United States District Court, C.D. Illinois, Rock Island Division
QUAD CITIES WATERKEEPER, an Illinois not for profit corporation, and PRAIRIE RIVERS NETWORK, an Illinois not for profit corporation, Plaintiffs,
DAVID G. BALLEGEER, an individual, BALLEGEER TRUCKING, INC., an Illinois corporation, BALLEGEER EXCAVATING, INC., an Illinois corporation, and FRANCIS BALLEGEER, an individual, Defendants
For Quad Cities Waterkeeper Inc., an Illinois not for profit corporation, Plaintiff: Kevin Michael Cassidy, LEAD ATTORNEY, Earthrise Law Center, Lewis & Clark Law School, Norwell, MA; Albert F Ettinger, LAW OFFICE OF ALBERT ETTINGER, Chicago, IL.
For David G. Ballegeer, an individual, Ballegeer Trucking Inc, an Illinois corporation, Ballegeer Excavating Inc., an Illinois corporation, Francis Ballegeer, an individual, Defendants: Jack L Brooks, LEAD ATTORNEY, Jeffrey C McDaniel, Peter Joseph Wenker, Brooks Law Firm, P.C., Rock Island, IL.
SARA DARROW, UNITED STATES DISTRICT JUDGE.
Plaintiffs Quad Cities Waterkeeper (" Waterkeeper" ) and Prairie Rivers Network (" Prairie Rivers" ) bring this action for declaratory and injunctive relief and civil penalties under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(1). Plaintiffs claim that Defendants David G. Ballegeer, Ballegeer Trucking, Inc., Ballegeer Excavating, Inc., and Francis Ballegeer have violated and continue to violate the Clean Water Act, 33 U.S.C. § § 1251--1387, by discharging pollutants without a permit issued under the Act. Now before the Court are the parties' cross motions for summary judgment and three related motions. For the following reasons, the Court DENIES Defendants' Motion for Summary Judgment, ECF No. 36, GRANTS IN PART and DENIES IN PART Plaintiffs' Motion for Partial Summary Judgment, ECF No. 61, GRANTS Plaintiffs' Motion for Leave to File Excess Pages, ECF No. 81, GRANTS IN PART and DENIES IN PART Plaintiffs' Motion to Strike, ECF No. 84, and DENIES the parties' Joint Motion to Request Status Hearing, ECF No. 87.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Unless otherwise noted, the following facts are drawn from the parties' statements of material facts submitted in compliance with Rule 7.1(D) of the Rules of the United States District Court for the Central District of Illinois.
I. The Parties and the Areas of the Green River Where CWA Violations Are Alleged to Have Occurred
Waterkeeper, a not-for-profit organization, was incorporated on November 13, 2009, in the State of Illinois. Certificate of Good Standing, ECF No. 83--1. Its purpose is to promote conservation of the Rock River and other bodies of water in the vicinity of the Quad Cities. Waterkeeper Bylaws at Art. 1, § 2, ECF No. 73--5. To that end, Waterkeeper monitors and investigates sources of pollution and undertakes litigation to protect and restore these bodies of water. Id. Waterkeeper's bylaws specify that it " shall have no members," id. at Art. III, § 1, but that its governing body " shall be the Board of Directors . . . and all rights which would otherwise rest in the members shall rest in the Board." Id.
Prairie Rivers is a not-for-profit corporation organized and existing under the laws of Illinois. Kim Knowles Decl. P 3, ECF No. 66. Founded in 1967, the corporation has more than 800 members who live in Illinois, including in Henry County. Id. Prairie Rivers' primary mission " is the protection of the rivers and streams of Illinois and the promotion of the lasting health and beauty of watershed communities." Id. at 5. Prairie Rivers' membership is composed of individuals who provide support either by voluntary efforts or financial contributions, although the Board of Directors may add a member who has demonstrated an active commitment to waterway conservation. Prairie Rivers Network Bylaws at Art. III, Sec. 1, ECF No. 73--8.
The members of Waterkeeper and Prairie Rivers boat, fish, recreate in, and otherwise use and enjoy the lower Green River and the Rock River on a regular basis and have specific plans to return to that area in the future. Pls.' Undisputed Material Facts ¶ 6, ECF No. 61.
