Pearson

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHAEL PEARSON, JAMES SUTER, Case No. 2:24-cv-362-HL

SILVIA SUTER, and JULIA STRANGE, on

behalf of themselves and all others similarly OPINION AND ORDER

situated,

Plaintiffs,

v.

PORT OF MORROW; LAMB WESTON

HOLDINGS, INC; MADISON

RANCHES, INC; THREEMILE CANYON

FARMS, LLC; and BEEF NORTHWEST

FEEDERS, LLC,

Defendants.

Robert F. Dwyer, III, BLIVEN LAW FIRM PC, 202 North Main Street, Suite 1, Boardman, OR

97818; Michael A. Bliven, BLIVEN LAW FIRM PC, 704 South Main, Kalispell, MT 59901; Steve

W. Berman and Meredith S. Simons, HAGENS BERMAN SOBOL SHAPIRO LLP, 1301 Second

Avenue, Suite 2000, Seattle, WA 98134; Abigail D. Pershing, HAGENS BERMAN SOBOL SHAPIRO

LLP, 301 North Lake Avenue, Suite 920, Pasadena, CA 91101; and John Heenan, HEENAN &

COOK PLLC, 1631 Zimmerman Trail, Billings, MT 59102. Of Attorneys for Plaintiffs.

Amy Edwards, Misha Isaak, Ariel Stavitsky, and Jacob C. Goldberg, STOEL RIVES LLP, 706 SW

Ninth Avenue, Suite 3000, Portland, OR 97205. Of Attorneys for Defendants Port of Morrow

and Threemile Canyon Farms, LLC.

Bruno J. Jagelski, YTURRI ROSE LLP, 89 SW Third Avenue, PO Box S, Ontario, OR 97914; and

Amanda L. Groves and Jeff Wilkerson, WINSTON & STRAWN LLP, 333 South Grand Avenue,

38th Floor, Los Angeles, CA 90071. Of Attorneys for Defendant Lamb Weston Holdings, Inc.

Jennifer L. Gates, PEARL LEGAL GROUP PC, 529 SW Third Avenue, Suite 600, Portland,

OR 97204; Jeffrey C. Misley and Steven F. Cade, SUSSMAN SHANK LLP, 1000 SW Broadway,

Suite 1400, Portland, OR 97205; and Kyle V. Miller and James H. Bolin, BUTLER SNOW LLP,

1020 Highland Colony Parkway, Suite 1400, Ridgeland, MS 39157. Of Attorneys for Defendant

Madison Ranches, Inc.

Kevin H. Kono, DAVIS WRIGHT TREMAINE LLP, 560 SW Tenth Avenue, Suite 700, Portland, OR

97205; and David Ubaldi and M. Scott Broadwell, DAVIS WRIGHT TREMAINE LLP, 929 108th

Avenue NE, Bellevue, WA 98004. Of Attorneys for Defendant Beef Northwest Feeders, LLC.

Michael H. Simon, District Judge.

Plaintiffs in this putative class action, on behalf of residents of Oregon’s Lower Umatilla

Basin, have sued: (1) the Port of Morrow (“the Port”), which operates an industrial wastewater

treatment and disposal system in Morrow County; (2) Lamb Weston Holdings, Inc. (“Lamb

Weston”), which both owns approximately 1,180 acres of farmland used to grow and process

potatoes and operates an industrial wastewater treatment and disposal system, all in Umatilla

County; (3) Madison Ranches, Inc. (“Madison”), which owns approximately 21,300 acres of

farmland in Umatilla and Morrow Counties used to grow and process several agricultural

products; (4) Threemile Canyon Farms, LLC (“Threemile”), which owns approximately 88,000

acres in Morrow County, devoted in part to range land and other open spaces and in part to

irrigated farmland used to grow and process several agricultural products, and maintains a

concentrated animal feeding operation (“CAFO”) in Oregon; and (5) Beef Northwest Feeders,

LLC (“BNW”), which maintains a CAFO in Oregon.1 In this Opinion and Order, the Court refers

to the Port and Lamb Weston collectively as the “Wastewater Defendants”; to Lamb Weston,

1 Michael Pearson, a named Plaintiff in this action, and three other persons, who are not

parties in this lawsuit but who are represented by many of the same counsel who represent

Plaintiffs in this matter, recently filed a related putative class action against Portland General

Electric Co. and Columbia River Processing, LLC, alleging many of the same claims that are at

issue here. See Pearson, et al. v. Portland General Electric Co., et al., Case No. 2:25-cv-2249-

HL (D. Or.).

