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Lobrow v. Village of Port Barrington

October 19, 2010

BOGUMILA LOBROW
v.
VILLAGE OF PORT BARRINGTON



Name of Assigned Judge Ronald A. Guzman Sitting Judge if Other or Magistrate Judge than Assigned Judge

DOCKET ENTRY TEXT

For the reasons set forth in this order, the Court grants defendant's motion to dismiss [doc. no. 11] and dismisses plaintiff's complaint without prejudice. Plaintiff has fourteen days from the date of this order to amend her complaint to state a viable CWA claim. If she fails to do so in that time, the Court will dismiss this suit with prejudice.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

In August 2001, the Village of Port Barrington, which was then called the Village of Fox River Valley Gardens, entered into an annexation agreement with the owners and developers of a parcel of land that is now called the Deer Grove subdivision. (Compl. ¶¶ 7- 8.) Deer Grove is a wetland area subject to section 404 of the Clean Water Act ("CWA"), which bans the discharge of dredge or fill material into navigable waters without a permit from the Secretary of the Army. (Id. ¶¶ 12-13); see 33 U.S.C. § 1344. Plaintiff says defendant allowed Deer Grove to be developed without ensuring that the necessary permits had been obtained, thereby violating the statute. Defendant contends that the CWA claim is not viable and asks the Court to dismiss it pursuant to Federal Rule of Civil Procedure 12(b)(6).

Discussion

On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations" but must contain "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Seventh Circuit's decision in Froebel v. Meyer, 27 F.3d 928 (7th Cir. 2000), dooms plaintiff's claim. In that case, the Wisconsin Department of Natural Resources ("WDNR") removed a dam on the Oconomowoc River, causing large amounts of silt and sediment to flow into the river. Id. at 931. Plaintiff sued the WDNR, "argu[ing] that the removal of [the dam] led to a discharge of fill materials for which WDNR should have sought a permit" under § 404 of the CWA. Id. at 932. In addition, however, plaintiff sued Waukesha County, which "was not involved in the removal of [the dam], but... owned the property on which [it] was located." Id.

The Seventh Circuit dismissed the claim against the County, saying:

STATEMENT

The problem with Froebel's theory is that there is nothing in either the regulations or the case law interpreting Section 404 that indicates that a landowner can fall within the permit requirement for a "discharge" by doing absolutely nothing at all....

....

Section 404, its underlying regulations, and cases applying its terms all have a common element that is lacking in Froebel's claims against Waukesha County -- active conduct that results in the discharge of dredged or fill material. If the county were to pile silt on the riverbank and deliberately allow rainfall to wash it into the stream, then Section 404 might become relevant. Here, however, Froebel's claim would essentially require Waukesha County to seek a permit to do nothing but continue to own the land.

Id. at 938-39; see United States v. Savoy Senior Housing Corp., No. 6:06cv031, 2008 WL 631161, at *4 (W.D. Va. Mar. 6, 2008) ("The court is aware of no legal theory under which Campbell County could be held liable for Frydman's alleged violations of the permitting provisions of the CWA."); Love v. N.Y. State Dep't. of Envtl. Conservation, 529 F. Supp. 832, 843 (S.D.N.Y. 1981) ("There is nothing in Section 404..., which imposes ...


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