U.S. Public Interest R. G. v. Atlantic Salmon

• Decision Date: 06 August 2003
• Docket Number: No. 03-1830.,No. 03-1831.,03-1830.,03-1831.
• Parties: UNITED STATES PUBLIC INTEREST RESEARCH GROUP, Stephen E. Crawford, Charles Fitzgerald, Plaintiffs, Appellees, Nancy Oden, Plaintiff v. ATLANTIC SALMON OF MAINE, LLC, Defendant, Appellant. UNITED STATES Public Interest Research Group, Stephen E. Crawford, Charles Fitzgerald, Plaintiffs, Appellees, Nancy Oden, Plaintiff v. Stolt Sea Farm, Inc., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

339 F.3d 23

UNITED STATES PUBLIC INTEREST RESEARCH GROUP, Stephen E. Crawford, Charles Fitzgerald, Plaintiffs, Appellees, Nancy Oden, Plaintiff v. ATLANTIC SALMON OF MAINE, LLC, Defendant, Appellant.

UNITED STATES Public Interest Research Group, Stephen E. Crawford, Charles Fitzgerald, Plaintiffs, Appellees, Nancy Oden, Plaintiff v. Stolt Sea Farm, Inc., Defendant, Appellant.

No. 03-1830.

No. 03-1831.

United States Court of Appeals, First Circuit.

Heard July 29, 2003.

Decided August 6, 2003.

COPYRIGHT MATERIAL OMITTED

Richard E. Schwartz with whom Adam D. Wilson and Crowell & Moring LLP were on brief for appellants.

David A. Nicholas, with whom Joshua R. Kratka, Joseph J. Mann, National Environmental Law Center and Bruce M. Merrill were on brief for appellees.

G. Steven Rowe, Attorney General, State of Maine, and Christopher C. Taub, Assistant Attorney General, State of Maine, on brief for State of Maine, amicus curiae.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and BALDOCK,^* Senior Circuit Judge.

BOUDIN, Chief Judge.

This is an appeal by two companies ("the companies") engaged in operating salmon farms in Maine: Atlantic Salmon of Maine, LLC, and Stolt Sea Farm, Inc. In a citizen-suit civil action under the Clean Water Act, 33 U.S.C. § 1365 (2000), the district court found the companies liable for polluting Maine waters, USPIRG v. Atl. Salmon of Maine, LLC, 215 F.Supp.2d 239 (D.Me. 2002) ("Atlantic Salmon I"), and granted injunctive relief, USPIRG v. Atl. Salmon, LLC, 257 F.Supp.2d 407 (D.Me.2003) ("Atlantic Salmon II"). The companies claim that the district court's authority to grant injunctive relief has been superceded by a subsequent state permit.

We recount only what is needed to frame the legal issues before us. The two companies are engaged in sea-farming or "aquaculture." Its key feature is that young salmon, called "smolts," are transferred from freshwater hatcheries to sea cages called "net pens," the net pens being submerged in ocean water. The smolts are held in these net pens for 18 months or so while they mature and the salmon are then harvested. The origin of this case is the pollution that occurs in various forms incident to the net pen operations.

Atlantic Salmon began operating salmon farms along the Maine coast in 1988 and currently operates four farms (previously five) in Machias Bay and two in Pleasant Bay. It also owns two other companies that together operate seven more farms. Stolt, which began operating in Maine in 1987, runs three farms in Cobscook Bay and has a subsidiary operating two more salmon farms. Both parent companies hold aquaculture leases from the Maine Department of Marine Resources and site permits from the Army Corps of Engineers.

The Clean Water Act provides that, except as otherwise authorized, "the discharge of any pollutant [into navigable waters] by any person shall be unlawful." 33 U.S.C. §§ 1311(a), 1362(12) (2000). One of the exceptions allows discharge where the person holds a discharge permit from the Environmental Protection Agency ("EPA") or, if the state has been authorized by EPA to conduct its own program, a state discharge permit. 33 U.S.C. §§ 1342(a)(1) & (b) (2000). Where the state issues a permit, EPA retains power to veto it, 33 U.S.C. § 1342(c)(3) (2000), subject to review in the federal courts of appeals. 33 U.S.C. § 1369(b)(1) (2000).

The permits may be either "general," authorizing a class of operations by anyone, or "individual," i.e., specific to one permit holder. Tex. Oil & Gas Ass'n v. EPA, 161 F.3d 923, 929 (5th Cir.1998); Atlantic Salmon I, 215 F.Supp.2d at 245 n. 2. The grant or denial of a federal permit is reviewable in the appropriate federal court of appeals, 33 U.S.C. § 1369(b)(1) (2000), and state permits are reviewable under state law and subject to EPA veto. However, while a permit is in effect, it protects the holder (with exceptions not here relevant) against claims that the holder is violating the Clean Water Act, thus providing a kind of safe harbor or shield. 33 U.S.C. § 1342(k) (2000).¹

The companies in this case say that in the late 1980s EPA told them that they did not need a permit under the Clean Water Act; but indisputably in 1990 EPA told the companies that they did need permits. In the same year the companies began to seek permits for one or more sites, and further applications (and entreaties for action) followed but EPA never issued permits for any of the companies' sites. Instead, EPA began what appears to have been a leisurely process of consultation, ending in January 2001 with EPA delegating to Maine the authority to issue permits.

