Rauseo v. Army Corps of Engineers

• Decision Date: 26 March 2019
• Docket Number: Civil Action No. 17-12026-NMG
• Citation: 368 F.Supp.3d 202
• Parties: Stephanie RAUSEO and Apple Hill Neighbors Group, Plaintiffs, v. ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

368 F.Supp.3d 202

Stephanie RAUSEO and Apple Hill Neighbors Group, Plaintiffs,

v.ARMY CORPS OF ENGINEERS, et al., Defendants.

Civil Action No. 17-12026-NMG

United States District Court, D. Massachusetts.

Signed March 26, 2019

Michael C. Walsh, Walsh & Walsh LLP, Lynnfield, MA, for Plaintiffs.

Joshua M. Levin, U.S. Department of Justice, Washington, DC, Rayford A. Farquhar, United States Attorney's Office, James E. Gallagher, Davis Malm & D'Agostine, Boston, MA, for Defendants.

MEMORANDUM & ORDER

Gorton, J.

This suit arises out of plaintiffs' claim that 1) Marco Tammaro violated federal environmental laws by filling his property with pollutants and 2) the Environmental Protection Agency and the Army Corps of Engineers failed to investigate and sanction Tammaro's noncompliance with federal laws.

I. Background

A. Factual Background

Stephanie Rauseo ("Rauseo") lives in the Apple Hill neighborhood of Lynnfield, Massachusetts, adjacent to the property at issue in this action ("the Property"). Rauseo, along with a local citizens' group, Apple Hill Neighbors Group ("Apple Hill plaintiffs") (collectively "plaintiffs") allege that Marco Tammaro ("Tammaro"), the owner of the Property, unlawfully discharged fill into federally protected streams or wetlands without a permit.

Consequently, plaintiffs contacted the Massachusetts Department of Environmental Protection ("DEP"), the Lynnfield Planning Board, the Environmental Protection Agency ("EPA") and the Army Corps of Engineers ("the Corps"). Specifically, plaintiffs complained to the EPA that Tammaro had violated the Clean Water Act ("the CWA") to no avail. In 2016, plaintiffs discovered that Tammaro's developer, Peter Ogren ("Ogren"), provided notice to the Corps that the activities on the Property were exempt from Section 404 of the CWA. In response, plaintiffs urged the New England Engineer of the Corps to enforce the CWA, claiming that neither an individual nor a general Section 404 permit authorized Tammaro's work on the Property.

In November, 2016, the Corps visited the Property without notifying plaintiffs and allegedly made a final Jurisdictional Determination ("JD") with respect to the Property. They have since averred that the Property abuts a conservation area and that the two water streams that run across the Property and into the conservation area are waters of the United States that are subject to EPA drinking water regulations under the Safe Drinking Water Act ("the SDWA").

In November, 2017, plaintiffs sent a 60-day Notice of Intent to Sue ("NOI") under the CWA and the SDWA to Tammaro, representatives of the Commonwealth, the DEP, the U.S. Department of Justice and the EPA. Although plaintiffs did not name the Corps in its NOI, they filed an amended complaint with this Court in April, 2018, in which they allege: CWA violations against Tammaro (Count I), CWA violations against EPA and the Corps ("the federal defendants") (Count II), SDWA violations against Tammaro and the federal defendants (Count III), APA procedural violations against the federal defendants (Count IV), APA substantive violations against the federal defendants (Counts V and VII), improper ex parte communications against all defendants (Count VI) and Sunshine Act violations against the federal defendants (Count VIII). Pending before this Court are motions of the federal defendants and of Tammaro to dismiss for lack of jurisdiction and failure to state a claim.

II. Analysis

A. Legal Standard

1. Failure to State a Claim

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face". Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering the merits of a motion to dismiss, the Court may look only to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint and matters of which judicial notice can be taken. Nollet v. Justices of Trial Court of Mass., 83 F.Supp.2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d 1127 (1st Cir. 2000).

Furthermore, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). If the facts in the complaint are sufficient to state a cause of action, a motion to dismiss the complaint must be denied. See Nollet, 83 F.Supp.2d at 208. Although a court must accept as true all the factual allegations contained in a complaint, that doctrine is not applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Threadbare recitals of legal elements which are supported by mere conclusory statements do not suffice to state a cause of action. Id. Accordingly, a complaint does not state a claim for relief where the well-pled facts fail to warrant an inference of any more than the mere possibility of misconduct. Id. at 1950.

