143 F. Supp.2d 1169 (2001) | Cited 0 times | D. Idaho | June 4, 2001



Pending before the Court is Defendants' Motion for Summary Judgment(Docket No. 74), Defendants' Motion to Strike Declarations and Exhibits(Docket No. 104), Defendants' Motion in Limine and to Strike theTestimony of Alan Gay (Docket No. 106), Defendants' Motion in Limme andto Strike the Testimony of John Monks (Docket No. 108), and Plaintiff'sMotion for a Continuance of the June 11,2001 Trial Date (Docket No. 113). The Court has heard oral argument andconsidered the parties' briefing, and now issues the following decision.


In 1994, the Defendants ("Bosmas") established a substantial dairyoperation ("Grand View Dairy" or "the dairy") in an area near Bliss,Idaho, which is directly upgradient from farms operated by the Butler andWalker families. The Butlers and the Walkers are members of PlaintiffIdaho Rural Council ("IRC"), an Idaho non-profit corporation withapproximately 500 members throughout Idaho.1

On October 7, 1999, IRC sent to the Bosmas a 60-day notice of analleged violation of provisions of the Clean Water Act ("CWA"),33 U.S.C. § 1251-1387. Subsequently, the Bosmas applied for andobtained a National Pollution Discharge Elimination System ("NPDES")permit. On December 9, 1999, IRC filed its Complaint, alleging that theBosmas have discharged, and continue to discharge, pollutants into watersof the United States. IRC alleges that these discharges reach the watersof the United States through eight different channels;

First, wastewater flows from the dairy into the Old Faulkner Pond thatis located on the west boundary of the Bosmas' property. The Pond thendischarges into basalt rock and fractured bedrock, which ishydrologically connected to Butler Spring. Thereafter, Butler Springdischarges into Clover Creek, at least seasonally, by means of a headgate.

Second, polluted irrigation water from Grand View's north pivot issprayed directly into the Northside Canal. Wastewater also enters theNorthside Canal through leaks in the mainline serving the north pivot.Additionally, runoff from the southwest edge of the north pivot drainsinto the Northside Canal. The Northside Canal then discharges into CloverCreek about one mile down stream.

Third, wastewater holding ponds located on Grand View are not lined.The wastewater seeps out of the unlined ponds into groundwater.

Fourth, wastewater from Grand View's holding pond east of the mainlagoon also seeps into the groundwater.

Fifth, wastewater runs off from a solid separator into a pond that theBosmas call their irrigation pond. Wastewater from the pond then seepsinto the groundwater.

Sixth, for months, and possibly years, dead animals, dairy waste,construction waste, pharmaceutical materials, and debris have been dumpedinto and around the Walker Spring. Walker Spring then runs northwest downa ravine into a pond, and then across a pasture into the NorthsideCanal. The Northside Canal then discharges into Clover Creek.

Seventh, wastewater containing syringes, examination gloves, mastitistubes, and manure, flows from Grand View's hospital barn to WalkerSpring. Walker Spring then runs down a ravine into a pond, across apasture and into the Northside Canal, which discharges into Clover Creek.

Eighth, large piles of manure are collected on the dairy and locatedbetween the corrals and a liquid containment dike. Wastewater from thosemanure piles runs off into the Northside Canal, which discharges intoClover Creek.

The Bosmas dispute these allegations. That dispute frames the issuesraised by the motions pending before the Court.


A. Defendants' Motion for Summary Judgment

The Court will first address Defendants' Motion for Summary Judgment.The party moving for summary judgment has the burden of proving theabsence of any genuine issue of material fact, so that the moving partyis entitled to judgment as a matter of law. See Anderson v. LibertyLobby, Inc., 477 U.S. 242, 256 (1986). In addition, the evidence must beviewed in the light most favorable to the non-moving party, see id. at255, and the Court must not make credibility determinations. See id.

Once the moving party demonstrates the absence of a genuine issue ofmaterial fact, the burden shifts to the non-moving party to produceevidence sufficient to support a jury verdict in its favor. See id. at256-57. In meeting this burden, the non-moving party must go beyond thepleadings and show "by its affidavits, or by the depositions, answers tointerrogatories, or admissions on file" that a genuine issue of materialfact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Thisevidence must be admissible because "only admissible evidence may beconsidered in ruling on a motion for summary judgment." Beyene v. ColemanSec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988).

In this case, the Bosmas contend that summary judgment should begranted on three grounds: (1) the Court lacks subject matterjurisdiction; (2) IRC is unable to establish a viable claim under theClean Water Act; and (3) the Bosmas are entitled to summary judgment ontheir affirmative defenses, specifically the "diligent prosecutiondefense," and a defense based on the equitable doctrine of "uncleanhands." The Court will address each in turn.

1. Subject Matter Jurisdiction

Article III of the U.S. Constitution imposes several limitations on thejurisdiction of the federal court to have jurisdiction over a matterbefore it. of relevance here are the requirements that, first, the matterbe an actual "case or controversy," and second, the case "arise under" alaw of the United States. Thus, IRC must first demonstrate the existenceof a case or controversy by showing that it had a personal interest inthe outcome of the lawsuit at its commencement (i.e., that it hasstanding), and that its personal stake in the outcome continues (i.e.,that its claims are not moot). See Smith v. University of Washington LawSchool, 233 F.3d 1188, 1193 (9th Cir. 2000); Native Village of Noatak v.Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994). Second, although thiscase would appear to clearly "arise under" the laws of the UnitedStates, since it is based upon the requirements of the Clean Water Act,IRC must show that the CWA regulates the conduct in question.

a. Standing

Article III of the Constitution confines the jurisdiction of thefederal courts to actual cases and controversies. If "the resolution ofthe issue presented cannot really affect the plaintiffs rights, thereis, generally speaking, no case or controversy for the courts toadjudicate; no real relief can be awarded." Smith v. University ofWashington Law School, 233 F.3d at 1193. Thus, the doctrine of standingserves toidentify those disputes which are appropriately resolvedthrough the judicial process. In a CWA citizen enforcement action, anorganization, such as IRC, has standing to bring suit when the followingthree requirements are met: (1) the organization's members wouldotherwise have standing to sue in their own right; (2) the interests atstake are germane to the organization's purpose; and (3) neither theclaim asserted nor the relief requested requires the participation ofindividual members in the lawsuit. See Friends of the Earth, Inc. v.Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000); see also NaturalResources Defense Council v. Southwest Marine Council, Inc. 236 F.3d 985,994 (9th Cir. 2000). The Bosmas argue that IRC fails to meet the firstrequirement — that IRC's individual members do not have standing tosue in their individual capacity — and therefore lacks standing.2

In order to satisfy Article III's standing requirements in a CWAcitizen enforcement action, an individual plaintiff must show that (1) heor she has suffered an "injury in fact" that is (a) concrete andparticularized and (b) actual or imminent, not conjectural orhypothetical; (2) the injury is fairly traceable to the challenged actionof the defendant; and (3) it is likely, as opposed to merelyspeculative, that the injury will be redressed by a favorable decision.See id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561(1992)); see also Natural Resources Defense Council v. Southwest MarineCouncil, Inc. 236 F.3d 985, 994 (9th Cir. 2000). The party invokingfederal jurisdiction bears the burden of establishing these threeelements. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

Because these elements are not mere pleading requirements, but,rather, an indispensable part of the plaintiffs case, they must besupported in the same way as any other matter on which a plaintiff bearsthe burden of proof, i.e., with the manner and degree of evidencerequired at the successive stages of the litigation. Id. General factualallegations of injury resulting from defendant's conduct may suffice atthe pleading stage. However, in response to a summary judgment motion, aplaintiff can no longer rest on mere allegations, but must set forth byaffidavit or other evidence the specific facts, which will be taken astrue for purposes of summary judgment. Id. At the final stage, thosefacts, if controverted, must be supported adequately by the evidenceadduced at trial. Id.

(1) Injury In Fact

The relevant showing of injury in fact is not injury to the environmentbut injury to the plaintiff. "To insist upon the former rather than thelatter as part of the standing inquiry . . . is to raise the standinghurdle higher than the necessary showing for success on the merits in anaction alleging noncompliance with an NPDES permit." Laidlaw, 528 U.S. at181. "[E]nvironmental plaintiffs adequately allege injury in fact whenthey aver that they use the affected area and are persons `for whom theaesthetic and recreational values of the area willbe lessened' by the challenged activity." Id. at 705. Here, IRC contendsthat several of its members have suffered concrete injuries that haveresulted in tangible aesthetic, recreational, and economic harm. Forexample, IRC alleges that the Butlers no longer use their pond forcanoeing, fishing, or swimming. IRC supports these allegations withseveral affidavits and declarations of members of IRC, including Art andStacey Butler, Archie Walker, and Christopher Hormel. They assert thatthe Bosmas' actions directly affected their recreational, aesthetic, andeconomic interests. As such, IRC has set forth by affidavit and otherevidence sufficient specific facts which establish, for purposes of thismotion, that their individual members have suffered an injury in factthat is both concrete and particularized.

(2) Injury Fairly Traceable to Challenged Action of Defendant

To establish standing, there also must be a causal connection betweenthe injury and the conduct of which the plaintiff complains. That is, theinjury must be fairly traceable to the challenged action of thedefendant, and not the result of the independent action of some thirdparty not before the court. Lujan, 504 U.S. at 560. The fairly traceablecomponent examines the causal connection between the assertedly unlawfulconduct and the alleged injury. See Allen v. Wright, 468 U.S. 737, 753n. 19 (1984). "[T]he threshold requirement of `traceability does not meanthat plaintiffs must show to a scientific certainty that defendant'seffluent . . . caused the precise harm suffered by the plaintiffs' inorder to establish standing." Southwest Marine 236 F.3d at 995. "Tosatisfy this requirement, `rather than pinpointing the origins ofparticular molecules, a plaintiff must merely show that a defendantdischarges a pollutant that causes or contributes to the kinds ofinjuries alleged in the specific geographic area of concern.'" Id.

In Southwest Marine, the Ninth Circuit indicated its agreement with theposition taken by the Third Circuit in Public Interest Research Group v.Powell Duffryn, 913 F.2d 64, 72 (3d Cir. 1990), that the causalconnection for standing purposes cannot be too speculative, but need notbe so airtight at this stage of the litigation as to demonstrate that theplaintiffs would succeed on the merits. Id. In Powell Duffryn, the ThirdCircuit further indicated that plaintiffs need only show that there is asubstantial likelihood that defendant's conduct caused plaintiff's harm,and in a CWA case, "this likelihood may be established by showing that adefendant has 1) discharged some pollutant in concentrations greater thanallowed by its permit 2) into a waterway in which the plaintiffs have aninterest that is or may be adversely affected by the pollutant and that3) this pollutant causes or contributes to the kinds of injuries allegedby the plaintiffs." Powell Duffryn, 913 F.2d at 72.

