North Carolina Wildlife Federation v. Woodbury

No. 87-584-CIV-5 (E.D.N.C. April 25, 1989)

The court holds that it has subject matter jurisdiction to review a Federal Water Pollution Control Act (FWPCA) citizen suit concerning illegal destruction of North Carolina wetlands because plaintiffs have clearly alleged continuing violations, the statute of limitations period would not begin to run until alleged violations were reported, and plaintiff has not unreasonably delayed suit. Federal jurisdiction is not conferred over citizen suits for wholly past violations, and is only conferred over violations having persistent effects that are amenable to correction. Defendant's failure to remove improperly discharged material constitutes a continuing violation. Characterizing the presence of dredge and fill material and the failure to take remedial measures as a continuing violation is reasonable because it is not the physical act of discharging dredge wastes itself that leads to the injury giving rise to citizen standing, but the consequences of the discharge in terms of lasting environmental degradation. If citizen suits were barred merely because any illegal ditching and drainage of a wetland tract was completed before it might reasonably be discovered, violators would have a powerful incentive to conceal their activities from public and private scrutiny. The court holds that plaintiffs' claim is not barred by statutes of limitations. The FWPCA contains no explicit statute of limitations, and the five-year federal statute of limitations, 28 U.S.C. § 2462, does not apply where plaintiff seeks equitable relief rather than civil penalties. Moreover, the statute of limitations is tolled for claims under the FWPCA until reports documenting the violations have been filed with the United States Environmental Protection Agency (EPA). Additionally, plaintiffs' claim is not barred by laches. No evidence points to a lack of diligence by plaintiffs in commencing this action so as to render a possible decree against defendants unfair.

[On August 25, 1989, the parties entered into a consent decree. Under the terms of the settlement, the Army Corps of Engineers withdraws its determination that the area is no longer a wetland, EPA will make a new determination on the extent of wetlands on the tract, and the private defendants will not pursue peat mining in wetlands. In addition, the Corps and the EPA agreed to pay approximately $ 186,500 in attorneys' fees and costs.]

Counsel for Plaintiffs
David W. Carr, Deborah M. Wassenaar
McGuire, Woods, Battle & Boothe
P.O. Box 1288, Charlottesville VA 22902
(804) 977-2500

Counsel for Defendants
Jean Anne Kingrey
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2716

Thomas N. Barefoot
1300 St. Mary's St., P.O. Box 12807, Raleigh NC 27605
(919) 821-1220

[19 ELR 21308]

Britt, J.:

Opinion

This matter is before the court on the motion for summary judgment on Count III of plaintiffs' complaint by defendants White Tail Farm, Sam J. Esposito, John L. Vitale, Charles H. Davison, Peat Energies Company, Kilkenny Farms II, LTD., Kilkenny Farms III, LTD., and SJE Investments, Inc. (the private defendants). The motion has been briefed by all parties and is ripe for ruling. For the reasons stated below, the private defendants' motion for summary judgment is denied.

Facts

Private defendants planned a large scale peat mining operation on a 7500 acre tract located in Hyde County, North Carolina (the White Tail Tract). Pursuant to this plan, the private defendants constructed ditches and a canal on the White Tail Tract for drainage purposes from 1979 until sometime in 1981 or 1982. This activity included the discharge of dredged and fill material onto the White Tail Tract. On 27 May 1981, the private defendants applied to the State of North Carolina for a permit to mine peat on the land.

On 14 July 1981, a representative of the Army Corps of Engineers (the Corps) inspected the property and subsequently determined that a large portion of the White Tail Tract was not subject to the requirements of the Clean Water Act, 33 U.S.C. section 1251 et seq., because the property had lost its wetlands character due to private defendants' ditching and drainage.

The North Carolina Wildlife Federation, North Carolina Coastal Federation, North Carolina Fisheries Association, Inc., and the Sierra Club (the plaintiffs) filed suit, on 2 July 1987, against the private defendants as well as the Environmental Protection Agency (EPA) and the Corps (the federal defendants) to enforce compliance with the Clean Water Act. Plaintiffs have brought suit pursuant to the citizen suit provisions of the Clean Water Act, 33 U.S.C. section 1365(a).¹ In Count III of the complaint, plaintiffs seek an injunction requiring the private defendants to restore the ditched and drained areas of the White Tail Tract to their natural state. Plaintiffs also seek an injunction to restrain the private defendants from future discharges unless the appropriate government permits are obtained under 33 U.S.C. section 1344.

Discussion

Freshwater wetlands serve ecologically valuable purposes by acting as natural flood control mechanisms by slowing and storing storm runoff, by recharging groundwater supplies, by biologically filtering and purifying water, and by providing habitat for many forms of terrestrial and aquatic wildlife. In recognition of the crucial functions wetlands serve, the Government has prohibited the discharge of dredged material into wetlands under 33 U.S.C. sections 1311 and 1362, absent a permit issued pursuant to 33 U.S.C. section 1344. United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151, 1153 [17 ELR 21270] (1st Cir. 1987), cert. denied, 108 S. Ct. 1016 (1988). Violation of these sections may give rise to a private cause of action under 33 U.S.C. section 1365.

Private defendants move for summary judgment on two grounds: 1) that 33 U.S.C. section 1365(a) does not provide federal subject matter jurisdiction over citizen suits for alleged violations that occurred wholly in the past, and 2) that the applicable-statute of limitations bars plaintiffs' suit against them. Plaintiffs and federal defendants have filed memoranda opposing private defendants' motion.

A) Private Defendants' Argument That This Court Lacks Federal Subject Matter Jurisdiction

The private defendantscontend that suit against them is precluded by the Supreme Court's decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 108 S. Ct. 376 [18 ELR 20142] (1987). This contention is without merit. The unanimous holding of Gwaltney was that 33 U.S.C. section 1365(a), which authorizes private citizen suits for injunctive relief and/or civil penalties, does not confer federal jurisdiction over citizen suits for wholly past violations. Id. at 381-384. The Court went on to hold, however, that where citizen-plaintiffs make a "good-faith allegation of continuous or intermittent violations," federal jurisdiction will attach under 33 U.S.C. section 1365(a). Id. at 385. Citizenplaintiffs are not required to provide proof of these allegations to invoke federal court jurisdiction. Id. While defendants may challenge the truth of plaintiffs' allegations of continuing or intermittent violations, via a motion of summary judgment, the burden of proof is upon the defendants. Id. at 386. If defendants fail to show that plaintiffs' allegations are a sham, which raise no genuine issue of fact after plaintiffs offer some evidence to support their allegations, the motion for summary judgment will be denied. Id. Defendants' burden of proof is a heavy one. Defendants "must demonstrate that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id.

In the instant case, private defendants argue that they are entitled to summary judgment under Gwaltney because plaintiffs' [19 ELR 21309] allegations of violations occurring at the time of the filing the lawsuit are a sham. To show that any violations occurred wholly in the past, private defendants have submitted various affidavits which state that private defendants did not engage in any discharge of dredge or fill material on the White Tail Tract after 1 July 1981, some six years before the commencement of suit. Private defendants argue that since plaintiffs have submitted no affidavits which specifically dispute this contention, they are entitled to summary judgment as a matter of law.

Private defendants' argument is misplaced. Plaintiffs have clearly alleged continuing violations up to the filing of the complaint. Plaintiffs need not allege specific discharge dates occurring around or after the filing of the lawsuit since both plaintiffs and federal defendants contend that private defendants' failure to remove improperly discharged material constitutes a continuing violation. United States v. Tull, 615 F. Supp. 610, 626 (E.D. Va. 1983), aff'd 769 F.2d 182 [15 ELR 21061] (4th Cir. 1985), rev'd on other grounds, 107 S. Ct. 1831 [17 ELR 20667] (1987); United States v. Ciampitti, 669 F. Supp. 684, 700 [18 ELR 20519] (D.N.J. 1987). Treating the failure to take remedial measures as a continuing violation is eminently reasonable. This is because it is not the physical act of discharging dredge wastes itself that leads to the injury giving rise to citizen standing, but the consequences of the discharge in terms of lasting environmental degradation. This position finds support in Justice Scalia's concurrence in Gwaltney, in which he was joined by Justices Stevens and O'Connor. According to the concurring Justices, the phrase in 33 U.S.C. section 1365(a) "to be in violation," unlike the phrase "to be violating" or "to have committed a violation," suggests "a state rather than an act — the opposite of state of compliance. . . . When a company has violated an effluent standard or limitation, it remains for purposes of [section 1365(a)] 'in violation' of that standard or limitation so long as it has not put in place remedial measures that clearly eliminate the cause of the violation." Gwaltney, 108 S. Ct. at 381.

