Conservation Law Foundation, Inc. v. Continental Paving, Inc.
Filing
16
CORRECTED ORDER (opinion number) denying 8 Motion to Dismiss Based on Lack of Standing. So Ordered by Chief Judge Joseph N. Laplante. Answer Follow Up on 12/20/2016. The deadline DOES NOT consider the three additional days for mail service that may be applicable to certain parties under Fed. R. Civ. P. 6(d) and Fed. R. Crim. P. 45(c).(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Conservation Law Foundation, Inc.
v.
Civil No. 16-cv-339-JL
Opinion No. 2016 DNH 220
Continental Paving, Inc.,
d/b/a Concord Sand & Gravel
MEMORANDUM OPINION
“Organizational standing” is a frequently contested issue
in citizen enforcement actions.
In the case at bar,
Conservation Law Foundation (CLF) alleges that Continental
Paving, Inc., (operating under the trade name Concord Sand &
Gravel), violated the Federal Water Pollution Control Act by
discharging polluted water without proper authorization or
permits.
CLF seeks declaratory and injunctive relief, and
imposition of civil penalties.
Continental moves to dismiss the
complaint, arguing that CLF lacks organizational standing to
sue.
Specifically, Continental argues that CLF has failed to
identify any of its members who were harmed by Continental’s
alleged activities.
After briefing and oral argument, the court
finds that CLF members have alleged sufficient injury to confer
standing on CLF.
While Continental correctly observes that
CLF’s complaint contains no allegations regarding individual
members, declarations from CLF members appended to its objection
to Continental’s motion to dismiss satisfy the standing
requirement.
The court therefore denies Continental’s motion to
dismiss.
I.
Background1
CLF is a regional, non-profit environmental protection
organization headquartered in Boston.
It has over 3000 members,
including more than 450 in New Hampshire.
Continental operates
two New Hampshire facilities at issue in this litigation:
a
sand and gravel facility in Concord and a sand, gravel and
asphalt paving mixtures facility in Pembroke.
CLF alleges that
Continental engages in various industrial activities at the
facilities, including mining, storing, moving and processing
sand, gravel, rock and other earth materials.
CLF further
alleges that such sand, gravel, rock and other earth materials
are exposed to the elements and are sprayed with water on
occasion.
The Complaint also asserts that Continental
stockpiles, processes, stores and transfers asphalt materials
outdoors; operates, maintains, and stores heavy machinery and
equipment outdoors; and drives vehicles on and off the
facilities via driveways and immediate access roads.
The court has taken the facts from the complaint, except where
noted otherwise.
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When the materials and equipment at the facilities are
exposed to precipitation and snowmelt, the water becomes
polluted with dust, suspended and dissolved solids,
hydrocarbons, heavy metals, sediment, road salt, trash and other
pollutants from the facilities' operation.
CLF alleges that
this polluted runoff is then conveyed through various means,
e.g., site grading, surface water channels, subsurface
connections and pipes, to the Soucook River, its tributaries and
wetlands, and eventually to the Merrimack River.
CLF also
alleges that at the Concord facility, Continental has redirected
an unnamed tributary of the Soucook River under an on-site
access road, after which the tributary connects with and carries
flow from two small constructed ponds, under another interior
access road, and into a large constructed pond located along the
bank of the Soucook River.
This pond has an outlet pipe that
discharges into the Soucook River, then into the Merrimack
River, and thereafter into the Atlantic Ocean.
After
giving
Continental
the
statutorily-required
60-day
notice of intent to file suit,2 33 U.S.C. § 1365(a)(1), CLF filed
The Act authorizes “a person or persons having an interest
which is or may be adversely affected,” to file suit to enforce
the Act's permitting requirements. 33 U.S.C. §§ 1365(a), (g).
The statute and its implementing regulations impose a notice
requirement on citizen suits requiring a would-be plaintiff to
give notice of the alleged violation to the EPA, the State in
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a four-count Complaint, alleging various violations of the Act
related to unauthorized pollution discharges from the facilities.
In its objection to the pending motion, CLF submitted the
declarations of three CLF members -- Thomas Irwin (who also
serves as a vice president and director of CLF), Katharyn Hok
and Mark Feigl.
Each of the three describe their own
interactions with the Soucook and Merrimack Rivers.
For
example, Feigl, a Concord resident, expressed his concern for
the cleanliness of water flowing to the Merrimack from the
Soucook because he has swum, canoed, hunted for ducks and
trained his retrieving dogs there.
Hok, also a Concord
resident, stated that she has used the Soucook and Merrimack
Rivers for canoeing and swimming.
Irwin described hiking,
kayaking and swimming with his children in the Merrimack River.
He also described his children’s school field trips to study the
river.
