its summary judgment filings that
the easement is three miles long, a distance more favorable to
its case than its candid admission on appeal that it is in fact
6,000 feet long. And the Cleanup Coalition did not object to
the Township’s earlier assertion before the District Court.
Because the District Court relied on the Township’s
representation, Shark River Cleanup Coal. v. Twp. of Wall,
No. 17-8049, 2021 WL 1712310, at *7 (D.N.J. Apr. 30, 2021)
(“the undisputed contents of the Notice set forth general
violations of the [Clean Water Act] at unspecified locations
throughout an over three-mile easement” (emphasis added)
(citing the Township’s summary judgment filings)), for
purposes of deciding this appeal we assume the truth of the
Township’s representation during summary judgment
proceedings that the easement is three miles long.
6
from which the easement was taken is largely undeveloped and
“thickly wooded.” D. Ct. Dkt. 41-1, at 3 ¶¶ 20–22.
Two decades later, in 2015, a hiker 5 who was traversing
the Estate’s property discovered that portions of the
underground sewer line no longer remained underground. He
passed along his discovery to the president of Shark River
Cleanup Coalition, James McNamara, and the two of them
together then visited the site of the protruding sewer line.
After learning of the exposed line from McNamara, the
Cleanup Coalition decided to investigate. In April 2016, its
counsel submitted a public records request to the Township,
requesting: “All documents creating [the] sanitary sewer
easement on [the Estate’s] property, evidencing [the]
installation of [the] sanitary sewer on [the] property,
evidencing maintenance of [the] sanitary sewer on [the]
property for the period 2000 to present.” JA-V1 00440. After
a back-and-forth with the Township’s Director of Engineering
and Planning, who informed the Coalition’s counsel that the
Township did not possess the requested records, the Cleanup
Coalition obtained some of the sought-after records from
Monmouth County.
While considering whether to file a citizen suit, the
Cleanup Coalition dispatched McNamara to reexamine the
sewer line condition. When he attempted, by himself, to return
to the site in question in July 2016, McNamara “got lost” at
first, but he “kept on plugging along” and eventually located
5
The hiker was never identified by name in the litigation.
7
the exposed sewer line. JA-V1 00159–00160. McNamara then
photographed the sewer line condition on his cell phone and
presented the photos to the Cleanup Coalition’s membership.
Subsequently, in October 2016, the Cleanup Coalition
directed its counsel to prepare and serve the Township and the
Estate with a Notice of Intent to Commence Suit under the
Clean Water Act’s citizen-suit provision.
B.
The Cleanup Coalition’s Notice alleged that, due to the
failure of the Township and the Estate to take preventative
measures, “historic and continuing” erosion of the ground
surrounding the buried sewer line released “large areas of
sand” 6 into the nearby Shark River Brook, a tributary of the
Shark River. JA-V1 00020, 00024. According to the Notice,
the erosion resulted in “[s]everal sections” of the buried line
becoming exposed such that they were “‘flying’ in the air
without support.” JA-V1 00020.
The Notice further contended that the release of the fill
surrounding the sewer line into the Shark River Brook violated
the Clean Water Act, although it did not specify the section of
6
The Clean Water Act defines “pollutant” to include “solid
waste” and “sand.” 33 U.S.C. § 1362(6). The Cleanup
Coalition’s expert would later opine that the erosion appeared
to release “a solid waste-like material, maybe an ID27,
consisting of brick, plastic,” and possibly “asphalt,” into the
Shark River Brook. JA-V2 00620.
8
the Act that had allegedly been violated. By contrast, the
Notice made a full page of references to various New Jersey
statutes and to several provisions of the New Jersey
Administrative Code, without explaining how those state
statutes and regulations related to its citizen suit. It was not
until later in the litigation that the Cleanup Coalition explained
that it was claiming that the release was an unauthorized
discharge of pollutants in violation of 33 U.S.C. § 1311(a)—
what the Township has referred to as a “general violation” of
the Clean Water Act. Township’s Br. at 22.
The Notice also failed to provide the exact, or even
approximate, location of the sewer line’s exposed condition.
But it did point out that, according to Monmouth County’s
deed records, the sewer line easement recorded by the
Township was 25-feet wide, “run[ning] from Campus Parkway
in an easterly 7 direction across the [Estate’s] Property to the
Garden State Parkway over 3.15 miles (16,341 feet) distant.”
JA-V1 00019.
7
Although the record before us is unclear, it appears that in one
unsuccessful attempt to locate the site of the alleged violation,
the New Jersey Department of Environmental Protection
(“NJDEP”) inspector and a representative of the Estate who
searched for the site began their attempt moving in a westerly
direction. JA-V2 00686 (deposition testimony of the NJDEP
inspector, who explained that the mine operator contracting
with the Estate, who accompanied him during one attempt, told
him to head “west” to reach the sewer line pump station).
