Rauseo v. Army Corps of Engineers

United States District Court

District of Massachusetts

)

Stephanie Rauseo and Apple Hill )

Neighbors Group, )

)

Plaintiffs, )

)

v. ) Civil Action No.

) 17-12026-NMG

Army Corps of Engineers, et al., )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This suit arises out of plaintiffs’ claim that 1) Marco

Tammaro violated federal environmental laws by filling his

property with pollutants and 2) the Environmental Protection

Agency and the Army Corps of Engineers failed to investigate and

sanction Tammaro’s noncompliance with federal laws.

I. Background

A. Factual Background

Stephanie Rauseo (“Rauseo”) lives in the Apple Hill

neighborhood of Lynnfield, Massachusetts, adjacent to the

property at issue in this action (“the Property”). Rauseo,

along with a local citizens’ group, Apple Hill Neighbors Group

(“Apple Hill plaintiffs”) (collectively “plaintiffs”) allege

that Marco Tammaro (“Tammaro”), the owner of the Property,

unlawfully discharged fill into federally protected streams or

wetlands without a permit.

Consequently, plaintiffs contacted the Massachusetts

Department of Environmental Protection (“DEP”), the Lynnfield

Planning Board, the Environmental Protection Agency (“EPA”) and

the Army Corps of Engineers (“the Corps”). Specifically,

plaintiffs complained to the EPA that Tammaro had violated the

Clean Water Act (“the CWA”) to no avail. In 2016, plaintiffs

discovered that Tammaro’s developer, Peter Ogren (“Ogren”),

provided notice to the Corps that the activities on the Property

were exempt from Section 404 of the CWA. In response,

plaintiffs urged the New England Engineer of the Corps to

enforce the CWA, claiming that neither an individual nor a

general Section 404 permit authorized Tammaro’s work on the

Property.

In November, 2016, the Corps visited the Property without

notifying plaintiffs and allegedly made a final Jurisdictional

Determination (“JD”) with respect to the Property. They have

since averred that the Property abuts a conservation area and

that the two water streams that run across the Property and into

the conservation area are waters of the United States that are

subject to EPA drinking water regulations under the Safe

Drinking Water Act (“the SDWA”).

In November, 2017, plaintiffs sent a 60-day Notice of

Intent to Sue (“NOI”) under the CWA and the SDWA to Tammaro,

representatives of the Commonwealth, the DEP, the U.S.

Department of Justice and the EPA. Although plaintiffs did not

name the Corps in its NOI, they filed an amended complaint with

this Court in April, 2018, in which they allege: CWA violations

against Tammaro (Count I), CWA violations against EPA and the

Corps (“the federal defendants”) (Count II), SDWA violations

against Tammaro and the federal defendants (Count III), APA

procedural violations against the federal defendants (Count IV),

APA substantive violations against the federal defendants

(Counts V and VII), improper ex parte communications against all

defendants (Count VI) and Sunshine Act violations against the

federal defendants (Count VIII). Pending before this Court are

motions of the federal defendants and of Tammaro to dismiss for

lack of jurisdiction and failure to state a claim.

II. Analysis

A. Legal Standard

1. Failure to State a Claim

To survive a motion to dismiss under Fed. R. Civ. P.

12(b)(6), a complaint must contain sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible

on its face”. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). In considering the merits of a motion to dismiss, the

Court may look only to the facts alleged in the pleadings,

documents attached as exhibits or incorporated by reference in

the complaint and matters of which judicial notice can be taken.

Nollet v. Justices of Trial Court of Mass., 83 F. Supp. 2d 204,

208 (D. Mass. 2000), aff’d, 248 F.3d 1127 (1st Cir. 2000).

Furthermore, the Court must accept all factual allegations

in the complaint as true and draw all reasonable inferences in

the plaintiff’s favor. Langadinos v. Am. Airlines, Inc., 199

F.3d 68, 69 (1st Cir. 2000). If the facts in the complaint are

sufficient to state a cause of action, a motion to dismiss the

complaint must be denied. See Nollet, 83 F. Supp. 2d at 208.

Although a court must accept as true all the factual allegations

contained in a complaint, that doctrine is not applicable to

legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Threadbare recitals of legal elements which are supported by

mere conclusory statements do not suffice to state a cause of

action. Id. Accordingly, a complaint does not state a claim for

relief where the well-pled facts fail to warrant an inference of

any more than the mere possibility of misconduct. Id. at 1950.

2. Lack of Jurisdiction

With respect to a motion to dismiss pursuant to Fed. R.

