Quad Cities Waterkeeper Inc. v. Ballegeer et al
Filing
88
ORDER entered by Judge Sara Darrow on March 26, 2015. The Court DENIES Defendants' 36 Motion for Summary Judgment, GRANTS IN PART and DENIES IN PART 61 Plaintiffs' Motion for Partial Summary Judgment, GRANTS Plaintiffs' 81 Motio n for Leave to File Excess Pages, and GRANTS IN PART and DENIES IN PART Plaintiffs' 84 Motion to Strike. All three claims of Plaintiffs' Amended Complaint remain. However, Defendants cannot claim their activities were authorized under N WPs 13 or 3. The Clerk of Court is DIRECTED to strike in paragraph 4 of Slowinskis affidavit, paragraph 3 subparagraphs (c)(f) of Wolterstorff's affidavit, and the entirety of Allen's affidavit. As a result of these rulings, the Court DENIES the parties' Joint Motion for Status Hearing, ECF No. 87. (SC, ilcd)
E-FILED
Thursday, 26 March, 2015 11:04:20 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
QUAD CITIES WATERKEEPER,
an Illinois not for profit corporation,
and PRAIRIE RIVERS NETWORK,
an Illinois not for profit corporation,
)
)
)
)
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Plaintiffs,
)
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v.
)
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DAVID G. BALLEGEER, an individual,
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BALLEGEER TRUCKING, INC.,
)
an Illinois corporation, BALLEGEER
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EXCAVATING, INC., an Illinois
)
corporation, and FRANCIS BALLEGEER, )
an individual,
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Defendants.
)
Case No. 4:12-cv-4075-SLD-JEH
ORDER
Plaintiffs Quad Cities Waterkeeper (“Waterkeeper”) and Prairie Rivers Network (“Prairie
Rivers”) bring this action for declaratory and injunctive relief and civil penalties under the
citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(1). Plaintiffs claim that
Defendants David G. Ballegeer, Ballegeer Trucking, Inc., Ballegeer Excavating, Inc., and
Francis Ballegeer have violated and continue to violate the Clean Water Act, 33 U.S.C. §§ 1251–
1387, by discharging pollutants without a permit issued under the Act. Now before the Court are
the parties’ cross motions for summary judgment1 and three related motions. For the following
reasons, the Court DENIES Defendants’ Motion for Summary Judgment, ECF No. 36, GRANTS
IN PART and DENIES IN PART Plaintiffs’ Motion for Partial Summary Judgment, ECF No.
61, GRANTS Plaintiffs’ Motion for Leave to File Excess Pages, ECF No. 81, GRANTS IN
1
Both parties request oral argument in their respective motions for summary judgment. The Court concludes that
oral argument is unnecessary and therefore DENIES the parties’ request.
1
PART and DENIES IN PART Plaintiffs’ Motion to Strike, ECF No. 84, and DENIES the
parties’ Joint Motion to Request Status Hearing, ECF No. 87.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Unless otherwise noted, the following facts are drawn from the parties’ statements of
material facts submitted in compliance with Rule 7.1(D) of the Rules of the United States
District Court for the Central District of Illinois.
I.
The Parties and the Areas of the Green River Where CWA Violations Are
Alleged to Have Occurred
Waterkeeper, a not-for-profit organization, was incorporated on November 13, 2009, in
the State of Illinois. Certificate of Good Standing, ECF No. 83–1. Its purpose is to promote
conservation of the Rock River and other bodies of water in the vicinity of the Quad Cities.
Waterkeeper Bylaws at Art. 1, §2, ECF No. 73–5. To that end, Waterkeeper monitors and
investigates sources of pollution and undertakes litigation to protect and restore these bodies of
water. Id. Waterkeeper’s bylaws specify that it “shall have no members,” id. at Art. III, §1, but
that its governing body “shall be the Board of Directors . . . and all rights which would otherwise
rest in the members shall rest in the Board.” Id.
Prairie Rivers is a not-for-profit corporation organized and existing under the laws of
Illinois. Kim Knowles Decl. ¶ 3, ECF No. 66. Founded in 1967, the corporation has more than
800 members who live in Illinois, including in Henry County. Id. Prairie Rivers’ primary
mission “is the protection of the rivers and streams of Illinois and the promotion of the lasting
health and beauty of watershed communities.” Id. at 5. Prairie Rivers’ membership is composed
of individuals who provide support either by voluntary efforts or financial contributions,
although the Board of Directors may add a member who has demonstrated an active commitment
to waterway conservation. Prairie Rivers Network Bylaws at Art. III, Sec. 1, ECF No. 73–8.
2
The members of Waterkeeper and Prairie Rivers boat, fish, recreate in, and otherwise use
and enjoy the lower Green River and the Rock River on a regular basis and have specific plans to
return to that area in the future.2 Pls.’ Undisputed Material Facts ¶ 6, ECF No. 61.
Prior to filing this lawsuit, Plaintiffs sent statutorily-required notice of intent letters to
Defendants, Defendants’ registered agents, the Administrator of the U.S. Environmental
Protection Agency (“EPA”), the regional Administrator of the EPA, and the Executive Director
of the Illinois Environmental Protection Agency (“IEPA”) regarding Defendants’ alleged
violations of the CWA. Parties’ Joint Stipulation to Undisputed Material Facts (“JUMF”) at
¶ 30, ECF No. 37. Plaintiffs identify six sites along a section of the Green River where they
claim Defendants discharged pollutants and engaged in illegal dredging activity. 3 See Plaintiffs’
Notice of Intent Letters, ECF No. 52.
David Ballegeer is the owner and operator of a trucking and excavation company,
Ballegeer Excavating, Inc., which does business as Ballegeer Trucking, Inc. JUMF ¶¶ 1, 2.
Francis Ballegeer owns several hundred acres of property that are directly adjacent to the Green
River in Henry County, Illinois, id. at 3, including property north of the Green River that
corresponds to Sites 1–5.4 The Green River is a water of the United States under the CWA. Id.
at ¶ 11.
2
Defendants dispute this fact, in part, based on their argument that Plaintiffs fail to meet the standing requirements
for organizations suing on behalf of their members. As discussed in Section II. B. i. infra, the Court concludes that
those people Plaintiffs assert are members do qualify as members for standing purposes. Defendants also argue that
Art Norris and John Daggett cannot assert an injury-in-fact because because they only visited the areas of the Green
River at issue in order to collect evidence to support this litigation. See Defs.’ Resp. to Pls.’ Mot. Summ. J. 44–48,
ECF No. 73. However, as discussed in Section II. B. ii. infra, the Court concludes that Plaintiffs’ affidavits are
sufficient to show that members of Waterkeeper and Prairie Rivers have standing.
3
Plaintiffs identify this section of the Green River as “starting approximately 3,000 feet upriver from [its]
confluence with the Rock River and extending upriver for approximately two (2) miles from this confluence into
Henry County, Illinois.” Plaintiffs’ Notice of Intent Letters at 3, 9.
4
Francis Ballegeer asserts that he owns both sides of the Green River that correspond to Sites 1–5 as identified in
Plaintiffs’ notice of intent letters. DSMF ¶ 1, ECF No. 36. Both parties agree that on or about November 24, 2003,
3
II.
Alleged Illegal Activity on the Ballegeer Property
At some point after 1985, Francis Ballegeer asked David Ballegeer to bring concrete
down to Francis’s farm. JUMF at ¶ 3. Francis Ballegeer was aware of and authorized all of the
activities that have occurred at Sites 1–5 since 1985 through the present day. Id. at ¶ 4. David
and Francis Ballegeer have used an excavator to push concrete generated by Ballegeer
Excavating, Inc. onto the banks of the Green River, id. at ¶¶ 7, 9, into the river channel, Pls.’