9
And, in a section describing the “dangerous condition”
created by erosion of the fill surrounding the sewer line, the
Notice promised that photos of the condition would be
“available upon request.” JA-V1 00020. Much to the
Township’s and the Estate’s consternation, the Cleanup
Coalition’s counsel did not respond to either Defendant’s
requests for the photos. Neither did counsel offer a justifiable
excuse for failing to do so. It was not until the parties’ initial
litigation conference, which took place several months after the
Coalition had filed suit in federal court, that the Cleanup
Coalition provided the photos.
Proceeding without the benefit of the photos,
representatives of the Township and the Estate tried and failed
on several occasions to locate the site in question, although the
Cleanup Coalition disputes the thoroughness of their searches.
An inspector from the NJDEP, who was responsible for
investigating the sewer line condition described in the Cleanup
Coalition’s notice, was also unable to find the site during his
first few attempts. 8
Yet the NJDEP inspector testified that he started his
unsuccessful searches from the inaccessibly wooded side of the
Estate’s property, which led into impassible sections of the
path along the sewer line easement. Had he started his earlier
searches from the other end of the property, as he did when he
eventually located the site of the exposed sewer line, it appears
8
The inspector indicated in his deposition that his priority
during one attempt was inspecting an active mine site on
another part of the Estate’s property.
10
that locating the site would have been much easier. According
to the inspector, had the Township’s and Estate’s
representatives begun their searches from the road on the other
end of the easement, and “[h]ad they walked the easement”
from there, “they certainly would have seen the exposed pipe.”
JA-V2 00716–17. Although the photos he eventually received
gave him a “much narrower search area,” it was learning the
right starting point for his walk along the easement—starting
from the “east side of the haul road” instead of from the pump
station—that allowed him to locate the site of the sewer line
condition. JA-V2 00710–11.
When the Township and the Estate were unable to
locate the sewer line condition described in the Notice, and
after their requests for the photos of the site were met with no
response, neither Defendant took further action. The Estate’s
executor “figured [the sewer line condition] couldn’t be too
bad” if the Cleanup Coalition was not going to send him “a
picture.” JA-V2 00825. The Township’s engineer concluded
“there was nothing . . . further to do” if the Cleanup Coalition
would not respond to his request for the photos. JA-V2 00788.
C.
In October 2017, a year after serving its pre-suit Notice,
the Cleanup Coalition sued the Township and the Estate in
federal court, alleging a Clean Water Act violation relating to
the same sewer line condition it complained of in its Notice to
Defendants. The Complaint was materially the same in content
as the Notice, down to its general invocation of the entire Clean
11
Water Act in lieu of a reference to any specific provision of the
Act.
As was the case with the Cleanup Coalition’s Notice,
the Complaint failed to provide the specific or approximate
location of the alleged violation. Yet even though the
Complaint’s content was essentially the same as the Notice’s,
and even though the Complaint failed to include the alluded-to
photos of the sewer line condition, the Township was soon able
to locate the site in question within weeks of being sued.
On November 1, 2017, after the Cleanup Coalition had
served its Complaint on Defendants earlier that day, Township
employees confirmed with one another that the Township had
never received the photos of the sewer line condition it had
requested from the Cleanup Coalition. On November 17,
2017, apparently without the benefit of the Cleanup Coalition’s
photos, two other Township employees “found the site.”
D. Ct. Dkt. 41-1 at 32 ¶¶ 144–45.
D.
During the litigation, the parties took substantial
discovery not only on the merits of the Cleanup Coalition’s
claim but also on the sufficiency of its Notice. On Notice-
related matters, the parties deposed the NJDEP inspector, who
by then had retired from the NJDEP and joined the Cleanup
Coalition’s board of trustees; representatives from the
Township and the Estate; and the parties’ expert witnesses.
Concurrently, the parties developed and implemented a
plan to remediate the complained-of section of the sewer line
12
that both sides agreed was suspended in the air. In 2019, the
Township completed its work under the plan. The Cleanup
Coalition does not contest that the Township fixed the portion
of the sewer line that protruded from the ground. Its only
remaining dispute with Defendants is with respect to their
alleged failure to “take any action to address the contaminated
soils discharged into the Shark River” or to “prepare or
circulate a proposal for future inspection and maintenance of
the remediation site.” D. Ct. Dkt. 41-1 at 37–38, ¶¶ 175-76.
