Dubois v. U.S. Dept. of Agriculture

• Decision Date: 30 September 1998
• Docket Number: No. C-95-50-B.,C-95-50-B.
• Citation: 20 F.Supp.2d 263
• Parties: Roland C. DUBOIS, et al. v. U.S. DEP'T OF AGRICULTURE, et al.
• Court: U.S. District Court — District of New Hampshire

20 F.Supp.2d 263

Roland C. DUBOIS, et al. v. U.S. DEP'T OF AGRICULTURE, et al.

No. C-95-50-B.

United States District Court, D. New Hampshire.

September 30, 1998.

Roland C. Dubois, Takoma Park, MD, pro se.

Jed Z. Callen, Baldwin, Callen, Hogan & Kidd PLLC, Concord, NH, for Plaintiff.

Garry R. Lane, Ransmeier & Spellman, Concord, NH, for Intervenor-Plaintiff.

T. David Plourde, Asst. U.S. Atty., Concord, NH, Melanie Aureilia Williams, U.S. Dept. of Justice, Fed, Program, Civil Branch, Washington, DC, Joel Demetrius Armstrong, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, DC, David F. Legge, U.S. Dept. of Justice, Civil Div., Torts Branch, Washington, DC, Sylvia Quast, Environmental & Natural Resources, Environmental Defense Section, Washington, DC, Stephen R. Herm, U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

BARBADORO, Chief Judge.

Plaintiffs in this citizen-suit enforcement action seek to compel Loon Mountain Recreation Corporation ("Loon") to pay civil penalties to the United States stemming from violations of the Federal Water Pollution Control Act, 33 U.S.C.A. §§ 1251 et seq. (West 1986 & Supp.1998), commonly known as the Clean Water Act ("CWA"). Loon moves to dismiss plaintiffs' claim, arguing that the action no longer presents a justiciable case or controversy. I agree and, accordingly, grant Loon's motion to dismiss.

I. BACKGROUND

Loon operates a ski area in northern New Hampshire. Because part of the ski area is located in the White Mountain National Forest, Loon's operations require a special-use permit issued by the United States Forest Service. See 16 U.S.C.A. § 497(b) (West Supp.1995). In 1986, Loon asked the Forest Service to amend the permit to allow it to expand its ski operations. In 1993, after several years of review, the Forest Service issued a Record of Decision ("ROD") approving a revised version of Loon's expansion plan.

The plan approved by the ROD authorized Loon to increase its use of Loon Pond as a water source in its snow-making operations. The plan also contemplated that Loon would replace water taken from the pond during the snow-making season by twice annually refilling the pond with water from the East Branch of the Pemigewasset River (the "East Branch"). Additionally, it authorized Loon to continue its past practice of routinely discharging water from its snow-making pipes into Loon Pond. At various times, these discharges have included water from Loon Pond, as well as the East Branch and Boyle Brook, both of which serve as additional sources of snow-making water.

Plaintiff Roland Dubois filed this action challenging Loon's expansion plan. Dubois was joined in his claims by intervenor Restore: The North Woods ("Restore"), an environmental organization. Loon intervened as a defendant. Plaintiffs' complaint alleged, among other things, that the plan violated the CWA in that Loon was able to discharge pollutants (contained in the water taken from the East Branch and Boyle Brook) into Loon Pond without first obtaining a National Pollutant Discharge Elimination System ("NPDES") permit, as required by 33 U.S.C.A. § 1342(a) (West 1986 & Supp.1998). Plaintiffs sought both equitable relief and an assessment of civil penalties against Loon under the CWA. See 33 U.S.C.A. § 1365 (West 1986 & Supp.1998) (authorizing "any citizen" to sue to enforce the CWA and to compel an assessment of civil penalties).

I subsequently granted the Forest Service's motion for summary judgment. See Dubois v. United States Dep't of Agric., CV-95-50-B (D.N.H. Nov. 2, 1995). In Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1301 (1st Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997), however, the First Circuit Court of Appeals held that both plaintiffs had standing to maintain their claim for injunctive relief, reversed my order, and directed entry of judgment granting plaintiffs' request for injunctive relief. See Dubois, 102 F.3d at 1282-83. The First Circuit did not address the merits of plaintiffs' claim for civil penalties — an issue which had not yet been considered in the district court.

Upon remand, I issued an order granting plaintiffs' claim for injunctive relief. See Dubois v. United States Dept. of Agric., CV-95-50-B (D.N.H. May 5, 1997). Accordingly, the only substantive issue that remains undecided is whether civil penalties should be assessed against Loon for its past violations of the CWA pursuant to 33 U.S.C.A. § 1319(d) (West 1986 & Supp.1998). Loon moves to dismiss, arguing that, in light of the injunction already in place, plaintiffs' civil penalties claim does not present a justiciable case or controversy.

