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August 22, 2001


The opinion of the court was delivered by: Scullin, Chief Judge.



In a Complaint filed on July 12, 1999, Plaintiffs assert that Defendant violated Section 301 of the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a), which requires that a National Pollutant Discharge Elimination System ("NPDES") permit be obtained prior to discharging pollutants into navigable water, and Section 404 of the CWA, 33 U.S.C. § 1344, which requires that a permit be obtained prior to discharging dredge into a navigable waterway. Plaintiffs seek declaratory and injunctive relief*fn1 as well as the imposition of civil penalties.

Presently before the Court is Defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Practice or, in the alternative, for summary judgment pursuant to Rule 56.*fn2 Also before the Court is Plaintiffs' cross-motion to amend their Complaint.


Plaintiffs Atlantic States Legal Foundation ("ASLF"), a national non-governmental organization which provides legal and technical expertise to citizens pursuing environmental protection and restoration, and Mohawks Agree on Safe Health ("MASH"), a community organization comprised of First Nation peoples whose purpose is to foster traditional education and stewardship of Native American lands, bring this action pursuant to the CWA, 33 U.S.C. § 1365, which provides for citizen suits, alleging that Defendant violated the CWA when he discharged pollutants into a navigable waterway without a permit.

Plaintiffs allege that on October 30, 1998, Defendant Rick Hamelin, who is the owner and operator of a gas station and convenience store, discharged dirt and gravel ("fill material") into a thriving wetland area on the St. Regis Mohawk Reservation in order to create a 15-acre commercial parcel in violation of the CWA. Defendant concedes that the "discharge" occurred but maintains that it was a one-time event. See Def.'s Statement of Material Facts at ¶ C.

By letter dated March 12, 1999, Plaintiffs informed Defendant and the Saint Regis Mohawk Tribe of Plaintiffs' intention to commence a lawsuit. On May 11, 1999, an "Order on Consent" between the Saint Regis Mohawk Tribe and Defendant was issued in which Defendant agreed to pay a $5,000 fine, to pay $20,000 so that mitigation wetlands could be purchased and to present the Tribe with a plan for restoration of the watercourse. Additionally, on December 17, 1999, the EPA issued an Administrative Order that precluded Defendant from any further filling of wetlands.

A motion argument was held on May 12, 2000. At that time, the Court reserved decision on the parties' motions and scheduled a follow-up conference. During the conference, which was held on June 9, 2000, the Court granted Defendant's motion to dismiss for the reasons stated at the conference and set-forth below.*fn3 However, as discussed below, this dismissal is intended to apply to the civil penalties portion of the claim but not to the portion of the claim that seeks declaratory and injunctive relief.*fn4


A. Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence submitted, including the pleadings, depositions, answers to interrogatories and affidavits, in the light most favorable to the non-moving party, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997); Commander Oil Corp. v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). A genuine issue of fact exists when the evidence is such that a "reasonable jury could return a verdict for the nonmoving party." Rovtar v. Union Bank of Switz., 852 F. Supp. 180, 182 (S.D.N.Y. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986)). Moreover, in determining whether such a fact question exists, the court must draw all reasonable inferences in favor of the non-moving party. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).

B. Standing and Plaintiffs' Motion to Amend the Complaint

"[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). When the plaintiff in an action is an association, such "[a]n association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Id. at 181, 120 S.Ct. 693 (citing Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).

Defendant contends that Plaintiffs are unable to satisfy the requirements outlined above and, thus, do not have standing to bring this claim.

1. "Injury in Fact"

With respect to the "injury in fact" requirement, the focus is not on the injury to the environment, but rather on the injury to the plaintiff. See id. According to the Supreme Court, "environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons `for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Id. at 183, 120 S.Ct. 693 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)) (other citation omitted); see also Public Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 71 (3d Cir. 1990) (holding that the injury "need not be large, an `identifiable trifle' will suffice." (citing United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973))).

Defendant contends that Plaintiffs have only made generalized grievances of injury and, thus, have not shown "injury in fact." To support this assertion, Defendant points to the fact that in their Complaint, Plaintiffs assert the following:

Plaintiffs are citizen groups whose members enjoy viewing wetland flora and fauna in a natural state. These members also benefit from the wetland area at issue, in that wetlands act as a filtering system for neighborhood creeks and rivers specifically and the local watershed in general. The members of ASLF and MASH have lost the benefits of the aforementioned wetlands as a result of Defendant's actions.

See Complaint at ¶ 11.

Defendant contends that, even assuming that this assertion is true, Plaintiffs fail to satisfy the first prong of the standing analysis.*fn5

To support their claim that they have suffered "injury in fact," Plaintiffs have submitted the affidavits of five individuals who are members of the Plaintiff organizations. The affiants state that they are members of at least one of the Plaintiff organizations and discuss their use of the wetlands at issue and the impact that Defendant's actions had on such use. For example, affiant Dave Arquette states that he formerly "walk[ed] the perimeter of the wetland every day" and also use to cross country ski around the wetland. See Affidavit of Dave Arquette, sworn to Feb. 22, 2000 ("Arquette Aff."), at ΒΆΒΆ 7, 8. Arquette further states that he previously enjoyed viewing and photographing ...

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