United States v. Andrews

Decision Date11 June 2021
Docket NumberCIVIL CASE NO. 3:20-CV-1300 (JCH)
CourtU.S. District Court — District of Connecticut
PartiesUNITED STATES OF AMERICA, Plaintiff, v. JEFFREY ANDREWS, ET AL., Defendant.

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFREY ANDREWS, ET AL., Defendant.

CIVIL CASE NO. 3:20-CV-1300 (JCH)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JUNE 11, 2021


RULING RE: DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION AND MOTION TO SUPPRESS (DOC. NO. 71)

I. INTRODUCTION

Currently pending before this court is a Motion to Dismiss for Lack of Jurisdiction and Motion to Suppress (Doc. No. 71) filed by the defendants, Jeffrey Andrews, Lynn Cooke Andrews, Wesley W. Andrews, Colton C. Andrews, and Ellery W. Andrews (hereinafter collectively "the Andrewses"). In the portion of their Motion seeking dismissal for lack of jurisdiction, the Andrewses argue that this court lacks jurisdiction to hear the Clean Water Act ("CWA") claims brought by the United States against defendants Wesley W. Andrews, Colton C. Andrews, and Ellery W. Andrews because they are not "owners" under the CWA. Defendants' Memorandum in Support ("Mem. In Supp.") (Doc. No. 71-1) at 3-16. Further, the defendants move to dismiss on the grounds that the United States "has failed to show by a preponderance of the evidence", Mem. In Supp. at 1, that the property in question, known as the Cooke-Andrews Property, contains wetlands as defined under federal law, and that the defendants have filled or dredged those wetlands without a permit, id. at 1-2. Finally, defendants argue

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that this court lacks jurisdiction because there is a five-year statute of limitations to commence a civil CWA enforcement action. Id. at 31-40.

The Andrewses' second basis in support of their Motion to Dismiss rests in large measure on the arguments set forth in their Motion to Suppress and the granting of that Motion. For that reason, the court addresses the Motion to Suppress aspect of the Andrewses' Motion before addressing the Motion to Dismiss for Lack of Subject Matter Jurisdiction.

The United States has filed two Memoranda in Opposition. (Doc. Nos. 72 and 73).

II. BACKGROUND

United States filed its Complaint against the Andrewses seeking injunctive relief and civil penalties under sections 309(b) and (d) of the CWA, 33 U.S.C. §§ 1319(b) and 1319(d), in connection with the Andrewses' alleged discharge of pollutants into waters of the United States without a permit at the Cooke-Andrews Property, and failure to respond to the Environmental Protection Agency's ("EPA") information requests. Complaint (Doc. No. 1). The Complaint asserts subject matter jurisdiction under sections 1331, 1345, and 1355 of title 28 of the United States Code. Id.

The Andrewses filed their initial Answer to the Complaint and then subsequently amended their answer and added counterclaims. See Amended Answer (Doc No. 35). Following the filing of a Motion to Dismiss Counterclaims by the United States (Doc. No. 52), the Andrewses moved to file a second amended answer. Motion for Leave to File Second Amended Answer (Doc. No. 63). After the court granted that Motion, Order (Doc No. 67), the defendants filed their Second Amended Answer (Doc No. 70), in which they withdrew their counterclaims and asserted certain affirmative defenses.

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Simultaneously, the Andrewses filed the pending Motion to Dismiss for Lack of Subject Matter Jurisdiction and to Suppress Evidence. Motion (Doc No. 71).

The day after filing its Complaint, the United States moved for a preliminary injunction. Motion for Preliminary Injunction ("Mot. for Prelim. Inj.") (Doc. No. 8). After several motions to extend, Andrewes filed their Memorandum in Opposition (Doc. No. 25). The court then held a hearing on December 16, 2020, and subsequently granted in part the United States' Motion for Preliminary Injunction, as stated on the record. See Transcript of Record Ruling (Doc. No. 51).

III. MOTION TO SUPPRESS1

A. Standard of Review

Andrews seek to suppress any evidence obtained by the United States during its search of their property pursuant to the warrant signed by the Honorable William I. Garfinkel. The warrant that was issued by then-Magistrate Judge Garfinkel on May 8, 2019, is an "Administrative Warrant and Order." Mot. for Prelim. Inj. at 8. Most non-consensual, administrative searches, such as the one at issue here, must be authorized by a warrant. Marshall v. Barlow's, Inc., 436 U.S. 307, 25 (1978). The standard for issuance of such a warrant is less stringent than the probable cause standard required for criminal search warrants. Id. at 320. "Probable cause in the criminal law sense is not required for purposes of an administrative search pursuant to a warrant that is

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authorized by statute." Wisoff v. City of Schenectady, 670 F. App'x 724, 725 (2d Cir. 2016) (brackets and internal quotations omitted) (quoting Marshall, 436 U.S. at 320-21).

In the criminal context, the standard for probable cause for the issuance of a warrant requires that there be "a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Black, 845 F. App'x 42, 49 (2d Cir. 2021) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). An administrative warrant application, by contrast, is subject to a "relaxed standard of probable cause." Airbnb, Inc. v. City of New York, 373 F. Supp. 3d 467, 487 (S.D.N.Y. 2019). In this context, probable cause exists to support the issuance of a warrant where there are reasonable grounds to believe a violation has occurred. See Marshall, 436 U.S. at 320 (alterations omitted); id. at 315 ("[R]easonableness is . . . the ultimate standard."); see also Airbnb, Inc. v. City of New York, 373 F. Supp. 3d 467, 488 (S.D.N.Y. 2019) ("[T]he Fourth Amendment ordinarily demands [in the administrative warrant context] that the government demonstrate to a neutral party that a search is justified by some quantum of individualized suspicion."). Thus, in reviewing the United States' Application for an Ex Parte Administrative Warrant ("Warrant Application"), the court was required to find that there were reasonable grounds to believe that a violation had occurred. The granting of an application for an administrative warrant does not require that an agency present conclusive evidence that a violation has occurred. National-Standard Co. v. Adamus, 881 F.2d 352, 360 (7th Cir. 1989).

B. Discussion

The essence of the Andrewses' argument is that the United States misled the court in its Warrant Application by relying upon evidence generated using the Connecticut definition of wetlands, which definition differs from the federal definition.

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Under Connecticut law, a wetland is deemed present if a single parameter—hydric soil characteristics—is satisfied. See Conn. Gen. Stat. § 22a-38(15). Under federal law, the definition of wetlands requires proof of three wetland parameters or criteria: proof of predominantly hydrostatic vegetation; hydric soil; and wetland hydrology. See U.S. Army Corps of Engineers 1987 Wetland Delineation Manual ("COE Manual"). The Andrewses argue that, in relying on a wetlands delineation map based on the Connecticut wetland standard, the United States confused or misled the court into concluding that there was reasonable ground to believe a violation of federal law had occurred involving federal wetlands.

The court does not read the Application submitted to obtain the Warrant in the way the Andrewses suggest. In 2003, the Andrewses hired a consultant to prepare a wetlands delineation of the Andrewses property in connection with a possible subdivision development on the property. Application for Ex Parte Administrative Warrant and Order ("Warrant Application") (Doc. No. 73-1) at 9. Using Connecticut state standards, the consultant delineated approximately 10 acres of the Andrewses property as wetlands. Id. The Andrewses are correct that the Warrant Application and supporting Affidavit of Raymond Putnam contains, and references, the 2003 wetlands delineation. However, the United States expressly qualified its reference to the 2003 delineation, specifically pointing out in the Warrant Application—at the beginning of its discussion of this map—that it was prepared using the state standard for wetlands, and described the...

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