II. DISCUSSION¹

This case presents a complex justiciability question that requires an understanding of both standing and mootness concepts.² Accordingly, I begin by discussing the way in which standing doctrine has been refined by the Supreme Court's recent opinion in Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). I then consider the merits of Loon's contention that plaintiffs' request for civil penalties became moot when I enjoined Loon from further violating the CWA. Finally, I evaluate plaintiffs' argument that their claim is saved by the "voluntary cessation of illegal activities" exception to mootness.

A. Standing

Both constitutional and prudential considerations potentially constrain a plaintiff's standing to sue in federal court. See Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997). In cases alleging CWA violations, however, Congress has superseded any prudential limitations by broadly conferring standing to sue on "any citizen." 33 U.S.C.A. § 1365(a) (West 1986 & Supp.1998). Accordingly, to establish standing, plaintiffs need only satisfy the requirements of Article III. See Save Our Community v. EPA, 971 F.2d 1155, 1160 n. 10 (5th Cir.1992); Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 70 n. 3 (3d Cir.1990).

The Supreme Court has determined that the "irreducible constitutional minimum of standing" consists of three requirements: (1) an "injury in fact" — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection to the alleged injury that is "fairly ... traceable" to the defendant; and (3) a likelihood that the injury will be "redressed by a favorable decision." Bennett, 117 S.Ct. at 1163 (internal citations omitted) (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). If any of these requirements is not present with respect to any claim, a federal court lacks jurisdiction to consider that claim and must dismiss it for lack of subject matter jurisdiction.

The Supreme Court recently analyzed Article III's redressability requirement in the context of a citizen suit for civil penalties in Steel Co., ___ U.S. at ___, 118 S.Ct. at 1017. The citizen-suit plaintiff in that case sought an award of civil penalties stemming from past violations of the Emergency Planning and Community Right to Know Act ("EPCRA"), 42 U.S.C.A. § 11001 et seq. (West 1995); Steel Co., 118 S.Ct. at 1009. Under EPCRA, all civil penalties assessed against a violator are paid to the United States Treasury. The Steel Co. Court held that civil penalties stemming from a prior injury to a citizen-suit plaintiff, but not paid to that plaintiff, do not redress any legitimate Article III injury. See id. at 1018-19. Instead, the court concluded that the imposition of civil penalties in such circumstances would do nothing more than vindicate "`the undifferentiated public interest' in faithful execution of [the law]." Id. (quoting Lujan, 504 U.S. at 577, 112 S.Ct. 2130). Consequently, the Court held that the citizen-suit plaintiff lacked standing to seek such penalties. Id.

The Court's reasoning in Steel Co. also applies to citizen-suit claims for civil penalties under the CWA, as both the EPCRA and the CWA require that civil penalties be paid to the federal government. See 42 U.S.C.A. § 11045(c) ("Any person (other than a governmental entity) who violates any requirement of section 11022 or 11023 of [the EPCRA] shall be liable to the United States for a civil penalty"); 33 U.S.C.A. § 1319(d)(West 1986 & Supp.1998) (providing civil penalties for violations of the CWA, but not explicitly stating that such penalties must be paid to the U.S. Treasury); Friends of the Earth v. Archer Daniels Midland Co., 780 F.Supp. 95, 101 (N.D.N.Y.1992) (noting that it is "well established that civil penalties [for violations of the CWA] must be paid to the United States Treasury"). Nevertheless, plaintiffs argue that Steel Co. is distinguishable because, in the instant case, plaintiffs alleged in their complaint that Loon's CWA violations are ongoing, (Pl.'s Br. Addressing Steel Co., Doc. No. 166 at 6), whereas the plaintiffs in Steel Co. did not allege any continuing violations. Plaintiffs contend that this distinction is meaningful because, even though they will not benefit financially if civil penalties are levied against Loon, the imposition of such penalties will deter Loon from continuing to violate the CWA. This deterrence, plaintiffs argue, will redress the imminent injuries they face from Loon's continuing violations. Loon responds that even if plaintiffs' attempt to distinguish Steel Co. is viable in certain cases, it is inapplicable here because plaintiffs' claim became moot when I enjoined Loon from further violating the CWA.³

B. Mootness

The fact that a plaintiff may have standing to sue when suit is commenced does not end the inquiry. "Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citing ...