Olympia Oyster Co. v. Rayonier Incorporated, 2148.

• Decision Date: 20 May 1964
• Docket Number: No. 2148.,2148.
• Citation: 229 F. Supp. 855
• Parties: OLYMPIA OYSTER CO., Inc., a corporation, Plaintiff, v. RAYONIER INCORPORATED, a corporation, Defendant.
• Court: U.S. District Court — Western District of Washington

229 F. Supp. 855

OLYMPIA OYSTER CO., Inc., a corporation, Plaintiff, v. RAYONIER INCORPORATED, a corporation, Defendant.

No. 2148.

United States District Court W. D. Washington, S. D.

May 20, 1964.

Glenn E. Correa, Shelton, Wash., Paul Gibbs, Seattle, Wash., for plaintiff.

DeForest Perkins and Burroughs B. Anderson, Seattle, Wash., B. Frank Heuston, Shelton, Wash., for defendant.

BOLDT, District Judge.

In this action plaintiff seeks recovery of damage for the loss of oysters alleged to have been caused by water pollution resulting from the operation of defendant's pulp manufacturing plant at Shelton, Washington.¹ After extended discovery and other pretrial procedures the case came on for jury trial. At the conclusion of plaintiff's evidence defendant submitted a motion under F.R.Civ.P. 50 (a) for a directed verdict in favor of defendant. Of fifteen separate grounds advanced in support of the motion, nine attack the nature and quantum of plaintiff's evidence which defendant challenges as insufficient to support any of the several essential elements of plaintiff's claim.

It has been the practice of this court to withdraw a case from jury consideration only in those comparatively few instances in which it has appeared beyond reasonable doubt that no factual issue for jury determination was raised on the evidence presented. This is mentioned to emphasize that the challenge to the sufficiency of the proof in this case has been considered with utmost caution and with full awareness of the jury's prerogative to determine facts on conflicting testimony where there is any substantial evidence sufficient to support a verdict.

This case is one of a group of related cases to which the doctrine of primary administrative jurisdiction was held applicable in Ellison v. Rayonier, Inc., D.C., 156 F.Supp. 214 (1957). Plaintiff chose not to seek appellate review of that ruling although specifically invited to do so. Consequently the Ellison decision now must be regarded as the law of this case. Gheen v. Const. Equip. Co., 49 Wash.2d 140, 298 P.2d 852 (1956); Golden West Brewing Co. v. Milonas & Sons, Inc., 9 Cir., 104 F.2d 880 (1939).

After a considerable interval following the Ellison decision proceedings in this case were resumed by the filing of amended complaints and continued over a period of more than four years during which plaintiff had ample opportunity to explore, and substantiate if the facts permitted, a claim on the basis indicated in Ellison, the concluding paragraph of which states:

"In plaintiffs' complaints there is no reference to the State Water Pollution Control Commission or any action taken by it with respect to the pollution complained of. In the absence of contrary allegations it must be assumed that defendant's plant has been operated pursuant to Commission permit from the time required; that rules, regulations and standards for such operation have been established by the Commission which are not arbitrary, capricious or unreasonable; and that defendant has not discharged effluence into the waters of the Sound in violation of the standards prescribed. If so, the alleged discharge of waste from defendant's plant was not unlawful or unreasonable as determined by the Commission, and on the present pleadings recovery for damage resulting therefrom could not be granted on the basis of either trespass or nuisance."

The permit to Rayonier for operation of the Shelton plant, issued by the State Pollution Control Commission contains fourteen conditions stated in numbered paragraphs. The six conditions claimed by plaintiff to have been violated by defendant read as follows:

"1. Sulphite waste cooking liquor solids are to be either burned or reused * * * Burner residues are to be re-burned or be disposed of in such a manner as to not affect a watercourse of the State.

"2. All leakage and overflows of sulphite waste liquor is to be prevented or eliminated including that within the mill, at the storage tanks, the waste liquor lines and the burner area.

"3. All drains from the blow pit area to the mill sewers are to be disconnected and sealed.

"4. Sulphite waste liquor produced as a result of experimental digester operations is to be collected and burned, while the mill is operating.

