Swartz v. Beach
| Decision Date | 07 October 2002 |
| Docket Number | No. 02-CV-044B.,02-CV-044B. |
| Parties | Edward SWARTZ, Plaintiff, v. Gary BEACH, Administrator of the Wyoming Department of Environmental Quality, Water Quality Division, in his official and individual capacities; Dennis Hemmer, Director of the Department of Environmental Quality, in his individual and official capacities; and Redstone Resources, Inc., a Colorado Corporation, Defendants. |
| Court | U.S. District Court — District of Wyoming |
Clint Andrew Langer, Davis & Cannon, Sheridan, WY, Kate M. Fox, Davis & Cannon, Cheyenne, WY, for plaintiff.
Thomas John Davidson, Magdalene M. Allely, Wyoming Atty. Gen., Cheyenne, WY, for Gary Beach, Dennis Hemmer, defendants.
Keith Burron, Associated Legal Group, Cheyenne, WY, for Restone Resources, Inc., defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
This case arises from the production of coal bed methane in Northeastern Wyoming. The matter is currently before the Court on Defendant Hemmer and Beach's Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to Fed. R.Civ.P. 12(b) and Defendant Redstone Resources, Inc.'s Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b). Upon reading the briefs, hearing oral argument, and being fully advised of the premises, the Court FINDS and ORDERS as follows:
Statement of Parties and Jurisdiction
The Plaintiff, Ed Swartz, owns and operates a ranch in Campbell County, Wyoming. The Swartz ranch is approximately 280 acres of hay meadows irrigated by Plaintiff pursuant to his adjudicated water right on Wildcat Creek.1
Defendant Gary Beach is being sued in his individual and official capacities as the Administrator of the Wyoming Department of Environmental Quality, Water Quality Division ("WDEQ"). Defendant Dennis Hemmer is being sued in his individual and official capacities as Director of the WDEQ. (Defendants Beach and Hemmer will be collectively referred to as "State Defendants").
Defendant Redstone Resources, Inc. ("RRI"), a Colorado corporation, is a gas company that operates in the Powder River Basin of Wyoming producing coal bed methane ("CBM").
RRI operates in the Rough Draw Field, a CBM field located near Gillette, Wyoming. The Rough Draw Field encompasses a significant portion of the Wildcat Creek drainage.2 Incident to its CBM operation, RRI discharges CBM process water pursuant to permits issued by the WDEQ. The WDEQ administers the National Pollutant Discharge Elimination System (NPDES) program.
In October of 1999, CBM discharge water began to flow through the Swartz Ranch in Wildcat Creek due to the operation of RRI's CBM wells in the Wildcat Creek basin. Since October 1999, Plaintiff claims the CBM discharge water has been continuous during the winter months (October to April). As a result, during the summer months (April to September) Wildcat Creek has an insufficient flow of water to enable Plaintiff to irrigate his ranch. Plaintiff further contends that the CBM discharge water flowing in Wildcat Creek through his ranch is unsuitable for irrigation and has caused permanent soil damage because of the elevated salinity and sodium absorption ratio ("SAR") in the CBM discharge water.3 Plaintiff's hay meadows were not irrigated in 2000 and 2001 because of the lack of water or when water was available its high salinity.
Plaintiff alleges that as a consequence of the CBM discharge water the channel vegetation in Wildcat Creek has been killed or replaced by salt-tolerant species that are less valuable as forage. Further, the increased salinity has altered the soil composition of the channel to an extent that it is unlikely that the channel will be capable of sustaining the vegetation it once supported. Plaintiff contends that if he used the CBM discharge water with high salinity for irrigation purposes it would: (1) reduce crop production; (2) increase soil salinity over time further decreasing and preventing crop production; and (3) permanently alter the soil composition which would prevent the land from sustaining its current vegetation. Thus, Plaintiff claims he has been deprived of his adjudicated water right and that his property is being permanently damaged by RRI's CBM discharge water.
Since the CBM discharge water began flowing through Plaintiff's property in Wildcat Creek he has made a number of requests, without avail, to have the State Defendants remedy the situation. Specifically, Plaintiff alleged that notwithstanding several complaints about the CBM discharge water to Defendant Beach, the WDEQ did not take any action until it finally performed an investigation in August 2000. On October 25, 2000, the preliminary report of this investigation found extensive salt deposits in the stream channel; however, the WDEQ took no further action. On January 26, 2001, Plaintiff formally requested that Defendant Beach "take action" pursuant to the Wyoming Environmental Quality Act and the Water Quality Regulations. Defendant Beach informed the Plaintiff that he could do nothing until he received the final results from the August investigation.
