Pcffa v. Donald Glaser

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC COAST FEDERATION OF No. 17-17130
FISHERMEN’S ASSOCIATIONS;
CALIFORNIA SPORTFISHING D.C. No.
PROTECTION ALLIANCE; FRIENDS OF 2:11-cv-02980-
THE RIVER; SAN FRANCISCO CRAB KJM-CKD
BOAT OWNERS ASSOCIATION, INC.;
THE INSTITUTE FOR FISHERIES
RESOURCES; FELIX SMITH, OPINION
Plaintiffs-Appellants,
v.
DONALD R. GLASER, Regional
Director of the U.S. Bureau of
Reclamation; UNITED STATES
BUREAU OF RECLAMATION; SAN LUIS
& DELTA MENDOTA WATER
AUTHORITY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted June 10, 2019
San Francisco, California
Filed September 6, 2019
2 P.C.F.F.A. V. GLASER
Before: MARY M. SCHROEDER and MILAN D.
SMITH, JR., Circuit Judges, and DOUGLAS L. RAYES, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
Clean Water Act
The panel reversed the district court’s judgment in an
action alleging that the drainage system managed by the U.S.
Bureau of Reclamation and the San Luis & Delta Mendota
Water Authority discharged pollutants into surrounding
waters in violation of the Clean Water Act, 33 U.S.C.
§§ 1251–1387.
The Central Valley Project is a federal water
management project. The Grasslands Bypass Project, jointly
administered by the defendants, is a tile drainage system that
consists of a network of perforated drain laterals underlying
farmlands in California’s Central Valley that catch irrigated
water and direct it to surrounding waters.
The Clean Water Act generally requires that government
agencies obtain a National Pollutant Discharge Elimination
System permit before discharging pollutants from any point
*
The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
P.C.F.F.A. V. GLASER 3
source into navigable waters of the United States. There is
an exception to that permitting requirement “for discharges
composed entirely of return flows from irrigated
agriculture.” 33 U.S.C. § 1342(l)(1).
The panel held that the district court properly interpreted
“discharges . . . from irrigated agriculture,” as used in
§ 1342(l)(1), to mean discharges from activities related to
crop production. The panel held that the district court ought
to have begun its analysis with the statutory text, but its
reliance on legislative history to construe this portion of the
statute was not erroneous. The panel further held, however,
that the district court erred by interpreting “entirely” to mean
“majority,” and by placing the burden on plaintiffs to
demonstrate that the discharges were not covered under
§ 1342(l)(1), rather than placing the burden on defendants to
demonstrate that the discharges were covered under
§ 1342(l)(1). The panel concluded that the district court’s
erroneous interpretation of the word “entirely” was the but-
for cause of the dismissal of plaintiffs’ Vega claim
(concerning groundwater discharges from lands underlying
a solar product), and the panel therefore reversed the district
court’s dismissal of that claim. The panel further concluded
that the district court’s dismissal of plaintiffs’ other claims
was also erroneous, reversed the dismissal of those claims,
and remanded for the district court to reconsider them under
the correct interpretation of § 1342(l)(1).
The panel held that the district court erred by striking
plaintiffs’ seepage and sediment theories of liability from
plaintiffs’ motion for summary judgment because the first
amended complaint encompassed those claims.
4 P.C.F.F.A. V. GLASER
COUNSEL
Stephan C. Volker (argued), Alexis E. Krieg, Stephanie L.
Clarke, and Jamey M.B. Volker, Law Offices of Stephan C.
Volker, Berkeley, California, for Plaintiffs-Appellants.
Brian C. Toth (argued) and Martin F. McDermott,
Attorneys; Eric Grant, Deputy Assistant Attorney General;
Jeffrey H. Wood, Acting Assistant Attorney General; United
States Department of Justice, Environment & Natural
Resources Division, Washington, D.C.; Amy L.
Aufdemberge, Office of the Solicitor, Department of the
Interior, Washington, D.C., for Defendants-Appellees
Donald R. Glaser and United States Bureau of Reclamation.
Eric J. Buescher (argued), and Joseph W. Cotchett, Cotchett
Pitre & McCarthy LLP, Burlingame, California; Diane V.
Rathmann, Linneman Law LLP, Dos Palos, California; for
Defendant-Appellee San Luis & Delta Mendota Water
Authority.