In the last quarter of 2020, the parties briefed cross-
motions for summary judgment on both notice and merits
issues. In granting summary judgment for Defendants, the
District Court reached only the adequacy of the Cleanup
Coalition’s Notice. It determined that the Cleanup Coalition’s
Notice was defective in failing to identify the complained-of
site’s location along the “over three-mile easement.” Shark
River Cleanup Coal., 2021 WL 1712310, at *7. Because the
Cleanup Coalition did not provide a more specific location, and
because it did not respond to Defendants’ requests for
additional information, the District Court concluded that the
Cleanup Coalition’s Notice offended the policy of the Clean
Water Act’s notice provision by failing to provide Defendants
with “enough information to bring itself into compliance with
the Act.” Id. at *6–7. 9
9
In addition to deeming the Notice insufficient for failure to
adequately describe location, the District Court concluded that
the Notice’s failure to specify the dates of the alleged violation
also justified dismissal for failure to provide sufficient notice.
13
Accordingly, the District Court dismissed the Cleanup
Coalition’s Clean Water Act claim for failure to provide
sufficient notice. This timely appeal followed.
II
Sufficiency of a citizen-suit notice is a legal question:
one that we have characterized as whether a “jurisdictional
prerequisite” has been satisfied. 10 Hercules, 50 F.3d at 1251.
Shark River Cleanup Coal., 2021 WL 1712310, at *7 n.15.
Neither Defendant raises the Notice’s description of the dates
of the alleged violations as a basis for affirmance.
Accordingly, we do not reach the issue.
10
The statutory notice requirement in 33 U.S.C. § 1365(b) is
not explicitly framed in terms of jurisdiction, and in fact it
follows 33 U.S.C. § 1365(a), which is the subpart of the statute
that is labeled “jurisdiction.” Further, the requirements with
respect to the notice’s contents are set forth by EPA regulation,
not by an act of Congress. See 40 C.F.R. § 135.3(a).
Although we recognize the tension between our previous
characterization of the notice requirement as jurisdictional and
subsequent instruction from the Supreme Court regarding the
proper application of the “jurisdictional brand,” Henderson ex
rel. v. Shinseki, 562 U.S. 428, 435 (2011) (citation omitted),
we note that it would make no difference in this appeal whether
notice is better characterized as quasi-jurisdictional, e.g.,
Lockett v. EPA, 319 F.3d 678, 682 (5th Cir. 2003)
(characterizing the notice requirement as “more procedural
14
So we apply de novo review to the District Court’s dismissal 11
of the Cleanup Coalition’s action for failure to provide
than jurisdictional”). Adequacy of notice is a legal question
even if it is not strictly jurisdictional. E.g., Gaston Copper
Recycling, 629 F.3d at 400 (describing sufficiency of notice as
a “legal defense”).
The question of whether notice is jurisdictional would matter
only if Defendants were invoking jurisdictional arguments’
unique immunity from attack on grounds of forfeiture or
waiver. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)
(“[S]ubject-matter jurisdiction, because it involves a court’s
power to hear a case, can never be forfeited or waived.”
(citation and quotation marks omitted)). Here, however, there
is no question that Defendants have preserved their notice
arguments.
11
We construe the District Court’s dismissal of the Cleanup
Coalition’s action, for failure to provide sufficient notice, as
one pursuant to a Rule 12 motion to dismiss, although
Defendants pursued their notice arguments in motions for
summary judgment. See IFC Interconsult, AG v. Safeguard
Int’l Partners, LLC, 438 F.3d 298, 308 (3d Cir. 2006)
(construing a party’s filing by its “substance,” not its “form”).
A sufficiency-of-notice defense should be pursued instead via
a Rule 12(b)(1) motion to dismiss because we have deemed
notice jurisdictional. Even if notice is characterized as quasi-
jurisdictional, a Rule 12(b)(6) motion would be the better
vehicle for raising a sufficiency-of-notice defense because
15
adequate notice. See, e.g., ONRC Action v. Colum. Plywood,
Inc., 286 F.3d 1137, 1142 (9th Cir. 2002) (reviewing “the
citizen suit notice de novo” for compliance with 40 C.F.R.
§ 135.3).
Because the parties have taken discovery on the
sufficiency of the Cleanup Coalition’s Notice—sufficiency
being a “functional, fact-dependent, and case-specific inquiry,”
Paolino, 710 F.3d at 34, notwithstanding its legal nature—we
review Defendants’ attack on the Cleanup Coalition’s Notice
as a “factual challenge.” Hartig Drug Co. v. Senju Pharm. Co.,
836 F.3d 261, 268 (3d Cir. 2016) (discussing standard for
factual challenges to subject matter jurisdiction). In doing so,
we as an appellate panel “weigh the evidence” with respect to
the Notice’s sufficiency. Id.; see also Paolino, 710 F.3d at 36.
