Swartz v. Beach (229 F. Supp. 2d 1239, 2002)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

BRIMMER, District Judge.

This case arises from the production of coal bed methane in Northeastern Wyoming. The matter is currently before the Court on Defendant Hemmer and Beach’s Motion to Dismiss Plaintiffs Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b) and Defendant Redstone Resources, Inc.’s Motion to Dismiss Plaintiffs Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b). Upon reading the briefs, hearing oral argument, and being fully advised of the premises, the Court FINDS and ORDERS as follows:

Statement of Parties and Jurisdiction

The Plaintiff, Ed Swartz, owns and operates a ranch in Campbell County, Wyoming. The Swartz ranch is approximately 280 acres of hay meadows irrigated by Plaintiff pursuant to his adjudicated water right on Wildcat Creek.

Defendant Gary Beach is being sued in his individual and official capacities as the Administrator of the Wyoming Department of Environmental Quality, Water Quality Division (‘WDEQ”). Defendant Dennis Hemmer is being sued in his individual and official capacities as Director of the WDEQ. (Defendants Beach and Hemmer will be collectively referred to as “State Defendants”).

Defendant Redstone Resources, Inc. (“RRI”), a Colorado corporation, is a gas company that operates in the Powder River Basin of Wyoming producing coal bed methane (“CBM”).

Background

RRI operates in the Rough Draw Field, a CBM field located near Gillette, Wyoming. The Rough Draw Field encompasses a significant portion of the Wildcat Creek drainage. Incident to its CBM operation, RRI discharges CBM process water pursuant to permits issued by the WDEQ. The WDEQ administers the National Pollutant Discharge Elimination System (NPDES) program.

In October of 1999, CBM discharge water began to flow through the Swartz Ranch in Wildcat Creek due to the operation of RRI’s CBM wells in the Wildcat Creek basin. Since October 1999, Plaintiff claims the CBM discharge water has been continuous during the winter months (October to April). As a result, during the summer months (April to September) Wildcat Creek has an insufficient flow of water to enable Plaintiff to irrigate his ranch. Plaintiff further contends that the CBM discharge water flowing in Wildcat Creek through his ranch is unsuitable for irrigation and has caused permanent soil damage because of the elevated salinity and sodium absorption ratio (“SAR”) in the CBM discharge water. Plaintiffs hay meadows were not irrigated in 2000 and 2001 because of the lack of water or when water was available its high salinity.

Plaintiff alleges that as a consequence of the CBM discharge water the channel vegetation in Wildcat Creek has been killed or replaced by salt-tolerant species that are less valuable as forage. Further, the increased salinity has altered the soil composition of the channel to an extent that it is unlikely that the channel will be capable of sustaining the vegetation it once supported. Plaintiff contends that if he used the CBM discharge water with high salinity for irrigation purposes it would: (1) reduce crop production; (2) increase soil salinity over time further decreasing and preventing crop production; and (3) permanently alter the soil composition which would prevent the land from sustaining its current vegetation. Thus, Plaintiff claims he has been deprived of his adjudicated water right and that his property is being permanently damaged by RRI’s CBM discharge water.

Since the CBM discharge water began flowing through Plaintiffs property in Wildcat Creek he has made a number of requests, without avail, to have the State Defendants remedy the situation. Specifically, Plaintiff alleged that notwithstanding several complaints about the CBM discharge water to Defendant Beach, the WDEQ did not take any action until it finally performed an investigation in August 2000. On October 25, 2000, the preliminary report of this investigation found extensive salt deposits in the stream channel; however, the WDEQ took no further action. On January 26, 2001, Plaintiff formally requested that Defendant Beach “take action” pursuant to the Wyoming Environmental Quality Act and the Water Quality Regulations. Defendant Beach informed the Plaintiff that he could do nothing until he received the final results from the August investigation.

In March 2001, the final report of the August investigation was released. The final report disclosed that the Wildcat Creek had SAR levels of 10 (Plaintiff claims an informal acceptable level is 6) and EC levels of 5,160. As a result of the final report, Defendant Beach asked Defendant RRI to rectify these concerns before any informal enforcement action would occur. No further action was taken by Defendants Beach or RRI. On February 15, 2002 Plaintiff wrote to Defendant Hemmer requesting a response to the unanswered Petition for Review by the Director of WDEQ. Hemmer never responded to that request. Plaintiff claims Hemmer has not taken any action to remedy RRI’s ongoing pollution of Wildcat Creek.

Plaintiff further contends that he has attempted to review the NPDES permit files for CBM producers in the Wildcat Creek drainage for the past two years. Plaintiff maintains that Daily Monitoring Reports (“DMR”) were absent from most files and when the files were made complete several facts became apparent: (1) WDEQ was not timely reviewing data that would be the basis for permit compliance submitted by CBM producers; and (2) that the data was not available to determine permit compliance.

On December 29, 2001, twelve of RRI’s permits for CBM wells in the Wildcat Drainage were set to expire. Before the re-issuance of the permits, a public comment period was held. Plaintiff attended the comment period and discussed the alleged damage to his ranch and provided scientific data to support his allegation. Nevertheless, a day after the comment period ended, the permits were re-issued to RRI on January 1, 2002.

The permits issued to RRI on January 1, 2002 contained new restrictions on the discharge of CBM water. The permits provided that after April 1, 2002, the CBM discharge water’s salinity level was not to exceed 2000 EC. The salinity of the discharge water was to be measured where Wildcat Creek entered Plaintiffs ranch. Plaintiff alleges that water samples taken from the Wildcat Creek in April 2002 indicated EC levels above 2000. Additionally, Plaintiff contends that a WDEQ investigator determined that RRI was in violation of its permits. However, the State Defendants still did not take any enforcement action.

In his Second Amended Complaint, Plaintiff has alleged the following causes of action against the State Defendants: (1) Taking of Private Property Without Just Compensation by failing to perform their statutory and regulatory duties to remedy the damage caused by RRI (Fourth Cause of Action); (2) Taking of Private Property Without Due Process of Law because State Defendants inaction has resulted in a violation of substantive and procedural due process rights under the United States and Wyoming Constitutions (Fifth Cause of Action); (3) Preliminary and Permanent Injunction to restrain State Defendants from allowing RRI and other producers of CBM in the Wildcat Drainage from discharging water in such a way as to violate Plaintiffs constitutional rights, federal environmental laws, and state environmental laws (Seventh Cause of Action).