OPINION
M. SMITH, Circuit Judge:
California’s Central Valley features some of the most
fertile agricultural land in the United States, but it typically
receives less rainfall than necessary to cultivate the crops
grown in the Valley. To help address this problem, the
federal government has constructed and managed several
irrigation and drainage projects.
Plaintiffs, a group of commercial fishermen,
recreationists, biologists, and conservation organizations,
sued Defendants Donald Glaser, the United States Bureau of
P.C.F.F.A. V. GLASER 5
Reclamation, and the San Luis & Delta Mendota Water
Authority, alleging that the drainage system managed by
Defendants discharges pollutants into surrounding waters, in
violation of the Clean Water Act (CWA), 33 U.S.C.
§§ 1251–1387. Plaintiffs appeal several rulings by the
district court in favor of Defendants that ultimately led to the
stipulated dismissal of Plaintiffs’ single claim remaining for
trial. We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
As “the largest federal water management project in the
United States,” the Central Valley Project (CVP) “provides
the water that is essential to [the California Central Valley’s]
unparalleled productivity.” Cent. Delta Water Agency v.
United States, 306 F.3d 938, 943 (9th Cir. 2002). Among
other functions, the CVP “transfer[s] water from the
Sacramento River to water-deficient areas in the San Joaquin
Valley and from the San Joaquin River to the southern
regions of the Central Valley.” San Luis & Delta-Mendota
Water Auth. v. Jewell, 747 F.3d 581, 594 (9th Cir. 2014).
“Any water project that brings fresh water to an
agricultural area must take the salty water remaining after
the crops have been irrigated away from the service area.”
Firebaugh Canal Co. v. United States, 203 F.3d 568, 571
(9th Cir. 2000). Otherwise, irrigating the selenium and salt-
rich soils causes pollutants to leach into groundwater. The
Grasslands Bypass Project (the Project), jointly administered
by Defendants, was created for this purpose. The Project is
“a tile drainage system that consists of a network of
perforated drain laterals underlying farmlands in
California’s Central Valley that catch irrigated water and
6 P.C.F.F.A. V. GLASER
direct it to” surrounding waters. The map below depicts the
Project’s location:
P.C.F.F.A. V. GLASER 7
The Project includes the San Luis Drain (the Drain),
labeled on the map above, which is designed to collect and
convey contaminated groundwater from lands adjacent to
and upstream of the Drain to Mud Slough. As both parties
acknowledge, the Drain discharges substantial quantities of
selenium and other pollutants into the Mud Slough, the San
Joaquin River, and the Bay-Delta Estuary.
B. Procedural Background
Plaintiffs filed their initial complaint in November 2011,
alleging that Defendants violated the CWA by discharging
pollutants into the waters of the United States without a
National Pollutant Discharge Elimination System (NPDES)
permit, in violation of 33 U.S.C. § 1311(a). After the district
court granted Defendants’ motion to dismiss with leave to
amend, Plaintiffs filed their First Amended Complaint
(FAC).
Defendants then moved to dismiss the FAC. The court
granted the motion as to all but one of Plaintiffs’ claims. It
determined that Plaintiffs had plausibly alleged facts “that,
when accepted as true, suggest [that] at least some amount
of the Project’s discharges may be unrelated to crop
production.”
The parties then filed cross-motions for summary
judgment. The court denied Plaintiffs’ motion for summary
judgment and granted in part Defendants’ motion for
summary judgment. The court held that three of Plaintiffs’
theories of liability in their motion for summary judgment—
arguments about discharges from “seepage into the [Drain]
from adjacent lands, and sediments from within the
[Drain]”—did not arise from the allegations in their FAC.
Accordingly, the court struck those three theories of liability.
The court also determined, however, that there was a
8 P.C.F.F.A. V. GLASER
genuine dispute of material fact as to whether groundwater
discharges from lands underlying a solar product violated the
CWA (the Vega Claim). It therefore denied Defendants’
motion for summary judgment as to that claim.
Plaintiffs moved to file a second amended complaint.
The court denied that motion. The court also denied
Plaintiffs’ motion to reconsider its order ruling on the cross-
motions for summary judgment. The parties then stipulated
to the dismissal of Plaintiffs’ lone remaining claim “because
the discharges from the Vega Solar Project property do not
make up a majority of discharges from the [Project].” The
district court entered judgment for Defendants.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo the district court’s grant of summary
judgment. Nat. Res. Def. Council, Inc. v. County of Los
Angeles, 725 F.3d 1194, 1203 (9th Cir. 2013). We also
review de novo “the district court’s interpretation of the
CWA and its implementing regulations.” Olympic Forrest
Coal. v. Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir.
