Galveston Baykeeper v. Trendmaker Homes, Inc. et al
OPINION on Dismissal. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, 4)
UNmD STATES DISTRICT COURT
Trendmaker Homes, Inc.,
SOUTHERN DISTRICT OF TEXAS
Civil Action H'14'1 500
Opinion on Dismissal
Trendmaker Clear Lake, lle, is a residential developer. In October of 2013, it began
clearing a site in Clear Lake City' for a new development. Galveston Baykeeper is a local
conservation group. It sued to stop the development because it says that Trendmaker needed
a permit under the Clean Water Act.
Baykeeper says that the site -like the surrounding coastal prairie - has low areas that
collect rain and filter flowing water. After the site is graded and roads are paved, Baykeeper says
that water which would have been collected, filtered, or absorbed will drain into nearby bayous.
These overland flows contain nitrogen and phosphorous which, it says, may degrade the water
in the bayous and kill wildlife.
Baykeeper's members say that T rendmaker's development affects Armand and
Horsepen bayous as well as Galveston Bay. Baykeeper's members say that they use the affected
areas and have an interest in their preservation.
T rendmaker says that Baykeeper has no standing to sue.
F or it to sue, Baykeeper's members must have standing. It must show that at least one
of its members has an (I) injury that is (2) fairly traceable to T rendmaker and that is
Valley Forge Christian ColI. v. Americans United for Separation of Church and
State, Inc., 454 U.s. 4 64, 472 (1982).
T rendmaker says that Baykeeper has no injury because none of its members are
connected to the property. T rendmaker emphasizes that of those deposed, none use or recreate
on the site, on the private property to its east, or within a nearby drainage ditch.
The testimonies given by Baykeeper's members need not prove that they enjoy the
developed land. Instead, they must show that they enjoy the areas affected by Trendmaker's
development. Baykeeper's members use the bayous for kayaking, fishing, tours, and general
aesthetic enjoyment. Purely aesthetic and even trifling injuries suffice so long as the party
seeking review is among the injured. l
Trendmaker also says that Baykeeper does not have an injury because there is not a
significant link between its development and the bayous.
A geoscientist says that the areas are connected. The scientist's finding is supplemented
by Baykeeper' s environmental engineer who says that site's development will contribute to the
pollution of the bayous. Taking what they say to be true, Baykeeper has an injury in fact.
T rendmaker says that Baykeeper's injury is not fairly traceable to its development. It
says that there are many sources that could pollute the bayous and that there is no way to tell
what damage T rendmaker is causing, if any.
Baykeeper has scientific reports and other evidence that shows that T rendmaker's,
development affects the bayous. Taken as true, this is enough. Baykeeper need not show with
scientific certainty that T rendmaker's actions are solely responsible for the pollution. Baykeeper
need only show that it is likely that T rendmaker is contributing. Baykeeper does this; its injury
is fairly traceable to T rendmaker.
Baykeeper's injury is redressable. Ifit succeeds, Trendmaker may be enjoined and fined.
T rendmaker would be required to obtain a permit to continue its development, making it
subject to pollution regulation which would reduce what flows to the bayous.
Sierra Club v. Morton, 405 U.s. 727, 734-35 (1972).
Because Baykeeper has standing to sue, T rendmaker' s motion to dismiss will be denied.
Signed on August 3,2015, at Houston, Texas.
Lynn N. Hughes
United States DistrictJudge
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