Madison, and Threemile collectively as the “Farm Defendants”; and to Threemile and BNW

collectively as the “CAFO Defendants.”

In their First Amended Complaint (“FAC”), Plaintiffs assert a federal claim under the

Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B), and several

Oregon state claims alleging negligence, negligence per se, trespass, private nuisance, public

nuisance, and inverse condemnation. ECF 17. Among other things, Plaintiffs seek declaratory,

injunctive, and compensatory relief to address alleged nitrate contamination in their drinking

water. Defendants have moved to dismiss this lawsuit under Rules 8, 12(b)(1), and 12(b)(6) of

the Federal Rules of Civil Procedure, with related motions requesting judicial notice. On

February 24, 2025, U.S. Magistrate Judge Andrew Hallman issued Findings and

Recommendations (“F&R”) in this case. ECF 98. Judge Hallman recommends that the Court

grant Defendants’ motions for judicial notice (ECF 52, 53, 58, 82, and 84), grant in part

Defendants’ motions under Rule 12(b)(6) (ECF 51, 54, 56, and 59), and deny Defendants’

motions under Rules 8 and 12(b)(1). All Defendants filed objections to the F&R, and Plaintiffs

responded. The Court has reviewed de novo all matters to which Defendants have objected and

has reviewed everything else for clear error. As explained below, the Court adopts in part and

rejects in part Judge Hallman’s recommendations and grants in part and denies in part

Defendants’ motions.

STANDARDS

Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.

§ 636(b)(1). If a party objects to a magistrate judge’s findings and recommendations, “the court

shall make a de novo determination of those portions of the report or specified proposed findings

or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3). A “general”

objection, however, does not meet the “specific written objection[]” requirement of Rule 72(b) of

the Federal Rules of Civil Procedure. See, e.g., Velez-Padro v. Thermo King de Puerto Rico,

Inc., 465 F.3d 31, 32 (1st Cir. 2006) (“Conclusory objections that do not direct the reviewing

court to the issues in controversy do not comply with Rule 72(b)”).

For those portions of a magistrate judge’s findings and recommendations to which neither

party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474

U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to

require a district judge to review a magistrate’s report to which no objections are filed.”); United

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court

must review de novo magistrate judge’s findings and recommendations if objection is made, “but

not otherwise”). Although in the absence of any objection no review is required, the Act “does

not preclude further review by the district judge[] sua sponte . . . under a de novo or any other

standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Rule 72(b)

recommend that “[w]hen no timely objection is filed,” the Court review a magistrate judge’s

findings and recommendations for “clear error on the face of the record.”

BACKGROUND2

A. Nitrate Contamination in the Lower Umatilla Basin

Oregon’s Morrow and Umatilla Counties sit along the Columbia River just south of the

Oregon-Washington border. FAC (ECF 17) ¶¶ 1, 3 & fig. 1. Groundwater in the Lower Umatilla

Basin, which supplies water to the region’s residents, has been heavily polluted with nitrates

since the mid-1990s. Id. ¶¶ 46-47. Nitrate-contaminated water can cause many health issues. Id.

2 In resolving the pending motions, the Court accepts as true all well-pleaded allegations

in the FAC.

