Gallo Mussels and NPDES: Ninth Circuit Court, Processes and Extension's Role

1. Gallo Mussels and NPDES Ninth Circuit Court, Processes and Extension’s Role Fred. S. Conte 1 and F. Robert Studdert 2 1 Department of Animal Science, University of California Davis 2 Attorney, Inverness California (1931-2003)

2. APHETI =Association to Protect Hammersley, Eld, and Totten Inlets, Puget Sound, Washington (Plaintiff-Appellant) Taylor Resources, Inc. = Shellfish Producers(Defendant) Gallo Mussel = Mytilus galloprovincialis- Non-indigenous, species- California into Oregon- Introduced into Washington in 1980sNative Species = Mytilus trossulus

3. APHETI 1)Taylor’s mussel farms are Point Sources(for pollution discharges) 2) The non-indigenous mussels (Gallo)and associated wastes discharges from the mussel farms are pollutants 3) The mussel farms discharge pollutants into Puget Sound … & to operate in public waters covered by the Clean Water Act, the Defendant must obtain a National Pollutant Discharge Elimination System (NPDES) permit. The United States District Court for the Western District of Washington dismissed the complaint on summary judgment in 2001

4. APHETI (Plaintiff-Appellant) Successfully Petitioned the Case and Judgment to theUnited States Court of Appeals for The Ninth Circuit 1)Non-indigenous species harmful affect to the environment constitute a pollutant 2)Biological constitutions of non-indigenous species such as eggs, larvae, shell and waste products constitute a pollutant; and 3)Mussel rafts are a Concentrated Aquatic Animal Production Facility (CAAPF) which automatically require a NPDES permit

5. TAYLOR RESOURCES, INC 1) The Clean Water Act’s NPDES permit requirements did not apply to a mussel cultivation facility as it adds no materials to the nation’s waters, but results in a net reduction of materials and enhancement of water quality; 2) Mussel culture does not discharge pollutants through a discernable, confined and discrete conveyance; and 3)The suit should be dismissed because the agency with jurisdiction has determined that an NPDES permit is not required and therefore cannot be obtained

6. EXTENSION’S ROLE AND APPROACH Attorneys Representing Taylor and PCSGA Requested Extension Assistance for: • An analysis and interpretation of scientific literature used in the AFETI brief, and supporting briefs of Amici Curiae submitted by the environmental coalitions; • Provide scientific literature supporting positive attributes of shellfish culture on water quality, and chemical and nutrient cycling in the marine environment;

7. EXTENSION’S ROLE AND APPROACH 3) Provide written, science-based positions in the preparation of legal briefs to be submitted by Taylor and PCSGA to the Ninth Circuit; and 4) Participation in the Mock Court conducted by the legal representatives of Taylor and PCSGA in preparation for oral arguments to be presented to the Ninth Circuit.

8. COURT DECISION To Dismiss Clean Water Act Citizen’s SuitRejected Taylor Position  it, “… runs squarely against the plain words of the statute and would frustrate the purposes of the Clean Water Act’s empowerment of citizen suit.”

9. COURT DECISION Non-indigenous Status of GalloAccepted Status – Accepted Presence The Court recognized the non-indigenous status of Gallo mussels and that the industry brought Gallos to Puget Sound in the 1970s and 1980s.   “… no matter the route of introduction, they now reproduce naturally in Puget Sound, albeit in limited numbers, and have been observed in locations isolated from any mussel-harvesting facilities.”

10. COURT DECISION Statutory Definition of PollutantRejected APHETI’s Argument “… Congress did not intend that living shellfish and the natural chemicals and particulate biological matter emitted from them, or the occasional shells that separate from them, be considered pollutants.” The Court accepted arguments that mussel products do not significantly alter the character of Puget Sound waters, and “… instead that the mussel-harvesting operations generally purify the waters.”

