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Plaintiff filed her petition in California State Court pursuant to California’s mandamus 1

provisions. See California Code of Civil Procedure (CCP) §§ 1084 et seq. Because she named

the Environmental Protection Agency, Region IX, as a real party in interest, her petition was

removed to federal court. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

COLLEEN LEAVITT, 

Plaintiff, No. CIV S-04-2468 LKK CMK 

vs.

SHASTA COUNTY BOARD OF

SUPERVISORS, simultaneously serving 

as the SHASTA COUNTY AIR

POLLUTION CONTROL BOARD;

SHASTA COUNTY AIR QUALITY 

MANAGEMENT DISTRICT,

Defendants.

KNAUF INSULATION GmbH;

SHASTA LAKE CITY COUNCIL;

ENVIRONMENTAL PROTECTION

AGENCY, REGION IX,

Real Parties in Interest FINDINGS & RECOMMENDATIONS

 /

Plaintiff, Colleen Leavitt, is proceeding pro se in this petition for a writ of

administrative mandamus. Plaintiff alleges in her petition that the certification of Knauf’s Final

1

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The fundamental purpose of CEQA is to ensure that governmental agencies regulate

2

their activities so that major consideration is given to preventing environmental damage. See

West’s Ann. Cal. Pub. Res. Code § 21000, et seq. The “heart” of CEQA is the EIR, “the

purposes of which are manifold, but chief among them is that of providing public agencies and

the general public with detailed information about the effects of a proposed project on the

environment. Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal. App. 4th

1184 (Cal. App.5th 2004.) 

At the time of hearing, a Motion to Augment the Record by the County was also 3

pending. However, a comparison of the lodged Administrative Record with the copy retained by

Sabrina Teller, counsel for the County, revealed that a copying error had resulted in Ms. Teller’s

copy missing pages that the lodged Record included. Accordingly, the Motion to Augment is

moot as the lodged Record is complete. 

2

Supplemental Environmental Impact Report( FSEIR) does not comply with the requirements of 2

the California Environmental Quality Act (CEQA), West’s Ann.Cal.Pub. Res.Code. § 21000 et

seq. (Pet. for Writ of Administrative Mandamus (Pet.), 2 ¶ 3.) She also alleges that Knauf

Insulation GmbH (Knauf) has failed to comply with air pollution standards. (Pet. 3, ¶ 5.) 

On October 11, 2005, two motions came on regularly for hearing before the

Honorable Craig M. Kellison, United States Magistrate Judge, at the United States District Court

in Redding California: (1) a motion by real party in interest Environmental Protection Agency,

Region IX (EPA), for an order granting judgment on the pleadings and; (2) a motion by

defendants Shasta County Board of Supervisors, Shasta County Air Pollution Control Board, 

Shasta County Air Quality Management District and Shasta Lake City Council (collectively,

“County”) for an order remanding the petition to state court. At the hearing, plaintiff, Colleen 3

Leavitt, appeared in propria persona. Ana Maria Martel, Assistant United States Attorney,

appeared telephonically on behalf of real party in interest EPA. Sabrina V. Teller of Remy,

Thomas, Moose and Manley, LLP appeared telephonically on behalf of defendant County and

real party in interest Knauf. Mark Norcross appeared on behalf of defendant Shasta Lake City. 

For the reasons set forth below, the undersigned recommends that real party in

 interest EPA’s motion for judgment on the pleadings be granted and that the County’s motion for

remand be granted.

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I.. Background

Plaintiff, Colleen Leavitt, is a resident of Shasta County. She owns property and

lives in Shasta Lake City, California. Her home is located within two miles of Knauf’s factory. 

Knauf proposed the construction of its Shasta Lake City insulation factor in 1997. 

The construction required state and county approval under CEQA. The City of Shasta Lake

conducted a pre-construction review pursuant to CEQA’s requirements. Finding that an

Environmental Impact Report (EIR) was necessary for the CEQA process, the city prepared and

published a draft EIR in February 1997. After several public hearings and subsequent revisions

to the draft EIR, the City certified a final EIR in October 1997. The city approved the

construction of Knauf’s factory in 1997. 

After construction of the Knauf factory, air quality tests revealed that the estimates

of emissions of Oxides of Nitrogen proposed during the original permitting process were

underestimated. In August 2003, Knauf applied for a modified permit to allow for continued

operations based on increased emissions. As part of the process mandated by CEQA, the Shasta

County Air Quality Management District (SCAQMD) and the Shasta County Air Pollution

Control Board (SCAPCB) announced that a meeting would be held to solicit public comment

regarding the proposed increase in Knauf’s emissions. Approximately eight months after the July

2004 public comment meeting, the County released a Supplemental Draft Environmental Impact

Report (SDEIR) for public comment. Plaintiff alleges that the notice and comment process was

not properly conducted. In September 2004, the County passed a resolution certifying the

adequacy of the FSEIR under CEQA, which allowed Knauf to operate at an increased emissions

level. 

On October 20, 2004, plaintiff filed the instant petition in Shasta County Superior

Court challenging the County’s certification of Knauf’s FSEIR on the grounds that the

certification process under CEQA was flawed. In the caption of her petition, plaintiff named the

EPA as a “real party in interest.” In Paragraph five of her petition, plaintiff states that the EPA

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has “yet to issue Knauf a Title V Permit to Operate, despite the fact that Knauf has been in full

production for almost three years. The issuance of Knauf’s permit to operate will be affected by

the certification of the FSEIR.” (Pet. 3, ¶ 5.) Plaintiff seeks the issuance of a temporary

restraining order, a stay or a preliminary injunction restraining EPA from proceeding with the

process of granting Knauf a Permit to Operate until the County issues a FSEIR that complies 

with CEQA. (Pet. 4-5, ¶ 13.) 

