Summary of a Recent
Judicial Development in
Animal Feeding Operations

Mussel-Harvesting Operation Was Outside the Purposes
and Regulatory Reach of the Clean Water Act

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Association to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002), the Ninth Circuit Court of Appeals affirmed the lower court's judgment granting the defendant mussel-harvester's motion for summary judgment in the plaintiff non-profit organization's action alleging that the mussel-harvester violated the Clean Water Act (CWA).

Background

In its facilities, defendant Taylor Resources attached infant mussels to suspension ropes anchored to the sea floor. Id. at 1009. The mussels matured from the time of attachment until harvest, feeding exclusively on the nutrients found naturally in the water. Id. The plaintiff argued that the defendant's facility violated the CWA by discharging pollutants into navigable waters without a permit. Id. at 1010. The district court granted summary judgment in favor of the defendant, holding that Taylor's facilities did not discharge a pollutant and that the mussels and mussel rafts were not point sources. Id. at 1011. The plaintiff appealed. Id.

Arguments

The plaintiff argued that the defendant failed to obtain a permit before discharging mussel feces and shell material from its raft operations in the navigable waters of Puget Sound, a violation of the Clean Water Act. Id. It argued that the chemicals, fluids, shells, and other materials released by the defendant's mussels met the statutory definition of "pollutant" because such materials constitute biological materials, which are classified as pollutants under the Act. Id. Additionally, it argued that the defendant's operations constituted a concentrated aquatic animal production facility, and thus a point source under the Act. Id.

The defendant contented that a private party may not bring a Clean Water Act citizen's suit for unpermitted discharges when the state agency charged with administering the NPDES permit program has determined that such a permit is not required. Id. at 1013. It relied on the Eleventh Circuit's ruling in I., 78 F.3d 1523 (11th Cir.1996). Id.

Analysis and Holdings

The court rejected the defendant's argument that the plaintiff could not bring the citizen suit and its reliance on Hughey. Id. In Hughey, "the 11th Circuit Court of Appeals rejected the citizen plaintiff's argument and held that a citizen suit cannot be maintained when: '(1) compliance with the [zero discharge standard] is factually impossible; (2) no NPDES permit covering such discharge exists; (3) the discharger was in good-faith compliance with local pollution control requirements that substantially mirrored the proposed NPDES discharge standards; and (4) the discharges were minimal.'" Id. (citing Hughey, 78 F.3d at 1530). The court in the case at bar found that Hughey did not apply because the defendant could abate the discharge of alleged pollutants by halting its operations; therefore, the defendant could comply with the zero discharge standard. Id. Ultimately, Hughey was distinguishable and did not detract from the plaintiff's statutory right to commence a citizen suit. Id.

To determine whether the mussel shells and effluent generated by the defendant's operation constituted pollutants, the court looked to the language of the CWA itself. Id. at 1015-16. The Act lists diverse examples of regulated pollutants, but the court stated that the parameters of the term "biological materials" were not readily apparent. Id. at 1016. Using the doctrine of ejusdem generis, the court held that the definition of the term was not as broad as the plaintiff argued. Id. at 1016. Under the doctrine, when a statute contains a list of specific items and a general item, the general item is deemed to be of the same category or class as the more specifically enumerated items. Id. In viewing the other terms listed as pollutants under the Act, the court held that biological materials were generally waste materials of a human or industrial process; therefore, mussel shells, mussel feces, and other natural byproducts of live mussels did not appear to be the type of materials that the drafters of the Act would classify as pollutants. Id. The court further buoyed its holding by looking at the purposes of the CWA, one of which was to protect and assist in the protection and propagation of shellfish. Id. To find that the CWA purported both to protect shellfish and to simultaneously call them pollutants would have been anomalous at best and would contravene clear congressional intent. Id.

Finally, the court found that the defendant's operations did not constitute a point source because the defendant did not feed its mussels. Id. at 1018. Aquatic animal operations that feed less than 5000 pounds of food during the calendar month of maximum feeding are exempt from being deemed point sources. Id.

The case was decided on August 6, 2002.