United States Public Interest Research Grp. v. Heritage Salmon, Civil No. 00-150-B-C (D. Me. 2/19/2002)

Decision Date19 February 2002
Docket NumberCivil No. 00-150-B-C.
PartiesUNITED STATES PUBLIC INTEREST RESEARCH GROUP, STEPHEN E. CRAWFORD, AND CHARLES FITZGERALD, Plaintiffs, v. HERITAGE SALMON, INC. Defendant.
CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)

Bruce M. Merrill, Esq., Portland, ME, Joshua R. Kratka, Esq., David A. Nicholas, Esq., Joseph J. Mann, Esq., National Environmental Law Center, Boston, MA, Charles C. Caldart, Esq., National Environmental Law Center, Seattle, WA, for plaintiffs United States Public Interest Research Group, Stephen E. Crawford, and Charles Fitzgerald.

Bruce M. Merrill, Esq., Portland ME, for plaintiff Nancy Oden.

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

RECOMMENDED DECISION ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DEFENDANT'S FIRST MOTION FOR SUMMARY JUDGMENT, AND DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT

MARGARET J. KRAVCHUK, Magistrate Judge.

Plaintiffs, the United States Public Interest Research Group, Stephen Crawford, and Charles FitzGerald (collectively "USPIRG"), filed a Clean Water Act citizen suit against defendant, Heritage Salmon, Inc.. (Docket No. 2.) Before me for recommended decision are USPIRG's motion for summary judgment on the issue of Heritage's liability for Clean Water Act violations (Docket No. 9); Heritage's motion for summary judgment on the basis of primary jurisdiction (Docket No. 19); and Heritage's second motion for summary judgment on all claims. (Docket No. 43.) I recommend that the Court DENY Heritage's motions for summary judgment and GRANT USPIRG's motion for summary judgment on the issue of liability under the Clean Water Act.

Summary Judgment Standard

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 (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 "against 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 (1986).

Facts
The Parties

Since the early 1990s, Defendant, a Canadian corporation named Heritage Salmon, Inc. ("Heritage"), has owned and operated five salmon farms known as South Bay, Broad Cove, Deep Cove, and Comstock Point I and Point II. (Pls.' Statement of Material Facts (PSMF) ¶¶ 1, 2, 7; Def.'s Statement of Material Facts (DSMF) ¶ 1.) These farms are located off the Maine coast in Cobscook Bay. (PSMF ¶ 5; Def.'s Resp. Statement of Material Facts (DRSMF) ¶ 5.) Heritage also operates a sixth farm in Cobscook Bay called Birch Point, which Heritage leases from another company. (PSMF ¶ 3.) Heritage owns an additional salmon farm called Goose Island, which is not currently operating. (Id. at ¶ 4.)

Plaintiffs consist of the United States Public Interest Research Group, a national organization dedicated to environmental protection, and two individual members, Stephen Crawford and Charles FitzGerald. (Id. ¶¶ 138-139.) Collectively, the plaintiffs will be referred to as "USPIRG." USPIRG initiated this citizen suit claiming that Heritage's salmon farms release pollutants into the water in violation of the Clean Water Act. (Am. Compl. at 1.)

Heritage's Fish Farm Operations

Heritage's salmon farms consist of collections of floating nets arrayed in the ocean. (Def.'s Second Statement of Material Facts (D2dSMF) ¶ 9.) Heritage uses two types of net pens, both designed to contain fish, exclude predators, and allow the free passage of ocean water. (Id. ¶¶ 9-11; DRSMF ¶ 184.) One type consists of square steel net pens that have plastic floats filled with polystyrene. (D2dSMF ¶ 10.) An inner containment net and an outer predator net hang from the steel frame structure and a bird net covers the top. (Id.) The other type of net pen has circular plastic piping instead of a steel structure and has the same inner and outer nets hanging from the structure. (Id. at 11.) Both types of net pens are moored to the sea floor. (PSMF ¶ 18; DRSMF ¶ 18.) The open mesh of the nets allows the current to pass through the nets. (D2dSMF ¶ 9.) The square net pens are joined and held in a grid pattern by a center bridge section. (D2dSMF ¶ 10.)

Heritage nurtures salmon eggs in its Maine hatcheries and then raises them in a smolt field until they become smolts (i.e. young salmon that are ready to migrate from fresh water to salt water). (PSMF ¶ 18; DRSMF ¶ 18.) Most of the fish Heritage grows are one of two North American strains of salmon, although on February 14, 2001, Heritage reported it is raising approximately 100,000 fish of non-North American strain. (PSMF ¶ 11, Nicholas Decl. I Ex. B at 97.) When the fish become smolts, Heritage transfers them into the net pens (also referred to as "sea cages") by either emptying them from boxes or fluming them down plastic tubes. (Id. ¶¶ 18-19.) Each one hundred meter net pen can hold 35,000 fish. (DRSMF ¶ 20.) The salmon are grown in the net pens for about fifteen to twenty-seven months and then are harvested for market. (PSMF ¶ 21.)

