Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11186 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WASHINGTON
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` NO. 2:13-CV-3017-TOR
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`ORDER ON CONSENT DECREE
`SANCTIONS
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`COMMUNITY ASSOCIATION FOR
`RESTORATION OF THE
`ENVIRONMENT, INC., a
`Washington Non-Profit Corporation,
`and CENTER FOR FOOD SAFETY,
`a Washington, D.C. Non-Profit
`Corporation,
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` Plaintiffs,
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` v.
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`GEORGE & MARGARET, LLC, a
`Washington Limited Liability
`Company, GEORGE DERUYTER &
`SON DAIRY, LLC, a Washington
`Limited Liability Company, and
`D&A DAIRY and D&A DAIRY
`LLC, a Washington Limited Liability
`Company,
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` Defendants.
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`BEFORE THE COURT is the matter of sanctions in response to the Court’s
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`prior Order Finding Non-Compliance with Consent Decree. ECF No. 256. This
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`ORDER ON CONSENT DECREE SANCTIONS ~ 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WASHINGTON
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` NO. 2:13-CV-3017-TOR
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`ORDER ON CONSENT DECREE
`SANCTIONS
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`
`
`COMMUNITY ASSOCIATION FOR
`RESTORATION OF THE
`ENVIRONMENT, INC., a
`Washington Non-Profit Corporation,
`and CENTER FOR FOOD SAFETY,
`a Washington, D.C. Non-Profit
`Corporation,
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` Plaintiffs,
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` v.
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`GEORGE & MARGARET, LLC, a
`Washington Limited Liability
`Company, GEORGE DERUYTER &
`SON DAIRY, LLC, a Washington
`Limited Liability Company, and
`D&A DAIRY and D&A DAIRY
`LLC, a Washington Limited Liability
`Company,
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` Defendants.
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`
`
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`BEFORE THE COURT is the matter of sanctions in response to the Court’s
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`prior Order Finding Non-Compliance with Consent Decree. ECF No. 256. This
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`ORDER ON CONSENT DECREE SANCTIONS ~ 1
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11187 Page 2 of 12
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`matter was heard with telephonic oral argument on July 14, 2020. Charles M.
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`Tebbutt and Daniel C. Snyder appeared on behalf of Plaintiffs. Kent Krabill,
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`Joshua D. Lang, and James S. Elliott appeared on behalf of Defendants. The Court
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`has reviewed the record and files herein, and is fully informed. For the reasons
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`discussed below, the Court finds Defendants’ non-compliance with the Consent
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`Decree warrants an order of sanctions.
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`BACKGROUND
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`This case arises out of the dairy operation practices of Defendants George &
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`Margaret LLC, George DeRuyter & Son Dairy LLC, D&A Dairy, and D&A Dairy
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`LLC (collectively, “the Dairies”) and their impact on the environmental health of
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`the surrounding community. Plaintiffs Community Association for Restoration of
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`the Environment, Inc. (“CARE”) and Center for Food Safety (“CFS”) brought this
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`suit under the citizen suit provision of the Solid Waste Disposal Act, also known as
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`the Resource Conservation and Recovery Act (“RCRA”), alleging improper
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`manure management practices constituting “open dumping” of solid waste. See
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`generally ECF No. 80.
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`On May 19, 2015, the parties entered into a Consent Decree approved by the
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`Court. ECF No. 169. On December 2, 2019, Plaintiffs filed a Motion for an Order
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`to Show Cause, alleging Defendants repeatedly violated the Consent Decree over a
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`more than four-year period. ECF No. 231. On January 15, 2020, the Court
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`ORDER ON CONSENT DECREE SANCTIONS ~ 2
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11188 Page 3 of 12
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`granted Plaintiffs’ Motion for Order to Show Cause and set a future hearing on the
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`issue of non-compliance. ECF No. 252. On April 14, 2020, the Court entered an
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`Order finding Defendants in non-compliance with the terms of the Consent Decree
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`and requesting further briefing on the issue of appropriate sanctions and dates
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`certain for full compliance. ECF No. 256.
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`DISCUSSION
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`A. Type of Sanctions
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`Having already determined that Defendants are not in compliance with the
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`Consent Decree, the question presently before the Court is what type of sanction to
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`impose for the non-compliance. “Courts have the ability to address the full range
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`of litigation abuses through their inherent powers.” F.J. Hanshaw Ent., Inc. v.
