Jones Creek Investors, LLC v. Columbia Cnty.
| Decision Date | 28 March 2013 |
| Docket Number | CV 111-174 |
| Parties | JONES CREEK INVESTORS, LLC; and SAVANNAH RIVERKEEPER, INC., Plaintiffs, v. COLUMBIA COUNTY, GEORGIA; CSX TRANSPORTATION, INC.; MARSHALL SQUARE, LLC, f/d/b/a NBR INVESTMENTS LLC; D.C. LAWRENCE COMMERCIAL REAL ESTATE, LLC; DONALD LAWRENCE; JOSEPH H. MARSHALL, III; MARSHALL SQUARE PROPERTY OWNER'S ASSOCIATION, INC.; KIMLANDCO, LLC; SOUTHERN SITE DESIGN, INC.; ROBERT F. MULLINS; BRUCE LYONS; and JONES CREEK PARTNERS, LLC, Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
Presently before the Court are Defendants' Motions to Dismiss. Dkt. Nos. 103, 104. Upon due consideration, the motions are DENIED.
This is an action seeking damages and injunctive relief for alleged violations of the Clean Water Act, 33 U.S.C. § 1351 et seq. ("CWA"), and for various related federal and state law claims. See Dkt. No. 94.
Plaintiffs filed their Initial Complaint in this matter on October 14, 2011. See Dkt. No. 1. The Initial Complaint consisted of 534 enumerated paragraphs, spanned 174 pages, alleged thirteen (13) counts, and named thirteen (13) Defendants. Id. On October 28, 2011, Plaintiffs filed their First Amended Complaint, which modified rather than supplanted their Initial Complaint. See Dkt. No. 12. In response to Plaintiffs' Initial and First Amended Complaints, many Defendants moved this Court, pursuant Federal Rule of Civil Procedure 12(f), to strike Plaintiffs' pleadings for non-compliance with Rule 8(a)(2)'s "short and plain statement" requirement. See Dkt. Nos. 10, 26.
The Magistrate Judge recommended, and this Court concurred, that Plaintiffs' Initial and First Amended Complaints were impermissibly pled in shotgun fashion. See Dkt. Nos. 63, 90. Consequently, this Court required that Plaintiffs re-plead their complaint. Dkt. No. 90.
Plaintiffs' filed their Second Amended Complaint (hereinafter referred to as "Complaint") on March 8, 2012. See Dkt. No. 94. Plaintiffs' Complaint is shorter than its predecessors but far from concise. Plaintiffs name twelve (12) Defendants and list thirteen (13) causes of action.
Plaintiffs are Jones Creek Investors, LLC ("JCI") and Savannah Riverkeeper, Inc. ("Savannah Riverkeeper").
For simplicity, the named Defendants are divided into five (5) groups:
On January 15, 2013, this Court granted a consent decree between Plaintiff JCI and the Krystal River Defendants. See Dkt. No. 204. That decree dismissed all claims against the Krystal River Defendants. See Dkt. No. 189-1.
On March 27, 2013, this Court granted a consent decree between Plaintiff JCI and the Townhome Defendants. See Dkt. No. 227. That decree dismissed all claims against the Townhome Defendants. See Dkt. No. 211-1. Accordingly, the only remaining Defendants are the County, CSX, and the five (5) Marshall Defendants.
The causes of action asserted against the various Defendants are as follows:1
The moving Defendants seek dismissal of all claims that pertain to them. See Dkt. Nos. 103, 104. The Marshall Defendants' Motion to Dismiss implicates Counts 2-5, 7-9, and 12-13. See Dkt. No. 103. CSX's Motion to Dismiss implicates Counts 3 and 6-13. See Dkt. No. 104. The County has not moved to dismiss the Complaint.
For purposes of the motions to dismiss, the allegations in Plaintiffs' Complaint are taken as true. Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1705 (2012).