11. COURT DECISION Statutory Definition of PollutantRejected APHETI’s Argument “… shells and natural byproduct of living mussels released result from natural biological processes of the mussels, not the waste product of a transforming human process.” The Court affirmed that “biological materials” that are “pollutants” under the Act are materials that are transformed by human activity based on previous legal presidencies.

12. COURT DECISION Statutory Definition of PollutantRejected APHETI’s Argument The Court held that the mussel shells, mussel feces and other mussel byproduct released from Taylor’s live mussels thus do not fall within the statutory definition and meaning of “pollutant and rejected all broader interpretations of pollutant in this case.

13. COURT DECISION Concentrated Aquatic Animal Production Facility (CAPPF) Rejected APHETI’s Argument Taylor’s facilities met some criteria of EPA regulations defining a concentrated aquatic animal production facility (CAAPF).  However, EPA excludes facilities which feed less than “[approximately 5,000 pounds]” of food during the calendar month of maximum feeding.

14. COURT DECISION Concentrated Aquatic Animal Production Facility (CAPPF) Rejected APHETI’s Argument “ … Because Taylor does not add any feed to its rafts or to the surrounding water, the facilities fall under the second exception to CAAPF classification and are not “point sources” under the Act.”

15. COURT DECISION Concentrated Aquatic Animal Production Facility (CAPPF) Rejected APHETI’s Argument The Court concluded, “… mussel byproduct and mussel shells that enter Puget Sound from the living creatures suspended on ropes attached to Taylor’s rafts are not “pollutants,”Taylor’s rafts are not “point sources,” and Taylor’s mussel harvesting on these rafts without a permit does not offend the Clean Water Act … are not “point sources” under the Act.”  

16. CONCLUSIONS The case had major importance. If lost, the potential impact would have resulted in NPDES permits being required to culture most of the shellfish farmed on the west coast and in many other areas of the nation. The Ninth Court’s decision was determined by previous case-precedence and interpretation of precedence. Law is implemented not on a scientific basis, but it is influenced by scientific opinion, especially when backed by accurate assessment of relevant peer-reviewed publications.

17. CONCLUSIONS Extension’s role in science interpretation and clarificationis of major importance to legal teams addressing legal challenges to aquaculture. It prevents the attorney from being surprised and/or blindsided by the science, and can strengthen a legal position. However, the future performance of support groups and their legal representatives that are apposed to aquaculture will likely improve.

18. CONCLUSIONS The majority of the references used by APHETI were taken directly from the Environmental Defense publication, “Murky Waters” (Goldberg and Triplett, 1997).As applied in this case, most were demonstrated to be miss-applied, or inaccurate in their interpretation.

19. REFERENCES Buck and Gordon LLD, 2002. Association to Protect Hammersley, Eld, and Totten Inlets (APETI) (Appellant) v. Taylor Resources, Inc. (Respondent): Brief of Taylor Resources, Inc. No. 00-35667. On appeal from the United States District Court for the Western District of Washington. Filed by Buck and Gordon, authored by Samuel W. Plauche' and Peter L. Buck, Attorneys at Law. pp 35. Goldberg, R. and T. Triplett. 1997. Murky Waters: Environmental Effects of Aquaculture in the US. Environmental Defense Fund Pub. pp 198. PCSGA. 2002. Association to Protect Hammersley, Eld, and Totten Inlets (APETI) (Plaintiff-Appellant), Brief of Amici Curiae in support of Plaintiff-Appellant, United States Public Interest Research Group, Washington Public Interest Research Group, Washington Environmental Council v. Taylor Resources, Inc. (Defendant-Appellee): Brief of Pacific Coast Shellfish Association, No 00-35667. On appeal from the United States District Court for the Western District of Washington. Authored and filed by F. Robert Studdert, Attorney at Law. pp 17. U.S. Appeals, Ninth Circuit, 2002. Association to Protect Hammersley, Eld, and Totten Inlets, a Washington non-profit corporation, Plaintiff-Appellant v. Taylor Resources, Inc. Defendant-Appellee. No. 00-35667, D.C. No. CV-99-05433-FDB(EM), OPINION. pp 21.