Boyce v. Augusta-Richmond County

Decision Date22 August 2000
Docket NumberNo. CV198-217.,CV198-217.
Citation111 F.Supp.2d 1363
PartiesHenrietta M. BOYCE, George William Boyce, Carolyn Scott Boyce, and Hugh R. Boyce, d/b/a Boyceland Dairy, Plaintiffs, v. AUGUSTA-RICHMOND COUNTY, and John Doe No. 1 through John Doe No. 100, Defendants.
CourtU.S. District Court — Southern District of Georgia

Peter V. Hasbrouck, Richard P. Decker, F. Edwin Hallman, Jr. (Decker & Hallman, Atlanta, GA), John M. Tatum, Robert A. Mullins (Hunter, MacLean, Erley & Dunn, Savannah, GA), for plaintiff.

James W. Ellison, James B. Wall (Burnside, Wall, Daniel, Ellison & Revel, Augusta, GA), R. Perry Sentell, III (Kilpatrick Stockton, Augusta, GA), for defendant.

ORDER

MOORE, District Judge.

Presently before the Court is Defendant Augusta-Richmond County's Motion for Summary Judgment and/or Motion to Dismiss (Doc. 154), and the Plaintiffs' Motion to Dismiss Certain Claims Without Prejudice (Doc. 191). After careful consideration, and for the reasons stated herein, the Court GRANTS IN PART Augusta-Richmond County's summary judgment motion, and GRANTS the Plaintiffs' motion to dismiss.

BACKGROUND
I. Introduction.

This case concerns Defendant Augusta-Richmond County's1 ("ARC") application of sewage sludge from the municipal wastewater treatment plant onto crop land owned by the Plaintiffs. The Plaintiffs contend that the sludge applications, which began in 1986 and continued through 1994, and also occurred from late 1996 until early 1997, contained excessive levels of various metals, thereby harming their land and cattle and hindering their dairy farm operation. As a result, the Plaintiffs have filed the instant lawsuit asserting numerous federal and state law causes of action.

Plaintiff Boyceland Dairy is a family-owned dairy farm operated in northwest Burke County, Georgia. Established around 1946, Boyceland Dairy has been in business for over fifty years and has grown from a small farm with few cows to a very large operation with numerous cows and acreage. At the time of this lawsuit, Plaintiffs had raised dairy cows on approximately 1,100 acres of land. (Pltf.Brf. in Resp. to MSJ at 1-2). Plaintiff George William Boyce ("Bill") is the general manager of the farm, and takes care of many of the day to day operations. (George William Boyce Depo., Vol. 1, at 11). Plaintiff Hugh R. Boyce ("Hugh"), who is Bill's son, also takes care of many of the day to day operations. (Id. at 11-12). Plaintiff Henrietta M. Boyce ("Henrietta") is Bill's mother and has retired from the farming operations. (Id. at 12). Finally, Plaintiff Carolyn Scott Boyce ("Carolyn") is Bill's wife, conducts much of the farm's bookkeeping, and runs the "baby calf program." (Id.).

Defendant Augusta-Richmond County operates a publicly-owned sewage treatment facility called the "Messerly Waste-water Treatment Plant." The Plaintiffs also have sued Defendants John Does 1-100. The Plaintiffs, however, have not identified these John Doe Defendants. Despite the presence of the John Doe Defendants, the crux of the allegations in the Complaint, First Amended Complaint, and the summary judgment reply brief concern Defendant ARC rather than the John Does.

II. The Agreements.

In 1986, ARC contacted Bill Boyce about his farm's participation in a program called the Land Application Program, in which sewage sludge from the municipal waste-water treatment plant would be applied to farmland. Hugh Avery, who was ARC's Land Application Supervisor and was in charge of the Land Application Program from 1984 until 1996, spoke with Bill about the program. (George William Boyce Depo., Vol. 2, at 34). According to Bill, Avery represented that ARC was interested in adding land in Burke County to the land application program. (Id.). Although Bill and the Plaintiffs were generally aware that another dairy farm, R.A. McElmurray & Sons, was involved in the Land Application Program, they had no prior experience with sludge applications to their land and knew little about it. (Id. at 32).

Bill toured the wastewater treatment plant with Avery. Avery explained how the plant ran, stated that tests were conducted on the sludge daily in the lab, and maintained that the sludge was an "excellent source of potential plant nutrients, such as phosphorous and nitrogen and the greatest thing since sliced bread." (Id. at 36). Bill testified in his deposition that Avery indicated that the sludge was safe and there would be no harmful effects. (Id. at 37). Based upon the representations, Bill believed the Land Application Program to be "risk free." (Id. at 47-48).

After their meetings, Bill Boyce signed an agreement entitled "License/Easement for Land Spreading Digested Sewage Sludge." This agreement, which is dated September 3, 1986, permitted ARC to apply sludge to various parcels of the Plaintiffs' land. (Def. MSJ Exh. 73). Although Bill Boyce, as the land owner/grantor, signed the agreement, he was the only party who signed it. Nevertheless, despite the lack of formal signatures on the agreement, the Plaintiffs admit in their response to the Defendant's statement of material facts that they "granted Defendant consent and permission to apply sewage sludge which Defendant represented to be safe and beneficial" (Pltf.Resp. to Def. Stmt. of Mtl. Facts at ¶ 6). Moreover, the Plaintiffs implicitly recognize the existence of the license/easement agreement because they claim that the "Defendant failed to comply with the express terms of the license/easement agreement for the duration of Plaintiffs' participation in the program." (Id. at ¶ 5). Indeed, the Plaintiffs contend throughout their briefs that ARC did not properly comply with certain obligations found in the agreement.