All three declarants described potential pollution from
the Continental facilities as impacting their future enjoyment
of the rivers.
which the alleged violation occurred, and the alleged violator,
at least sixty days before filing a citizen suit. Id. at
§ 1365(b)(1)(A).
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II.
Legal standards
In considering a motion to dismiss for lack of standing
under Rule 12(b)(1), the court “accept[s] as true all wellpleaded factual averments in the plaintiff’s complaint and
indulge[s] all reasonable inferences therefrom in his favor.”
Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir.2012) (internal
quotation marks omitted).3
The court may also consider material
outside the pleadings, such as affidavits, to aid in its
determination.
(1st Cir. 2002).
Gonzalez v. United States, 284 F.3d 281, 287–88
“[A] suit will not be dismissed for lack of
standing if there are sufficient allegations of fact . . . in
the complaint or supporting affidavits.”
Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 65
(1987) (internal quotations omitted).
Defendants refer to Rule 12(b)(1) in the “Conclusion” sections
of their original and reply memoranda of law. They refer to
Rule 12(b)(6), however in the body of their arguments.
Ultimately, the discrepancy is of no moment, as the court’s
analytical path is the same under Rule 12(b)(6). See McInnisMisenor v. Maine Med. Ctr., 319 F.3d 63, 67 (1st Cir. 2003)
("Normally on a Rule 12(b)(6) motion to dismiss, only the
complaint is reviewed. However, where standing is at issue, it
is within the trial court’s power to allow or to require the
plaintiff to provide by affidavit or amended complaint “further
particularized allegations of fact deemed supportive of
plaintiff’s standing.’”) (quoting Warth v. Seldin, 422 U.S. 490,
501 (1975))).
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III. Legal Analysis
To have standing to sue, a plaintiff must have “such a
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination
of difficult . . . questions.”
Dubois v. U.S. Dep’t. of Agric.,
102 F.3d 1273, 1280 (1st Cir. 1986) (quoting Baker v. Carr, 369
U.S. 186, 204 (1962)).
“Standing consists of both a constitutional aspect and a
prudential aspect.
The constitutional dimension derives from
the requirement that federal courts can act only upon a
justiciable case or controversy.”
Const. art. III).
Id. at 1280–81 (citing U.S.
“If a party lacks Article III standing to
bring a matter before the court, the court lacks subject matter
jurisdiction to decide the merits of the underlying case” and
must dismiss it.
Id. at 1281 (citing FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990)).
To satisfy the
constitutional aspect of standing, a “plaintiff must demonstrate
standing for each claim he seeks to press and for each form of
relief that is sought.”
Davis v. F.E.C., 554 U.S. 724, 734
(2008) (internal quotations omitted).
The plaintiff must show
that “(1) it has suffered an injury in fact that is (a) concrete
and particularized and (b) actual or imminent, not conjectural
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or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.”
Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).
Of particular relevance here, as an exception to the
general prudential rule that a party must assert its own legal
rights and not those of third parties, an “association has
standing to bring suit on behalf of its members when its members
would otherwise have standing to sue in their own right, the
interests at stake are germane to the organization’s purpose,
and neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.”
181.
Id. at
More particularly, the Supreme Court has held “that
environmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are ‘persons for
whom the aesthetic and recreational values of the area will be
lessened’ by the challenged activity.”
Laidlaw, 528 U.S. at 183
(quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972); citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–63 (1992)).
The “relevant showing for purposes of Article III standing
. . . is not injury to the environment but injury to the
plaintiff.”
Laidlaw, 528 U.S. at 180.
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Therefore, some
individualized specificity is required.
For example, in United
States v. AVX Corp., 962 F.2d 108, 116–17 (1st Cir. 1992), the
Court of Appeals held that the plaintiff’s allegations of injury
were insufficient where the organization alleged that its
“members have been and will continue to be harmed by the
releases” at issue in the case, but no organization members were
identified, their places of abode were not provided, and “the
extent and frequency of any individual use of the affected
resources [was] left open to surmise.”
Id.
Continental alleges
a similar shortcoming here, arguing that CLF lacks standing
because its complaint fails to identify a particular member or
members who were harmed by its activities at the facilities.
If the court had examined only the Complaint in isolation,
it might have found Continental’s argument meritorious, as the
complaint alleges only that “CLF members use and enjoy New
England’s waterways,” and that Continental’s alleged discharges
into the Soucook and Merrimack Rivers “adversely affect CLF
members’ use and enjoyment of those water resources.”4
Such
general language would appear to lead to the same result as in
AVX Corp., but, as noted above, CLF has submitted the
declarations of three of its members -– Irwin, Hok and Feigl --
4
Complaint (doc. no. 1) at ¶ 17.