All of Heritage's farms, except Goose Island, produce at least 9,090 harvest weight kilograms (approximately 20,000 pounds) of salmon a year. (Id. ¶¶ 108-109; DRSMF ¶ 108.)

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. (Id. ¶ 26.) Flexguard II contains copper, which is designed to reduce marine growth on Heritage's nets. (Id. ¶ 26.) While the net pens are in the water, copper is released from the nets into the marine environment. (Id. ¶ 27; DRSMF ¶ 27.)

2. Feed

Heritage feeds its salmon a meal containing waste products from the chicken processing industry, which include chicken feathers, chicken blood, and chicken carcasses. (PSMF ¶ 28; DRSMF ¶ 28.) The feed also contains soybean meal, wheat, a "vitamin/mineral pack," and other ingredients. (PSMF ¶ 29; DRSMF ¶ 29.) Heritage adds to the feed a pharmaceutical manufactured pigment called canthaxanthin, which colors the fish's flesh pink. (PSMF ¶¶ 30-33.) Heritage sprays the feed into the net pens from underwater pipes attached to a barge. (Id. ¶¶ 34-36.) Occasionally, the fish are fed by hand or by "blowers" which blow the feed into the salmon cages. (Id. ¶ 37.) During feedings, excess feed falls through the net pens into the ocean and collects on the sea floor under Heritage's pens. (Id. ¶ 88; DRSMF ¶ 88.) At least thirty days a year, Heritage introduces feed into the water and feed exits the net pens. (PSMF ¶¶ 106-107; DRSMF ¶¶ 106-107.) Each Heritage farm, except Goose Island, feeds at least 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding. (PSMF ¶¶ 110-111; DRSMF ¶ 110.)

3. Diseases, Viruses, and Parasites

In the past, salmon in Heritage's pens have contracted bacterial kidney disease ("BKD"), funrunculosis, hitra, and vibrios, which can kill fish or have sublethal effects. (PSMF ¶¶ 40-41.) Bacterial diseases can spread by becoming water-borne and by contaminating material such as feces and fish carcasses. (Id. ¶ 44.)

Additional concerns at Heritage's farms are sea lice and a viral disease called infectious salmon anemia ("ISA"). (Id. ¶ 58; DRSMF ¶ 58.) Sea lice larvae are carried by water currents and are not confined to the net pens. (PSMF ¶ 62.) These parasites can cause serious wounds and kill salmon. (Id. ¶¶ 59, 61.) There has been one confirmed case of ISA at Heritage's net pen sites. (Id. ¶ 54; DRSMF ¶ 54.) USPIRG asserts that there is no cure for ISA and it is a significant threat to the remaining endangered wild salmon. (PSMF ¶ 57.)

4. Chemicals and Fish Wastes

Heritage treats bacterial infections by adding the antibiotic TM 100 and/or Romet to the salmon feed. (PSMF ¶¶ 46, 47, 49; DRSMF ¶¶ 46, 47, 49.) This feed, like the unmedicated feed, can flush out of the pens with the current or fall to the ocean floor. (PSMF ¶¶ 87, 88.)

In order to kill sea lice, Heritage uses a chemical called cypermethrin. (Id. ¶ 64; DRSMF ¶ 64.) The cypermethrin Heritage uses is contained in a product called Excis. (PSMF ¶ 70; DRSMF ¶ 70.) Heritage applies cypermethrin after placing a tarp around a net pen and raising the tarp to confine the salmon in a small area. (PSMF ¶ 66.) The cypermethrin, calculated to .5 parts per billion, is then poured from a container into the tarped pen. (Id. ¶ 66; DRSMF ¶¶ 66-67.) Following the hour-long treatment, the tarp is removed and the cypermethrin is released from the net pens into the marine environment. (PSMF ¶ 67; DRSMF ¶¶ 66-67.)

Aside from these chemicals, salmon feces and urine are flushed out of the net pens and enter the bay water. (PSMF ¶¶ 87, 102-104.) Salmon feces can accumulate on the sea floor under Heritage's pens. (Id. ¶ 88.) Salmon feces, urine, or other fish wastes exit the net pens at each of Heritage's farms at least thirty days a year. (Id. ¶ 105; DRSMF ¶ 105.)

5. Escapees

On occasion, fish escape from Heritage's net pens. (DRSMF ¶ 74.) USPIRG claims that fish can escape during transfer and harvesting or by swimming through holes in the nets created by storms, boats, logs and seals. (PSMF ¶¶...

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