SMF ¶ 3, ECF No. 61, and onto the river bed and bottom. Pls.’ Mot. Summ. J. at 20. This
concrete was previously used for driveways, garage floors, housing, and road pavement. JUMF
at at ¶¶ 6, 10. Most of the concrete added by the Defendants or their agents on the banks of the
Green River below the ordinary high water mark remains there today, with the exception of
several large slabs of concrete near Site 5 that were removed by David Ballegeer around March
2012. Id. at ¶ 16. Ballegeer Excavating, Inc., its agents, and David Ballegeer did not wait for
no- or low-flow conditions on the Green River to discharge concrete and other materials on its
banks below the ordinary high water mark. Id. at ¶ 23. Rather, Defendants and their agents
would add concrete and other materials on the Green River’s banks below the ordinary high
water mark so long as the river was not flooding. Id. at ¶ 24. In the course of their activities at
Sites 1–5, Defendants discharged dirt onto the Green River’s banks down to the waterline that
would be subject to erosion by expected high flows. Id. at ¶ 27.
the Department of Transportation acquired the property comprising Site 6. Id. at ¶ 2. Plaintiffs dispute that Francis
Ballegeer owns said property, arguing that Defendants’ property-related documents “do not conclusively show that
Mr. Ballegeer is the owner of the river, especially given Defendants[’] claim that they sold the land where Site 6 is
located . . . to the Illinois Department of Transportation.” Pls.’ Resp. at 10, ECF No. 69. The Court observes that the
“hooks” represented in the parties’ joint exhibit plat map (the cartographic representations indicating ties between
non-contiguous portions of a land parcel) do not extend across the Green River. See Joint Exhibit 16 at 10–11, ECF
No. 57. Rather the plat map seems to illustrate that, with respect to the areas constituting Sites 1–6, Francis
Ballegeer owns certain property north of the Green River and that the State of Illinois owns certain property south of
the Green River. However, given the Court’s determination to strike Defendants’ authoritative affidavit testimony
on this subject, see Sec. IV. A. ii. infra, the Court concludes that whether Francis Ballegeer owns property on both
sides of the Green River at the areas corresponding to Sites 1–5 is a disputed material fact.
4
Defendants did not seek nor did they receive written authorization from the Army Corps
of Engineers (“Corps”) prior to discharging concrete on the banks of the Green River below the
ordinary high water mark. Id. at ¶ 17. Defendants did not and do not presently have an
individual CWA Section 404 permit for any materials they discharged on the banks of the Green
River below the ordinary high water mark. Id. at ¶¶ 19, 20. At no time did Defendants ever give
pre-construction notification to the Corps regarding any of the activities that are the subject of
this litigation. Id. at ¶ 20. During his March 7, 2012 on-site inspection, Corps employee Gene
Walsh did not view Sites 1–5 from a boat or otherwise from the river, but only viewed the sites
from the land. Id. at ¶ 32. Defendants have cut protruding rebar from concrete pieces on the
banks of the Green River below the ordinary high water mark at the request of the Corps after the
filing of Plaintiffs’ Complaint. Id. at ¶ 29. As set forth in Section III. B. i. infra, David Ballegeer
removed sand bars from the Green River at Site 3 with an excavator that had a bucket attached to
the end of its boom. Defs.’ UMF ¶¶ 18, 19. The parties dispute the nature and extent of the sand
and other dredging materials which spilled from the bucket.
DISCUSSION
I.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
AND
Defendants seek judgment on all of Plaintiffs’ claims, arguing that Plaintiffs lack
standing to bring suit. On the merits, Defendants contend that they are entitled to judgment as to
the Third Claim of Plaintiffs’ Amended Complaint because their activities did not constitute the
discharge of dredging-related pollutants without an authorizing permit.
Plaintiffs seek a
declaration that they have standing and a determination as to the First and Second Claims of their
Amended Complaint that Defendants violated the Clean Water Act by discharging construction
waste on the banks of and into the Green River without a permit.
5
A. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where there is “no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes regarding material facts are
genuine where the evidence is such that a reasonable jury could return a verdict for the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Courts construe all
facts in a light most favorable to the nonmovant, id. at 261, and draw all justifiable inferences in
favor of the nonmovant in deciding whether genuine issues of material fact exist. Id. at 255.
However, neither the “mere existence of some alleged factual dispute between the parties,” id. at
247, 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.
The movant “bears the initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The party seeking
summary judgment on a claim on which the nonmovant bears the burden of proof at trial may
discharge its burden by showing an absence of evidence to support the nonmovant’s case. Id. at
325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore summary judgment is inappropriate if, after drawing all reasonable inferences in favor
of the nonmovant, genuine doubts remain and a reasonable fact finder could find for the
nonmovant. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.
6
1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989)). But if it is clear that a
plaintiff will be unable to satisfy the legal requirements necessary to establish his case, summary
judgment is not only appropriate, but mandated. Matsushita Elec. Indus. Co., 475 U.S. 585–87.
Further, a failure to prove one essential element “necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 323.
II.
PLAINTIFFS’ STANDING
A.
LEGAL STANDARD
The question of standing is “the threshold question in every federal case, determining the
power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). “In its
constitutional dimension, standing imports justiciability: whether the plaintiff has made out a
‘case or controversy’ between himself and the defendant within the meaning of Art. III.” Id.
Standing is to be determined as of the commencement of suit. Paradise Creations, Inc. v. UV
Sales, Inc., 315 F.3d 1304, 1309 (Fed. Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 570 n.5 (1992)). The burden of establishing the required elements of standing lies with
the plaintiff. Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996)
citing Lujan, 504 U.S. at 561. To prove standing at the summary judgment stage, a plaintiff may
not rest on mere allegations to support standing, but must set forth by affidavit or other evidence
specific facts that, if true, establish an injury in fact. Lujan, 504 U.S. at 560–61.
The “irreducible constitutional minimum of standing” contains three requirements.
Lujan, 504 U.S. at 560. First, there must be alleged, and ultimately proven, an “injury in fact,”
which is a harm suffered by the plaintiff that is “concrete” and “actual or imminent, not
‘conjectural’ or ‘hypothetical.’” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (quoting Los
Angeles v. Lyons, 461 U.S. 95, 101–02 (1983)). Injury to recreational or aesthetic interests
7
constitutes a cognizable injury for purposes of standing. See Friends of the Earth, Inc. v.
Laidlaw, 528 U.S. 167, 183 (2000). Second, there must be causation, which is a fairly traceable
connection between a plaintiff’s injury and the complained of conduct of the defendant. See
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976). Third, there must be
redressability, which is a likelihood that the requested relief will redress the alleged injury. See
id. at 45–46.
In this case, Plaintiffs have elected to proceed under a theory of representational, or
associational, standing. Pls.’ Resp. to Defs.’ Mot. Summ. J. n3 23, ECF No. 69. As stated by the
Seventh Circuit in Retired Chicago Police Ass’n,
The doctrine of associational standing is an exception to the general prohibition of
representational standing. In order to obtain associational standing, an
organization must meet the three-prong test set forth in Hunt v. Washington State
Apple Advertising Comm’n:
An association has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are germane to
the organization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual
members of the lawsuit.
432 U.S. 333, 343 (1977), superseded by statute on other grounds; see also
Sanner v. Board of Trade, 62 F.3d 918, 922 (7th Cir. 1995).
