Greenfield Mills, Inc. v. O'Bannon

• Decision Date: 11 March 2002
• Docket Number: No. 1:00 CV 0219.,1:00 CV 0219.
• Citation: 189 F.Supp.2d 893
• Parties: GREENFIELD MILLS, INC., et al. Plaintiffs, v. Governor O'BANNON, et al. Defendant.
• Court: U.S. District Court — Northern District of Indiana

189 F.Supp.2d 893

GREENFIELD MILLS, INC., et al. Plaintiffs, v. Governor O'BANNON, et al. Defendant.

No. 1:00 CV 0219.

United States District Court, N.D. Indiana, Fort Wayne Division.

March 11, 2002.

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Neal Lewis, Neal Lewis and Associates, Orland, FL, Eric Lewis, McCroskey Feldman Cochrane and Brock, Muskegon, MI, for Greenfield Mills Inc, Judi Medlock, Eleanor Elliott, Marian Donley, Howard Rinkel, Helen Rinkel, Dan Rinkel, Marilyn Rinkel, Howard Elliott, Jeff Dunfee, Ben Johnson, Debra Johnson, plaintiffs.

Jeffrey A James, LaGrange, Eric Lewis, McCroskey Feldman Cochrane and Brock, Muskegon, MI, for Gene Lewis, Sharon Lewis, plaintiffs.

Anita Wylie, Indiana Attorney General, Sierra Lynn Cutts, Indiana Attorney General, Indianapolis, IN, for Larry Macklin, as Director of the in Dept of Natural Resources, Gary Armstrong, as individual, Neil Ledet, as individual, David Clary, as individual, Tom Meyer, as individual, defendants.

MEMORANDUM OF DECISION AND ORDER

WILLIAM C. LEE, Chief Judge.

This lawsuit, initiated by twelve citizen plaintiffs and Greenfield Mills, Inc., alleges that the Defendants, Larry Macklin in his capacity as the Director of the Indiana Department of Natural Resources ("IDNR") and individual defendants Gary Armstrong, Neil Ledet, David Clary and Tom Meyer, violated the Clean Water Act, 33 U.S.C. § 1311 and § 1344, as well as various constitutional rights of the Plaintiffs when they opened one of three flow control gates at the Fawn River State Fish Hatchery thereby causing accumulated sediment to be deposited in the Fawn River.

Presently before the court are: Defendants' motion for summary judgment (Docket # 74); Plaintiffs' motion for partial summary judgment (Docket # 81); Defendants' Motion to Reserve Right to Disqualify Neil Lewis (Docket # 113); Defendants' Motion to Strike Affidavits of W. Lewis, S. Lewis and 2nd Affidavit of G. Lewis (Docket # 115); Defendants' Motion to Strike Refiled Notice of Objections to Statement of Genuine Issues (Docket # 118); Defendants' Supplemental Motion for Summary Judgment (Docket # 123) and Plaintiffs' Motion to Voluntarily Dismiss Certain § 1983 Claims (Docket # 127).

For the following reasons, Plaintiffs' Motion to Voluntarily Dismiss Certain § 1983 Claims (Docket # 127) will be granted. Defendants' motion for summary judgment (Docket # 74) will be granted as to Plaintiffs' claims for violations of the Clean Water Act, and granted as to Plaintiff's § 1983 due process claim. Defendants' Supplemental Motion for Summary Judgment (Docket # 123) will be granted as to Plaintiffs' § 1983 takings claim. Plaintiffs' motion for partial summary judgment (Docket # 81) will be denied. Defendants' Motion to Reserve Right to Disqualify Neil Lewis (Docket # 113) will be denied as moot. Defendants' Motion to Strike Affidavits of W. Lewis, S. Lewis and 2nd Affidavit of G. Lewis (Docket # 115) and Defendants' Motion to Strike Refiled Notice of Objections to Statement of Genuine Issues (Docket # 118) will be denied.

FACTUAL BACKGROUND¹

This lawsuit is the latest in a series of legal go arounds between the Plaintiffs and the Defendants over the Fawn River and an attempt by the Defendants to cause what the Plaintiffs allege to be environmental damage to the Fawn River and its aquatic life. See Town Board of Orland v. Greenfield Mills, Inc., 663 N.E.2d 523 (Ind.1996).²

A. General Background

The IDNR owns and operates the Fawn River State Fish Hatchery ("the Hatchery") located on the Fawn River in Orland, Indiana. The Hatchery raises smallmouth bass, walleye, muskies, channel catfish, and rainbow trout for stocking Indiana's lakes and rivers. It consists of fourteen rearing ponds, two administrative service buildings, and a residence for the assistant property manager.

Defendant Dave Clary ("Clary") is currently and has been the property manager for the Hatchery since January 1996. Defendant Tom Meyer ("Meyer") is the Assistant Property Manager of the Hatchery and lives in the Hatchery's onsite residence. Defendant Neil Ledet ("Ledet") is, and has been, IDNR's District 2 Fisheries Biologist since January 1982.