In March 2001, the final report of the August investigation was released. The final report disclosed that the Wildcat Creek had SAR levels of 10 (Plaintiff claims an informal acceptable level is 6) and EC levels of 5,160. As a result of the final report, Defendant Beach asked Defendant RRI to rectify these concerns before any informal enforcement action would occur. No further action was taken by Defendants Beach or RRI. On February 15, 2002 Plaintiff wrote to Defendant Hemmer requesting a response to the unanswered Petition for Review by the Director of WDEQ. Hemmer never responded to that request. Plaintiff claims Hemmer has not taken any action to remedy RRI's ongoing pollution of Wildcat Creek.
Plaintiff further contends that he has attempted to review the NPDES permit files for CBM producers in the Wildcat Creek drainage for the past two years. Plaintiff maintains that Daily Monitoring Reports ("DMR") were absent from most files and when the files were made complete several facts became apparent: (1) WDEQ was not timely reviewing data that would be the basis for permit compliance submitted by CBM producers; and (2) that the data was not available to determine permit compliance.
On December 29, 2001, twelve of RRI's permits for CBM wells in the Wildcat Drainage were set to expire. Before the re-issuance of the permits, a public comment period was held. Plaintiff attended the comment period and discussed the alleged damage to his ranch and provided scientific data to support his allegation. Nevertheless, a day after the comment period ended, the permits were re-issued to RRI on January 1, 2002.
The permits issued to RRI on January 1, 2002 contained new restrictions on the discharge of CBM water. The permits provided that after April 1, 2002, the CBM discharge water's salinity level was not to exceed 2000 EC. The salinity of the discharge water was to be measured where Wildcat Creek entered Plaintiff's ranch. Plaintiff alleges that water samples taken from the Wildcat Creek in April 2002 indicated EC levels above 2000. Additionally, Plaintiff contends that a WDEQ investigator determined that RRI was in violation of its permits. However, the State Defendants still did not take any enforcement action.
In his Second Amended Complaint, Plaintiff has alleged the following causes of action against the State Defendants: (1) Taking of Private Property Without Just Compensation by failing to perform their statutory and regulatory duties to remedy the damage caused by RRI (Fourth Cause of Action); (2) Taking of Private Property Without Due Process of Law because State Defendants inaction has resulted in a violation of substantive and procedural due process rights under the United States and Wyoming Constitutions (Fifth Cause of Action); (3) Preliminary and Permanent Injunction to restrain State Defendants from allowing RRI and other producers of CBM in the Wildcat Drainage from discharging water in such a way as to violate Plaintiff's constitutional rights, federal environmental laws, and state environmental laws (Seventh Cause of Action).
Plaintiff has alleged the following causes of action against RRI: (1) Nuisance for continuously discharging water from its CBM operations onto the Swartz Ranch causing an unwarranted, unreasonable, and unlawful injury to Plaintiff's use of the land (First Cause of Action); (2) Trespass for RRI's discharge of water from its CBM operations onto the Swartz Ranch without the Plaintiff's consent, which has caused damage and interfered with Plaintiff's exclusive possessory interest (Second Cause of Action); (3) Clean Water Act ("CWA") violation for RRI's discharge of CBM process water in a manner that has caused the degradation of Wildcat Creek and for violating the terms of its NPDES permits (Third Cause of Action); and (4) Preliminary and Permanent Injunction against RRI to prevent the continued discharge of water from its CBM wells directly or indirectly into Wildcat Creek or otherwise preventing tainted water from reaching Plaintiff's property (Sixth Cause of Action).
Additionally, Plaintiff has sought punitive damages against all Defendants claiming they have acted in a willful and wanton manner (Eighth Cause of Action).
Plaintiff filed his initial Complaint in this matter on March 14, 2002. On April 19, 2002, before Defendants had answered the Complaint, Plaintiff filed an Amended Complaint which added his claim for punitive damages. The State Defendants and RRI filed independent Motions to Dismiss on May 3, 2002. On June 11, 2002 this Court entered an order granting Plaintiff's Motion for Leave to File a...
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