The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

THE BLACKSTONE HEADWATERS )

COALITION, INC. )

)

Plaintiff, )

)

v. ) Civil No. 16-cv-40053-MRG

)

GALLO BUILDERS, INC., )

RH GALLO BUILDERS, INC., )

ARBORETUM VILLAGE, LLC, )

STEVEN A. GALLO, AND )

ROBERT H. GALLO, )

)

Defendants. )

)

MEMORANDUM AND ORDER

GUZMAN, J.

I. Introduction

Plaintiff Blackstone Headwaters Coalition, Inc. (“Plaintiff”), a non-profit membership

organization, brings this action against Defendants Gallo Builders, Inc., RH Gallo Builders, Inc.,

Arboretum Village, LLC, Steven A. Gallo, and Robert H. Gallo (collectively, “Defendants”).

Plaintiff filed its Second Amended Complaint under the citizen-suit provision of the Clean Water

Act (“CWA”), 33 U.S.C. § 1365, on December 15, 2023, alleging that Defendants violated the

CWA by failing to comply with the EPA’s National Pollutant Discharge Elimination System

(NPDES) General Permit for Discharges from Construction Activities (CGP), regularly

discharging sediment-laden stormwater to tributaries of the Blackstone River.

Defendants move to dismiss the Second Amended Complaint [ECF No. 224], contending

that the Court lacks subject matter jurisdiction because they are not discharging stormwater to

“waters of the United States” within the meaning of the CWA pursuant to the framework

adopted in Sackett v. EPA, 598 U.S. 651 (2023). For the reasons that follow, Defendants’ motion

to dismiss is DENIED.

II. Legal Standard

“When a defendant moves to dismiss for lack of federal subject matter jurisdiction, [] ‘the

party invoking the jurisdiction of a federal court carries the burden of proving its existence.’”

Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007) (quoting Murphy v. United States, 45

F.3d 520, 522 (1st Cir.), cert. denied, 515 U.S. 1144 (1995)). “If the party fails to demonstrate a

basis for jurisdiction, the district court must grant the motion to dismiss.” Id. The district court

“must credit the plaintiff’s well-pled factual allegations and draw all reasonable inferences in the

plaintiff’s favor” when ruling on a Rule 12(b)(1) motion. Merlonghi v. United States, 620 F.3d

50, 54 (1st Cir. 2010) (citing Valentin, 254 F.3d at 363). A plaintiff cannot assert a proper

jurisdictional basis “merely on unsupported conclusions or interpretations of law” or

“[s]ubjective characterizations or conclusory descriptions of a general scenario which could be

dominated by unpleaded facts[.]” Murphy, 45 F.3d at 522 (citations omitted). In evaluating

whether the party has met its burden of proof, the court “may consider extrinsic materials and, to

the extent it engages in jurisdictional factfinding, is free to test the truthfulness of the plaintiff’s

allegations.” Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 37 (1st Cir. 2000).

III. Discussion

Defendants argue that because they are not discharging to “waters of the United States”

(“WOTUS”) under the framework adopted in Sackett v. EPA, 598 U.S. 651 (2023), the Court

lacks subject matter jurisdiction and must dismiss the case. [ECF No. 229]. In their view,

Defendants are only discharging to an isolated wetland that lacks the requisite continuous surface

connection to a WOTUS. Plaintiff plainly opposes these characterizations, arguing that the Court

should treat the present motion as a motion for summary judgment, given that the determination

of facts relevant to jurisdiction implicate elements of their cause of action. [ECF No. 237].

The CWA regulates the discharge of pollutants into “navigable waters.” 33 U.S.C. §§

1311, 1344. The statute defines “navigable waters” as “waters of the United States, including the

territorial seas.” 33 U.S.C. § 1362(7). The Supreme Court has held that WOTUS “include[] only

those relatively permanent, standing or continuously flowing bodies of water forming geographic

features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” Rapanos v.

United States, 547 U.S. 715, 739 (2006) (cleaned up). In Sackett v. EPA, 598 U.S. 651 (2023),

the Supreme Court clarified that WOTUS includes traditional navigable waters, “relatively

permanent” tributaries of such waters, and wetlands that are indistinguishable from such waters.

Id. at 678-79 (citing Rapanos, 547 U.S. at 742).