III
With respect to the Notice’s description of the location
of the alleged violation, 12 we apply Hercules and conclude that
the Notice “include[d] sufficient information to permit
notice is “‘a mandatory, not optional, condition precedent for
suit[.]’” Hercules, 50 F.3d at 1249 (quoting Hallstrom, 493
U.S. at 26) (emphasis added).
12
In its answering brief, the Estate raises only insufficiency of
the Notice with respect to location as a basis for affirmance,
whereas the adequacy of the Notice’s description of the
location is one of several grounds for affirmance presented by
the Township.
16
[Defendants] to identify . . . the location of the alleged
violation[.]” 50 F.3d at 1247 (quoting 40 C.F.R. § 135.3(a)).
Because the alleged violation was located along the
Township’s underground sewer line on an easement taken
through eminent domain from the Estate, we hold Defendants
to what should have been their “superior ability to ascertain the
location[] of [the violation] that might be at issue.” 13
Ecological Rts. Found. v. Pac. Gas & Elec. Co., 713 F.3d 502,
519 (9th Cir. 2013). Although we note that the parties have not
settled the Defendants’ respective obligations to inspect the fill
surrounding the sewer line, it seems likely under New Jersey
law that the Township would have “an implied right to do what
is reasonably necessary” to maintain the line, Twp. of
Piscataway v. Duke Energy, 488 F.3d 203, 211 (3d Cir. 2007)
(quoting Tide-Water Pipe Co. v. Blair Holding Co., 202 A.2d
405, 412 (N.J. 1964)), and that the Township would have the
responsibility for its maintenance in light of its acquisition of
the easement by eminent domain. 14 Accordingly, the Cleanup
13
Like our concurring colleague, we credit the Township and
Estate with having searched in good faith for the site of the
alleged violation. See Concurrence, infra. We merely hold
that, under the circumstances of this case, they should have
been able to locate the site in question because it was along the
Township’s own easement over the Estate’s property. It makes
no difference that the Cleanup Coalition had better access to
the Township’s easement records than did the Township itself.
14
See Alexander v. Nat’l Fire Ins. of Hartford, 454 F.3d 214,
223 (3d Cir. 2006) (“[W]hen there is any ambiguity or
uncertainty about an easement grant, the surrounding
17
Coalition’s reference to the public records of the easement was
“enough”—if just barely—to permit Defendants, particularly
the Township, to find the location in question. Hercules, 50
F.3d at 1248.
The Township’s own conduct is strong evidence of the
Notice’s sufficiency with respect to location. After the
Cleanup Coalition filed suit, the Township found the site of the
alleged violation in a matter of weeks—with no more
information on its location than the reference to the entire
easement found in both the Notice and the Complaint. The
post-Complaint actions undertaken by the Township were not,
to use the words of the Seventh Circuit, “the actions of a
[defendant] that has not received enough information for
purposes of the statutory notice provisions of the [Clean Water]
Act.” Atl. States Legal Found., Inc. v. Stroh Die Casting Co.,
116 F.3d 814, 820 (7th Cir. 1997).
We do not rest our holding on the Township’s post-
Complaint actions alone. We also note that, notwithstanding
the site in question’s location within a heavily wooded area
along a long easement, the Notice required no more of
Defendants than was asked of other citizen-suit defendants by
notices deemed sufficient by other circuits and district courts.
In Ecological Rights Foundation, the notice alleged violations
circumstances, including the physical conditions and character
of the servient tenement, and the requirements of the grantee,
play a significant role in the determination of the controlling
intent [with respect to the duty to repair].” (quoting Hyland v.
Fonda, 129 A.2d 899, 904 (N.J. Super. Ct. App. Div. 1957)).
18
over “four counties” without identifying each offending
location, 713 F.3d at 519, yet the Ninth Circuit determined that
the notice sufficiently described the locations, “especially”
because the plaintiff identified “representative” sites and
“referenced [the defendant’s] superior ability to ascertain the
locations of other [sites] that might be at issue.” Id.; cf.
Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth., 4 F.4th 63,
77 (1st Cir. 2021) (concluding that a notice that did not include
the “precise origin” of the alleged release of pollutants was
sufficient because the defendant possessed “maps, plans, and
investigative tools to trace the source of the [alleged
violation]”). Similarly, in Benham v. Ozark Materials River
Rock, LLC, the Tenth Circuit concluded that a notice
sufficiently apprised the defendant of the locations of the
alleged violations in a wetlands area because it referred to “a
road [along the wetlands] identified by description and aerial
photograph.” 885 F.3d 1267, 1274 (10th Cir. 2018). And, in
a case bearing close factual resemblance to this dispute, a
district court held that a notice that referred simply to
“numerous discharge[] points” in an entire underground water
system on a 31-acre facility sufficiently notified the defendants
of the locations of the alleged violations. Cal. Sportfishing
Prot. All. v. Shiloh Grp., LLC, 268 F. Supp. 3d 1029, 1051
(N.D. Cal. 2017). We decline to hold the Cleanup Coalition to
a standard more demanding than that applied by our sister
courts. See Gaston Copper Recycling, 629 F.3d at 399–400
(“Although the notice requirements for citizen suits brought
under the Clean Water Act are strict and specific, we
nevertheless agree with the cautionary reasoning of other
circuits warning against an overly technical application of
regulatory requirements.” (citing Hercules, 50 F.3d at 1248;
Waterkeepers, 375 F.3d at 917)).