2. Lack of Jurisdiction

With respect to a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), plaintiff bears the burden of establishing subject matter jurisdiction. Justiniano v. Soc. Sec. Admin., 876 F.3d 14, 21 (1st Cir. 2017). Under Fed. R. Civ. P. 12(b)(1), the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff. Aversa v. United States, 99 F.3d 1200, 1209–10 (1st Cir. 1996).

A plaintiff may not, however, rest merely on "unsupported conclusions or interpretations of law". Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. 1993). Subjective characterizations or conclusory descriptions of a scenario that could be overcome by unpled facts will not defeat a motion to dismiss. Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995).

B. Motion to Dismiss by Federal Defendants

1. Jurisdiction

The federal defendants argue that the citizen suit provision of the CWA does not explicitly waive the government's sovereign immunity interest because plaintiffs have failed to demonstrate that a clearly mandated, nondiscretionary duty applies. Plaintiffs respond that the EPA and the Corps have failed to perform the following "mandatory" duties: 1) enforce the CWA, 2) issue a compliance order to Tammaro and 3) investigate plaintiffs' complaints against Tammaro.

A waiver of sovereign immunity must be unequivocal and Sections 505(a)(2) and 1449(a) of the CWA and the SDWA explicitly waive sovereign immunity with respect to nondiscretionary duties of the EPA Administrator. Conservation Law Found., Inc. v. Pruitt, 881 F.3d 24, 28 (1st Cir. 2018) ; 33 U.S.C. § 1365 (a)(2) ; 42 U.S.C. § 300j-8(a)(1)-(2). It is clearly established, however, that an agency's decision not to prosecute or take enforcement action is "generally committed to an agency's absolute discretion". Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). In fact, courts have specifically held that the EPA is not required to investigate every complaint because it has discretion to investigate and enforce violations it believes to be the most serious. Sierra Club v. Whitman, 268 F.3d 898, 902–03 (9th Cir. 2001) ; Dubois v. Thomas, 820 F.2d 943, 946–47 (8th Cir. 1987) (reversing the district court on the grounds that EPA does not have a mandatory duty under the CWA to make findings or carry out an investigation of a citizen complaint).

Accordingly, because plaintiffs' claims relate to the EPA's failure to issue findings with respect to alleged violations of the CWA and SDWA, plaintiffs have failed to satisfy the jurisdictional requirement of a "clearly mandated, nondiscretionary duty", thus precluding their citizen suits. Miccosukee Tribe of Indians of Fla. v. U.S., E.P.A., 105 F.3d 599, 602 (11th Cir. 1997) (internal citations omitted); Whitman, 268 F.3d at 901 (holding that if the Administrator acted within her discretion, the district court properly dismissed for lack of jurisdiction under the CWA); Garling v. United States Envtl. Prot. Agency, 849 F.3d 1289, 1296 (10th Cir. 2017) (holding that Congress delegated broad authority to the EPA to implement and enforce the SDWA).

For completeness, the Court proceeds to address plaintiffs' claims under the Administrative Procedures Act ("the APA") and the Sunshine Act.

2. Dismissal under the APA

The APA does not independently confer subject matter jurisdiction and thus dismissal of plaintiffs' claims under the CWA and the SDWA presumptively precludes plaintiffs' APA claims. Even if that were not so and judicial review under the APA were appropriate, plaintiffs' claims thereunder would fail as well.

The federal defendants allege that plaintiffs lack standing because they make no allegations of how the government's actions have injured them uniquely. They fail to address that argument but instead argue the merits of judicial review under the APA. Standing is, of course, a threshold question in every case and plaintiffs' failure to demonstrate injury, causation and redressability is grounds for dismissal.

Summers v. Fin. Freedom Acquisition LLC, 807 F.3d 351, 355 (1st Cir. 2015).

Again, assuming arguendo that plaintiffs have satisfied the procedural hurdles of jurisdiction and standing (which they have not), the APA authorizes judicial review of "final agency action for which there is no other adequate remedy in a court". 5 U.S.C. § 704. Under 33 C.F.R. § 331.2, a JD by the Corps that a wetland and/or waterbody is subject to regulatory jurisdiction under Section 404 of the CWA must be in writing and either be identified as preliminary or approved. Approved JDs, unlike preliminary JDs, are considered final agency actions and are appealable.

Here, plaintiffs have not demonstrated that the Corps reached an approved JD with respect to the Property and evidence of the Corps' written communications with Tammaro's developer and with...