In this case several witnesses have offered affidavits to the effectthat the Bosmas dumped dead animals and dairy waste at the source of theWalker Spring. See Declaration of Michael Vos, ¶ 9; see alsoDeclaration of Archie Walker, ¶ 5; see also Declaration of ArthurButler, ¶ 13. In the same vein, Michael Vos stated in his affidavitthat he observed a steady flow of polluted surface runoff from the GrandView Dairy to the Walker Spring draw, which included syringes,examination gloves, mastitis tubes, and manure. See Declaration ofMichael Vos, ¶¶ 5-8. These pollutants contribute to the exact kindsof aesthetic, recreational, and economic injuries alleged by IRC.Accepting these allegations as true for purposes of this motionfor summary judgment, the Court concludes that IRC has met its burden ofshowing an injury that is fairly traceable to the challenged action ofthe Bosmas.

(3) Injury will be Redressed by a Favorable Decision

The final standing requirement, — redressability — examinesthe causal connection between the alleged injury and the judicial reliefrequested. See Allen v. Wright, 468 U.S. 737, 753 n. 19 (1984). In thiscase, IRC has prayed for both injunctive relief and civil penalties. Asfor injunctive relief, a plaintiff satisfies the requirement ofredressability by "alleging a continuing violation or the imminence of afuture violation of an applicable statute or standard." SouthwestMarine, 236 F.3d at 995. Additionally, where a plaintiff complains ofharm to water quality because a defendant exceeded its permit limits, asis the case here, it seems likely that an injunction will redress thatinjury, at least in part. See Powell Duffryn, 913 F.2d at 73.Furthermore, to establish redressability, a plaintiff "need not show thatthe waterway will be returned to pristine condition." See id. As forcivil penalties, they may redress the injury suffered by a plaintiff ifthey will serve as a deterrent to any future polluting. See id.

In this case IRC alleges that the Bosmas' dairy continue to contaminatethe waterways and violate their NPDES permit and the CWA. Despite, theBosmas contention that IRC's members contribute significantly to thepollution of which they complain, an injunction against the Bosmas andtheir dairy operation will redress, at least in part, the injury of whichthe IRC complains. Additionally, the civil penalties sought by IRC willlikely deter the Bosmas and other NPDES permit violators from pollutingthe affected waters in the future. Therefore, taking the IRC'sallegations as true, the Court concludes that IRC has met its burden ofshowing that the injury of which it complains will be redressed by afavorable decision. Accordingly, IRC has standing to pursue this actionon behalf of its membership.

b. Mootness

The Bosmas also contend that IRC's claims are moot. It is well settledthat a defendant's voluntary cessation of a challenged practice does notdeprive a federal court of its right to determine the legality of thepractice. Laidlaw, 528 U.S. at 189. Accordingly, the United States SupremeCourt's "standard . . . for determining whether a case has been mooted bythe defendant's voluntary conduct is stringent: `A case might become mootif subsequent events made it absolutely clear that the allegedly wrongfulbehavior could not reasonably be expected to recur.'" Id. (quoting UnitedStates v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203(1968)). In seeking to have a case dismissed as moot, a defendant'sburden "is a heavy one." Gwaltney of Smithfield, Ltd. v. Chesapeake BayFoundation, Inc., 484 U.S. 49, 66 (1987) (quoting United States v. W.T.Grant Co., 345 U.S. 629, 633 (1953)); see also Laidlaw, 528 U.S. at 189.

The Bosmas contend that IRC's claims for civil penalties and injunctiverelief are moot because there is no ongoing violation and their dairy hascomplied with their NPDES permit since before the date the complaint wasfiled. However, there exists a presumption of future injury when adefendant has voluntarily ceased illegal activity in response tolitigation, even if the cessation occurs before a complaint is filed. SeeSteel Company v. Citizens for a Better Environment, 523 U.S. 83, 109(1998); Laidlaw at 191. Such apresumption can be used to refute the assertion of mootness by adefendant who, when accused of present or threatened injury,ceases the complained-of activity. Id.

The Bosmas contention that they have not violated the CWA or theirNPDES permit, without more, is simply not enough to render IRC's claimsmoot. While the mootness doctrine protects a defendant from a civilenforcement action under the CWA based solely on violations unconnectedto any present or future wrongdoing, "it also protects plaintiffs fromdefendants who seek to evade sanction by predictable `protestations ofrepentance and reform.'" Gwaltney, 484 U.S. at 67 (quoting United Statesv. Oregon State Medical Society, 343 U.S. 326, 333 (1952)). Defendantshave not met their heavy burden of showing that IRC's claims are moot.

c. Subject Matter Jurisdiction Under the CWA

On its face, the Complaint's allegations that the Bosmas have violatedthe Clean Water Act clearly raises a federal question. The allegationsare nevertheless inadequate if the CWA does not regulate the conduct inquestion. If the Bosma's activities on Grand View Dairy are not regulatedby the CWA, the Complaint does not raise a federal question and theaction must be dismissed for lack of subject matter jurisdiction.

