Ninth Circuit affirms that water and sewer district’s underdrain does not pollute Gallatin; reverses the dismissal of claims against Boyne
By Jack Reaney ASSOCIATE EDITOR
On Nov. 21, the U.S. Court of Appeals for the Ninth Circuit filed its ruling on Cottonwood Environmental Law Center v. Ron Edwards, a federal Clean Water Act lawsuit against the Big Sky County Water and Sewer District and Edwards, district general manager.
Cottonwood had also filed suit in 2020 against Boyne Resorts, for related concerns that Big Sky Resort’s golf course irrigation may be polluting the Gallatin River.
After a court session on Oct. 4 in Seattle, the two claims received opposite rulings from a panel of three federal judges: Circuit Judges Kim McLane Wardlaw and Milan D. Smith Jr., and District Judge Kiyo A. Matsumoto.
On the former claim, the panel ruled in favor of the defendant, Edwards and BSCWSD, affirming a district court decision from April 2022.
On the latter claim, the panel ruled in favor of Cottonwood’s appeal to reverse a district court order that had dismissed Boyne based on Cottonwood’s lack of proper notice.
“[T]he panel held that Cottonwood’s letter to Boyne provided sufficient notice of Cottonwood’s indirect-discharge theory of liability,” according to a decision summary released by the court on Nov. 21. The phase of the case pertaining to Boyne may proceed.
The former decision—affirming the April 2022 ruling—is a win for Big Sky’s water and sewer district, but it didn’t come with a prize.
The ongoing case against Edwards and BSCWSD has taken a toll on district reserves, costing roughly $1.8 million in legal fees despite the district winning every court decision. Edwards pointed out that these legal challenges are not covered by insurance—the burden falls on local taxpayers.
“I’m glad it’s over because we spent three years and a considerable amount of time and money working on this lawsuit. To have some finality to it, I think, is very helpful and gives us the ability to focus on other and better things,” Edwards told EBS in an interview. He was not expecting this decision until early 2024.
In the Oct. 4 court session, the panel of judges asked questions of John Meyer, Cottonwood founder and executive director, to clarify how this case involves direct discharge from a point source, given that the underdrain pipe is not directly connected to the district’s holding ponds.
Learn the meaning of “point source” pollution from this recent column by Marne Hayes of the Gallatin River Task Force.
According to the court’s decision summary, “the District could not be liable on a direct-discharge theory because an underdrain pipe below but not connected to the District’s holding ponds did not transfer pollutants between meaningfully distinct water bodies, and thus was not a ‘point source’ of pollution.”
Background
In 2020, Cottonwood sued the district for discharging nitrogen-rich wastewater into the West Fork Gallatin River and violating the federal Clean Water Act, which “forbids ‘any addition’ of any pollutant from ‘any point source’ to ‘navigable waters’” without a permit, according to summary documents from the recent ruling. The district does not hold a discharge permit, but defends that its underdrain pipes do not constitute a point source and therefore it does not need one.
The federal case was originally tried in district court in Butte, where the jury found for the district. The court also granted leave for Cottonwood to amend its claims regarding golf course irrigation, clarifying that Boyne—and not BSCWSD—is the relevant party. The case was split into claims against Ron Edwards and the district, and claims against Boyne.
After the April 2022 decision, Boyne filed a motion to dismiss due to Cottonwood’s lack of sufficient notice of intent to sue, and Cottonwood’s lack of subject matter jurisdiction over its claim. On Nov. 3, 2022, that motion for dismissal was granted, but has now been reversed.
Cottonwood appealed both 2022 decisions, eventually bringing the two-phase case to the ninth circuit court in Seattle, where this recent decision keeps one door closed and reopens another.
