UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Conservation Law Foundation, Inc.

v. Civil No. 16-cv-339-JL Opinion No.

Continental Paving, Inc., d/b/a Concord Sand & Gravel

MEMORANDUM OPINION

“Organizational standing” is a frequently contested issue

in citizen enforcement actions. In the case at bar,

Conservation Law Foundation (CLF) alleges that Continental

Paving, Inc., (operating under the trade name Concord Sand &

Gravel), violated the Federal Water Pollution Control Act by

discharging polluted water without proper authorization or

permits. CLF seeks declaratory and injunctive relief, and

imposition of civil penalties. Continental moves to dismiss the

complaint, arguing that CLF lacks organizational standing to

sue. Specifically, Continental argues that CLF has failed to

identify any of its members who were harmed by Continental’s

alleged activities. After briefing and oral argument, the court

finds that CLF members have alleged sufficient injury to confer

standing on CLF. While Continental correctly observes that

CLF’s complaint contains no allegations regarding individual

members, declarations from CLF members appended to its objection to Continental’s motion to dismiss satisfy the standing

requirement. The court therefore denies Continental’s motion to

dismiss.

I. Background1

CLF is a regional, non-profit environmental protection

organization headquartered in Boston. It has over 3000 members,

including more than 450 in New Hampshire. Continental operates

two New Hampshire facilities at issue in this litigation: a

sand and gravel facility in Concord and a sand, gravel and

asphalt paving mixtures facility in Pembroke. CLF alleges that

Continental engages in various industrial activities at the

facilities, including mining, storing, moving and processing

sand, gravel, rock and other earth materials. CLF further

alleges that such sand, gravel, rock and other earth materials

are exposed to the elements and are sprayed with water on

occasion. The Complaint also asserts that Continental

stockpiles, processes, stores and transfers asphalt materials

outdoors; operates, maintains, and stores heavy machinery and

equipment outdoors; and drives vehicles on and off the

facilities via driveways and immediate access roads.

1 The court has taken the facts from the complaint, except where noted otherwise.

2 When the materials and equipment at the facilities are

exposed to precipitation and snowmelt, the water becomes

polluted with dust, suspended and dissolved solids,

hydrocarbons, heavy metals, sediment, road salt, trash and other

pollutants from the facilities' operation. CLF alleges that

this polluted runoff is then conveyed through various means,

e.g., site grading, surface water channels, subsurface

connections and pipes, to the Soucook River, its tributaries and

wetlands, and eventually to the Merrimack River. CLF also

alleges that at the Concord facility, Continental has redirected

an unnamed tributary of the Soucook River under an on-site

access road, after which the tributary connects with and carries

flow from two small constructed ponds, under another interior

access road, and into a large constructed pond located along the

bank of the Soucook River. This pond has an outlet pipe that

discharges into the Soucook River, then into the Merrimack

River, and thereafter into the Atlantic Ocean.

After giving Continental the statutorily-required 60-day

notice of intent to file suit,2

(a)(1), CLF filed

2 The Act authorizes “a person or persons having an interest which is or may be adversely affected,” to file suit to enforce the Act's permitting requirements.

(a), (g). The statute and its implementing regulations impose a notice requirement on citizen suits requiring a would-be plaintiff to give notice of the alleged violation to the EPA, the State in 3 a four-count Complaint, alleging various violations of the Act

related to unauthorized pollution discharges from the facilities.

In its objection to the pending motion, CLF submitted the

declarations of three CLF members -- Thomas Irwin (who also

serves as a vice president and director of CLF), Katharyn Hok

and Mark Feigl. Each of the three describe their own

interactions with the Soucook and Merrimack Rivers. For

example, Feigl, a Concord resident, expressed his concern for

the cleanliness of water flowing to the Merrimack from the

Soucook because he has swum, canoed, hunted for ducks and

trained his retrieving dogs there. Hok, also a Concord

resident, stated that she has used the Soucook and Merrimack

Rivers for canoeing and swimming. Irwin described hiking,

kayaking and swimming with his children in the Merrimack River.

He also described his children’s school field trips to study the

river. All three declarants described potential pollution from

the Continental facilities as impacting their future enjoyment

of the rivers.

which the alleged violation occurred, and the alleged violator, at least sixty days before filing a citizen suit.

at § 1365(b)(1)(A).

