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Rauseo v. Army Corps of Engineers

United States District Court, D. Massachusetts

March 26, 2019

Stephanie Rauseo and Apple Hill Neighbors Group, Plaintiffs,
v.
Army Corps of Engineers, et al., Defendants.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE

         This suit arises out of plaintiffs' claim that 1) Marco Tammaro violated federal environmental laws by filling his property with pollutants and 2) the Environmental Protection Agency and the Army Corps of Engineers failed to investigate and sanction Tammaro's noncompliance with federal laws.

         I. Background

         A. Factual Background

         Stephanie Rauseo (“Rauseo”) lives in the Apple Hill neighborhood of Lynnfield, Massachusetts, adjacent to the property at issue in this action (“the Property”). Rauseo, along with a local citizens' group, Apple Hill Neighbors Group (“Apple Hill plaintiffs”) (collectively “plaintiffs”) allege that Marco Tammaro (“Tammaro”), the owner of the Property, unlawfully discharged fill into federally protected streams or wetlands without a permit.

         Consequently, plaintiffs contacted the Massachusetts Department of Environmental Protection (“DEP”), the Lynnfield Planning Board, the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“the Corps”). Specifically, plaintiffs complained to the EPA that Tammaro had violated the Clean Water Act (“the CWA”) to no avail. In 2016, plaintiffs discovered that Tammaro's developer, Peter Ogren (“Ogren”), provided notice to the Corps that the activities on the Property were exempt from Section 404 of the CWA. In response, plaintiffs urged the New England Engineer of the Corps to enforce the CWA, claiming that neither an individual nor a general Section 404 permit authorized Tammaro's work on the Property.

         In November, 2016, the Corps visited the Property without notifying plaintiffs and allegedly made a final Jurisdictional Determination (“JD”) with respect to the Property. They have since averred that the Property abuts a conservation area and that the two water streams that run across the Property and into the conservation area are waters of the United States that are subject to EPA drinking water regulations under the Safe Drinking Water Act (“the SDWA”).

         In November, 2017, plaintiffs sent a 60-day Notice of Intent to Sue (“NOI”) under the CWA and the SDWA to Tammaro, representatives of the Commonwealth, the DEP, the U.S. Department of Justice and the EPA. Although plaintiffs did not name the Corps in its NOI, they filed an amended complaint with this Court in April, 2018, in which they allege: CWA violations against Tammaro (Count I), CWA violations against EPA and the Corps (“the federal defendants”) (Count II), SDWA violations against Tammaro and the federal defendants (Count III), APA procedural violations against the federal defendants (Count IV), APA substantive violations against the federal defendants (Counts V and VII), improper ex parte communications against all defendants (Count VI) and Sunshine Act violations against the federal defendants (Count VIII). Pending before this Court are motions of the federal defendants and of Tammaro to dismiss for lack of jurisdiction and failure to state a claim.

         II. Analysis

         A. Legal Standard

         1. Failure to State a Claim

          To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face”. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering the merits of a motion to dismiss, the Court may look only to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint and matters of which judicial notice can be taken. Nollet v. Justices of Trial Court of Mass., 83 F.Supp.2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d 1127 (1st Cir. 2000).

         Furthermore, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). If the facts in the complaint are sufficient to state a cause of action, a motion to dismiss the complaint must be denied. See Nollet, 83 F.Supp.2d at 208. Although a court must accept as true all the factual allegations contained in a complaint, that doctrine is not applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Threadbare recitals of legal elements which are supported by mere conclusory statements do not suffice to state a cause of action. Id. Accordingly, a complaint does not state a claim for relief where the well-pled facts fail to warrant an inference of any more than the mere possibility of misconduct. Id. at 1950.

         2. Lack ...


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