Sun Enterprises, Ltd. v. Train, No. 75 Civ. 68.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtAngus MacBeth, New York City, for amicus curiae Natural Resources Defense Council
Citation394 F. Supp. 211
PartiesSUN ENTERPRISES, LTD., et al., Plaintiffs, v. Russell E. TRAIN et al., Defendants.
Decision Date09 May 1975
Docket NumberNo. 75 Civ. 68.

394 F. Supp. 211

SUN ENTERPRISES, LTD., et al., Plaintiffs,
v.
Russell E. TRAIN et al., Defendants.

No. 75 Civ. 68.

United States District Court, S. D. New York.

May 9, 1975.


394 F. Supp. 212

Marshall, Bratter, Greene, Allison & Tucker, New York City, for plaintiffs; Nicholas A. Robinson, Charles H. Miller, Allen H. Brill, New York City, of counsel.

Paul J. Curran, U. S. Atty., S. D. N. Y., for defendants Train, Hansler,

394 F. Supp. 213
Morton, and United States; William Roche Bronner, Asst. U. S. Atty., Richard G. Tisch, Atty., Water Enforcement Branch, Environmental Protection Administration, New York City, of counsel

Louis J. Lefkowitz, Atty. Gen. of N. Y., for defendants Reid, McKeon, Concra, Garvey, Schuler, Sinacori, Gardeski, and State of New York; Olin Harper LeCompte, Stanley Fishman, Julius Feinstein, Albany, N. Y., of counsel.

Harry H. Chambers, Town Atty., Town of Somers, New York City, for defendants Town of Somers; Adams, Minogue, Oehler, Osborne, each as Councilman of the Town Board of the Town of Somers; Quagliano, Cross, Feldschuh, Fogarty, La Porte, Lubkeman, Nuccio, each as member of the Zoning Board of Appeals of the Town of Somers; Fleischhauer, Albertson, Brown, Cukierski, Granata, Kolack, Peer, each as member of the Planning Board of the Town of Somers; Antonaccio; Marcon; and Flood.

Blasi & Zimmerman, Tarrytown, N. Y., for defendants Heritage Hills of Westchester, Paparazzo, McGann, H & H Land Corp., Heritage Hills Sewage-Works Corp., and Heritage Development Group, Inc.; Peter F. Blasi, Davis M. Zimmerman, Tarrytown, N. Y., of counsel.

Angus MacBeth, New York City, for amicus curiae Natural Resources Defense Council.

OPINION

BONSAL, District Judge.

Plaintiffs commenced this action against certain federal, state, and town officials and certain private defendants on January 8, 1975. The federal and state defendants moved pursuant to F.R.Civ.P. 12(b) to dismiss the complaint. The town and private defendants moved pursuant to F.R.Civ.P. 12(b) to dismiss the complaint and for summary judgment pursuant to F.R.Civ.P. 56. Plaintiffs moved for summary judgment on their "second claim for relief." After these motions became sub judice, plaintiffs, on April 21, 1975, filed an amended complaint as a matter of course pursuant to F.R.Civ.P. 15(a), since no responsive pleadings had been served. The foregoing motions will therefore be treated as applying with equal force to the amended complaint.

PLAINTIFFS

According to the amended complaint, plaintiff Sun Enterprises, Inc. ("Sun") "is the owner of over 500 acres of land in the Town of Somers New York . . . including a 40-acre fresh-water wetland containing a spring-fed lake of some 10 acres, two ponds, most of an extensive marsh known locally as No Bottom Marsh . . . and approximately 3,000 feet of land along a stream known locally as Brown Brook . . . which empties into the Muscoot Reservoir on the Croton River, a tributary of the Hudson River . . . ." Plaintiff Lyman Kipp is the president of Sun. Plaintiff Southern New York Fish and Game Association, Inc. ("Southern New York") is described in the amended complaint as a not-for-profit membership corporation which has approximately 2,500 members, "many of whom live in and around the Town of Somers and use and enjoy the natural resources of the Sun property." The amended complaint states that the purposes of Southern New York "are to promote the sports of fishing and hunting, to aid in enforcement of laws for the protection of wildlife, to cooperate with private owners to protect natural resources and to educate the public in the need for conservation and protection of wildlife." Plaintiff Richard Homan is described as the "Second Vice President of Southern New York" and "lives above his bait and tackle shop, which is rented from Sun."