4 II. Legal standards

In considering a motion to dismiss for lack of standing

under Rule 12(b)(1), the court “accept[s] as true all well-

pleaded factual averments in the plaintiff’s complaint and

indulge[s] all reasonable inferences therefrom in his favor.”

Katz v. Pershing, LLC,

(1st Cir. 2012) (internal

quotation marks omitted).3 The court may also consider material

outside the pleadings, such as affidavits, to aid in its

determination. Gonzalez v. United States,

, 287–88

(1st Cir. 2002). “[A] suit will not be dismissed for lack of

standing if there are sufficient allegations of fact . . . in

the complaint or supporting affidavits.” Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,

(1987) (internal quotations omitted).

3 Defendants refer to Rule 12(b)(1) in the “Conclusion” sections of their original and reply memoranda of law. They refer to Rule 12(b)(6), however in the body of their arguments. Ultimately, the discrepancy is of no moment, as the court’s analytical path is the same under Rule 12(b)(6). See McInnis- Misenor v. Maine Med. Ctr.,

(1st Cir. 2003) ("Normally on a Rule 12(b)(6) motion to dismiss, only the complaint is reviewed. However, where standing is at issue, it is within the trial court’s power to allow or to require the plaintiff to provide by affidavit or amended complaint “further particularized allegations of fact deemed supportive of plaintiff’s standing.’”) (quoting Warth v. Seldin,

(1975))).

5 III. Legal Analysis

To have standing to sue, a plaintiff must have “such a

personal stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presentation of

issues upon which the court so largely depends for illumination

of difficult . . . questions.” Dubois v. U.S. Dep’t. of Agric.,

(1st Cir. 1986) (quoting Baker v. Carr,

(1962)).

“Standing consists of both a constitutional aspect and a

prudential aspect. The constitutional dimension derives from

the requirement that federal courts can act only upon a

justiciable case or controversy.”

at 1280–81 (citing U.S.

Const. art. III). “If a party lacks Article III standing to

bring a matter before the court, the court lacks subject matter

jurisdiction to decide the merits of the underlying case” and

must dismiss it.

at 1281 (citing FW/PBS, Inc. v. City of

Dallas,

(1990)). To satisfy the

constitutional aspect of standing, a “plaintiff must demonstrate

standing for each claim he seeks to press and for each form of

relief that is sought.” Davis v. F.E.C.,

(2008) (internal quotations omitted). The plaintiff must show

that “(1) it has suffered an injury in fact that is (a) concrete

and particularized and (b) actual or imminent, not conjectural

6 or hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed

by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc.,

, 180–81 (2000).

Of particular relevance here, as an exception to the

general prudential rule that a party must assert its own legal

rights and not those of third parties, an “association has

standing to bring suit on behalf of its members when its members

would otherwise have standing to sue in their own right, the

interests at stake are germane to the organization’s purpose,

and neither the claim asserted nor the relief requested requires

the participation of individual members in the lawsuit.”

. More particularly, the Supreme Court has held “that

environmental plaintiffs adequately allege injury in fact when

they aver that they use the affected area and are ‘persons for

whom the aesthetic and recreational values of the area will be

lessened’ by the challenged activity.” Laidlaw,

(quoting Sierra Club v. Morton,

(1972); citing

Lujan v. Defenders of Wildlife,

, 562–63 (1992)).

The “relevant showing for purposes of Article III standing

. . . is not injury to the environment but injury to the

plaintiff.” Laidlaw,

. Therefore, some

7 individualized specificity is required. For example, in United

States v. AVX Corp.,

, 116–17 (1st Cir. 1992), the

Court of Appeals held that the plaintiff’s allegations of injury

were insufficient where the organization alleged that its

“members have been and will continue to be harmed by the

releases” at issue in the case, but no organization members were

identified, their places of abode were not provided, and “the

extent and frequency of any individual use of the affected

resources [was] left open to surmise.”

Continental alleges

a similar shortcoming here, arguing that CLF lacks standing

because its complaint fails to identify a particular member or

members who were harmed by its activities at the facilities.

If the court had examined only the Complaint in isolation,

it might have found Continental’s argument meritorious, as the

complaint alleges only that “CLF members use and enjoy New

England’s waterways,” and that Continental’s alleged discharges

into the Soucook and Merrimack Rivers “adversely affect CLF

members’ use and enjoyment of those water resources.”4 Such

general language would appear to lead to the same result as in

AVX Corp., but, as noted above, CLF has submitted the

declarations of three of its members -– Irwin, Hok and Feigl --

4 Complaint (doc. no. 1) at ¶ 17.

8 who all described their personal use of the waterways at issue

and how the alleged pollution impacted them.5

Continental argues that the court should not consider the

affidavits, as considering any materials that are not part of

the Complaint is procedurally improper under Fed. R. Civ. P.

12(b)(6). But as the court has already noted, there are two

problems with this argument. First, it is not clear that

Continental is even seeking to dismiss under Rule 12(b)(6).

Compare Memo of Law, doc. no. 8-1 at 8 (referring to Fed. R.

Civ. P. 12(b)(1)), Reply Memo, doc. no. 12 at 10 (same) with

Reply Memo, doc. no. 12 at 7 (citing Rule 12(b)(6)). Second,

and even more importantly, as the court noted above, the Court

of Appeals has indicated that such affidavits are permissible

even in the 12(b)(6) context when standing is at issue. See

supra, n.3. Continental does not contest the substantive

sufficiency of the affidavits.6

5 At oral argument, counsel for CLF contended that the Complaint was sufficient as written. The court declines to reach that issue. 6 In a footnote within its reply memo, Continental says only that “[t]he sufficiency of the affidavits themselves is subject to question” and that Continental will address the issue if the affidavits “are ever properly presented.” Reply (doc. no. 12) at 7, n.2. It is not for Continental to decide when evidence is properly before the court. Indeed, the court does so with this Order. See supra, n.3; infra, p. 10. Continental’s deliberate decision to refrain from challenging the sufficiency of the 9 Continental additionally argues that the court should

disregard the declarations and instead require CLF to file an

amended complaint with the members’ allegations contained

therein.7 During oral argument, Continental suggested that

“Justice Blackmun’s concurring opinion” in Sierra

requires a plaintiff in CLF’s position to move to amend its

complaint. There are at least two related shortcomings to

Continental’s argument. The first is that Justice Blackmun

dissented in Sierra Club.

. While the court

assumes this was simply an oversight, it is significant because,

secondly, the majority in Sierra Club found that the plaintiff

declarations amounts to a failure to make such a challenge in the motion at bar. The court also rejects Continental’s attempt to resurrect the issue at oral argument. See Exeter Hosp. v. New Eng. Homes, Inc.

(“This court generally will not consider theories raised for the first time at oral argument, out of fairness to adverse parties and the court.”). Continental’s statement in its reply that it chose not to challenge the sufficiency of the affidavits is also at odds with its assertion at oral argument that it had no legitimate opportunity to respond to them. As noted, the record clearly reflects that that decision was a choice.

7 Continental suggests that CLF would be unable to amend its complaint in conformity with Fed. R. Civ. P. 15 because stormwater pollution prevention plans it provided to CLF during the notice period conclusively demonstrate that Continental is in compliance with the Act. Such plans, however, go to the merits of the case and not to the standing issue before the court.

10 lacked standing because it failed to allege “in the pleadings or

affidavits” that its members used the land in question.

(emphasis added). The clear import of this language

is that affidavits would have been acceptable to establish

standing.

Continental also argues that Summers v. Earth Island Inst.,

(2009) requires the court to reject plaintiff’s

affidavits in favor of requiring an amended complaint.

Summers does not support Continental’s position. The Court in

Summers rejected plaintiff’s affidavits because they either

related to claims that had already been resolved, or because

they were substantively deficient.

. Once again,

as in Sierra Club, there is no indication of any per se rule

against the court accepting affidavits from an environmental

organization seeking to establish standing. Indeed, the

substantive analyses of the affidavits in these cases suggests

the opposite. Accordingly, the court finds that the affidavits

from the CLF members are sufficient at this stage of the

litigation to establish that they have suffered an actual

injury, thereby conferring standing on CLF. See Laidlaw,

.8

8 Continental also briefly argues that CLF has failed to allege any causal connection connecting its actions to the claimed 11 IV. Conclusion

Defendant’s motion to dismiss9 is DENIED.10

SO ORDERED.

____________________________ Joseph N. Laplante United States District

Dated: December 6, 2016

cc: Zachary Knox Griefen, Esq. Mark C. Rouvalis, Esq. Rebecca M. Walkley, Esq.

injuries. This argument, however, depends on the court disregarding the CLF members’ declarations. Having already ruled that the declarations are permissibly before the court, Continental’s argument fails. 9 Doc. no. 8. 10Given the denial of defendant’s motion the court also denies Continental’s request for attorney's fees.

12