IRC alleges the Bosmas are violating the CWA by discharging pollutantsfrom a point source into Butler and Walker Springs. Section 301(a) ofthe CWA provides that in the absence of a permit, "the discharge of anypollutant by any person shall be unlawful." 33 U.S.C.A. § 1311(a).The term "the discharge of a pollutant" is defined by § 502 (12) asthe "addition of any pollutant to navigable waters from a point source."33 U.S.C. § 1362 (12). Section 502(7) defines the term "navigablewaters" as "waters of the United States, including territorial seas."33 U.S.C. § 1362 (7).

The parties apparently agree that the Grand View Dairy is a "pointsource," within the meaning of the statute.3 However, the Bosmashotly contest any suggestion that the dairy is discharging a pollutantinto waters of the United States. IRC does not contend that the dairydischarges pollutants directly into Clover Creek or the Snake River, bothof which are waters of the United States. Rather, IRC alleges that Butlerand Walker Springs are themselves waters of the United States by virtueof their connection with Clover Creek.

The Ninth Circuit defines waters of the United States broadly. LeslieSalt Co. v. Froehlke 578 F.2d 742 (9th Cir. 1978). Though the SupremeCourt has recently articulated its unwillingness to read the term"navigable" entirely out of the CWA, it also made clear that waters ofthe United States include at least some waters that are not navigable inthe classical sense, such as non-navigable tributaries and streams. SeeSolid Waste Agency of Northern Cook County v. United States Army Corps ofEngineers, 531 U.S. 159, 121 S.Ct. 675, 682 (2001). The Supreme Court hasalso upheld the EPA's broad definition of this term as including almostany body of surface water that might affect interstate commerce.International Paper Co. v. Ouellette, 479 U.S. 481, 486 n. 6 (1987).Waters of the United States include waters that are tributary tonavigable waters. 40 C.F.R. § 122.2. TheCourt has thoroughly examined the record and is satisfied that Butler andWalker Springs are sufficiently connected through surface water to CloverCreek as to fall within the definition of waters of the UnitedStates.4

IRC alleges that the Grand View Dairy discharges pollutants directly,through surface water connections, into Walker Spring, and indirectly,through an underground hydrological connections between natural ponds andmanmade lagoons on the Dairy's property, into both Walker and ButlerSpring.5 Because of the Court's determination that both springs aresufficiently connected with Clover Creek and the Snake River as to beregarded as waters of the United States, the discharge of pollutants intoWalker Spring through direct surface water connections constitutes aviolation of the CWA.

The more difficult issue is whether the Grand View Dairy's allegeddischarge of pollutants into groundwater hydrologically connected toButler and Walker Springs constitutes a violation of the CWA. The courtswhich have considered the issue generally agree that waters of the UnitedStates do not include isolated, nontributory groundwater, and thatdischarges of pollutants into such groundwater are not subject to CWAregulation. The courts are split, however, on the issue of whether thedischarge of pollutants into groundwater which find their way into andaffect the waters of the United States are subject to CWA regulation.Neither the Supreme Court nor the Ninth Circuit have directly addressedthe issue. The remaining circuits are split on the issue, as are thedistrict courts within this circuit.

One view is that Congress intended to regulate the discharge of anypollutants that could affect surface waters of the United States, whetherit reaches the surface water directly or through groundwater. See U.S.Steel Corp. v. Train, 556 F.2d 822, 852 (7th Cir. 1977); Friends of SantaFe County v. LAC Minerals, Inc., 892 F. Supp. 1333, 1357 (D. New Mexico1995) (the Tenth Circuit's expansive construction of the CWA' sjurisdictional reach, "foreclose any argument that the CWA does notprotect groundwater with some connection to surface waters"); WashingtonWilderness Coalition v. HECLA Mining Co., 870 F. Supp. 983, 990 (E.D.Wa. 1994); Sierra Club v. Colorado Refining Co., 838 F. Supp. 1428, 1434(D. Colo. 1993) ("discharge of any pollutant into `navigable waters'includes such discharge which reaches `navigable waters' throughgroundwater"); McClellan Ecological Seepage Situation ("MESS") v.Weinberger, 707 F. Supp. 1182, 1196 (E.D.Cal. 1988) (Congress intended toregulate "discharges of pollutants that could affect surface waters ofthe United States"). The rationale supporting this conclusion is simpleand persuasive: "since the goal of the CWA is to protect the quality ofsurface waters, any pollutant which enters such waters, whether directlyor through groundwater, is subject to regulation by NPDES permit."Washington Wilderness Coalition, 870 F. Supp. at 990. Stated even moresimply,whether pollution is introduced by a visible, above-groundconduit or enters the surface water through the aquifer matters little tothe fish, waterfowl, and recreational users which are affected by thedegradation of our nation's rivers and streams.

