299 F.3d 1007 (9th Cir. 2002), 00-35667, Association to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources Inc.

Docket Nº:00-35667.
Citation:299 F.3d 1007
Party Name:ASSOCIATION TO PROTECT HAMMERSLEY, ELD, AND TOTTEN INLETS, a Washington non-profit corporation, Plaintiff-Appellant, v. TAYLOR RESOURCES, INC., Defendant-Appellee.
Case Date:August 06, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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299 F.3d 1007 (9th Cir. 2002)

ASSOCIATION TO PROTECT HAMMERSLEY, ELD, AND TOTTEN INLETS, a Washington non-profit corporation, Plaintiff-Appellant,


TAYLOR RESOURCES, INC., Defendant-Appellee.

No. 00-35667.

United States Court of Appeals, Ninth Circuit

August 6, 2002

Argued and Submitted Jan. 10, 2002.

Submission Withdrawn Jan. 18, 2002.

Resubmitted Aug. 6, 2002.

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[Copyrighted Material Omitted]

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Jennifer A. Dold and David S. Mann, Bricklin & Gendler, LLP, Seattle, WA, for the plaintiff-appellant.

Samuel W. Plauche, Buck & Gordon, Seattle, WA, for the defendant-appellee.

Joseph J. Mann, National Environmental Law Center, Boston, MA; F. Robert Studdert, National Fisheries Institute, Inverness, CA; Sylvia Quast, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC; Lori A. Howell, Maine Aquaculture Association, Eliot, ME; and Ronald L. Lavigne, Assistant Attorney General, State of Washington, Department of Ecology, Olympia, WA, for the amici curiae.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-99-05433-FDB(EM).

Before: THOMAS, GRABER and GOULD, Circuit Judges.


GOULD, Circuit Judge.

This case poses the interesting question whether the mussel shells, mussel feces and other biological materials emitted from mussels grown on harvesting rafts, and thereby entering the beautiful waters of Puget Sound, constitute the discharge of pollutants from a point source without a permit in violation of the Clean Water Act ("the Act"), 33 U.S.C. §§ 1251-1376. Preliminarily, we must also assess procedural issues that affect whether we now can decide this question.

The Association to Protect Hammersley, Eld, and Totten Inlets ("APHETI"), a non-profit organization composed of about 3,000 persons who reside along the southern shores of Puget Sound, sued Taylor Resources, Inc. ("Taylor"), a mussel-harvesting company, under the citizen suit provisions of the Act. APHETI sought: (1) a judgment declaring that Taylor discharged pollutants from its mussel-harvesting facilities without a National Pollutant Discharge Elimination System ("NPDES") permit; (2) an order enjoining Taylor from discharging pollutants from its facilities until it obtained such a permit; and (3) an order imposing civil penalties for Taylor's alleged violations of the Act. The district court granted summary judgment in favor of Taylor, holding that Taylor's mussel-harvesting rafts did not violate the Clean Water Act. APHETI appeals. We reach the Clean Water Act claim and review de novo the district court's grant of summary judgment. See Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1428 (9th Cir. 1998). We affirm.


The Clean Water Act, 33 U.S.C. §§ 1251-1376, aims to restore and maintain the "chemical, physical and biological integrity of [the] Nation's waters." 33 U.S.C. § 1251(a). To achieve these desirable goals, the Act "establishes a comprehensive statutory system for controlling water pollution. To that end, it establishes the . . . NPDES permit system for regulating discharges of pollutants into waters of the United States." Nat'l Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 582 (6th Cir. 1988).

A cornerstone of the Clean Water Act is that the "discharge of any pollutant" from a "point source" into navigable waters of the United States is unlawful unless the discharge is made according to the terms of an NPDES permit obtained from either the United States Environmental Protection Agency ("EPA") or from an authorized state agency. 33 U.S.C. §§ 1311(a), 1342; see also Comm, to Save Mokelumne River v. E. Bay Mun. Util. Dist, 13 F.3d 305, 308 (9th Cir. 1993). In Washington State, the Department

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of Ecology ("Ecology") is authorized by the EPA to administer the Clean Water Act's NPDES program. See 33 U.S.C. § 1342(c)(1) (suspending the availability of federal NPDES permits once a state-permitting program has been submitted and approved by the EPA). With these salient legal principles in mind, we consider the dispute between APHETI and Taylor.


