Concerned Area Residents for the Environment Philip Karcheski Kathleen Karcheski, Individually and as Parents and Legal Guardians of Brian Karcheski and Robyn Karcheski, Infants Lois E. Link Daniel L. Wilson William A. Fagan Betty C. Fagan Jeffrey Ferris Linda Ferris, Individually and as Parents and Legal Guardians of Chad J. Ferris, Stacey P. Ferris and Shawn W. Ferris Kirk Schroeder, Individually and as Parent and Legal Guardian of Stacy L. Schroeder, Kirk Bly and Vickie Bly v. Southview Farm and Richard H. Popp

Citations: 34 F.3d 114; 39 ERC (BNA) 1385; 1994 U.S. App. LEXIS 24248Docket: 1608

Court: Court of Appeals for the Second Circuit; September 2, 1994; Federal Appellate Court

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A citizen's suit was filed under the Clean Water Act (CWA) against Southview Farm and Richard H. Popp, concerning liquid manure spreading operations by the dairy farm in western New York. The plaintiffs, known as Concerned Area Residents for the Environment (CARE), claimed violations of the CWA and state laws related to nuisance, negligence, and trespass. The case proceeded to trial after motions to dismiss and for summary judgment were denied. The jury found in favor of the plaintiffs on five CWA violations and a trespass claim, but the District Court later granted judgment for the defendants on the CWA violations while upholding a $4,101 damages award for the trespass. The appeal focuses on the definition of "point source" under the CWA and whether the manure operations qualify as an agricultural stormwater discharge exemption. The court determined that the liquid manure spreading constituted a point source, as Southview Farm qualifies as a concentrated animal feeding operation (CAFO) and does not qualify for the agricultural exemption. The plaintiffs reside near Southview Farm, which is one of the largest dairy operations in New York, with significant livestock and land holdings.

Southview Farms operates a modern dairy farm where cows are kept in barns, only leaving for milking three times daily. Unlike traditional farms, Southview uses five manure storage lagoons, with one lagoon capable of holding six to eight million gallons of liquid manure. A separator system processes the manure, draining liquid for barn cleaning and transporting solids for further handling. Manure is applied to fields using a center pivot irrigation system, which can be adjusted for field size and sprays liquid manure at heights between 12 and 30 feet. Additionally, a hard hose traveler spreads manure in a 300-foot-wide swath. Since 1988, a six-inch aluminum piping system has allowed for the transport of liquid manure across roads without vehicles. Conventional manure spreaders are also used for smaller lagoons not connected to the separation system, with records indicating millions of gallons of manure applied to fields.

In terms of legal proceedings, plaintiffs notified Southview Farms on May 9, 1990, of their intent to sue for violations of environmental laws related to manure operations. They filed an initial complaint on January 22, 1991, followed by an amended complaint on May 31, 1991. After a three-week trial starting April 26, 1993, a jury found Southview liable for five out of eleven Clean Water Act violations. The defendants subsequently sought judgment as a matter of law, which was partially granted on October 19, 1993. The plaintiffs filed a notice of appeal on November 18, 1993. The court has jurisdiction under 28 U.S.C. Sec. 1291 (1988).

The moving party has a significant burden to succeed in a motion for judgment as a matter of law (m.o.l.) under Fed. R. Civ. P. 50(b). The court must view evidence favorably for the non-moving party and assume all reasonable jury inferences support that party. A judgment m.o.l. is only justified if there is a complete lack of evidence for the jury's verdict or overwhelming evidence favoring the movant that no reasonable juror could rule against it.

Under the Clean Water Act (CWA), discharging pollutants without a permit is unlawful, with "pollutants" including various waste materials, such as manure. A "discharge" refers to adding pollutants to navigable waters from a point source, which may include concentrated animal feeding operations but excludes certain agricultural stormwater discharges.

The central issues for review are whether the defendants discharged manure from a point source into navigable waters and if any exemptions apply. The plaintiff-appellants identified five specific CWA violations found by the jury, which the district court later overturned on the defendants' m.o.l. motion:

1. A violation on July 13, 1989, at Wyant Farm, where observers reported liquid manure flowing into a swale and drain tile leading to a stream flowing into the Genesee River.
2. Violations on July 12, 1989, and August 22, 1989, which the district court deemed based on "sheer surmise and conjecture," despite appellants arguing that strong circumstantial evidence supported the jury’s findings.
3. Violations on September 26, 1990, and April 15, 1991, where the appellants contended that the district court incorrectly dismissed jury verdicts by asserting that no reasonable juror could find the discharges were exempt as agricultural stormwater discharges.