II. Analysis

EPA’s Motion for Judgment on the Pleadings

Real party in interest EPA moves to dismiss this complaint for lack of subject

matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(c). A Rule 12(c) motion for

judgment on the pleadings may be made at any time so long as it does not delay the trial. See

Fed. R. Civ. P 12(c). For a Rule 12(c) motion that attacks the face of the complaint, dismissal is

appropriate where it “appears beyond doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 

The EPA contends that it has not taken a definitive or final action upon which

plaintiff can base a cause of action against it. A cause of action against the EPA would arise

under the Administrative Procedures Act (APA), 5 U.S.C. § 704. The APA does not provide an

independent basis for federal subject matter jurisdiction, but a federal court has jurisdiction

pursuant to 28 U.S.C. § 1331 over challenges to federal agency action as claims arising under

federal law. See Gallo Cattle Co. V. United States Dept. of Agriculture, 159 F.3d 1194, 1198 (9th

Cir. 1998). When there is no other statute that provides a right of action, the APA requires the

federal agency to have taken a final action before a claim can exist. See Norton v. Southern Utah

Wilderness Alliance, 524 U.S.55 (2004). An agency’s decision not to take enforcement action is

presumed to be immune to judicial review under 5 U.S.C. § 701(a)(2). See Heckler v. Chaney,

 470 U.S. 821, 832 (1985). That presumption is rebutted when the substantive statute has

provided guidelines for the agency to follow in exercising its enforcement powers. See id. at 832-

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The undersigned notes that the only reference to EPA’s failure to act in plaintiff’s 4

petition, is her statement that the EPA has “yet to issue Knauf a Title V Permit to Operate.” 

Plaintiff does not allege that EPA is in violation of the Clean Air Act for failure to issue a permit.

5

33.

In this case, the EPA has not taken any final action. In her petition, plaintiff noted

that the EPA has “yet to issue Knauf a Title V Permit to Operate...” (Pet. 3, ¶ 5.) During the

October 11, 2005 hearing in Redding, California, plaintiff stated that it was true that the EPA has

yet to take any action, much less a final action. However, plaintiff believed that, because CEQA

includes the term “real party in interest,” she would have been “remiss” in failing to include the

EPA in her petition as a party in interest. Plaintiff stated that what she “was really challenging”

in her petition was the County’s certification of Knauf’s FSEIR. Plaintiff added that she wanted

to ensure that the EPA was aware of her challenge so that it did not issue Knauf a Permit to

Operate based on the allegedly insufficient FSEIR. It is apparent from both plaintiff’s filings and

her statements that the EPA has not taken a final action regarding Knauf’s permitting status. 

In her filings and during the October 11, 2005 hearing, plaintiff made several

references to the EPA’s failure to take any action regarding Knauf’s Title V Permit to Operate. 

Being mindful of the plaintiff’s pro se status and the duty to broadly construe her petition , the 4

undersigned considers whether the EPA’s failure to take any permitting action regarding Knauf

forms the basis for subject matter jurisdiction. See Heckler, 470 U.S. at 832 (stating that an

agency’s failure to take enforcement action is subject to judicial review when the substantive

statute has provided guidelines for the agency to follow in exercising its enforcement powers). 

However, a review of Title V of the Clean Air Act (CAA), which governs the operating permit

issuing process, does not reveal any mandatory guidelines for the EPA to act concerning Knauf’s

Title V Permit to Operate. See 42 U.S.C. §§ 7661 et seq, see also, New York Public Interest

Research Group v. Whitman, 321 F.3d 316 (2nd Cir. 2003)(stating that the EPA has discretion

under the Clean Air Act to determine whether the state agency’s administration and enforcement

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of its permitting program was inadequate). EPA’s alleged failure to act cannot, therefore, form

the basis for a cause of action against it by plaintiff. 

Accordingly, the undersigned finds that plaintiff has failed to state a cause of

action against the EPA over which this court has jurisdiction and recommends that plaintiff’s

claim against the EPA be dismissed. 

The County’s Motion to Remand

The county seeks an order remanding this action to California state court. A

district court has the discretionary power to remand a cause of action to state court in the event

that only state claims remain. See Executive Software North America, Inc. v. United States Court

for the Central District of California, 24 F.3d 1545, 1549-50 (9th Cir. 1993). As the undersigned

has recommended dismissal of the claims against the EPA, the only remaining claims in this

action arise out of CEQA, a California statute, and all the remaining parties are state and local

entities. Accordingly, the undesigned finds adjudication of this action in state court will best

serve the values of judicial economy, convenience and fairness and recommends remanding this

action to California state court. See United Mine Worders of Amercia v. Gibbs, 383 U.S. 715,

726 (1966). 

III. Conclusion

Based on the foregoing, IT IS RECOMMENDED that:

1. Real party in interest EPA’s Motion for Judgment on the Pleadings

(doc.32) be granted and this action is dismissed for lack of subject matter

jurisdiction and;

2. The Motion to Remand by defendant Shasta County Board of Supervisors,

Shasta County Air Pollution Control Board, Shasta County Air Quality

Management District and Shasta Lake City Council (doc. 42) be granted.

These findings and recommendations are submitted to the United States District

 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days

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after being served with these findings and recommendations, plaintiff may file written objections

with the court. The document should be captioned “Objections to Magistrate Judge's Findings

and Recommendations.” Plaintiff is advised that failure to file objections within the specified

time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153

(9th Cir. 1991).

DATED: October 12, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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