U.S. Pub. Int. Res. Group v. Atlantic Salmon of Me, CIV.00-151-B-C.

• Decision Date: 28 May 2003
• Docket Number: No. CIV-00-149-B-C.,No. CIV.00-151-B-C.,CIV.00-151-B-C.,CIV-00-149-B-C.
• Citation: 257 F.Supp.2d 407
• Parties: UNITED STATES PUBLIC INTEREST RESEARCH GROUP, et al., Plaintiffs v. ATLANTIC SALMON OF MAINE, LLC, Defendant United States Public Interest Research Group, et al., Plaintiffs v. Stolt Sea Farm, Inc., Defendant
• Court: U.S. District Court — District of Maine

257 F.Supp.2d 407

UNITED STATES PUBLIC INTEREST RESEARCH GROUP, et al., Plaintiffs v. ATLANTIC SALMON OF MAINE, LLC, Defendant United States Public Interest Research Group, et al., Plaintiffs v. Stolt Sea Farm, Inc., Defendant

No. CIV.00-151-B-C.

No. CIV-00-149-B-C.

United States District Court, D. Maine.

May 28, 2003.

Bruce M. Merrill, Portland, ME, David A. Nicholas, National Environmental Law

Center, Boston, MA, Charles C. Caldart, National Environmental Law Center, Seattle, WA, Joseph J. Mann, National Environmental Law Center, Joshua R. Kratka, National Environmental Law Center, Boston, MA, for United States Public Interest Research Group, Stephen E Crawford, Charles Fitzgerald, Plaintiff.

Jeffrey A. Thaler, Bernstein, Shur, Sawyer, & Nelson, Peter W. Culley, Pierce, Atwood, Elizabeth R. Butler, Pierce, Atwood, Gregory M. Cunningham, Bernstein, Shur, Sawyer, & Nelson, Portland, ME, for Atlantic Salmon of Maine, LLC Defendant.

Charles A. Harvey, Jr., Harvey & Frank, Portland, ME, for Biotechnology Industry Organization.

Michael A. Nelson, Jensen, Baird, Gardner & Henry, Portland, ME, for Heritage Salmon Inc.

Peter W. Culley, Pierce, Atwood, Elizabeth R. Butler, Pierce, Atwood, Portland, ME, for Stolt Sea Farm, Inc.

FINDINGS OF FACT, MEMORANDUM OF DECISION AND ORDER ON REMEDIAL AND INJUNCTIVE RELIEF, ORDER AND INJUNCTION

GENE CARTER, Senior District Judge.

I. PROCEDURAL BACKGROUND

These cases are before the Court for determination, after an evidentiary hearing, of issues relating to the remedies and injunctive relief to be granted to Plaintiffs in consequence of this Court's previous determination that Defendants' operation of their salmon farm aquaculture pen sites is in violation of the requirements of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq., as alleged in Plaintiffs' Complaint. A bench trial on the subject issues was commenced on October 8, 2002, and concluded on October 17, 2002. The matter was taken under advisement on January 14, 2003.¹ The Court herewith renders its findings of fact and decision on the remedial and injunctive relief aspects of the cases.

II. FINDINGS OF FACT

The facts as established in proceedings herein prior to the hearing on remedial and injunctive relief are cogently stated in the Magistrate Judge's Recommended Decision on Plaintiffs' Motion for Summary Judgment and Defendant's Motion for Summary Judgment, entered on February 19, 2002, and affirmed by this Court's Order Affirming the Recommended Decision of the Magistrate Judge, entered on June 17, 2002.² The facts as there stated in pertinent part are as follows:

A. The Parties

Plaintiffs consist of the United States Public Interest Research Group, a national organization dedicated to environmental protection, and two individuals Stephen Crawford and Charles FitzGerald, members of USPIRG. (PSMF 1111144-145.) Collectively, the plaintiffs will be referred to as "USPIRG." USPIRG initiated this citizen suit claiming that ASM's salmon farms release pollutants into the water in violation of the Clean Water Act. (Am. Compl. at 1.)

Defendant, Atlantic Salmon of Maine, LLC ("ASM"), owns and operates five salmon farms known as Stone Island, Libby Island, Starboard Island, Cross Island North, and Cross Island. (Pls.' Statement of Material Facts (PSMF) ¶ 1.) These farms are located off the Maine coast in Machias Bay. (Def.'s Statement of Material Facts (DSMF) ¶ 1 PSMF ¶ 12.) ASM's other two salmon farms are called Flint Island and Dyer Island and are located in Pleasant Bay. (PSMF ¶ 1.) ASM also owns one hundred percent of the stock of both Treat's Island Fisheries and Island Aquaculture. (PSMF ¶¶ 2-3; Def.'s Resp. Pls.' Statement of Material Facts (DRSMF) ¶¶ 2-3.) Treat's Island Fisheries, located in Cobscook Bay, consists of four farms and Island Aquaculture in Blue Hill Bay consists of three farms. (Id.) Although an ASM production manager manages these sites (PSMF II 6), it is disputed that ASM is responsible for regulatory compliance. (PSMF 115; DRSMF 115.)

Defendant, Stolt Sea Farm, Inc. ("Stolt"), owns and operates three salmon farms known as Johnson Bay, Rogers Island North, and Rogers Island South. (Pls.' Statement of Material Facts (PSMF) ¶ 1.) The farms are located in Cobscook Bay. (Id. ¶ 1.) Stolt also owns D.E. Salmon, which consists of two salmon farms known as Booth and Gove Point, both located in Cobscook Bay. (Id. ¶¶ 2-3.)