For a particular wetland or other body of water to be subject to CWA jurisdiction, it must

fall within the bounds of the two-part test initially established by the four-Justice plurality in

Rapanos and recently adopted in Sackett. This test establishes whether the wetlands are

“indistinguishable” from WOTUS. 598 U.S. at 678 (quoting Rapanos, 547 U.S. at 755). First, the

wetland must be adjacent to another body of water which independently qualifies as WOTUS,

and second, it must have a “continuous surface connection” with the established WOTUS, such

that it is “difficult to determine where the ‘water’ ends and the ‘wetland begins.’” Id. at 678-79

(citing Rapanos, 547 U.S. at 755). The Sackett Court rejected the test proposed in Justice

Kennedy’s Rapanos concurrence, which required only a significant nexus between a property’s

wetland and adjacent navigable waters. Id. at 679-83.

A. The Sackett Test Does Not Impact the Court’s Jurisdiction

We hold that determining the inquiry in question—whether the Honeysuckle Road

Outfall discharges to the Blackstone River—does not impact the Court’s subject matter

jurisdiction over Plaintiff’s cause of action. As such, Defendant’s motion to dismiss for lack of

subject matter jurisdiction is improperly before the Court.

Jurisdiction, it has been observed, “is a word of many, too many, meanings.” Arbaugh v.

Y&H Corp., 546 U.S. 500, 510 (2006) (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S.

83, 90 (1998)). “Courts—including [the Supreme Court]—have sometimes mischaracterized . . .

elements of a cause of action as jurisdictional limitations, particularly when that characterization

was not central to the case, and thus did not require close analysis.” Reed Elsevier, Inc. v.

Muchnick, 559 U.S. 154, 161 (2010). This distinction is crucial because subject matter

jurisdiction concerns the court’s power to hear a case, while elements of a claim go to the merits

of whether the plaintiff can ultimately prevail. See Chao v. Hotel Oasis, Inc., 493 F.3d 26, 33

(1st Cir. 2007); San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700, 709 n.9 (9th Cir.

2007) (“A better statement of the issue would be whether the Pond is within the coverage of the

CWA. In any event, the ‘jurisdiction’ of the CWA has nothing to do with the jurisdiction of this

court.”). To curb this practice, in Arbaugh v. Y&H Corp., the Supreme Court provided clear

guidance for distinguishing between true jurisdictional requirements and elements of a federal

claim, holding that “when Congress does not rank a statutory limitation on coverage as

jurisdictional, courts should treat the restriction as nonjurisdictional in character.” 546 U.S. at

516.

In the instant case, Congress has not expressly identified a subject-matter-jurisdiction-

based limitation within the CWA. The definition of “navigable waters,” 33 U.S.C. § 1362(7),

“does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district

courts.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). And although the citizen-

suit provision refers to the jurisdiction of district courts, 33 U.S.C. § 1365(a), its plain language

demonstrates that WOTUS status is not a jurisdictional requirement. Specifically, the citizen-suit

provision broadly grants district courts jurisdiction “without regard to the amount in controversy

or the citizenship of the parties, to enforce such an effluent standard or limitation . . . and to

apply any appropriate civil penalties under section 1319(d) of this title.” Id. This expansive

jurisdictional grant contains no qualifying language making WOTUS status a prerequisite to the

court’s power to hear the case. Reading WOTUS status as jurisdictional would conflict with the

Supreme Court’s instruction that Congress must “clearly state[] that a threshold limitation on a

statute’s scope shall count as jurisdictional.” Arbaugh, 546 U.S. at 515-16 (establishing “readily

administrable bright line” rule). Nothing in the CWA suggests Congress intended the WOTUS

requirement to limit courts’ subject matter jurisdiction rather than serve as an element of the

cause of action.

