Pcffa v. Donald Glaser
945 F.3d 1076
| 9th Cir. | 2019Background:
- Central Valley Project (CVP) and the Grasslands Bypass Project (including the San Luis Drain) convey agricultural drainage that discharges selenium and other pollutants into Mud Slough, the San Joaquin River, and the Bay-Delta Estuary.
- Plaintiffs (fishermen, recreationists, biologists, conservation groups) sued under the Clean Water Act, alleging Defendants discharged pollutants to navigable waters without an NPDES permit (33 U.S.C. § 1311(a)).
- The district court dismissed many theories, left one claim (the "Vega" claim alleging discharges originating under a solar project) for trial, then struck several theories (seepage, sediment, discharges from non-farmed parcels) from summary judgment and required Plaintiffs to show discharges were not exempt.
- The district court interpreted 33 U.S.C. § 1342(l)(1) to exempt discharges unless a majority of commingled discharge was unrelated to crop production (reading "entirely" as "majority") and placed burden on Plaintiffs to disprove the exemption.
- Plaintiffs stipulated to dismissal of the Vega claim (based on the court’s majority rule interpretation); judgment was entered for Defendants.
- The Ninth Circuit reversed: it held Defendants bear the burden to prove the § 1342(l)(1) exception, "entirely" means wholly (not merely a majority), and Plaintiffs’ seepage and sediment theories were within the FAC and should not have been stricken; the case is remanded.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof for § 1342(l)(1) exemption | Defendants must prove the exemption; district court wrongly placed it on Plaintiffs | Plaintiffs must show discharges are not exempt | Defendants bear burden to demonstrate discharges are composed entirely of return flows from irrigated agriculture |
| Meaning of "discharges ... from irrigated agriculture" | Broad reading to include activities related to crop production, including retired/fallow lands | Narrow reading limited to strictly active crop-production activities | Court affirmed a broad reading that covers activities related to crop production and fits statutory history and prior CVP case law |
| Meaning of "entirely" in § 1342(l)(1) | "Entirely" means wholly/completely; not satisfied if any unrelated discharges commingle | District court read "entirely" to mean a statistical majority | Reversed district court: "entirely" means wholly/fully; majority rule was erroneous |
| Striking seepage and sediment theories from FAC | FAC provided fair notice that contaminants could originate from non-agricultural sources (seepage, roads, residences, sediment) | FAC did not specifically plead those theories; summary-judgment filing was insufficient | Reversed: FAC gave fair notice; seepage and sediment theories should not have been stricken; remanded for reconsideration under correct § 1342(l)(1) interpretation |
Key Cases Cited
- Cent. Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002) (describing the Central Valley Project and its water transfers)
- Firebaugh Canal Co. v. United States, 203 F.3d 568 (9th Cir. 2000) (discussing drainage obligations and project context)
- Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305 (9th Cir. 1993) (elements of a CWA discharge claim)
- N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) (narrow construction of CWA exemptions; burden on defendant to prove exception)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (statutory interpretation begins with text)
- Transwestern Pipeline Co., LLC v. 17.19 Acres of Prop. Located in Maricopa Cnty., 627 F.3d 1268 (9th Cir. 2010) (use of dictionaries to ascertain plain meaning)
- Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011) (history of agricultural return-flow exemption in the CWA)
- Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) (Supreme Court review of CWA permitting issues)
- Gilbrook v. City of Westminster, 177 F.3d 839 (9th Cir. 1999) (lack of evidence cannot supply a favorable inference)
- Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963 (9th Cir. 2006) (Rule 8 notice-pleading standard and fair notice requirement)