B. ASM's Fish Farm Operations

ASM's salmon farms consist of two types of sea cages (also referred to as net pens). (DSMF ¶ 2.) One type consists of walkways and square steel frames. (Id.) An inner containment net and an outer predator net hang from the steel frame structure. (Id.) The other type of sea cage consists of circular Polar Circles, plastic piping, and the same inner and outer nets hanging from the structure. (Id.) Both types of net pens are moored to the sea floor. (DSMF ¶ 27; DRSMF ¶ 27.) The open mesh of the nets allows the current to pass through the nets. (Id.)

ASM grows salmon at its Maine freshwater hatcheries until the fish become smolts (i.e. young salmon that are ready to migrate from fresh water to salt water). (PSMF ¶ 26.) When the fish become smolts, ASM transfers them from a boat into the net pens by pumping, dumping, or netting them. (Id. ¶¶ 27-28.) The salmon are grown in the net pens for about eighteen to twenty-four months and are then harvested for market. (Id. ¶ 29.) Each of ASM's farms, except the Libby Island site, produces at least 9,090 harvest weight kilograms (approximately 20,000 pounds) of salmon a year. (Id. ¶ 97; DRSMF ¶ 97.)

1. Copper

The nets that confine the fish, as well as the nets that keep predators away from the fish, are treated with an "antifoulant" called Flexguard II. (PRSMF 1135.) Flexguard II contains copper, which is designed to reduce marine growth that would otherwise "foul" ASM's nets. (Id. ¶ 36.) ASM cleans its nets by dropping them to the sea floor and allows them to remain there for up to five months. (Id ¶ 38.) USPIRG claims that copper from the nets is released into the marine environment. (Id. ¶ 37.)

2. Feed

ASM feeds its salmon a meal containing ground-up fish, primarily herring and anchovetta. (Def.'s Additional Statement of Material Facts in Opp'n to Pls.' Mot. Summ. J. (DASMF) ¶ 2.) The fish meal also contains canthaxanthin and astaxanthin, pharmaceutical manufactured pigments that color the fish's flesh pink. (PSMF ¶ 40.) ASM sprays the feed into the net pens from underwater pipes attached to a barge. (Id. ¶ 41-42.) Occasionally, the fish are fed by hand or by "blowers" which blow the feed into the salmon cages. (Id. ¶ 42.) During feedings, excess feed falls through the bottom of the net pens or is flushed out by the current. (Id. ¶ 84; DASMF ¶ 9.) This excess feed can negatively effect the environment. (PSMF ¶ 85.) Each ASM farm, except the Libby Island site, feeds at least 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding. (Id. ¶ 98; DRSMF ¶ 98.)

3. Diseases, Viruses, and Parasites

Salmon in ASM's pens have contracted bacterial kidney disease ("BKD"), funrunculosis, cold water disease (also known as fexibacter) and vibrio, which can kill fish or have sublethal effects. (PSMF ¶ 43-44.) Diseases that have affected ASM's fish are transmitted through the water, through fish-to-fish contact. (Id. ¶ 50.)

Additional concerns at ASM's farms are viruses and parasites, such as trematode (a type of worm) and sea lice. (Id. ¶ 61, 62, 67.) USPIRG claims that fish at an ASM farm have been infected with a viral disease called infectious salmon anemia ("ISA"). (Id, ¶ 48.) USPIRG asserts that there is no cure for ISA and it is a significant threat to the remaining endangered wild salmon. (Id. ¶ 49.)

4. Chemicals and Fish Wastes

ASM treats bacterial infections by mixing the antibiotic oxytetracycline (also known as Terramycin) into the salmon feed. (Id. ¶¶ 54, 55, 57.) This feed, like the unmedicated feed, can fall through the bottom of the net pens or be flushed out of the nets into the water by the current. (Id. ¶¶ 60, 84; DRSMF ¶¶ 60, 84.)

In order to treat sea lice, ASM uses cypermethrin, a toxic chemical. (PSMF ¶ 68.) The cypermethrin is contained in a product called Excis, which the FDA has not yet approved. (Id. ¶ 72.) Excis contains one percent cypermethrin and is used by ASM as an Investigational New Animal Drug ("INAD"). (Id. ¶ 73; DRSM ¶ 13.) Although, the designation of cypermethrin as an INAD has expired, ASM wants to continue to use this toxic chemical to control sea lice in its pens. (PSMF ¶ 74.) ASM applies cypermethrin after placing a tarp around a net pen and raising the tarp to confine the salmon in a small area. (Id. ¶ 69.) The cypermethrin is then poured from a container into the tarped net pen. (Id.) Following the treatment, the tarp is removed and the cypermethrin is released from the net pens into the marine environment. (Id ¶ 70.) In 1995, ASM administered Excis once at one farm site; in 1996, ASM used it once at one farm site; in 1997, it was applied once at three farm sites; in 1998, it was used three times at one farm site, twice at two farm sites, and once at another farm site. (DASMF ¶ 14.) During 1999, Excis was used once at two sites and in 2000, Excis was used once at one farm site. (Id.)

ASM uses two other chemicals which it releases in the bays. When ASM counts the sea lice on its fish, it anesthetizes the fish with a chemical called Finquel that ASM puts into the water. (PSMF ¶ 65-66.) ASM also puts Parasite-S, a parasite treatment, into the water. (Id. ¶ 75.)

Aside from these chemicals, salmon feces and urine fall through the bottom of the net pens or are flushed out by the current and enter the bay water. (Id. ¶ 84.) Salmon feces, urine, or other fish wastes exit the net pens at each ASM farm, except the Libby Island site, at least thirty days a year. (Id. ¶ 96.)

5. Escapees

Fish can escape through holes in ASM's...