Toxic Exposure Injuries

Groundbreaking Decision for Safer Drinking Water

Judge rules that Cow Palace polluted groundwater from its application, storage & management of manure, posing possible “imminent and substantial endangerment” to the public

Judge rules that Cow Palace polluted groundwater from its application, storage & management of manure, posing possible “imminent and substantial endangerment” to the public

Yesterday, The New York Times reported on the following: Earlier this week, we received a groundbreaking decision in the first of the Yakima Valley, WA dairy cases led by Public Justice*, in which we just won on motion for summary judgment.  This is a case brought in the Eastern District of Washington on behalf of Center for Food Safety and a local community group under the Resource Conservation and Recovery Act (RCRA), seeking to find that the dairies were operating as open dumps and endangering the public health by contaminating the local water supply with nitrates.  This case is the first of its kind to seek to establish that manure created at an industrial animal operation (in this case, a mega-dairy), when mishandled, is a solid waste under RCRA.  This legal approach is particularly meaningful because RCRA offers far-reaching remedies to force the industry to clean up their practices and the contamination they caused.

Building on inspiring work by Charlie Tebbutt to develop the facts of the case, Public Justice took the lead in the motion for summary judgment briefing.  In a 111-page precedent-setting opinion, the Court found that Plaintiffs had established their case on all five claims concerning the drinking water supply, and that the only critical issue left for trial on the groundwater contamination is the remedies.  The court reserved Plaintiffs’ RCRA claims on environmental contamination of surface waters and whether the cow pens were sources of contamination for trial because Plaintiffs did not move for summary judgment on those issues (they were extremely minor claims and were left out in an effort to pair down the motion).  To summarize Plaintiffs’ five claims, the Court ruled:

  1. Plaintiffs had standing.
  2. Defendants’ manure was a solid waste under RCRA because it had no beneficial use (they created far more than they could properly use).
  3. The manure was leaking into groundwater, which is the Valley’s drinking water supply, and endangering public health through nitrate contamination.
  4. The dairy is operating in violation of RCRA’s open dumping provisions, meaning they must conform to sanitary landfill or other waste treatment standards.
  5. The corporate entities backing Cow Palace were also liable.

This is an enormous victory for the Yakima Valley community, who have been fighting for clean water for more than two decades, as well as for advocates seeking to reform industrial animal agriculture to a more sustainable place.  The Food Project already has several cases either filed or being developed to build off of this groundbreaking precedent, and this will empower countless communities whose drinking water has been poisoned by factory farms. It is also simply an historical moment for environmental law to expand RCRA in this fashion, and will help pressure the industry to operate in a more sanitary fashion, protecting not only the environment and the local community, but the animals, the workers, and consumers.

For Public Justice, this is a model case because it was brought not only by Public Justice, but in partnership with Board members. Brad Moore with Stritmatter Kessler Whelan in Seattle acted as local counsel, attending the site inspection and performed key depositions that gave us the facts we needed to win at summary judgment, and Beth Terrell with Terrell Marshall Daudt & Willie, also of Seattle also played a prominent role in the case, most recently in drafting ALL of the Daubert motions for Defendants’ numerous experts.  Both provided critical financing to make these cases possible.

Also significant: Judge Rice ruled on Plaintiffs motions to unseal the documents in the case.  The Plaintiffs have vigorously opposed Defendants’ prolific document sealing and it was rewarding to receive a strong opinion in favor of an open court, and against court secrecy. All of the documents supporting our case were unsealed.

On a more personal note, and something that brings home the import of this case, when Ms. Jessica Culpepper was at the hearing on this motion, an 83 year old woman approached her afterward.  The woman was an elder in the Yakama Tribe, and had traveled to Spokane to see the hearing and report back to the other elders.  The two spoke for some time about the case, her life, and Public Justice. She thanked the legal team for their tenacity to fight this important legal battle.  In the Yakama language, the elder spoke about how important the work was to protect their waters.  Ms. Culpepper asked her to write down how to say “thank you” in Yakama:

kw’aia-nuu-sha.

This is a major victory on the side of justice. We will continue to update you as the case progresses.

*Brad J. Moore serves as President Elect of Public Justice, the nation’s largest public interest law firm that advocates consumer rights.

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