Quad Cities Waterkeeper Inc. v. Ballegeer et al

Filing 117

ORDER entered by Judge Sara Darrow on January 22, 2016. Defendants' 94 motion for leave to file excess pages in support of a motion detailing contested facts, and 95 Defendants' motion to supplement the November 3, 2015 minute entry, a re GRANTED IN PART, insofar as they seek admission of the motion and evidence they contain, and DENIED IN PART, insofar as they seek to force Plaintiffs to prove standing at trial. Plaintiffs' 98 renewed motion for summary judgment as to Article III standing is GRANTED. Defendants' 97 motion for reconsideration of the Court's October 27, 2015 Order on questions of Article III standing is DENIED. (SC, ilcd)

E-FILED

Friday, 22 January, 2016 11:57:49 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
QUAD CITIES WATERKEEPER INC., an
Illinois not for profit corporation, and
PRAIRIE RIVERS NETWORK, an Illinois
not for profit corporation,

)
)
)
)
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Plaintiffs,
)
)
v.
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DAVID G. BALLEGEER, an individual,
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BALLEGEER TRUCKING, INC., an Illinois )
corporation, BALLEGEER EXCAVATING, )
INC., an Illinois corporation, and FRANCIS )
BALLEGEER, an individual,
)
)
Defendants.
)

Case No. 4:12-cv-4075-SLD-JEH

ORDER
Plaintiffs Quad Cities Waterkeeper (“Waterkeeper”) and Prairie Rivers Network
(“PRN”), conservation organizations, are suing Defendants David G. Ballegeer, Ballegeer
Trucking, Inc., Ballegeer Excavating, Inc., and Francis Ballegeer under the citizen suit provision
of the Clean Water Act, 33 U.S.C. § 1365(a)(1). Before the Court are Defendants’ motion for
leave to file excess pages in support of a motion detailing contested facts, ECF No. 94;
Defendants’ motion to supplement the November 3, 2015 minute entry, ECF No. 95; and
Defendants’ motion for reconsideration of the Court’s October 27, 2015 order on questions of
Article III standing, ECF No. 97. For the following reasons, the first two motions are
GRANTED IN PART, insofar as they seek leave to exceed the type volume limitations and to
present material to the Court, and DENIED IN PART, insofar as they seek to contest Plaintiffs’
Article III standing. The motion for reconsideration is DENIED. Additionally, the Court

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GRANTS Plaintiffs’ renewed motion for summary judgment as to standing, contained in their
response to Defendants’ motion to supplement, ECF No. 98.
PROCEDURAL HISTORY
The Court has already related the case’s factual background extensively in its March 26,
2015 and October 27, 2015 Orders, and will not repeat that background here. Mar. 26, 2015
Order 2–5, ECF No. 88; Oct. 27, 2016 Order 2–3, ECF No. 91. Rather, what follows is a brief
summary of the somewhat unusual procedural facts that have resulted in the present motions.
The March 26, 2015 Order partially granted Plaintiffs’ motion for summary judgment,
and denied Defendants’ motion for summary judgment, including summary judgment as to
Article III standing. Mar. 26, 2015 Order 1. The Court’s October 27, 2015 Order responded to
the parties’ joint request, ECF Nos. 89, 90, for clarification as to whether or not the earlier order
had granted Plaintiffs’ request for summary judgment on the standing issue. The October 27
Order acknowledged that Plaintiffs’ request had not been ruled on, Oct. 27, 2015 Order 4; and,
while declining to enter summary judgment for Plaintiffs on standing, clarified that Plaintiffs had
shown facts sufficient to support standing at the summary judgment phase on two independent
grounds, id. at 6–13.
A hearing followed on November 3, 2015, at which Defendants claimed that they would
submit to the trier of fact various factual evidence controverting standing. Nov. 3, 2015 Minute
Entry. The Court directed Defendants to submit this evidence in written form, with an
evidentiary hearing to follow “if needed.” Id. Defendants’ evidence was submitted as the first
two motions presently before the Court, ECF Nos. 94, 95. Additionally, Defendants filed a
motion pursuant to Rule 54(b) requesting that the Court revise its ruling on the second
independent basis for standing identified in the October 27, 2015 Order.

