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Conservation Law Foundation, Inc. v. Continental Paving, Inc.

United States District Court, D. New Hampshire

December 6, 2016

Conservation Law Foundation, Inc.
Continental Paving, Inc., d/b/a Concord Sand & Gravel Opinion Nos. 2016 DNH 130, 2016 DNH 220


          Joseph N. Laplante United States District

         "Organizational standing" is a frequently contested issue in citizen enforcement actions. In the case at bar, Conservation Law Foundation (CLF) alleges that Continental Paving, Inc., (operating under the trade name Concord Sand & Gravel), violated the Federal Water Pollution Control Act by discharging polluted water without proper authorization or permits. CLF seeks declaratory and injunctive relief, and imposition of civil penalties. Continental moves to dismiss the complaint, arguing that CLF lacks organizational standing to sue. Specifically, Continental argues that CLF has failed to identify any of its members who were harmed by Continental's alleged activities. After briefing and oral argument, the court finds that CLF members have alleged sufficient injury to confer standing on CLF. While Continental correctly observes that CLF's complaint contains no allegations regarding individual members, declarations from CLF members appended to its objection to Continental's motion to dismiss satisfy the standing requirement. The court therefore denies Continental's motion to dismiss.

         I. Background[1]

         CLF is a regional, non-profit environmental protection organization headquartered in Boston. It has over 3000 members, including more than 450 in New Hampshire. Continental operates two New Hampshire facilities at issue in this litigation: a sand and gravel facility in Concord and a sand, gravel and asphalt paving mixtures facility in Pembroke. CLF alleges that Continental engages in various industrial activities at the facilities, including mining, storing, moving and processing sand, gravel, rock and other earth materials. CLF further alleges that such sand, gravel, rock and other earth materials are exposed to the elements and are sprayed with water on occasion. The Complaint also asserts that Continental stockpiles, processes, stores and transfers asphalt materials outdoors; operates, maintains, and stores heavy machinery and equipment outdoors; and drives vehicles on and off the facilities via driveways and immediate access roads.

         When the materials and equipment at the facilities are exposed to precipitation and snowmelt, the water becomes polluted with dust, suspended and dissolved solids, hydrocarbons, heavy metals, sediment, road salt, trash and other pollutants from the facilities' operation. CLF alleges that this polluted runoff is then conveyed through various means, e.g., site grading, surface water channels, subsurface connections and pipes, to the Soucook River, its tributaries and wetlands, and eventually to the Merrimack River. CLF also alleges that at the Concord facility, Continental has redirected an unnamed tributary of the Soucook River under an on-site access road, after which the tributary connects with and carries flow from two small constructed ponds, under another interior access road, and into a large constructed pond located along the bank of the Soucook River. This pond has an outlet pipe that discharges into the Soucook River, then into the Merrimack River, and thereafter into the Atlantic Ocean.

         After giving Continental the statutorily-required 60-day notice of intent to file suit, [2] 33 U.S.C. § 1365(a)(1), CLF filed a four-count Complaint, alleging various violations of the Act related to unauthorized pollution discharges from the facilities.

         In its objection to the pending motion, CLF submitted the declarations of three CLF members -- Thomas Irwin (who also serves as a vice president and director of CLF), Katharyn Hok and Mark Feigl. Each of the three describe their own interactions with the Soucook and Merrimack Rivers. For example, Feigl, a Concord resident, expressed his concern for the cleanliness of water flowing to the Merrimack from the Soucook because he has swum, canoed, hunted for ducks and trained his retrieving dogs there. Hok, also a Concord resident, stated that she has used the Soucook and Merrimack Rivers for canoeing and swimming. Irwin described hiking, kayaking and swimming with his children in the Merrimack River. He also described his children's school field trips to study the river. All three declarants described potential pollution from the Continental facilities as impacting their future enjoyment of the rivers.

         II. Legal standards

         In considering a motion to dismiss for lack of standing under Rule 12(b)(1), the court “accept[s] as true all well-pleaded factual averments in the plaintiff's complaint and indulge[s] all reasonable inferences therefrom in his favor.” Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir.2012) (internal quotation marks omitted).[3] The court may also consider material outside the pleadings, such as affidavits, to aid in its determination. Gonzalez v. United States, 284 F.3d 281, 287-88 (1st Cir. 2002). “[A] suit will not be dismissed for lack of standing if there are sufficient allegations of fact . . . in the complaint or supporting affidavits.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 65 (1987) (internal quotations omitted).

         III. Legal Analysis

         To have standing to sue, a plaintiff must have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.” Dubois v. U.S. Dep't. of Agric., 102 F.3d 1273, 1280 (1st Cir. 1986) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

         “Standing consists of both a constitutional aspect and a prudential aspect. The constitutional dimension derives from the requirement that federal courts can act only upon a justiciable case or controversy.” Id. at 1280-81 (citing U.S. Const. art. III). “If a party lacks Article III standing to bring a matter before the court, the court lacks subject matter jurisdiction to decide the merits of the underlying case” and must dismiss it. Id. at 1281 (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). To satisfy the constitutional aspect of standing, a “plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. F.E.C., 554 U.S. 724, 734 (2008) (internal quotations omitted). The plaintiff must show that “(1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or 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 Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

         Of particular relevance here, as an exception to the general prudential rule that a party must assert its own legal rights and not those of third parties, an “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. More particularly, the Supreme Court has held “that 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.” Laidlaw, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972); citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992)).

         The “relevant showing for purposes of Article III standing . . . is not injury to the environment but injury to the plaintiff.” Laidlaw, 528 U.S. at 180. Therefore, some individualized specificity is required. For example, in United States v. AVX Corp., 962 F.2d 108, 116-17 (1st Cir. 1992), the Court of Appeals held that the plaintiff's allegations of injury were insufficient where the organization alleged that its “members have been and will continue to be harmed by the releases” at issue in the case, but no organization members were identified, their places of abode were not provided, and “the extent and frequency of any individual use of the affected resources [was] left open to surmise.” Id. ...

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