On the other hand, the Court is mindful of other decisions concludingthat the CWA does not regulate the discharge of pollutants into anygroundwaters, even where it ultimately affects the surface water. SeeVillage of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962, (7thCir. 1994); Town of Norfolk v. U.S. Army Corps of Engineers, 968 F.2d 1438,1451 (1st Cir. 1992); Umatilla Water Quality Protective Assoc., Inc. v.Smith Frozen Foods, Inc., 962 F. Supp. 1312, 1318 (D.Ore. 1997); Kellyv. U.S., 618 F. Supp. 1103, 1106 (W.D.Mich. 1985). Those courts reachthis conclusion based largely upon the legislative history of the CWA.They point out that Congress, in other provisions of the CWA, clearlyincluded groundwater when they intended to do so, and that Congressconsidered "ground waters" to be a category of waters distinct from"navigable waters." Umatilla, 962 F. Supp. at 1318. They also rely uponthe legislative history of the CWA, which indicates that Congressspecifically chose not to regulate groundwater, largely because "thejurisdiction regarding groundwaters is so complex and varied from Stateto State." Id. (quoting from S. Rep. No. 414, 92d Cong., 1st Sess. 73(1971), U.S. Code Cong. & Admin. News 1972, pp. 3668, 3749, reprinted in2 Congressional Research Service of the Library of Congress, ALegislative History of the Water Pollution Control Act Amendments of1972, 93d Cong., 1st Sess., at 1491 (Comm. Print 1973)). Finally, theyattach significance to the fact that the "EPA has offered no formal orconsistent interpretation of the CWA that would subject discharges togroundwater to the NPDES permitting requirement." Id.

The Court agrees that this interpretive history establishes thatCongress, in enacting the Clean Water Act, concluded that it would notattempt the general regulation of discharges to groundwater. However,Congress's decision not to comprehensively regulate groundwater as partof the CWA, does not require the conclusion that Congress intended toexempt ground water from all regulation — particularly undercircumstances where the introduction of pollutants into the groundwateradversely affects the adjoining surface waters. In short, theinterpretive history of the CWA only supports the unremarkableproposition with which all courts agree — that the CWA does notregulate "isolated/nontributary groundwater" which has no affect onsurface water. Washington Wilderness Coalition, 870 F. Supp. at 990. Itdoes not suggest that Congress intended to exclude from regulationdischarges into hydrologically connected groundwater which adverselyaffect surface water.

For these reasons, the Court finds that the CWA extends federaljurisdiction over groundwater that is hydrologically connected to surfacewaters that are themselves waters of the United States. This does notmean, however, that the plaintiffs burden is light. As Judge Van Sickleexplained in Washington Wilderness Coalition:

Plaintiffs must still demonstrate that pollutants from a point source affect surface waters of the United States. It is not sufficient to allege groundwater pollution, and then to assert a general hydrological connection between all waters. Rather, pollutants must be traced from their source to surface waters, in order to come within the purview of the CWA.

Id. Whether IRC can make this showing remains to be seen. However, theCourt finds, for purposes of the Bosma's summary judgment motion, thatthe CWAregulates discharges from the Grand View Dairy into thegroundwater where there exists a hydrological connection with Walkerand/or Butler Springs, and such discharges can be traced from theirsource to those springs. Thus, the Court will deny the Bosma's Motion forSummary Judgment insofar as it is based on the argument that (a) the CWAdoes not cover groundwater discharges even where a hydrologicalconnection exists to Walker and/or Butler Springs, or (b) that there isno genuine issue of fact as to whether such a connection exists.

d. Ongoing Violation

The CWA citizen suit provision authorizes citizens to commence civilactions against any person alleged to be in violation of the CWA, but§ 505 of the CWA does not confer federal jurisdiction over citizensuits for "wholly past violations." See Gwaltney, 484 U.S. at 64.However, § 505 of the CWA does confer jurisdiction over citizen suitswhen the citizen-plaintiffs make a good-faith allegation of continuous orintermittent violation, i.e., a reasonable likelihood that a pastpolluter will continue to pollute in the future. See Sierra Club v. UnionOil Company of California, 853 F.2d 667, 669 (1988). The plaintiff,however, need not prove the allegations of ongoing noncompliance beforejurisdiction attaches. See id. Furthermore, § 505 of the CWA does notrequire that a defendant be in violation of the Act at the commencementof the suit; rather, it requires that a defendant be "alleged to be inviolation." Gwaltney, 484 U.S. at 64.

"[I]t is the defendant's responsibility to challenge the truthfulnessof the allegations of ongoing violations." Sierra Club, 853 F.2d at 669.A defendant must move for summary judgment and demonstrate that theallegations were a sham and raised no genuine issue of fact if thedefendant wishes to argue that the allegations are untrue. See id. Infact, after the plaintiff offers evidence to support the allegations ofongoing noncompliance, the case goes to trial if the defendant fails toconvince the court that the allegations are a sham and there are nogenuine issues of fact. See id.

In this case, IRC makes good-faith allegations regarding the Bosmas'noncompliance with the CWA and NPDES permit, and supports thoseallegations with sworn affidavits from a number of witnesses.Specifically, IRC alleges that the Bosmas have continued to dischargepollutants in violation of their NPDES permit and the CWA since the filingof the complaint. IRC also argues that the Bosmas past dischargesindicate that future discharges are likely to recur. They further contendthat the Bosmas have dumped dead animals into the Walker Spring, not asone discrete event, but on a regular basis. Finally, IRC asserts that theBosmas have polluted the Northside Canal, which runs into Clover Creek.

The Bosmas respond that there is no evidence supporting IRC's claims.However, they have not met their burden of demonstrating that the claimsare a sham and raise no genuine issue of fact. IRC has presentedsufficient evidence to show that a genuine issue of material fact existsas to whether the Bosmas were violating the CWA at the time the complaintwas filed and have established a reasonable likelihood that futurenoncompliance will recur.