2018).
ANALYSIS
I. The District Court’s Interpretation of § 1342(l)(1)
The CWA generally requires that government agencies
obtain an NPDES permit before discharging pollutants from
any point source into navigable waters of the United States.1
1
The CWA defines “point source” as “any discernible, confined and
discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling stock,
P.C.F.F.A. V. GLASER 9
33 U.S.C. § 1323(a). There is an exception to that permitting
requirement, however, “for discharges composed entirely of
return flows from irrigated agriculture . . . .” Id.
§ 1342(l)(1).
The parties do not disagree that the Mud Slough, the San
Joaquin River, and the Bay-Delta Estuary constitute
navigable waters of the United States. They also do not
dispute that the Drain “discharges substantial quantities of
selenium and other pollutants.” At issue then is whether the
Drain’s discharges required Defendants to obtain an NPDES
permit, or whether the discharges were exempt from the
permitting requirement pursuant to § 1342(l)(1).
Plaintiffs argue that the district court committed three
errors in its interpretation of § 1342(l)(1). First, they
contend that the district court erred by placing the burden of
proving that the Drain’s discharges were not exempt on
Plaintiffs instead of requiring that Defendants prove that the
Drain’s discharges were exempt. Second, they argue that the
court erred in interpreting what constitutes “discharges . . .
from irrigated agriculture” when it held that all discharges
from the Drain are exempted so long as they are not
generated by activities unrelated to crop production. Third,
they assert that the district court erred by interpreting the
word “entirely” as meaning most. We address each
argument in turn.
A. Burden of Proving the Statutory Exception
In its pretrial order, the district court stated that Plaintiffs
bore the burden of demonstrating that the discharges at issue
concentrated animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
10 P.C.F.F.A. V. GLASER
were not exempt from the CWA’s permitting requirement
pursuant to § 1342(l)(1). Plaintiffs argue that such an
interpretation of the statute was erroneous because the
burden was on Defendants to prove that the discharges at
issue were covered by § 1342(l)(1).
We agree. To establish a violation of the CWA, “a
plaintiff must prove that defendants (1) discharged, i.e.,
added (2) a pollutant (3) to navigable waters (4) from (5) a
point source.” Comm. to Save Mokelumne River v. E. Bay
Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir. 1993). After a
plaintiff establishes those elements, however, the defendant
carries the burden to demonstrate the applicability of a
statutory exception to the CWA. See N. Cal. River Watch v.
City of Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007).
Because § 1342(l)(1) contains an exception to the CWA’s
permitting requirement, Defendants had the burden of
establishing that the Project’s discharges were “composed
entirely of return flows from irrigated agriculture.”
B. Interpretation of “Irrigated Agriculture”
The district court construed § 1342(l)(1) as exempting
discharges that are related to crop production from the
CWA’s permitting requirement. The parties agree that, by
focusing on the statute’s legislative history ab initio, rather
than commencing its analysis with the text, the district
court’s interpretive method was flawed.
“It is well settled that ‘the starting point for
interpreting a statute is the language of the
statute itself.’” Gwaltney of Smithfield, Ltd.
v. Chesapeake Bay Found., Inc., 484 U.S. 49,
56 (1987) (quoting Consumer Prod. Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,
108 (1980)). Section 1342(l)(1) states that
P.C.F.F.A. V. GLASER 11
“[t]he Administrator shall not require a
permit under this section for discharges . . .
from irrigated agriculture.” 33 U.S.C.
§ 1342(l)(1). Here, rather than starting its
analysis with the text, the district court
focused first on the Senate Committee Report
accompanying the CWA to hold that the
relevant statutory text—“discharges . . . from
irrigated agriculture”—meant discharges that
“do not contain additional discharges from
activities unrelated to crop production.”
Although we agree that the district court ought to have
begun its analysis with the statutory text, its reliance on
legislative history to construe this portion of the statute was
not erroneous. “It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.” Davis v. Michigan Dep’t. of Treasury, 489 U.S.