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Before any of these motions were ruled on, the parties submitted a joint motion, ECF No.
103, agreeing that Defendants’ motions to supplement, Plaintiffs’ response, and the already filed
motions for summary judgment “contain everything this Court needs to make a determination of
whether Plaintiffs’ [sic] have the requisite jurisdictional standing to bring this lawsuit.” Mot.
Vacate 2. The motion accordingly sought to vacate the provisionally set evidentiary hearing and
asked the Court to make a ruling on the strength of the filings before it. Id. at 4. The Court
granted this motion. Dec. 7, 2015 Text Order.
DISCUSSION
I.

Defendants’ Motions Contesting Factual Basis for Standing
Technically, Defendants’ motions on standing seek leave to supplement the minute entry

of the November 3, 2015 hearing, ECF No. 95, and leave to exceed the type volume limitations
in so doing, ECF No. 94. See Local Rule 7.1(B)(4)(a). Both motions contain and seek
admission of a document entitled “Defendants’ Motion Detailing Contested Facts Regarding
Plaintiffs’ Standing.” Insofar as they seek admission of the contained memorandum in response
to the Court’s request for the proposed factual basis of Defendants’ standing challenge, they are
granted. See Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir.1995) (“[I]t is clear that the
decision whether to apply the [local] rule strictly or to overlook any transgression is one left to
the district court’s discretion.”).
Substantively, however, the motions are one, and ask that “the Court grant Defendants
the opportunity to present the facts [on standing] described herein [to the trier of fact].” Mot.
Supplement 28. However, Defendants appear to have conceded, via their agreed motion, that the
facts offered to assail Plaintiffs’ standing need not be submitted to the trier of fact, and can
instead be evaluated on the basis of affidavits, exhibits, and arguments alone. Since Defendants

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do not seek summary judgment that standing does not exist (a motion the Court has already
denied; see Mar. 26, 2015 Order), but rather to “require Plaintiffs to meet their corresponding
burden of proof as to their Article III standing at trial,” Mot. Supplement 28, the Court notes that
Defendants are essentially asking, in motion form, that the Court not grant summary judgment
for Plaintiffs as to standing at the present time. In arguing that evidence as to standing need not
be presented further (at trial), Plaintiffs are, as they assert in their response to Defendants’
motions, renewing their request for summary judgment as to standing, and requesting that the
court determine that “there is no genuine dispute as to any material fact and [Plaintiff] is entitled
to judgment as a matter of law” with respect to the facts that support their Article III standing to
bring suit. Fed. R. Civ. P. 56(a). See Resp. Mot. Supplement 28, ECF No. 98.
In support of their argument that Plaintiffs must be required to prove they have standing
at trial, Defendants claim that (1) Art Norris, a member of one of the Plaintiff organizations, and
other members, including John Daggett, have not possessed a fishing license for the last five
years, Mot. Supplement 6–10; (2) Norris expressed uncertainty about being able to view mussels
in the Green River in 2014 and did not possess a Scientific Research Permit at this time, id. at
10–14; (3) Norris provided insufficient evidence of plane trips he claims to have taken over the
Green and Rock Rivers, id. at 15; (4) Norris and others have not possessed Water Usage Stamps
for the past five years, id. at 16–17; (5) the instant lawsuit is based upon a personal vendetta by
members of Plaintiff organizations, id. at 17–20; (6) web galleries posted by Art Norris did not
contain pictures of wildlife, id. at 20; (7) it is impossible to see the site of Defendants’ alleged
violations from the Hennepin Canal walking trial, where Norris claimed to have done so, id. at
20–22; (8) a court-appointed process server was unable to serve Norris at an address listed for
him in an unrelated Illinois Circuit Court case, Id. at 23; (9) Plaintiff organization Quad City

