A federal judge dismissed an environmental lawsuit against Dragon Springs, a campus in Orange County, New York, that houses Shen Yun Performing Arts.
The plaintiffs failed to give adequate notice to Dragon Springs before suing because they didn’t specify what and where was allegedly causing elevated coliform presence in a local river and what exact rule was allegedly being violated, according to the Sept. 11 opinion by Judge Kenneth Karas of the U.S. District Court of the Southern District of New York.
Given that the plaintiffs have tried to sue based on the same allegations before, failed, and then failed to remedy the deficiencies in the next suit, he dismissed it with prejudice, meaning it can’t be refiled.
Dragon Springs representatives said there was no violation, and the suit was frivolous to begin with.
“From the beginning, it was clear to every third-party engineer and lawyer who looked at the allegations that they were nonsensical,” says Dr. George Xu, president of Dragon Springs, in a statement. “But it was also clear the plaintiffs were not filing to win. They were trying to tie up our resources and generate bad press. That was the main reason for these lawsuits.”
The 400-acre Dragon Springs property includes training and rehearsal spaces for Shen Yun, a classical Chinese dance and music company, as well as two schools affiliated with Shen Yun and a Buddhist-style temple affiliated with Falun Gong, a Chinese spiritual practice based on principles of truthfulness, compassion, tolerance.
Falun Gong adherents have for decades faced brutal persecution by the Chinese Communist Party (CCP), including extralegal detention, torture, and killing, as well as harassment overseas.
The plaintiffs are a New Paltz nonprofit NYenvironcom and its founder Alex Scilla, an American who spent some 15 years in China and maintains business interests there, as well as local man Robert Majcher, and Grace Woodard, a local activist who co-runs Scilla’s nonprofit.
Scilla and Woodard have been trying for years to block Dragon Springs’ development and other projects associated with the local Chinese diaspora. This is the third failed environmental suit against Dragon Springs either of them has initiated.
The previous suit was dismissed without prejudice last year for failure to send Dragon Springs a proper Notice of Intent to Sue (NOI).
Violations of federal regulations are normally litigated by the government. The Clean Water Act, however, allows citizens to sue if the government is not addressing a specific source of water pollution. In that case, the citizen needs to give a 60-day NOI to whomever is causing the pollution as well as the responsible authorities.
NYenvironcom sent Dragon Springs another NOI last year and filed a new suit.
But the new NOI was again faulty, Judge Karas concluded, warranting a dismissal with prejudice.
“The Court is not aware of any case holding that Plaintiffs can keep throwing NOIs at the wall until one sticks,” his opinion said.
In order to dismiss a suit before trial, the court is required to assume all allegations as true and make all factual inferences in favor of the plaintiffs. Despite that, there was more than enough reason to toss the suit, according to the judge.
“Defendant contends that the NOI is riddled with deficiencies, and while the Court finds them all compelling, it need only address some of them” to grant the dismissal, his opinion says.
A NOI must be specific enough so that the addressee can pinpoint where the alleged pollution comes from.
The NYenvironcom NOI said that the Dragon Springs property lies on a slope with “gullies and pathways” that constitute “point sources” of fecal coliform in a local river. Another part of the NOI says that the alleged “point sources” were “600 to 1,000 feet southwest” of a road bridge next to the property.
“These statements—which simply identify areas of land marked by certain features—do not come close to identifying” specific sources of pollution as defined by law, the judge said.
The permit violation of polluting the surface waters as alleged in the NOI was also “illogical” according to the judge. None of the Dragon Springs’ permits prohibit discharge to surface water, In fact, one permit expressly authorizes stormwater to discharge to surface water under certain conditions.
Later in court, the plaintiffs added another claim—that Dragon Springs violated rules for releasing coliform to surface water without a permit—but that was too late as the NOI made no mention of such a theory, the judge said.
The judge also found “compelling” the argument that simply alleging “continuing construction” at Dragon Springs isn’t enough to “adequately identify the activity alleged to constitute a … violation,” but he didn’t consider it in his decision, he said.
He noted that the plaintiffs originally tried to file the suit in Manhattan “even though all Parties reside in, and all events giving rise to the case occurred in, the Northern Counties” and that they failed to inform the court that the case was a de facto refiling of their previous suit, which they were “arguably” supposed to do based on local court rules.
“The Court makes no findings about the reasons why Plaintiffs pursued this path, but Counsel would do well to remember those rules in future cases,” the judge said.
Dragon Springs representatives said there was no plausible way for coliform pollution to come from its facilities, which are served by a dedicated wastewater treatment plant. The plant includes a UV unit that eliminates any coliform presence in the wastewater, as documented by periodical testing, they previously told The Epoch Times.
They also questioned how the plaintiffs produced their water samples for testing, providing security camera footage as evidence that at least some of the samples weren’t taken when or where claimed.
Scilla, Woodard, and their legal counsel didn’t respond to a request for comment.
CCP Harassment Campaign
Dragon Springs and Shen Yun in particular have faced sustained harassment from the CCP. Leaked Party documents indicated that the regime considers Dragon Springs a “headquarters” of Falun Gong’s efforts to counter the persecution, calling for strategic and systematic attacks against it.
The campus’ staff have had family members in China harassed or imprisoned and there have also been incidents involving trespassing and vandalism on the property. Shen Yun has had its touring buses repeatedly sabotaged and government officials and theater staff have reported getting pressured by Chinese consulates to cancel Shen Yun shows.
Most of the incidents can be traced back to the CCP, while some match CCP’s tactics of transnational repression but are difficult to attribute directly.
The Falun Dafa Information Center (FDIC), a nonprofit monitoring the persecution of Falun Gong, tallied more than 130 such incidents in a report earlier this year.
In March, the campus as well as venues hosting Shen Yun performances in the United States and Taiwan were targeted by a series of emailed bomb threats and a threat of a mass shooting. The CCP was the most likely culprit, The Epoch Times previously learned from several cybersecurity experts.
Earlier this year, documents from several CCP whistleblowers indicated the regime has been escalating its campaign against Falun Gong overseas to include a new plan to manipulate social media influencers and Western media to propagate false allegations, with a goal to sow public discord and to trigger the U.S. government to act against Falun Gong.
“From internal documents and recent incidents, it’s clear that the CCP is intensifying its campaign of transnational repression and defamation against Falun Gong as part of a broader scheme to ‘eliminate’ Falun Gong worldwide,” said Levi Browde, FDIC executive director, in a statement.
“At this critical time, it’s reassuring to see a U.S. judge uphold the rule of law and see through the dubious and illogical complaints being made against a Falun Gong related entity like Dragon Springs.”
There’s evidence of the CCP, through proxies, using American legal system against its enemies.
In July, two men pleaded guilty in federal court for acting as illegal agents of the Chinese regime and trying to bribe an IRS official in New York in an attempt to have Shen Yun investigated. The IRS official was in fact an undercover FBI agent.
In addition to the bribery scheme, the men had traveled to New York, “surveilled Falun Gong residents in Orange County,” and collected information for a “potential environmental lawsuit meant to inhibit the growth of Falun Gong community in Orange County,” prosecutors said in a court filing.
In another case in New York, unrelated to Falun Gong, a Chinese man named Quanzhong An pleaded guilty in May to acting as an unregistered Chinese agent in trying to make another Chinese national return to China. In recorded meetings, he told the man’s son that the regime was financing a frivolous civil suit against a company of his and his father to “place additional pressure” on him.
The Chinese officials behind the suit “don’t really care if they can establish a case here, it’s beyond that point, their intent is to make your life difficult,” An said, according to the indictment.
From The Epoch Times