803, 809 (1989). “The purpose of statutory construction is
to discern the intent of Congress in enacting a particular
statute.” Robinson v. United States, 586 F.3d 683, 686 (9th
Cir. 2009) (quoting United States v. Daas, 198 F.3d 1167,
1174 (9th Cir. 1999)).
Section 1342(l)(1) does not define “irrigated
agriculture.” In determining the plain meaning of a word,
we may consult dictionary definitions in an attempt to
capture the common contemporary understandings of a
word. See Transwestern Pipeline Co., LLC v. 17.19 Acres
of Prop. Located in Maricopa Cnty., 627 F.3d 1268, 1270
(9th Cir. 2010). The definition of agriculture—“the science
or art of cultivating the soil, harvesting crops, and raising
livestock,” Webster’s Third New International Dictionary
44 (2002)—shows that the term has a broad meaning that
12 P.C.F.F.A. V. GLASER
encompasses crop production. The “ordinary,
contemporary, and common meaning” of agriculture
likewise supports a broad interpretation of the term. United
States v. Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998).
Although the plain meaning of the statutory text
demonstrates that agriculture has a broad meaning, it does
not resolve whether the discharges at issue here are exempt
from the CWA’s permitting requirement. 2 As a result, “we
may [also] use canons of construction, legislative history,
and the statute’s overall purpose to illuminate Congress’s
intent” in enacting § 1342(l)(1). Ileto v. Glock, Inc.,
565 F.3d 1126, 1133 (9th Cir. 2009) (quoting Jonah R. v.
Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006)).
In this instance, we begin by considering the legislative
history of § 1342(l)(1). In its original form, the CWA did
not contain any exceptions to its permitting requirement. See
Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063, 1072 (9th Cir.
2011), rev’d and remanded sub nom. Decker v. Nw. Envtl.
Def. Ctr., 568 U.S. 597 (2013). Five years after its
enactment, however, Congress amended the CWA to include
an exception for discharges composed entirely of return
flows from irrigated agriculture. Id. at 1073. “Congress did
so to alleviate EPA’s burden in having to issue permits for
every agricultural point source.” Id. By passing
§ 1342(l)(1), Congress sought “to limit the exception to only
those flows which do not contain additional discharges from
activities unrelated to crop production.” S. Rep. No. 95-370,
35 (1977), as reprinted in 1977 U.S.C.C.A.N. 4326, 4360.
2
One issue disputed by the parties, for example, is whether
discharges from fallow and retired lands fall under § 1342(l)(1). The
plain meaning of the statutory text does not definitively answer that
question.
P.C.F.F.A. V. GLASER 13
This history supports the district court’s interpretation of
“irrigated agriculture” as used in § 1342(l)(1).
The statute’s legislative history also reveals that
Congress passed § 1342(l)(1) to treat equally under the
CWA’s permitting requirement farmers relying on irrigation
and those relying on rainfall. See 123 Cong. Rec. 39,210
(Dec. 15, 1977) (statement of Sen. Wallop: “This
amendment corrects what has been a discrimination against
irrigated agriculture. . . . Farmers in areas of the country
which were blessed with adequate rainfall were not subject
to permit requirements on their rainwater run-off, which in
effect . . . contained the same pollutants.”); 123 Cong. Rec.
26,702 (Aug. 4, 1977) (statement of Sen. Stafford: “This
amendment promotes equity of treatment among farmers
who depend on rainfall to irrigate their crops and those who
depend on surface irrigation which is returned to a stream in
discreet conveyances.”). Indeed, one legislator said that an
NPDES permit would not be required for “a vast irrigation
basin that collects all of the waste resident of irrigation water
in the Central Valley and places it in [the San Luis Drain]
and transport[s] it . . . [to] the San Joaquin River.” Brown,
640 F.3d at 1072. This history supports the view that
Congress intended for “irrigated agriculture,” as used in
§ 1342(l)(1), to be defined broadly and include discharges
from all activities related to crop production.
Plaintiffs argue that such an interpretation of the
statutory exception is erroneous because it would exempt
fallow and retired lands from the CWA’s permitting
requirement. That result, however, complies with our prior
case law addressing the Project. We have ordered
Defendants, in separate litigation, to provide drainage “to
lands receiving water through the San Luis Unit.”
Firebaugh Canal Co., 203 F.3d at 572. The retirement of
14 P.C.F.F.A. V. GLASER
farmlands was a component of that drainage plan.