The Plaintiffs are landowners of properties abutting the Fawn River. The Fawn River runs through the Hatchery property from east to west and passes behind the main administration building. It is dammed west of the main building forming a 1.8 acre supply pond which feeds (by gravity) the six rearing ponds on the west side of State Route 327. The water level of the supply pond is regulated by two different structures, the main flow control structure located at the southern end of the dam, and an emergency spillway located at the northern end of the dam. A bypass channel upstream of the supply pond is used to divert water before it reaches the supply pond.

The supply pond's flow control structure consists of six separate gates — three upper and three lower — which sit on a concrete apron. These gates are manipulated individually, and a top gate must be raised in order to raise the gate directly below. The gates are made of horizontal oak boards fitted together. The gates are slotted into vertical I-beams.

B. Problems with the Flow Control Structure³

In the latter half of 1996, Meyer noticed that the I-beams showed areas where the webbing had rusted thereby affecting the structural integrity of the water flow control structure. Meyer related this discovery to Clary who, in turn, notified Defendant Gary Armstrong ("Armstrong"), Hatcheries Supervisor. Thereafter, on March 31, 1997, Clary contacted a local welder, Jeff Counterman ("Counterman") to inspect the water control structure. Counterman inspected the flow control structure and observed "serious deterioration of the two metal `channel' sections." (Counterman Dec. ¶ 4). Thereafter, Counterman discussed with Clary and Meyer the repair project, strategies for repair, and the cost of repair. Clary and Meyer needed to seek funding for this project and thus the two developed a project proposal and budget and sent it to Armstrong on April 16, 1997 for his review. The project proposal included drawing down the supply pond, cutting out the rusted sections of the I-beams, and replacing them with new beams. On October 23, 1997, Armstrong submitted the project proposal for funding approval and, it appears, the project was approved to begin at some undetermined time in the future.

C. Problems with the River Intake Plumbing

On March 12, 1998, Clary noticed an additional problem at the Hatchery. This problem involved the river intake plumbing located in the supply pond. The river intake plumbing is used to run water into the Hatchery and rearing ponds and is critical to Hatchery operations. The river pump did not hold its prime, rendering this hatchery water supply source nonfunctional. Clary and Meyer determined that a faulty foot-valve located within the river intake structure was allowing water to drain back out of the system each time the pump shut off. A new foot valve and cover screen were purchased and installed in mid-April 1998. However, when the river pump was next used on May 15, 1998, the priming problem still existed. Clary and Meyer then determined (by a process of elimination) that the problem with the river pump holding its prime had to be with the piping in the river inlet structure and that the underwater plumbing and associated fittings needed replacing. To examine the piping, Clary and Meyer concluded that the plumbing in the river inlet structure needed to be exposed. Thus, the two decided to draw-down the supply pond to make repairs to the river inlet fill line plumbing, inspect and diagnose problems with the river inlet box screening system, and to serve as a test draw-down for the proposed flow control structure repair. Because use of the pump system was required for Walleye pond harvesting in June 1998, Clary and Meyer decided to proceed with the draw-down prior to June 1998.

D. Events of May 18, 1998

On May 18, 1998, Meyer and Clary began the draw-down process. They began by raising the top three flow gates and securing them in an "up" position. A lower gate was raised incrementally as Meyer and Clary checked the water level in the river intake structure to see if the fill line plumbing was exposed. This process continued until the hatchery supply pond was drawn down to a channel and the plumbing in the river intake structure was exposed. The lower gate was then secured in an upright position by 11:00 a.m.⁴

During the process of raising the lower gate, Meyer observed discolored water passing under the bottom gate panel. Meyer also observed that the water exiting the supply pond and the river immediately downstream appeared discolored.

Shortly after securing the lower gate, Meyer and Clary then began observing the effect of the draw-down downstream, in particular, the two focused on the rock dam just upstream of the Assistant Property Manager's residence.⁵ The two walked downstream of the rock dam and observed a two to three foot waterfall at the rock dam. They then proceeded to the rearing ponds east of SR 327 and observed a slight reduction of the water level there. Both Clary and Meyer observed that the clarity of all waters upstream of the rock dam was unremarkable.⁶

During the morning's events, Ledet had been making rounds for permit inspections and was unaware of Clary and Meyer's decision to draw-down the supply pond. Ledet arrived at the Hatchery in the early afternoon and noticed that the supply pond had been lowered. He then joined up with Meyer at the flow control structures where the two discussed the draw-down and the proposed repair to the flow control structure. At this point, Plaintiff Gene Lewis arrived and confronted Meyer and Ledet, appearing to them to be visibly upset. Both Meyer and Clary testified that Gene Lewis was expressing his displeasure with the draw-down of the supply pond because silt was being...