United States Court of Appeals,
Eleventh Circuit.
No. 95-5080.
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, a federally recognized
Indian Tribe, Plaintiff-Appellant,
v.
UNITED STATES of America, ENVIRONMENTAL PROTECTION AGENCY, Carol
Browner, Administrator of the Environmental Protection Agency, John
Hankinson, Jr., EPA, Regional Administrator for Region IV,
Defendants-Appellees.
Feb. 10, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 95-0533-CIV-EBD), Edward B. Davis, Judge.
Before HATCHETT, Chief Judge, DUBINA, Circuit Judge, and COHILL*,
Senior District Judge.
HATCHETT, Chief Judge:
Appellant, Miccosukee Tribe of Indians of Florida (the Tribe),
filed a complaint under the citizen suit provision of the Clean
Water Act (CWA), 33 U.S.C. § 1365(a), against the United States
Environmental Protection Agency (EPA), the Administrator of the EPA
(the Administrator), and other agency officials. The Tribe alleged
that the Administrator failed to comply with its duties under the
CWA and to find Florida's water quality standards violated the
antidegradation requirements of the CWA, 33 U.S.C. § 1313(d)(4)(B).
The district court, finding the Administrator had no mandatory duty
to act, dismissed the Tribe's complaint for lack of subject matter
jurisdiction. We reverse.
BACKGROUND
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
In May 1994, the state of Florida enacted the Everglades
Forever Act (EFA), Fla. Stat. Ann. § 373.4592 (West Supp.1994).
Florida characterizes the EFA as a state legislative action to
restore and maintain the ecosystem in the Everglades. On June 21,
1994, the Tribe notified the Administrator that EFA effectively
changed Florida's water quality standards. The Tribe alleged that
the Administrator failed to require Florida to comply with the CWA
procedures for review and revision of water quality standards,
prescribed in 40 C.F.R. § 131.20 et seq., and that the EFA violated
the CWA's antidegradation requirements, 33 U.S.C. § 1313(d)(4)(B).
On September 15, 1994, the Administrator informed the Florida
Department of Environmental Protection of the Tribe's allegations.
The Administrator's letter related that if the EFA constituted a
change in state water quality standards, Florida had not submitted
the revised standards to the Administrator for review, as required
under 40 C.F.R. § 131.20(c). Florida responded that the EFA did
not change the state's water quality standards and invited further
discussions with the Administrator if she disagreed with Florida's
assessment. At the time of the commencement of the Tribe's
lawsuit, the Administrator had not disagreed with Florida's
assessment. On April 12, 1995, the Administrator agreed with
Florida's assessment that the EFA did not change the state water
quality standards.
On March l6, l995, the Tribe filed a complaint seeking
injunctive and declaratory relief against the appellees. The Tribe
brought the lawsuit under the CWA citizen suit provision, 33 U.S.C.
§ l365(a), which provides the district court with subject matter
jurisdiction over lawsuits against the Administrator for her
failure to perform any nondiscretionary act or duty under the CWA.
The Tribe also invoked jurisdiction pursuant to federal question,
mandamus, civil actions by Indian tribes, and declaratory
judgments. The Tribe sought to compel the appellees to comply with
the standards and procedures prescribed in the CWA, 33 U.S.C. §
1313(c)(2)(A), and with the procedures for review and revision of
water quality standards prescribed in the Code of Federal
Regulations, 40 C.F.R. § l3l.20, et seq. Specifically, the Tribe
sought to compel the appellees to treat the EFA as a change in
state water quality standards, to require Florida to initiate
notice and public hearings on any such change, and to find the EFA
in violation of the antidegradation requirements of the CWA, 33
U.S.C. § 1313(d)(4)(B). The appellees filed a motion to dismiss
the Tribe's complaint, pursuant to Federal Rule of Civil Procedure
12(b) for lack of subject matter jurisdiction and for failure to
state a claim.
On July 26, l995, the district court dismissed the Tribe's
complaint for lack of subject matter jurisdiction. The district
court noted that a nondiscretionary duty imposed on the
Administrator is a prerequisite for federal jurisdiction under the
CWA's citizen suit provision. The district court ruled that the
Administrator did not have a nondiscretionary duty to treat the EFA
as a change in Florida's water quality standards and propose its
own regulations, or require Florida to initiate public hearings on
Florida's alleged new regulations. Because the state had the
initial duty of promulgating water quality standards, the district
court ruled that the Administrator merely retained a supervisory
role of reviewing the state's submissions. The Administrator's
review of the state water quality standards, according to the
district court, is almost entirely dependent upon the state's own
assessment. The district court explained that Florida did not
consider the EFA as a change in state water quality standards, made
no submission to the Administrator and did not trigger the
Administrator's duty to evaluate the EFA.
ISSUE
Whether the district court erred in dismissing the Tribe's
complaint for lack of subject matter jurisdiction under the CWA
citizen suit provision, 33 U.S.C. § 1365(a).
CONTENTIONS
The Tribe contends that enactment of the EFA effectively
changed Florida's water quality standards and that the district
court should have allowed discovery before dismissing the Tribe's
complaint. Whether Florida changed the water quality standards,
the Tribe argues, required a detailed factual analysis of the
standards under the EFA and a comparison with the standards that
existed prior to the EFA. The Tribe maintains that the change in
standards under the EFA triggered the CWA procedures, requiring the
Administrator to review the EFA and force the state to comply with
the CWA. The Tribe contends that the new standards under the EFA
violate the antidegradation mandate of the CWA, 33 U.S.C. §
1313(d)(4)(B).