19
We do not disagree with our concurring colleague that
the Cleanup Coalition could have provided additional location
information that would have been “helpful” to Defendants.
Hercules, 50 F.3d at 1247. The photos of the sewer line
condition would have at least narrowed Defendants’ searches
for the site of the alleged violation, and the Cleanup Coalition’s
failure to supply them to Defendants upon request leaves us at
a loss for why it decided against such a simple act of
professional courtesy. We also recognize that, because of the
ubiquity of technology capable of “effortlessly” collecting
“cell phone location information,” Carpenter v. United States,
138 S. Ct. 2206, 2216 (2018), it probably would not have been
burdensome for the Cleanup Coalition to have taken the site’s
geographic coordinates. We take the Cleanup Coalition at its
word, though, that McNamara, who photographed the site in
question, was unaware that smart phones are capable of
recording geolocation data. 3d Cir. No. 21-2060, Dkt. 44 (the
sworn declaration of the Cleanup Coalition’s president that he
“had no knowledge whatsoever about any photo location
feature that might be on [his smart phone]”). 15 Finally, we note
15
Under the circumstances of this case, we are willing to
excuse the Cleanup Coalition’s failure to return to the site and
record the geographic coordinates of the site through other
means, as the Estate suggested during oral argument that it
could have done. Oral Argument at 1:10:09–1:10:16 (“Even if
he only had a compass, or a sundial, a bearing and distance
from the pump house would have been invaluable.”).
The Estate, after all, represented at argument that it sought to
press trespassing charges against the hiker who informed the
20
that nothing prevented the Cleanup Coalition from offering to
bring Defendants to the alleged violation’s location.
Yet our focus must be on the Notice itself. Its
description of the location of the site in question satisfied 40
C.F.R. § 135.3(a)’s minimum requirements. Although it
would have been courteous and helpful for the Cleanup
Coalition to have offered greater assistance to Defendants, we
observe that the law is often limited in its ability to enforce
norms of “professional collegiality” among litigants, even
though “[t]he extension of normal courtesies and exercise of
civility expedite litigation and are of substantial benefit to the
administration of justice.” Marcangelo v. Boardwalk Regency,
47 F.3d 88, 90 (3d Cir. 1995).
IV
Although the Notice was sufficient to permit
Defendants to locate the site of the alleged violation, it was
defective in another, key respect: It did not “provide enough
information to enable the recipient, i.e., [Defendants], to
identify the specific effluent discharge limitation which has
been violated, including the parameter violated[.]” (first
emphasis added)).” Hercules, 50 F.3d at 1248 (“We read the
Cleanup Coalition of the location of the alleged violation. Id.at 1:10:51–1:11:04 (“To be candid, my client was so upset
about being dragged into this lawsuit that he asked me to try to
find the identity of the hiker, preferably within the one-year
statute of limitations, to charge that person, he or she, with
trespassing.”).
21
regulation to require just what it says[.]”). Thus, we will affirm
the dismissal of the Cleanup Coalition’s citizen suit on this
alternative ground—although it was not reached by the District
Court. Panzarella v. Navient Sols., Inc., 37 F.4th 867, 872
(3d Cir. 2022) (“We may affirm on any basis supported by the
record[.]” (internal quotation marks and citation omitted)).
We acknowledge that the citizen-suit regulation only
requires notices to “include sufficient information to permit the
recipient to identify the specific standard, limitation, or order
alleged to have been violated [and] the activity alleged to
constitute a violation,” 40 C.F.R. § 135.3(a) (emphasis added),
and so a notice is not necessarily deficient under the regulation
for failure to invoke a section or part of the Clean Water Act.
We also acknowledge that not all citizen groups will retain
counsel at the time of preparing a notice of intent to commence
suit under the Clean Water Act; under such circumstances, we
would “liberally construe” the citizen group’s “pro se filings.”
Beasley v. Howard, 14 F.4th 226, 231 (3d Cir. 2021). Here,
however, the Notice was prepared by counsel. And it referred
not just to the entire Clean Water Act but also to many
unrelated New Jersey statutes and regulations. Thus, the
Cleanup Coalition’s Notice was not “enough” to apprise
Defendants of its intention to claim a general violation of 33
U.S.C. § 1311(a), Hercules, 50 F.3d at 1248—an intention it
did not make clear until later in this litigation.