Since the early 1990s, Taylor has run two mussel-harvesting facilities in Puget Sound's Totten Inlet, producing more than 20,000 pounds of mussels each year. With these facilities, Taylor harvests gallo mussels, a species of mussels present in Puget Sound for about twenty-five years.1

Taylor attaches what are termed "mussel brood stock" or mussel "seeds"—that is, what we might consider to be "infant" mussels if personified—to suspension ropes that hang from floating rafts. Leading from Taylor's rafts, the suspension ropes are immersed and then anchored to the sea floor, surrounded by mesh netting designed to protect the mussels from predators. Taylor does not add fish food or chemicals to the water; the mussels are nurtured exclusively by the nutrients found naturally in the waters of Puget Sound, with nothing added. It is nature and the vibrant waters of Puget Sound that transform the mussel "seeds" into edible mussels worthy of admiration and human appetite.

But here's the rub, the environmental issue, as APHETI sees it: The tiny mussels have their commensurate physical and chemical processes. And as a byproduct of their metabolism, the mussels harvested at Taylor's facilities produce and release, as particulate matter, feces and pseudofeces, and they generate dissolved materials in the form of ammonium and inorganic phosphate (collectively, "mussel byproduct"). Also, gallo mussel shells have appeared on the beaches of Totten Inlet since the mid-1990s. There is no doubt that mussel byproduct and mussel shells are released from Taylor's facilities and, in this sense, they are adding something, however small, to the Sound's abundant waters. But it must also be recognized that the mussels act as filters and are considered by many to enhance water quality by filtering excess nutrients or other matter in the water that can be destructive to marine environments.2

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Taylor's mussel-harvesting rafts, although not welcomed by all who reside along Puget Sound's southern shores, are not a rogue operation. Since Taylor began its operations, it has applied for and received all required permits for compliance with both the Washington State Environmental Policy Act and the National Environmental Policy Act. To comply with the Clean Water Act, Taylor sought to acquire an NPDES permit. Ecology, however, told Taylor that it would neither accept nor process Taylor's application for an NPDES permit. In Ecology's view, an NPDES permit was not required for Taylor's mussel-harvesting facilities.3

On August 18, 1997, the Director of Ecology responded in a letter to an APHETI member who had inquired whether an NPDES permit was required for mussel harvesting rafts. The Director of Ecology wrote that mussel-harvesting facilities do not violate the Clean Water Act because "shellfish farmers do not need to add fish food (nutrients) to the water to promote shellfish growth." Not persuaded, APHETI, on August 18, 1999, filed a complaint under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, alleging that Taylor had violated the Act by "discharging pollutants," such as mussel feees, mussel shells, and ammonia from its rafts into the Puget Sound without an NPDES permit. See 33 U.S.C. §§ 1311, 1342. APHETI claimed that particles and chemicals emitted from the mussels were "pollutants," that Taylor's harvesting rafts were "point sources," and that Taylor therefore needed an NPDES permit to operate. APHETI sought civil penalties and an order enjoining Taylor from discharging pollutants from its facilities until Taylor obtained an NPDES permit.

The district court granted summary judgment to Taylor, holding that Taylor's facilities did not "discharge a pollutant" and that the mussels and mussel rafts were not "point sources." In this appeal, we must assess whether the district court's conclusions on these novel interpretive issues under the Clean Water Act were correct.


At the threshold, we are faced with Taylor's contention that a private party cannot 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. Taylor's argument must be rejected because it runs squarely against the plain words of

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the statute and would frustrate the purposes of the Clean Water Act's empowerment of citizen suit.


The Clean Water Act explicitly allows private citizens to bring enforcement actions against any person alleged to be in violation of federal pollution control requirements. 33 U.S.C. § 1365(a)(1); see, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl Servs., 528 U.S. 167, 174-75, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). This right of private suit is subject to express procedural prerequisites: At least sixty days before filing a suit, the prospective citizen plaintiff must provide notice of the alleged violation to the EPA, the State where the alleged violation occurs, and the alleged violator. 33 U.S.C. § 1365(a)(1). If either the United States or the State decides to bring an enforcement action within sixty days, the private plaintiff cannot bring an independent action, but may only intervene in the government's suit. 33 U.S.C. § 1365(b). Here, APHETI gave sixty days' notice to the EPA and Ecology but neither agency brought an enforcement action. APHETI decided to proceed alone, and we must consider whether it has the right to do so despite inaction by the government and Taylor's arguments to the contrary.

APHETI has satisfied the...

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