Rauseo et al v. Army Corps of Engineers et al

Filing 80

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER, granting in part and denying in part 59 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Marco Tammaro, granting 57 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM And Lack of Subject Matter Jurisdiction filed by Army Corps of Engineers, Christopher Barron, Environmental Protection Agency, US.(Lima, Christine)

United States District Court
District of Massachusetts
)
Stephanie Rauseo and Apple Hill )
Neighbors Group,
)
)
Plaintiffs,
)
)
v.
)
)
Army Corps of Engineers, et al., )
)
Defendants.
)
)

Civil Action No.
17-12026-NMG

MEMORANDUM & ORDER
GORTON, J.
This suit arises out of plaintiffs’ claim that 1) Marco
Tammaro violated federal environmental laws by filling his
property with pollutants and 2) the Environmental Protection
Agency and the Army Corps of Engineers failed to investigate and
sanction Tammaro’s noncompliance with federal laws.
I.

Background
A. Factual Background
Stephanie Rauseo (“Rauseo”) lives in the Apple Hill

neighborhood of Lynnfield, Massachusetts, adjacent to the
property at issue in this action (“the Property”).

Rauseo,

along with a local citizens’ group, Apple Hill Neighbors Group
(“Apple Hill plaintiffs”) (collectively “plaintiffs”) allege
that Marco Tammaro (“Tammaro”), the owner of the Property,

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unlawfully discharged fill into federally protected streams or
wetlands without a permit.
Consequently, plaintiffs contacted the Massachusetts
Department of Environmental Protection (“DEP”), the Lynnfield
Planning Board, the Environmental Protection Agency (“EPA”) and
the Army Corps of Engineers (“the Corps”).

Specifically,

plaintiffs complained to the EPA that Tammaro had violated the
Clean Water Act (“the CWA”) to no avail.

In 2016, plaintiffs

discovered that Tammaro’s developer, Peter Ogren (“Ogren”),
provided notice to the Corps that the activities on the Property
were exempt from Section 404 of the CWA.

In response,

plaintiffs urged the New England Engineer of the Corps to
enforce the CWA, claiming that neither an individual nor a
general Section 404 permit authorized Tammaro’s work on the
Property.
In November, 2016, the Corps visited the Property without
notifying plaintiffs and allegedly made a final Jurisdictional
Determination (“JD”) with respect to the Property.

They have

since averred that the Property abuts a conservation area and
that the two water streams that run across the Property and into
the conservation area are waters of the United States that are
subject to EPA drinking water regulations under the Safe
Drinking Water Act (“the SDWA”).

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In November, 2017, plaintiffs sent a 60-day Notice of
Intent to Sue (“NOI”) under the CWA and the SDWA to Tammaro,
representatives of the Commonwealth, the DEP, the U.S.
Department of Justice and the EPA.

Although plaintiffs did not

name the Corps in its NOI, they filed an amended complaint with
this Court in April, 2018, in which they allege: CWA violations
against Tammaro (Count I), CWA violations against EPA and the
Corps (“the federal defendants”) (Count II), SDWA violations
against Tammaro and the federal defendants (Count III), APA
procedural violations against the federal defendants (Count IV),
APA substantive violations against the federal defendants
(Counts V and VII), improper ex parte communications against all
defendants (Count VI) and Sunshine Act violations against the
federal defendants (Count VIII).

Pending before this Court are

motions of the federal defendants and of Tammaro to dismiss for
lack of jurisdiction and failure to state a claim.
II.

Analysis
A. Legal Standard
1. Failure to State a Claim
To survive a motion to dismiss under Fed. R. Civ. P.

12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible
on its face”. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).

In considering the merits of a motion to dismiss, the

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Court may look only to the facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference in
the complaint and matters of which judicial notice can be taken.
Nollet v. Justices of Trial Court of Mass., 83 F. Supp. 2d 204,
208 (D. Mass. 2000), aff’d, 248 F.3d 1127 (1st Cir. 2000).
Furthermore, the Court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in
the plaintiff’s favor. Langadinos v. Am. Airlines, Inc., 199
F.3d 68, 69 (1st Cir. 2000).

If the facts in the complaint are

sufficient to state a cause of action, a motion to dismiss the
complaint must be denied. See Nollet, 83 F. Supp. 2d at 208.
Although a court must accept as true all the factual allegations
contained in a complaint, that doctrine is not applicable to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Threadbare recitals of legal elements which are supported by
mere conclusory statements do not suffice to state a cause of
action. Id.