76 F.3d at 862–63. Under the first prong of Hunt, the individuals whom Plaintiffs hold out as
their members must “possess all of the indicia of membership in an organization.” Hunt, 432
U.S. at 344. The Hunt Court found the following factors relevant in finding an agency had
associational standing even though it was not a traditional voluntary membership organization:
[The members] alone elect the members of the Commission; they alone finance its
activities, including the costs of this lawsuit, through assessments levied upon
them. In a very real sense, therefore, the Commission represents the State’s
growers and dealers and provides the means by which they express their
collective views and protect their collective interests.
8
Id. at 344–45.
B.
ANALYSIS
Defendants’ challenge to Plaintiffs’ standing focuses on the first requirement set forth by
the Supreme Court in Hunt. Regarding the second Hunt requirement, the interests that Plaintiffs
seek to protect are germane to their asserted environmental purpose. Regarding the third Hunt
requirement, neither the claims asserted by Plaintiffs nor the relief they request require
participation of their individual members, since the injunctive relief sought by Plaintiffs, if
granted, will inure to the benefit of their members who are actually injured. See Warth, 422 U.S.
at 515. Accordingly, whether Plaintiffs have standing to pursue their CWA claim against
Defendants hinges on: (1) whether the individuals Plaintiffs identify to be their members are, in
fact, members of the organizations and, if so, (2) whether the members have suffered an injuryin-fact such that they would otherwise have standing to sue on their own behalf.
i.
Whether the Individuals Identified by Plaintiffs Are Indeed
Members of the Organizations
Defendants maintain that Waterkeeper cannot claim to have any members because it was
involuntarily dissolved before this suit was filed, Defs.’ Mot. Summ. J. 15, and because its
bylaws specifically prohibit members. Defs.’ Resp. to Pls.’ Mot. Summ. J. 43, ECF No. 73.
Defendants also argue that Prairie Rivers has not offered any evidence that Art Norris is a
member of its organization. Id. at 41–42. Plaintiffs respond that Waterkeeper’s involuntary
dissolution is of no moment because it was properly reinstated, 5 Pls.’ Resp. to Defs.’ Mot.
5
Norris, in his capacity as the Executive Director for Waterkeeper since 2009, allows that Waterkeeper was
involuntarily dissolved because it had failed to file an annual report. Second Norris Decl. ¶ 5, ECF No. 83. Upon
learning of this dissolution, Norris submitted the application for Waterkeeper’s reinstatement and the Illinois
Secretary of State reinstated Waterkeeper retroactive to April 13, 2012, prior to when the Complaint was filed. Id.
Norris avers that Waterkeeper is now in good standing, citing Waterkeeper’s Certificate of Good Standing. See Pls.’
Ex. A, ECF No. 83–1.
9
Summ. J. 29–32, and that they have provided specific evidence of Art Norris’s and John
Daggett’s membership with Waterkeeper since at least 2009 and 2010, Pls.’ Resp. to Defs.’ Mot.
Summ. J. at 17, and of Norris’s membership with Prairie Rivers since 2010. Id.
1.
Whether Waterkeeper Had the Capacity to Bring Suit
The Court first turns to the effect of Waterkeeper’s involuntary dissolution. Although
Defendants argue that Waterkeeper lacks standing, the relevant inquiry concerning
Waterkeeper’s ability to bring suit given its dissolution at the time the complaint was filed is
whether Waterkeeper had the capacity to bring suit. Lack of standing and lack of capacity to sue
are distinct concepts: “standing to sue” examines whether a party has a legally protectable and
tangible interest at stake in the litigation, whereas “capacity to sue” concerns a party’s legal
authority or power to sue or be sued. 4-17 Moore’s Federal Practice - Civil § 17.20 (2014).
Parties with the legal capacity to sue may not have standing to prosecute a particular action. See
id.
Section 112.45(d) of the Illinois General Not For Profit Corporation Act, which governs
Waterkeeper’s capacity to sue in federal court, see Fed R. Civ. P. 17(b)(2), provides:
Upon the filing of the application for reinstatement, the corporate existence for all
purposes shall be deemed to have continued without interruption from the date of
the issuance of the certificate of dissolution, and the corporation shall stand
revived with such powers, duties and obligations as if it had not been dissolved;
and all acts and proceedings of its shareholders, members, officers, employees, and
agents, acting or purporting to act in that capacity, and which would have been
legal and valid but for such dissolution, shall stand ratified and confirmed.
805 ILCS 105/112.45(d). The plain language of the Not for Profit Act’s saving provision
provides that upon Norris’s proper application for Waterkeeper’s reinstatement, see n.4 supra,
the entity was revived retroactively to April 13, 2012 “as if it had not been dissolved.”
Accordingly, the Court concludes that Waterkeeper had the capacity to bring this suit.
10
The Court also finds persuasive Plaintiffs’ alternate theory: that even if the Court were to
find that Waterkeeper’s corporate existence was not retroactive, it had standing to sue as a
voluntary unincorporated association. Under Illinois law, which would govern this alternate
analysis, see Fed. R. Civ. P. 17(b)(3), it appears that Waterkeeper would qualify as a “voluntary
unincorporated association,” which is defined as “any organization of 2 or more individuals
formed for a common purpose, excluding a partnership or corporation.” 805 ILCS 5/2-209.1.
As such, Waterkeeper would be entitled to sue and be sued. See id.
2.
Whether Waterkeeper Has Sufficient Indicia of
Membership To Have Associational Standing
As indicated above, under the doctrine of associational standing an organization may
bring suit on behalf of its members whether or not the organization itself has suffered an injury
from the challenged action. Hunt, 432 U.S. 342–44. Before undertaking Hunt’s tripartite test,
this Court must consider the effect of Waterkeeper’s bylaws in determining whether its
“members” have “all the indicia of membership in an organization.” Hunt, 432 U.S. at 344. The
Supreme Court in Hunt held that despite the fact that the state-created grower’s commission had
no “members . . . in the traditional trade association sense” it had associational standing to bring
suit because “[i]n a very real sense . . ., the Commission represents the growers and dealers and
provides the means by which they express their collective views and protect their collective
interests.” Id. at 345.
Although not addressed in the parties’ briefing, the Court finds the following cases to be
instructive concerning the indicia of membership analysis. Several district courts to consider the
indicia of membership question have concluded that where the relationship between an
organization and its members is more akin to a business-consumer relationship, an organization
cannot assert associational standing because it does not represent its members’ interests. See,
11
e.g., Group Health Plan, Inc. v. Phillip Morris Inc., 86 F. Supp.2d 912, 918 (D. Minn. 2000)
(finding that “the relationship between [the HMOs] and their ‘members’ is most aptly described
as that of a business-consumer relationship, which is readily distinguishable from the traditional
association-member relationship necessary to support an assertion of associational standing.”);
Allstate Ins. Co. v. City of Chicago, 2003 U.S. Dist. LEXIS 6180, at *10-11 (N.D. Ill. Apr. 10,
2003) (concluding that where plaintiffs did not allow their insureds any input regarding how the
businesses were managed or who was in control, and did not otherwise provide a forum for the
insureds to express their views or have their interests in a clean environment protected, plaintiffs
could not assertion associational standing); Clonlara, Inc. v. Runkel, 722 F. Supp. 1442, 1449-51
(D. Mich. 1989) (holding that where a non-profit corporation’s alleged members merely
purchased a service but did not elect members of the corporation’s board, could not serve on the
board, and did not finance the corporation’s activities such as the costs of litigation, the
corporation could not assert associational standing.)
Unlike the organizations in Allstate, Group Health, and Clonlara, Plaintiffs’ factual
assertions make clear that Waterkeeper’s members are not merely customers.
Rather, its
members have come together to form an organization for their mutual aid and benefit. Cf.
