1 | | Neutral As of: September 16, 2015 2:20 PM EDT. cmty . Ass'n for Restoration of the Env't v. Cow Palace, LLC. United States District Court for the Eastern District of Washington January 14, 2015, Decided; January 14, 2015, Filed NO: 13-CV-3016-TOR. Reporter 2015 Dist. LEXIS 4514; 80 F. Supp. 3d 1180; 96 Fed. R. Evid. Serv. (Callaghan) 483; 45 ELR 20008; 80 ERC (BNA) 1287. COMMUNITY ASSOCIATION FOR RESTORATION OF WA; Charles M Tebbutt, Daniel C Snyder, PRO HAC. THE ENVIRONMENT, INC., a Washington Non-Profit VICE, Law Offices of Charles M Tebbutt PC, Eugene, Corporation; and CENTER FOR FOOD SAFETY, INC., OR; Elisabeth A Holmes, PRO HAC VICE, Center for a Washington, Non-Profit Corporation, Plaintiffs, v. Food Safety, San Francisco, CA; Jessica L Culpepper, COW PALACE, LLC, a Washington Limited Liability PRO HAC VICE, Public Justice, Washington, DC.
2 Company, et al., Defendants. For Cow Palace LLC, a Washington [*2] Limited Liability Prior History: cmty . Ass'n for Restoration of the Env't, Company, Defendant: Debora Kathleen Kristensen, Inc. v. Cow Palace, LLC, 2013 Dist. LEXIS 87720 LEAD ATTORNEY, Givens Pursley LLP, Boise, ID;. ( Wash., June 21, 2013) Brendan Victor Monahan, Sean A Russel, Stokes Lawrence Velikanje Moore & Shore, Yakima, WA;. Core Terms Jeffrey C Fereday, Preston N Carter, PRO HAC VICE, Givens Pursley LLP, Boise, ID; Mathew Lane Harrington, Olivia E Gonzalez, Stokes Lawrence PS, Seattle, WA. Dairy, manure, nitrate, Cow, soil, lagoons, groundwater, contamination, crop, fertilizer, Defendants', solid waste, For The Dolsen Companies, a Washington Corporation, nutrient, sampling, contributing, storage, operations, Three D Properties LLC, a Washington Limited Liability levels, composting, reliability, concentrations, Company, Defendants: Ralph Howard Palumbo, LEAD.
3 Applications, fields, leaking, estimates, standees', ATTORNEY, Summit Law Group PLLC, Seattle, WA. agronomic, disposal, aquifer, sources For National Cattlemen's Beef Association, Washington Counsel: [*1] For Community Association for Cattle Feeders Association, Washington Cattlemen's Restoration of the Environment Inc, a Washington Association, American Farm Bureau Federation, Non-Profit Corporation, Plaintiff: Brad J Moore, LEAD. Amicus: Svend A Brandt-Erichsen, LEAD ATTORNEY, ATTORNEY, Stritmatter Kessler Whelan Withey Marten Law Group PLLC, Seattle, WA. Coluccio, Seattle, WA; Beth E Terrell, Blythe H Chandler, Toby James Marshall, Terrell Marshall Daudt & Willie Judges: THOMAS O. RICE, United States District PLLC, Seattle, WA; Charles M Tebbutt, Daniel C Snyder, Judge. PRO HAC VICE, Law Offices of Charles M Tebbutt PC, Eugene, OR; Elisabeth A Holmes, Paige Michelle Opinion by: THOMAS O.
4 RICE. Tomaselli, PRO HAC VICE, Center for Food Safety, San Francisco, CA; Jessica L Culpepper, PRO HAC. VICE, Public Justice, Washington, DC. Opinion For Center for Food Safety Inc, a Washington, DC ORDER RE: CROSS MOTIONS FOR SUMMARY. Non-Profit Corporation, Plaintiff: Brad J Moore, LEAD JUDGMENT. ATTORNEY, Stritmatter Kessler Whelan Withey Coluccio, Seattle, WA; George Andreas Kimbrell, LEAD BEFORE THE COURT are the following motions: ATTORNEY, Center for Food Safety, San Francisco, Defendant Cow Palace, LLC's Motion for Summary CA; Beth E Terrell, Blythe H Chandler, Toby James Judgment (ECF No. 190); Defendants The Dolsen Marshall, Terrell Marshall Daudt & Willie PLLC, Seattle, Companies' and Three D Properties' Motion for Sarah Matsumoto Page 2 of 34. 2015 Dist. LEXIS 4514, *3. Summary Judgment (ECF No. 191); Plaintiffs' Motion to Environmental Protection Agency ("EPA") exercised its Exclude Expert Testimony of Scott Stephen (ECF No.)
