Judge: lawsuit alleging major ag company pollutes the Snake River can proceed

Though Simplot asked for the case to be dismissed, the U.S. District Court Judge David C. Nye ruled that the nonprofit had provided adequate notice to Simplot as well as sufficient information for the case to move forward.

Snake River Waterkeeper Executive Director Buck Ryan said feedlots like the one at the center of this lawsuit are allowed to discharge pollution, but they are required to have a permit to do so under the Clean Water Act. The permits, known as National Pollution Discharge Elimination System (NPDES) permits, are issued by the U.S. Environmental Protection Agency to ensure compliance with the Clean Water Act and that the entities are not releasing harmful levels of pollutants into the nation’s waterways.

But Ryan said that Simplot’s Grand View facility, a beef and dairy cattle feeding facility, and hundreds of others like it in Idaho have been allowed to operate without such permits since 2012. The lawsuit, then, is intended to “send a message that it’s unacceptable for there to be no accountability, oversight, or regulatory requirements in Idaho,” Ryan said. 

Simplot Spokesperson Josh Jordan told BoiseDev via email that the company doesn’t comment on pending cases, while noting that, “The Court’s decision does not address the ultimate issue of whether Simplot violated the Clean Water Act. It only found that the plaintiff’s notice was adequate,” and that the case will now head into the discovery phase.

Ryan said he anticipated a court date for the case to be scheduled following the discovery phase, in fall or winter of next year.

What is a feedlot?

Concentrated Animal Feeding Operations, or feedlots, are where animals — in this instance, cattle — are fed in large numbers, often ahead of being slaughtered for meat. In Idaho, many cattle start as calves on ranges where they nurse from their mothers and graze before being sent to feedlots for additional feeding prior to slaughter.

A press release from Snake River Waterkeeper about the case said Simplot’s Grand View facility can hold up to 150,000 cattle, and likely holds around 65,000 on any given day, making it one of the largest in the nation and the largest in Idaho.

With many animals in one place, such facilities produce large quantities of manure, and the facilities are generally required to have plans and infrastructure in place to avoid water used at the facility and precipitation, such as rain and snowmelt, from flowing into the property, becoming contaminated with animal waste, and then running off into waterways.

Generally, CAFOs have two main areas: production areas where animals are housed and fed, and a “land application area,” or land where the company can spread manure or water used in the feedlot’s operations for absorption and filtration by the land, according to the court decision.

Simplot’s website says that it has two cattle feedlot operations (the other is located in Burbank, Washington) which it created to “put the potato by-products generated by our food processing plants to good use.”

What does Snake River Waterkeeper allege?

The Clean Water Act says that any entity considering a lawsuit against an entity allegedly in violation of the act must submit their notice first to the alleged polluting entity, the state, and the U.S. EPA. The alleged polluting entity then has 60 days to rectify the alleged violations.

Such “citizen suits” are only allowed to be brought if alleged violations are ongoing or intermittent; they cannot be brought if the alleged violation happened exclusively in the past, the court decision said.

Snake River Waterkeeper submitted its notice in January 2023. According to the court decision, the notice outlined a number of alleged ways the facility is not in compliance with with Clean Water Act, including how the facility has not had a proper pollution discharge permit since 2012, and that it has previously told the EPA that it does not have infrastructure in place to ensure precipitation coming onto its property does not get contaminated and flow to the Snake River, according to the court decision.

The notice also contained supporting evidence, including water quality sampling conducted by Snake River Waterkeeper between 2017 and 2022 in the Snake River upstream of the facility, as close to the facility as possible without trespassing, and downstream of the facility. The court’s findings say that the water samples showed “consistently high levels of E. coli, coliform, nitrogen, and phosphorus compounds—pollutants indicative of cow manure.”

The notice also shows maps and aerial imagery, including imagery and parcel numbers of land application fields owned by the company for spreading manure and wastewater, and how they appear to lack infrastructure for properly containing runoff. Lastly, the notice names canals and drainages Snake River Waterkeeper staff believe contaminated runoff is reaching, flowing from there into the Snake River.

Simplot and the court respond

Simplot’s legal counsel argued that Snake River Waterkeeper’s notice was too vague, saying the nonprofit failed to provide adequate facts to support its claims, including where alleged violations were occurring.

Nye disagreed, finding that the notice given to the company adequately indicated where alleged violations were occurring, providing the company with sufficient information to rectify the problems.

“Although the Notice regulation does not require such specificity, (Snake River Waterkeeper’s) notice tied Simplot’s alleged violations—including failure to obtain an NPDES permit, overapplication of manure, failure to install adequate wastewater containment structures, and failure to ensure that clean water is diverted away from the feedlot—to specific waterways, and provided water quality data showing that such waterways are likely polluted by cow manure.”