If the Cleanup Coalition’s Notice “contain[ed]
individual sentences . . . that g[a]ve Defendants some
appropriate information” that would have permitted them to
identify the alleged violation, those sentences were “deeply
buried” within a plethora of references to New Jersey statutes
22
and regulations bearing no relevance to the Cleanup
Coalition’s case. Karr v. Hefner, 475 F.3d 1192, 1206
(10th Cir. 2007). We reiterate that a citizen-suit notice must
provide the “alleged violator . . . with enough information to
be able to bring itself into compliance.” Hercules, 50 F.3d at
1249. Here, because the Notice left Defendants guessing as to
the claimed violation—because it presented a legal theory
vague enough to encompass “all possible attacks” on the
defendant’s conduct, ONRC Action, 286 F.3d at 1143—it did
not adequately apprise Defendants of “the specific standard,
limitation, or order alleged to have been violated.” 40 C.F.R.
§ 135.3(a).
The Notice did little to explain what part of the Clean
Water Act was allegedly being violated. Accordingly, it
denied Defendants a fair opportunity to determine how they
should respond to the concerns then raised by the Cleanup
Coalition.
VI
The Notice provided enough information for
Defendants to locate the site of the alleged violation, yet its
description of the alleged violation left the Defendants
guessing as to what section or sections of the Clean Water Act
they had allegedly violated. Thus, we will affirm the dismissal
of the Cleanup Coalition’s citizen suit for failure to provide
sufficient notice.
23
Shark River Cleanup Coalition v. Township of Wall, et al.,
No. 21-2060
______________
HARDIMAN, Circuit Judge, concurring.
The Court holds that Shark River Cleanup Coalition
sent the Township of Wall and the Estate of Fred McDowell,
Jr. a Notice of Intent to Commence Suit (Notice) under the
Clean Water Act, 33 U.S.C. § 1251 et seq., that failed to
“include sufficient information to permit the recipient to
identify the specific standard, limitation, or order alleged to
have been violated.” 40 C.F.R. § 135.3(a). I agree with my
colleagues that because the “Notice did little to explain what
part of the Clean Water Act was allegedly being violated,” it
“denied Defendants a fair opportunity to determine how they
should respond to the concerns then raised by the Cleanup
Coalition.” Op. at 23. Consistent with our precedent, Judge
Smith’s cogent opinion for the Court clarifies that such Notice
must “provide enough information to enable the recipient . . .
to identify the specific effluent discharge limitation which has
been violated, including the parameter violated.” Pub. Int.
Rsch. Grp. of N.J., Inc. v. Hercules, Inc., 50 F.3d 1239, 1248
(3d Cir. 1995). It cannot leave defendants “guessing as to the
claimed violation.” Op. at 23.
My colleagues correctly note that Notice need not
“identify every detail of a violation.” Hercules, 50 F.3d at 1247(“While there is no doubt that such detailed information is
helpful to the recipient of a notice letter in identifying the basis
for the citizen suit, such specificity is not mandated by the
regulation.”); Op. at 4–5. But “[a] general notice letter that fails
sufficiently to inform its recipients of the violations upon
which a citizen intends to bring suit will not conform to the
Act’s requirement.” Hercules, 50 F.3d at 1248. In lieu of a
“specific” standard or limitation, the Cleanup Coalition’s
Notice provided citations to the entire Clean Water Act, 33
U.S.C. § 1251 et seq., and the entire federal code section for
EPA regulations governing water quality standards, 40 C.F.R.
§ 131. 1 The Notice also makes passing reference to sundry
New Jersey environmental protection laws and administrative
code sections implicating surface water quality. 2 Those federal
and state laws cover nearly two thousand pages. It should go
without saying that such vast expanses of federal and state
codes cannot be “the provision of law alleged to be violated.”
1
When asked “where in the Notice is the specific standard
referenced,” the Cleanup Coalition’s counsel admitted, “There
is no specific standard inasmuch as it is a violation of the
statute.” Oral Argument at 45:44. Counsel further
acknowledged: “The standard is not in the Notice.” Oral
Argument at 46:38. To his credit, counsel confessed that he
“did not have the regulation” when he drafted the Notice. Oral
Argument at 44:40.
2
The state environmental protection laws cited in the Notice
include: (1) Water Quality Planning Act, N.J. Stat. Ann.