International Union, United Auto., etc. v. Brock, 477 U.S. 274, 290 (1986) (“[T]he doctrine of
associational standing recognizes that the primary reason people join an organization is often to
create an effective vehicle for vindicating interests that they share with others.”). Although
Waterkeeper’s Board appears to be self-perpetuating6, its approximately 160 members
voluntarily associate with the organization7 and their financial contributions are intended to
6
Waterkeeper holds annual meetings wherein the Board elects new members. The meetings are open to members.
Sec. Norris Decl. at ¶¶ 23, 24.
7
Norris Decl. at ¶ 56, ECF No. 62.
12
promote Waterkeeper’s mission – including financing the litigation expenses arising from this
case. See Sec. Supp. Norris Decl. ¶¶ 14, 25.
Waterkeeper’s purpose of “promot[ing]
conservation of . . . bodies of water, and wetlands in the vicinity of the Quad Cities in Illinois
and Iowa . . . monitor[ing] the quality of these bodies of water and wetlands . . . [and]
undertak[ing] litigation to protect and/or restore these bodies of water and wetlands,”
Waterkeeper Bylaws at Art. 1, § 2, is germane to the aims of the instant lawsuit. Compare U.S.
Public Interest Research Group v. Bayou Steel, Inc., Civ. A. No. 96-0432, slip op. at 5 (E.D. La.
Sept. 15, 1997) (holding that an organization could assert associational standing even though
corporate charter expressly prohibited members where it provided a means of expressing the
collective views of its members and protected their collective interests in environmental issues)
with Hunt, 432 U.S. at 344 (finding that an association created for purpose of protecting and
promoting Washington state apple industry may seek to vindicate its members’ commercial
interests). In spite of the prohibition against members found in its bylaws, the Court concludes
that Waterkeeper provides a means of expressing and protecting its constituents’ collective
interests. For these reasons, the Court concludes that Waterkeeper has the requisite indicia of
membership to assert associational standing for its members.
3.
Whether Art Norris is a Member of Prairie Rivers
Defendants argue that Norris’s affidavit which asserts his membership in Prairie Rivers
since 2010 is conclusory and should be disregarded. See Defs.’ Resp. at 41. However, the Court
agrees with Plaintiffs that the case Defendants cites in support of their argument is
distinguishable. In Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878 (7th Cir. 1998), the
plaintiff offered an affidavit stating that every time he or another African-American employee
complained about a white employee, the employer would not investigate the allegations against
13
white employees but would take a “scapegoat approach in dealing with employee problems and
generally tended to cover up matters.” Id. at 887. The portions of affidavits that were stricken in
Drake included inferences and opinions not substantiated by specific facts.
In contrast,
paragraph four of Norris’s affidavit contains no opinion or inference but merely states a fact. His
assertion is bolstered by the affidavit of Prairie Rivers’ Executive Director Glynnis Collins, who
avers “Art Norris is currently a member of Prairie Rivers Network, and he has been a member
continuously since February 26, 2010.” Glynnis Decl. ¶ 4, ECF No. 82. These affidavits
specifically identify Norris as a member of Prairie Rivers and Defendants have offered no
evidence to rebut them. Accordingly, the Court concludes that the Norris and Glynnis affidavits
sufficiently identify Norris as being a member of Prairie Rivers, and likewise concludes that the
Norris and Daggett affidavits8 sufficiently identify the two men as being members of
Waterkeeper – all prior to the filing of the complaint.
ii.
Whether the Individuals Properly Identified as Members by
Plaintiffs Have Suffered an Injury-in-Fact
Defendants argue that Plaintiffs’ members cannot show an injury-in-fact because their
interests are either too generalized, or are premised upon trespassing on Francis Ballegeer’s
property.9 Defs.’ Mot. Summ. J. 16–21. Plaintiffs argue that their members’ injuries to their
aesthetic and recreational enjoyment are exactly the type of harms that qualify as injuries-in-fact,
8
Norris Decl. at ¶ 3; Daggett Decl. at ¶ 4, ECF No. 63.
9
The Court briefly addresses Defendants’ additional argument that Plaintiffs’ members’ visits to the Green River
since May 19, 2011 were made “for the express purpose of obtaining evidence to support this litigation.” Defs.’
Resp. to Pls.’ Mot. Summ. J. 46. The Court has reviewed the citations Defendants offer in support of their
suggestion and finds them to present an unfairly restrictive view of the record evidence as a whole. Simply because
Plaintiffs noticed a harm to a specified area of the Green River on a certain date and returned to investigate this harm
does not necessary lead to the conclusion that all of Plaintiffs’ visits to that area since that time has been geared
toward collecting evidence. Given Plaintiffs’ affidavit testimony that they have used and intend to continue to use
and enjoy the Green River adjacent to the Ballegeer property, see Norris Decl. ¶ 58, 59; Daggett Decl. ¶ 29, the
Court concludes that Defendants’ argument on this point is meritless.
14
Pls.’ Reply at 18–21, and that their members’ other asserted injuries are not premised upon
illegal acts. Id. at 21–28.
1.
Whether Plaintiffs’ Members’ Interests Are Too
Generalized
In order to satisfy the first Hunt prong Plaintiffs must “include at least one member with
standing to present, in his or her own right, the claim (or the type of claim) pleaded by the
association.” United Food & Commer. Workers Union Local 751 v. Brown Group, 517 U.S. 544,
555 (1996). Notably, the Seventh Circuit does not require that the members suffering injury be
named. Disability Rights Wisconsin, 522 F.3d 796, 802 (7th Cir. 2008) (the first Hunt prong
“still allows for the member on whose behalf the suit is filed to remain unnamed by the
organization”).
Plaintiffs allege that their members reside in the vicinity of the lower Green River, that
they use and enjoy the lower Green River, including the section of river adjacent to the Ballegeer
property and approximately one mile downstream of the Ballegeer property, and that they are
adversely affected by Defendants’ illegal activities. Pls.’ Mot. Summ. J. ¶ 6. These allegations
are supported with the affidavits of two organization members: Norris and Daggett. Both live in
the vicinity of the lower Green River. Norris Decl. ¶ 2; Daggett Decl. ¶ 3. Both use the affected
portions of the Green River by swimming, fishing, boating, photographing, and observing
wildlife. Norris Decl. ¶ 6; Daggett Decl. ¶¶ 5, 6. Both state their concern about the condition of
the Green River directly adjacent to the Ballegeer property and approximately one mile
downstream, both believe their recreational and aesthetic interests are affected by pollution of
those waters, and both intend to return to the portions of the Green River at issue. See, e.g.,
Norris Decl. ¶¶ 10–14, 28–31, 49–52, 59; Daggett Decl. ¶¶ 7–9, 11–17, 28, 29.
15
These affidavits are sufficient to allege an injury-in-fact based on Norris’s and Daggett’s
alleged diminution of their aesthetic and recreational interests. 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).
The affidavits of Norris and Daggett are not mere “general averments” and
“conclusory allegations,” id. at 184; rather, Norris and Daggett assert that Defendants’
discharges of concrete and dredged sand, and the affiant members’ reasonable concerns about the
effects of those discharges, directly affect their recreational and aesthetic interests. Nor do
Norris and Daggett allege that they use “unspecified portions of an immense territory.” Id. at
183. Rather, Plaintiffs have identified a specific area of the Green River where Defendants’
alleged illegal activities have harmed their interests.
2.