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`Emerald River Dev., Inc., 244 F.3d 1128, 1136 (9th Cir. 2001). “The finding of
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`contempt and the imposition of monetary sanctions are independent inquiries.”
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`Puget Soundkeeper All. v. Rainier Petroleum Corp., No. C14-0829JLR, 2017 WL
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`6515970, at *10 (W.D. Wash. Dec. 19, 2017). A court may impose sanctions that
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`are either civil or criminal in nature. “To distinguish civil from criminal contempt,
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`the focus of the inquiry is often ‘not [upon] the fact of punishment, but rather its
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`character and purpose.’” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d
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`770, 778 (9th Cir. 1983) (quoting Shillitani v. United States, 384 U.S. 364, 369
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`(1966)).
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`ORDER ON CONSENT DECREE SANCTIONS ~ 3
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11189 Page 4 of 12
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`“Civil contempt is characterized by the court’s desire to compel obedience to
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`a court order … or to compensate the contemnor’s adversary for the injuries which
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`result from the noncompliance.” Falstaff, 702 F.2d at 778 (internal citations
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`omitted). “A court’s power to impose coercive civil contempt depends upon the
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`ability of the contemnor to comply with the court’s coercive order.” Id. “[I]n
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`determining the amount and duration of a coercive fine, [the court] must ‘consider
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`the character and magnitude of the harm threatened by continued contumacy, and
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`the probable effectiveness of any suggested sanction in bringing about the result
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`desired.” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 516 (9th Cir. 1992)
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`(quoting United States v. United Mine Workers of America, 330 U.S. 258, 304
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`(1947)). The contemnor’s ability to become compliant with the court’s order and
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`therefore “purge” itself of conditional sanctions “is perhaps the most definitive
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`characteristic of coercive civil contempt.” Shell Offshore Inc. v. Greenpeace, Inc.,
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`815 F.3d 623, 629 (9th Cir. 2016). When a civil contempt sanction is
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`compensatory, it is awardable to the prevailing party in the litigation and generally
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`not to non-parties. Ahearn ex rel. N.L.R.B. v. Int’l Longshore & Warehouse Union,
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`Locals 21 & 4, 721 F.3d 1122, 1131 (9th Cir. 2013). “Compensatory sanctions
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`should be payable to the aggrieved party on evidence of the amount of losses.”
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`Puget Soundkeeper, 2017 WL 6515970 at *10 (citing Gen. Signal Corp. v.
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`Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986)).
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`ORDER ON CONSENT DECREE SANCTIONS ~ 4
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11190 Page 5 of 12
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`In contrast, “[t]he primary purpose of criminal contempt is to punish past
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`defiance of a court’s judicial authority, thereby vindicating the court.” Falstaff,
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`702 F.2d at 778. “The principal beneficiaries of such an order are the courts and
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`the public interest.” Id. “Criminal contempt is appropriate where the actor ‘defies
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`the public authority and willfully refuses his obedience.’” Whittaker Corp., 953
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`F.2d at 517 (quoting United Mine Workers, 330 U.S. at 303). “[W]hen a court uses
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`its inherent powers to impose sanctions that are criminal in nature, it must provide
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`the same due process protections that would be available in a criminal contempt
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`proceeding,” including the right to be advised of the charges, the right to a
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`disinterested prosecutor, proof beyond a reasonable doubt, and the right to a jury
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`trial if the fine or sentence imposed will be serious. F.J. Hanshaw, 244 F.3d at
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`1138-39.
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`B. Findings
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`1. Proposed Consent Decree Modifications
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`In response to the Court’s Order Finding Non-Compliance, Plaintiffs have
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`submitted proposed modifications to the Consent Decree terms as a proposed
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`remedy for Defendants’ non-compliance. ECF No. 261-1. Although a consent
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`decree is contractual in nature, it is also “a judicial decree that is subject to the
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`rules generally applicable to other judgments and decrees.” Rufo v. Inmates of
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`Suffolk Cty. Jail, 502 U.S. 367, 378 (1992). “[A] party may obtain relief from a
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`ORDER ON CONSENT DECREE SANCTIONS ~ 5
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11191 Page 6 of 12
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`court order when ‘it is no longer equitable that the judgment should have
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`prospective application,’ not when it is no longer convenient to live with the terms
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`of the consent decree.” Id. at 383 (quoting Fed. R. Civ. P. 60(b)(5)). “[A] party
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`seeking modification of a consent decree must establish that a significant change in
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`facts or law warrants revision of the decree and that the proposed modification is
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`suitably tailored to the changed circumstance.” Id. at 393.