Plaintiff has alleged the following causes of action against RRI: (1) Nuisance for continuously discharging water from its CBM operations onto the Swartz Ranch causing an unwarranted, unreasonable, and unlawful injury to Plaintiffs use of the land (First Cause of Action); (2) Trespass for RRI’s discharge of water from its CBM operations onto the Swartz Ranch without the Plaintiffs consent, which has caused damage and interfered with Plaintiffs exclusive possessory interest (Second Cause of Action); (3) Clean Water Act (“CWA”) violation for RRI’s discharge of CBM process water in a manner that has caused the degradation of Wildcat Creek and for violating the terms of its NPDES permits (Third Cause of Action); and (4) Preliminary and Permanent Injunction against RRI to prevent the continued discharge of water from its CBM wells directly or indirectly into Wildcat Creek or otherwise preventing tainted water from reaching Plaintiffs property (Sixth Cause of Action).

Additionally, Plaintiff has sought punitive damages against all Defendants, claiming they have acted in a willful and wanton manner (Eighth Cause of Action).

Procedural Background

Plaintiff filed his initial Complaint in this matter on March 14, 2002. On April 19, 2002, before Defendants had answered the Complaint, Plaintiff filed an Amended Complaint which added his claim for punitive damages. The State Defendants and RRI filed independent Motions to Dismiss on May 3, 2002. On June 11, 2002 this Court entered an order granting Plaintiffs Motion for Leave to File a Second Amended Complaint and striking the previously set hearing. On July 5, 2002 RRI and the State Defendants filed independent Motions to Dismiss Plaintiffs Second Amended Complaint. On August 5, 2002 Plaintiff filed his Response to the Defendants’ Motions to Dismiss. On August 23, 2002 this Court heard oral argument by all the parties on the various Motions to Dismiss.

Legal Standards

I.Fed.R.Civ.P. 12(b)(6) Legal Standard.

A federal district court may dismiss a cause of action for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) only when it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 356 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Yousef v. Reno, 254 F.3d 1214, 1219 (10th Cir.2001). The district court must assume plaintiffs allegations are true and construe them liberally in the light most favorable to him. Conley, 355 U.S. at 45-46, 78 S.Ct. 99; Grossman v. Novell, Inc., 120 F.3d 1112, 1118 (10th Cir.1997). The district court’s function on a Rule 12(b)(6) motion is to assess whether the plaintiffs complaint alone is legally sufficient to state a claim on which relief may be granted. Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999). In so assessing, the district court is not to weigh potential evidence that might be presented or determine who will ultimately prevail; rather, the issue is whether the plaintiff is entitled to offer evidence to support his claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

II. Fed.R.Civ.P. 12(b)(1) Legal Standard.

The party invoking federal jurisdiction has the burden of proving by a preponderance of the evidence that jurisdiction exists. United States ex. rel. Holmes v. Consumer Ins. Group, 279 F.3d 1245, 1249 (10th Cir.2002). A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may take two forms. When a defendant makes a facial attack on the complaint’s allegations, which challenges the sufficiency of the complaint, the district court will accept the plaintiffs allegations as true. Cal. Cas. & Fire Ins. Co. v. Brinkman, 50 F.Supp.2d 1157, 1161 (D.Wyo.1999). If, however, the defendant goes beyond the allegations contained in the complaint and challenges the facts upon which subject matter jurisdiction depends, the district court will not presume the truthfulness of the plaintiffs allegations and has wide discretion to consider other documents to resolve the jurisdictional question. Id.

III. Fed.R.Civ.P. 12(b)(7) Legal Standard.

On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(7), the movant bears the burden of: (1) producing evidence showing the nature of the interest possessed by an absent party; and (2) that the protection of that interest will be impaired if the party is not joined. Citizen Band Potawatomi Indian Tribe v. Collier, 17 F.3d 1292, 1293 (10th Cir.1994). The movant can satisfy this burden by providing the district court with extra-pleading evidence, such as affidavits of persons having knowledge of the absent parties’ interests. See id. A Rule 12(b)(7) motion will not be granted on the “vague possibility that persons who are not parties may have an interest in the action.” Sunrise Fin. v. Painewebber, Inc., 948 F.Supp. 1002, 1006 (D.Utah 1996) (internal quotations and citations omitted).

Analysis

I. State Defendants’ (Beach and Hemmer) Rule 12(b) Motion to Dismiss Plaintiffs Complaint.

A. State Defendants’ Motion to Dismiss for Lack of Subject Matter and Personal Jurisdiction Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(2) based on Eleventh Amendment Immunity.

State Defendants argue they are entitled to Eleventh Amendment immunity. Therefore, they assert Plaintiffs Second Amended Complaint should be dismissed because this Court lacks personal and subject-matter jurisdiction. (Defs.’ Rule 12(b) Mot. to Dismiss Pl.’s Second Am. Compl., ¶ 1, at 2-3). Plaintiffs Seventh Cause of Action seeks to enjoin State Defendants from continuing to permit RRI and other CBM producers from discharging water into Wildcat Creek in a way that violates (1) Swartz’s constitutional rights, (2) the environmental laws of the United States, and (3) the laws of the State of Wyoming. (Pl.’s Second Am. Compl., ¶ 64(2), at p. 16).

1. The Eleventh Amendment.

The Eleventh Amendment provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend -XI. The Eleventh Amendment restricts a federal court’s subject-matter jurisdiction by proscribing suits against an unconsenting state by citizens of another state. Id.; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The Supreme Court has interpreted the Eleventh Amendment to embody the principle of sovereign immunity. Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Hans v. Louisiana, 134 U.S. 1, 10, 20, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Accordingly, the Supreme Court has held that the Eleventh Amendment also bars suits against a state brought by a citizen of that state. Id. at 727-28, 119 S.Ct. 2240. Moreover, the Eleventh Amendment and the principle of sovereign immunity that it embodies bar suits brought against state officials when the state is the real, substantial party in interest. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

2. Limitations on Eleventh Amendment Immunity.

Eleventh Amendment immunity is not absolute. See Estes v. Wyo. DOT, 302 F.3d 1200, 1201 (10th Cir.2002). The Tenth Circuit has explained that there are “two clearly recognized exceptions to the general immunity protections of the Eleventh Amendment: (1) a state may consent to be sued, or (2) Congress may clearly and expressly abrogate the states’ immunity.” Elephant Butte Irrigation Dist. of New Mexico v. D.O.I., 160 F.3d 602, 607 (10th Cir.1998). Additionally, a plaintiff may obtain relief against a state under the Ex parte Young doctrine notwithstanding a state’s sovereign immunity. ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1188 (10th Cir.1998). Both parties recognize, and this Court agrees, that the central issue in determining whether the Eleventh Amendment cloaks the State Defendants with immunity is the Ex parte Young doctrine.