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Waterkeeper’s address, as listed on their website, does not correspond to a physical location at
which Waterkeeper can be found and contacted, id. at 24–25; (10) Norris is not a member of
PRN, id. at 25; (11) vegetation growth promoted by Defendants’ concrete dumping activities
have retarded rather than promoted the emission of pollutant particulates into the Green River,
id. at 26–27; (11) for the same reason, Plaintiffs’ injuries are not redressable, id. at 27–28.
A. Legal Standard
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact . . . and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
Constitutional standing, a limitation on the jurisdiction of federal courts, is “an essential
and unchanging part of the case-or-controversy requirement of Article III [of the Constitution of
the United States],” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
The irreducible constitutional minimum of standing contains three elements.
First, the plaintiff must have suffered an injury in fact . . . . Second, there must be
a causal connection between the injury and the conduct complained of . . . . Third,
it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Id. at 560–61 (internal citations omitted). The party invoking federal jurisdiction bears the
burden of showing each of these three elements, which are not mere pleading requirements, but
themselves matters upon which “the plaintiff bears the burden of proof.” Id. at 561.
Accordingly, the Plaintiff must show them “with the manner and degree of evidence required at
the successive stages of the litigation.” Id.
Federal courts at all levels must be assured of their subject matter jurisdiction over cases
before them, and hence, of a plaintiff’s Article III standing. Indeed, both district and appellate
court must entertain challenges to subject matter jurisdiction at every phase of the proceedings.
See Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 571 (2004). For this reason,

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appellate courts have suggested that district courts should be especially cautious in entering or
refusing to reconsider entries of summary judgment as to standing. See American. Canoe Ass'n
v. Murphy Farms, Inc., 326 F.3d 505, 515–16 (4th Cir. 2003) (holding that law of the case
doctrine should not have barred a district court from reconsidering its entry of summary
judgment as to standing for plaintiffs); Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001)
(explaining that “issues such as subject matter jurisdiction or appellate jurisdiction may be
particularly suitable for reconsideration”). Nonetheless, entry of summary judgment, when the
appropriate evidentiary showing for this phase has been met, may be appropriate, and have the
benefits of allowing parties to focus their energies on the issues truly in dispute. See American
Canoe, 326 F.3d at 516 (“While a ruling on the standing issue [before discovery began] may
have served beneficial purposes . . . it should not be accorded the preclusive effect of a decision
rendered after full trial, or even a decision rendered after full discovery.” (emphasis added)).
This makes sense; after full discovery has occurred, and the parties have been permitted ample
time to depose witnesses and gather evidence as to standing issues, the only remaining
differences for trial, as with all elements of a claim able to survive summary judgment, should be
over disputed material facts. If no material facts as to standing are genuinely in dispute,
summary judgment as to standing may be appropriate.
B. Analysis
The Court previously held that, while “Plaintiffs have made a showing of standing
sufficient to survive summary judgment,” it would be inappropriate to render judgment in
Plaintiffs’ favor on standing at that time, and run the risk of creating an inappropriately
preclusive effect on later attempts by Defendants to challenge standing, either by renewed
motions for summary judgment or direct evidence offered at trial. Oct. 27, 2015 Order 9.

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However, in light of the weakness of Defendants’ factual challenges to Plaintiffs’ showing as to
standing, explained below, the Court is now confident that summary judgment for Plaintiffs on
standing is appropriate.
The Court previously held that Plaintiffs had established injury in fact to their
recreational interests by two independent means: a showing that their members had experienced
and legitimately feared that they would experience diminution of their downstream recreational
enjoyment because of harm to wildlife caused by concrete dumping, Mar. 26, 2015 Order 15–16;
and a showing that their members had experienced and legitimately feared they would
experience diminution of their recreational enjoyment in boating past Defendants’ dump site on
the Green River, Oct. 27, 2015 Order 10–13. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (concluding that plaintiffs adequately alleged
injury-in-fact when they averred that they used the affected area and that the aesthetic and
recreational values of the area will be lessened to them because of the challenged activity).
Defendants previously challenged Plaintiffs averments of standing on grounds of their legal right
to place themselves in a position to suffer such harm, and the supposed generality and
conclusoriness of Plaintiffs’ allegations of harm.1 Defs.’ Resp. Mot. Summ. J. 36–50, ECF No.
73. The Court having deemed these attacks unavailing, Defendants now offer what amount to
embroideries on a theme—as explained in detail below, that Plaintiiffs’ affidavits are likely to be
mendacious for one reason or another.
However, each of these attacks is too speculative and conclusory, and unsupported by
evidence, to cast into real doubt Plaintiffs’ affidavits. Neither the “mere existence of some
alleged factual dispute between the parties,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

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Defendants also challenged Plaintiffs’ standing on a number of other grounds they have now abandoned, most
notably whether or not Plaintiff organizations had standing to sue in their own right.