Civ. P. 12(b)(1), plaintiff bears the burden of establishing

subject matter jurisdiction. Justiniano v. Soc. Sec. Admin., 876

F.3d 14, 21 (1st Cir. 2017). Under Fed. R. Civ. P. 12(b)(1),

the district court must construe the complaint liberally,

treating all well-pleaded facts as true and indulging all

reasonable inferences in favor of the plaintiff. Aversa v.

United States, 99 F.3d 1200, 1209–10 (1st Cir. 1996).

A plaintiff may not, however, rest merely on “unsupported

conclusions or interpretations of law”. Washington Legal Found.

v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. 1993).

Subjective characterizations or conclusory descriptions of a

scenario that could be overcome by unpled facts will not defeat

a motion to dismiss. Murphy v. United States, 45 F.3d 520, 522

(1st Cir. 1995).

B. Motion to Dismiss by Federal Defendants

1. Jurisdiction

The federal defendants argue that the citizen suit

provision of the CWA does not explicitly waive the government’s

sovereign immunity interest because plaintiffs have failed to

demonstrate that a clearly mandated, nondiscretionary duty

applies. Plaintiffs respond that the EPA and the Corps have

failed to perform the following “mandatory” duties: 1) enforce

the CWA, 2) issue a compliance order to Tammaro and 3)

investigate plaintiffs’ complaints against Tammaro.

A waiver of sovereign immunity must be unequivocal and

Sections 505(a)(2) and 1449(a) of the CWA and the SDWA

explicitly waive sovereign immunity with respect to

nondiscretionary duties of the EPA Administrator. Conservation

Law Found., Inc. v. Pruitt, 881 F.3d 24, 28 (1st Cir. 2018); 33

U.S.C. § 1365 (a)(2); 42 U.S.C. § 300j-8(a)(1)-(2). It is

clearly established, however, that an agency’s decision not to

prosecute or take enforcement action is “generally committed to

an agency’s absolute discretion”. Heckler v. Chaney, 470 U.S.

821, 831 (1985). In fact, courts have specifically held that

the EPA is not required to investigate every complaint because

it has discretion to investigate and enforce violations it

believes to be the most serious. Sierra Club v. Whitman, 268

F.3d 898, 902–03 (9th Cir. 2001); Dubois v. Thomas, 820 F.2d

943, 946–47 (8th Cir. 1987) (reversing the district court on the

grounds that EPA does not have a mandatory duty under the CWA to

make findings or carry out an investigation of a citizen

complaint).

Accordingly, because plaintiffs’ claims relate to the EPA’s

failure to issue findings with respect to alleged violations of

the CWA and SDWA, plaintiffs have failed to satisfy the

jurisdictional requirement of a “clearly mandated,

nondiscretionary duty”, thus precluding their citizen suits.

Miccosukee Tribe of Indians of Fla. v. U.S., E.P.A., 105 F.3d

599, 602 (11th Cir. 1997) (internal citations omitted); Whitman,

268 F.3d at 901 (holding that if the Administrator acted within

her discretion, the district court properly dismissed for lack

of jurisdiction under the CWA); Garling v. United States Envtl.

Prot. Agency, 849 F.3d 1289, 1296 (10th Cir. 2017) (holding that

Congress delegated broad authority to the EPA to implement and

enforce the SDWA).

For completeness, the Court proceeds to address plaintiffs’

claims under the Administrative Procedures Act (“the APA”) and

the Sunshine Act.

2. Dismissal under the APA

The APA does not independently confer subject matter

jurisdiction and thus dismissal of plaintiffs’ claims under the

CWA and the SDWA presumptively precludes plaintiffs’ APA claims.

Even if that were not so and judicial review under the APA were

appropriate, plaintiffs’ claims thereunder would fail as well.

The federal defendants allege that plaintiffs lack standing

because they make no allegations of how the government’s actions

have injured them uniquely. They fail to address that argument

but instead argue the merits of judicial review under the APA.

Standing is, of course, a threshold question in every case and

plaintiffs’ failure to demonstrate injury, causation and

redressability is grounds for dismissal. Summers v. Fin. Freedom

Acquisition LLC, 807 F.3d 351, 355 (1st Cir. 2015).

Again, assuming arguendo that plaintiffs have satisfied the

procedural hurdles of jurisdiction and standing (which they have

not), the APA authorizes judicial review of “final agency action

for which there is no other adequate remedy in a court”. 5

U.S.C. § 704. Under 33 C.F.R. § 331.2, a JD by the Corps that a

wetland and/or waterbody is subject to regulatory jurisdiction

under Section 404 of the CWA must be in writing and either be

identified as preliminary or approved. Approved JDs, unlike

preliminary JDs, are considered final agency actions and are

appealable.