FEDERAL DEFENDANTS

The federal defendants are Russell Train, Administrator of the United States Environmental Protection Agency ("EPA"); Gerald Hansler, Regional Administrator of EPA for Region II,

394 F. Supp. 214
which includes the state of New York; Rogers Morton, Secretary of the Interior; and the United States of America

STATE DEFENDANTS

The state defendants are Ogden Reid, who replaced James Biggane as Commissioner of the New York State Department of Environmental Conservation ("DEC"); Warren McKeon, Director of Region III of DEC; Louis Concra, Jr., Central Permit Agent for DEC; William Garvey, Chief, Pollution Discharge Elimination System Permit Section, Division of Pure Waters, DEC; Raymond Schuler, New York State Commissioner of Transportation; M. N. Sinacori, Director of Region VIII of the New York State Department of Transportation ("DOT"); Raymond Gardeski, a traffic engineer for DOT; and the State of New York.

TOWN DEFENDANTS

The town defendants include the Town of Somers, New York; the councilmen of the Town Board of Somers; the members of the Zoning Board of Appeals of the Town of Somers; the members of the Planning Board of the Town of Somers; and the Town of Somers' Building Inspector, Engineer, and Highway Superintendent.

PRIVATE DEFENDANTS

Defendant Heritage Hills of Westchester ("HHW") is described in the amended complaint as a partnership whose partners include defendants Paparazzo and McGann. HHW is developing an adult condominium community in the Town of Somers known as Heritage Hills of Westchester ("Heritage Hills"), purportedly on over 800 acres of land, "including an extensive portion of Brown Brook's streambed," upstream from the Sun property. According to the amended complaint, defendant H & H Land Corp. is a New York corporation which holds title to the property on which Heritage Hills is being developed. Defendant Heritage Hills Sewage-Works Corporation ("Sewage-Works Corporation") is stated to be a corporation organized and existing under the New York State Transportation Corporation Law. Defendant Heritage Development Group, Inc. is allegedly a Connecticut corporation which exercises "general responsibility, supervision and control for the development of" Heritage Hills.

Plaintiffs assert seventeen separate "claims for relief" arising from injury which they allegedly have, are, and will suffer in connection with the development of Heritage Hills and the discharge of sewage treatment effluent from Heritage Hills into Brown Brook. Plaintiffs seek declaratory, injunctive, and monetary relief.

FEDERAL DEFENDANTS' MOTION TO DISMISS AND PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Four separate "claims for relief" are pleaded against the federal defendants. Plaintiffs' "first claim for relief" (pars. 32-50) alleges that in connection with the issuance of a National Pollutant Discharge Elimination System ("NPDES") permit to "H & H Land Corporation— Heritage Hills of Westchester" for discharge of sewage treatment effluent into Brown Brook, defendants Train and Hansler violated plaintiffs' rights to due process "by failing to implement the EPA regulations for protecting wetlands and by failing to give plaintiffs adequate notice or the opportunity to comment or the opportunity to request a hearing and by violating applicable law on state certification." In addition, plaintiffs have amended their "first claim for relief" to allege that the federal and state defendants also violated section 302 of the Federal Water Pollution Control Act Amendments of 1972 ("Water Act"), 33 U.S.C. § 1312, in connection with the issuance of the NPDES permit to "H & H Land Corporation — Heritage Hills of Westchester." Plaintiffs' "second claim for relief" (pars. 51-56) charges that defendants Train, Hansler, and Morton violated their duty under the Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq.