Based on the agreement, ARC was granted a temporary license and easement for "the land spreading of digested sewage sludge" upon the specified parcels of land described in the agreement.2 (Def. MSJ Exh. 73 at p. 1). The license/easement agreement imposed obligations on both parties. Among other things, the agreements required the Plaintiffs to "obtain and conform to an approved Conservation Plan developed in cooperation with Briar Creek Soil and Water Conservation District for all lands to receive digested sludge and to maintain all erosion control provisions of the plan ..." (Id. at p. 2, ¶ 3). It also required the Plaintiffs to have annual soil tests conducted by "the Georgia Cooperative Extension Service for the areas involved in land spreading operation" which would report pH levels and levels of Nickel, Zinc, Cadmium, Copper, Lead, and Chromium. (Id. at p. 2, ¶ 5) The license/easement agreement further required the Plaintiffs to farm the land in the land spreading operation in accordance with the plans approved by the County Extension Director, and to indemnify and hold harmless the "City Council of Augusta, the Briar Creek Soil and Water Conservation District and the Georgia Cooperative Extension." (Id. at p. 2, ¶¶ 6, 8).

Under the agreement's terms, ARC also maintained various obligations. ARC agreed to apply sewage sludge on a "when-available basis" and to provide the grantor of the easement/license "with a chemical analysis of the digested sewage sludge monthly, which shall indicate the following: pH, Nitrogen [ ], Phosphorous [ ], Potash [ ], Zinc [ ], Copper [ ], Nickel [ ], Cadmium [ ] and Lead [ ], Chromium [ ], Ammonia [ ], Nitrate Nitrogen [ ], Total Phosphorous [ ], Total Potassium [ ], and & Solids." (Id. at p. 3, ¶¶ 1-2). Moreover, ARC agreed to maintain a file of "all lands involved in the land spreading program with a log of quantity and analysis of material applied to each land" and to

assign digested sludge to a given land unit based on nutrient requirements for crop production and ... monitor heavy metals to prevent harmful buildup as set forth in United States Environmental Protection Agency guidelines and as approved by the Briar Creek Soil and Water Conservation District and the County Extension Director.

(Id. at p. 3, ¶¶ 3-4).

The Plaintiffs contend that ARC withheld copies of the agreement from them. (Pltf.Brf. in Resp. to MSJ at 4). As a result, they aver that they never were aware of their obligations under the license/easement agreement. (Id.). Nevertheless, Bill's signature appears on the agreement. (See Defs. MSJ Exh. 73). Bill explained his understanding of the agreement and the circumstances under which he signed it. He testified in his deposition that Avery presented him with the agreement to sign when he was busy at the farm in the yard. (George William Boyce Depo., Vol. 2, at 37-38). Bill asked Avery what it was, and Avery explained to him that it was "just a standard easement" which was used by ARC to relieve it of liability in the event that their trucks damaged the Plaintiffs' property while applying sludge. (Id.). When Bill received it, he contends that he glanced at it and then signed it. (Id. at 38). Bill further testified that he did not go inside to read it in detail, and that he never received a copy for reference. (Id.). Although the Plaintiffs maintain they were unaware of their obligations despite the presence of a signature, they do claim that ARC did not comply with its obligations under the agreements.

III. The Sludge Applications and ARC's Monitoring Efforts.

Beginning in 1986, ARC began to apply sewage sludge to certain parcels of land owned by the Plaintiffs. Based on figures cited in one of the Plaintiffs' numerous expert reports, over 22 million gallons of sludge were applied to 465 acres of Plaintiffs' land over the course of time in which the Boyceland Dairy participated in the program. (Pltf.Expt.Rpt. of Michael R. Wild at 1). The same expert, Michael Wild, also opines that 625 acres of land were actually impacted by the sludge applications, although those 625 acres did not all receive applications.3 (Id.). While the Boyces participated in the program, not all the land received sludge treatments.

The Plaintiffs allege that from the beginning of...

To continue reading

Request your trial
8 cases
  • Csd No. 2 of Los Angeles v. County of Kern
    • United States
    • California Court of Appeals
    • 1 Abril 2005
    ...related to the dairy cattle also are described in the administrative record and in Boyce v. Augusta-Richmond County (S.D.Ga.2000) 111 F.Supp.2d 1363. The medical examiner's autopsy report for Shayne Conner is in the administrative record and it concludes the cause of his death is 29. The Ca......
  • Bfi Waste System of North Am. v. Dekalb County, Ga
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 16 Enero 2004
    ...is an issue of subject matter jurisdiction. Reahard v. Lee County, 978 F.2d 1212, 1213 (11th Cir.1992); Boyce v. Augusta-Richmond County, 111 F.Supp.2d 1363, 1381 (S.D.Ga.2000). 12. Some courts appear to treat substantive due process and equal protection claims arising out of the same facts......
  • Gill v. Wells Fargo Bank, N.A., CIVIL ACTION 2:15-00162-KD-N
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • 6 Septiembre 2016
    ...under Rules 15 and 41 are procedurally different, they involve application of similar standards. Boyce v. Augusta-Richmond County, 111 F.Supp.2d 1363, 1374 (S.D.Ga. 2000) (citing Anderberg v. Masonite Corp., 176 F.R.D. 682, 686 (N.D.Ga. 1997)). Therefore, the Court will treat Plaintiff's re......
  • Wireman v. City of Orange Beach
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • 9 Junio 2020
    ...assert a Takings Claim because they deeded the property in question to Orange Beach. As explained in Boyce v. Augusta-Richmond County, 111 F.Supp.2d 1363, 1382-83 (S.D. Ga. 2000):[A] property owner cannot bring an inverse condemnation claim when the owner permits the government to use the p......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT