United States v. Andrews

677 F.Supp.3d 74

UNITED STATES of America, Plaintiff, v. Jeffrey ANDREWS, et al., Defendants.

CIVIL CASE NO. 3:20-CV-1300 (JCH)

United States District Court, D. Connecticut

Signed June 12, 2023

Anne F. Thidemann, U.S. Attorney's Office, Bridgeport, CT, Benjamin Grillot, Redding Cofer Cates, DOJ-Enrd, Washington, DC, for Plaintiff.

Jeffrey Andrews, Wallingford, CT, Pro Se.

Lynn Cooke Andrews, Pro Se.

Wesley W. Andrews, Pro Se.

Colton C. Andrews, Pro Se.

Ellery E. Andrews, Pro Se.

RULING ON MOTION FOR SUMMARY JUDGMENT

Janet C. Hall, United States District Judge

I. INTRODUCTION

The plaintiff, the United States of America ("the Government"), brings this action against the defendant, Jeffrey Andrews ("Mr. Andrews"), alleging violations of sections 301 and 308 of the Clean Water Act (CWA). See 33 U.S.C. §§ 1311, 1319. In particular, the Government asserts that Mr. Andrews filled in approximately 13.3 acres of the 16.3 acres of jurisdictional wetlands on his property. See Memorandum in Support of Motion for Summary Judgment ("Pl.'s Mem.") at 1 (Doc. No. 224-1). The Government also claims that Mr. Andrews failed to comply with multiple requests for information about the site issued by the U.S. Environmental Protection Agency ("EPA"). Id.

Now before the court is the Government's Motion for Summary Judgment on liability only, see Motion for Summary Judgment at 1-2 ("Mot. for Summ. J.") (Doc. No. 224), which Mr. Andrews opposes, see Defendant's Response to Motion for Summary Judgment ("Def.'s Resp.") (Doc. No. 240). For the reasons discussed below, the Government's Motion is granted.

II. BACKGROUND

Before delving into the factual and procedural background of the instant case, the court must address an issue regarding Mr. Andrews' response to the Government's Motion. The Rules of the United States District Court for the District of Connecticut set forth requirements relating to what a party opposing summary judgment must file. See D. Conn. L. Civ. R. 56(a)2. An opposition must include a document known as a "Local Rule 56(a)2 Statement of Facts in Opposition to Summary Judgment," which "shall include a reproduction of each numbered paragraph in the moving party's Local Rule 56 (a)1 Statement followed by a response to each paragraph admitting or denying the fact and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c)." Id. Moreover, each:

statement of material fact . . . in an opponent's Local Rule 56(a)2 Statement[ ] must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial, or (2) other evidence that would be admissible at trial.

D. Conn. L. Civ. R. 56(a)3. The Local Rules also make clear that failure to comply with this requirement "may result in the Court deeming admitted certain facts that are supported by the evidence in accordance with Local Rule 56(a)1, or in . . . an order granting the motion if the motion and supporting materials show that the movant is entitled to judgment as a matter of law." Id.

In support of its Motion, the Government sent Mr. Andrews the Notice to Self-Represented Litigants Regarding Summary Judgment, as required by the Local Rules. See Notice Regarding Unclaimed/Returned Notice to Self-Represented Litigant at 1 (Doc. No. 232); D. Conn. L. Civ. R. 56(b). The Notice sets forth the requirements detailed above as well as the potential consequences for litigants who fail to comply with the Local Rules. See D. Conn. L. Civ. R. 56(b). However, the United States Postal Service returned the Notice, unopened, to the Government. Id. at 1-2. Accordingly, the court held an in-person status conference on December 14, 2022, for the sole purpose of ensuring that Mr. Andrews received copies of all documents relating to the Government's Motion and to set a deadline for the defendant's opposition. See Notice to Counsel/Pro Se Litigant (ECF No. 236). At the hearing, Mr. Andrews was handed a copy of the Motion—including the Notice to Self-Represented Litigants as well as the Federal and Local Rules pertaining to motions for summary judgment—and had his obligations explained to him directly. See Minute Entry for December 14, 2022 Proceedings (Doc. No. 237).

Despite these warnings in writing and in person, Mr. Andrews' opposition to the Government's Motion did not include a Local Rule 56(a)2 Statement. See Def.'s Resp. Indeed, the three-paragraph response makes no effort to comply with the Local Rules. See id. It fails to refer directly to any of the paragraphs in the Government's Local Rule 56(a)1 Statement of Undisputed Material Facts or to include any specific citation to evidence that would be admissible at trial. See id. Indeed, the opposition does not mention any facts at issue in this case. See id.

