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Ward v. Stucke

United States District Court, S.D. Ohio, Western Division

July 24, 2019

AARON WARD, et al., Plaintiffs,
v.
MARK J. STUCKE, et al., Defendants.

          ENTRY AND ORDER DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 15)

          THOMAS M. ROSE UNITED STATES DISTRICT JUDGE.

         This case is before the Court on the Motion for Judgment on the Pleadings Seeking Dismissal of Count One of Plaintiffs' First Amended Complaint and Dismissal of Counts II and III for Lack of Jurisdiction (Doc. 15) (the “Motion”) of Defendants Mark J. Stucke and Mary Anne E. Stucke (the “Defendants”), pursuant to Fed.R.Civ.P. 12(c). Specifically, the Defendants move for judgment on the pleadings on (1) Count One of the Amended Complaint (“Violation of the Clean Water Act - Unauthorized discharges of dredged and/or fill materials”) on various grounds, and (2) Counts Two and Three of the Amended Complaint (state law claims for Private Nuisance and Trespass, respectively) on the ground that this Court should decline to exercise supplemental jurisdiction over those two claims. Plaintiffs Aaron Ward and Betsy Ward (the “Plaintiffs”) filed a memorandum in opposition to the Motion (Doc. 17) (the “Opposition”), and the Defendants filed a reply memorandum in support of the Motion (Doc. 18) (the “Reply”). The motion is fully briefed and ripe for review. (Docs. 15, 17, 18.) For the reasons discussed below, the Court DENIES the Motion.

         I. SUMMARIZED ALLEGATIONS FROM THE AMENDED COMPLAINT

         Plaintiffs bring a citizen suit under the Clean Water Act, 33 U.S.C. § 1251 et seq. (the “CWA”), pursuant to 33 U.S.C. § 1365. In Count One of the Amended Complaint, they claim that the Defendants violated 33 U.S.C. § 1311 and 33 U.S.C. § 1344 (i.e., Sections 301 and 404 of the CWA) by making unauthorized discharges of dredged and/or fill material into waters of the United States. (See Am. Cmplt. ¶¶ 74-86.) In addition, Plaintiffs bring two state law claims: private nuisance and trespass. (Id. at ¶¶ 87-108.)

         The following four paragraphs are an abbreviated summary of the allegations in the Amended Complaint (Doc. 13). The Court stresses that the following are merely allegations and recognizes that Defendants disagree with many of Plaintiffs' allegations. The case is still at a very early stage and (to the Court's knowledge) no formal discovery has taken place, the parties have not held a Rule 26(f) conference, and the Court has not scheduled an initial pretrial conference with the parties.

         On or about July 13, 2015, a heavy rain event occurred that caused the Plaintiffs' land to flood. Plaintiffs were forced to hastily evacuate their home, wading through chest-high water with their three children in order to escape. Their home was completely destroyed, along with personal belongings in the home and two cars parked inside the garage. Plaintiffs could not live in their home for the subsequent eight months. However, they were able to make their home habitable again and live there now.

         Plaintiffs' property has continued to flood during storms and heavy rain events. Such flooding-as well as the flooding that occurred on or about July 13, 2015-is alleged to be the result of the Defendants' earlier land-altering activities that changed the flow of surface and subsurface water. Those alleged land-altering activities included that (1) sometime in the 1990s, Defendants and/or their predecessor in ownership installed two grassed waterway channels on Defendants' land that collect and divert water to a private ditch and stream running along Plaintiffs' property that are part of the headwaters of Boyd Creek[1]; and (2) sometime in the fall of 2014, Defendants engaged in a construction project involving excavating some of their land (including some wetland areas) and installing drainage tile throughout their land to drain the natural waterlogged conditions. The drainage tiles alter the natural wet or waterlogged conditions on the land, and they divert infiltrated surface waters and subsurface waters into the private ditch and stream. The land-altering activities involved Defendants' use of mechanized land-clearing equipment or earth moving equipment to discharge dredged material or fill material in and around the land.

         Defendants' land is adjacent to Plaintiffs' property and residence. However, from the time that Plaintiffs moved into their residence in 2004 until July 13, 2015, they had never experienced flooding on their property. Prior to Defendants' excavation of the wetland areas and installation of the drainage tiles, those areas would collect and hold water during significant rain events, helping to moderate flood flows and acting as a biological filter prior to water flowing downstream into Boyd Creek.