Whether Plaintiffs’ Members’ Interests Are Premised
Upon Illegal Acts
Defendants assert that Plaintiffs’ members’ allegations of aesthetic and recreational harm
cannot be injuries-in-fact because they were discovered via illegal acts under Illinois law. Def’s
Mot. Summ. J. 16. In Defendants’ estimation, Francis Ballegeer owns both sides of the Green
River corresponding to Sites 1–5 and therefore Plaintiffs could not fish, id. at 17–18, boat, id. at
18–19, wade, id. at 19–20, or have a viable aesthetic injury, id. at 20–21, without trespassing on
Francis Ballegeer’s property. Plaintiffs maintain that their aesthetic injuries are not dependent on
being able to view Defendants’ concrete dumping and sand dredging activities by boat. Plaintiffs
claim that these activities are viewable from the publicly accessible Hennepin Canal Parkway
Trail. Pls.’ Resp. to Defs.’ Mot. Summ. J. 21. Plaintiffs also assert that whether Francis
Ballegeer owns both sides of the Green River at the areas corresponding to Sites 1–5 is
16
immaterial as to their boating activities because the general public has an easement of navigation
on the Green River. Pls.’ Resp. to Defs.’ Mot. Summ. J. 23. Finally, Plaintiffs argue that they
have experienced diminished use and enjoyment of the Green River downstream from
Defendants’ property, and that the Court need not decide the legality of Plaintiffs’ members’
right to boat on the areas of the Green River Francis Ballegeer claims to own. Id. at 22.
As indicated in note 3 supra, the Court has concluded that there remains a dispute of
material fact concerning whether Francis Ballegeer owns both sides of the Green River
corresponding to Sites 1–5. The Court need not consider Defendants’ argument that Plaintiffs’
members’ alleged trespassing negates their ability to assert an injury-in-fact arising from
aesthetic and recreational harm. Defendants do not dispute that the geographical area Plaintiffs’
members allege that they plan to return to encompasses “both the section of river adjacent to the
Ballegeer property, as well as the mile (approximately) of river that is downstream of the
Ballegeer property.” Pls.’ Mot. Summ. J. ¶ 6. However, Defendants do dispute that Plaintiffs’
members’ “are reasonably concerned that the amount of concrete, rebar, asphalt, sediment, and
other construction waste discharged by Defendants at Sites 1-5 . . . will have harmful effects on
the river habitat and species downstream of Defendants’ property.” Pls.’ Resp. ¶ 25. Defendants
maintain that their actions “have not harmed any of Plaintiffs’ alleged activities,” Defs.’ Reply ¶
25, citing affidavit testimony that indicates fishing has actually improved on the relevant portions
of the Green River and that significant dirt, silt, and sediment capable of degrading fish habitat
and water quality has been present for years. Id.
The Supreme Court has found evidence similar to that of Plaintiffs’ sufficient to establish
injury-in-fact. In Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181
(2000), the Court concluded that the environmental group members established injury-in-fact
17
where their “reasonable concerns about the effects of [Laidlaw’s discharges], directly affected
[their] recreational, aesthetic, and economic interests.” Friends of the Earth, 528 U.S. at 183–84.
Similarly, here Plaintiffs’ members’ statements that their use of the Green River at Sites 1–5 and
approximately one mile downstream has been diminished due to their concerns about discharge
from a particular source (here, Defendants’ discharge from the Ballegeer property) are sufficient
to establish injury in fact. Because the Court concludes that a reasonable jury could find
Plaintiffs’ concerns to be reasonable, the Court DENIES Defendants’ Motion for Summary
Judgment on the basis that Plaintiffs lack standing.
III.
THE MERITS OF PLAINTIFFS’ CWA CLAIMS
A.
LEGAL STANDARD
The CWA prohibits “the discharge of any pollutant” into federally protected waters
without a permit from the Corps. 33 U.S.C. §§ 1311(a), 1344(a). “The discharge of a pollutant”
is defined broadly to include “any addition of any pollutant to navigable waters10 from any point
source11.” § 1362(12).
The CWA defines “pollutant” broadly to include not only traditional
contaminants but also solids such as “dredged spoil, solid waste . . . biological materials, . . .
rock, sand . . ..” § 1362(6). Although the Corps’ regulations do not define “dredged spoil,” they
define “dredged material” as “material that is excavated or dredged from waters of the United
States.” 33 C.F.R. § 323.2(c). The Corps defines the discharge of dredged materials to be “any
addition of dredged material into, including any redeposit of dredged material other than
incidental fallback within, the waters of the United States.” 33 C.F.R. § 323.2(d)(1).
The CWA authorizes the Secretary of the Army, acting through the Corps, to issue
general permits for certain activities that the Secretary determines “will cause only minimal
10
“Navigable waters” are defined as “the waters of the United States, including the territorial seas.” § 1362(7).
11
“Point source” is defined as “any discernible, confined and discrete conveyance.” 33 U.S.C. § 1362(14).
18
adverse environmental effects when performed separately, and will have only minimal
cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1). Nationwide permits
(NWPs) are a type of general permit issued by the Chief of Engineers and are designed to
regulate certain activities having minimal effects.
33 C.F.R. § 330.1(b).
An activity is
authorized under an NWP only if that activity and the permittee satisfy all of the NWP’s terms
and conditions.
33 C.F.R. § 330.1(c).
All NWPs must comply with general terms and
conditions, and many NWPs have their own specific conditions.
Snoqualmie Valley Pres.
Alliance v. United States Army Corps of Eng’rs, 683 F.3d 1155, 1161 (9th Cir. 2012).
Additionally, activities are also subject to any regional conditions imposed by the local Corps
district, see Altamaha Riverkeeper v. United States Army Corps of Eng’rs, 309 Fed. Appx. 355,
357 (11th Cir. 2009), and must comply with case specific conditions imposed by states pursuant
to CWA Section 401 certification. See generally JE 1, ECF No. 39. Activities falling within the
scope of an NWP are automatically authorized without any individualized inquiry, although
preconstruction notification of the Corps is required in some cases. 33 C.F.R. § 330.1(e).
B.
ANALYSIS
i.
Defendants’ Motion for Summary Judgment on Plaintiffs’ Third
Claim for Relief
Defendants argue that they are entitled to judgment as to the Third Claim of Plaintiffs’
Amended Complaint because their sand dredging activities did not constitute a violation of
Section 301(a) of the CWA, Defs.’ Mot. Summ. J. at 21–23, and because the removal of material
from a waterway is only regulated under Section 10 of the Rivers and Harbors Act and the Green
River is not subject to regulation under that Act. Id. at 24 –25.
The parties agree that the Green River is a water of the United States under the CWA,
JUMF ¶ 11, and that excavators are point sources within the meaning of the CWA, id. at ¶ 8.
19
Nor do the parties dispute that David Ballegeer removed sand bars12 from the Green River at Site
3 with an excavator13 that had a bucket attached to the end of its boom. Defs.’ UMF ¶¶ 18, 19.
Whether the bucket had any holes which allowed for sand to spill from it, thereby relocating the
sand to a different area than where it was original located, is an important area of dispute.
Defendants maintain that the bucket had no holes and that there was only minimal spillage of
sand while David Ballegeer removed sand from the sand bar. David Ballegeer Dep. 66:3-7, 1924, JE 5, ECF No. 43. Plaintiffs assert that the bucket “contained two rows of about 7-8 slotted
holes in the bottom of it that were approximately an inch thick and 4-5 inches in length.” White
Decl. ¶ 13, ECF No. 71. David Ballegeer’s son Josh allowed Jim White to operate the excavator;
White avers that every time a bucket of sand was retrieved from the Green River and rotated
back toward the riverbanks “[he] saw wet sand and mud splashing down in the River. Water and
sand overflowed from the bucket back into the River in the approximately 20 feet between where
the bucket exited the water and the banks of the River.” Id. at ¶ 15. White allows that “Josh
Ballegeer was more skilled than I was at operating the excavator and collecting sand, but sand,
water and mud still overflowed back into the river the whole way back to the bank from when
the bucket came out of the water.” Id. at ¶ 16. In 2012, White saw the same excavator in the
same area (where they had dug sand in 2007) on four separate trips up the Green River. Id. at
¶ 19.
