# Opinion

> District Court, D. Massachusetts · December 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11216221

## Case

- **Full name:** The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc., RH Gallo Builders, Inc., Arboretum Village, LLC, Steven A. Gallo, and Robert H. Gallo
- **Court:** District Court, D. Massachusetts
- **Decided:** December 8, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
THE BLACKSTONE HEADWATERS )
COALITION, INC. )
)
Plaintiff, )
)
v. ) Civil No. 4:16-cv-40053-MRG
)
GALLO BUILDERS, INC., )
RH GALLO BUILDERS, INC., )
ARBORETUM VILLAGE, LLC, )
STEVEN A. GALLO, and )
ROBERT H. GALLO, )
)
Defendants. )
____________________________________)

MEMORANDUM & ORDER ON DILIGENT PROSECUTION
GUZMAN, J.
In a citizen suit under the Clean Water Act, the form of potential relief available to a
successful Plaintiff is determined by the Court. See Tull v. United States, 481 U.S. 412, 427 (1987);
33 U.S.C. §§ 1319(d), 1365(d). One consideration for the Court is whether a citizen plaintiff may
recover civil penalties, or only injunctive or declaratory relief. In making that determination, the
Court must consider whether a state agency has diligently pursued a comparable action under the
Clean Water Act, because if such a prosecution has occurred, Plaintiff may not recover civil
penalties based on the same violations. Blackstone Headwaters Coal., Inc. v. Gallo Builders, Inc.,
32 F.4th 99, 105 (1st Cir. 2022).
Before the Court is the question of whether the diligent prosecution bar to a citizen suit
under the Clean Water Act should be determined by the judge or the jury in this trial. “[W]hen a
party has a right to a jury trial on an issue involved in a legal claim, the judge is of course bound
by the jury's determination of that issue as it affects his disposition of an accompanying equitable
claim.” Perdoni Bros. v. Concrete Sys., Inc., 35 F.3d 1, 5 (1st Cir. 1994) (quoting Lincoln v. Board
of Regents, 697 F.2d 928, 934 (11th Cir.) (collecting cases)). However, the calculus changes when

a party waives their right to a jury trial on a particular issue. The Federal Rules of Civil Procedure
provide that a party may waive their right to jury trial or specify those issues which they wish to
be tried while excluding others from jury consideration. Fed. R. Civ. P. 38(c)–(d). In this case,
the Defendants moved, unopposed, to bifurcate the issue of the forms of potential relief from the
jury trial on the merits. [See ECF No. 262]. In moving to bifurcate relief, the Defendants explicitly
contemplated that determining relief and penalties will “present intensely factual issues” but that
such determination should still “rest exclusively with the trial judge.” [Id.] Accordingly, the
Defendants have waived consideration of this issue by a jury.
While case law suggests that the question of diligent prosecution “may be a fact-intensive
question that can only be answered after the proper development of a record,” see Ohio Valley

Env't Coal., Inc. v. Maple Coal Co., 808 F. Supp. 2d 868, 883–84 (S.D.W. Va. 2011), sources also
suggest it is a question reserved for the Court, see S. River Watershed All., Inc. v. DeKalb Cnty.,
Georgia, 484 F. Supp. 3d 1353, 1368 (N.D. Ga. 2020), aff'd, 69 F.4th 809 (11th Cir. 2023) (“It is
the Court's duty to probe the government's prosecutorial vigor and events transpiring post-entry of
the Consent Decree.”) (emphasis added) (citation omitted)); Roanoke River Basin Ass'n v. Duke
Energy Progress, LLC, No. 1:16CV607, 2017 WL 5654757, at *5 (M.D.N.C. Apr. 26, 2017)
(“Congress also envisioned that courts would consider citizen suits ‘against the background of the
agency action’ to assess the adequacy of the agency action.” (emphasis added) (citing S. Rep. No.
92-414, at 80 (1971) as reprinted in 1972 U.S.C.C.A.N. 3668, 3746)).
Moreover, when the issue is among those excluded from jury consideration through
bifurcation, the Court acts as the fact-finder in determining factual predicates for legal
determinations reserved for the Court. See United States v. Dudley, 100 F.4th 74, 81 (1st Cir. 2024)
(“[I]t is always permissible for a judge, acting in his capacity as a factfinder, to use his knowledge

and experience to assess the credibility of witnesses and to evaluate the evidence.”) (quoting
United States v. Teixeira, 62 F.4th 10, 19 (1st Cir. 2023)); Williams v. Illinois, 567 U.S. 50, 69,
132 S. Ct. 2221, 2234–35, 183 L. Ed. 2d 89 (2012), abrogated on other grounds by Smith v.
Arizona, 602 U.S. 779 (2024) (“In bench trials . . . the judge sits as the trier of fact”). The question
of diligent prosecution is relevant only to the question of relief. The trial has been bifurcated at the
request of the Defendants and with the assent of the Plaintiff, and the issue of relief has been
specifically reserved for bench trial before the Court. Accordingly, it is the solely the Court which
must consider and decide whether a state agency has diligently pursued a comparable action under
the Clean Water Act.

SO ORDERED.

/s/ Margaret R. Guzman
The Hon. Margaret R. Guzman
Dated: December 8, 2025 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11216221. Public record. Not legal advice.