While it is true that "a court is ordinarily obligated to afford a special solicitude to pro se litigants", Tracy v. Freshwater, 623 F.3d 90, 101 (2d. Cir. 2010), that does not absolve Mr. Andrews of his obligations under the Federal and Local Rules. See Hanna v. Am. Cruise Lines, Inc., 2019 WL 6770132, at *3 (D. Conn. Dec. 12, 2019); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."). In light of Mr. Andrews' failure to comply with the requirements of the Local Rules, the court deems the Government's factual assertions—to the extent that they are supported by admissible evidence—admitted. See D. Conn. L. Civ. R. 56(a)3; see also Johnson-Barnwell v. FCI Danbury, 2014 WL 839247, at *3 (D. Conn. Mar. 4, 2014).

A. Factual Background

1. The Andrews' Property and Filling Activities

The property at issue in this case is land that spans approximately 72 acres across two parcels, which are located at 216 Northford Road in Wallingford, Connecticut, and 69 Woods Hill Road in North Branford, Connecticut. Plaintiff's Local Rule 56(a)1 Statement of Facts ("Pl.'s 56(a)1 Stmt.") ¶ 2 (Doc. No. 224-2). On December 28, 2011, Mr. Andrews and his wife, Lynn Cooke Andrews, transferred ownership of the parcels to their adult children—Wesley W. Andrews, Colton C. Andrews, and Ellery E. Andrews¹—in exchange for one dollar. Id. ¶ 4.

The Andrews' land is surrounded by largely undeveloped parcels, including state-designated watershed protection land. Id. ¶ 5. The Andrews' property is located within the watershed of an Unnamed Tributary of the Farm River and approximately 690 linear feet of the tributary falls within the boundaries of their land. Id. ¶ 7; Declaration of Raymond Putnam ("Putnam Dec.") ¶ 8 (Doc. No. 8-5). The Farm River, the Unnamed Tributary, and the Andrews' land are all a part of a South Central Water Authority public drinking water supply watershed. Pl.'s 56(a)1 Stmt. ¶ 8. Additionally, the land downstream from the Andrews' property is owned by the Water Authority for the purpose of safeguarding the area's supply of potable water. Id. ¶ 9.

Prior to the Andrews' activity on their land, the property contained a combination of upland—or non-wetland—areas and freshwater wetlands. Id. ¶ 6. Thomas Peragallo and Richard Kirby—experts in delineating disturbed wetlands and in wetland botany, respectively—conducted eight days of field work to determine the presence and scope of wetlands on the property. Id. ¶¶ 14-16. Based on their findings and his own analysis, Peter Stokely—an expert in aerial photography interpretation and geographic system analysis (GIS)—assessed that there were approximately 16.3 acres of wetlands on the Andrews' land prior to the family's filling activities. Id. ¶¶ 11-12. Those 16.3 acres of wetlands are adjacent to and directly abuts the Unnamed Tributary, which flows to the Farm River. Id. ¶¶ 27, 89.

Andrew Earles ("Dr. Earles"), a professional hydrologist and engineer, analyzed the property and surrounding tributaries, wetland, and watershed. Id. ¶¶ 21-22, 25. He identified the Farm River as a traditional navigable water, and the Unnamed Tributary to the Farm River as a perennial stream that would have year-round flow under normal hydrologic conditions. Id. ¶ 23-25, 91, 94. As part of his field work, Dr. Earles observed aquatic organisms—like caddisfly, mayfly, and stonefly larvae; crayfish; green frogs; and minnows—that suggest permanence of flow. Id. ¶ 26. Dr. Earles determined that the 13.3 acres of disturbed wetlands on the Andrews' property are "part of a wetland complex that provides a habitat for a range of aquatic organisms, exports detritus that supports the food chain, improves water quality by filtering runoff, and recharges shallow groundwater providing baseflows to the streams, among other functions." Exhibit D, Affidavit and Report of Andrew Earles ("Dr. Earles' Report") at 20 (Doc. No. 224-6 at 27); Pl.'s 56(a)1 Stmt. ¶¶ 28, 100. These wetlands, Dr. Earles added:

along with similarly situated wetlands in the watershed, affect the physical, biological, and chemical characteristics of the Northeast Tributary, the Southern Tributary, the Unnamed Tributary, and the Farm River due to increased runoff (rate, volume, and frequency), reduced baseflow, degradation of water quality, and loss of habitat. These effects are significant and more than speculative.

Dr. Earles' Report at 20; Pl.'s 56(a)1 Stmt. ¶¶ 29, 100. Ultimately, Dr. Earles concluded that the 13.3 acres of "wetlands filled by the Andrews . . . [were] jurisdictional under 2015 Clean Water Rule and the NWPR, which similarly cover wetlands adjacent to otherwise jurisdictional waters." Dr. Earles' Report at 20; see also Pl.'s 56(a)1 Stmt. ¶ 87 ("Prior to disturbance, the Site contained 16.3 acres of freshwater wetlands that meet the CWA regulatory definition of wetlands, that includes the 13.3-acre violation area."); Pl.'s 56(a)1 Stmt. ¶ 96 ("Based on continuous surface flow paths during runoff events connecting the wetlands identified by Mr. Stokely with the...