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(1986), nor the existence of “some metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will defeat an otherwise properly
supported motion for summary judgment.
Plaintiffs produced a number of documents suggesting their legitimate fears about the
recreational and aesthetic harm their members may suffer as a consequence of Defendants’
concrete dumping activities, including expert testimony, empirical observation of diminution in
wildlife, and a letter from the United States Fish and Wildlife Service suggesting that
Defendants’ activities “could cause significant impacts to the [Green River’s] aquatic life.”
Resp. Mot. Supplement 6–7. To call the sufficiency of this evidence of harm into question,
Defendants rely almost entirely on elliptical suggestions that Plaintiffs may not actually have
observed the things they claim to have on the river downstream of Defendants’ property—
because Plaintiffs’ members claim to have fished for many years on the river, and yet Defendants
can find no record of their fishing licenses; or because Plaintiff’s members used speculative
language in emails about the presence of wildlife on the Green River and may have illegally
removed some. Mot. Supplement 6–14. As Plaintiffs correctly observe, there are obvious factual
and legal reasons why these observations do not call into question the veracity of Plaintiffs’
affidavits, or suggest any likelihood that they would be called into question via crossexamination of the members in question.2
More broadly, however, facts used to attack affiants’ credibility may forestall summary
judgment only if “the credibility of the movant's witnesses is challenged by the opposing party
and specific bases for possible impeachment are shown.” Cameron v. Frances Slocum Bank &
Trust Co., 824 F.2d 570, 575 (7th Cir.1987) (emphasis added). See, e.g., Captain v. ARS Nat.
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Most notably, Daggett is a disabled veteran and permitted by Illinois law to fish without a license, Resp. Mot.
Supplement 11, and the full quotations from Norris and Daggett’s emails imply considerably less uncertainty, read
in their complete context, than Defendants’ abbreviated quotations suggest, id. at 15.

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Servs., Inc., 636 F. Supp. 2d 791, 795 (S.D. Ind. 2009) (holding that factual dispute on summary
judgment as to witness’s testimony was not created when witness’s claims were controverted
only by a general statement about a corporation’s policy contradicting the witness’s testimony,
and not by someone with personal knowledge of the events to which witness testified). Here,
none of Defendants’ attacks on Daggett’s and Norris’s testimony rises above the level of the
speculative or coincidental, or suggests that Defendants could provide a specific basis for the
plausible impeachment of each witness, were he called at trial to testify on the facts heretofore
adduced that show standing. Nothing is offered to suggest that either Daggett or Norris lied
about what he observed on the Green and Rock Rivers, and nothing is offered to suggest that
their fears are without basis in observable fact and/or expert advice.
Much of Defendants’ offered evidence does not directly contradict or call into question
facts the Plaintiffs claim to have observed in support of their standing to use; rather, it is aimed
merely at suggesting that Plaintiffs bear animosity for Defendants. So, Defendants’ argument
that Plaintiffs overflew the Green River only or largely in preparation to sue Defendants does not
go to a ground upon which the Court has found standing. And, while intriguing, Defendants’
tale of the instant litigation’s origin in bitter local politics is not specific or substantial enough to
suggest that Plaintiffs are not actually concerned about environmental harm to the Green and
Rock Rivers.
Defendants’ other offered facts similarly fail to suggest that Plaintiffs are mistaken about
or have misrepresented facts material to standing. Since the Court has not based its holdings on
standing upon the visibility or lack thereof of Defendants’ property from the Hennepin Canal,
various witnesses’ dueling claims about it are not relevant. Whether or not Norris was
successfully served at a local address in unrelated proceedings is vanishingly relevant, and in any

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case soundly controverted by the numerous pictures Plaintiffs have submitted of Norris
recreating on the Green River. See Resp. Mot. Supplement 25. So too, the story of Defendants’
non-exhaustive search for Waterkeeper’s physical headquarters does little to suggest that its
members do not exist or are not legitimately concerned about harm to the rivers. And
Defendants’ assertion that the concrete they have placed on the banks of their property helps
rather than harms riverine ecology does nothing to suggest that the contrary view, evidently held
by Plaintiffs, is not reasonable or a sufficient basis for standing.
Defendants have shown no evidence to controvert Plaintiffs’ theory of standing via
downstream harm or aesthetic harm while boating across Defendants’ property. In the absence
of any such showing, and for all the reasons adduced in the Court’s earlier orders finding
standing sufficient to survive motions for summary judgment, summary judgment as to
Plaintiffs’ standing is now appropriate.
II.

