The opinion of the court was delivered by: Scullin, Chief Judge.
MEMORANDUM-DECISION AND ORDER
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
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
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.
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.
Defendant contends that, even assuming that this assertion is
true, Plaintiffs fail to satisfy the first prong of the standing
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 ¶¶ 7, 8.
Arquette further states that he previously enjoyed viewing and