North Carolina Growers Ass'n v. Holly Ridge Assoc., No. 7:01-CV-36-BO(3).
| Court | United States District Courts. 4th Circuit. Eastern District of North Carolina |
| Writing for the Court | Terrence William Boyle |
| Citation | 278 F.Supp.2d 654 |
| Parties | NORTH CAROLINA SHELLFISH GROWERS ASSOCIATION and North Carolina Coastal Federation, Plaintiffs, v. HOLLY RIDGE ASSOCIATES, LLC, and John A. Elmore, Defendants. |
| Docket Number | No. 7:01-CV-36-BO(3). |
| Decision Date | 25 July 2003 |
v.
HOLLY RIDGE ASSOCIATES, LLC, and John A. Elmore, Defendants.
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Derb S. Carter, Donnell Van Noppen, III, Southern Environmental Law Center,
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Chapel Hill, NC, for North Carolina Shellfish Growers Association, North Carolina Coastal Federation.
George William House, V. Randall Tinsley, Jim W. Phillips, Jr., Robert J. King, III, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, NC, Jason S. Thomas, Craig A. Bromby, Hunton & Williams, Raleigh, NC, for Holly Ridge Associates, L.L.C., John A. Elmore.
TERRENCE WILLIAM BOYLE, Chief Judge.
This matter is before the Court on the following motions: (1) Plaintiffs' Motion for Summary Judgment on Standing, (2) Defendants' Motion for Summary Judgment, (3) Plaintiffs' Motion for Declaration that Defendants' Offer of Judgment is Null and Void, (4) Defendants' Motion to Strike Plaintiffs' Motion for Declaration, and (5) Plaintiffs' Motion for Partial Summary Judgment on Liability.1 Each motion has been fully briefed and is ripe for ruling.
A. General Background
Defendants Holly Ridge Associates, LLC and John A. Elmore (collectively "HRA" or "Defendants") own a 1,262-acre tract of land in Onslow County, North Carolina. This tract, referred to as the "Morris Landing Tract" or the "Tract," borders and adjoins Stump Sound and the Atlantic Intercoastal Waterway ("AIWW"). Plaintiffs North Carolina Shellfish Growers' Association ("NCSGA") and North Carolina Coastal Federation ("NCCF") allege that the Morris Landing Tract drains into Stump Sound, the AIWW, and Cypress Branch, a perennial stream that forms the southern boundary of much of the tract. According to Plaintiffs, Cypress Branch is a tributary of Batts Mill Creek, which flows into Stump Sound and the AIWW.
In their Amended Complaint, filed on February 19, 2002, Plaintiffs claim that Defendants have violated various sections of the Clean Water Act ("CWA") by conducting ditching and excavation activities on the Morris Landing Tract. These activities, which occurred between January and November 1998, included the cleaning-out of existing ditches, the expansion of existing ditches, and the creation of new ditches. Plaintiffs claim that the ditches at issue are located in wetlands and uplands adjacent to wetlands. Plaintiffs also allege that Defendants' ditching and drainage activities have resulted in the discharge of sediment and other pollutants into surrounding waters, including Cypress Branch, Batts Mill Creek, the AIWW, and Stump Sound. According to Plaintiffs, Defendants' activities have resulted in past and continuing violations of applicable water quality standards.
It is undisputed that Defendants did not apply for or obtain a CWA § 402 Discharge Permit or a § 404 Wetland Fill Permit before commencing their ditching activities on the Morris Landing Tract. In their Answer, Defendants claim that their activities do not violate the CWA. Defendants also deny that these activities fall within the jurisdiction of the CWA.
