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CONCERNED AREA RESIDENTS v. SOUTHVIEW FARM

April 7, 1993

CONCERNED AREA RESIDENTS FOR THE ENVIRONMENT, et al., Plaintiffs,
v.
SOUTHVIEW FARM and RICHARD POPP, Defendants.



The opinion of the court was delivered by: DAVID G. LARIMER

DECISION AND ORDER

 BACKGROUND 1

 This is a citizen suit under the Federal Water Pollution Control Act, also known as the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. § 1251 et seq. Plaintiffs are individual landowners residing near Southview Farm in Wyoming County, New York, who refer to themselves collectively as Concerned Area Residents for the Environment ("CARE"). Defendants are the farm itself (a partnership) and Richard Popp, who is one of the two partners.

 The amended complaint asserts a cause of action under 33 U.S.C. § 1365, as well as pendent state causes of action for trespass, negligence, and nuisance. In general, all of these claims relate to plaintiffs' allegations that defendants store and spray manure on the farm for use as fertilizer, and that the manure enters and contaminates adjacent waters in violation of both federal and state law.

 Defendants have moved for summary judgment dismissing the first (CWA), second (trespass), and fourth (nuisance) causes of action under Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiffs have moved for leave to file a supplemental complaint pursuant to Rule 15(d). In addition, the New York Farm Bureau, Inc., and its national organization, American Farm Bureau Federation (jointly referred to as "Farm Bureau"), have moved for leave to file an amici curiae brief.

 DISCUSSION

 I. Plaintiffs' Motion for Leave to File a Supplemental Complaint

 Plaintiffs seek to supplement the complaint in three respects. First, plaintiffs wish to allege CWA violations arising out of manure discharges that occurred after this suit was commenced.

 Second, plaintiffs seek to add another CWA claim based on alleged violations which plaintiffs learned about during discovery. These violations involve defendants' use of chemicals to wash down "milking parlors" on Southview Farm. The chemicals are then allegedly mixed with liquid manure in lagoons, and the mixture is eventually spread on Southview Farm's fields.

 Third, plaintiffs want to add a pendent claim alleging that one particular discharge in July 1992 was done intentionally to harm and cause emotional distress to plaintiffs Phillip and Kathleen Karcheski.

 Under Rule 15(d), the court may "permit [a] party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." *fn2" In general, when the events sought to be added relate to the prior pleading, leave is freely granted, absent undue delay, bad faith, dilatory motive or prejudice to the non-movant. 3 James W. Moore, et al., Moore's Federal Practice P 15.16[3] (1992 ed.).

 The allegations sought to be added here do relate to the claims in the amended complaint, and I will therefore grant plaintiffs' motion. Although the new CWA claim deals not with manure application but with chemicals used to clean defendants' "milking parlors," it is related to the prior claims in that the chemicals are allegedly mixed with the same liquid manure, in the same or similar holding ponds, as alleged in the amended complaint. Furthermore, since the facts concerning the use and disposal of these chemicals are within defendants' knowledge, there appears to be little prejudice to defendants by the addition of this claim. The lack of prejudice is reflected by the fact that defendants have extensively addressed the merits of this new claim in their motion for summary judgment.

 Similarly, although the pendent emotional distress claim will inject some new issues into the case, it will not do so in any significant degree. Even if this claim were disallowed, there would probably still be proof of the incident involved, since that event also relates to the CWA claim. In addition, although this claim involves issues of intent, such issues are already present in the trespass claim. In my view, then, all these new claims are sufficiently related to the existing claims, and defendants would not suffer undue prejudice by their addition to the case.

 II. Farm Bureau's Motion for Leave to Submit an Amicus Brief

 Farm Bureau, a private organization representing farmers' interests, seeks leave to submit an amicus brief. Farm Bureau contends that its members (23,000 families in New York State and four million members nationwide) stand to be significantly affected by the court's decision on defendants' motion.

 Plaintiffs oppose the motion for several reasons. Plaintiffs contend that Farm Bureau has already participated in this action by contributing at least $ 10,000 to defray defendants' legal costs, and that Farm Bureau's interests are therefore already adequately represented by defendants. Plaintiffs also argue that Farm Bureau has improperly attempted to inject new issues into the case which were not raised by the parties.

 District courts have broad discretion in deciding whether to accept amicus briefs. Hoptowit v. Ray, 682 F.2d 1237, 1260 (2d Cir. 1982). The partiality of a would-be amicus is a factor to consider in making that decision, but "there is no rule . . . that amici must be totally disinterested." Id. Indeed, "by the nature of things an amicus is not normally impartial." Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970).