Accordingly, a complaint does not state a claim for

relief where the well-pled facts fail to warrant an inference of
any more than the mere possibility of misconduct. Id. at 1950.
2. Lack of Jurisdiction
With respect to a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(1), plaintiff bears the burden of establishing
subject matter jurisdiction. Justiniano v. Soc. Sec. Admin., 876
F.3d 14, 21 (1st Cir. 2017).

Under Fed. R. Civ. P. 12(b)(1),

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the district court must construe the complaint liberally,
treating all well-pleaded facts as true and indulging all
reasonable inferences in favor of the plaintiff. Aversa v.
United States, 99 F.3d 1200, 1209–10 (1st Cir. 1996).
A plaintiff may not, however, rest merely on “unsupported
conclusions or interpretations of law”. Washington Legal Found.
v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. 1993).
Subjective characterizations or conclusory descriptions of a
scenario that could be overcome by unpled facts will not defeat
a motion to dismiss. Murphy v. United States, 45 F.3d 520, 522
(1st Cir. 1995).
B. Motion to Dismiss by Federal Defendants
1. Jurisdiction
The federal defendants argue that the citizen suit
provision of the CWA does not explicitly waive the government’s
sovereign immunity interest because plaintiffs have failed to
demonstrate that a clearly mandated, nondiscretionary duty
applies.

Plaintiffs respond that the EPA and the Corps have

failed to perform the following “mandatory” duties: 1) enforce
the CWA, 2) issue a compliance order to Tammaro and 3)
investigate plaintiffs’ complaints against Tammaro.
A waiver of sovereign immunity must be unequivocal and
Sections 505(a)(2) and 1449(a) of the CWA and the SDWA
explicitly waive sovereign immunity with respect to

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nondiscretionary duties of the EPA Administrator. Conservation
Law Found., Inc. v. Pruitt, 881 F.3d 24, 28 (1st Cir. 2018); 33
U.S.C. § 1365 (a)(2); 42 U.S.C. § 300j-8(a)(1)-(2).

It is

clearly established, however, that an agency’s decision not to
prosecute or take enforcement action is “generally committed to
an agency’s absolute discretion”. Heckler v. Chaney, 470 U.S.
821, 831 (1985).

In fact, courts have specifically held that

the EPA is not required to investigate every complaint because
it has discretion to investigate and enforce violations it
believes to be the most serious. Sierra Club v. Whitman, 268
F.3d 898, 902–03 (9th Cir. 2001); Dubois v. Thomas, 820 F.2d
943, 946–47 (8th Cir. 1987) (reversing the district court on the
grounds that EPA does not have a mandatory duty under the CWA to
make findings or carry out an investigation of a citizen
complaint).
Accordingly, because plaintiffs’ claims relate to the EPA’s
failure to issue findings with respect to alleged violations of
the CWA and SDWA, plaintiffs have failed to satisfy the
jurisdictional requirement of a “clearly mandated,
nondiscretionary duty”, thus precluding their citizen suits.
Miccosukee Tribe of Indians of Fla. v. U.S., E.P.A., 105 F.3d
599, 602 (11th Cir. 1997) (internal citations omitted); Whitman,
268 F.3d at 901 (holding that if the Administrator acted within
her discretion, the district court properly dismissed for lack

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of jurisdiction under the CWA); Garling v. United States Envtl.
Prot. Agency, 849 F.3d 1289, 1296 (10th Cir. 2017) (holding that
Congress delegated broad authority to the EPA to implement and
enforce the SDWA).
For completeness, the Court proceeds to address plaintiffs’
claims under the Administrative Procedures Act (“the APA”) and
the Sunshine Act.
2. Dismissal under the APA
The APA does not independently confer subject matter
jurisdiction and thus dismissal of plaintiffs’ claims under the
CWA and the SDWA presumptively precludes plaintiffs’ APA claims.
Even if that were not so and judicial review under the APA were
appropriate, plaintiffs’ claims thereunder would fail as well.
The federal defendants allege that plaintiffs lack standing
because they make no allegations of how the government’s actions
have injured them uniquely.

They fail to address that argument

but instead argue the merits of judicial review under the APA.
Standing is, of course, a threshold question in every case and
plaintiffs’ failure to demonstrate injury, causation and
redressability is grounds for dismissal. Summers v. Fin. Freedom
Acquisition LLC, 807 F.3d 351, 355 (1st Cir. 2015).
Again, assuming arguendo that plaintiffs have satisfied the
procedural hurdles of jurisdiction and standing (which they have
not), the APA authorizes judicial review of “final agency action

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for which there is no other adequate remedy in a court”. 5
U.S.C. § 704.