3. The Ex Parte Young Doctrine.

Under the Ex Parte Young doctrine, a federal district court can retain jurisdiction over a suit against a state official in his official capacity to prevent a continuing violation of federal law. Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985). Hence, “when a party seeks only prospective equitable relief-as opposed to any form of money damages or other legal relief ... the Eleventh Amendment generally does not stand as a bar to the exercise of the judicial power of the United States.” ANR Pipeline Co., 150 F.3d at 1188 citing Ex parte Young, 209 U.S. 123, 158-59, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

To determine whether the Ex Parte Young doctrine applies, a district court must look at the relief sought by the plaintiff. Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir.1995). The Eleventh Amendment bars a suit that seeks retroactive relief because in such instances the State, as opposed to the named-official, is the real, substantial party in interest. Id. Conversely, suits that seek prospective relief are permitted because those suits are deemed to be against the official and not the sovereign state. Id.

Plaintiff has alleged that the State Defendants’ refusal to enforce the CWA has resulted in an unconstitutional taking of his property. (Pl.’s Second Am. Compl., at ¶¶ 36, 38, 66, 67, 72). To determine whether the Ex parte Young doctrine applies, this Court must look at the relief Plaintiff seeks. Plaintiffs Seventh Cause of Action seeks prospective injunctive relief against the State Defendants to prevent them from continuing to violate federal and state environment laws and the Constitution. Therefore, the Ex parte Young doctrine allows this Court to retain jurisdiction over Plaintiffs Seventh Cause of Action.

Plaintiffs Complaint also includes a “cause of action” for punitive damages against “[a]ll defendants.” (Pl.’s Second Am. Compl., ¶¶ 66(2), 67(2), at p. 16; see also Pl.’s Combined Resp. to All Defs.’ Mots, to Dismiss Pl.’s Second Am. Compl., at p. 2). To the extent Plaintiff seeks monetary damages against the State Defendants in their official capacities for past violations of the CWA, the claim is barred by the Eleventh Amendment. However, a “ ‘suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally.’ ” Comforth v. Univ. of Okla. Bd. of Regents, 263 F.3d 1129, 1133 (10th Cir.2001) quoting Alden v. Maine, 527 U.S. 706, 757, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999); Meade v. Grubbs, 841 F.2d 1512, 1526 n. 16 (10th Cir.1988). Therefore, Plaintiffs request for punitive damages against the State Defendants in their individual capacities for their alleged unconstitutional takings shall be allowed to proceed.

4. Limitations on the Ex parte Young Doctrine.

There are several limitations on the Ex parte Young doctrine. Frazier v. Simmons, 254 F.3d 1247, 1253 n. 2 (listing the six limitations on the Ex parte Young doctrine). However, only three of these limitations are relevant to the State Defendants’ Rule 12(b)(1) motion to dismiss.

a. Requiring a state official to comply with state law.

It is well established that a federal district court cannot retain jurisdiction over a suit that seeks to require a state official to comply with state law. Pennhurst, 465 U.S. at 106, 104 S.Ct. 900; Frazier, 254 F.3d at 1253 n. 2.

Plaintiffs “Seventh Cause of Action” requests that this Court enjoin State Defendants from continuing to permit RRI to discharge CBM water “in such a way as to violate ... the environmental laws of ... the State of Wyoming.” Consistent with the Eleventh Amendment, this Court cannot retain jurisdiction over any claims that seek to require a state official to comply with state law. -Therefore, State Defendants’ Motion to Dismiss Plaintiffs Seventh Cause of Action for lack of jurisdiction is GRANTED IN PART as to the request that this Court enjoin State Defendants from continuing to discharge CBM water in violation of the laws of the State of Wyoming.

b. Seminole Tribe Limitation.

Federal courts should not invoke the judicially created Ex parte Young doctrine “where Congress ‘has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right ... [.]’ ” ANR Pipeline Co., 150 F.3d at 1189 quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). This limitation imposes an obligation on federal courts “to examine Congress’ stated intent with respect to the scope of statutory remedies that may be available” when the Ex parte Young doctrine is implicated. Id. In so examining,

[t]he crucial inquiry is whether Congress has expressed an intent, through some kind of statutory scheme, to limit or prevent potential remedies in a private cause of action even though broader remedies might otherwise be available against the state through the Ex parte Young rule. If so, then .. .the federal courts are not ordinarily free to go beyond that congressional intent.

Id. (emphasis added).

For example, the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2710, and the Tax Injunction Act, 28 U.S.C. § 1341, are statutory schemes in which Congress has expressed an intent to limit potential remedies even though broader remedies might have been available against the State under the Ex parte Young doctrine. Seminole Tribe, 517 U.S. at 74-75, 116 S.Ct. 1114; ANR Pipeline Co., 150 F.3d at 1191. Namely, pursuant to the IGRA, a federal court only has the power to issue an order directing the State and Indian Tribe to enter into a compact within a statutorily prescribed time. 25 U.S.C. § 2710(d)(7). Likewise, the Tax Injunction Act limits the power of the federal courts to issue certain types of remedies pertaining to the assessment, levy, or collection of state taxes. 28 U.S.C. § 1341. As a re-suit, the remedies available to litigants under IGRA and the Tax Injunction Act are “significantly narrower” than the remedies that would, have been available under the Ex parte Young doctrine.

On the other hand, if a statutory scheme does not limit the role or power of the federal district court, then jurisdiction under the Ex parte Young doctrine is not precluded. On three occasions, the Tenth Circuit has concluded that jurisdiction under Ex Parte Young was not precluded by a statutory scheme that did not limit the role or power of the district court to grant certain types of relief. See, e.g., Ellis v. Univ. of Kan. Med. Center, 163 F.3d 1186 (10th Cir.1998); MCI Telecommunications Corp. v. Public Service Comm’n of Utah, 216 F.3d 929 (10th Cir.2000); Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir.2002).

