Idaho Rural Council v. Bosma

• Decision Date: 04 June 2001
• Docket Number: No. CV-99-0581-S-BLW.,CV-99-0581-S-BLW.
• Citation: 143 F.Supp.2d 1169
• Parties: IDAHO RURAL COUNCIL, an Idaho corporation, Plaintiff, v. Jacob BOSMA, Owner and Operator of Grand View Dairy; Henry Bosma, Owner and Operator of Grand View Dairy; Grand View Dairy, a/k/a Bliss Acres; and, Bosma Enterprises, Inc., Defendants.
• Court: U.S. District Court — District of Idaho

143 F.Supp.2d 1169

IDAHO RURAL COUNCIL, an Idaho corporation, Plaintiff, v. Jacob BOSMA, Owner and Operator of Grand View Dairy; Henry Bosma, Owner and Operator of Grand View Dairy; Grand View Dairy, a/k/a Bliss Acres; and, Bosma Enterprises, Inc., Defendants.

No. CV-99-0581-S-BLW.

United States District Court, D. Idaho.

June 4, 2001.

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Laird J. Lucas, Land & Water Fund of the Rockies, Boise, Marc D. Fink, Charles M. Tebbutt, Western Environmental Law Center, Eugene, OR, for plaintiff.

C. Thomas Arkoosh, Gooding, Lori A. Terry, Preston Gates & Ellis, Seattle, WA, Jerry R. Neal, John Ray Nelson, Preston Gates Ellis, Spokane, WA, for defendants.

MEMORANDUM DECISION AND ORDER

WINMILL, Chief Judge.

I. INTRODUCTION

Pending before the Court is Defendants' Motion for Summary Judgment (Docket No. 74), Defendants' Motion to Strike Declarations and Exhibits (Docket No. 104), Defendants' Motion in Limine and to Strike the Testimony of Alan Gay (Docket No. 106), Defendants' Motion in Limine and to Strike the Testimony of John Monks (Docket No. 108), and Plaintiff's Motion for a Continuance of the June 11 2001 Trial Date (Docket No. 113). The Court has heard oral argument and considered the parties' briefing, and now issues the following decision.

II. FACTUAL BACKGROUND

In 1994, the Defendants ("Bosmas") established a substantial dairy operation ("Grand View Dairy" or "the dairy") in an area near Bliss, Idaho, which is directly upgradient from farms operated by the Butler and Walker families. The Butlers and the Walkers are members of Plaintiff Idaho Rural Council ("IRC"), an Idaho non-profit corporation with approximately 500 members throughout Idaho.¹

On October 7, 1999, IRC sent to the Bosmas a 60-day notice of an alleged violation of provisions of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387. Subsequently, the Bosmas applied for and obtained a National Pollution Discharge Elimination System ("NPDES") permit. On December 9, 1999, IRC filed its Complaint, alleging that the Bosmas have discharged, and continue to discharge, pollutants into waters of the United States. IRC alleges that these discharges reach the waters of the United States through eight different channels:

First, wastewater flows from the dairy into the Old Faulkner Pond that is located on the west boundary of the Bosmas' property. The Pond then discharges into basalt rock and fractured bedrock, which is hydrologically connected to Butler Spring. Thereafter, Butler Spring discharges into Clover Creek, at least seasonally, by means of a head gate.

Second, polluted irrigation water from Grand View's north pivot is sprayed directly into the Northside Canal. Wastewater also enters the Northside Canal through leaks in the mainline serving the north pivot. Additionally, runoff from the southwest edge of the north pivot drains into the Northside Canal. The Northside Canal then discharges into Clover Creek about one mile down stream.

Third, wastewater holding ponds located on Grand View are not lined. The wastewater seeps out of the unlined ponds into groundwater.

Fourth, wastewater from Grand View's holding pond east of the main lagoon also seeps into the groundwater.

Fifth, wastewater runs off from a solid separator into a pond that the Bosmas call their irrigation pond. Wastewater from the pond then seeps into the groundwater.

