United States v. Acquest Transit LLC

• Decision Date: 14 August 2018
• Docket Number: 09-CV-00055S(F)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ACQUEST TRANSIT LLC, ACQUEST DEVELOPMENT, LLC., and MR. WILLIAM L. HUNTRESS, Defendants.
• Court: U.S. District Court — Western District of New York

UNITED STATES OF AMERICA, Plaintiff, v. ACQUEST TRANSIT LLC, ACQUEST DEVELOPMENT, LLC., andMR. WILLIAM L. HUNTRESS, Defendants.

09-CV-00055S(F)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

August 14, 2018

REPORT and RECOMMENDATION

DECISION and ORDER¹

APPEARANCES:

JEFFREY B. SESSIONS

UNITED STATES ATTORNEY GENERAL

Attorney for Plaintiff

JESSIE K. LIU

UNITED STATES ATTORNEY, DISTRICT OF COLUMBIA

TSUKI HOSHIJIMA, and

ELIZABETH YU

Assistant United States Attorneys, of Counsel

601 D Street NW

Washington, District of Columbia 20535

and

BRADLEY L. LEVINE,

JOHN EDWARD SULLIVAN, and

MEGHAN ELIZABETH GREENFIELD, Trial Attorneys

Environmental Enforcement Section

P.O. Box 7611

Ben Franklin Station

Washington, District of Columbia 20044-7611

andCHRIS SAPORITA, Assistant Regional Counsel

United States Environmental Protection Agency

Water and General Law Branch, of Counsel

Region 2

290 Broadway, 16^th Floor

New York, New York 10007-1866

JAMES P. KENNEDY

UNITED STATES ATTORNEY

Attorney for Plaintiff

MARY K. ROACH

Assistant United States Attorney, of Counsel

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202

RUPP BAASE PFALZGRAF CUNNINGHAM LLC

Attorneys for Defendants

ANNE KATHERINE BOWLING,

DAVID ROSS PFALZGRAF, JR.,

MATTHEW D. MILLER, and

R. ANTHONY RUPP, III, of Counsel

424 Main Street

Suite 1600

Buffalo, New York 14202

DURHAM JONES & PINEGAR, P.C.

Attorneys for Defendants

BRADLEY R. CAHOON, of Counsel

111 S. Main Street

Suite 2400

Salt Lake City, Utah 84111

THE CORNWELL LAW FIRM

Attorneys for Defendants

GARY TYLER CORNWELL, of Counsel

900 N. Rainbow Ranch Road

Wimberly, Texas 78676

JURISDICTION

Honorable William M. Skretny referred this case to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), for all pretrial matters including preparation of a reportand recommendation on dispositive motions, initially on June 10, 2010 (Dkt. 44), and again on June 29, 2015 (Dkt. 196). The matter is presently before the court on motions for summary judgment filed October 16, 2017, by Defendants (Dkt. 267), and Plaintiff (Dkt. 269), and on motions to strike filed by Plaintiff on January 31, 2018, (Dkts. 293, 294, and 296), and by Defendants on June 12, 2018 (Dkts. 320 and 321).