In Ellis, the plaintiff brought an action alleging the state-defendant violated her constitutional rights and 42 U.S.C. §§ 1981, 1983, and 1985. 163 F.3d at 1189. The defendant-state argued that under Seminole Tribe'it was impermissible to seek injunctive relief against a public official on the basis of a federal statute that does not abrogate the state’s Eleventh Amendment immunity. Id. at 1196. The Tenth Circuit rejected this broad reading of Seminole Tribe; instead, it held: (1) that because §§ 1983 and 1985 did not create any substantive rights, but merely enforced existing constitutional and federal statutory rights, the Seminole Tribe analysis was inapposite; and (2) that § 1981 did not contain a detailed remedial scheme designed to limit or prevent potential remedies that a federal court could issue. Id. at 1197. The Tenth Circuit explained that there was “nothing in § 1981 that shows Congress intended to limit or bar remedies generally available to an aggrieved party.” Id. at 1198; see also, MCI Telecommunications, 216 F.3d at 939-40 (holding section 252 of the Telecommunications Act, which provides aggrieved parties with a private cause of action, was not precluded by Seminole Tribe limitation on the Ex parte Young doctrine).

Similarly, in Ingram, the Tenth Circuit held that the Adoption and Safe Families Act, 42 U.S.C. §§ 673b, 679b, 678, and the Adoption Assistance and Child Welfare Act, 42 U.S.C. § 670 et. seq., did “not provide remedial schemes sufficient to foreclose Ex parte Young, jurisdiction” because, the statutes did not provide for remedies more limited or materially different than available under Ex parte Young. 275 F.3d at 1264.

The CWA is not a statutory scheme with remedies that are “significantly narrower” than those available under the Ex parte Young doctrine. Unlike the IGRA and Tax Injunction Act, the CWA does not contain significant restrictions on the ability of a federal court to fashion certain remedies. Instead, the CWA provides that “any citizen may commence a civil action on his own behalf ... to the extent permitted by the [Eleventh [Ajmendment ....” 33 U.S.C. § 1365(a). As the Supreme Court implicitly acknowledged in Seminole Tribe, this language evidences a Congressional intent to provide a private litigant with remedies traditionally available under the Ex parte Young doctrine. See Seminole Tribe, 517 U.S. at 75 n. 17, 116 S.Ct. 1114 (comparing provisions of the IGRA and the CWA’s citizen suit provision to illustrate that, consistent with the Court’s holding, Congress could .authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme).

Consequently, several courts have permitted suits for prospective injunctive relief against state officials in order to enjoin a continuing violation of the CWA. Natural Resources Defense Council v. Cal. Dep’t of Transp., 96 F.3d 420, 423 (9th Cir.1996) (collecting cases). In Natural Resources Defense Council, the defendant-state official argued that the district court erred in denying his motion to dismiss a citizen suit under the CWA for lack of subject matter jurisdiction because he was immune from suit under the Eleventh Amendment. Id. at 421. The Ninth Circuit disagreed and held that the district court had subject matter jurisdiction over the suit because “Congress implicitly intended to authorize citizens to bring Ex parte Young suits against state officials with the responsibility to comply with the clean water standards and permits.” Id. at 424 (emphasis added).

After examining Congress’ intent with respect to the statutory remedies available in the CWA, this Court finds that Congress did not intend to limit or prevent potential remedies that might otherwise be available against the state under the Ex parte Young doctrine. The CWA’s citizen suit provision evidences Congress’ intent to allow an individual to seek the traditional remedial powers of the federal court to the “extent permitted by ■ the Eleventh Amendment.” Applying Ex parte Young does not supplant the CWA’s remedial scheme; hence, unlike the IGRA and the Tax Injunction Act, the CWA .falls within the Ex parte Young doctrine. Therefore, the Seminole Tribe limitation on the Ex parte Young doctrine does not divest this Court of jurisdiction over the claims seeking to enjoin the State Defendants from violating the CWA.

c. ■ Coeur d’Alene Tribe Limitation.

Federal courts cannot grant prospective injunctive relief under the Ex parte Young doctrine when the relief requested would implicate special sovereignty interests of the state. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 282-83, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). Thus, before a federal court can grant prospective injunctive relief against a state official it must determine: (1) whether the relief being sought against a state official implicates special sovereignty interests; and if so, (2) whether the relief requested is the functional equivalent to a form of legal relief barred by the Eleventh Amendment. ANR Pipeline, 150 F.3d at 1190; Ellis, 163 F.3d at 1198.

Since Coeur d’Alene Tribe, several state officials haled into federal court under the Ex Parte Young doctrine have argued, like the State Defendants do here, that the prospective relief sought by the plaintiff implicates “special sovereignty interests” of the state. However, the Tenth Circuit has only found the “special sovereignty interest” limitation on the Ex parte Young doctrine applicable one time. ANR Pipeline, 150 F.3d at 1193-94. Iri ANR Pipeline, the Tenth Circuit held that Kansas’ special sovereignty interests were implicated under the Tax Injunction Act because granting the plaintiffs prospective relief would, in effect, divest Kansas of its’ power to assess and levy personal property taxes and “a state’s interests in the integrity of its property tax system he at the core of the state’s sovereignty.” Id. at 1193. Second, the relief requested by the plaintiff in ANR Pipeline was the functional equivalent to a form of legal relief barred by the Eleventh Amendment; namely, “a request to ‘rectify’ property tax assessments ... is the, ‘functional equivalent’ of a money judgment against the state and it intrudes on the state’s special sovereignty interests.” Id. at 1194 n. 17. Thus, ANR Pipeline, like Coeur d’Alene Tribe, was one of the those “extreme and unusual” cases because it involved special circumstances that caused offense to the state’s sovereign authority. Elephant Butte Irrigation Dist., 160 F.3d at 612.

State Defendants argue that “Wyoming’s interpretation, management, and enforcement of it’s [sic] own environmental laws implicates special sovereignty interests” thereby bringing this case within the limitation on the Ex parte Young doctrine carved out by the Supreme Court in Coeur d’Alene Tribe. (State Defs.’ Rule 12(b) Mot. to Dismiss Pl.’s Compl., at p. 5). Plaintiff responds that Wyoming’s special sovereignty interests are not implicated in the present action because “[r]egulation of CBM discharges in . a small ephemeral stream in [Wyoming] does not ‘lie at the core of the state’s sovereignty.’” (Pl.’s Resp. to State Defs.’ Mot. to Dismiss, at p. 11).

This Court agrees that regulation of CBM discharge water under the CWA does not implicate special sovereignty interests because Plaintiffs requested relief would not change the nature of the State’s ownership and regulation of the ephemeral stream. As was the case in Branson Sch. Dist. RE-82 v. Romer, Plaintiffs “requested relief affects only limited aspects of how the state may manage [its] public lands.” 161 F.3d 619, 632 (10th Cir.2001). Moreover, even assuming Plaintiffs claims raised special sovereignty interests, Plaintiffs cause of action still does not fall within the limitation on Ex parte Young espoused by- the Supreme Court in Coeur d’Alene Tribe because the Plaintiffs requested relief is not the functional equivalent of a form of legal relief barred by the Eleventh Amendment (i.e., a quiet title action or an action for money damages). Therefore, this Court finds that the “special sovereignty interest” limitation on the Ex parte Young doctrine does not preclude Plaintiffs claims for prospective injunctive relief.

