West Virginia Highlands Conservancy, Inc. et al v. Fund 8 Domestic, LLC
Filing
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MEMORANDUM OPINION AND ORDER re: 13 MOTION by Fund 8 Domestic, LLC to Dismiss 1 Complaint filed by Fund 8 Domestic, LLC; for the reasons stated herein, directing that this case is dismissed without prejudice for lack of jurisdiction and that this case be removed from the active docket of this court. Signed by Judge John T. Copenhaver, Jr. on 6/17/2014. (cc: attys; any unrepresented parties) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and
OHIO VALLEY ENVIRONMENTAL COALITION, INC. and
SIERRA CLUB,
Plaintiffs,
v.
Civil Action No. 2:13-28801
FUND 8 DOMESTIC, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is the defendant’s motion to dismiss, filed
January 10, 2014.
I. Background
The plaintiffs are nonprofit organizations that
espouse preservation of the environment and the responsible use
of natural resources.
Plaintiff Ohio Valley Environmental
Coalition (“OVEC”) is a nonprofit organization incorporated in
Ohio, with a principal place of business in Huntington, West
Virginia, and it has roughly 1,500 members.
“Its mission is to
organize and maintain a diverse grassroots organization
dedicated to the improvement and preservation of the environment
through education, grassroots organizing, coalition building,
leadership development, and media outreach.”
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Compl. ¶ 11.
West
Virginia Highlands Conservancy, Inc. (“WVHC”) is a West Virginia
nonprofit organization, with roughly 1,700 members who “work[]
for the conservation and wise management of West Virginia’s
natural resources.”
Compl. ¶ 13.
Sierra Club is a nonprofit
California corporation, with about 1,900 members residing in
West Virginia.
Sierra Club advocates for the responsible use of
natural resources and environmental conservation.
Compl. ¶ 12.
The defendant, Fund 8 Domestic, LLC (“Fund 8”), is a Delaware
limited liability company.
The plaintiffs bring a citizen suit under the Clean
Water Act (“CWA”), 33 U.S.C. § 1365 (2006).
According to the
plaintiffs, Fund 8 is and has been discharging pollutants into
the waters of the United States without a valid National
Pollution Discharge Elimination System (“NPDES”) permit, 33
U.S.C. § 1342 (2006 & Supp. II 2008).
Such an act is unlawful
under 33 U.S.C. § 1311(a) (2006).
More specifically, the plaintiffs accuse Fund 8 of
owning lands where prior mining operations occurred, namely, the
Opportunity No. 3 Surface Mine (“Opportunity Mine”) and Anchor
Surface Mine No. 1 (“Anchor Mine”), both in Mingo County, West
Virginia.
While in operation, each of the mining ventures
utilized “valley fills,” wherein excess earth from the mining
process is dumped in a nearby valley, often filling existing
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waterways.
See Kentuckians for Commonwealth, Inc. v.
Rivenburgh, 317 F.3d 425, 431 (4th Cir. 2003), quoting 65 Fed.
Reg. 21,292, 21,295 (Apr. 20, 2000).
Valley Fill No. 1 exists
at the Anchor Mine, and contains drain channels that empty into
a stream at the base (or “toe”) of the valley fill.
58.
Compl. ¶
Valley Fill No. 2 empties into Ashcamp Hollow from similar
drain channels.
Id. ¶¶ 30-31.
The water discharged from Valley
Fill No. 1 flows into Road Branch, then Rockhouse Fork, then
Pigeon Creek, then Tug Fork to the Big Sandy River.
Id. ¶ 78.
The water discharged from Fill No. 2 flows through Ashcamp
Hollow into Rockhouse Fork and then the same route to the Big
Sandy River.
Id. ¶ 51.
Fund 8 purchased the land at issue after mining had
ceased, and resold it before this litigation began.
However,
the plaintiff claims that by the terms of the property
conveyances, Fund 8 still owns the valley fills, and that the
valley fills continue to discharge selenium into the waters of
the United States.
The discharge of selenium requires an NPDES
permit from the West Virginia Department of Environmental
Protection (“WVDEP”).
The NPDES permits issued for the prior
mining activity on these sites have expired.