         Neither the Defendants nor their predecessors ever obtained authorization from the Army Corps of Engineers, the United States Environmental Protection Agency, or the Ohio Environmental Protection Agency to install the two grassed waterway channels. Also, Defendants' land-altering activities were not authorized by a permit or authorization issued by the Corps or any other agency pursuant to Section 404(a) of the CWA (33 U.S.C. § 1344(a)). In addition to violating the federal CWA, Plaintiffs claim that Defendants altered their land in an unreasonable manner that caused-and will continue to cause-harm to Plaintiffs' health and property, thus constituting a continuing private nuisance and continuing trespass under Ohio law. Dirt, silt, biological material, road runoff, and other pollutants within discharges from Defendants' land have entered and remain on Plaintiffs' property.

         II. STANDARD OF REVIEW

         “After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). Courts apply the same analysis to motions for judgment on the pleadings under Rule 12(c) as they apply to motions to dismiss under Federal Rules of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. Nat'l Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). The Sixth Circuit “has applied the now familiar pleadings requirements in Twombly and Iqbal to Rule 12(c) motions.” Patterson v. Novartis Pharms. Corp., 451 Fed.Appx. 495, 497 (6th Cir. 2011).

         When a party moves for judgment on the pleadings, “[a]ll well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment as a matter of law.” Hindel v. Husted, 875 F.3d 344, 346 (6th Cir. 2017) (internal quotation marks omitted). However, the court “need not accept as true legal conclusions or unwarranted factual inferences.” JPMorgan Case Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007).

         “To survive a Rule 12(c) motion, a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory.” Hindel, 875 F.3d at 346-47 (internal quotation marks omitted), citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (internal quotation marks omitted)). “[T]he plaintiff must provide the grounds for its entitlement to relief, and that ‘requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.'” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (internal citation omitted), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A plaintiff falls short if [the plaintiff] pleads facts ‘merely consistent with a defendant's liability' or if the alleged facts do not ‘permit the court to infer more than the mere possibility of misconduct.'” Id., quoting Iqbal, 556 U.S. at 678-79. See also Twombly, 550 U.S. at 557 (a complaint will not withstand a motion to dismiss if it offers only “naked assertion[s]” without “further factual enhancement”).

         In addressing a motion for judgment on the pleadings, a court considers the pleadings, which consist of the complaint, the answer, and any written instruments attached as exhibits. See Fed. R. Civ. P. 12(c); Fed.R.Civ.P. 7(a) (defining “pleadings” to include both the complaint and the answer); Fed. R. Civ P. 10(c) (stating that “[a] copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes.”). Although allegations in the complaint are the primary focus in assessing a Rule 12(c) motion, a court may also take into account “matters of public record, orders, [and] items appearing in the record of the case.” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008). Additionally, a court may consider exhibits attached to a motion for judgment on the pleadings “so long as they are referred to in the Complaint and are central to the claims contained therein.” Brent v. Wayne Cty. Dept. of Human Servs., 901 F.3d 656, 695 (6th Cir. 2018).

         III. ANALYSIS

         In support of their Motion, Defendants make five arguments for why Plaintiffs' CWA claim fails: “(1) the installation of the drain tiles and surface drains does not amount to a ‘discharge'; (2) the dredged or fill material exemption pursuant to 33 [U.S.C.] § 1344(f) applies; (3) the ‘agricultural stormwater discharge' exemption under 33 [U.S.C.] § 1362(14) applies; (4) the ‘waters of the United States,' as described in 33 [U.S.C.] § 1362(7) are not implicated here; and (5) the CWA does not regulate increased volume or rate of discharge.” (Doc. 15 at PAGEID # 183.) After setting forth some background regarding the CWA, the Court will address each of these arguments.

         Defendants also argue that, if this Court dismisses the federal CWA claim, then it should decline to exercise supplemental jurisdiction over the Plaintiffs' state law claims. Given that the Court does not dismiss the federal CWA claim, it will not entertain at this time Defendants' invitation to decline to exercise supplemental jurisdiction over the Plaintiffs' state law claims.

         A. Background on the Clean Water Act and Requirements to Plead a Viable Citizen Suit Under the Act.

         As the Sixth Circuit recently explained, “Congress passed the CWA in 1972 with the stated purpose of ‘restor[ing] and maintain[ing] the … Nation's waters.'” Ky. Waterways All. v. Ky. Utils. Co., 905 F.3d 925, 928 (6th Cir. 2018), quoting 33 U.S.C. § 1251(a). “To promote that goal, the CWA forbids all unpermitted polluting of navigable waters.” Id., citing 33 U.S.C. § 1311(a), 1342(a).