 After reviewing the papers submitted in connection with Farm Bureau's motion, I will accept the amicus brief. I am not persuaded that Farm Bureau's participation in this lawsuit thus far has made it an inappropriate amicus for purposes of deciding defendants' motion. Furthermore, to the extent that Farm Bureau goes beyond its proper role by attempting to present wholly new issues, the court can remedy any possible prejudice to plaintiffs by simply declining to consider those issues. See, e.g., Application of City of Buffalo, 57 A.D.2d 47, 49, 394 N.Y.S.2d 919 (4th Dep't 1977).

 III. Defendants' Motion to Dismiss the CWA Claim

 A. Injury in Fact

 The Clean Waters Act provides that "any citizen may commence a civil action . . . against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . ." 33 U.S.C. § 1365(a)(1).

 In order to meet this standard, plaintiffs must allege an "injury in fact" under the requirements set forth in Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). This means that "the plaintiff must have suffered . . . an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not "conjectural" or "hypothetical."'" Lujan v. Defenders of Wildlife, 119 L. Ed. 2d 351, 112 S. Ct. 2130, 2136 (1992) (citations omitted). In addition, "there must be a causal connection between the injury and the conduct complained of," id., and "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Id. The injuries may by physical, economic, or aesthetic in nature. Sierra Club v. SCM Corp., 580 F. Supp. 862, aff'd, 747 F.2d 99 (2d Cir. 1984).

 In response to defendants' motion to dismiss for lack of standing, plaintiffs rely primarily on their allegations of aesthetic harm at paragraph 49 of the amended complaint, which alleges that "intense, obnoxious odors have made the atmosphere at plaintiffs' properties unbearable or undesirable to breathe," and that "plaintiffs have been required to alter their lifestyles, the quality of their lives have [sic] been degraded, and they have sustained great inconvenience, discomfort, and annoyance."

 Defendants argue that the allegations of aesthetic harm do not support this cause of action. Defendants contend that only plaintiffs Philip Karcheski and Kirk Bly have alleged any link between the odor and the alleged point source discharges, and that those two plaintiffs have nothing to support those claims but speculation.

 After reviewing the allegations of the amended complaint and the plaintiffs' affidavits, I find that plaintiffs have sufficiently alleged an injury-in-fact. First, it is clear that aesthetic harm or harm to one's quality of life may support a CWA claim, as long as the plaintiff is among the persons adversely affected. See Sierra Club, 405 U.S. at 734-35; Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 111 S. Ct. 1018, 112 L. Ed. 2d 1100 (1991).

 The present record presents an issue of fact concerning whether plaintiffs have suffered aesthetic injuries. Plaintiffs' affidavits allege that they have seen and smelled manure-laden watercourses near, and sometimes adjacent to, Southview Farm. Plaintiffs also allege that this pollution eventually finds its way into other streams in the area, including the Genesee River in nearby Letchworth State Park. Plaintiffs allege that these sights and smells are offensive and have diminished their quality of life and their ability to enjoy the surrounding environment.

 Contrary to defendants' contentions, more than two of the plaintiffs have alleged a causal connection between this harm and the point source discharges. For example, plaintiff Lois Link alleges that she and her son witnessed and videotaped a discharge on February 19, 1991. She also alleges that the streams and creeks in the area are frequently fouled by liquid manure, and that the condition of the waterways offends her. It is a fair reading of these allegations to interpret them as alleging that the February 19 discharge was one of a series of discharges that have continually polluted the streams in the area. To demand that plaintiffs trace particular instances of when they were repelled by such odors or scenes to particular discharges which they witnessed would, in my view, take an overly-strict approach to the standing requirements and would place an onerous burden on plaintiffs. Powell Duffryn, 913 F.2d at 72 (plaintiff need not prove causation to a scientific certainty to defeat summary judgment motion).

 This is not to say that plaintiffs have no obligation to show a connection between the pollution and defendants' activities. Plaintiffs' affidavits, however, do allege discharges into waterways, and consequent aesthetic harm.

 Furthermore, plaintiffs' allegations are supported by the expert testimony of Jeffrey R. Chiarenzelli, who holds a Ph.D. in geology and works as a consultant in hydrogeology and environmental geology, and of Dale E. Baker, who holds a doctorate in Soil Physical Chemistry and is a professor of soil chemistry. In affidavits, both these men express the opinion that waterways adjacent to Southview Farm have been contaminated by manure which has been spread on the Farm, or by chemicals from the manure. Although defendants dispute this, I find that these expert opinions, in conjunction with plaintiffs' personal observations and experiences, suffice to create an issue of fact ...


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