5. Conclusion.

This Court DENIES the State Defendants’ Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. This Court GRANTS State Defendants’ Rule 12(b)(1) motion to dismiss Plaintiffs Eighth Cause of Action against Hemmer and Beach to the extent -it seeks monetary damages against the State Defendants while they were acting in their official capacity. This Court GRANTS the State Defendants’ Rule 12(b)(1) motion to dismiss Plaintiffs Seventh Cause of Action to the extent the Plaintiff seeks to require State Defendants to comply with Wyoming state law. This Court DENIES the State Defendants’ Rule 12(b)(1) motion to dismiss Plaintiffs Seventh Cause of Action for prospective injunctive relief because this Court FINDS it has subject matter jurisdiction under the Ex parte Young doctrine.

B. State Defendants’ Motion to Dismiss Plaintiffs 42 U.S.C. § 1983 Claim Pursuant to Fed.R.Civ.P. 12(b)(6).

State Defendants argue that because “Plaintiff is using § 1983 as a vehicle to bring his private takings claims, which are based on alleged violations of the CWA, those claims fail as a matter of law.” (Br. in Supp. of State Defs.’ Rule 12(b) Mot. to Dismiss Pl.’s Compl., at p. 9). Specifically, State Defendants assert that under the National Sea Clammers doctrine, Plaintiffs constitutional taking claims predicated on 42 U.S.C. § 1983 are precluded by the CWA’s comprehensive enforcement scheme. Plaintiff responds that in the Tenth Circuit, the National Sea Clammers doctrine does not preclude him from bringing § 1983 claims based on independent constitutional violations. (Pl.’s Resp. to Defs.’ Mot. to Dismiss, at p. 13-14).

The National Sea Clammers doctrine provides that

[w]hen remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.... [Therefore] when a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under § 1983.

Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Assoc., 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (internal citations and quotations omitted) (emphasis added). In National Sea Clammers, the Supreme- Court concluded that the Federal Water Pollution Control Act (FWPCA) and Marine Protection, Research, and Sanctuaries Act (MPRSA) contained comprehensive enforcement schemes. Id. As a result of the FWPCA and MPRSA’s comprehensive enforcement schemes, the Court. reasoned that Congress could not have intended for the plaintiffs to be able to assert a cause of action under § 1983 alleging violations of the FWPCA and MPRSA. Id.

On one other occasion, the Supreme Court has found a statutory enforcement scheme comprehensive enough to preclude suit under § 1983. In Smith v. Robinson, the Court held that the Education of the Handicapped Act (EHA), 20 U.S.C. § 1400 et. seq., contained a comprehensive enforcement scheme that precluded the plaintiff from bringing an action under § 1983 for violations of the Equal Protection Clause. 468 U.S. 992, 1009, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). The Court reached this conclusion because the equal protection claims were “virtually identical” to the EHA claims and the EHA’s legislative history demonstrated Congress’ intent to preclude reliance on § 1983 to remedy violations of the EHA. Id. at 1009-1013, 104 S.Ct. 3457.

However, since its decisions in National Sea Clammers. and Smith the Supreme Court has limited the viability of the National Sea Clammers doctrine. See, Wright v. Roanoke Redevelopment and Housing Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987); Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990); Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). The Court has noted that “the availability of administrative mechanisms to protect the plaintiffs interest is not necessarily sufficient to demonstrate Congress intended to foreclose a § 1983 remedy.” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989).

Moreover, the National Sea Clammers doctrine does not preclude a litigant from bringing § 1983 based on independent constitutional violations. Southwest Air Ambulance, Inc. v. City of Las Cruces, 268 F.3d 1162, 1176 (10th Cir.2001) (“In this circuit we have made clear that the Court’s opinions in Sea Clammers and Smith are not understood to preclude plaintiffs from bringing § 1983 claims based on independent constitutional violations.”). In this regard, the Tenth Circuit has agreed with the Sixth Circuit that the

National Sea Clammers doctrine “speaks only to whether federal statutory rights can be enforced both through the statute itself and through section 1983”; it does not “stand for the proposition that a federal statutory scheme can preempt independently existing constitutional rights, which have contours distinct from the statutory claim.”

Seamons v. Snow, 84 F.3d 1226, 1233 (10th Cir.1996) quoting Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 723 (6th Cir.1996); see also Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir.1989) (“If a plaintiff can show a constitutional violation by someone acting under the color of state law, then the plaintiff has a cause of action under section 1983, regardless of [a statute’s] concurrent application.”).

The State Defendants argue that Plaintiffs taking “claims are not independent of, but are instead inextricably linked to the CWA” because Plaintiff alleged that their acts and omissions in issuing the NPDES permit to RRI resulted in the unconstitutional taking. (Br. in Supp. of State Defs.’ Rule 12(b) Mot. to Dismiss PL’s Compl., at p. 10). Hence, according to the State Defendants, all Plaintiff has alleged is a violation of the CWA, which the Supreme Court has already noted contains a comprehensive enforcement scheme. (Id.) Therefore, Plaintiffs suit is allegedly barred under National Sea Clammers because he is “attempting to bring a § 1983 private a right action based on the CWA .... ” (Id. at 13.) Additionally, State Defendants assert that if Plaintiff is allowed to bring his § 1983 claim, the State of Wyoming would be deprived of the administrative remedies provided in the CWA. (Id. at 10.)

The State Defendants misconstrue the nature of the Plaintiffs constitutional claims. Plaintiff “is not attempting to predicate [his] 42 U.S.C. § 1983 action on violations of the [CWA]. Instead, [he] is using 42 U.S.C. § 1983 as a vehicle to vindicate rights arising independently under the Constitution.” Classic Communications, Inc. v. Rural Telephone Service, Co., 956 F.Supp. 896, 906 (D.Kan.1996). Plaintiff has alleged, in effect, that but for the State Defendants violations of the CWA, his property would not have been unconstitutionally taken. Under Southwest Air Ambulance, Seamons, and Wadley, the National Sea Clammers doctrine would not preempt Plaintiffs independently existing constitutional rights on which he has based his § 1983 claim regardless of how comprehensive of an enforcement scheme the CWA contained. See Classic Communications, 956 F.Supp. at 906. Thus, as the Eight Circuit has explained:

Sea Clammers in no way restricts a plaintiffs ability to seek redress via § 1983 for the violation of independently existing constitutional rights, even if the same set of facts also gives rise to a cause of action for violation of statutory rights.

Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir.1997). The fact that administrative mechanisms exist in the State of Wyoming also does not preclude Plaintiff from maintaining his independent Constitutional claims in federal court. See Golden State Transit Corp., 493 U.S. at 106, 110 S.Ct. 444.

Therefore, the State Defendants? Motion to Dismiss Plaintiffs § 1983 claim is DENIED.

C. State Defendants’ Fed.R.Civ.P. 12(b)(1) and 12(b)(6) Motion to Dismiss Plaintiffs Constitutional Taking Claims for Lack of Subject Matter Jurisdiction and Failure to State a Claim.

State Defendants argue that Plaintiffs Fourth and Fifth Causes of Action, which respectively allege a taking of private property without just compensation and due process, should be dismissed for three reasons: (1) Plaintiffs claims are not ripe for federal court review; (2) Plaintiffs Fifth Cause of Action-Taking of Private Property without Due Process of Law-is subsumed by his Fourth Cause of Action alleging a Taking of Private Property without Just Compensation; and (3) Plaintiff fails to state a claim upon which relief can be granted. (State Defs.’ Rule 12(b) Mot. to Dismiss Plaintiffs Compl., at p. 20). Plaintiff responds that: (1) his taking claims are ripe for review because the State Defendants have taken “affirmative and concrete action” by improperly issuing permits to RRI which has destroyed his ranch and its economic viability; (2) his due process taking claim is not subsumed by his just compensation taking claim because State defendants have used their power in an “abusive, irrational or malicious way in a setting not encompassed by an enumerated right”; and (3) that he has stated. a claim upon which relief ■ can be granted. (Pl.’s Resp. to State Defs.’ Mot. to Dismiss, at 19-22).

State Defendants assertion that Plaintiffs takings claims are not ripe is a challenge to this Court’s subject matter jurisdiction; accordingly, if Plaintiffs claims are not ripe they must be dismissed. See Fed.R.Civ.P. 12(b)(1), 12(h)(3); J.B. Ranch, Inc. v. Grand County, 958 F.2d 306, 308 (10th Cir.1992); Bateman v. City of West Bountiful, 89 F.3d 704, 706 (10th Cir.1996). Although a challenge to a-district court’s subject matter jurisdiction is usually a threshold issue, in claims asserting an unconstitutional taking under the Fifth and Fourteenth Amendments the question is uncharacteristically intertwined with the plaintiffs allegations in his complaint. See, e.g., Rau v. City of Garden Plain, 76 F.Supp.2d 1173, 1175-76 (D.Kan.1999). As a result, this Court will not address the ripeness issue until it has addressed the State Defendants’ other arguments.

1. Plaintiffs Fourteenth Amendment Takings Cause of Action is Subsumed by his Fifth Amendment Takings Cause of Action.

The State Defendants correctly assert -that in the Tenth Circuit, Plaintiffs more generalized takings claim premised on a violation of the Fourteenth Amendment’s Due Process Clause is subsumed by his more particular takings claim premised on a violation of the Fifth Amendment’s Just Compensation Clause. Following the Supreme Court’s directive in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Tenth Circuit has consistently held that:

Because the Just Compensation Clause of the Fifth Amendment imposes very specific obligations upon the government when it seeks to take private property, we are reluctant in the context of a factual situation that falls squarely within that clause to impose new and potentially inconsistent obligations upon the parties under the substantive or procedural components of the Due Process Clause. It is appropriate ... to subsume the more generalized Fourteenth Amendment due process protections within the more particularized protections of the Just Compensation Clause.

Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir.1991); see also, J.B. Ranch, 958 F.2d at 309 (holding plaintiffs takings claims based on a violation of the procedural Due Process Clause “do not merit analysis distinct from that already discussed with respect to the Fifth Amendment claim.”); Rocky Mountain Materials & Asphalt, Inc. v. Bd. of County Comm’nrs of El Paso County, 972 F.2d 309, 311 (10th Cir.1992) (same); Bateman, 89 F.3d at 709 (holding plaintiffs due process and equal protection claims are subsumed within the more particularized protections of the Takings Clause); Rau, 76 F.Supp.2d at 1177 (holding plaintiffs substantive and procedural due process clause claims are subsumed within the Takings Clause); Anderson v. Alpine City, 804 F.Supp. 269, 275-76 (D.Utah 1992) (same).

Plaintiff, recognizing that his due process claims may not stand independently from his just compensation claim obstreperously mischaracterizes the Tenth Circuit’s holding in Miller. Plaintiff argues that in Miller “the court held that a ‘plaintiff may still state a claim for violation of substantive due process where it is alleged that the government has used its power in an abusive, irrational or malicious way in setting not encompassed by some other enumerated right [ ]’ ” thereby creating an exception to the general rule that a due process claim is subsumed by a more particular takings claim. (Pl.’s Resp. to State Defs.’ Mot. to Dismiss, at p. 20). In reality, as explained above, the court in Miller held that the plaintiffs due process claims were subsumed by his takings claim and did not create any such exception. Miller, 945 F.2d at 352-53.

Based on consistent Tenth Circuit precedent, this Court FINDS Plaintiffs more generalized Fifth Cause of Action for the Taking of Private Property Without Due Process of Law is subsumed within Plaintiffs more particularized Fourth Cause of Action for Taking of Private Property Without Just Compensation. Therefore, the State Defendants’ Motion to Dismiss Plaintiffs Fifth Cause of Action is GRANTED.

2. Plaintiff States a Claim for the Taking of Private Property Without Just Compensation.

Defendant argues that Plaintiff has failed to state a claim under the Fifth Amendment’s Taking Clause because plaintiffs complaint does not allege facts sufficient to support a “regulatory” or “physical” taking by the State. (Br. in Supp. of State Defs.’ Rule 12(b) Mot. to Dismiss Pl.’s Compl., at pp. 13-17; Br. in Supp. of State Defs.’ Rule 12(b) Mot. to Dismiss Pl.’s Second Am. Compl., at pp. 5-9). Plaintiff responds that State Defendants have effectuated a physical and regulatory taking by mal-and non-feasance in the issuance of NPDES permits, administration of their regulatory duties, and in providing Plaintiff with an adequate ability to obtain relief through the State’s administrative procedures. (Pl.’s Combined Resp. to All Defs.’ Mots.’ to Dismiss Pl.’s Second Am. Compl., at p. 6).