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who all described their personal use of the waterways at issue
and how the alleged pollution impacted them.5
Continental argues that the court should not consider the
affidavits, as considering any materials that are not part of
the Complaint is procedurally improper under Fed. R. Civ. P.
12(b)(6).
But as the court has already noted, there are two
problems with this argument.
First, it is not clear that
Continental is even seeking to dismiss under Rule 12(b)(6).
Compare Memo of Law, doc. no. 8-1 at 8 (referring to Fed. R.
Civ. P. 12(b)(1)), Reply Memo, doc. no. 12 at 10 (same) with
Reply Memo, doc. no. 12 at 7 (citing Rule 12(b)(6)).
Second,
and even more importantly, as the court noted above, the Court
of Appeals has indicated that such affidavits are permissible
even in the 12(b)(6) context when standing is at issue.
supra, n.3.
See
Continental does not contest the substantive
sufficiency of the affidavits.6
At oral argument, counsel for CLF contended that the Complaint
was sufficient as written. The court declines to reach that
issue.
5
In a footnote within its reply memo, Continental says only that
“[t]he sufficiency of the affidavits themselves is subject to
question” and that Continental will address the issue if the
affidavits “are ever properly presented.” Reply (doc. no. 12)
at 7, n.2. It is not for Continental to decide when evidence is
properly before the court. Indeed, the court does so with this
Order. See supra, n.3; infra, p. 10. Continental’s deliberate
decision to refrain from challenging the sufficiency of the
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Continental additionally argues that the court should
disregard the declarations and instead require CLF to file an
amended complaint with the members’ allegations contained
therein.7
During oral argument, Continental suggested that
“Justice Blackmun’s concurring opinion” in Sierra Club, supra,
requires a plaintiff in CLF’s position to move to amend its
complaint.
There are at least two related shortcomings to
Continental’s argument.
The first is that Justice Blackmun
dissented in Sierra Club.
405 U.S. at 755.
While the court
assumes this was simply an oversight, it is significant because,
secondly, the majority in Sierra Club found that the plaintiff
declarations amounts to a failure to make such a challenge in
the motion at bar. The court also rejects Continental’s attempt
to resurrect the issue at oral argument. See Exeter Hosp. v.
New Eng. Homes, Inc. 2011 DNH 135, 10, n.4 (“This court
generally will not consider theories raised for the first time
at oral argument, out of fairness to adverse parties and the
court.”). Continental’s statement in its reply that it chose
not to challenge the sufficiency of the affidavits is also at
odds with its assertion at oral argument that it had no
legitimate opportunity to respond to them. As noted, the record
clearly reflects that that decision was a choice.
Continental suggests that CLF would be unable to amend its
complaint in conformity with Fed. R. Civ. P. 15 because
stormwater pollution prevention plans it provided to CLF during
the notice period conclusively demonstrate that Continental is
in compliance with the Act. Such plans, however, go to the
merits of the case and not to the standing issue before the
court.
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lacked standing because it failed to allege “in the pleadings or
affidavits” that its members used the land in question.
U.S. at 735 (emphasis added).
405
The clear import of this language
is that affidavits would have been acceptable to establish
standing.
Continental also argues that Summers v. Earth Island Inst.,
555 U.S. 488 (2009) requires the court to reject plaintiff’s
affidavits in favor of requiring an amended complaint.
Summers does not support Continental’s position.
The Court in
Summers rejected plaintiff’s affidavits because they either
related to claims that had already been resolved, or because
they were substantively deficient.
Id. at 494-96.
Once again,
as in Sierra Club, there is no indication of any per se rule
against the court accepting affidavits from an environmental
organization seeking to establish standing.
Indeed, the
substantive analyses of the affidavits in these cases suggests
the opposite.
Accordingly, the court finds that the affidavits
from the CLF members are sufficient at this stage of the
litigation to establish that they have suffered an actual
injury, thereby conferring standing on CLF.
See Laidlaw, 528
U.S. at 180.8
Continental also briefly argues that CLF has failed to allege
any causal connection connecting its actions to the claimed
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IV.
Conclusion
Defendant’s motion to dismiss9 is DENIED.10
SO ORDERED.
____________________________
Joseph N. Laplante
United States District
Dated:
cc:
December 6, 2016
Zachary Knox Griefen, Esq.
Mark C. Rouvalis, Esq.
Rebecca M. Walkley, Esq.
injuries. This argument, however, depends on the court
disregarding the CLF members’ declarations. Having already
ruled that the declarations are permissibly before the court,
Continental’s argument fails.
9
Doc. no. 8.
Given the denial of defendant’s motion the court also denies
Continental’s request for attorney's fees.
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