Olympic Forest Coalition v. Coast Seafoods Company

Filing 85

ORDER denying 63 Defendant's Motion for Declaratory Relief on Penalty; denying 78 Plaintiff's Motion to Compel; signed by Judge Ronald B. Leighton.(DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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OLYMPIC FOREST COALITION, a
Washington non-profit corporation,

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Plaintiff,
v.

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CASE NO. 3:16-cv-05068-RBL
ORDER ON MOTIONS TO COMPEL
AND FOR DECLARATORY RELIEF

COAST SEAFOODS COMPANY, a
Washington corporation,

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Defendant.

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THIS MATTER is before the Court on Defendant Coast Seafoods Company’s Motion for

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Declaratory Relief on Penalty and on Plaintiff Olympic Forest Coalition’s Motion to Compel and
for Sanctions.
OFCO sued Coast for discharging chlorine and other chemical pollutants from its

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Quilcene Bay shellfish hatchery, without the required National Pollutant Discharge Elimination
System permit. While the Washington State Department of Ecology had told Coast (and similar
hatcheries) that such a permit was not required, this Court determined that a permit was required,
and the Ninth Circuit affirmed. Coast has since applied for an NDPES permit, but Ecology has
not completed that process.

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ORDER

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OFCO now seeks discovery into Coast’s finances in support of its claim for a punitive

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penalty for both prior and ongoing un-permitted discharges. Coast asks the Court to determine

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now that only a nominal penalty is appropriate, because Ecology told it that it did not need an

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NDPES permit. It argues that such a penalty would obviate the need for discovery into its

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finances.
Because Ecology’s input on the severity of the pollution and the measures needed to

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alleviate it will necessarily play a large role in the Court’s penalty analysis, both Motions are

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DENIED without prejudice.
DISCUSSION

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It is too early to determine the severity of the un-permitted discharges, and the Court

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therefore cannot and will not determine the appropriate penalty until Ecology’s review of the

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permit application is complete. The Court may also require more evidence regarding any un-

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permitted discharges that occurred after the Ninth Circuit’s decision. The Court will not decide

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Coast’s Motion for Declaratory Relief on Penalty before Ecology processes its NPSDES permit

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application, and Coast’s Motion is DENIED.

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OFCO’s request for Coast’s financial documents is similarly premature. OFCO argues it

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needs Coast’s financial documents for calculating an appropriate civil penalty and for issuing an

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injunction. But this information is only potentially relevant if the Court determines that a

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punitive penalty is warranted. That determination will await Ecology’s permit decision.
OFCO argues that it is entitled to conduct penalty-related discovery even though the

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Court has not yet determined that Coast is liable. See Cal Sportfishing Prot. All. v. Chico Scrap

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Metal Inc., 2014 U.S. Dist. LEXIS 144173, at *14. (E.D. Cal. Oct. 9, 2014). But while the Cal

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Sportfishing court allowed penalty-specific discovery before it had determined there was a

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ORDER

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violation, the state and federal agencies with the authority and expertise to actually regulate the

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defendant’s discharges had already ascertained the extent of the violations. Indeed, they had

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commenced enforcement actions based on them. The analogous agency here—Ecology—has

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done none of those things in this case. See id. at *2-3. Cal Sportfishing is not analogous or

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binding.
Despite OFCO’s curious disregard for Ecology’s input, the Court strongly disagrees that

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it should discount Ecology’s expert assessment, and it certainly will not assume Ecology’s role

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as the primary environmental regulator in this or any other case. If Ecology does not issue the

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permit before the March 2020 trial date, the solution is to change the trial date, not to try the case

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without Ecology’s input.
CONCLUSION

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For the above reasons, OFCO’s Motion to Compel and for Sanctions, and Coast’s Motion

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for Declaratory Relief on Penalty are DENIED without prejudice.

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IT IS SO ORDERED.

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Dated this 25th day of June.

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A

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Ronald B. Leighton
United States District Judge

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ORDER