Here, plaintiffs have not demonstrated that the Corps

reached an approved JD with respect to the Property and evidence

of the Corps’ written communications with Tammaro’s developer

and with Rauseo herself is not evidence of final agency action.

Cf. Bennett v. Spear, 520 U.S. 154, 177–78, (1997) (holding that

final agency action must 1) mark the “consummation” of the

agency’s decisionmaking process, and 2) the action must be one

by which “rights or obligations have been determined” or from

which “legal consequences will flow”); see also 5 U.S.C. §

551(13) (agency action is to include “the whole or a part of an

agency rule, order, license, sanction, relief, or the equivalent

or denial thereof, or failure to act”). In the clear absence of

an approved JD, plaintiffs cannot claim judicial review of a

final agency action under the APA.

Nor does the Corps’ alleged failure to provide plaintiffs

with a written explanation of its evaluation of the Property

constitute a reviewable “final action” because judicial review

of agency inaction under the APA is initiated where the inaction

occurs in the face of a nondiscretionary duty to act. Norton v.

S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (holding that a

claim under § 706(1) can proceed only where a plaintiff asserts

that an agency failed to take a discrete agency action that it

is required to take). Again, plaintiffs have not sufficiently

pled that the federal defendants failed to fulfill any mandatory

duty. As such, no judicial review of defendants’ decision to

forego an enforcement action is warranted.

To the extent plaintiffs raise a due process challenge,

they have failed to contest defendants’ argument that plaintiffs

have not been deprived of a property or liberty interest in the

first place. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

59 (1999) (holding that only after finding the deprivation of a

protected interest do courts look to see if the government’s

procedures comport with due process). Accordingly, plaintiffs’

due process claim is to no avail.

Finally, the APA prohibits ex parte communications in the

context of formal adjudications but not with respect to informal

adjudications. 5 U.S.C. § 557(d)(1)(A); Portland Audubon Soc. v.

Endangered Species Comm., 984 F.2d 1534, 1539 (9th Cir. 1993).

Pursuant to 33 C.F.R. § 325.1(b), the Corps may 1) advise

potential permit applicants of “studies or other information

foreseeably required for later federal action” and 2) involve

other affected parties, including the public, although such

communications are not required. Id. Accordingly, the Corps did

not engage in improper ex parte communications by providing

information to Tammaro or refusing to include plaintiffs as part

of their pre-application consultation discussions.

Thus, even if plaintiffs were entitled to judicial review

under the APA, for the foregoing reasons, the federal

defendants’ motion to dismiss under the APA will be allowed.

3. Dismissal under Ex Parte Contacts and the Sunshine Act

The Sunshine Act requires that certain multi-member federal

agencies conduct open meetings unless a confidentiality

exemption applies. 5 U.S.C. § 552b(a)(2). The Sunshine Act does

not apply to either the EPA or the Corps and, moreover, the

Corps has promulgated regulations with respect to pre-

application consultations which do not require public

participation. 33 C.F.R. § 325.1(b). Nor can this Court impose

procedural requirements beyond those required by statute or APA

unless required by the U.S. Constitution. Vermont Yankee Nuclear

Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 543–

45 (1978). Accordingly, plaintiffs have failed to establish a

claim of improper ex parte communications under the Sunshine

Act, the APA or the U.S. Constitution and defendants’ motion to

dismiss will be allowed.

C. Motion to Dismiss by Tammaro

1. Jurisdiction

In the context of citizen suits, compliance with the 60-day

notice provision is a mandatory condition precedent for suit

that plaintiffs must satisfy. Hallstrom v. Tillamook Cty., 493

U.S. 20, 26 (1989). Because they have failed to identify with

specificity the members, phone numbers and information of the

Apple Hill Neighbors Group (“Apple Hill plaintiffs”), Tammaro’s

motion to dismiss with respect to the Apple Hill plaintiffs will

be allowed. Garcia v. Cecos Int’l, Inc., 761 F.2d 76, 81 (1st

Cir. 1985) (strictly adhering to the statutory provisions for

citizens’ suits in environmental litigation); Washington Trout

v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995)

(holding that failure to provide notice of other plaintiffs is

grounds for dismissal because but for the notice, defendants

were not in a position to negotiate with the plaintiffs or seek

an administrative remedy).

With respect to the content of the pre-suit notice, Tamarro

argues that plaintiffs’ NOI lacks the requisite specificity

because it does not refer to: 1) a specific standard,

limitation or order violated, 2) dates of the alleged

violations, 3) the pollutants being discharged or 4) the

location of the alleged pollution.