Firebaugh Canal Water Dist. v. United States, 712 F.3d
1296, 1300 (E.D. Cal. 2013). To hold that drainage from
retired lands does not fall under the CWA’s statutory
exception for discharges from irrigated agriculture would
lead to contradictory and illogical results. Cf. United States
v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999). We decline
to require Defendants to provide a drainage plan that
includes the retirement of farmland, on the one hand, and
hold that those activities violate the CWA absent a permit,
on the other.
For these reasons, § 1342(l)(1)’s statutory text, as well
as its context, its legislative history, and our prior case law
on the Project, demonstrate that Congress intended to define
the term “irrigated agriculture” broadly. Accordingly, we
hold that the district court’s interpretation of the phrase was
accurate.
C. Interpretation of “Entirely”
We next address Plaintiffs’ contention—which
Defendants do not dispute—that the district court erred by
holding that § 1342(l)(1) exempts discharges from the
CWA’s permitting requirement unless a “majority of the
total commingled discharge” is unrelated to crop production.
They argue that such an interpretation of the statutory text
was mistaken because the text states that the exception
applies to “discharges composed entirely of return flows
from irrigated agriculture.” 33 U.S.C. § 1342(l)(1).
We agree that the district court’s majority rule
interpretation misconstrued the meaning of “entirely,” as
used in § 1342(l)(1). Although “entirely” is not defined by
the statute, we begin by considering its “ordinary,
contemporary, common meaning.” Iverson, 162 F.3d
P.C.F.F.A. V. GLASER 15
at 1022. “Entirely” is defined as “wholly, completely,
fully.” Webster’s Third New International Dictionary
758 (2002). That definition differs significantly from
“majority,” the meaning that the district court gave the term.
The district court rejected a literal interpretation of
“entirely” because it reasoned that it “would lead to an
absurd result.” We disagree. “Claims of exemption, from
the jurisdiction or permitting requirements, of the CWA’s
broad pollution prevention mandate must be narrowly
construed to achieve the purposes of the CWA.” N. Cal.
River Watch, 496 F.3d at 1001. Given the many activities
related to crop production that fall under the definition of
“irrigated agriculture,” Congress’s use of “entirely” to limit
the scope of the statutory exception thus makes perfect
sense. The text demonstrates that Congress intended for
discharges that include return flows from activities unrelated
to crop production to be excluded from the statutory
exception, thus requiring an NPDES permit for such
discharges.
D. Effect of Errors on Plaintiffs’ Claims
Having determined that the district court erred by placing
the burden of demonstrating eligibility for the exception on
Plaintiffs, rather than on Defendants, and by misinterpreting
“entirely,” as used in § 1342(l)(1), we next consider the
effect of those errors on Plaintiffs’ claims. Defendants argue
that the district court’s errors were harmless because “the
record contains no evidence of any discharge of pollutants
unrelated to agricultural flows.”
We begin with Plaintiffs’ Vega Claim. The district court
denied Defendants’ motion for summary judgment as to that
claim because it determined that “Plaintiffs [] have provided
sufficient evidence to raise an inference that discharges
16 P.C.F.F.A. V. GLASER
underneath the Vega Project originate from the solar project
itself, as opposed to [from] other nearby agricultural lands.”
Plaintiffs stipulated to the dismissal of that claim because
they were “unlikely to succeed [in demonstrating that] the
discharges from the [Vega Claim] do not make up a majority
of discharges from the [Project].” The district court’s
interpretation of the word “entirely” to mean “majority”—
which both parties now concede was erroneous—was thus
the but-for cause of the dismissal of Plaintiffs’ Vega Claim.
It is reasonable to believe that Plaintiffs would have
proceeded to trial under the correct interpretation of
§ 1342(l)(1), which requires Defendants to prove that the
discharges were composed entirely of return flows from
irrigated agriculture. We therefore reverse the district
court’s dismissal of that claim.
The district court’s dismissal of Plaintiffs’ other claims
was also erroneous. In its order ruling on the parties’ cross-
motions for summary judgment, the district court
determined that, apart from the Vega Claim, Plaintiffs had
failed to “provide any evidence” to show that discharges
stemmed from activities unrelated to crop production.
Because the burden of demonstrating the applicability of
§ 1342(l)(1) should have been on Defendants, rather than on
Plaintiffs, however, Plaintiffs were not required to present
any evidence. Instead, Defendants ought to have been
required to demonstrate that the discharges at issue were
composed entirely of return flows from irrigated agriculture.
