U.S. District Court, Western District of New York Case Summaries:

Daily Record (Rochester, NY), Jun 24, 2008

U.S. District Court, Western District of New York

Clean Water Act

Final Agency Action

Acquest Wehrle LLC v. U.S.

06-CV-654C

Judge Curtin

Background: This action was brought pursuant to the Administrative Procedure Act and the plaintiff seeks a determination that its real property, located at 2190 and 2220 Wehrle Drive in Amherst, is exempt from the wetlands regulation provisions of the Clean Water Act. In 1983, the EPA approved a $5.8 million grant to the Town of Amherst to assist in the construction of a sewer project. One of the conditions of the funding was that the town could not allow any development within a wetland area to hook up to the sewer project without EPA approval. The plaintiff later wished to develop an office park on this land. An ongoing negotiation and dispute between the parties culminated with rescission of the provisional permit granted to the plaintiff. The United States moved to dismiss the complaint for lack of subject matter jurisdiction and for the failure to state a claim on which relief can be granted because neither of the complained of determinations constituted a final agency action subject to APA review.

Ruling: The defendants' motion to dismiss is granted. The agencies' action falls short of the finality requirements of the statute. The assertion of regulatory jurisdiction over wetlands is not a final agency action under the APA.

Paul J. Cambria Jr. of Lipsitz Green Scime Cambria LLP for the plaintiff, and Bruce Kenneth Trauben, U.S. Department of Justice, for the defendant

Sanctions

Filing Requirements

Burgess v. Fairport Central School District

07-CV-6558

Judge Siragusa

Background: The plaintiffs bring federal claims under Section 504 of the Rehabilitation Act as well as a New York State law claim for interference with business. The defendants moved for summary judgment and sanctions. Coleman, the plaintiff, was the mother of a child who attended the Fairport Central School District. Coleman demanded an impartial hearing concerning the provision of special education services to her child, pursuant to the Individuals with Disabilities in Education Act and Section 504 of the Rehabilitation Act. In connection with that demand, Coleman retained the services of an attorney, plaintiff Susan N. Burgess. The plaintiffs allege the defendants eavesdropped at a settlement conference by leaving a cell phone in the room to listen while the plaintiffs were alone.

Ruling: The court, after finding the "[d]efendants have provided evidentiary proof in admissible form indicating that they did not eavesdrop on plaintiffs as alleged in the complaint, and in response, plaintiffs have come forward with nothing but rank speculation," grants the defendants' motion for summary judgment. Because the defendants failed to serve the motions for sanctions on the plaintiffs at least 21 days before filing, those motions are denied.

Susan N. Burgess, pro se, and Frank W. Miller for the defendant.