Summary of a Recent
Judicial Development in
Animal Feeding Operations

Environmental Group's Clean Water Act Claim
Barred by Collateral Estoppel

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Oregon Natural Desert Association v. United States Forest Service, Civ. No. 07-634-AS, 2008 WL 140657 (D. Or. Jan. 10, 2008), the United States District Court for the District of Oregon granted the defendant's motion for judgment on the pleadings pursuant to FRCP 12(c).

Background

The plaintiff, an environment group, objected to the findings and recommendation of the U.S. Magistrate Judge, and the defendant, the United States Forest Service, filed a response. Id. at *1. In its pleadings, the plaintiff alleged that the defendant violated § 401(a)(1) of the Clean Water Act (CWA) by issuing a federal grazing permit on the Malheur National Forest without requiring a certification that the authorized grazing would comply with state water quality standards. Id.

Section 401(a)(1) of the CWA requires federal agencies to obtain state certification that activity at issue will comply with state water quality standards prior to issuing a permit that may result in any discharge into navigable waters. Id. at *1-2. The defendant issued a grazing permit authorizing the Colvin Cattle Company to graze cattle within the boundaries of the Lower Middle Fork Allotment on the Malheur National Forest. Id. at *1. The Allotment encompassed part of a river and several of the river's tributaries. Id. Prior to issuing the permit, the defendant failed to obtain state certification. Id.

Arguments

The plaintiff alleged that the livestock grazing authorized by the defendant could cause a discharge of pollutants into navigable waters of the United States, and as such, the plaintiff sought a declaratory judgment that the defendant violated § 401 of the CWA by issuing the permit without first obtaining certification that the grazing would comply with state water quality standards. Id.

In response, the defendant asserted that the issues in the case had been previously adjudicated. Id. at *1-2. The Ninth Circuit Court of Appeals previously held, in Oregon Natural Desert Association v. Dombeck, 172 F.3d 1092 (9th Cir. 1998), that based on the plain language and structure of the CWA, the term "discharge" includes only releases from point sources but not nonpoint source pollution, such as runoff from grazing. Id. at *2. The defendant moved for judgment on the pleadings asserting that the cause of action was barred by the principles of collateral estoppel and res judicata. Id.

The plaintiff responded by citing the United States Supreme Court's interpretation of "discharge" in S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), which the plaintiff asserted implicitly rejected the Ninth Circuit's ruling in Dombeck. Id. Due to the change in legal atmosphere, the plaintiff argued that the case should be heard. Id.

Analysis and Holdings

According to the Ninth Circuit, an action is barred under the doctrine of res judicata if an earlier suit involved the same claim or cause of action, reached a final judgment on the merits, and involved identical parties. Id. at *3. Additionally, the Ninth Circuit relied heavily on whether the two cases share a common nucleus of operative fact. Id. In the case at bar, the court held that the two lawsuits did not involve the same claim. Id. at *3-4. The two cases involved two different permits issued at different times, authorizing different permittees to graze cattle on different parcels of public land; therefore, the cases did not arise from the same common nucleus of operative fact. Id. at *4.

The doctrine of collateral estoppel prevents litigation of all issues of fact or law that were actually litigated and necessarily decided in a prior proceeding, and looks at three factors: "(1) the issue at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated [by the party against whom preclusion is asserted] in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action." Id. (quoting McQuillion v. Schwarzenegger, 369 F.3d 1091, 1096 (9th Cir.2004)). The court held that all three elements were satisfied; therefore, the doctrine of collateral estoppel barred the plaintiff's claim. Id. at *4-5.

Finally, the court held that the U.S. Supreme Court's holding in S.D. Warren did not change the legal atmosphere because it did not involve nonpoint source pollution. Id. at *5.

The case was decided on January 10, 2008.