Defendants’ Motion for Reconsideration Of the Court’s Standing Ruling
Citing Rule 54(b)’s provision that “any order . . . that adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties does not end the action as to any of
the claims or parties and may be revised at any time,” Defendants seek reconsideration of the
Court’s legal holding that Plaintiffs and the general public have an easement of navigation down
the Green River at the point where it crosses Defendants’ property. Mot. Reconsider 2. The
Court made this determination in support of its finding that Plaintiffs have standing because they
have boated and will continue to boat down the Green River where it passes Defendants’
property, and suffer harm to their recreational and aesthetic interests by viewing the concrete
that, all parties agree, is clearly visible from the river at that point. Oct. 27, 2015 Order 10–13.
The Court explained in its October 27, 2015 Order that that Plaintiffs’ possible ownership of the

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riverbed at that point created no impediment to this basis for standing because “[t]he rule in
[Illinois] is that the public have an easement for purpose of navigation in waters which are
navigable in fact, regardless of the ownership of the soil.” Du Pont v. Miller, 141 N.E. 423, 425
(Ill. 1923).
Defendants do not raise new arguments in their request that the Court reverse its earlier
ruling. Rather, they repeat their old one: that at the time of Illinois’s admission to statehood,
only title to those rivers and streams that were then navigable in their “natural and ordinary
condition” passed from the federal government to the State of Illinois. Mot. Reconsider 4–6.
This is referred to as the “navigability for title” test. See PPL Montana, LLC v. Montana, 132 S.
Ct. 1215, 1228 (2012). Thus, Defendants’ reasoning goes, for Plaintiffs to have a legal right to
boat down the Green River, it must have been navigable at the time of statehood, which it
assertedly was not. Mot. Reconsider 7–8. But this argument, as the Court has explained, is
wrong. Whether title to the bed of the river, or any part of it, lies with the federal government,
the State of Illinois, or with Defendants, is of no moment to whether the public has an easement
of navigation across it. See Scranton v. Wheeler, 179 U.S. 141, 150 (1900) (“[T]he navigable
waters [of America] are the public property of the nation, and subject to all the requisite
legislation by Congress. In the hands of the state or of the state’s grantee the bed of a navigable
river remains subject to an easement of navigation, which the general government can lawfully
enforce, improve, and protect.”).3

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The sources upon which Defendants rely also draw the distinction between navigability for title and navigability in
fact for purposes of determining easements. For example: “The right of the public to use the surface of a stream or
lake also depends on a navigability test. This test, however, is not necessarily the same navigability test as that
applied to determine the question of stream bed ownership.” J.W. Looney & Steven G. Zraick, Of Cows, Canoes,
and Commerce: How the Concept of Navigability Provides an Answer If You Know Which Question to Ask, 25 U.
Ark. Little Rock L. Rev. 175, 181 (2002).

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There is no dispute that the Green River where it passes through Defendants’ property is
navigable by canoes and other small craft. Thus, the public has an easement of navigation
through it, and may assert standing to sue Defendants if, in so doing, it will view and be harmed
by Defendants’ dumping of concrete on the riverbank. The Court declines to revise its original
ruling on this matter.
CONCLUSION
Accordingly, Defendants’ motion for leave to file excess pages in support of a motion
detailing contested facts, ECF No. 94, and Defendants’ motion to supplement the November 3,
2015 minute entry, ECF No. 95, are GRANTED IN PART, insofar as they seek admission of the
motion and evidence they contain, and DENIED IN PART, insofar as they seek to force
Plaintiffs to prove standing at trial. Plaintiffs’ renewed motion for summary judgment as to
Article III standing, ECF No. 98, is GRANTED. Defendants’ motion for reconsideration of the
Court’s October 27, 2015 Order on questions of Article III standing, ECF No. 97, is DENIED.

Entered this 22nd day of January, 2016.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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