ELR Citation: ELR 21011
No(s). 94-0053-L (W.D. Va. Apr 11, 1995)

The court holds that a U.S. Environmental Protection Agency (EPA) emergency response team violated the Fourth Amendment to the U.S. Constitution when it entered onto private property without a warrant and removed water and soil samples. The team was investigating the burial of rubber compounds at the site. The court first rejects defendants' argument that these actions are covered by the open fields doctrine. Although that doctrine allows government agents to make warrantless entries onto private property, the U.S. Supreme Court has authorized actions under that doctrine when government agents merely engaged in an observational search. The court holds that if a person buries items on his or her property, that person has a right of privacy in the thing buried. The government may not conduct a warrantless search for those items. To the extent that there is an expectation of privacy in the thing buried, there must also be an expectation of privacy in the soil or water that may reveal the presence of the thing buried. The court holds, however, that defendant EPA employees, who were either part of the response team or had authority over it, are entitled to qualified immunity from suit in their individual capacities, because plaintiff property owner's right to be free of the constitutional violation was not clearly established at the time of the government's action.

The court next dismisses the property owner's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claim against EPA and against the EPA employees in their official capacities, because the property owner failed to comply with CERCLA's citizen suit provisions. But even though §113(h)'s prohibition against federal court jurisdiction precludes plaintiff's statutory claims, it does not extend to its constitutional challenge to EPA's actions in executing the statute's commands. Interpreting "any challenges," to which §113(h) refers, as including plaintiff's constitutional claim would prevent any review of the constitutionality of EPA's administrative actions and would raise serious constitutional questions. The court also rejects defendants' argument that because of a consent order the court previously entered, which allegedly provided plaintiff full relief, plaintiff's claim for a permanent injunction against EPA is nonjusticiable. That order is in the nature of a preliminary injunction. Therefore, the case will proceed on the constitutional claim against EPA and against the employees in their official capacities.

[Another opinion in this litigation is published at 27 ELR 21016.]

Counsel for Plaintiff
Timothy E. Cupp
Cupp & Cupp
510 E. Market St., Harrisonburg VA 22801
(540) 432-9988

Counsel for Defendants
John F. Corcoran, Ass't U.S. Attorney
U.S. Attorney's Office
Thomas B. Mason Bldg.
105 Franklin Rd. SW, Ste. 1, Roanoke VA 24011
(540) 857-2250