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`Plaintiffs propose a series of modifications to the Consent Decree terms,
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`including requiring the more comprehensive “WET design” lagoon liners over the
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`design originally agreed to in the Consent Decree and modifying the previously
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`agreed-upon field nutrient levels. ECF No. 261 at 2-13. Defendants oppose
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`Plaintiffs’ proposals as an improper attempt to modify the Consent Decree. ECF
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`No. 273 at 5-15. The Plaintiffs point to paragraph 1 of the Consent Decree
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`allowing modification “if necessary”. ECF No. 169 at 3, ¶ 1. The Court finds that
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`Defendants’ non-compliance with the Consent Decree does not establish a
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`“significant change in facts” that would justify rewriting the Consent Decree to
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`impose more burdensome terms on Defendants than those to which the parties
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`previously agreed. Rufo, 502 U.S. at 393. Accordingly, Plaintiffs’ request to
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`modify the Consent Decree terms is denied, at this time.
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`ORDER ON CONSENT DECREE SANCTIONS ~ 6
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11192 Page 7 of 12
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`2. Compensatory and Coercive Sanctions
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`Plaintiffs request the Court award compensatory monetary sanctions in the
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`amount of $250,000, to be awarded to the Clean Drinking Water Project. ECF No.
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`261 at 13-16. Defendants oppose this request as unlawful and excessive. ECF No.
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`273 at 15-17. Compensatory sanctions are intended to compensate the prevailing
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`party for a specific injury and are generally not awardable to outside parties.
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`Ahearn, 721 F.3d at 1131; Puget Soundkeeper, 2017 WL 6515970 at *10.
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`Plaintiffs’ requested compensatory sanctions are not tied to any monetarily
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`quantifiable and specific injury suffered by Plaintiffs, and Plaintiffs’ request to
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`award sanctions to a non-party to benefit the public interest would not serve the
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`purpose of a civil sanction. Accordingly, Plaintiffs’ request for a $250,000
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`compensatory sanction is denied.
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`Instead, the Court finds it appropriate to impose coercive sanctions to
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`compel Defendants’ compliance with the Consent Decree terms to which the
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`parties have already agreed. The Court’s Order Finding Non-Compliance
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`identified five areas of Defendants’ non-compliance: (1) lagoon lining and
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`maintenance; (2) underground conveyance inspection; (3) compost area
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`management; (4) manure application and field management; and (5) records
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`disclosure. ECF No. 256 at 6-15. Defendants represent that they are presently in
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`compliance with the Consent Decree terms governing compost areas on
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`ORDER ON CONSENT DECREE SANCTIONS ~ 7
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11193 Page 8 of 12
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`Defendants’ properties. ECF No. 273 at 14-15; ECF No. 280. Plaintiffs contend
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`the compost area on the GDS property is not compliant. Plaintiffs represent that
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`this issue was briefed, but was not addressed by the Defendants or the Court in its
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`finding of contempt.
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`The Consent Decree required Defendants to complete their lagoon lining
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`obligations by December 31, 2018. ECF No. 169 at 10. Defendants were subject
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`to ongoing manure application limitations based on a tapering maximum nutrient
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`level limitation. ECF No. 169 at 17-23. And although the underground
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`conveyance inspection was not required to be completed by a certain date,
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`Defendants are not in compliance with this requirement over five years after the
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`parties’ initial agreement. ECF No. 169 at 14. Because Defendants have not been
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`in compliance with the Consent Decree for several years, the Court finds it
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`appropriate to order Defendants’ immediate or short-term compliance with the
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`Consent Decree subject to coercive monetary sanctions as detailed below.
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`3. Attorney’s Fees
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`Plaintiffs seeks attorney’s fees and costs associated with the current
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`contempt proceedings and for ongoing monitoring of Defendants’ ongoing
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`compliance. ECF No. 261 at 15-16. Defendants urge the Court to decline to
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`award fees. ECF No. 273 at 18-19. Courts have discretion to award attorney’s
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`fees and costs as a remedial measure in response to civil contempt. Perry v.