On September 25, 2000, the United States Public Interest Research Group and two of its members (collectively, "USPIRG"), filed suit against the companies in district court to enjoin the discharge of pollutants without a permit. The Clean Water Act permits such citizen suits and invests the district courts with authority to enjoin violations. 33 U.S.C. § 1365(a) (2000). There ensued discovery and cross motions for summary judgment before a magistrate judge. In February 2002, the magistrate judge recommended that summary judgment be granted against the companies. Atlantic Salmon I, 215 F.Supp.2d at 241-42; USPIRG v. Stolt Sea Farm, Inc., Civ. No. 00-149-B-C, 2002 WL 240386 (D.Me. Feb. 19, 2002).

On June 17, 2002, the district judge issued a decision adopting the recommendation, determined that the companies had violated the Clean Water Act, and ordered a hearing on injunctive relief and civil penalties. Atlantic Salmon I, 215 F.Supp.2d at 241. After a lengthy evidentiary hearing in October 2002 followed by more briefing, the district court on May 28, 2003, issued a decision making further fact findings, rejecting various legal defenses by the companies, imposing a statutory civil penalty of $50,000 on each of the two companies, and ordering injunctive relief. Atlantic Salmon II, 257 F.Supp.2d at 416-27, 434-36.²

The two injunctive provisions of principal concern here required specified periods of fallowing (that is, temporary idling) of net pens after the next harvest and prohibited the future stocking of any of the companies' net pens with non-native strains of salmon. Atlantic Salmon II, 257 F.Supp.2d at 435-36. The court also ordered that each pen be stocked with only a one-year class of fish at any time. Id. at 435. However, the court did allow fish currently in the pens to be harvested, both to avoid irreparable loss and because the environmental harm would be reparable. Id. at 435-36.

While the district court was considering this case, the Maine Board of Environmental Protection was conducting proceedings looking to the issuance of a general permit covering all Maine salmon farming operations. Draft permit provisions were made known to the district court during its deliberations. Atlantic Salmon II, 257 F.Supp.2d at 430 n. 19. On June 19, 2003, the Maine Board issued its general permit, which is currently being challenged in the Maine Superior Court by USPIRG. USPIRG v. Bd. of Envtl. Prot., Docket No. AP-03-43. The permit is currently effective but provides protection for individual companies only after a notice period.

The companies have now appealed to this court to challenge the injunction. Because of the impact on their ongoing operations, they sought expedited briefing and oral argument, which we granted, and a stay of the injunction pending our decision, a request that we denied immediately after the oral argument on July 29, 2003. The companies have primarily focused on a single claim, namely, that the district court's injunction is beyond its "jurisdiction" insofar as the terms of the injunction differ from those of the Maine general permit. Maine regulators have filed an amicus brief supporting this position.

The companies do not challenge the district court's ruling that they have been violating the Clean Water Act for over a decade or its rejection of their various defenses (e.g., laches, estoppel, de minimus effects). Yet the liability ruling is a necessary backdrop for demarcating the district court's authority vis-à-vis that of EPA and Maine. Congress set out in the Clean Water Act to solve a set of practical problems, and any useful construction of the statute must be responsive to this objective. See, e.g., Chapman v. United States, 500 U.S. 453, 473, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).

In this case, the district court found that both companies had discharged into navigable waters, in violation of the statute, five types of pollutants: non-North American salmon that escape from the pens; large quantities of salmon feces and urine that exit the pens; uneaten salmon feed containing a range of chemicals for combating infection and providing coloring; other chemicals to fight sea lice; and copper that flakes from the net pens themselves. Atlantic Salmon I, 215 F.Supp.2d at 247-49; USPIRG v. Stolt Sea Farm, Inc., Civ. No. 00-149-B-C, 2002 WL 240386, at *5-*7 (D.Me. Feb.19, 2002), aff'd USPIRG v. Stolt Sea Farm, Inc., Civ. No. 00-1490B0C, 2002 WL 1552165, at *1 (D.Me. June 17, 2002).

That the wastes and chemicals should be classified as pollutants of the sea floor and waters is hardly surprising; but the district court also found that non-native strains of salmon are pollutants under the statute and regulations. Atlantic Salmon II, 257 F.Supp.2d at 420-22. The reason is that through a variety of causes, some of the penned salmon tend to escape and to interbreed with native North Atlantic salmon;³ and through competition from the non-native salmon and the genetic effects of interbreeding, the native strain's survival is threatened. Id. North Atlantic salmon is currently listed as an endangered species. Id. at 420.

Just how serious and immediate this threat may be is a matter of dispute. But the companies do not challenge the ultimate finding that non-native species are a pollutant and can be banned. The Maine Board's general...