§ 58:11A-1 et seq.; and (2) Water Pollution Control Act, id.§ 58:10A-1 et seq. App. 23. The state administrative code
sections cited include: (1) Surface Water Quality Standards,
N.J. Admin. Code § 7:9B; (2) Pollutant Discharge Elimination
System, id. § 7:14A; (3) Freshwater Wetlands Protection Act,
id. § 7:7A; (4) Coastal Zone Management, id. § 7:7; (5) Flood
Hazard Area Control, id. § 7:13; (6) Stormwater Management,
id. § 7:8; and (7) Water Quality Management Planning, id.
§ 7:15.
2
Hercules, 50 F.3d at 1247 & n.10. By definition, those general
citations do not provide “sufficient information” for recipients
to “identify the specific standard, limitation, or order alleged to
have been violated.” 40 C.F.R. § 135.3(a) (emphasis added);
Hercules, 50 F.3d at 1248.
* * *
Although my colleagues and I agree that the Notice
failed to describe the standard violated, we part ways about the
Notice’s sufficiency as to location. They conclude that “the
District Court erred under Hercules by requiring the Cleanup
Coalition to provide more than what was ‘enough’ information
for Defendants to identify the location of the alleged
violation.” Op. at 5 (quoting Hercules, 50 F.3d at 1248). In my
view, the District Court did not err when it held that the Notice
insufficiently described “the location of the alleged violation.”
40 C.F.R. § 135.3(a).
“The purpose of notice to the alleged violator is to give
it an opportunity to bring itself into complete compliance with
the Act and thus . . . render unnecessary a citizen suit.” Friends
of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 175 (2000) (cleaned up); see Hercules, 50 F.3d at 1249(same). In this regard, the Cleanup Coalition’s Notice was an
utter failure. The Township’s administrator explained the
situation well:
If somebody had the decency to tell us we could
have corrected it before all this energy went
through and a nonprofit organization incurred
the cost of an attorney and so on and so forth
because I would assume the goal was to get a
potential problem fixed, not to have this lag on
3
for years and run up bills on both sides of the
equation.
App. 747–48. The New Jersey Department of Environmental
Protection (NJDEP) agreed. Had the Township and the Estate
known the location of the alleged violation, they would have
corrected the problem. App. 673, 703 (“I [the NJDEP
employee] had two cooperative entities that I thought would be
able to fix it. Never dreamed it was going to come to this.”).
My colleagues conclude that the Township and the
Estate should have been able to identify “the location of the
alleged violation,” based on the Cleanup Coalition’s Notice,
because they controlled the sewer easement. 40 C.F.R.
§ 135.3(a); Op. at 17–18 (“the Cleanup Coalition’s reference
to the public records of the easement was ‘enough’—if just
barely—to permit Defendants, particularly the Township, to
find the location in question” (emphasis added) (quoting
Hercules, 50 F.3d at 1248)). They do so despite several
admissions by Cleanup Coalition members about the Notice
and its many deficiencies. For starters, the NJDEP employee
tasked with inspecting the Estate’s property—who is now a
member of the Coalition—admitted that the Notice provided
no “specific site” for the alleged violation. App. 699. He also
had trouble following the sewer line. App. 680 (“You couldn’t
follow the sewer line at various points. . . . I just think it was
inaccessible.”). That civil servant’s experience was typical. In
fact, the Cleanup Coalition’s president “got lost” trying to find
the exposed sewer pipe. App. 159. Like the NJDEP employee,
he admitted that the Notice provided no “exact location.” App.
396. And the Cleanup Coalition’s attorney admitted that the
Notice, which he drafted, could not have provided more
specific information about the location of the alleged violation:
4
“We didn’t have any other specific information.” Oral
Argument at 1:07:07.
So what did the Notice say about the location of the
alleged violation? Only that it was located on the Estate’s
484.97-acre, densely wooded property, along the Township’s
three-mile-long, 25-foot-wide easement. Any information
relevant to identifying the location, or nature, of the alleged
violation can be found in only one paragraph of the Cleanup
Coalition’s seven-page letter. That paragraph reads, in full:
Several sections of the sewer pipe have been
undermined and are “flying” in the air without
support. (Photos available upon request). This
condition threatens the structural integrity of the
active sanitary sewer pipe within a short reach of
the Shark River Brook. Furthermore, in other
locations, due to the installation of the pipe and
failure to maintain the easement and the
activities being conducted by the owner of the
property, large areas of sand have “washed out”
and infiltrated and discharged into the Shark
River Brook. These conditions are violations of
the Clean Water Act.
App. 20. Woodland erosion left a section of the Township’s
sewer pipe exposed—not damaged or leaking, though partly
suspended above the ground. But the Notice fails to specify
where the exposed section could be found. The Notice also
refers to mysterious “other locations” where sand had
“discharged into the Shark River Brook.” App. 20. Those
locations remain unidentified.
