United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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.
Failure to State a Claim
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).
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.