Defendants maintain that they did not add a pollutant to the areas of the Green River at
issue because any incidental fallback from their excavation activities is not an addition and
therefore not regulated, citing National Mining Ass’n v. United States Army Corps of Eng’rs, 145
12
Plaintiffs dispute this fact in that they contend Defendants’ sand dredging activities resulted in excavation below
the natural river bottom. Pls.’ Resp. DUMF ¶ 18.
13
The excavator is frequently referenced in the pleadings as a long stick backhoe but is, in fact, an excavator. See
David Ballegeer Dep. at 62: 13-17, JE 5, ECF No. 43
20
F.3d 1399 (D.C. Cir. 1998). However, Plaintiffs assert that Defendants have not met their
burden of establishing that the redeposits were incidental fallback because they have not put
forth sufficient evidence regarding the nature of the deposits or the location where they fell back
into the river. Pls.’ Resp. 34–35.
In National Mining, the Court held that the Corps had exceeded its authority under
section 404 of the CWA by regulating the redeposit of dredged materials that incidentally fall
back in the course of dredging operations. The National Mining Court explained that “the
straightforward statutory term ‘addition’ cannot reasonably be said to encompass the situation in
which material is removed from the waters of the United States and a small portion of it happens
to fall back.” 145 F.3d at 1404. The D.C. District Court later determined that the Corps’ usage
of volume as a metric in determining what constituted incidental fallback was flawed. Nat’l
Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 2007 U.S. Dist. LEXIS 6366, 11-12
(D.D.C. 2007) (“The difference between incidental fallback and redeposit is better understood in
terms of two other factors: (1) the time the material is held before being dropped to earth and
(2) the distance between the place where the material is collected and the place where it is
dropped.”)
In drawing all reasonable inferences in favor of Plaintiffs, which at this stage it must do,
the Court concludes that ambiguities remain as to the temporal and geographic nature of the sand
and other dredging materials which spilled from the bucket. For instance, a reasonable jury
could find White’s testimony credible regarding the holes in the bucket allowing for wet sand
and mud to splash down into the river as it rotated toward the bank. A reasonable jury could
then find that the spillage was not merely incidental fallback. To that end, Defendants’ argument
that only the Rivers and Harbors Act (rather than the CWA) regulates their removal of sandbars,
21
and that the Green River is not regulable under that statute, is misguided. Defendants allow that
“the removal of sand from the Green River would be considered a discharge,” Defs.’ Mot.
Summ. J. at 25, and thus regulable under the CWA, “if Defendants were replacing the dredge
material within the water, but the excavation of sand itself is not a discharge.” Id. However,
because a material factual dispute remains as to whether Defendants’ excavation resulted in the
discharge of material into the Green River that is not incidental fallback, it would be premature
for this Court to determine that the CWA does not regulate Defendants’ activity with respect to
Claim 3. Accordingly, the Court DENIES Defendants’ Motion for Summary Judgment on the
merits.
ii.
Plaintiffs’ Motion for Summary Judgment on Plaintiffs’ First and
Second Claims for Relief
Plaintiffs seek judgment as to their First and Second Claims that Defendants that violated
the Clean Water Act by discharging construction waste on the banks of and into the navigable
waters of the Green River without a permit in violation of CWA Section 301. Pls.’ Mot. Summ.
J. at 13–24. The First Claim concerns Defendants’ alleged discharge of concrete and other
pollutants onto the banks of the Green River below the ordinary high water mark, Compl. ¶ 54,
ECF No. 5, while the Second Claim concerns Defendants’ alleged discharge of pollutants onto
the bed and river bottom of the Green River. Id. at ¶ 59. Defendants respond that there exists a
genuine issue of material fact as to whether their activities are not authorized under NWP 13
(governing bank stabilization), NWP 3 (governing maintenance), or section 1344(f)(1)(B)
(CWA’s statutory maintenance exception.)
Defendants admit that they did not have an individual CWA Section 404 permit for any
of their discharges. JUMF ¶ 18. Defendants do not dispute that the concrete and rebar they
discharged on the banks of the Green River below the ordinary high water mark qualify as
22
“pollutants” within the meaning of the CWA. JUMF ¶¶ 4–7. Defendants agree that their
excavator qualifies as a “point source” under the CWA. Id. at ¶¶ 7–9. Defendants admit that the
Green River is a water of the United States under the CWA. Id. at ¶ 11.
The Court first turns to NWP 13 which is subject to a number of relevant conditions:
NWP General Condition 14, NWP 13 specific conditions (a), (b), and (f), the Corps’ Regional
Condition 1, and Illinois Environmental Protection Agency Conditions 1, 2, and 5.
At this stage, Plaintiffs must identify those portions of the record which they believe
demonstrate the absence of a genuine issue of material fact regarding Defendants’
noncompliance with at least one condition of NWP 13. The Court concludes that Plaintiffs have
met their summary judgment burden; they have indicated that Defendants have failed to meet
Illinois Condition 2. NWP 13 Illinois Condition 2 states:
2. Asphalt, bituminous material and concrete with protruding material such as
reinforcing bars or mesh shall not be:
A. used for backfill;
B. placed on shorelines/streambanks; or
C. placed in waters of the State.
JE 1 at 8, ECF No. 39; JE 2 at 8, ECF No. 40; (emphasis added). In the parties’ Joint Statement
of Material Facts, Defendants admitted that they “did not wait for no or low flow conditions on
the Green River to discharge concrete and other materials on the banks of the Green River below
the ordinary high water mark,” ¶ 23 of JUMF, that they “would add concrete and other materials
on the banks of the Green River below the ordinary high water mark so long as it was not
flooding,” id. at ¶ 24, and that they “have cut protruding rebar off concrete pieces on the banks of
the Green River below the ordinary high water mark at the request of the Corps after the filing of
Plaintiffs’ Complaint.” Id. at ¶ 29.
23
Defendants’ failure to satisfy one mandatory condition is enough to disqualify their
activities from being covered under NWP 13. 33 C.F.R. § 330.1(c). Even construing all facts in
a light most favorable to the Defendants and drawing all reasonable inferences in their favor, the
Court can reach no other conclusion than Defendants discharged concrete containing protruding
rebar onto the banks of the Green River below the ordinary high water mark. Plaintiffs’ Motion
for Partial Summary Judgment is GRANTED to the extent that Defendants cannot claim their
activities were authorized under NWP 13.
The Court next turns to NWP 3, which is subject to the following relevant conditions:
NWP General Condition 12 and Illinois Environmental Protection Agency Conditions 5 and 6.
Again, Plaintiffs need only prove that Defendants have not met one mandatory condition
underpinning NWP 3 in order for Defendants’ reliance on the permit to fail.
33 C.F.R.
§ 330.1(c). With respect to Illinois Condition 5 (governing procedures to reduce erosion during
construction) and NWP General Condition 12 (governing soil erosion and sediment controls),
Plaintiffs argue that Defendants “admit they did not undertake any erosion control measures
during their discharges of concrete into the Green River.” Pls.’ Mot. Summ. J. 20. In support of
this assertion, Plaintiffs cites certain two disputed factual statements and David Ballegeer’s
deposition testimony. The Court finds the following passage from David Ballegeer’s testimony
important in this respect:
Q: . . . Did you give any instructions to your employees or to your sons about
sediment controls when they were putting the concrete in place, keeping sediment
out of the river?
A: Dirt?
Q: Yes.
A: Correct.
Q: And what instructions did you give them?
A: If there was any dirt, it went over to the inland side or on top, nothing -- dirt
was not supposed to go into the river.