Private defendants argue that interpreting failure to take remedial measures as constituting a continuing violation would emasculate the holding of Gwaltney. Under this argument, any past discharge that is not remedied would be subject to citizen-suit as a continuing violation, thus rendering Gwaltney meaningless. However, this argument fails to adequately distinguish between various types of effluent violations. For example, citizen-suits for past discharges which are not susceptible to remedial efforts, due to effective natural dissipation or dispersion, would clearly continue to be barred under Gwaltney. Only violations having persistent effects that are amenable to correction, would constitute continuing violations, until remedied, under Gwaltney. In the instant case, the characterization of the presence of dredge and fill material on the White Tail Tract as a continuing violation recognizes that the violation is still capable of direction, since plaintiffs seek injunctive relief ordering that the material be removed and the area restored. Treating private defendants' acts as a continuing violation is also supported by public policy. If citizen-suits were barred merely because any illegal ditching and drainage of a wetland tract was completed before it might reasonably be discovered, violators would have a powerful incentive to conceal their activities from public and private scrutiny — which would lead to serious problems in public and private enforcement of the Clean Water Act.

For these reasons, private defendants' motion for summary judgment for lack of subject matter jurisdiction is denied.

B) Private Defendants' Statute of Limitations Argument

Private defendants also move for summary judgment on Count III on the ground that the statute of limitations has expired. Defendants contend that the five year statute of limitations set forth in 28 U.S.C. section 2462 bars plaintiffs' citizen-suit since private defendants ceased ditching and draining activities on the White Tail Tract by 1 July 1981. In support of their position, private defendants cite Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517 [18 ELR 20237] (9th Cir. 1987).

The Clean Water Act contains no explicit statute of limitations. Id. at 1521. In the absence of such a statute of limitations, a number of courts have held that the five year statute of limitations set forth in 28 U.S.C. section 2462 applies to citizen-suits under the Clean Water Act. Id. 28 U.S.C. section 2462 states:

Except as otherwise provided by Act of Congress, as action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accured if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.

(emphasis added)

From the text of 28 U.S.C. section 2462, it is apparent that private defendants' statute of limitations argument is without merit. In Count III of the complaint, plaintiffs seek only equitable relief, unlike the plaintiffs in Sierra Club, who were clearly seeking civil penalties. Sierra Club v. Chevron, 834 F.2d at 1522. The express terms of 28 U.S.C. section 2462 apply only to suits for the enforcement of a "civil fine, penalty or forfeiture." The express language of a statute is ordinarily controlling, absent a clearly expressed legislative intention to the contrary. Consumer Product Safety Commission v. GTE Sylvania, Inc., 100 S. Ct. 2051, 2056 (1980). The Supreme Court has also held that "a suit in equity may lie though a comparable action at law would be barred." Holmberg v. Armbrecht, 66 S. Ct. 582, 584 (1946). Thus, 28 U.S.C. section 2462 does not bar plaintiffs' suit for equitable relief.

Other reasons support the conclusion that 28 U.S.C. section 2462 does not bar Count II of plaintiffs' action. Traditionally, statutes of limitation are not controlling measures of equitable relief. Holmberg, 66 S. Ct. at 581. Statutes of limitation "have been drawn upon by equity solely for the light they may shed in determining . . . whether the plaintiff has inexcusably slept on his rights so as to make a decree against the defendant unfair." Id.

The doctrine of laches controls the availability of equitable relief. "[L]aches is not, like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced . . ." Id. Laches will bar a suit in equity where plaintiffs' "lack of diligence is wholly unexcused; and both the nature of the claim and the situation of the parties was such as to call for diligence." Id. In the instant case there has been no evidence pointing to a lack of diligence in commencing this action by plaintiffs so as to render a possible decree against defendants unfair. Therefore, Count III is not barred by laches.

Even if 28 U.S.C. section 2462 were to apply to Count III, private defendants' statute of limitations argument would fail. It is important to note that 28 U.S.C. section 2462 requires commencement of suit within five years from the date the claim first accrued. Private defendants' argument implicitly assumes that plaintiffs' claim first accrued from the time private defendants actually physically ditched and drained the property. This argument overlooks the fact that it has been held that claims under the Clean Water Act do not accrue, for statute of limitations purposes, until reports documenting the violations have been filed with the EPA. Atlantic States Legal Foundation v. Al Tech Specialty, 635 F. Supp. 284, 289 [17 ELR 20125] (N.D.N.Y. 1986). This holding recognizes that is is virtually impossible for the public to discover violations until reports have been filed with the EPA. Id. at 289-290. To hold that the statute of limitations "begins when the violations actually occur, as opposed to when they are discovered, would impede, if not foreclose the remedial effects of the statute." Id. at 290.

Accordingly, private defendants' motion for summary judgment is hereby denied.

1. 33 U.S.C. section 1365(a) reads in pertinent part:

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 chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . .