United States Public Interest Research Group v. Stolt Sea Farm Inc., Civil No. 00-149-B-C (D. Me. 2/19/2002), Civil No. 00-149-B-C.
| Decision Date | 19 February 2002 |
| Docket Number | Civil No. 00-149-B-C. |
| Parties | UNITED STATES PUBLIC INTEREST RESEARCH GROUP, STEPHEN E. CRAWFORD, AND CHARLES FITZGERALD, Plaintiffs, v. STOLT SEA FARM, INC., Defendant. |
| Court | U.S. District Court — District of 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.
Peter W. Culley, Elizabeth R. Butler, Esq., Pierce, Atwood, Portland, ME, for defendant Stolt Sea Farm Inc.
Michael A. Nelson, Jensen, Baird, Gardner & Henry, Portland, ME, for interested party Heritage Salmon INC.
RECOMMENDED DECISION ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs, the United States Public Interest Research Group, Stephen Crawford, and Charles FitzGerald (collectively "USPIRG"), filed a Clean Water Act citizen suit against defendant, Stolt Sea Farm, Inc. 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. 17) on the issue of Stolt Sea Farm's ("Stolt") liability for Clean Water Act violations and Stolt's motion for summary judgment on all claims. (Docket No. 25.) I recommend that the Court DENY Stolt'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 (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).
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.)
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. (Id. ¶¶ 157-158.) Collectively, the plaintiffs will be referred to as "USPIRG." USPIRG initiated this citizen suit claiming that Stolt's salmon farms release pollutants into the water in violation of the Clean Water Act. (Am. Compl. at 1.)
Stolt's salmon farms consist of sea cages and working platforms (i.e. catwalks) which are moored by chain, line, and mooring blocks. (Def.'s Statement of Material Facts (DSMF) ¶ 2.) Stolt uses two types of sea cages (also referred to as net pens). (Id.) One type consists of square steel frames that contain flotation. (Id.) An inner containment net and an outer predator net hang from the steel frame structure. (Id.) These sea cages are moored in a grid system. (Id.) The other type of sea cage consists of plastic collars containing flotation and has the inner and outer nets hanging from the collars. (Id.) The net pens are anchored to the bottom of the sea floor. (PSMF ¶ 25.) The open mesh of the nets allows the current to pass through the nets. (DSMF ¶ 2.)
At Stolt's farms, young fish are brought in, grown for about eighteen months to maturity, and then harvested for market. (PSMF ¶¶ 19, 20.) Stolt purchases its salmon from freshwater hatcheries when the fish are smolts (i.e. young salmon that are ready to migrate from fresh water to salt water). (Id. ¶ 23.) After receiving smolts from a hatchery, Stolt delivers the smolts to the net pens by boat. (Id. ¶ 24.) The smolts are "sluiced" from the boat into the net pens through a 6-inch diameter plastic hose. (Id. ¶ 26.) Stolt can stock up to twenty-eight pens at a single farm site, and each pen can hold between 5,000 and 16,000 fish. (Id. ¶ 27.) USPIRG estimates that at any given time, over a quarter of a million fish can be stocked at one of Stolt's farms. (Id. ¶ 28.) Each of Stolt's farms produces at least 9,090 harvest weight kilograms (approximately 20,000 pounds) of salmon a year.
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. (PSMF ¶ 39.) Flexguard contains copper, which is designed to reduce the growth of plant life, mussels, and other life that would otherwise clog the mesh in the nets. (Id. ¶ 40.) Copper can be toxic to fish at a certain concentration. (Id. ¶ 41.) USPIRG claims that copper from the nets is released into the marine environment. (Id. ¶ 42.)
Stolt feeds its salmon a meal containing poultry parts and a chemical dye called carophyll red that colors the fish's flesh pink. (Id. ¶ 47; Def.'s Additional Statement of Material Facts (DASMF) ¶ 1.) Stolt stores the feed on scows, and then delivers the feed by boat from the scows to the net pens. (PSMF ¶ 46.) Stolt's smolts are fed by hand three or four times a day. (Id. ¶ 44.) As the fish mature, Stolt switches to a "blower mechanism" feeding one or two times a day. (Id.) A blower is a large hopper with an air supply that blows the feed through a pipe into a salmon cage. (Id. ¶ 45.) During feedings, excess feed falls through the bottom of the net pen or is flushed out by the current. (Id. ¶ 96; DASMF ¶ 2.) Stolt's farms each feed at least 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding. (PSMF ¶ 118; DRSMF ¶ 118.)
Salmon in Stolt's pens have contracted bacterial kidney disease ("BKD"), flexibacter, and vibrio (hitra, angularium, or ordalli), which can kill fish or have sublethal effects. (PSMF ¶¶ 48-49.) Flexibacter resides in the ambient waters and infects farmed salmon opportunistically when the fish are stressed or physically injured from rubbing against the containment net. (Id. ¶ 52.) When bacterial diseases exist in a pen, the bacterial pathogens can be dispersed from the pens by tidal currents or can be spread through feces and urine from infected salmon. (Id. ¶¶ 59, 97.) Some bacterial diseases such as BKD, can be spread "horizontally" through the water from fish in one cage to fish in other cages, and "vertically" from the parent or broodstock to later generations. (Id. ¶ 51.)
Stolt's primary concern regarding viral diseases is infectious salmon anemia ("ISA"). (Id. ¶ 53.) USPIRG claims that ISA has been found in Stolt's New Brunswick salmon farms and at salmon farms near Treats Island, not over a mile from Stolt's Johnson Bay operations. (Id. ¶¶ 55-56.) USPIRG asserts that there is no cure for ISA and it is a significant threat to the remaining endangered wild salmon. (Id. ¶ 58.)
An additional problem at Stolt's farms is parasites such as sea lice that can damage or kill salmon. (Id. ¶ 72-73.) The "intensive culture" of Stolt's farms makes the sea cages an attractive spot for sea lice to gather. (Id. ¶ 75.) Once in the net pens, these parasites can be dispersed into the waters by tidal currents. (Id. ¶ 76.)
Stolt treats bacterial infections by mixing the antibiotic oxytetracycline (also purchased medicated feed. (Id. ¶¶ 65-67; DRSMF ¶ 65-67; DASMF ¶ 12.) Antibiotic-laden feed can fall through the bottom of the net pens or be flushed out of the nets into the water by the current. (PSMF ¶ 70; DSMF ¶ 70.) Stolt stopped using the antibiotic oxytetracycline in either 1999 or 2000.
In order to kill sea lice, Stolt uses cypermethrin, a chemical found in agricultural pesticides. (PSMF ¶ 77.) The cypermethrin is contained in a product called Excis, which the FDA has not yet approved. (Id. ¶ 78.) Excis contains one percent cypermethrin and is used by Stolt as an Investigational New Animal Drug ("INAD"). (Id. ¶ 79; DASMF ¶ 5.) Although, the designation of cypermethrin as an INAD has expired, Stolt wants to continue to use this toxic chemical to control sea lice in its pens. (PSMF ¶ 80.) Stolt applies cypermethrin after placing a tarp around a net pen and raising the tarp to confine the salmon in a small area. (Id. ¶ 83.) The cypermethrin, diluted in water, is then poured from a container into the tarped net pen. (Id. ¶ 83; DASMF ¶ 3.) Following the treatment, the tarp is removed and the cypermethrin is released from the net pens into the marine environment. (PSMF ¶ 84.) Stolt has used cypermethrin from 1995 through 2000. (DASMF ¶ 9; PRASMF ¶ 9.) Stolt uses a similar tarp technique to treat its fish for gill...
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