Olympic Forest Coalition v. Coast Seafoods Co., 030918 FED9, 16-35957

Docket Nº:16-35957
Opinion Judge:W. FLETCHER, CIRCUIT JUDGE
Party Name:Olympic Forest Coalition, a Washington corporation, Plaintiff-Appellee, v. Coast Seafoods Company, a Washington corporation, Defendant-Appellant.
Attorney:Bruce L. Campbell (argued), Miller Nash Graham & Dunn LLP, Portland, Oregon, for Defendant-Appellant. Paul A. Kampmeier (argued), Kampmeier & Knutsen, PLLC, Seattle, Washington; Brian A. Knutsen, Kampmeier & Knutsen, PLLC, Portland, Oregon; for Plaintiff-Appellee. Samuel W. Plauché and Amanda M. ...
Judge Panel:Before: Ferdinand F. Fernandez, William A. Fletcher, and Michael J. Melloy, Circuit Judges.
Case Date:March 09, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Olympic Forest Coalition, a Washington corporation, Plaintiff-Appellee,

v.

Coast Seafoods Company, a Washington corporation, Defendant-Appellant.

No. 16-35957

United States Court of Appeals, Ninth Circuit

March 9, 2018

Argued and Submitted November 8, 2017 Portland, Oregon

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding D.C. No. 3:16-cv-05068-RBL

Bruce L. Campbell (argued), Miller Nash Graham & Dunn LLP, Portland, Oregon, for Defendant-Appellant.

Paul A. Kampmeier (argued), Kampmeier & Knutsen, PLLC, Seattle, Washington; Brian A. Knutsen, Kampmeier & Knutsen, PLLC, Portland, Oregon; for Plaintiff-Appellee.

Samuel W. Plauché and Amanda M. Carr, Plauché & Carr LLP, Seattle, Washington, for Amici Curiae Pacific Coast Shellfish Growers Association and East Coast Shellfish Growers Association.

Robert W. Ferguson, Attorney General; Ronald L. Lavigne, Senior Counsel; Olympia, Washington, for Amicus Curiae State of Washington, Department of Ecology.

Before: Ferdinand F. Fernandez, William A. Fletcher, and Michael J. Melloy, [*] Circuit Judges.

SUMMARY

[**]

Environmental Law

The panel affirmed the district court's denial of a motion to dismiss a Clean Water Act suit alleging that discharges from the defendant's oyster hatchery required a National Pollution Discharge Elimination System permit.

The panel held that pipes, ditches, and channels that discharge pollutants from non-concentrated aquatic animal production facilities are "point sources" requiring an NPDES permit.

OPINION

W. FLETCHER, CIRCUIT JUDGE

Olympic Forest Coalition ("Olympic Forest") brought suit against Coast Seafoods Company ("Coast") under the Clean Water Act ("CWA" or "Act"), contending that discharges from Coast's oyster hatchery through "pipes, ditches, and channels" require a National Pollution Discharge Elimination System ("NPDES") permit. Coast moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the ground that its hatchery is an aquatic animal production facility that can be regulated as a "point source" under the CWA only if it is a "concentrated aquatic animal production facility" ("CAAPF").

The district court denied Coast's motion to dismiss, holding that pipes, ditches, and channels that discharge pollutants from its hatchery are point sources within the meaning of 33 U.S.C. § 1362(14). The district court certified for interlocutory appeal under 28 U.S.C. § 1292(b) the question whether an NPDES permit is required for discharges through pipes, ditches, and channels from an aquatic animal production facility that is not a CAAPF.

We affirm.

I. Background

We recount the facts as alleged in the complaint and as supplemented by a letter from the Washington State Department of Ecology of which we have taken judicial notice. The complaint alleges that Coast owns and operates a cold-water oyster hatchery adjacent to Quilcene Bay, near the north end of Hood Canal in Washington State. Coast's hatchery is the world's largest shellfish hatchery, capable of producing over 45 billion eyed oyster larvae per year. As part of its operation, the hatchery discharges pollutants into Quilcene Bay through pipes, ditches, and channels, including the following: "suspended solids, nitrogen, phosphorous, ammonia, nitrites, nitrates, Chlorophyll a, Phaeoshytin a, heat, pH, salinity, dissolved oxygen, and chlorine."

The complaint further alleges that Coast hired a consulting firm, Rensel Associates Aquatic Sciences ("Rensel Associates"), to assess the effluent discharged from the hatchery. After sampling the effluent, Rensel Associates produced a report on February 7, 2013, that documented the presence of certain pollutants in the effluent. However, Rensel Associates did not sample all sources of effluent from the hatchery and did not test for the presence of chlorine. The complaint alleges that water quality samples taken from Quilcene Bay on June 25, June 29, July 2, July 9, July 11, July 16, and July 17, 2014, indicated discharges of chlorine from Coast's hatchery.

On January 27, 2016, Olympic Forest filed a citizen suit under § 505 of the CWA, alleging that discharges from the hatchery through pipes, ditches, and channels violate § 301(a) of the Act because the hatchery has not obtained a NPDES permit. 33 U.S.C. §§ 1365, 1311(a). Pipes, ditches, and channels are "point sources" under 33 U.S.C. § 1362(14).

On July 19, 2016, six months after Olympic Forest filed its complaint, Coast wrote a letter to the Washington Department of Ecology ("Ecology"), referencing the 2013 Rensel Report and asking "whether the Department of Ecology's (Ecology) view, communicated in 2013, that Coast's Quilcene shellfish hatchery does not require a National Pollution Discharge Elimination System (NPDES) permit, is still applicable." On July 29, 2016, ten days later, Ecology responded that an NPDES permit was not required. Ecology gave two reasons for its conclusion. First, the hatchery did not meet the criteria for automatic designation as a CAAPF under 40 C.F.R. § 122.24, Appendix C. Second, "[an] Ecology surface water monitoring specialist had reviewed the report and concurred with Dr. Rensel's findings that discharge from facility was unlikely to alter the Quilcene Bay water quality." We have taken judicial notice of Ecology's July 29 letter.

Coast moved under Rule 12(b)(6) to dismiss the complaint, contending that despite the hatchery's use of pipes, ditches, and channels to discharge pollutants into Quilcene Bay, a NPDES permit was not required. Coast argued to the district court, and argues here, that its hatchery can be required to obtain an NPDES permit only if it is a CAAPF. A CAAPF is a subcategory of the statutory category "concentrated animal feeding operation" ("CAFO"), which is a point source under § 1362(14). Coast argues that an aquatic animal production facility - including any pipes, ditches, and channels associated with the facility - is a point source only if it is a CAAPF. Thus, it argues, pipes, ditches, and channels that discharge pollutants from an aquatic animal production facility cannot themselves be point sources.

The district court denied Coast's motion to dismiss. We affirm.

II. Standard of Review

We review de novo a district court's denial of a motion to dismiss under Rule 12(b)(6). Carlin v. DairyAmerica, Inc., 705 F.3d 856, 866 (9th Cir. 2013). We accept all...

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