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

wetland and/or waterbody is subject to regulatory jurisdiction
under Section 404 of the CWA must be in writing and either be
identified as preliminary or approved.

Approved JDs, unlike

preliminary JDs, are considered final agency actions and are
appealable.
Here, plaintiffs have not demonstrated that the Corps
reached an approved JD with respect to the Property and evidence
of the Corps’ written communications with Tammaro’s developer
and with Rauseo herself is not evidence of final agency action.
Cf. Bennett v. Spear, 520 U.S. 154, 177–78, (1997) (holding that
final agency action must 1) mark the “consummation” of the
agency’s decisionmaking process, and 2) the action must be one
by which “rights or obligations have been determined” or from
which “legal consequences will flow”); see also 5 U.S.C. §
551(13) (agency action is to include “the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act”).

In the clear absence of

an approved JD, plaintiffs cannot claim judicial review of a
final agency action under the APA.
Nor does the Corps’ alleged failure to provide plaintiffs
with a written explanation of its evaluation of the Property
constitute a reviewable “final action” because judicial review

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of agency inaction under the APA is initiated where the inaction
occurs in the face of a nondiscretionary duty to act. Norton v.
S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (holding that a
claim under § 706(1) can proceed only where a plaintiff asserts
that an agency failed to take a discrete agency action that it
is required to take).

Again, plaintiffs have not sufficiently

pled that the federal defendants failed to fulfill any mandatory
duty.

As such, no judicial review of defendants’ decision to

forego an enforcement action is warranted.
To the extent plaintiffs raise a due process challenge,
they have failed to contest defendants’ argument that plaintiffs
have not been deprived of a property or liberty interest in the
first place. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
59 (1999) (holding that only after finding the deprivation of a
protected interest do courts look to see if the government’s
procedures comport with due process).

Accordingly, plaintiffs’

due process claim is to no avail.
Finally, the APA prohibits ex parte communications in the
context of formal adjudications but not with respect to informal
adjudications. 5 U.S.C. § 557(d)(1)(A); Portland Audubon Soc. v.
Endangered Species Comm., 984 F.2d 1534, 1539 (9th Cir. 1993).
Pursuant to 33 C.F.R. § 325.1(b), the Corps may 1) advise
potential permit applicants of “studies or other information
foreseeably required for later federal action” and 2) involve

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other affected parties, including the public, although such
communications are not required. Id.

Accordingly, the Corps did

not engage in improper ex parte communications by providing
information to Tammaro or refusing to include plaintiffs as part
of their pre-application consultation discussions.
Thus, even if plaintiffs were entitled to judicial review
under the APA, for the foregoing reasons, the federal
defendants’ motion to dismiss under the APA will be allowed.
3. Dismissal under Ex Parte Contacts and the Sunshine Act
The Sunshine Act requires that certain multi-member federal
agencies conduct open meetings unless a confidentiality
exemption applies. 5 U.S.C. § 552b(a)(2).

The Sunshine Act does

not apply to either the EPA or the Corps and, moreover, the
Corps has promulgated regulations with respect to preapplication consultations which do not require public
participation. 33 C.F.R. § 325.1(b).

Nor can this Court impose

procedural requirements beyond those required by statute or APA
unless required by the U.S. Constitution. Vermont Yankee Nuclear
Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 543–
45 (1978).

Accordingly, plaintiffs have failed to establish a

claim of improper ex parte communications under the Sunshine
Act, the APA or the U.S. Constitution and defendants’ motion to
dismiss will be allowed.

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C. Motion to Dismiss by Tammaro
1. Jurisdiction
In the context of citizen suits, compliance with the 60-day
notice provision is a mandatory condition precedent for suit
that plaintiffs must satisfy. Hallstrom v. Tillamook Cty., 493
U.S. 20, 26 (1989).

Because they have failed to identify with

specificity the members, phone numbers and information of the
Apple Hill Neighbors Group (“Apple Hill plaintiffs”), Tammaro’s
motion to dismiss with respect to the Apple Hill plaintiffs will
be allowed. Garcia v. Cecos Int’l, Inc., 761 F.2d 76, 81 (1st
Cir. 1985) (strictly adhering to the statutory provisions for
citizens’ suits in environmental litigation); Washington Trout
v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995)
(holding that failure to provide notice of other plaintiffs is
grounds for dismissal because but for the notice, defendants
were not in a position to negotiate with the plaintiffs or seek
an administrative remedy).
With respect to the content of the pre-suit notice, Tamarro
argues that plaintiffs’ NOI lacks the requisite specificity
because it does not refer to:

1) a specific standard,

limitation or order violated, 2) dates of the alleged
violations, 3) the pollutants being discharged or 4) the
location of the alleged pollution.