Sixth, for months, and possibly years, dead animals, dairy waste, construction waste, pharmaceutical materials, and debris have been dumped into and around the Walker Spring. Walker Spring then runs northwest down a ravine into a pond, and then across a pasture into the Northside Canal. The Northside Canal then discharges into Clover Creek.

Seventh, wastewater containing syringes, examination gloves, mastitis tubes, and manure, flows from Grand View's hospital barn to Walker Spring. Walker Spring then runs down a ravine into a pond, across a pasture and into the Northside Canal, which discharges into Clover Creek.

Eighth, large piles of manure are collected on the dairy and located between the corrals and a liquid containment dike. Wastewater from those manure piles runs off into the Northside Canal, which discharges into Clover Creek.

The Bosmas dispute these allegations. That dispute frames the issues raised by the motions pending before the Court.

III. DISCUSSION

A. Defendants' Motion for Summary Judgment

The Court will first address Defendants' Motion for Summary Judgment. The party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact, so that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addition, the evidence must be viewed in the light most favorable to the non-moving party, see id. at 255, 106 S.Ct. 2505, and the Court must not make credibility determinations. See id.

Once the moving party demonstrates the absence of a genuine issue of material fact, the burden shifts to the non-moving party to produce evidence sufficient to support a jury verdict in its favor. See id. at 256-57, 106 S.Ct. 2505. In meeting this burden, the non-moving party must go beyond the pleadings and show "by its affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This evidence must be admissible because "only admissible evidence may be considered in ruling on a motion for summary judgment." Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir.1988).

In this case, the Bosmas contend that summary judgment should be granted on three grounds: (1) the Court lacks subject matter jurisdiction; (2) IRC is unable to establish a viable claim under the Clean Water Act; and (3) the Bosmas are entitled to summary judgment on their affirmative defenses, specifically the "diligent prosecution defense," and a defense based on the equitable doctrine of "unclean hands." The Court will address each in turn.

1. Subject Matter Jurisdiction

Article III of the U.S. Constitution imposes several limitations on the jurisdiction of the federal court to have jurisdiction over a matter before it. Of relevance here are the requirements that, first, the matter be an actual "case or controversy," and second, the case "arise under" a law of the United States. Thus, IRC must first demonstrate the existence of a case or controversy by showing that it had a personal interest in the outcome of the lawsuit at its commencement (i.e., that it has standing), and that its personal stake in the outcome continues (i.e., that its claims are not moot). See Smith v. University of Washington Law School, 233 F.3d 1188, 1193 (9th Cir.2000); Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994). Second, although this case would appear to clearly "arise under" the laws of the United States, since it is based upon the requirements of the Clean Water Act, IRC must show that the CWA regulates the conduct in question.

a. Standing

Article III of the Constitution confines the jurisdiction of the federal courts to actual cases and controversies. If "the resolution of the issue presented cannot really affect the plaintiff's rights, there is, generally speaking, no case or controversy for the courts to adjudicate; no real relief can be awarded." Smith v. University of Washington Law School, 233 F.3d at 1193. Thus, the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process. In a CWA citizen enforcement action, an organization, such as IRC, has standing to bring suit when the following three requirements are met: (1) the organization's members would otherwise have standing to sue in their own right; (2) the interests at stake are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also Natural Resources Defense Council v. Southwest Marine, Inc. 236 F.3d 985, 994 (9th Cir.2000). The Bosmas argue that IRC fails to meet the first requirement — that IRC's individual members do not have standing to sue in their individual capacity — and therefore lacks standing.²

In order to satisfy Article III's standing requirements in a CWA citizen enforcement action, an individual plaintiff must show that (1) he or she has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also Natural Resources Defense Council v. Southwest Marine, Inc. 236 F.3d 985, 994 (9th Cir.2000). The party invoking federal jurisdiction bears the burden of establishing these three elements. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Because these elements are not mere pleading requirements, but, rather, an indispensable part of the plaintiff's case, they must be supported in the same way as any other matter on which a plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Id. General factual allegations of injury resulting from defendant's conduct may suffice at the pleading stage. However, in response to a summary judgment motion, a plaintiff can no longer rest on mere allegations, but must set forth by affidavit or...