Appellees contend that the CWA provisions implicated here
create and confer the type of discretionary duties that courts have
found unreachable under the citizen suit provision. Appellees also
contend that the Administrator does not have a nondiscretionary
duty to enforce the CWA against Florida; that the jurisdictional
ruling in this case did not require the district court to resolve
any disputed facts; that the district court properly treated
appellees' motion as a facial attack on the sufficiency of the
complaint; and that the district court did not have to await
factual development of the record before it could determine
jurisdiction.
DISCUSSION
We review the dismissal of a complaint for lack of subject
matter jurisdiction de novo. Tamiami Partners, Ltd. v. Miccosukee
Tribe of Indians, 999 F.2d 503, 506 (11th Cir.1993). A clearly
mandated, nondiscretionary duty imposed on the Administrator is a
prerequisite for federal jurisdiction under the CWA citizen suit
provision. Preserve Endangered Areas of Cobb's History, Inc. v.
United States Army Corps of Engineers, 87 F.3d 1242, 1249 (11th
Cir.1996); Scott v. City of Hammond, Ind., 741 F.2d 992 (7th
Cir.1984). Upon review of the record, we find that the district
court erred in its determination that the Administrator had no
mandatory duty to review the EFA and comply with CWA procedures,
thus, precluding citizen suit jurisdiction under § 1365(a). We
hold that subject matter jurisdiction in this case depended on
whether the EFA changed Florida's water quality standards.
Under the CWA, 33 U.S.C. § 1313, the Administrator has a
mandatory duty to review any new or revised state water quality
standards. See Natural Resources Defense Council v. United States
Environmental Protection Agency, 16 F.3d 1395, 1399 (4th Cir.1993)
("EPA sits in a reviewing capacity of the state-implemented
standards, with approval and rejection powers only."). The
Administrator must determine whether those standards are
scientifically defensible and protective of designated uses.
Natural Resources Defense Council, 16 F.3d at 1401. If the EFA
constituted a change in state water quality standards, the CWA
required Florida to submit the changes to the Administrator. 33
U.S.C. § 1313(c)(2)(A). The Administrator would review the state's
submission, and either approve or disapprove the new or revised
standards. 33 U.S.C. § 1313(c)(3). If the new or revised
standards were inconsistent with CWA requirements, the
Administrator would notify the state and specify the changes to
meet the CWA requirements. 33 U.S.C. § 1313(c)(3). When a state
fails to adopt such changes within ninety days, the Administrator
must "promptly prepare and publish proposed regulations setting
forth a revised or new standard" for the state. 33 U.S.C. §
1313(c)(4). Unless the state adopts a standard consistent with the
CWA within ninety days of the publication, the Administrator must
promulgate the state water quality standards. 33 U.S.C. §
1313(c)(4).
After careful review, we find that the district court erred
in its jurisdictional determination. The district court
inappropriately relied on Florida's representations that the EFA
did not change Florida's water quality standards. The district
court ruled that because Florida made no submission to the
Administrator, the Administrator had no duty to evaluate the EFA.
Florida's failure to submit any new or revised standards cannot
circumvent the purposes of the CWA. See Scott, 741 F.2d at 998
("the CWA should be liberally construed to achieve its
objectives"). Even if a state fails to submit new or revised
standards, a change in state water quality standards could invoke
the mandatory duty imposed on the Administrator to review new or
revised standards. Scott, 741 F.2d at 995 ("An administrator's
duty to approve or promulgate some water quality standards might be
"nondiscretionary' within meaning of § 1365(a)(2)").
In the absence of action by the Administrator, we conclude
that the district court should have conducted its own factual
findings. Because citizen suit jurisdiction depended on whether or
not the EFA constituted new or revised state water quality
standards, invoking a mandatory duty of the Administrator, the
district court had to decide independently the effect of the EFA on
existing state standards. The district court could not simply
accept Florida's representations. Without determining the effect
of the EFA, the district court could not decide, in this case,
whether jurisdiction existed under the CWA citizen suit provision,
33 U.S.C. § 1365(a). See Lawrence v. Dunbar, 919 F.2d 1525 (11th
Cir.1990) ("the existence of subject matter jurisdiction in fact")
(citations omitted).
The district court should have treated the appellees' motion
to dismiss as a factual attack rather than a facial attack on the
Tribe's complaint for lack of subject matter jurisdiction.
Lawrence, 919 F.2d at 1528-29. Factual attacks on the district
court's jurisdiction challenge jurisdiction in fact, irrespective
of pleadings, allowing parties to submit matters outside the
pleadings, such as testimony or affidavits. The issue of fact here
would be whether the EFA changed Florida's water quality standards,
invoking a mandatory duty of the Administrator, pursuant to the
standards and procedures for review of new or revised state water
quality standards under 33 U.S.C. § 1313 and 40 C.F.R. § 131.20, et
seq. The Tribe contended, and we now accept, that the
jurisdictional question is intertwined with the merits of the
Tribe's claims. Lawrence, 919 F.2d at 1529-30. Given such
circumstances, the district court should apply a summary judgment
standard when ruling on the motion to dismiss as a factual attack
on subject matter jurisdiction. Lawrence, 919 F.2d at 1530.
CONCLUSION
Accordingly, the existence of CWA citizen suit jurisdiction
depended on whether the EFA comprised new or revised state water
quality standards. Because the district court failed to make this
determination, we reverse the district court's dismissal for lack
of subject matter jurisdiction and remand for further proceedings
consistent with this opinion.
REVERSED and REMANDED