B. Facts Related to Plaintiffs' Standing
Plaintiff NCCF is a North Carolina not-for-profit corporation founded in 1982. NCCF currently has more than 7,000 members, the majority of whom live, work,
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and recreate on North Carolina's coast. NCCF's organizational purpose includes protecting coastal wetlands from destruction, maintaining and improving the quality of coastal wetlands, and protecting and maintaining shellfishing waters for the use and enjoyment of North Carolina's citizens. NCCF alleges that some of its members live in the general vicinity of the Morris Landing Tract and that many other members visit, recreate, fish, shellfish, hunt, boat, swim, conduct research or educational activities, and otherwise use and enjoy the coastal waters in the immediate vicinity of the Morris Landing Tract.
Plaintiffs have introduced affidavits from three NCCF members who claim to use and enjoy the waters and natural resources in and adjoining the Morris Landing Tract. Ted Wilgis is a member and employee of NCCF, currently serving as the Cape Fear Coastkeeper. In this position, Wilgis patrols waters from the New River Inlet north of Stump Sound and the Morris Landing Tract south to the South Carolina state line in order to monitor water quality and ensure compliance with environmental laws and regulations. Wilgis leads boat trips to Stump Sound for the education and pleasure of NCCF members and others. He also uses the waters of Stump Sound recreationally, kayaking and fishing in the portion of Stump Sound between Batts Mill Creek and Morris Landing Road. NCCF member Melvin Shepard is a resident of Sneads Ferry and owns a business selling commercial and recreational fishing supplies. Some of Shepard's customers allegedly fish in Stump Sound. Shepard claims that he has personally fished in the waters immediately adjacent to the Morris Landing Tract. He also occasionally drives across or alongside the Tract to visit a cemetery nearby. Finally, NCCF member Jim Swartzenberg fishes and boats in the vicinity of the Morris Landing Tract. Swartzenberg also owns and works shellfish leases in Stump Sound.
The other Plaintiff in this action, NCSGA, is an association of individuals, businesses, and others engaged in the business of shellfishing in North Carolina waters. NCSCA is involved in shellfish research and in environmental, economic, and regulatory advocacy. NCSGA has approximately 70 members and is dedicated to the encouragement of a healthy and prosperous shellfishing industry in North Carolina. NCSGA members own and maintain shellfish production leases all along North Carolina's coast, including the area managed by the state as the "Stump Sound Area" or "Area B-9." This area includes waters adjoining the Morris Landing Tract. Plaintiffs have introduced a declaration from NCSGA member and president Jim Swartzenberg. Swartzenberg leases and works more than 130 acres in Stump Sound. Another NCSGA member, Raymond Howard, harvests shellfish commercially from leases adjoining the Morris Landing Tract.
Plaintiffs insist that the quality of North Carolina's coastal waters is crucial to the production of shellfish, and low levels of fecal coliform bacteria are particularly important. These bacteria originate in the intestinal tracts of warm-blooded animals and enter the environment from human and animal excreta. Water contaminated with pathogens associated with high levels of fecal coliform bacteria can cause human illness and death. Illness and death can also result from the consumption of bacteria-contaminated shellfish. Plaintiffs allege that monitoring data from the Stump Sound Area reveal significant increases in fecal coliform counts at the mouth of Batts Mill Creek following Defendants' ditching and draining activities. According to Plaintiffs, a draft report from the North Carolina Shellfish Sanitation Section confirms
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that land disturbing activities such as ditching may lead to increased fecal coliform counts in adjacent waters.
C. Procedural Background
On November 27, 2002, Plaintiffs filed their Motion for Declaration that Defendants' Offer of Judgment is Null and Void. Defendants responded to this motion on December 17, 2002 and, at the same time, filed a Motion to Strike Plaintiffs' Motion for Declaration. On December 2, 2002, the parties filed three motions for summary judgment. Plaintiffs filed a Motion for Summary Judgment on Standing, claiming that the undisputed facts demonstrate that Plaintiffs have standing to maintain this action. In contrast, Defendants' Motion for Summary Judgment argues that Plaintiffs' Amended Complaint should be dismissed due to Plaintiffs' lack of standing. Finally, Plaintiffs filed a Motion for Partial Summary Judgment on Liability. This motion seeks rulings on various issues related to Defendants' liability for violations of the CWA.
