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

• Decision Date: 09 May 2003
• Docket Number: No. CIV. 00-151-B-C.,CIV. 00-151-B-C.
• Parties: UNITED STATES PUBLIC INTEREST RESEARCH GROUP, et al., Plaintiffs v. ATLANTIC SALMON OF MAINE, LLC, Defendant
• Court: U.S. District Court — District of Maine

261 F.Supp.2d 17

UNITED STATES PUBLIC INTEREST RESEARCH GROUP, et al., Plaintiffs v. ATLANTIC SALMON OF MAINE, LLC, Defendant

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

United States District Court, D. Maine.

May 9, 2003.

Bruce M. Merrill, Portland, Charles C. Caldart, Seattle, WA, David A. Nicholas, Joseph J. Mann, Joshua R. Kratka, Boston, MA, for United States Public Interest Research Group, Stephen E Crawford, Charles Fitzgerald, Plaintiffs.

Elizabeth R. Butler, Pierce, Atwood, Peter W. Culley, Pierce, Atwood, Portland, for Atlantic Salmon of Maine, LLC, Defendant.

OPINION AND ORDER ENJOINING FOR CIVIL CONTEMPT DEFENDANT, ATLANTIC SALMON OF MAINE, LLC, FROM FURTHER VIOLATION OF THE COURT'S ORDER OF FEBRUARY 13, 2003

GENE CARTER, Senior District Judge.

I. Procedural Status

Before the Court is Plaintiffs' Motion to Hold Atlantic Salmon of Maine in Contempt for Stocking a New Class of Fish in violation of this Court's February 13, 2003, Order (Docket Item No. 88). An evidentiary hearing on the motion was held on May 2, 2003, pursuant to Plaintiffs' Motion for an Evidentiary Hearing (Docket Item No. 90). The Court stated on the record that it was proceeding as in a civil contempt. T/Trans. at 4.¹ The parties have now filed their briefs on the issues generated by the motion and the evidence presented at the hearing.

Defendant, Atlantic Salmon of Maine, LLC ("ASM") owns and operates five salmon farms in Machias Bay, known as Stone Island, Libby Island, Starboard Island, Cross Island North, and Cross Island. ASM's other two salmon farms are known as Flint Island and Dyer Island and are located in Pleasant Bay.

ASM also owns one hundred percent of the stock of both Treat's Island Fisheries and Island Aquaculture Company ("IAC"). Treat's Island Fisheries, located in Cobscook Bay, consists of four farms, not involved as yet in the present controversy. IAC, located in Blue Hill Bay, consists of three farms, including two pens at Harbor Scragg, where the smolt were stocked on April 30, 2003. T/Trans. at 18-19. An ASM production manager manages the IAC sites. Recommended Decision at 2. T/Trans. at 28-29, 38-39.

Plaintiffs consist of United States Public Interest Research Group, a national organization dedicated to environmental protection, and two individuals, Stephen Crawford and Charles Fitzgerald, members of the United States Public Interest Research Group (collectively 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, 33 U.S.C. § 1251 et seq. The Magistrate Judge entered on February 19, 2002, her Recommended Decision (Docket Item No. 49) on cross-motions for summary judgment, recommending that the Court deny Defendant ASM's Motion for Summary Judgment and grant Plaintiffs' Motion for Summary Judgment on the issue of liability for violation of the Clean Water Act and grant declaratory relief providing that Defendant ASM "is required to obtain an MEPDES permit from the State of Maine or an NPDES permit from EPA in order to lawfully discharge pollutants into Machias Bay or Pleasant Bay." Recommended Decision at 34-35. The Magistrate Judge also recommended that the Court schedule a hearing on the issue of what, if any, civil penalty or injunctive relief is appropriate in the case. The Court affirmed the Recommended Decision. See Order Affirming Recommended Decision of the Magistrate Judge (Docket Item No. 53). The Order by which the Court did so stated in pertinent part:

(5) Declaratory relief is hereby GRANTED providing that Defendant Atlantic Salmon of Maine, LLC is required to obtain an MEPDES permit from the State of Maine or an NPDES permit from the Environmental Protection Agency in order to lawfully discharge pollutants into Machias Bay or Pleasant Bay.