Prior to filing this lawsuit, Plaintiffs sent statutorily-required notice of intent letters to Defendants, Defendants' registered agents, the Administrator of the U.S. Environmental Protection Agency (" EPA" ), the regional Administrator of the EPA, and the Executive Director of the Illinois Environmental Protection Agency (" IEPA" ) regarding Defendants' alleged violations of the CWA. Parties' Joint Stipulation to Undisputed Material Facts (" JUMF" ) at ¶ 30, ECF No. 37. Plaintiffs identify six sites along a section of the Green River where they claim Defendants discharged pollutants and engaged in illegal dredging activity. See Plaintiffs' Notice of Intent Letters, ECF No. 52.
David Ballegeer is the owner and operator of a trucking and excavation company, Ballegeer Excavating, Inc., which does business as Ballegeer Trucking, Inc. JUMF ¶ ¶ 1, 2. Francis Ballegeer owns several hundred acres of property that are directly adjacent to the Green River in Henry County, Illinois, id. at 3, including property north of the Green River that corresponds to Sites 1--5. The Green River is a water of the United States under the CWA. Id. at ¶ 11.
II. Alleged Illegal Activity on the Ballegeer Property
At some point after 1985, Francis Ballegeer asked David Ballegeer to bring concrete down to Francis's farm. JUMF at ¶ 3. Francis Ballegeer was aware of and authorized all of the activities that have occurred at Sites 1-5 since 1985 through the present day. Id. at ¶ 4. David and Francis Ballegeer have used an excavator to push concrete generated by Ballegeer Excavating, Inc. onto the banks of the Green River, id. at ¶ ¶ 7, 9, into the river channel, Pls.' SMF ¶ 3, ECF No. 61, and onto the river bed and bottom. Pls.' Mot. Summ. J. at 20. This concrete was previously used for driveways, garage floors, housing, and road pavement. JUMF at at ¶ ¶ 6, 10. Most of the concrete added by the Defendants or their agents on the banks of the Green River below the ordinary high water mark remains there today, with the exception of several large slabs of concrete near Site 5 that were removed by David Ballegeer around March 2012. Id. at ¶ 16. Ballegeer Excavating, Inc., its agents, and David Ballegeer did not wait for no- or low-flow conditions on the Green River to discharge concrete and other materials on its banks below the ordinary high water mark. Id. at ¶ 23. Rather, Defendants and their agents would add concrete and other materials on the Green River's banks below the ordinary high water mark so long as the river was not flooding. Id. at ¶ 24. In the course of their activities at Sites 1--5, Defendants discharged dirt onto the Green River's banks down to the waterline that would be subject to erosion by expected high flows. Id. at ¶ 27.
Defendants did not seek nor did they receive written authorization from the Army Corps of Engineers (" Corps" ) prior to discharging concrete on the banks of the Green River below the ordinary high water mark. Id. at ¶ 17. Defendants did not and do not presently have an individual CWA Section 404 permit for any materials they discharged on the banks of the Green River below the ordinary high water mark. Id. at ¶ ¶ 19, 20. At no time did Defendants ever give pre-construction notification to the Corps regarding any of the activities that are the subject of this litigation. Id. at ¶ 20. During his March 7, 2012 on-site inspection, Corps employee Gene Walsh did not view Sites 1--5 from a boat or otherwise from the river, but only viewed the sites from the land. Id. at ¶ 32. Defendants have cut protruding rebar from concrete pieces on the banks of the Green River below the ordinary high water mark at the request of the Corps after the filing of Plaintiffs' Complaint. Id. at ¶ 29. As set forth in Section III. B. i. infra, David Ballegeer removed sand bars from the Green River at Site 3 with an excavator that had a bucket attached to the end of its boom. Defs.' UMF ¶ ¶ 18, 19. The parties dispute the nature and extent of the sand and other dredging materials which spilled from the bucket.
I. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendants seek judgment on all of Plaintiffs' claims, arguing that Plaintiffs lack standing to bring suit. On the merits, Defendants contend that they are entitled to judgment as to the Third Claim of Plaintiffs' Amended Complaint because their activities did not constitute the discharge of dredging-related pollutants without an authorizing permit. Plaintiffs seek a declaration that they have standing and a determination as to the First and Second Claims of their Amended Complaint that Defendants violated the Clean Water Act by discharging construction waste on the banks of and into the Green River without a permit.
A. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where there is " no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Disputes regarding material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Courts construe all facts in a light most favorable to the nonmovant, id. at 261, and draw all justifiable inferences in favor of the nonmovant in deciding whether genuine issues of material fact exist. Id. at 255. However, neither the " mere existence of some alleged factual dispute between the parties," id. at 247, nor the existence of " some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), will defeat an otherwise properly supported motion for summary judgment.
The movant " bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The party seeking summary judgment on a claim on which the nonmovant bears the burden of proof at trial may discharge its burden by showing an absence of evidence to support the nonmovant's case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Therefore summary judgment is inappropriate if, after drawing all reasonable inferences in favor of the nonmovant, genuine doubts remain and a reasonable fact finder could find for the nonmovant. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989)). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his case, summary judgment is not only appropriate, but mandated. Matsushita Elec. Indus. Co., 475 U.S. 585--87. Further, a failure to prove one essential element " necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.
II. PLAINTIFFS' STANDING
A. LEGAL STANDARD
The question of standing is " the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). " In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III." Id. Standing is to be determined as of the commencement of suit. Paradise Creations, Inc. v. UV Sales, Inc., 315 F.3d 1304, 1309 (Fed. Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The burden of establishing the required elements of standing lies with the plaintiff. Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996) citing Lujan, 504 U.S. at 561. To prove standing at the summary judgment stage, a plaintiff may not rest on mere allegations to support standing, but must set forth by affidavit or other evidence specific facts that, if true, establish an injury in fact. Lujan, 504 U.S. at 560--61.
The " irreducible constitutional minimum of standing" contains three requirements. Lujan, 504 U.S. at 560. First, there must be alleged, and ultimately proven, an " injury in fact," which is a harm suffered by the plaintiff that is " concrete" and " actual or imminent, not 'conjectural' or 'hypothetical.'" Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (quoting Los Angeles v. Lyons, 461 U.S. 95, 101--02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Injury to recreational or aesthetic interests constitutes a cognizable injury for purposes of standing. See Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Second, there must be causation, which is a fairly traceable connection between a plaintiff's injury and the complained of conduct of the defendant. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41--42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Third, there must be redressability, which is a likelihood that the requested relief will redress the alleged injury. See id. at 45--46.
In this case, Plaintiffs have elected to proceed under a theory of representational, or associational, standing. Pls.' Resp. to Defs.' Mot. Summ. J. n3 23, ECF No. 69. As stated by the Seventh Circuit in Retired Chicago Police Ass'n,
The doctrine of associational standing is an exception to the general prohibition of representational standing. In order to obtain associational standing, an organization must meet the three-prong test set forth in Hunt v. Washington State Apple Advertising Comm'n:
An association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members of the lawsuit.
432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), superseded by statute on other grounds; see also Sanner v. Board of Trade, 62 F.3d 918, 922 (7th Cir. 1995).
76 F.3d at 862--63. Under the first prong of Hunt, the individuals whom Plaintiffs hold out as their members must " possess all of the indicia of membership in an organization." Hunt, 432 U.S. at 344. The Hunt Court found the following factors relevant in finding an agency had associational standing even though it was not a traditional voluntary membership organization:
[The members] alone elect the members of the Commission; they alone finance its activities, including the costs of this lawsuit, through assessments levied upon them. In a very real sense, therefore, the Commission represents the State's growers and dealers and provides the means by which they express their collective views and protect their collective interests.
Id. at 344--45.
Defendants' challenge to Plaintiffs' standing focuses on the first requirement set forth by the Supreme Court in Hunt. Regarding the second Hunt requirement, the interests that Plaintiffs seek to protect are germane to their asserted environmental purpose. Regarding the third Hunt requirement, neither the claims asserted by Plaintiffs nor the relief they request require participation of their individual members, since the injunctive relief sought by Plaintiffs, if granted, will inure to the benefit of their members who are actually injured. See Warth, 422 U.S. at 515. Accordingly, whether Plaintiffs have standing to pursue their CWA claim against Defendants hinges on: (1) whether the individuals Plaintiffs identify to be their ...