24
Q: And your testimony is whenever you put concrete down here, it never resulted
in any sediment or dirt going in the Rock River14?
A: That was the goal.
Q: I know it was the goal, but the question is, did it happen?
A: No, not to my knowledge.
Q: But you didn’t do anything special to prevent it?
A: No.
David Ballegeer Dep. 94:4–95:1. In reviewing record evidence in a light most favorable to
Defendants, the Court cannot conclude that they did not undertake any soil erosion and sediment
control measures. Illinois Condition 5 and NWP General Condition 12 both require appropriate
measures to be taken to reduce erosion during construction, but although Illinois Condition 5
gives examples of what these interim measures might be, it does not require strict adherence to
using these measures. It is possible that a reasonable jury could find that David Ballegeer’s
instructions to keep dirt confined to the inland side or on top of the concrete constituted
sufficient erosion control measures.
Illinois Condition 6 specifies “[an] applicant for Nationwide 3 shall implement erosion
control measures consistent with the “Illinois Urban Manual.” JE 1 at 3, JE 2 at 3. Plaintiffs
assert that Defendants were unfamiliar with the Illinois Urban Manual and that they did not use
any erosion control measures in compliance with the Manual. Pls.’ Mot. Summ. J. at 21.
Defendants offer no rebuttal on this point other than to argue that the concrete they placed on the
banks of the Green River was the erosion control, Defs.’ Resp. to PSF ¶ 25, but of course this
does not address whether Defendants knew of and implemented erosion control measures
consistent with the Illinois Urban Manual.
To that end, David Ballegeer testified at his
deposition that he was not familiar with the Manual.
David Ballegeer Dep. 98:24–99:1.
Accordingly, the Court concludes that even when viewing the record evidence in a light most
14
The Court notes that although counsel questioned David Ballegeer about sediment entering the Rock River, a
comprehensive reading of the exchange clearly shows that David Ballegeer was being questioned about the areas of
the Green River adjacent to Sites 1–5. See David Ballegeer Dep. 91:16–92:17.
25
favorable to Defendants, Plaintiffs have properly supported their motion with evidence
establishing that Defendants did not adhere to Illinois Condition 6. As such, Plaintiffs’ Motion
for Summary Judgment is GRANTED to the extent that Defendants’ activities are not authorized
under NWP 3.
Finally, the Court turns to the CWA’s section 1344(f)(1)(B) maintenance exception.
Section 1344(f)(1) provides an exemption from the permit process for discharges caused by the
maintenance of dikes and states in relevant part:
(1) Except as provided in paragraph (2) of this subsection, the discharge of
dredged or fill material
B) for the purpose of maintenance, including emergency reconstruction of
recently damaged parts, of currently serviceable structures such as dikes,
dams, levees, groins, riprap, breakwaters, causeways, and bridge
abutments or approaches, and transportation structures;
…
is not prohibited by or otherwise subject to regulation under this section or subject
to regulation under this section or section 1311(a) or 1342 of this title (except for
effluent standards or prohibitions under section 1317 of this title).
33 U.S.C. § 1344(f)(1)(B). The Seventh Circuit has held that the exceptions found in this
provision are to be narrowly construed. United States v. Huebner, 752 F.2d 1235, 1241 (7th Cir.
1985). Plaintiffs argue that Defendants’ actions could not constitute maintenance under the
maintenance exception because, according to the regulation, “maintenance does not include any
modification that changes the character, scope, or size of the original fill design . . . .” 33 C.F.R.
§ 323.4(a)(2). In support of their argument, Plaintiffs cite David Ballegeer’s testimony averring
that concrete was first added to the shoreline in 1985 and that Defendants have continued to
bring concrete there. David Ballegeer Dep. 16:11–17. Plaintiffs offer two expert reports by
26
Daniel Hunt,15 wherein he states that 1,608 linear feet of concrete have been added to Site 5 from
2007–2012, Ex. A to Plf’s Mot. Summ. J., ECF No. 61-1, and that 634 linear feet of concrete
have been added to Sites 1 and 2 from 2007–2012. Ex. B to Plfs.’ Mot. Summ. J., ECF No. 612.
Defendants admit that in the winter of 2012, David Ballegeer added at least 300 feet of
concrete and construction waste to Site 5. Pls.’ SMF ¶ 14.
As it stands, the Court cannot make a determination as to what the original fill design of
the concrete structure was. The Seventh Circuit held that “original fill design refers to the
manmade structures that are the subject of the exemption (e. g. dikes, dams, levees).” Greenfield
Mills, Inc. v. Macklin, 361 F.3d 934, 953 (7th Cir. 2004) (internal citation omitted). Although
Plaintiffs assert that the Defendants added thousands of linear yards of concrete to the structure,
this assertion only makes it possible – but not certain – that Defendants’ alleged “modification . .
. changed the character, scope, or size of the original fill design.” Without more, and construing
the facts in a light most favorable to Defendants, the Court cannot conclude that Defendants’
activities are precluded from the CWA’s maintenance exception.
Plaintiffs’ Motion for
Summary Judgment is DENIED in this respect.
IV.
PLAINTIFFS’ MOTION TO STRIKE
Discovery was originally scheduled to be completed by November 1, 2013. See October
31, 2012 Minute Entry for Rule 16 Scheduling Conference. However, the parties filed two
motions seeking extensions of the discovery schedule: (1) the first motion requested that expert
testimony and expert rebuttal reports be completed by January 1, 2014, Joint Motion to Enlarge
Time for Discovery 3–4, ECF No. 22; (2) the second motion requested that the discovery
deadline, including Plaintiffs’ experts’ supplemental reports, be extended to March 1, 2014.
15
Defendants suggest that “Plaintiffs’ reliance on Plaintiffs’ Exhibit A and Hunt Decl. is misplaced as his analyses
are fatally flawed.” Dfs’ Resp. at 56. However, Defendants’ only evidentiary support for this assertion derives from
certain paragraphs of the Slowinski Affidavit which the Court has determined shall be stricken. See Section IV infra.
27
Second Joint Motion to Enlarge Time for Discovery 3, ECF No. 31. The Court granted both
motions and, as a result, the deadline for the completion of all discovery was March 1, 2014. See
March 19, 2013 Minute Entry and December 23, 2013 Minute Entry.
Plaintiffs contend that Defendants’ Response to Plaintiffs’ Motion for Partial Summary
Judgment includes expert opinions and legal arguments that were not previously disclosed to
Plaintiffs, in violation of Fed. R. Civ. P. 26(a). Plaintiffs argue that the affidavits of Thomas
Slowinski and Greg Wolterstorff are untimely and include opinions not originally included in
Defendants’ original expert report, the V3 Report. Pls.’ Mot. to Strike 7–13, ECF No. 84.
Plaintiffs claim that the affidavit of Jim Allen is testimony from a previously undisclosed expert.
Id. at 18–20. As such, Plaintiffs request that the Court to strike the Slowinski, Wolterstorff, and
Allen affidavits pursuant to its authority under Fed. R. Civ. P. 37(c). Plaintiffs also ask the Court
to strike Defendants’ V3 Report, arguing: (1) it is redundant in that it is almost entirely based on
the findings made by Corps employee Gene Walsh during his March 7, 2012 inspection of Sites
1–5; (2) it is unreliable because Walsh performed an insufficient inspection of Sites 1–5. Id. at
14–17; and (3) it contains numerous improper legal conclusions. Id. at 17–18.