2. Substantive Liability Argument

The Bosmas next argue that the undisputed material facts do notindicate that they have violated the CWA or their NPDES permit. Toestablish a violation of the CWA's NPDES requirements, a plaintiff mustprove that defendants (1) discharged, i.e., added (2) a pollutant (3) tonavigable waters (4) from (5) a point source. See Committee to SaveMokelumne v. East Bay Municipal Utility District, 13 F.3d 305, 308 (9thCir. 1993).

The Bosmas first contend that Butler and Walker Springs are not watersof the United States as defined by the CWA because they are isolated,intrastate, and non-navigable waters. However, the Court rejects thatargument for the reasons stated above.

The Bosmas also contend that they have complied with their NPDESpermit, which shields them from liability under the CWA. Compliance withan NPDES permit constitutes compliance with the CWA. 33 U.S.C. § 1342(k). However, questions of fact remain regarding whether the Bosmashave, in fact, complied with their NPDES permit.

3. Affirmative Defenses

a. Diligent Prosecution Defense

To prevent multiple punishment for the same CWA violation,633 U.S.C. § 1319 (g)(6)(A)(iii) bars a citizens suit if the EPA orthe state "has issued a final order not subject to further judicialreview and the violator has paid a penalty assessed under thissubsection, or such comparable State law." Citizens for a BetterEnvironment-California v. Union Oil Co., of California, 83 F.3d 1111,1115 (9th Cir. 1996). The Bosmas argue that IRC's claims are barred by§ 1319(g)(6)(A)(iii) because they settled these same claims byentering into a Stipulation, Agreement and Consent Order with the IdahoDepartment of Agriculture which required that they pay to a charity anamount equal to two days of milk receipts. IRC contends that thestatutory bar does not apply, because the payment was not assessed undera subsection of § 1319 or a comparable State law.7 It isundisputed that the Idaho Department of Agriculture assessed the penaltypursuant to The Idaho Dairy Pollution Prevention Initiative Memorandum ofUnderstanding ("MOU"), Title 37, chapter 4, Idaho Code, as well as IDAPA02.04.14. Thus, the precise issue at hand is whether the MOU is a"comparable state law" withing the meaning of the statute.

In order to qualify as "a comparable state law," the Ninth Circuit hasheld that the provision of state law at issue must be comparable to§ 1319(g). Section 1319(g)(4) contains provisions for public noticeand opportunity for interested persons to comment on the proposedsanction. That subsection also provides for public hearings before theissuance of an order. Even the precedent cited by the Bosmas recognizesthat a regulation or statute, to qualify as a "comparable state law,"must contain provisions for public notice and hearings. See North andSouth Rivers Watershed Ass'n v. Scituate, 949 F.2d 552, 555-56 (1st Cir.1991). Since it appears undisputed that the relevant Idaho statute lackssuch provisions, the Court finds that the diligent prosecution provisionof § 1319 does not shield the Bosmas from this citizen suit.

b. Unclean Hands Defense

The Bosmas also contend that since IRC seeks an equitable remedy in theform of injunctive relief, the equitabledoctrine of unclean hands bars its claims. The Court is unpersuaded fortwo reasons. First, while some members of IRC may be guilty of the samesort of conduct that IRC attributes to the Bosmas, IRC is bringing thisaction on behalf of its entire membership, and not just those memberswhom the Bosmas accuse of violating the CWA. Moreover, the Bosmas havecited no cases which hold that a non-profit organization is barred frombringing suit to obtain equitable relief if any of the members of thatorganization have unclean hands.

Second, even if there are grounds for applying the unclean handsdoctrine to IRC, important public policy considerations provide strongand compelling reasons to decline to do so. Courts should not apply theunclean hands doctrine if it would frustrate the purpose of a federalstatute or contravene public policy. See United States v. Martell,844 F. Supp. 454, 459 (N.D. Ind. 1994) (citing Pan-American Petroleum andTransport Co. v. United States, 273 U.S. 456, 505-506). Congress's statedpurpose in adopting the CWA was to "restore and maintain the chemical,physical, and biological integrity of the Nation's waters." Solid WasteAgency of Northern Cook County v. United States Army Corps of Engineers,531 U.S. 159, 121 S.Ct. 675, 680 (quoting 33 U.S.C. § 1251 (a)).Allowing a defendant to escape liability for conduct which violates theCWA because one or more members of a representative plaintiff has engagedin similar violations would frustrate, at the expense of the public, thepurpose of the CWA. Even if one or more members of IRC have violated theCWA, the broader public purpose requires that IRC be permitted to pursuethis claim. For these reasons, the Court declines to apply the doctrineof unclean hands in this case.

In summary, the Court concludes that: (1) it does not lack subjectmatter jurisdiction; (2) IRC has presented dispute issues of materialfact with regard to their CWA claims; and (3) the Bosmas have notestablished that they are entitled to summary judgment based upon theiraffirmative defenses. Therefore, the Court will deny the Defendants'Motion for Summary Judgment.

B. Defendants' Motion to Strike Declarations and Exhibits

In reaching its decision in this case, the Court has only consideredthose declarations and exhibits which are specifically referred to inthis decision. The Court has considered the objections to thosedeclarations and exhibits and determined that the objections are notwellfounded. The declarations are admissible and will not be stricken.Since the Court has not considered or relied upon any of the otherdeclarations or exhibits to which the Bosmas object, the Court finds thatthe balance of the Bosmas' objections are moot.