5 Regulatory power under the Safe Drinking Water Act and 193); Defendant [*3] Cow Palace, LLC's Daubert Motion entered an Administrative Order on Consent ("AOC"). to Exclude Testimony in Reliance on the EPA Report with Defendants to address the high levels of nitrates and to Exclude EPA Report Under Rule 403 (ECF No. found in underground drinking water. ECF No. 38-1. 200); Plaintiffs' Motion to Exclude Expert Testimony of James Maul (ECF No. 202); Plaintiffs' Motion to Exclude Presently before the Court are a variety of motions Expert Testimony of Michael Backe (ECF No. 206); which can be reduced to the following issues: (1). Defendant Cow Palace LLC's Motion to Dismiss Under whether Plaintiffs have Article III standing; (2) whether FRCP 12(b)(1) (ECF No. 209); Plaintiffs' Motion for, and certain evidence, including expert testimony, should be Memorandum in Support of, Summary Judgment (ECF limited or excluded from trial; (3) whether animal waste, No.
6 211; see ECF No. 234-1 (praecipe)); and Cow when over-applied onto soil and leaked into Palace, LLC'S Motion to Strike Undisclosed Expert groundwater, is a "solid waste" under RCRA; (4) whether Testimony (ECF No. 237). the Dairy's manure management, storage, and application practices constitute "open dumping" under These matters were heard on January 6, 2015. Charles RCRA; (5) whether the Dairy's manure management, M. Tebbutt, Elisabeth A. Holmes, Daniel Snyder, Jessica storage, and application practices may cause or L. Culpepper, and Blythe H. Chandler appeared on contribute to an imminent and substantial endangerment behalf of Plaintiffs. Debora K. Kristensen and Brendon to public health and the environment; and (6) whether V. Monahan appeared on behalf of Defendant Cow Cow Palace, LLC, Three D Properties, LLC, and The Palace.
7 Ralph H. Palumbo appeared on behalf of Dolsen Companies are all responsible parties under Defendants Three D Properties and The Dolsen RCRA. Companies. The Court has reviewed the motions and the file herein and heard from counsel, and is fully FACTS. informed. A. Cow Palace Dairy BACKGROUND. Cow Palace Dairy is located in the Lower Yakima Valley, This is a case concerning Defendants' manure in Granger, Washington. ECF Nos. 211-1 2; 181 at 14. management practices and their effect on public health The Dairy can be characterized as a "large concentrated and the environment. Cow Palace Dairy ("Dairy"), animal feeding operation" ("CAFO") as defined in located in Lower Yakima Valley, [*4] houses a large relevant state and federal laws. 40 ;. number of animals and must handle significant amounts Wash. Admin. Code 173-224-030. In 2012, Cow Palace of manure generated by its herd.
8 The Dairy manages its reported its herd size to number over 11,000, with 7,372. manure in a variety of ways, including transforming it milking cows, 897 dry cows, 243 springers, [*6] 89. into compost and selling it, temporarily storing it in breeding bulls, and 3,095 calves predominately housed several earthen impoundments, and applying it to in open lot containment pens. ECF Nos. 190-1 2;. agricultural fields as fertilizer. 211-1 24; 220-1 (COWPAL002097). The Dairy produces milk, meat, crops, and manure, ECF No. In February 2013, Plaintiffs commenced the instant 190-1 6; however, Plaintiffs assert the manure lawsuit alleging violations under the Resource "produced" at the Dairy is less of a product than the Conservation and Recovery Act ("RCRA").1 According unwanted byproduct of its primary milk operations, ECF. to Plaintiffs, Defendants' manure management practices No.
9 286-1 6. constitute open dumping of solid waste and cause an imminent and substantial danger to public health and Specifically regarding its manure, the Dairy, like other the environment because when the manure is CAFOs, generates massive amounts of manure from improperly managed and stored, as well as over-applied its operation. According to estimates, the Dairy creates, to agricultural fields, it is discarded and consequently on an annual basis, over 100 million gallons of this contributes to high levels of nitrates in underground substance that must be managed: 61,026,000 gallons drinking water. ECF No. 1. In March 2013, the of manure-contaminated water from washing the cows 1. Plaintiffs filed their Third Amended Complaint on [*5] October 6, 2014. ECF No. 180. Sarah Matsumoto Page 3 of 34. 2015 Dist. LEXIS 4514, *6. and 40,383,850 gallons of liquid manure excreted by No.
10 226-1 (COWPAL000477). Further, at low the ECF No. 226-1 (COWPAL000511). temperatures, the conversion of manure constituents to Defendants contend the Dairy's manure is a "valuable nitrate slows or stops. ECF Nos. 256-1 33, 39; see product" sold and used in a variety of ways both on the 211-1 33, 39 (noting that ammonium converts if soil Dairy's property and elsewhere. ECF No. 190-1 13. temperatures are above four degrees centigrade and The manure is gifted to third parties, allegedly to foster that the mineralization and nitrification process slows goodwill and deepen commercial relationships; when soil temperatures drop below fifty degrees transformed into compost and sold to third parties; and Fahrenheit). applied to the Dairy's fields to fertilize crops, such as Once converted, nitrate is a highly mobile element [*9]. silage corn and alfalfa, which in turn [*7] is fed to the to the extent there is sufficient water in the soil to herd.