After further proceedings exploring possible settlement potentialities, the Court, with the agreement of the parties, set the matter for nonjury trial on the remedial and injunctive relief aspects of the case. That trial was held on October 8, 9, and 15-17, 2002. The issues so generated were taken under advisement at the conclusion of the hearing. Briefing by the parties was completed on January 13, 2003. Thereafter, the Court entered the Order of February 13, 2003 (Docket Item No. 84), the alleged violation of which generates the present Motion for Contempt, and which reads as follows:

At the conclusion of the damages hearing in this case, the Court requested that counsel advise the Court of Defendant's plans for introducing a new class of fish into its net pens. On January 13, 2003, Atlantic Salmon of Maine, LLC notified the Court that it does plan to introduce a new class of fish into its net pens in the Spring of 2003. Having found that Atlantic Salmon of Maine is in violation of the Clean Water Act, the Court ORDERS that Defendant Atlantic Salmon of Maine, LLC not introduce any new class of fish into its net pens until further order of this Court in order to afford the Court the opportunity to adjudicate the remedial issues that remain outstanding for decision before further action is taken by Defendant.

Id. (emphasis added). This order was precipitated by defense counsel's Letter Status Report (Docket Item No. 83), reading in pertinent part:

At the conclusion of the hearing, you requested that you be advised of the plans of each Defendant for introducing a new class of fish into their net pens.

. . . . .

Atlantic Salmon of Maine, LLC does currently plan to introduce a new class of fish into its net pens this Spring, probably during the first two weeks in May. The timing of the stocking is dependent on three factors: (1) the size of the hatchery fish; (2) the water temperature in the hatchery; and (3) the water temperature at the net pen sites.

Atlantic Salmon of Maine, LLC's plans are as follows: It currently has fish at its Starboard Island site. Those fish were stocked in the Spring of 2002. It plans to split those fish into two groups. One group will be put in pens at Stone Island and the other group will be put in pens at Libby Island. Both those sites have been fallowed for more than two years.

Id.

The Court's intent in entering the Order of February 13th was to preserve the status quo as to the circumstances under which Defendant ASM was discharging pollutants into Maine waters as of the end of the October hearing so that Defendant would not evade the potential effect of the Court's ruling, still under advisement, on the remedial and injunctive relief aspects of the case² and/or place itself in a position to prolong its continuing illegal discharge of pollutants into Maine waters for another two or three years by the introduction at aquaculture sites of a new year-class of fish before the Court could rule on the remedial-injunctive relief aspects. The Court sought to prevent the creation of a situation where ASM could once again act at the interstices of the regulatory/judicial process and plead, once again, its selfcreated economic harm as a basis to be excused from abating the continuance of its practices, adjudged in the prior proceedings herein to be illegal without the specified permits.

On April 4, 2003, defense counsel filed a motion seeking a conference with the Court (Docket Item No. 85) concerning Defendant ASM's desire to stock a new year-class of fish consisting of 1,200,000 smolt. Defense counsel filed a second motion seeking a conference (Docket Item No. 86) on April 21, 2003. The Court heard counsel on the record on April 25, 2003, on both motions. See Transcript of April 25, 2003, Oral Argument. At the oral argument, the Court opened the discussion by saying that it had been apprised of ASM's intention by the two letter motions for a conference and that "[i]t strikes me that maybe Atlantic Salmon is looking for guidance and comfort from the Court as to what the consequences of that [intended] action might be. I'll hear what you have to say, Mr. Culley." Trans, at 3. Defendant's counsel responded that the February 13th Order stated that ASM could not introduce a new year-class of fish into its pens and that:

The purpose for a request for a conference was to bring this matter to the Court's attention to get some guidance from the Court as to what would be necessary and appropriate to revisit the Court's order in light of the passage of time, and in light of some significant commercial exigencies existing with Atlantic Salmon of Maine.

Id. at 4. Counsel acknowledged ASM's understanding that "we cannot, in the face of the [February 13th] order that exists at the present time, introduce any fish into Atlantic Salmon net pen sites." Id. at 5. Ultimately, defense counsel stated the crux of ASM's purpose to be that

it is apparent that the Board of Environmental Protection, and in fact all the agencies realize[,] and recognize that salmon farming is going to be permitted under conditions, that it would be extremely tragic if because of this window of time between which a permit can be in place and when this Court can enter its final decision, that this company at least would be put out of business by its inability to introduce fish at this time.³

Id, at 11.

The Court's colloquy with defense counsel came ultimately to a discussion of how an appropriate proceeding could be brought before the Court to generate the issues that ASM apparently wished to have the Court address. That exchange ran as follows:

MR. CULLEY: Well, you Honor, then what I hear the Court saying is that we need to file a motion with this Court to amend this order, for relief from this order.

THE COURT: I think the only response that I can make here today to that is the following:

That my intent at the time of the entry of the [February 13th]order was that the defendant, ASM, should not put any fish in the coastal waters of Maine without the designated pollution discharge permits required by the Clean Water Act. The Court so declared with respect to ...