Ward v. Stucke
| Decision Date | 03 September 2021 |
| Docket Number | 3:18-cv-263 |
| Parties | AARON WARD, et al., Plaintiffs, v. MARK J. STUCKE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
ENTRY AND ORDER GRANTING, IN PART, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. NO. 41); GRANTING SUMMARY JUDGMENT FOR DEFENDANTS ON COUNT 1; DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER COUNTS 2 & 3 AND THEREFORE, DISMISSING THE REMAINING CLAIMS WITHOUT PREJUDICE TO REFILING IN STATE COURT; AND TERMINATING THE CASE
This case involves a citizen's suit under the Clean Water Act, 33 U.S.C. § 1251 - 1388 (the “CWA”) pursuant to 33 U.S.C. § 1365. Plaintiffs Aaron Ward and Betsy Ward (the “Wards” or “Plaintiffs”) bring three claims against their neighbors, Defendants Mark J. Stucke and Mary Ann E. Stucke (the “Stuckes” or “Defendants”): (1) unauthorized discharges of dredged and/or fill materials, in violation of 33 U.S.C. § 1311 and 33 U.S.C. § 1344 (i.e., Sections 301 and 404 of the CWA); (2) private nuisance; and (3) trespass. (Doc. No. 13.)
Pending before the Court is Defendants' Motion for Summary Judgment (Doc. No. 41) (the “Motion”). In the Motion, the Stuckes move for an order granting summary judgment on all claims against them, pursuant to Federal Rule of Civil Procedure 56. In response, the Wards argue that the Court must fully deny the Motion because genuine issues of material fact remain on all claims. As explained below, the Court finds that the Stuckes are entitled to summary judgment on the CWA claim (Count 1) because the claim is only for past violations. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (). The Wards' remedy, if any, is not grounded in the CWA in federal court. The Court declines to exercise supplemental jurisdiction over the remaining claims.
Therefore the Court GRANTS IN PART the Motion; grants summary judgment to the Stuckes on Count 1 of the First Amended Complaint (the “Complaint”); declines to exercise supplemental jurisdiction over Counts 2 and 3 and therefore, dismisses the remaining claims without prejudice to refiling in state court; and orders the Clerk of Court to terminate this action from the docket of the United States District Court for the Southern District of Ohio.
I.BACKGROUND[1]
The Stuckes' property consists of approximately 191 acres of field used primarily for agricultural purposes. (Doc. No. 13 at PageID 122; see also Doc. No. 41-1 (Aff. of Mark Stucke) at PageID 329.) The Stuckes' property is west of, and adjacent to, the Wards' property and residence in Darke County, Ohio. (Doc. No. 13 at PageID 122, 125; Doc. No. 41 at PageID 309.) There is a stream channel on the east end of the Stuckes' property. (Doc. No. 43-4 (Aff. of Pls.' expert) at PageID 508.) That channel is now the start of the headwaters of Boyd Creek. (Id. at PageID 508-09.) The channel and the rest of Boyd Creek run for approximately 3.3 miles before emptying into the Stillwater River, which runs into the Great Miami River, which runs into the Ohio River. (Id. at PageID 510.)
Before the year 2000, the prior owners of the Stucke property installed two grassed waterway channels on the property. (Doc. No. 43-4 at PageID 508; Doc. No. 41-1 at PageID 329.) The channels collect and divert surface runoff to the stream channel on the east end of the Stucke property. (Id.) In 1984, 2006, and 2011, the Stuckes or their predecessors in ownership installed drainage tiles on the property. (Doc. No. 43-7 at PageID 655-56.) In the fall of 2014, the Stuckes engaged in excavation of their property and installed field drainage tiles throughout the property, diverting water to Boyd Creek.[2] (Doc. No. 43-4 at PageID 509.) There is no evidence that either the Stuckes or their predecessors in ownership obtained a CWA section 404 permit.
On or about July 13, 2015, a heavy rain event occurred and the stormwater, groundwater, and surface water discharges from the Stucke property overflowed and flooded the stream channel, in turn flooding the Ward property and other nearby properties. (Doc. No. 13 at PageID 130; see also Doc. No. 41-1 at PageID 329.) The Wards' home was destroyed, along with the personal belongings in their home and on their property. (Doc. No. 13 at PageID 130.) Prior to July 13, 2015, the Wards had never experienced flooding or damages related to flooding in their home or on their property since they moved there in 2004. (Id. at PageID 125.)
As a result of the above-referenced excavation activities and installation of field drainage tiles, the stream channel abutting the Wards' property has flooded and continues to experience damages related to flooding, causing severe damage to the Wards' home and property. (Doc. No. 43-4 at PageID 509.) The Wards are experiencing flood events near their property on a more frequent basis. (Doc. No. 43-6 ().)
On February 14, 2017, prior to commencement of this lawsuit, the Wards gave notice of the citizen suit violations alleged in the Complaint in a letter addressed to the Stuckes, the Army Corp of Engineers, the United States Environmental Protection Agency (USEPA), and the Ohio Environmental Protection Agency (OEPA). (Doc. No. 13 at PageID 121; Doc. No. 13-1 at PageID 141-43.) It is undisputed that no governmental agency has taken any enforcement action, even after receiving that notice. (See Doc. No. 41 at PageID 313-14; Doc. No. 43-1 at PageID 424.)
After more than 60 days had passed since giving notice, the Wards filed this action on August 6, 2018. (Doc. No. 1.) They amended their complaint on November 20, 2018. (Doc. No. 13.) On June 9, 2021, following the close of discovery, the Stuckes filed the Motion. (Doc. No. 41.) The Wards filed a Response in opposition to the Motion (Doc. No. 43), and the Stuckes filed a Reply to that Response (Doc. No. 44). The Motion is fully briefed and ripe for review.
II. LEGAL STANDARDS FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Alternatively, summary judgment is denied “[i]f there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
The party seeking summary judgment has the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party, who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed.R.Civ.P. 56(e)). In opposing summary judgment, the nonmoving party cannot rest on its pleadings or merely reassert its previous allegations. Id. at 248-49. It also is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rule 56 “requires the nonmoving party to go beyond the [unverified] pleadings” and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324.
A party's failure “to properly address another party's assertion of fact as required by Rule 56(c)” can result in the court “consider[ing] the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e). Additionally, “[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).
In ruling on a motion for summary judgment, it is not the judge's function to make credibility determinations, “weigh the evidence[, ] and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 255. In determining whether a genuine issue of material fact exists, the court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in that party's favor. Id. at 255; Matsushita, 475 U.S. at 587; Tolan v. Cotton, 572 U.S. 650, 660, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014). However, the “mere existence of a scintilla of evidence in support of the” nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S. at 252. “There must be evidence on which the jury could reasonably find for the plaintiff.” Id. The inquiry, then, is “whether reasonable jurors could find by a preponderance of the evidence that the” nonmoving party is entitled to a verdict. Id.
III. ANALYSIS
The Stuckes make five arguments for why they are entitled to summary judgment on the CWA claim: (1) it does not...
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