Defendants maintain that Plaintiffs cannot claim to be surprised or prejudiced by the
opinions expressed in the Slowinski and Wolterstorff affidavits because they “had either been
expressed by Defendants or were of a similar sort as Defendants’ expert had expressed before
(either in the V3 report or within the V3 CEMVR-OD-P-2012-1550 Section 4040 Permit
Response to Comments provided to Plaintiffs in July 2013).” Defs.’ Resp. to Pls.’ Mot. to Strike
3, ECF No. 86. Defendants also argue that whether portions of the V3 Report are based on the
Corps’ on-site inspection goes to the evidentiary weight of the report and not its admissibility.
See id. Finally, Defendants contend that Allen is a lay witness because “as an ILDOT employee,
28
[his] opinions are based on his personal knowledge of ILDOT’s property ownership and are not
expert or specialized testimony.” Id. at 4. Defendants argue that Plaintiffs cannot be surprised by
Allen’s testimony because “the ILDOT’s ownership of the property has been known by all
parties prior to the commencement of this litigation. If called to testify . . . [Allen] … would
testify Plaintiffs communicated with ILDOT on this issue as well.” Id.
Defendants’ Expert Testimony
A.
i.
Slowinski and Wolterstorff Affidavits
A party’s obligation to identify its expert witnesses is set out in Federal Rule of Civil
Procedure 26(a)(2). Under Rule 26(a)(2)(A) “a party must disclose to the other parties the
identity of any witness it may use at trial to present evidence under Federal Rule of Evidence
702, 703, or 705.” There is no question that the testimony Defendants seeks to elicit from
Slowinski and Wolterstorff fall within the scope of these rules of evidence. The purpose of the
disclosure requirements is to guard against prejudice to the opposing party. “Formal disclosure
of experts is not pointless. Knowing the identity of the opponent’s expert witnesses allows a
party to properly prepare for trial.” Musser v. Gentiva Health Servs., 356 F.3d 751, 757 (7th Cir.
2004). “Without proper disclosures, a party may miss its opportunity to disqualify the expert,
retain rebuttal experts, or hold depositions for an expert not required to provide a report.”
Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012) (internal quotation marks and citations
omitted).
As indicated above, Defendants argue that the affidavits of Slowinski and Wolterstorff
are proper as they are limited to matters that “had either been expressed by Defendants or were
of a similar sort as Defendants’ expert had expressed before.” Defs.’ Resp. at 3. The Court
disagrees with respect to paragraph 4 of Slowinski’s affidavit which states “I have reviewed the
29
Expert Reports/GIS Analyses dated June 29, 2013 and February 17, 2014 (“Hunt Reports”) of
Mr. Daniel Hunt and offer the following rebuttal to Mr. Hunt’s opinions . . . .” Slowinski Aff.
¶ 4, ECF No. 77. Even if Slowinski’s opinions were proper rebuttal of the Hunt Reports, they
were clearly submitted outside of the discovery deadline.
Similarly, Plaintiffs argue that
Wolterstorff’s affidavit expresses rebuttal opinions in paragraph 3, subparagraphs (c)–(f). The
Court finds that these subparagraphs inappropriately contain many new facts and are not limited
to responding to the issues raised by the opposing parties’ expert.
The Court is mindful that motions to strike are generally disfavored. See Heller Fin., Inc.
v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989). However, Defendants offer no
substantial justification for their failure to timely submit this rebuttal evidence prior to the
discovery deadline, nor do they explain how their failure was “harmless” to Plaintiffs. Fed. R.
Civ. P. 37(c)(1). Accordingly, the Court GRANTS Plaintiffs’ Motion to Strike to the following
extent: paragraph 4 of Slowinski’s affidavit will be stricken, and paragraph 3, subparagraphs
(c)–(f) of Wolterstorff’s affidavit will be stricken.
ii.
Allen Affidavit
Allen’s Affidavit must be stricken for untimeliness. First, the Court finds that Allen’s
affidavit consists of expert testimony. Allen avers that he based his opinions on his experience
as Land Acquisitions Manager for the Illinois Department of Transportation (“IDOT”) wherein
he regularly reviews warranty deeds, plat maps, and other documents “describing the metes and
bounds of real property,” Allen Aff. ¶ 4, ECF No. 75, his personal knowledge of IDOT policies
and procedures, id. at ¶ 5, and his review of parties’ Joint Exhibit 17 which includes a plat map
and legal description of the Ballegeer property. Id. at ¶¶ 6, 7. The opinions expressed in Allen’s
affidavit fall outside the boundaries of lay opinion testimony. A layperson lacking knowledge of
30
how to interpret plat maps and how to discern the legal descriptions of land could not arrive at
such complicated determinations as Allen made in his affidavit. To admit Allen’s analysis as lay
opinion testimony would circumvent the restrictions on expert testimony set forth in the Federal
Rules of Evidence. See Fed. R. Evid. 701 advisory committee’s note (Rule 701 designed to
prevent avoidance of Rule 702’s reliability requirements by “proffering an expert in lay witness
clothing”). Fed. R. Evid. 701 advisory committee’s note. Second, Defendants did not disclose
Allen as an expert before the discovery deadline. They offer no substantial justification for their
failure to do so, nor do they explain how their failure was “harmless” to Plaintiffs. Fed. R. Civ.
P. 37(c)(1).
Accordingly, the Court GRANTS Plaintiffs’ Motion to Strike in that paragraph 4 of
Slowinski’s affidavit, paragraph 3, subparagraphs (c)–(f) of Wolterstorff’s affidavit, and the
entirety of Allen’s affidavit shall be stricken. The Court did not consider any of Defendants’
responses to Plaintiffs’ statements of fact that relied on the aforementioned.
B.
Defendants’ V3 Report
The Court will briefly address Plaintiffs’ argument that Defendants’ V3 Report, ECF No.
73–1, should be stricken because it lacks a proper basis. Plaintiffs primarily argue that the V3
Report “relies significantly, if not entirely, on Corps’ employee Gene Walsh’s March 7, 2012
onsite inspection on behalf of the Corps and Corps’ employee Donna Jones’s March 9, 2012
letter.” Id. at 14. This reliance is problematic for two reasons: first, the underlying basis is
unreliable; and second, the V3 Report is redundant and does not assist the trier of fact pursuant to
Federal Rule of Evidence 702(a). Pls.’ Mot. to Strike, 13–17.
The fact that the V3 Report may reflect mistaken assumptions goes to the weight
accorded to it, not to its admissibility. Any experts relying on the report are subject to cross
31
examination on this point. See Dwyer Instruments, Inc. v. Sensocon, Inc., 2012 U.S. Dist.
LEXIS 21308 (N.D. Ind. Feb. 21, 2012); LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 661 F. Supp.
2d 940, 956 (N.D. Ill. 2009). Moreover, the Court is mindful that its “role as gatekeeper is not
intended to serve as a replacement for the adversary system.” United States v. 14.38 Acres of
Land, 80 F.3d 1074, 1078 (5th Cir. Miss. 1996). Accordingly, the Court concludes that the
weight and persuasiveness of the V3 Report will be better tested and assessed at trial rather than
on motion practice.
CONCLUSION
For the aforementioned reasons, the Court DENIES Defendants’ Motion for Summary
Judgment, ECF No. 36, GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion for
Partial Summary Judgment, ECF No. 61, GRANTS Plaintiffs’ Motion for Leave to File Excess
Pages and GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion to Strike, ECF No. 84.
All three claims of Plaintiffs’ Amended Complaint remain. However, Defendants cannot claim
their activities were authorized under NWPs 13 or 3. The Clerk of Court is DIRECTED to strike
in paragraph 4 of Slowinski’s affidavit, paragraph 3 subparagraphs (c)–(f) of Wolterstorff’s
affidavit, and the entirety of Allen’s affidavit. As a result of these rulings, the Court DENIES the
parties’ Joint Motion for Status Hearing, ECF No. 87.
Entered this 26th day of March, 2015.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE
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