Plaintiffs’ failure to name a particular pollutant is not

dispositive as to the sufficiency of pre-suit notice. Paolino v.

JF Realty, LLC, 710 F.3d 31, 37 (1st Cir. 2013) (holding that

while other circuits have required notice of a particular

pollutant to withstand a sufficient challenge, the First Circuit

has not explicitly adopted that position). Moreover, the CWA’s

definition of “pollutant” is broad and plaintiffs allege in

their NOI that Tammaro’s fill includes debris, pipes and

concrete. 33 U.S.C. § 1362(6) (the term “pollutant” means

dredged spoil, solid waste, incinerator residue, sewage,

garbage, sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or discarded

equipment, rock, sand, cellar dirt and industrial, municipal,

and agricultural waste discharged into water). Viewing the

record in favor of the nonmoving party, the Court finds that

plaintiffs have sufficiently provided Tammaro with notice of the

alleged pollutant.

Moreover, the Court finds that plaintiffs have pled with

sufficient specificity the violations alleged, namely, that

defendants placed fill without a permit in violation of CWA

Section 404, obstructed or filled a navigable waterway of the

United States, tampered with a public water supply, etc.

Thus, because plaintiffs’ NOI placed Tammaro on notice and

in a position to remedy the violations alleged, the Court

declines to dismiss plaintiff’s CWA claim against Tammaro on the

basis of subject matter jurisdiction. Paolino, 710 F.3d at 37.

2. Prior Violations

The CWA and SDWA do not confer federal jurisdiction over

citizen suits for “wholly past” violations. Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,

63, (1987); Mattoon v. City of Pittsfield, 980 F.2d 1, 6 (1st

Cir. 1992). Citizen suits may proceed, however, if plaintiffs

have made a good faith allegation of continuous or intermittent

violation. Gwaltney, 484 U.S. at 64. Viewing all reasonable

inferences in favor of the nonmoving party, the Court finds that

Tammaro’s alleged pollution of two streams with dirt constitutes

a continuous and ongoing violation. Accordingly, the Court

declines to dismiss plaintiffs’ claims under either the CWA or

the SDWA on the basis of wholly past violations.

3. Standing

Tammaro contends that plaintiffs have not demonstrated any

concrete or actual injury, either individually or as a group,

because the alleged interference with the streams has no direct

bearing on the plaintiffs themselves. Plaintiffs respond that

the harm is not speculative because the drinking water has

become non-potable. The Court declines to consider plaintiffs’

recently proffered water report conducted by Ms. Langham because

it is untimely and its authenticity is in dispute. Watterson v.

Page, 987 F.2d 1, 3 (declining to take judicial notice of

documents whose authenticity is in dispute). It does find,

however, that plaintiffs have sufficiently pled a cognizable

injury in their amended complaint in that they allege that the

runoff from Tammaro’s property has deposited pollutants into

plaintiffs’ drinking water.

Tammaro ultimately prevails on the other prongs of the

standing analysis, however, because plaintiffs have failed to

prove both traceability and redressability. Lujan, 504 U.S. at

560 (1992) (holding that a litigant must demonstrate that it has

suffered a concrete and particularized injury that is either

actual or imminent, the injury is fairly traceable to the

defendant and it is likely that a favorable decision will

redress that injury). In their opposition, plaintiffs concede

that even the Lynnfield Water District is unsure of the cause of

the poor drinking water quality. Thus, even if plaintiffs could

demonstrate a causal connection between Tammaro’s alleged

pollution and the cognizable harm, relief by this Court would

not remedy the alleged harm of non-potable drinking water. As

such, plaintiffs have failed to satisfy standing requirements

and Tammaro’s motion to dismiss with respect to plaintiffs’ SDWA

claim will be allowed.

4. Ex Parte Communications

As noted previously, the APA’s prohibition on ex parte

communications applies to formal adjudication and rulemaking.

Because plaintiffs’ claims do not relate to formal proceedings

and the Corps retains discretion with respect to pre-permit

communications, plaintiffs have failed to state a cause of

action with respect to improper ex parte communications.

ORDER

For the foregoing reasons, the federal defendants’ motion

to dismiss (Docket No. 57) is ALLOWED, and Tammaro’s motion to

dismiss (Docket No. 59) is, with respect to plaintiffs’ SDWA and

ex parte communications claims, ALLOWED, but is, with respect to

plaintiffs’ CWA claims, DENIED. The Apple Hill Neighbors Group

is dismissed as a party-plaintiff to this suit.

So ordered.

_/s/ Nathaniel M. Gorton____

Nathaniel M. Gorton

United States District Judge

Dated March 26, 2019