"5. * * * spills involving the loss of sulphite waste liquor solids are to be rapidly corrected * * *

* * * * * *

"7. The average losses of broken fibers, and bark and cellulose fines are not to exceed 66 pounds per ton of pulp produced, and efforts are to be continuously directed towards reducing these losses even further. A settling area in the mill estuary is to be maintained in such a manner as to collect 60% or more of the suspended combustible solids contained in the mill effluent. * * *"

Condition No. 14 of the permit, not claimed by plaintiff to have been violated by defendant, provides:

"14. Failure to comply with any of the foregoing or following conditions shall be cause for revocation of the permit in the manner provided by law.

"(a). When the following factors are found to be attributable to the operations of the permitee: at the outer harbor area to the North and East of the outer Harbor line at Shelton, the dissolved oxygen concentrations are found to be less than 5 parts per million; pH range is found to be outside of 6.5 to 8.5, or when more than a negligible amount of bleached pulp fibers are found; or when a substantial depressive effect is found due to sulphite pulping wastes upon the seasonal normal densities and diversities of plankton and related forms of aquatic life. (The seasonal normal densities and diversities of such forms are to be evaluated prior to the resumption of pulping operations).

"(b) When, at the State monitoring area near Skookum Point there is a buildup of fiber sludge deposits attributable to bleached pulp fibers; or when it is found that the permitee has added more than an average of 6 parts per million of indicated sulphite waste liquor concentrations, or has added more than a maximum of 13 parts per million of indicated sulphite waste liquor for any single sample as measured in the waters of Hammersley Inlet at the State monitoring area near Skookum Point. (Survey averages are to be based on a minimum of four sets of six samples each with each set to cross-section the channel during outgoing tides during any single day.)"

This permit must be interpreted and applied as a whole with a view of effectuating the purposes expressed in the state statute whereby the Pollution Control Commission was created. The ultimate objective of the Pollution Control Act, and of the Commission created to administer the Act, may be derived from the section of the Act which states its policy, "to maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wild life, birds, game, fish and other aquatic life, and the industrial development of the state, * * *." R.C.W. 90.48.010.

The purpose of the Rayonier permit is to provide standards and conditions specifically applicable to the operation of defendant's Shelton mill with respect of the discharge of mill wastes into Oakland Bay. The ultimate object of the permit is to prevent discharge into the waters of Puget Sound of waste materials producing quantities of potentially harmful material and conditions in excess of those specified in subparagraph 14(a) and (b) of the permit. It is clear from the very issuance of the permit and from the nature of defendant's mill operations, that discharge of some quantity and character of spent sulphite liquor (SSL)² into Oakland Bay is expected and authorized by the Commission and permit, provided only that the quantities and conditions specified in conditions 14(a) and (b) of the permit are not exceeded. Read thus and in the light of the statute, the permit amounts to a finding by the Pollution Control Commission as to the specific standards applicable to the discharge into Sound waters of effluence from the Shelton mill.

Under primary administrative jurisdiction principles held applicable in Ellison, plaintiff has the burden of proof to show one or more violations of the permit conditions applicable to the operation of the Shelton mill, which violation or violations produced conditions and quantities of waste effluence from the mill exceeding those specified in condition 14 of the permit. In this connection several admitted facts stated in the pretrial order are pertinent:

"* * * plaintiff does not contend that fiber accumulations occurred at or beyond Skookum Point.³"

"Salinity, as such, is not a substantial factor in oyster mortality."

"Material fluctuations in salinity can adversely affect condition factor of oysters."

"SSL discharged into Shelton harbor at the rate of not more than 500 gallons per week is not deleterious to native oysters in Oyster Bay."

"Plaintiff has never observed and recorded observations of the average number of tidal cycles involved in the alleged transfer of water immediately adjacent to defendant's mill site to the waters over plaintiff's oyster beds."

"Plaintiff has never made and recorded observations in regard to its contentions as to the length of time that is required for water immediately adjacent to defendant's mill allegedly to get to the waters over plaintiff's oyster beds."

"No determination has ever been made that there occurred at plaintiff's dikes between January 1, 1954 and February 1, 1957:

(a) Dissolved oxygen concentrations less than 5 ppm;

(b) pH (hydrogen-ion concentrations) outside the range of 6.5 to 8.5;

(c) Accumulation of more than a negligible amount of bleached pulp fibers;

(d) A substantial depression in normal seasonal densities and diversities of plankton and related forms of aquatic life."

"No determination has ever been made that, at plaintiff's dikes between January 1, 1954 and February 1, 1957:

(a) Fiber sludge deposits built up

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