In pertinent part, § 1983 provides that “[e]very person who, under color of [law] ... subjects ... any citizen of the United States ... to the deprivation of any rights ... secured by the Constitution ... shall be liable to the party injured in an action at law ....” 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983 a plaintiff must allege: (1) the deprivation of a federal constitutional or statutory right; and (2) the deprivation of that right was taken under the color of state law. Johnson v. Rodrigues, 293 F.3d 1196, 1201-02 (10th Cir.2002); Summum v. City of Ogden, 297 F.3d 995 (10th Cir.2002); Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1567 (10th Cir.1993). Plaintiff has alleged that the State Defendants acted “under the color of state law” in taking Plaintiffs property and State Defendants have not challenged that assertion. (Pl.’s Second Am. Compl., at ¶ 72). Accordingly, this Court will only consider whether Plaintiff was deprived of a federal statutory or Constitutional right.

Plaintiff has alleged that the State Defendants have effectuated a physical or regulatory taking of his property without just compensation. (Pl.’s Second Am. Compl., at ¶¶ 67, 70, 72; Pl.’s Combined Resp. to All Defs.’ Mots, to Dismiss Pl.’s Second Am. Compl., at p. 6). The Fifth Amendment prohibits a state from taking a citizen’s property without just compensation. U.S. Const. amend. V; Chicago, Burlington & Quincy RR v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (applying, for the first time, a provision of the Bill or Rights-the Takings Clause-to the states). In order to demonstrate that a state has violated the Fifth Amendment, a Plaintiff must show: (1) the state deprived him of his property; and (2) that the state refused to compensate him for his loss. Miller, 945 F.2d at 352. Under the second element, failure to seek review of the government’s action pursuant to the procedures authorized by state law renders the takings claim unripe. Bateman v. City of West Bountiful, 89 F.3d 704, 706 (10th Cir.1996).

a. Plaintiffs Deprivation of Property.

Plaintiff argues that the State Defendants are “destroying” his alfalfa meadows and “ruining” his ranch for a public use-the development of CBM at the lowest possible cost (albeit by private producers)-by permitting RRI to discharge CBM process water in violation of the applicable State rules and regulations. (Pl.’s Second Am. Compl., at ¶ 72; Pl.’s Resp. to State Defs.’ Mot. to Dismiss, at p. 18). One way the government can take a citizen’s property is by physical possession or occupation. See, e.g., Loretto v. Teleprompter Manhatten CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). The Supreme Court has indicated that the government can physically take a citizen’s property through constructive possession. United States v. Causby, 328 U.S. 256, 261, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). Additionally, where water is superinduced onto private property and that water destroys the land’s usefulness, it is a taking within the meaning of the Fifth Amendment. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall) 166, 181, 20 L.Ed. 557 (1871). Thus, this Court finds that Plaintiff has alleged sufficient facts to state a claim for a physical taking by the State Defendants. Therefore, State Defendants’ Motion to Dismiss Plaintiffs Fourth Cause of Action is DENIED.

Plaintiff has also alleged a regulatory-taking. (Pl.’s Second Am. Compl., at ¶¶ 67, 72). Plaintiff argues that the State Defendants have failed to perform their statutory and regulatory obligations. (Pl.’s Resp. to State Defs.’ Mot. to Dismiss, at p. 18). The State Defendants’ nonfea-sance has resulted in the destruction and loss of the financial viability of Plaintiffs ranch. (Id at p. 21). Hence, State Defendants have, in effect, appropriated Plaintiffs property for the benefit of economic development, which in turn promotes the common good for Wyoming citizens. (Id. at 19). Plaintiff has not, however, alleged that at the current time the State Defendants’ actions have deprived him of all economically beneficial uses of his land.

Government regulation can constitute a taking if a regulation goes “too far,” which, according to Justice Holmes, occurs when that regulation makes it commercially impracticable to engage in the economic activity under consideration. See Pennsylvania Coal v. Mahon, 260 U.S. 393, 414-15, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (holding that the state regulation of coal went “too far” and constituted a taking when the regulation made it commercially impracticable to mine certain coal). The Supreme Court has, however, “ ‘generally eschewed’ any set formula for determining how far is too far, choosing instead to engage in ‘essentially ad hoc, factual inquiries.’ ” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 1481, 152 L.Ed.2d 517 (2002) quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

In the Tenth Circuit, “[a] regulation ‘goes too far’ so as to effect a regulatory taking if (1) it deprives an individual of all economically beneficial use of his or her property; or (2) it does not substantially advance state interests.” Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1576 (10th Cir.1995); see also Marshall v. Bd. of County Comm’rs, 912 F.Supp. 1456, 1472 (D.Wyo.1996). The Supreme Court recently explained that when a regulation does not deprive a plaintiff of “all” economically beneficial use of his land, the district court should perform a “more fact specific inquiry” to determine whether a regulatory taking occurred. Tahoe-Sierra Preservation Council, Inc., 122 S.Ct. at 1484. The Court instructed that this fact specific inquiry is the “Penn Central inquiry into all of the relevant circumstances in [a] particular case[].” Id. at 1485. Under the second element articulated by the Tenth Circuit in Petera, “[e]ven if a court determines that the restrictions imposed on the use of land do not completely deprive a plaintiff of all economically beneficial use of property, such restrictions could still constitute a taking if ‘it failed to substantially advance a legitimate governmental interest.’” Marshall, 912 F.Supp. at 1473 quoting Petera, 70 F.3d at 1578.

For purposes of this motion, this Court has not conducted the Penn Central inquiry because it finds Plaintiff has sufficiently alleged that the State Defendants inaction fails to advance a legitimate government interest. The Plaintiff has alleged the State Defendants have effectuated a regulatory taking by “ignoring their statutory and regulatory obligations in spite of Swartz’s many requests that they take appropriate action, and instead have permitted RRI to continue their CBM operations in such a manner as to cause an unduly harsh impact on Swartz’s use of his property.” (Pl.’s Second Am. Compl., at ¶¶ 67, 72). Taking Plaintiffs allegations as true, the State Defendants have “destroyed” Plaintiffs ranch by failing to enforce federal and state laws. This Court finds that a public official’s failure to perform its statutory and regulatory duties which results in the destruction of private property to the point it is no longer “financially viable” does not serve a legitimate state interest.

b. Ripeness.