         Under 33 U.S.C. § 1311(a) (i.e., Section 301 of the CWA), “the discharge of any pollutant by any person” is unlawful, except in compliance with various provisions in the CWA-including provisions that provide for the issuance of permits pursuant to the statute's National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. 1311(a) (“Except as in compliance with this Section and [various other sections] of this Act, the discharge of any pollutant by any person shall be unlawful.”); Ky. Waterways All., 905 F.3d at 928. The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. 1362(12)(A). The Court's analysis below delves more deeply into the meaning of the embedded terms “pollutant, ” “navigable waters, ” and “point source.”

         A viable CWA claim under 33 U.S.C. § 1311 requires that (1) a pollutant (2) was added (3) to navigable waters (4) from a point source (5) by a person. 33 U.S.C. §§ 1311(a), 1362(6), 1362(7), 1362(12), 1362(14), 1362(16). See also Ky. Waterways All., 905 F.3d at 932; Tenn. Clean Water Network v. TVA, 905 F.3d 436, 439 (6th Cir. 2018); U.S. v. Cundiff, 555 F.3d 200, 213 (6th Cir. 2009). The Motion questions whether the Amended Complaint adequately pleads some of these elements, whether certain exemptions or exceptions to liability apply here, and the CWA's applicability.

         B. The Amended Complaint Implicates “Navigable Waters” under the CWA.

         The Court will first address Defendants' fourth argument: that “waters of the United States” (i.e., “navigable waters”) are not implicated here. (Doc. 15 at PAGEID # 190-192.) As shown above, a “discharge of a pollutant” under the CWA requires the “addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12) (emphasis added). As the Sixth Circuit has pointed out, “federal regulation under the CWA only extends to pollutants discharged into navigable waters, 33 U.S.C. § 1362(12), leaving the states to regulate all pollution of non-navigable waters.” Ky. Waterways All., 905 F.3d at 929.

         (1) Scope of “navigable waters”

         “Navigable waters are broadly defined as ‘the waters of the United States.'” Ky. Waterways All., 905 F.3d at 928, quoting 33 U.S.C. § 1362(7). The Supreme Court has recognized that “Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable' under the classical understanding of that term.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985). In other words, water can fall within the CWA that is not actually navigable in fact. Cundiff, 555 F.3d at 206.

         The Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006) addressed what constitutes “navigable waters” in the context of wetlands that are adjacent to non-navigable tributaries of traditional navigable waters. That is the same alleged situation presented here. Unfortunately, Rapanos has no single majority opinion. Instead, the Supreme Court fractured into a four-Justice plurality (opinion written by Justice Scalia), a four-Justice dissent (opinion written by Justice Stevens), and a one-Justice concurrence-in-judgment (opinion written by Justice Kennedy that no one else joined). Rapanos, 547 U.S. 715.

         As summarized by the Sixth Circuit, in Rapanos, “[t]he four-Justice plurality interpreted the Act to cover ‘relatively permanent, standing, or continuously flowing bodies of water,' that are connected to traditional navigable waters, as well as wetlands with a continuous surface connection to such water bodies.” Cundiff, 555 F.3d at 207 (internal citations omitted). Justice Kennedy, however, “interpreted the term [‘navigable waters'] to cover wetlands that possess a significant nexus to waters that are or were navigable in fact or that could reasonably be so made.” Id. (internal citations and quotation marks omitted). Justice Kennedy explained that:

“wetlands possess the requisite nexus and thus come within the statutory phrase ‘navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.' When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.'”

Rapanos, 547 U.S. at 780. Finally, in the view of the four-Justice dissent, “wetlands adjacent to tributaries of traditionally navigable waters” fall within the term “navigable waters” under the CWA. Id. at 788, 795 n.4, 807. The dissent stated that the “significant nexus” referenced by Justice Kennedy (and earlier Supreme Court opinions) “is categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” Id. at 807.

         (2) Controlling opinion from Raponos for purposes of the issue presented

         “[T]here is quite little common ground [in Rapanos] between Justice Kennedy's and the plurality's conceptions of jurisdiction under the Act, and both flatly reject the other's view.” Cundiff, 555 F.3d at 210. In Cundiff, the Sixth Circuit stated that it “[f]ortunately” did not have to decide at that time which opinion from Rapanos controls in future cases, and it declined to do so.[2]Id. at 208. This was because the Sixth Circuit found that, under the facts in Cundiff, “jurisdiction is proper under both Justice Kennedy's and the plurality's tests (and thus also the ...


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