5
The lack of disclosure just described reflects the
Cleanup Coalition’s conduct throughout this dispute. From the
very beginning, requests from the Estate’s executor and the
Township’s chief engineer for “the photos and locations of the
areas of concern,” App. 850, 856—supposedly “available upon
request,” App. 20—were met with silence from the Cleanup
Coalition’s attorney. Within two weeks of receiving the
Notice, the Estate’s executor wrote to counsel for the Cleanup
Coalition to request “copies of the photographs” mentioned in
the Notice and “any information you can give me regarding
where the photographs were taken.” App. 850. Counsel chose
not to respond, given his policy of “not communicat[ing] with
private parties on matters that are the subject of threatened or
actual litigation.” App. 847. He “could . . . have advised
someone” else to respond (e.g., any other member of the
Cleanup Coalition), but chose not to. Id. The Estate’s executor
sent a second letter informing the Cleanup Coalition’s attorney
that “the manager of mining operation [on the Estate’s
property] has walked the length of the easement . . . and did not
see the conditions you mentioned in your [notice] letter.
Therefore, it is imperative that I have copies of your photos and
the location where they were taken to continue our
investigation.” App. 860. Again, counsel failed to respond,
leading the Estate’s executor to reasonably conclude the Notice
was a non-issue.
Wall Township likewise struggled to locate the alleged
violation based on the Notice. The same month it received the
Notice, the Township dispatched employees to search for
exposed pipe along the easement. After multiple searches,
Township employees found nothing. The Township’s
Engineer wrote the Cleanup Coalition’s attorney requesting
“photos and locations of the areas of concern,” App. 856, but
6
counsel never responded. The Township kept searching, to no
avail. As one employee testified: “We were on a wild goose
chase hunting all along the banks of the Shark River looking
for a broken pipe.” 3
Any notion that the Estate or the Township did not make
good-faith efforts to locate the exposed pipe is belied by the
fact that the NJDEP could not locate the alleged violation based
on the Notice. In February 2017, an NJDEP employee
inspected the McDowell property. During his initial search, the
employee could not locate any exposed sewer pipe along the
easement. It took four site visits, along with “three pictures and
a little short description [from the Cleanup Coalition’s
president] of where it was,” for the employee to locate the
exposed pipe. App. 672–74. When asked why he “didn’t . . .
know where it was” earlier, the employee testified, “[b]ecause
all I had was the . . . Notice of Intent.” App. 672.
My colleagues consider the provision of “additional
location information” and “photos of the sewer line condition”
to be “a simple act of professional courtesy.” Op. at 20. But the
Notice claimed those photos were “available upon request,”
implying their necessity for anyone seeking to locate the
exposed pipe. App. 20. Counsel’s “failure to supply them to
3
The Cleanup Coalition’s president was asked, “don’t you
think if you really wanted Wall Township to know [the
location], you would have had somebody take them out and
show them where the location was?” App. 393. His response:
“We could have done that, but we didn’t,” id., based on “advice
of counsel,” App. 325. He also admitted that the Cleanup
Coalition “took the advice of counsel that there was [to be] no
response to [the Estate’s] letters” requesting the location. App.
319.
7
Defendants upon request” leaves me too “at a loss.” Op. at 20.
But counsel’s obfuscation went beyond a lack of “professional
courtesy.” Id. It precluded his client from achieving its goal
short of litigation. “The purpose of notice to the alleged
violator is to give it an opportunity to bring itself into complete
compliance with the Act and thus . . . render unnecessary a
citizen suit.” Friends of the Earth, 528 U.S. at 175; see
Hercules, 50 F.3d at 1249. The “Township’s own conduct”
may offer “strong evidence of the Notice’s sufficiency with
respect to location,” Op. at 18, but so does counsel’s lack of
disclosure and its effect on this case. If the Cleanup Coalition
had provided “additional location information” and “photos of
the sewer line condition,” Op. at 20, the Township and the
Estate could have remedied the erosion issue years ago,
rendering “unnecessary” this citizen suit. Friends of the Earth,
528 U.S. at 175. Yet here we are.
In sum, I would have affirmed the District Court on the
sufficiency of notice relative to “the location of the alleged
violation.” 40 C.F.R. § 135.3(a). The Cleanup Coalition’s
Notice was deficient in this regard, and the District Court
rightly recognized it as such. But the Notice also failed to
“include sufficient information to permit the recipient to
identify the specific standard, limitation, or order alleged to
have been violated.” Id. Because “its description of the alleged
violation left the [Township and Estate] guessing as to what
section or sections of the Clean Water Act they had allegedly
violated,” Op. at 23, the Notice was deficient. Subject to the
reservations expressed here, I join Judge Smith’s opinion for
the Court, except as to Part III.
8