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Plaintiffs’ failure to name a particular pollutant is not
dispositive as to the sufficiency of pre-suit notice. Paolino v.
JF Realty, LLC, 710 F.3d 31, 37 (1st Cir. 2013) (holding that
while other circuits have required notice of a particular
pollutant to withstand a sufficient challenge, the First Circuit
has not explicitly adopted that position).

Moreover, the CWA’s

definition of “pollutant” is broad and plaintiffs allege in
their NOI that Tammaro’s fill includes debris, pipes and
concrete. 33 U.S.C. § 1362(6) (the term “pollutant” means
dredged spoil, solid waste, incinerator residue, sewage,
garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water).

Viewing the

record in favor of the nonmoving party, the Court finds that
plaintiffs have sufficiently provided Tammaro with notice of the
alleged pollutant.
Moreover, the Court finds that plaintiffs have pled with
sufficient specificity the violations alleged, namely, that
defendants placed fill without a permit in violation of CWA
Section 404, obstructed or filled a navigable waterway of the
United States, tampered with a public water supply, etc.
Thus, because plaintiffs’ NOI placed Tammaro on notice and
in a position to remedy the violations alleged, the Court

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declines to dismiss plaintiff’s CWA claim against Tammaro on the
basis of subject matter jurisdiction. Paolino, 710 F.3d at 37.
2. Prior Violations
The CWA and SDWA do not confer federal jurisdiction over
citizen suits for “wholly past” violations. Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49,
63, (1987); Mattoon v. City of Pittsfield, 980 F.2d 1, 6 (1st
Cir. 1992).

Citizen suits may proceed, however, if plaintiffs

have made a good faith allegation of continuous or intermittent
violation. Gwaltney, 484 U.S. at 64.

Viewing all reasonable

inferences in favor of the nonmoving party, the Court finds that
Tammaro’s alleged pollution of two streams with dirt constitutes
a continuous and ongoing violation.

Accordingly, the Court

declines to dismiss plaintiffs’ claims under either the CWA or
the SDWA on the basis of wholly past violations.
3. Standing
Tammaro contends that plaintiffs have not demonstrated any
concrete or actual injury, either individually or as a group,
because the alleged interference with the streams has no direct
bearing on the plaintiffs themselves.

Plaintiffs respond that

the harm is not speculative because the drinking water has
become non-potable.

The Court declines to consider plaintiffs’

recently proffered water report conducted by Ms. Langham because
it is untimely and its authenticity is in dispute. Watterson v.

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Page, 987 F.2d 1, 3 (declining to take judicial notice of
documents whose authenticity is in dispute).

It does find,

however, that plaintiffs have sufficiently pled a cognizable
injury in their amended complaint in that they allege that the
runoff from Tammaro’s property has deposited pollutants into
plaintiffs’ drinking water.
Tammaro ultimately prevails on the other prongs of the
standing analysis, however, because plaintiffs have failed to
prove both traceability and redressability. Lujan, 504 U.S. at
560 (1992) (holding that a litigant must demonstrate that it has
suffered a concrete and particularized injury that is either
actual or imminent, the injury is fairly traceable to the
defendant and it is likely that a favorable decision will
redress that injury).

In their opposition, plaintiffs concede

that even the Lynnfield Water District is unsure of the cause of
the poor drinking water quality.

Thus, even if plaintiffs could

demonstrate a causal connection between Tammaro’s alleged
pollution and the cognizable harm, relief by this Court would
not remedy the alleged harm of non-potable drinking water.

As

such, plaintiffs have failed to satisfy standing requirements
and Tammaro’s motion to dismiss with respect to plaintiffs’ SDWA
claim will be allowed.

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4. Ex Parte Communications
As noted previously, the APA’s prohibition on ex parte
communications applies to formal adjudication and rulemaking.
Because plaintiffs’ claims do not relate to formal proceedings
and the Corps retains discretion with respect to pre-permit
communications, plaintiffs have failed to state a cause of
action with respect to improper ex parte communications.

ORDER
For the foregoing reasons, the federal defendants’ motion
to dismiss (Docket No. 57) is ALLOWED, and Tammaro’s motion to
dismiss (Docket No. 59) is, with respect to plaintiffs’ SDWA and
ex parte communications claims, ALLOWED, but is, with respect to
plaintiffs’ CWA claims, DENIED.

The Apple Hill Neighbors Group

is dismissed as a party-plaintiff to this suit.

So ordered.
_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated March 26, 2019

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