BACKGROUND

Plaintiff United States of America ("Plaintiff" or "the Government"), commenced this action on January 15, 2009, asserting three claims for relief against Defendant Acquest Transit LLC ("Acquest"), for violations of §§ 301 and 309(d) of the Clean Water Act of 1972 ("CWA"), 33 U.S.C. § 1251 et seq., by engaging in various ditching, earthmoving, and fill activities on tax parcel 16.00-5-23, located in the Town of Amherst, New York ("the Site" or "the Property"), and seeking injunctive relief and civil penalties. Plaintiff's motion filed March 4, 2009, for a preliminary injunction against Acquest "placing additional fill or performing any additional earth-moving work at the Property" pending resolution of the instant litigation (Dkt. 6), was granted by District Judge Skretny on July 15, 2009 (Dkt. 26). An amended complaint filed April 6, 2011 (Dkt. 112) ("Amended Complaint"),² is essentially identical to the original Complaint, asserting the same three claims for relief against Acquest and newly-added Defendants Acquest Development, LLC ("Acquest Development"), and William L. Huntress ("Huntress") (together, "Defendants"). In particular, Plaintiff alleges Defendants (1) discharged pollutants into navigable waters of the United States without obtaining the requisitepermit in violation of CWA §§ 301 and 404, 33 U.S.C. §§ 1311 and 1344, Amended Complaint ¶¶ 45-53 ("First Claim" or "the § 404 violation"); (2) discharged storm water associated with industrial activity into the navigable waters of the United States without obtaining the requisite permit in violation of CWA §§ 301, 402, and 502(12), respectively, 33 U.S.C. § 1311 and 1362(12), id. ¶¶ 54-63 ("Second Claim" or "the § 402 violation"); and (3) continued the alleged unlawful discharge of pollutants into navigable waters of the United States without the requisite § 404 permit in contravention of an administrative order issued by the Environmental Protection Agency ("EPA"), in February 2009, in violation of CWA § 309(b) and (d), 33 U.S.C. § 1319(b) and (d), and the Debt Collection Improvement Act of 1996, 31 U.S.C. § 3701, id. ¶¶ 64-67 ("Third Claim" or "the administrative order violation").

On October 16, 2017, Defendants filed a motion for summary judgment (Dkt. 267) ("Defendants' Summary Judgment Motion"), supported by Defendants' Memorandum in Support of Motion for Summary Judgment (Dkt. 267-1) ("Defendants' Memorandum"), Local Rule 56 Statement of Undisputed Material Facts (Dkt. 267-2) ("Defendants' Statement of Facts"), the Affidavit of Bradley R. Cahoon, Esq. (Dkt. 267-3) ("Cahoon Affidavit"), attaching exhibits 1 through 11 (Dkts. 267-4 through 267-14) ("Cahoon Exh(s). ___"), and the Affidavit of William L. Huntress (Dkt. 267-15) ("Huntress Affidavit"). Also filed on October 16, 2017, was Plaintiff's motion for summary judgment on liability (Dkt. 269) ("Plaintiff's Summary Judgment Motion"), supported by the United States' Memorandum in Support of Motion for Summary Judgment on Liability (Dkt. 269-1) ("Plaintiff's Memorandum"), United States' Statement of Undisputed Material Facts (Dkt. 269-2) ("Plaintiff's Statement of Facts"), the Declaration of John Sullivan,Esq. (Dkt. 269-3) ("Sullivan Declaration"), and four volumes of exhibits (Dkts. 271-274) ("Plaintiff's Exh(s). ___").

On December 8, 2017, Plaintiff filed United States' Opposition to Defendants' Motion for Summary Judgment (Dkt. 278) ("Plaintiff's Response"), United States' Opposing Statement to Defendants' Statement of Undisputed Material Facts (Dkt. 278-1) ("Plaintiff's Opposing Statement of Facts"), and the Declaration of Meghan E. Greenfield, Esq. (Dkt. 278-2) ("Greenfield Declaration"), attaching exhibit A (Dkt. 278-3) ("Greenfield Declaration Exhibit"). Also filed on December 8, 2017, was Defendants' Memorandum in Opposition to the United States' Motion for Summary Judgment on Liability (Dkt. 279) ("Defendants' Response"), attaching Defendants' Response to Plaintiff's Statement of Undisputed Material Facts and Defendants' Counterstatement in Opposition to Plaintiff's Motion for Summary Judgment (Dkt. 279-1) ("Defendants' Opposing Statement of Facts"), and the Declaration of Matthew D. Miller, Esq. and Defendants' Appendix to Local Rule 56 Statement of Material Facts in Opposition to Plaintiff's Motion for Summary Judgment (Dkt. 279-2) ("Miller Declaration"), to which are attached exhibits (Dkts. 279-3 to 279-4, 280-1 to 280-22, 281-1 to 281-15, and 282-1 to 282-2) ("Defendants' Response Exh(s). ___").