394 F. Supp. 215
and plaintiffs' rights to due process "by failing to consult each other with respect to the impact on the fish and wildlife on the Sun Property from the NPDES permit sought by `H & H Land Corp.— Heritage Hills of Westchester.'" Plaintiffs allege in their "fourth claim for relief" (pars. 64-67) that defendant Morton "negligently or wilfully" failed in his duties under 16 U.S.C. § 668 and under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. "to prevent the acts of the private defendants, abetted by the State and Town defendants" which endanger the American bald eagle and "which endanger and kill migratory birds, their nests and eggs in Brown Brook and No Bottom Marsh." Finally, plaintiffs' "fifth claim for relief" (pars. 68-70) alleges that the issuance of the NPDES permit constitutes a taking of property without just compensation in violation of the Fifth Amendment to the United States Constitution

First and Fifth "Claims for Relief"

Plaintiffs' first and fifth "claims for relief" pertain directly to the action of the EPA Administrator in issuing an NPDES permit pursuant to section 402 of the Water Act, 33 U.S.C. § 1342. Section 509(b)(1) of the Water Act, 33 U.S.C. § 1369(b)(1), provides in relevant part:

"Review of the Administrator's action . . . in issuing or denying any permit under section 402, may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application of any such person."

Plaintiffs are therefore pursuing their first and fifth claims in a forum other than the one designated by Congress. However, "where, as here, Congress has specifically designated a forum for judicial review of administrative action and does so in unmistakable terms except under extraordinary conditions, that forum is exclusive." Anaconda Co. v. Ruckelshaus, 482 F.2d 1301, 1304-1305 (10th Cir. 1973). See also Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973); Nader v. Volpe, 151 U.S.App.D.C. 90, 466 F.2d 261 (1972); E. I. DuPont de Nemours and Co. v. Train, 383 F.Supp. 1244 (W. D.Va.1974); American Paper Institute v. Train, ...