To state a claim for the taking of private of property without just compensation in violation of the Fifth Amendment, the Plaintiff must show that he was deprived of his property and that the state refused to compensate him for the deprivation. Miller, 945 F.2d at 352. Defendant argues that Plaintiff sought compensation from the government, but failed to do so properly; therefore, because the claim was not properly filed, he did not request compensation from the State and his claim is not ripe. (Br. in Supp. of State Defs.’ Rule 12(b) Mot. to Dismiss Pl.’s Compl., at pp. 19-20). Additionally, State.Defendants assert that Plaintiffs claim is not ripe because the WDEQ has not made a final decision on the water quality standards and NPDES permits at issue. (Id. at p. 18). Plaintiff responds that there exists no procedure for him to obtain compensation for the taking of his property because he filed a claim for damages with the State pursuant to the Wyoming Governmental Claims Act and the State has failed to respond. Plaintiff further argues that § 1983 does not require him to exhaust administrative remedies and that he has suffered “an injury sufficiently concrete to permit meaningful judicial review.” (Pl.’s Resp. to State Defs.’ Mot. to Dismiss, p. at 21).

i. Plaintiffs Physical Taking Claim.

As noted above, this Court finds that Plaintiff has alleged sufficient facts to state a claim for a physical taking of his ranch property by State Defendants. In order for a claim to be ripe, the plaintiff must demonstrate: (1) the issues raised in the his complaint are “fit for judicial resolution”; and (2) that he will suffer hardship if the court withholds judicial review of those issues. Sierra Club v. Yeutter, 911 F.2d 1405, 1415 (10th Cir.1990). A plaintiff suffers hardship if, among other things, there is a direct impact on the day-to-day activities of his business. Id. Cases involving prudential ripeness requirements in regulatory takings cases are inapposite in the context of a physical takings claim. See Tahoe-Sierra Preservation Council, 122 S.Ct. at 1479 (noting that courts should not apply the Supreme Court’s “precedent from the physical takings context to regulatory takings claims.”); Bateman, 89 F.3d at 706 (noting that the ripeness standards articulated in Williams arose in a “regulatory takings claim”).

Plaintiff has alleged that the State Defendants’ constructive possession of his ranch by permitting RRI to superinduce CBM discharge water has diminished the fínáncial viability of his ranch, destroyed his property, and that the continuing discharge of CBM process water into his ranch will have a direct adverse effect on his day-to-day ranching business. (Pl.’s Second Am. Compl., at ¶¶ 67, 70, 72; Pl.’s Resp. to State Defs.’ Mot. to Dismiss, at p. 21). The Court FINDS that Plaintiff has made a sufficient allegation of an actual and concrete injury which will harm Plaintiff if this Court withholds judicial review. Therefore, Plaintiffs physical taking claim is ripe and the State Defendants’ Motion to Dismiss Plaintiffs Fourth Cause of Action is DENIED.

ii. Plaintiffs Regulatory Takings Claim.

As noted above, this Court alternatively finds that Plaintiff has alleged sufficient facts to state a claim for a regulatory taking. The Supreme Court has imposed “strict ripeness requirement[s] on landowners asserting regulatory takings .... ” Tahoe-Sierra Preservation Council, 122 S.Ct. at 1488. A plaintiff must demonstrate two things pursuant to these strict requirements before his claim will be considered ripe: (1) that the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue; and (2) the plaintiff has sought compensation through State procedures for the deprivation of his property. Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 194, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). A failure of either requirement renders plaintiffs claim unripe. Bateman, 89 F.3d at 706-707.

In Bateman, the Tenth Circuit explained these prudential ripeness requirements:

[Plaintiff] argues that he should not be required to seek review from the [administrative agency charged with implementing the challenged regulations] pri- or to filing his § 1983 action because § 1983 does not require a litigant to first exhaust administrative remedies. See Patsy v. Flordia Bd. of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). This same argument was rejected in Williamson: “The question [of] whether administrative remedies must be exhausted is conceptually distinct ... from the question [of] whether an administrative action must be final before it is judicially reviewable.” Williamson, 473 U.S. at 192, 105 S.Ct. 3108. Whereas exhaustion generally refers to the requirement that a litigant resort to available administrative or judicial procedures prior to filing a federal lawsuit, the finality requirement seeks to ensure that the issues and the factual components of the dispute are sufficiently fleshed out to permit meaningful judicial review.

Bateman, 89 F.3d at 707. The court then went on to note that it “agreed [the plaintiff] need not exhaust his available administrative remedies prior to filing a § 1983 action.” Id. at 708. However, the plaintiff in Bateman was still required to obtain a final decision from the administrative agency charged with implementing the challenged regulations. Id.

Plaintiff has satisfied both of the requirements necessary to make his takings claim ripe for review. The WDEQ has issued RRI NPDES permits. (PL’s Second Am. Compl., at ¶ 21). Plaintiff has requested a hearing before the Wyoming Environmental Quality Council (WEQC) to protest the issuance of RRI’s NPDES permits because the State allegedly issued the permits in violation of the Wyoming Environmental Quality Act and the Wyoming Administrative Procedure Act. (Br. in Supp. of State Defs.’ Rule 12(b) Mot. to Dismiss Pl.’s Compl., Ex. B). In essence, Plaintiffs complaint to the WEQC is that the rules for issuing permits are invalid and therefore RRI’s NPDES permits are invalid, (id., Ex. B, at pp. 1-4). State Defendants assert this facial challenge to the “guidance documents” for issuing NPDES permits precludes judicial review of Plaintiffs constitutional and federal statutory claims. However, the “final” agency action at issue in Plaintiffs taking and CWA claims was the issuance of the NPDES permits to RRI on January 1, 2002. This was a final decision by the WDEQ regarding how it applies the current standards to the Plaintiffs property. Hence, the factual components of the dispute are sufficiently fleshed out to permit meaningful judicial review by this Court.

The second requirement Plaintiff must satisfy in order for his takings claim to be ripe is that he sought compensation from the state for his loss and the State refused to compensate him. The Wyoming Constitution prohibits the taking of private property without just compensation. Wyo. Const, art. 1, § 33. Ah individual must file an itemized written statement with the appropriate auditor before any money can be paid out of the state treasury to satisfy any demand against the state. Wyo. Const. art. 16, § 7; Wyo. State Hwy. Dep’t v. Napolitano, 578 P.2d 1342, 1347 (Wyo.1978) (noting “Article 16, [s]eetion 7, is no more than a regulation of the procedure by which the rights guaranteed by Article I, [sjeetion 33, will be exercised.”). Further, the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101 to 1-39-121, requires that any claim made against the State should include (1) the time, place, a