C. Defendants' Motion in Limine and to Strike the Testimony of Alan Gay

The Bosmas request that the Court strike the testimony of Alan Gay, oneof IRC's expert witnesses. Rule 702 of the Federal Rules of Evidence,which governs the admissibility of expert testimony, was recently amendedto conform to the United States Supreme Court decisions in Daubert v.Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho TireCo., Ltd. v. Carmichael, 526 U.S. 137 (1999). It now provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. The Bosmas argue that the methods Gay uses to draw hisconclusions do not satisfy the test of reliability imposed by the Rule.It is true, that the trial judge is charged with the responsibility ofmaking sure "that any and all scientific testimony or evidence is notonly relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals,Inc., 509 U.S. 579, 589 (U.S. 1993). The drafting history of the Rules,however, manifests a "liberal thrust," and their "general approach [isto] relax the traditional barriers to `opinion' testimony." Id. at 589(quoting Beech Aircraft Comp. v. Rainey, 488 U.S. 153, 169 (1988)). Thetrial judge must thus make a "preliminary assessment of whether thereasoning or methodology underlying the testimony is scientifically validand of whether that reasoning or methodology properly can be applied tothe facts in issue." Id. at 592-93. Still, "[v]igorous crossexamination, presentation of contrary evidence, and careful instructionon the burden of proof are the traditional and appropriate means ofattacking shaky but admissible evidence." Id. at 596. Kumho Tire v.Carmichael, 526 U.S. 137, 141 (U.S. 1999) applies this same approach to"testimony based on `technical' and `other specialized' knowledge."Thus, although Daubert, Kumho, and the recent amendments to Rule 702reflect a change in the way that the trial court must look at experttestimony, they do not necessarily impose a more restrictive test fordetermining when expert testimony is admissible.

IRC offers the testimony and report of Gay to show that wastewater fromthe Grand View Dairy is discharged into Faulkner Pond. where it entersthe groundwater and ultimately pollutes Butler Spring. The Bosmas contendthat Gay's testimony is inadmissible because his "water balance" studymethod is so lacking in scientific vigor that it does not meet thereliability requirements of Rule 702 or Daubert and its progeny. TheCourt disagrees.

Daubert outlines four questions which should guide a court indetermining whether the reasoning or methodology underlying experttestimony is scientifically valid: (1) can and has the method beentested; (2) has the method been subjected to peer review; (3) does themethod have a known or potential error rate; and (4) is the methodgenerally accepted in the scientific community? However, the Court mustultimately employ an independent, flexible approach in order to determinewhether Gay's methodology is scientifically valid. Daubert, 509 U.S. at594-95.

Gay's "water balance" study method consists of comparing the input ofwater into the Dairy's operation against its output and its storagecapacity. His research indicates that input exceeds output plus storage.From this, Gay concludes that the excess wastewater enters the FaulknerPond, which enters the groundwater and ultimately ends up in ButlerSpring. The Bosmas call into question Gay's calculated and assumed input,output, and storage amounts, and point to Gay's deposition for theassertion that Gay admits to these miscalculations and unwarrantedassumptions. A review of Gay's deposition does, in fact, show that Gayappears to agree that he did make some mistakes in his "water balance"study. However, he does not concede that his methodology isscientifically invalid. The inquiry under Rule 702 must focus solely onprinciples andmethodology, not on the conclusions that they generate.Daubert, 509 U.S. at 595. The Bosmas' arguments relate more to Gay'sconclusions, not his methodology. The Court has reviewed the challengeswhich the Bosmas make to Gay's methodology and concludes that they havenot provided the Court with a sufficient basis to conclude that hismethodology is so unreliable as to justify exclusion under Rule 702. Asdiscussed below, the issue may be revisited during a pre-trial Dauberthearing. However, at this time, the Court will deny the Bosmas's requestthat Gay's testimony be stricken and that he be precluded from testifyingat trial.

D. Defendants' Motion in Limine and to Strike the Testimony of John Monks

The Bosmas also ask the Court to strike the testimony of John Monks("Monks"). Without mentioning Rule 702, Daubert, Kumho Tire, or any otherrule, statute, case, or opinion in their brief, the Bosmas seem to arguethat Monks' testimony does not meet the requirements set forth in Rule702. The Court disagrees.

First, Monks asserts that Faulkner Pond, cattle pens, and other areaseast of the main lagoon contain contaminated water, that there is aconduit between these areas and the springs, and that pollutants fromGrand View reach the springs from these areas. He relies upon aphotograph of Faulkner Pond, an Idaho Department of Agriculture report,his personal observations of bedrock in the area, and elevated nitratelevels at Butler Spring to support his assertions. These are sufficientfacts and data to support his testimony.

Second, Monks also performed a "Phase I" investigation, which includeda comprehensive review of the published scientific literature describingthe geology and hydrology of the pertinent region, a review of theavailable data and reports regarding the Butler and Walker Springs, and athorough site-inspection of Grand View's facilities. Since the Bosmas donot dispute that Monks is an expert, and they do not put forth any experttestimony of their own to contradict Monks' methodology, the Court findsthat Monks' principles and methods are reliable. The Court thereforeconcludes that Monks' testimony and report are admissible under Rule702.