The United States, as amicus curiae, aligns with the appellants in asserting that Southview's operations, involving over 700 cattle, constitute a Concentrated Animal Feeding Operation (CAFO) under the Clean Water Act (CWA) regulations, thereby requiring a permit for any discharges. The Act defines "point source" to include CAFOs, which the district court disputed by ruling that the presence of crops on part of the farm excluded it from this classification. The United States argues otherwise, emphasizing that crops are not grown in the feedlot where the cows are confined.

A specific violation occurred on July 13, 1989, involving Field 104 on the Wyant property, adjacent to Letchworth State Park. Manure applied by Southview collected in a swale and flowed through a pipe into a ditch, subsequently entering the park and contributing to a stream that leads to the Genesee River. Despite a jury finding a violation, the district court overturned this, reasoning that the discharge was not a point source discharge, as the manure flowed naturally and diffusely without human collection. The court concluded that the pollutants were not discharged through intentional human action but rather dispersed across the field.

Appellants assert that the liquid manure flowing from field 104 into a swale, although described as "diffuse run-off" by the district court, should be considered a discharge from a point source due to its collection and channeling. They further argue that the liquid-manure-spreading vehicles qualify as point sources under 33 U.S.C. Sec. 1362(14), which includes "containers" and "rolling stock," citing case law that supports this interpretation. Specifically, they reference past cases where vehicles such as bulldozers and dump trucks were deemed point sources under the Clean Water Act (CWA).

The court agrees with the appellants, concluding that the swale and accompanying pipe constitute a point source, emphasizing that the definition should be interpreted broadly. The court cites multiple precedents indicating that liability persists even if the defendant does not construct the means of pollutant discharge, as long as those means are likely to facilitate the discharge into navigable waters. The court notes that the liquid manure was collected and directed through the swale into a ditch leading to a stream adjacent to Southview property.

Additionally, the court concurs that the manure-spreading vehicles are point sources since they collect liquid manure and discharge it onto fields, contributing to runoff into navigable waters, aligning with established case law. References to testimonies confirm the use of these vehicles for spreading manure on field 104.

The district court mistakenly categorized the defendant's actions as activities intended to be excluded from the Act, akin to irrigation return flows or storm-water runoffs. Observations by Bly and Karcheski on July 12 and 13, 1989, indicated significant liquid manure spreading in a field, including a noted pattern and light source in the area. Bly recorded the event, while Karcheski saw tanker trucks entering the adjacent property. On August 22, 1989, both witnesses again noted manure spreading in the same field, with Bly highlighting heavy application and Karcheski confirming the presence of tankers.

The district court dismissed the jury's finding of a discharge on these dates as mere speculation, citing a lack of direct eyewitness testimony of manure leaving the Southview property. This dismissal ignored the substantial circumstantial evidence presented by the plaintiffs and misapplied the standard for a motion for judgment notwithstanding the verdict (n.o.v.). The court is obligated to view the evidence favorably for the non-moving party, allowing all reasonable inferences, and cannot weigh conflicting evidence or judge witness credibility.

The jury was justified in concluding that activities observed by Bly and Karcheski on July 13, 1991, likely resulted in Clean Water Act violations on July 12 and August 22, 1989, based on subsequent discharges of liquid manure from the same field in 1991. Although these later discharges were not specifically included in the original complaints, they provided additional circumstantial evidence supporting the violations. The court emphasized that circumstantial evidence can prove adjudicative facts, affirming that the jury's conclusions were not merely conjectural.

The district court's decision to set aside the jury's verdict for violations occurring on September 26, 1990, and April 15, 1991, was deemed erroneous. It held that no reasonable juror could find these discharges were exempt as agricultural stormwater discharges. Despite the court's instructions regarding this exemption, it concluded that agricultural pollution should not escape liability simply due to rainfall. The legislative history of the agricultural stormwater exemption, established by the Water Quality Act of 1987, clarified that while agricultural runoff is generally considered nonpoint-source pollution, the critical issue is whether the discharges were directly caused by precipitation rather than merely occurring on rainy days. The verdict was upheld because the jury had a reasonable basis to determine that the discharges on the specified dates were not the result of rain but occurred independently of it. The analysis will further consider whether these violations should be classified as "agricultural stormwater discharges" or fall under the CAFO exception.