Further, Defendants’ reliance on Sackett and Rapanos v. United States, 547 U.S. 715

(2006), is misplaced because in both cases the Supreme Court’s discussion of “jurisdiction” only

concerned the jurisdiction of government agencies to enforce the CWA. In Rapanos, the plurality

focused on the U.S. Army Corps of Engineers’ jurisdictional reach when establishing the

standard for defining WOTUS. See 547 U.S. at 731-42. Similarly, in Sackett, the Supreme Court

addressed the Environmental Protection Agency’s regulatory jurisdiction when refining the

WOTUS definition. 598 U.S. at 661, 664-71 (discussing the scope of the EPA’s regulatory

authority while clarifying WOTUS test). Neither case questioned, let alone limited, district

courts’ authority to hear CWA claims.1 “Instead, Sackett and Rapanos establish that defining a

body of water as a WOTUS is more accurately treated as an element of a claim for relief under

the CWA.” Inland Empire Waterkeeper v. Corona Clay Co., No. 8:18-CV-00333-DOC-DFMx,

2023 WL 8125772, at *2 (C.D. Cal. Oct. 26, 2023).

Further, the First Circuit has consistently treated these Supreme Court decisions as

establishing the substantive standards for proving a CWA violation rather than jurisdictional

prerequisites. See Paolino v. JF Realty, LLC, 830 F.3d 8, 15-16 (1st Cir. 2016) (treating elements

of CWA violation as merits question). For instance, in United States v. Johnson, the First Circuit

approached the determination as a substantive element of CWA coverage—whether the federal

government could establish jurisdiction over certain sites—not as a threshold jurisdictional

question. 467 F.3d 56, 66 (1st Cir. 2006) (“The federal government can establish jurisdiction

over the target sites if it can meet either the plurality’s or Justice Kennedy’s standard as laid out

in Rapanos.” (emphasis added)). The Supreme Court’s recent decision in Sackett did not alter

this treatment. Indeed, in that case the Supreme Court only clarified the applicable test for

determining a violation under the CWA. Sackett, 598 U.S. at 684 (adopting test in Rapanos’

plurality opinion).

B. Consideration Under Summary Judgment Standard Is Inappropriate

Defendants have styled this motion as one to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). In their opposition, Plaintiff

maintains we should apply a summary judgment standard given that the determination of facts

relevant to jurisdiction implicate elements of their cause of action. However, as established

1 Additionally, the Court has federal question jurisdiction under 28 U.S.C. § 1331. [See ECF No. 213 ¶ 4 (“This

Court has jurisdiction over this action under Section 505(a) of the CWA, 33 U.S.C. § 1365(a) (the CWA’s citizen

suit provision), and 28 U.S.C. § 1331 (federal question jurisdiction).”)].

above, the WOTUS determination is an element of a CWA claim rather than a jurisdictional

prerequisite. Therefore, there is no actual jurisdictional question for this Court to resolve. See

Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010) (explaining that subject matter

jurisdiction “presents an issue quite separate from the question whether the allegations the

plaintiff makes entitle him to relief”); see also Arbaugh, 546 U.S. at 516. Given that no true

jurisdictional issue exists, the question of converting Defendants’ motion to one for summary

judgment under Rule 56 does not arise. A court cannot convert a Rule 12(b)(1) motion to a

summary judgment motion where the premise of the 12(b)(1) motion—that the court lacks

subject matter jurisdiction—is incorrect as a matter of law. The doctrine permitting conversion of

12(b)(1) motions to summary judgment motions applies only where there is a genuine need to

resolve disputed jurisdictional facts. See Torres-Negron v. J&N Records, LLC, 504 F.3d 151,

163 (1st Cir. 2007) (conversion appropriate only where “jurisdictional issue and substantive

claims are so intertwined”). Here, because the WOTUS determination is purely an element of the

claim, there are no jurisdictional facts to resolve, and thus no basis for conversion. To permit

conversion here would effectively allow Defendants to circumvent normal summary judgment

procedures merely by incorrectly labeling merits challenges as jurisdictional.2

2 Even assuming that Defendants’ motion was properly before us, the Court would decline resolving any factual

issues. “[W]hile the merits and jurisdictional questions are not identical, they are so closely related that the

jurisdictional issue is not suited for resolution in the context of a motion to dismiss for lack of subject matter

jurisdiction.” United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999); see Intelliclear, LLC v. Victor, No.

3:16cv1403 (JBA), 2016 WL 5746349, at *5 (D. Conn. Oct. 3, 2016).

IV. Conclusion

For the foregoing reasons, Defendant’s Motion to Dismiss for Lack of Subject Matter

Jurisdiction [ECF No. 224] is DENIED.

SO ORDERED.

Dated: February 20, 2025

/s/ Margaret R. Guzman

Margaret R. Guzman

United States District Judge