The Court does, however, recognize the possible need for a full Dauberthearing for the purpose of fully reviewing Gay's and Monks' testimony andreports. At such a hearing, Defense may offer its own experts to testifyabout Gay's and Monks' methodologies. Based, however, only upon thetestimony and reports, and the Bosmas' attempt to challenge thattestimony and reports without the benefit of their own experts, the Courtwill not strike Gay's or Monks' testimony and reports at this juncture ofthe proceedings. Defendants' Motion in Limine and to Strike the Testimonyof Alan Gay and Defendants' Motion in Limine and to Strike the Testimonyof John Monks will therefore be denied.

D. Plaintiff's Motion for Continuance

IRC requests that the trial date in this matter be continued becausetests conducted by the United States Geological Survey ("USGS") may showthat antibiotic and hormone contamination in the Butler and WalkerSprings are tied to discharges from the Grand View Dairy. The motion forcontinuance is moot, since the Court, at the pretrial conference in thismatter, continued the trial because counsel for both parties indicatedthey needed more time to prepare for trial. However, implicit in IRC'smotion was a request that it be allowed to reopen discovery and submitevidence and data which may be produced by the USGS when they completethe testing,which is now underway. At this point, the test resultsproduced by the USGS are ambiguous and may provide no support for IRC'sclaims. For this reason, it would be premature for the the Court to takethe extraordinary step of reopening discovery at this late date to permitthe parties to retain experts to analyze the USGS data. For that reason,the Court will not permit discovery to be reopened at this point intime. If the USGS testing does reveal compelling evidence of a connectionbetween discharges from the Grand View Dairy and pollutants discovered inButler and Walker Springs, IRC may renew its request that discovery bereopened. However, the Court will only grant such a motion if theevidence is so compelling that to deny the request would result in amiscarriage of justice.

At the Pretrial Conference in this matter, the Court requested thatcounsel provide it with their available dates over the next 6 months. TheCourt has reviewed the dates provided and determined that the trial inthis matter should be rescheduled to commence at 1:30 p.m. on December3, 2001. A further pretrial conference will be held at 8:30 a.m. onNovember 15, 2061.


Based on the foregoing and the Court being fully advised on the premises,

NOW THEREFORE IT IS HEREBY ORDERED that Defendants' Motion forSummary Judgment (Docket No. 74) shall be, and the same is hereby DENIED.

IT IS FURTHER ORDERED that Defendants' Motion to Strike Declarationsand Exhibits (Docket No. 104) shall be, and the same is hereby DENIED inpart, and deemed MOOT in part.

IT IS FURTHER ORDERED that Defendants' Motion in Limine and to Strike theTestimony of Alan Gay (Docket No. 106) is DENIED.

IT IS FURTHER ORDERED that Defendants' Motion in Limine and to Strike theTestimony of John Monks (Docket No. 108) is DENIED.

IT IS FURTHER ORDERED that Plaintiffs Motion for a Continuance of theJune 11, 2001 Trial Date (Docket No. 113) is GRANTED in part and DENIEDin part. The trial date is vacated and trial will commence on December3, 2001 at 1:30 p.m. in Boise, Idaho. A pretrial conference will be heldon November 15, 2001 at 8:30 a.m. The Plaintiffs request that discoverybe reopened is denied.

1. IRC's mission statement states as follows: Idaho Rural Council iscommitted to preserving the economic well-being of Idaho's family farmsand rural communities; to building a more sustainable society which willguarantee positive economic and social choices for present and futuregenerations; and to achieving good stewardship of humanity, land, air andwater. We endeavor to educate, organize, and empower farmers and thegeneral public to develop community and state leadership, to buildcoalitions and to employ only legal ethical means, consistent withdemocratic principles to achieve this mission.

2. The Bosmas also make a brief argument in their Reply Memorandumthat IRC does not meet the second requirement — that the interestsat stake are not germane to the organization's purpose. They contend thatIRC works to promote sustainable agriculture, to oppose corporateconcentration in our food system, and to address factory farm issues, andthat IRC is not concerned with opposing water pollution generally becausethey do not go after small farms. However, IRC need not attempt to stopevery polluter in order to show that the issue at stake here is germaneto their purpose, which includes, according to IRC's mission statement,achieving good stewardship of humanity, land, air and water.

3. The EPA classifies Concentrated Animal Feeding Operations ("CAFOs")such as Grand View as point sources for purposes of the CWA.

4. Walker Spring runs into a pond, across a pasture and then into theNorthside Canal, which runs into Clover Creek at some point downstream.Declaration of Michael Vos, Docket No. 95. Butler Spring discharges intoClover Creek, at least seasonally, by means of a head gate. Declarationof Marc D. Fink, Docket No. 97, Exhibit 4, Deposition of Daniel Butler4:6-11.

5. IRC alleges, for instance, that Grand View sprays pollutedirrigation water from a pivot directly into the Northside canal, which,as mentioned above, flows into Clover Creek. IRC also alleges that theBosmas dumped dead cows and other dairy waste directly into WalkerSpring.

6. 33 U.S.C. § 1319 (g)(6)(A)(ii) provides that a citizen suit isbarred if the EPA or state "has commenced and is diligently prosecutingan action under a State law comparable to this subsection." Citizens fora Better Environment-California v. Union Oil Co., of California,83 F.3d 1111, 1115 (9th Cir. 1996). However, neither the EPA nor theState of Idaho is currently prosecuting any enforcement actionsconcerning IRC's claims, making the provisions of this subsectioninapplicable.

7. IRC doesn't dispute that the the Bosmas' payment constituted apenalty for purposes of the statute. In fact, the consent order explicitlyrefers to the payment a "penalty."

Back to top