U.S. Pub. Interest Research Group v. Atl. Salmon, Civ.00-151-B-C.
| Decision Date | 17 June 2002 |
| Docket Number | No. Civ.00-151-B-C.,Civ.00-151-B-C. |
| Citation | 215 F.Supp.2d 239 |
| Parties | UNITED STATES PUBLIC INTEREST RESEARCH GROUP, Stephanie E. Crawford, and Charles Fitzgerald, Plaintiffs, v. ATLANTIC SALMON OF MAINE, LLC., Defendant. |
| Court | U.S. District Court — District of Maine |
Bruce M. Merrill, Portland, ME, Joshua R. Kratka, David A. Nicholas, Joseph J. Mann, National Environmental Law Center, Boston, MA, Charles C. Caldart, National Environmental Law Center, Seattle, WA, for plaintiffs.
Peter W. Culley, Elizabeth R. Butler, Pierce, Atwood, Portland, ME, for defendant.
ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
The United States Magistrate Judge having filed with the Court on February 19, 2002, with copies to counsel, her Recommended Decision on Plaintiffs' Motion for Summary Judgment and Defendant's Motion for Summary Judgment (Docket No. 49); and Defendant having filed its objection thereto on March 8, 2002, (Docket No. 50), to which objection Plaintiffs filed their response on March 22, 2002 (Docket No. 51); and this Court having reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; and this Court having made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision, and concurring with the recommendations of the United States Magistrate Judge for the reasons set forth in her Recommended Decision, it is ORDERED as follows:
(1) Defendant Atlantic Salmon of Maine, LLC's objection is hereby DENIED.
(2) The Recommended Decision of the Magistrate Judge is hereby AFFIRMED.
(3) Defendant Atlantic Salmon of Maine, LLC's Motion for Summary Judgment is hereby DENIED.
(4) Plaintiff U.S. Public Interest Research Group, LLC's Motion for Summary Judgment on the issue of liability under the Clean Water Act is hereby GRANTED.
(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.
(6) The Clerk is to schedule a hearing on the issue of what, if any, civil penalty or injunctive relief is appropriate in this case.
Plaintiffs, the United States Public Interest Research Group, Stephen Crawford, and Charles FitzGerald (collectively "USPIRG"), filed a Clean Water Act citizen suit against defendant, Atlantic Salmon of Maine, LLC (ASM), alleging discharges of pollutants in violation of the Act. (Docket No. 2.) Before me for recommended decision are USPIRG's motion for summary judgment (Docket No. 18) on the issue of ASM's liability for Clean Water Act violations and ASM's motion for summary judgment on all claims. (Docket No. 26.) I recommend that the Court DENY ASM's motion for summary judgment and GRANT USPIRG's motion for summary judgment on the issue of liability under the Clean Water Act.
Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter at law." Fed.R.Civ.P. 56(c). A fact is "material" when it has the "potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A "genuine issue" exists when the evidence is "sufficient to support rational resolution of the point in favor of either party." Id. To determine whether genuine issues of material fact exist in matters subject to cross-motions for summary judgment, the court must draw all reasonable inferences against granting summary judgment. Cont'l Grain Co. v. P.R. Mar. Shipping Auth., 972 F.2d 426, 429 (1st Cir.1992). Summary judgment should be granted "a gainst a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
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 ¶ 6), it is disputed that ASM is responsible for regulatory compliance. (PSMF ¶ 5; DRSMF ¶ 5.)
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 ¶¶ 144-145.) 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.)
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.)
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 ¶ 35.) 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.)
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.)
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.)
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...
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