33 U.S.C. § 1342
(2006 & Supp. II 2008); Compl. ¶¶ 39, 65.
The plaintiffs took two measurements of the selenium
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content.
One was a sample of water downstream of the discharge
of Valley Fill No. 1 but before reaching the first of two
sediment pools (used during mining to treat the water but not
removed after mining ceased) and showed a concentration of 6.86
μg/L.
Compl. ¶ 71.
The second was taken about three-fourths of
a mile downstream from Valley Fill No. 2 before its confluence
with Rockhouse Fork, and showed a concentration of 3.51 μg/L.
Compl. ¶ 45, 47.
The plaintiffs do not name any one specific member
that has been harmed, but generally state that their members
suffer injuries to their aesthetic, recreational,
environmental, and/or economic interests as a result of
Defendant’s unlawful discharges of pollutants. Plaintiffs’
members fish, swim, observe wildlife, and/or otherwise use
the waters affected by Defendant’s discharges and are
harmed by the pollutants that Defendant is discharging.
Plaintiffs’ members refrain from swimming, wading, fishing,
and/or engaging in other activities in and around the
streams affected by Defendant’s discharges to avoid
exposure to pollutants. Plaintiffs’ members are also very
concerned about the impacts of pollution from Defendant’s
discharges on their friends and neighbors and on local
wildlife.
Compl. ¶ 14.
The plaintiffs request declaratory and injunctive
relief in the form of declaring a CWA violation and enjoining
further discharge until the defendant obtains a permit.
They
also request an order compelling the defendant to conduct
environmental monitoring, and civil fines.
In its motion to dismiss, Fund 8 makes three separate
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arguments:
(1) there is no standing because the plaintiffs have
not alleged an injury in fact nor have they alleged that any
relief would redress their injuries; (2) Fund 8 only purchased
surface rights and never owned the valley fills, and, in any
event, has sold every interest they have in the property; and
(3) the plaintiffs have not sufficiently pled an ongoing
discharge of pollutants into waters of the United States, as
those terms are understood in the law.
plaintiffs insist that standing exists.
In response, the
Plaintiffs also
question the effect of the property conveyances by which Fund 8
claims it has divested itself of ownership; and plaintiffs
contend that the actions of Fund 8 constitute the discharge of
pollutants into the waters of the United States.
II. Standard of Review
Under Fed.R.Civ.P. 8(a)(2), the complaint must contain
“a short and plain statement of the claim showing that the
pleader is entitled to relief.”
Rule 12(b)(6) correspondingly
permits a defendant to challenge a complaint when it “fail[s] to
state a claim upon which relief can be granted.”
Fed. R. Civ.
P. 12(b)(6).
The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
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which it rests.’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir.
2007).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570); see also Monroe v. City of Charlottesville, 579 F.3d 380,
386 (4th Cir. 2009).
Facial plausibility exists when the court
is able “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
(citing Twombly, 550 U.S. at 556).
Iqbal, 556 U.S. at 678
“The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”
Id. (quoting Twombly, 550 U.S. at 556).
In assessing plausibility, the court must accept as
true the factual allegations contained in the complaint, but not
the legal conclusions.
Id.
“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Id.
The determination is
“context-specific” and requires “the reviewing court to draw on
its judicial experience and common sense.”
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Id. at 679.
The plaintiffs have the burden of establishing
standing.
Southern Walk at Broadlands Homeowner’s Ass’n, Inc.
v. Openband at Broadlands, LLC, 713 F.3d 175, 181 (4th Cir.
2013).
“When standing is challenged on the pleadings, [the
court] accept[s] as true all material allegations of the
complaint and construe[s] the complaint in favor of the
complaining party.”
Cir. 2013).
David v. Alphin, 704 F.3d 327, 333 (4th
In examining standing the court will “consider
exhibits attached to the complaint in addition to the complaint
itself.”
Southern Walk, 713 F.3d at 182; Fed.R.Civ.P. 10(c).
But factual allegations that are “legal conclusions” or “naked
assertions” do not need to be accepted.
(quoting Iqbal, 556 U.S. at 678).