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15 practice notes
  • Sun Enterprises, Ltd. v. Train, Nos. 490
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 12, 1976
    ...grounds by Judge Dudley B. Bonsal of a similar challenge initiated in the District Court for the Southern District of New York. 394 F.Supp. 211 (S.D.N.Y.1975). The disputed action is the issuance of an NPDES permit to the intervenors by the Administrator of EPA pursuant to § 402 of the Fede......
  • Motor Ave. Co. v. Liberty Indus. Finishing Corp., No. CV 91-0968 (CBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 29, 1994
    ...exercise supplemental jurisdiction, relies on two cases which are distinguishable from the instant case. In Sun Enters., Ltd. v. Train, 394 F.Supp. 211 (S.D.N.Y.1975), aff'd, 532 F.2d 280 (2d Cir. 1976), state law claims were dismissed where the state law claims alleged discharge of "sewage......
  • Love v. New York State Dept. of Environ. Conserv., No. 80 Civ. 5081 (KTD).
    • United States
    • U.S. District Court — Southern District of New York
    • December 17, 1981
    ...with a discharge 529 F. Supp. 840 permit to the Developers. Support for this position can be found in Sun Enterprises, Ltd. v. Train, 394 F.Supp. 211 (S.D. N.Y.1975), aff'd, 532 F.2d 280 (2d Cir. 1976). In Sun Enterprises, a plaintiff landowner sued the New York Department of Environmental ......
  • Navigable Waters
    • United States
    • Plain meaning, precedent, and metaphysics: interpreting the elements of the clean water act offense
    • October 24, 2017
    ...(10th Cir. 1980); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 4 ELR 20784 (6th Cir. 1974); Sun Enters., Inc. v. Train, 394 F. Supp. 211 (C.D.N.Y. 1975). 142. United States v. Phelps Dodge Corp . , 391 F. Supp. 1185, 5 ELR 20308 (D. Ariz. 1975). 143. United States v. St. Berna......
  • Request a trial to view additional results
11 cases
  • Sun Enterprises, Ltd. v. Train, Nos. 490
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 12, 1976
    ...grounds by Judge Dudley B. Bonsal of a similar challenge initiated in the District Court for the Southern District of New York. 394 F.Supp. 211 (S.D.N.Y.1975). The disputed action is the issuance of an NPDES permit to the intervenors by the Administrator of EPA pursuant to § 402 of the Fede......
  • Motor Ave. Co. v. Liberty Indus. Finishing Corp., No. CV 91-0968 (CBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • December 29, 1994
    ...exercise supplemental jurisdiction, relies on two cases which are distinguishable from the instant case. In Sun Enters., Ltd. v. Train, 394 F.Supp. 211 (S.D.N.Y.1975), aff'd, 532 F.2d 280 (2d Cir. 1976), state law claims were dismissed where the state law claims alleged discharge of "sewage......
  • Love v. New York State Dept. of Environ. Conserv., No. 80 Civ. 5081 (KTD).
    • United States
    • U.S. District Court — Southern District of New York
    • December 17, 1981
    ...with a discharge 529 F. Supp. 840 permit to the Developers. Support for this position can be found in Sun Enterprises, Ltd. v. Train, 394 F.Supp. 211 (S.D. N.Y.1975), aff'd, 532 F.2d 280 (2d Cir. 1976). In Sun Enterprises, a plaintiff landowner sued the New York Department of Environmental ......
  • Honicker v. Hendrie, No. 78-3371-NA-CV.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • January 12, 1979
    ...S.Ct. 551, 13 L.Ed.2d 386 (1965)); see, e. g., Nader v. Volpe, 151 U.S.App.D.C. 90, 466 F.2d 261 (1972); Sun Enterprises, Ltd. v. Train, 394 F.Supp. 211 (S.D.N.Y.1975). See generally Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals, 88 Harv.L.Re......
  • Request a trial to view additional results
4 books & journal articles
  • Navigable Waters
    • United States
    • Plain meaning, precedent, and metaphysics: interpreting the elements of the clean water act offense
    • October 24, 2017
    ...(10th Cir. 1980); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 4 ELR 20784 (6th Cir. 1974); Sun Enters., Inc. v. Train, 394 F. Supp. 211 (C.D.N.Y. 1975). 142. United States v. Phelps Dodge Corp . , 391 F. Supp. 1185, 5 ELR 20308 (D. Ariz. 1975). 143. United States v. St. Berna......
  • Plain Meaning, Precedent, and Metaphysics: Interpreting the 'Navigble Waters' Element of the Clean Water Act Offense
    • United States
    • Environmental Law Reporter Nbr. 45-6, June 2015
    • June 1, 2015
    ...(10th Cir. 1980); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 4 ELR 20784 (6th Cir. 1974); Sun Enters., Inc. v. Train, 394 F. Supp. 211 (C.D.N.Y. 1975). 145. United States v. Phelps Dodge Corp . , 391 F. Supp. 1185, 5 ELR 20308 (D. Ariz. 1975). 146. United States v. St. Berna......
  • Table A: Decisions Interpreting the Elements of the Water Pollution Offense
    • United States
    • Plain meaning, precedent, and metaphysics: interpreting the elements of the clean water act offense
    • October 24, 2017
    ...United States v. Holland, 373 F. Supp. 665, 4 ELR 20710 (M.D. Fla. 1974) 4 1 2 1, 2, 4 3 1, 3 3 4 3 253. Sun Enters., Inc. v. Train, 394 F. Supp. 211 (S.D.N.Y. 1975) 3 254. P.F.Z. Props., Inc. v. Train, 393 F. Supp. 1370 (D.D.C. 1975) 3 255. Natural Res. Def. Council v. Callaway, 392 F. Sup......
  • Plain Meaning, Precedent, and Metaphysics: Lessons in Statutory Interpretation From Analyzing the Elements of the Clean Water Act Offense
    • United States
    • Environmental Law Reporter Nbr. 46-4, April 2016
    • April 1, 2016
    ...1976) 4 252. Conservation Council of N.C. v. Costanzo, 398 F. Supp. 653, 5 ELR 20666 (E.D.N.C. 1975) 3 253. Sun Enters., Inc. v. Train, 394 F. Supp. 211 (S.D.N.Y. 1975) 3 254. P.F.Z. Props., Inc. v. Train, 393 F. Supp. 1370 (D.D.C. 1975) 3 255. Natural Res. Def. Council v. Callaway, 392 F. ......

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