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May 9, 1975

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

Bonsal, District Judge.

The opinion of the court was delivered by: BONSAL

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.


 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."


 The federal defendants are Russell Train, Administrator of the United States Environmental Protection Agency ("EPA"); Gerald Hansler, Regional Administrator of EPA for Region II, which includes the state of New York; Rogers Morton, Secretary of the Interior; and the United States of America.


 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.


 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.


 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.


 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. 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, 381 F. Supp. 553 (D.D.C.1974); Arizona Public Service Co. v. Fri, 5 ERC (BNA) 1878, 3 ELR 20894 (D.Ariz.1973). The amended complaint fails to show such extraordinary conditions as would justify intrusion upon the Congressionally designated function of the Court of Appeals.

 Plaintiffs have amended their complaint to assert jurisdiction under the citizen suit provisions of section 505 of the Water Act, 33 U.S.C. § 1365, which provides in relevant part:

"(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf --
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this Act or (B) an order issued by ...

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