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`ORDER ON CONSENT DECREE SANCTIONS ~ 8
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11194 Page 9 of 12
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`O’Donnell, 759 F.2d 702, 704 (9th Cir. 1985). The contempt need not be willful in
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`order to justify an award of fees and costs. Id. The Court finds it appropriate to
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`award Plaintiffs’ fees and costs associated with the proceedings on contempt and
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`sanctions. Although this award need not be justified by a finding of willfulness or
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`bad faith, the Court notes that the duration of Defendants’ non-compliance and
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`Defendants’ conscious choices to prioritize other projects over its Consent Decree
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`obligations support the award.
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`ACCORDINGLY, IT IS HEREBY ORDERED:
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`1. Defendants are sanctioned as follows:
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`a. Defendants must complete six out of the 10 remaining lagoon
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`lining and maintenance obligations as described in the Consent
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`Decree by December 31, 2020 or otherwise abandon each lagoon
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`not in compliance. Lagoon abandonment means termination of its
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`use and evacuation and proper disposal of all existing manure and
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`wastewater. In the event that Defendants fail to complete their
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`lagoon lining and maintenance obligations or abandon their
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`lagoons by December 31, 2020, Defendants shall incur a $10,000
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`fine, per lagoon, per calendar month (pro rata for each day),
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`payable to the Court.
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`ORDER ON CONSENT DECREE SANCTIONS ~ 9
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`b. Defendants must complete the remaining four lagoon lining
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`and maintenance obligations as described in the Consent Decree
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`by December 31, 2021 or otherwise abandon each lagoon not in
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`compliance. Lagoon abandonment means termination of its use
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`and evacuation and proper disposal of all existing manure and
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`wastewater. In the event that Defendants fail to complete their
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`lagoon lining and maintenance obligations or abandon their
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`lagoons by December 31, 2021, Defendants shall incur a $10,000
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`fine, per lagoon, per calendar month (pro rata for each day),
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`payable to the Court.
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`c. Defendants are immediately enjoined from applying any liquid
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`or solid manure or commercial fertilizers to its fields until the
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`nutrient levels in its fields are compliant with the Consent Decree
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`limitations for the present date for both nitrates and phosphorus.
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`Once Defendants’ fields are compliant with the present-date
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`nutrient limits as specified in the Consent Decree, Defendants will
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`be permitted to resume applications of manure or commercial
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`fertilizers subject to the agronomic rate and other restrictions
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`specified in the Consent Decree. Each application of either
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`manure or commercial fertilizer in violation of this Order will
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`ORDER ON CONSENT DECREE SANCTIONS ~ 10
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`Case 2:13-cv-03017-TOR ECF No. 291 filed 07/14/20 PageID.11196 Page 11 of 12
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`result in a $5,000 fine per field for each such violation, payable to
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`the Court.
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`d. Defendants must complete the inspection and repairs to the
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`underground conveyance systems as required by the Consent
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`Decree, ECF No. 169, ¶ 28, by December 31, 2020. Failure to
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`timely comply with this Order will result in a $1,000 fine per day
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`until compliance is achieved, payable to the Court.
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`e. Defendants shall not conduct composting operations (i.e., the
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`production or storage of compost) at the D&A facility; this is not
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`to be construed as limiting the use of compost-based animal
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`bedding provided that bedding staging, storage and use locations
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`are either under roof, or on top of a paved surface with drainage to
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`a proper collection pond.
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`f. Defendants are ordered to pay Plaintiffs’ attorney’s fees and
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`costs resulting from the present proceedings on contempt and
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`sanctions, after substantiation and in a reasonable amount as
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`determined by the Court.
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`2. Within 14 days, Plaintiffs shall file its substantiation of attorney’s fees
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`and costs resulting from the present proceedings on contempt and
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`ORDER ON CONSENT DECREE SANCTIONS ~ 11
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`sanctions. The deadlines for responses and replies are governed by
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`LCivR 7.
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`3. Defendants shall timely provide records as proscribed in paragraphs 17
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`and 44 of the Consent Decree. ECF No. 169. The parties have agreed
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`that Defendants will provide all available records by the 12th day of each
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`month.
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`4. Defendants shall review and promptly comply (within 60 days) with all
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`outstanding requirements of paragraphs 34 and 35 of the Consent Decree,
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`ECF No. 169, concerning the composting at the George DeRuyter &
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`Sons facility.
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`The District Court Executive is directed to enter this Order and furnish
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`copies to counsel.
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`DATED July 14, 2020.
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`THOMAS O. RICE
`Chief United States District Judge
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`ORDER ON CONSENT DECREE SANCTIONS ~ 12
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