Karcheski and Bly provided testimony regarding the discharge of manure from fields, indicating severe runoff conditions after rain, particularly on September 26, where Karcheski noted that manure was flowing extensively due to field saturation. Bly corroborated this by observing significant erosion and manure runoff. A report from the New York State Department of Environmental Conservation (D.E.C.) acknowledged heavy rain but also emphasized the fields' saturation with liquid manure, suggesting that the runoff was primarily due to over-saturation rather than solely the rain. 

For the April 15, 1991, incident, Karcheski reported substantial manure runoff from the field due to erosion and tractor activity, while Bly noted heavy manure application leading to brown water runoff observed on April 14. Photographic evidence supported the jury’s potential finding that the discharge was not rain-related. Although the D.E.C. report attributed this incident to rain, it noted heavy manure application in the fields.

The New York Farm Bureau and American Farm Bureau Federation argued as amici curiae that agricultural activities are classified as nonpoint sources under the Clean Water Act, which should exempt them from citizen enforcement suits. They highlighted that the Act, originating from the Federal Water Pollution Control Act Amendments of 1972, focuses on point source discharges and that nonpoint sources were primarily managed at the state level under Section 208. The amici emphasized that Congress chose to exempt agricultural activities from these provisions except for Concentrated Animal Feeding Operations (CAFOs).

The 1972 framework of the Federal Water Pollution Control Act remains in effect, with a 1977 revision excluding "return flows from irrigated agriculture" from the definition of point sources. This revision partially contradicts the ruling in Natural Resources Defense Counsel, Inc. v. Train, which stated that such exclusions could not be made. Legislative history clarifies Congress's intent to exempt irrigation return flows from permit requirements and to ensure their inclusion in area-wide waste treatment management plans. The term "entirely" restricts the exemption to flows without additional discharges unrelated to crop production. 

The Clean Water Act defines "point source" to include concentrated animal feeding operations (CAFOs), which are defined as animal feeding operations with specific criteria, including having over 700 mature dairy cattle. If an animal feeding operation exceeds the specified animal units, it is typically classified as a CAFO unless discharges occur solely during rare weather events. Since Southview's feedlot confines more than 700 mature dairy cattle and no claims have been made regarding rare rainfall events causing the runoff, the central issue is whether the cultivation of crops on adjacent fields, despite the cattle not being pastured there, disqualifies Southview from being classified as an animal feeding operation (AFO). The regulatory definition of an AFO specifies conditions related to animal confinement and crop sustainability. The district court ruled that Southview did not qualify as an AFO because crops were grown on adjacent fields, thus it failed to meet the criteria regarding crop growth in the normal growing season.

The district court incorrectly interpreted regulations concerning animal feeding operations (AFOs), particularly the vegetation criterion relevant to such facilities. An AFO is defined as a lot that confines animals without vegetation during the normal growing season. The definition of "feed lot" supports that the vegetation criterion applies solely to the area where animals are confined. Although Southview does not have a National Pollutant Discharge Elimination System (N.P.D.E.S.) permit, the regulations indicate that the absence of vegetation suggests a concentrated, industrialized operation, which is consistent with the characterization of Southview as a concentrated animal feeding operation (CAFO).

The Environmental Protection Agency (E.P.A.) excluded livestock holding areas with sustained vegetation from the CAFO definition, reasoning that vegetation can mitigate pollution by absorbing manure, indicating lower animal density. The court referenced Higbee v. Starr, which aligned with this interpretation, establishing that Southview's operation meets the CAFO criteria. Consequently, the court concluded that there are no factual disputes regarding Southview's status as a CAFO, classifying it as a point source under the Clean Water Act, and not as an agricultural nonpoint source.

The district court's earlier decision to exclude Southview from CAFO classification based on crop growth outside the confinement area was erroneous. The ruling was reversed, with the case remanded for further proceedings consistent with the court's findings.