On January 31, 2018, Plaintiff filed three motions to strike, including (1) the Motion to Partially Strike Affidavit of Stephen Apfelbaum (Dkt. 293) ("Apfelbaum Motion"), attaching United States' Memorandum in Support of Motion to Partially Strike Affidavit of Stephen Apfelbaum (Dkt. 293-1) ("Plaintiff's Memorandum - Apfelbaum"), and the Declaration of Assistant United States Attorney ("AUSA") Tsuki Hoshijima (Dkt. 293-2) ("Hoshijima Declaration - Apfelbaum"), attaching Exhibit A (Dkt. 293-3)("Apfelbaum Motion Exh. A"); (2) the Motion to Partially Strike Declarations of Ray and Susan Kagel (Dkt. 294) ("Kagels Motion"), attaching United States' Memorandum in Support of Motion to Partially Strike Declarations of Ray and Susan Kagel (Dkt. 294-1) ("Plaintiff's Memorandum - Kagels"), and the Declaration of AUSA Tsuki Hoshijima (Dkt. 294-2) ("Hoshijima Declaration - Kagels"), attaching exhibits A through C (Dkts. 294-3 through 294-5) ("Kagels Motion Exh(s). ___"); and (3) the Motion to Partially Strike Declaration of Alan Busacca (Dkt. 296) ("Busacca Motion"), attaching United States' Memorandum in Support of Motion to Partially Strike Declaration of Alan Busacca (Dkt. 296-1) ("Plaintiff's Memorandum - Busacca"), and the Declaration of AUSA Tsuki Hoshijima (Dkt. 296-2) ("Hoshijima Declaration - Busacca"), attaching exhibits A through G (Dkts. 296-3 through 296-9) ("Busacca Motion Exh(s). ___"). Plaintiff also filed on January 31, 2018, United States' Reply in Support of Motion for Summary Judgment on Liability (Dkt. 297) ("Plaintiff's Reply"), attaching exhibits A and B (Dkts. 297-1 and 2) ("Plaintiff's Reply Exh(s). ___"). On February 1, 2018, Plaintiff filed the Declaration of Assistant United States Attorney John E. Sullivan (Dkt. 298) ("Sullivan Declaration"), attaching exhibit C (Dkt. 298-1) ("Sullivan Declaration Exh. C"). On February 5, 2018, Defendants filed Defendants' Reply to Government's Response to Defendants' Motion for Summary Judgment (Dkt. 299) ("Defendants' Reply").

On May 15, 2018, Defendants filed in response to Plaintiff's motions to strike (1) the Memorandum in Opposition to the United States' Motion to Strike, in Part, the Expert Declaration of Mr. Steven Apfelbaum (Dkt. 307) ("Defendants' Response - Apfelbaum"), and the Declaration of Anne K. Bowling, Esq., in Opposition to Plaintiff's Motion to Strike, in Part, the Declaration of Mr. Steven Apfelbaum (Dkt. 307-1) ("BowlingDeclaration - Apfelbaum"); (2) the Memorandum in Opposition to the United States' Motion to Strike, in Part, the Expert Declaration of Dr. Alan Busacca (Dkt. 308) ("Defendants' Response - Busacca"), and the Declaration of Anne K. Bowling, Esq., in Opposition to Plaintiff's Motion to Strike, in Part, the Expert Declaration of Dr. Alan Busacca (Dkt. 307-1) ("Bowling Declaration - Busacca"), attaching exhibits 1 through 3 ("Busacca Motion Response Exh(s). ___"); and (3) the Memorandum in Opposition to the United States' Motion to Strike, in Part, the Testimony of Ray Kagel and Susan Kagel (Dkt. 309) ("Defendants' Response - Kagels"), and the Declaration of Anne K. Bowling, Esq., in Opposition to Plaintiff's Motion to Strike, in Part, the Declarations of Mr. Ray and Dr. Susan Kagel (Dkt. 309-1) ("Bowling Declaration - Kagels"), attaching exhibits 1 through 5 (Dkts. 309-2...