Plaintiff JCI is a Georgia limited liability company that owns and operates the Jones Creek Golf Course ("Golf Course").4 Dkt. No. 94, at ¶ 6. The Golf Course is a nearly 200 acre course located in Evans, Columbia County, Georgia. Id. ¶ 25. It is more than twenty (20) years old. Id. Central features of the Golf Course are Willow Lake and Willow Lake's attendant wetlands and tributary streams, including Jones Creek.5 Id. ¶ 26. Willow Lake is more than six (6) acres at full pool. Id. It serves as an aesthetic feature of the Golf Course, a recreational resource for the residents, and the sole water supply/source of irrigation for the Golf Course. Id. ¶¶ 26-27.
JCI's claims arise from damages to the Golf Course, including damages to the Golf Course's water sources. Id. ¶¶ 38-39. JCI contends, inter alia, that the moving Defendants caused significant harm to its property through their upstream activities. More specifically, JCI contends that visual observations, as well as water quality testing, reveal that Willow Lake and its tributaries received and continue to receive excessive amounts of sediment, eroded soils, rock, dirt, sand, sediment-laden storm water, and other debris from the activities of the Marshall Defendants, CSX, and other sources. Id. ¶ 39.
The Marshall Square Planned Unit Development ("Marshall Square PUD") is a mixed-use, residential and commercial community in Columbia County, Georgia. It is owned by Defendant Marshall Square, LLC. Defendants Marshall Square, LLC; D.C. Lawrence; Joseph Marshall; and Donald Lawrence commenced construction and development of Marshall Square PUD on or beforeJuly 2008.6 Id. ¶ 114. Land disturbing and development activities continue at Marshall Square PUD. Id. ¶ 115.
On September 30, 2008, some or all of the Marshall Defendants filed a Notice of Intent for coverage ("NOI") under their GAR100003 permit7 for construction activities at Marshall Square PUD.8 Id. ¶ 97. The NOI is a state permit that regulates storm water discharges. On March 3, 2009, some or all of the Marshall Defendants filed a Notice of Termination ("NOT") to terminate coverage under the GAR100003 permit. Id. ¶ 131. Plaintiffs allege that the NOT was improperly filed because the Marshall Square PUD was not stabilized, as required by the GAR100003 permit. Id. Consequently, the GAR100003 permitremains active, and the Marshall Defendants are in continued violation of its provisions.
JCI's claims against the Marshall Defendants pertain to alleged upstream activities which occurred, and continue to occur, at Marshall Square PUD. Marshall Square PUD is allegedly a source of pollutants that currently flow onto JCI's property in violation of federal and state law. Id. ¶ 17. More specifically, the Marshall Defendants allegedly failed to prevent rainwater from leaving Marshall Square PUD, flowing through Jones Creek, and settling in Willow Lake. Additionally, the Marshall Defendants' alleged failure to properly maintain structures in the stream and the Marshall Defendants' clearing, development, and/or construction activities at Marshall Square PUD resulted in dredging and/or filling of navigable U.S. waters. Id. ¶ 251.
CSX owns the CSX Crossing. Id. ¶ 61. CSX Crossing is located upstream from Willow Lake on Tributary 1. Id. ¶ 60. "CSX Crossing" is the embankment and culverts across Tributary 1, including a failed brick culvert and two (2) pipe culverts. Id.
On January 26, 2010, the County inspected CSX Crossing. Id. ¶ 62. The inspection showed that CSX Crossing's brick culvert deteriorated to the point of failure. Id. The inspection also showed that portions of the culvert caved in. Id. The culvert's failure caused the Crossing's embankment to fail. See id. ¶ 64. The failure of the brick culvert and embankment resulted in the discharge of significant amounts of sediment and rock from CSX Crossing into Tributary 1. Id. This discharged sediment and rock ultimately made their way into Jones Creek and Willow Lake. Id.
CSX's alleged failure to inspect, maintain, or repair CSX Crossing in an adequate or timely manner, caused eroded soil and sediment to discharge into Tributary 1, Jones Creek, and Willow Lake during every post-failure rain event. Id. These discharges continued until the culvert was replaced in June 2010. Id. ¶¶ 64-65.
The brick culvert's failure did not stop the movement of...
To continue reading
Request your trial