A. Plaintiffs' Motion for Summary Judgment on Standing and Defendants' Motion for Summary Judgment
In order to obtain judicial resolution of their claims against Defendants, NCCF and NCSGA must satisfy the basic legal requirements for standing. "[A]n association may have standing to sue in federal court either based on an injury to the organization in its own right or as the representative of its members who have been harmed." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 155 (4th Cir.2000) (citing Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). An organization has representational standing when (1) at least one of its members would have standing to sue in his or her own right; (2) the organization seeks to protect interests germane to the organization's purpose; and (3) neither the claim asserted nor the relief sought requires the participation of individual members. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
Because their arguments focus exclusively on the first prong of this analysis, Defendants appear to concede that Plaintiffs have satisfied the second and third elements required for representational standing. The undisputed evidence before the Court indicates that the claims asserted by Plaintiffs are germane to the purposes of NCCF and NCSGA and that the claims asserted and relief requested do not require the participation of Plaintiffs' individual members. The Court will therefore focus its inquiry on the first prong of representation standing — whether any member of NCCF or NCSGA has individual standing to pursue the claims asserted.
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...F.Supp.3d 1284 EPA's interpretation that excavated dirt was pollutant); N.C. Shellfish Growers Ass'n v. Holly Ridge Assocs., LLC. , 278 F. Supp. 2d 654, 677 (E.D.N.C. 2003) (finding that sediment is a pollutant under the CWA). BWR has produced extensive evidence of historical and ongoing di......
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...into navigable waters, they may be point sources under the CWA. See, e.g., Shellfish Growers Ass'n v. Holly Ridge Associates, LLC. , 278 F.Supp.2d 654, 679–80 (E.D.N.C.2003) (finding several dams and sediment traps, "constructed in an effort to reduce the discharge of pollutants," to be poi......
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Black Warrior River-Keeper, Inc. v. Drummond Co., 2:16-cv-01443-AKK
...(finding reasonable EPA's interpretation that excavated dirt was pollutant); N.C. Shellfish Growers Ass'n v. Holly Ridge Assocs., LLC., 278 F.Supp.2d 654, 677 (E.D. N.C. 2003) (finding that sediment is a pollutant under the CWA). BWR has produced extensive evidence of historical and ongoing......
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Ellis v. Edward D, Jones & Co., L.P., Civil No. 06-66.
...of these intended results; Rule 23 must therefore yield. See N.C. Shellfish Growers Ass'n v. Holly Ridge Assoc., LLC, 357 N.C. 1429, 278 F.Supp.2d 654, 667-69 (E.D.N.C.2003)(citing Friends of the Earth v. Chevron Chem. Co., 885 F.Supp. 934 (E.D.Tex.1995); Pub. Int. Research Group, Inc. v. S......
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What Wetlands Are Regulated? Jurisdiction of the §404 Program
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Can Wetland Property Be Developed? Regulated Activities and Statutory Exemptions
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Addition
...715 F.2d 897; United States v. Fabian, 522 F. Supp. 2d 1078 (N.D. Ind. 2007); N.C. Shellish Growers Ass’n v. Holly Ridge Assoc., LLC, 278 F. Supp. 2d 654 (E.D.N.C. 2003); United States v. Hummel, 2003 WL 1845365 (N.D. Ill. 2003); United States v. Bay-Houston Towing Co., 33 F. Supp. 2d 1033 ......
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List of Case Citations
...665 F. Supp. 428, 17 ELR 21260 (E.D.N.C. 1987) ...................116 North Carolina Shellfish Growers Ass’n v. Holly Ridge Ass’n, 278 F. Supp. 2d 654 (E.D.N.C. 2003) ............................................................................................. 32, 40, 58 North Carolina Wild......