Accordingly, the lack of evidence demonstrating that the
discharges stemmed from activities unrelated to crop
production should not have been fatal to Plaintiffs. Cf.
Gilbrook v. City of Westminster, 177 F.3d 839, 871 (9th Cir.
1999) (“Such an inference from lack of evidence would
amount to no more than speculation.”). We therefore reverse
the district court’s dismissal of Plaintiffs’ other claims and
P.C.F.F.A. V. GLASER 17
remand for the district court to reconsider them under the
correct interpretation of § 1342(l)(1).
II. The District Court’s Striking of Plaintiffs’ Claims
Plaintiffs argue that the district court also erred by
striking their theories of liability “based on discharges from
highways, residences, seepage into the [Drain] from adjacent
lands, and sediments from within the [Drain]” from
Plaintiffs’ motion for summary judgment. The court held
that those claims were not encompassed by Plaintiffs’ FAC.
“Rule 8’s liberal notice pleading standard . . . requires
that the allegations in the complaint ‘give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.’” Pickern v. Pier 1 Imports (U.S.), Inc.,
457 F.3d 963, 968 (9th Cir. 2006) (quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (2002)). “A party need not
plead specific legal theories in the complaint, so long as the
other side receives notice as to what is at issue in the case.”
Am. Timber & Trading Co. v. First Nat’l Bank of Oregon,
690 F.2d 781, 786 (9th Cir. 1982). But if a “the complaint
does not include the necessary factual allegations to state a
claim, raising such claim in a summary judgment motion is
insufficient to present the claim to the district court.” Navajo
Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir.
2008).
Here, Plaintiffs’ FAC alleged that the Drain discharged
“polluted groundwater . . . originating from parcels where no
farming occurs because, for instance, these parcels have
been fallowed or retired from agricultural use.” The theories
of liability struck by the district court argued that Defendants
violated the CWA because the Drain picked up seepage from
non-irrigated land on its way to the Mud Slough, and
18 P.C.F.F.A. V. GLASER
because the Drain discharged pollutants from seepage and
sediment within the Drain.
Although we agree with Defendants that Plaintiffs’
complaint did not specifically allege their seepage and
sediment theories of liability, we reject the contention that
Defendants had not been given fair notice of those theories.
Plaintiffs’ essential allegation was that the Drain’s
discharges violated the CWA because of where the
contaminants in the discharges originated from—“for
instance, [] parcels [that] have been fallowed or retired from
agricultural use.” Plaintiffs’ seepage and sediment claims,
which alleged that contaminants from “highways,
residences, seepage . . . and sediment” commingled with
other discharges and thereby violated the CWA, alleged that
contaminants originated from other locations, too. Those
allegations were thus encompassed by the allegations in the
FAC. Indeed, at oral argument, Defendants conceded that
they “received [Plaintiffs’] expert witness reports,” “were on
notice as to what their expert was talking about,” and “had
enough information to respond” to the seepage and sediment
theories of liability discussed in Plaintiffs’ expert witness
reports. These facts, when taken together, compel the
conclusion that Plaintiffs’ FAC provided Defendants with
fair notice of their seepage and sediment theories of liability.
Accordingly, we reverse the district court’s striking of
Plaintiffs’ seepage and sediment claims from their motion
for summary judgment. 3
3
The district court held, in the alternative, that Plaintiffs’ seepage
and sediment claims were “unsupported by evidence.” Because we hold
that the district court erred in its interpretation of § 1342(l)(1), however,
we remand Plaintiffs’ seepage and sediment claims for the district court
to determine whether they survive summary judgment under the correct
interpretation of the statutory exemption.
P.C.F.F.A. V. GLASER 19
CONCLUSION
The district court properly interpreted “discharges . . .
from irrigated agriculture,” as used in § 1342(l)(1), to mean
discharges from activities related to crop production. It
erred, however, by interpreting “entirely” to mean
“majority,” and by placing the burden on Plaintiffs to
demonstrate that the discharges were not covered under
§ 1342(l)(1), rather than placing the burden on Defendants
to demonstrate that the discharges were covered under
§ 1342(l)(1). The district court also erred by striking
Plaintiffs’ seepage and sediment theories of liability from
Plaintiffs’ motion for summary judgment because the FAC
encompassed those claims.
REVERSED and REMANDED.