David, 704 F.3d at 333
The court cannot create
jurisdiction by “embellishing” pleadings that are deficient with
regard to standing.
Southern Walk, 713 F.3d at 182 (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155–56 (1990))
III. Analysis
A. Standing
The plaintiffs are all organizations.
Organizations
have standing to sue either when the organization itself is
injured or when the organization acts as the representative of
its members who would have standing to sue in their own right.
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629
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F.3d 387, 396-397 (4th Cir. 2011).
422 U.S. 490, 511 (1975).
See also Warth v. Seldin,
The plaintiffs allege no separate
injury to their organizations apart from the injuries sustained
by their members, and therefore the plaintiffs’ standing must,
if at all, be in a representational capacity.
See, e.g., Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976).
Representational standing rests in an organization
when: (1) at least one of its members has standing to sue in his
or her own capacity, (2) the interests sought to be protected
through litigation are “germane to the organization’s purpose”,
and (3) “neither the claim asserted nor the relief sought
requires the participation of individual members in the
lawsuit.”
NRDC v. Watkins, 954 F.2d 974, 978 (4th Cir. 1992).
What is contested here is whether plaintiffs’ members would have
standing in their own right.
Article III of the Constitution imposes limits on who
may bring suits in federal court.
To present a case or
controversy under Article III, (1) a plaintiff must have
sustained an injury-in-fact, (2) that injury must be “fairly . .
. trace[able] to the challenged action of the defendant,” and
(3) it must be likely that the injury will be redressable
through a favorable decision by the court.
Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-561 (1992) (quoting Simon, 426
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U.S. at 41-42).
The defendant challenges the existence here of
the first and third prongs of this test, that is, injury-in-fact
and redressability.
The defendant faults the complaint for alleging a harm
that is not “concrete and particularized . . . and . . . actual
or imminent, not conjectural or hypothetical.”
560 (internal quotation marks omitted).
Lujan, 504 at
In particular, the
defendant argues that the plaintiffs have not alleged a
sufficient nexus between their members and the alleged injurious
activity.
The court agrees.
Nowhere have the plaintiffs
specifically identified any member that has been affected by
this particular activity.
Both the Fourth Circuit and the
Supreme Court have determined that organizations suing in a
representative capacity must “make specific allegations
establishing that at least one identified member had suffered or
would suffer harm.”
Summers v. Earth Island Inst., 555 U.S.
488, 498 (2009) (emphasis supplied); Southern Walk, 713 F.3d at
184.
To comply with this directive, the plaintiffs must name a
specific member and detail how he or she has been injured.
Summers, 555 U.S. at 498-99; Southern Walk 713 F.3d at 185. 1
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There is an exception to this identification requirement. When
“all the members of the organization are affected by the
challenged activity,” there is no need to identify a specific
member that was harmed. Summers, 555 US at 499; NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958)(release of
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They have not done so.
The court also notes that it makes no
difference that the plaintiffs sue under the citizen-suit
provision of the CWA; the injury-in-fact requirement “is a hard
floor of Article III jurisdiction that cannot be removed by
statute.”
Summers, 555 U.S. at 497; see also WildEarth
Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013).
Consequently, the plaintiff organizations have not
alleged a sufficient injury-in-fact to confer standing.
Article
III standing is requisite to the court’s subject matter
jurisdiction, and when standing does not exist, the court must
dismiss the matter without prejudice.
at 185.
Southern Walk, 713 F.3d
Because the court has determined that there is no
standing, the court lacks subject matter jurisdiction and is
without authority to consider the other issues raised.
See
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94
(1998); Southern Walk, 713 F.3d at 185 n.4.
membership lists harmed all members). But none of the
plaintiffs allege here that all of their geographically farflung members were so harmed. See Southern Walk, 713 F.3d at
184-85.
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IV.
For the reasons stated, it is ORDERED that this case
be, and it hereby is, DISMISSED in its entirety without
prejudice for lack of jurisdiction.
It is further ORDERED that
this case be removed from the active docket of this court.
The Clerk is directed to transmit copies of this order
to counsel of record and any unrepresented parties.
ENTER:
June 17, 2014
John T. Copenhaver, Jr.
United States District Judge
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