Summary of a Recent
Judicial Development in
Environmental Law

Appellate Court Returns Case to District Court for Cutting Short Plaintiff's
Opportunity to Conduct Discovery

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Altman v. Town of Amherst, 47 Fed. App'x 62 (2nd Cir. 2002), the United States Court of Appeals for the Second Circuit vacated and remanded the decision of the United States Magistrate Judge, who had granted the township's motion for summary judgment. Residents brought action against the township for allegedly violating the Clean Water Act (CWA) by applying pesticides in wetland areas without first obtaining permits. The instant court found that issues of material fact remained; therefore, the magistrate inappropriately entered summary judgment.

Background

On April 8, 1998, the plaintiffs, citizens of the township, filed suit against the township alleging that it had violated and continued to violate the CWA by applying pesticides in area wetlands without first obtaining a National Pollution Discharge Elimination System (NPDES) permit or state Pollution Discharge Elimination System (SPDES) permit. Id. at *1. Under 33 U.S.C. §§ 1311(a) and 1342 of the CWA, it is illegal for persons to add pollutants to waters of the United States from a point source. Id. The plaintiffs alleged that the pesticides the township used constituted pollutants, the spraying equipment constituted a point source, and the wetlands constituted waters of the United States. Id. Between 1998 and 2000, the plaintiffs and the township's counsel entered into settlement negotiations and reached a tentative agreement; however, the township decided not to participate in the settlement. Id. On August 8, 2000, the township motioned for summary judgment arguing that it was not required to obtain a permit for the operations at issue. Id. The township cited an affidavit from the United States Environmental Protection Agency (EPA) and a letter from the Army Corps of Engineers in support of its assertion. Id. The affidavit stated that the EPA "[h]ad no specific policy under the NPDES Program on the spraying of pesticides to control mosquitoes where pesticide is discharged directly into the waters of the United States." Id. On March 13, 2001, the district court granted the township's motion for summary judgment, holding that the pesticides were not pollutants when used for their proper purpose, the program was "more appropriately regulated under FIFRA," and the plaintiffs' CWA claims were without merit. Id. at *3. The plaintiffs appealed.

Arguments

On appeal, the plaintiffs argued that "FIFRA, d[id] not 'preempt' or supersede or foreclose permit requirements under § 402 of the Clean Water Act"; "federal and state agency acquiescence to the [township's] discharges without a permit under Section 402 of the CWA [was] unlawful"; and "[the township's] deliberate, good faith application of pesticides for their intended use [did] not render them something other than a 'pollutant' within the meaning of the Clean Water Act." Id. at *4.

Analysis and Holdings

After reviewing the ruling on appeal, the instant court determined the trial court acted on an incomplete record, cutting short the plaintiffs' opportunity for full discovery and failing to recognize a "number of threshold questions of law." Id. Therefore, the court vacated and remanded the case to give the plaintiffs an opportunity to conduct discovery regarding the following claims: "that [the township] ha[d] sprayed pesticides from truck-loaded spray equipment as part of its mosquito control program; that it spray[ed] these pesticides into 'waters of the United States' within the Town; that these sprays or discharges of pesticide [were] from a so-called point source into the wetlands; and that these pesticides, if and when applied to such wetlands, [were] pollutants subject to federal permit requirements." Id.

The case was decided on September 26, 2002.