¶ 43. For example, it can cause birth defects and Blue Baby Syndrome. Id. ¶¶ 43, 44. If ingested

by a pregnant woman, excess nitrates can cause reproductive complications, like spontaneous

miscarriage. Id. ¶ 44. Nitrates are also linked to cancer, kidney and spleen disorders, and

respiratory diseases. Id. High nitrate doses also can prevent red blood cells from carrying enough

oxygen throughout the body, leaving individuals more susceptible to asphyxia. Id. ¶ 43. For

these reasons, the United States Environmental Protection Agency (“EPA”) has declared water

unsafe for human consumption when it contains a nitrate concentration of 10 mg/L or greater. Id.

¶ 42. Relatedly, the Oregon Department of Environmental Quality (“DEQ”) has designated an

area as a Groundwater Management Area (“GMA”) if water there reaches a nitrate concentration

of 7 mg/L or greater. Id.

The hydrogeologic conditions in the Lower Umatilla Basin make the area highly

susceptible to nitrate contamination. See id. ¶¶ 64-65. The soil is coarse-grained and highly

permeable, which facilitates rapid percolation of nitrates from the surface to the water table. Id.

¶ 64. In addition, farming exacerbates these hydrogeologic conditions. See id. For example,

although the area receives relatively little rainfall, irrigation from farming increases soil moisture

content, thereby promoting rapid water movement and nitrate leaching. Id. With these

environmental qualities, 88 percent of the Lower Umatilla Basin has a high or moderately high

nitrate leaching potential under irrigated conditions. Id. fig. 4. The Oregon DEQ also has noted

the vulnerability to contamination of the shallow aquifer located there. Id. ¶ 65.

In the mid-1990s, nearly 30 percent of groundwater samples from monitoring wells in the

Lower Umatilla Basin showed nitrate levels that exceeded Oregon’s GMA threshold of 7 mg/L,

and 23 percent showed levels that exceeded the EPA’s safe consumption limit of 10 mg/L. Id.

¶ 47. In 2001, DEQ established the Lower Umatilla Basin Groundwater Management Area (the

“LUBGWMA”) and empaneled a committee to track and address the nitrate contamination found

there. Id. ¶¶ 48-50. In 2003, the committee tested 135 monitoring wells for nitrates and found

that 58 percent tested above 7 mg/L and 37 percent exceeded 10 mg/L. Id. ¶ 49. The committee

also compared its findings to prior testing and learned that of the 135 wells the committee tested

in 2003, 125 had been previously tested in 1992, and 82 had higher nitrate contamination

in 2003. Id. Testing in 2015 and 2016 further show that nitrate contamination in the area is

worsening. Id. ¶ 50. The committee found that more than 40 percent of private domestic wells

and nearly 50 percent of monitoring wells tested by the committee contained nitrate levels

exceeding the safe drinking water standard. See id.

On January 10, 2022, state and local officials encouraged Morrow and Umatilla County

residents who rely on private wells to have their wells tested for nitrates. Id. ¶ 51. By April 5,

2024, about half the residential wells in the LUBGWMA had been tested. Id. ¶ 52.

Approximately 18 percent of the wells tested in Umatilla County and 30 percent of the wells

tested in Morrow County (more than 450 residential wells in total) have nitrate contamination

above the EPA’s 10 mg/L safe consumption threshold. Id. At the approximately 450 homes with

nitrate levels exceeding safe consumption levels, the State of Oregon has either installed

filtration systems or is providing the household with bottled water. Id. ¶ 53. Public water systems

also have been affected, and many public water systems in Morrow and Umatilla Counties have

tested above the 10 mg/L threshold at least once. Id. ¶¶ 54-58, tbls. 1 and 2, fig. 3.

B. Defendants’ Contributions to Nitrate Pollution

The DEQ attributes nearly 70 percent of the LUBGWMA’s nitrate contamination to

irrigated farmland. Id. ¶ 60.3 As noted, the Farm Defendants (Lamb Weston, Madison, and

Threemile) together control nearly 107,000 acres of irrigated agricultural land in Umatilla and

Morrow Counties. Id. ¶¶ 5, 60. Lamb Weston owns approximately 1,180 acres in Umatilla

County that it uses to grow and process potatoes. Id. ¶ 35. Madison owns approximately 21,300

acres in Umatilla and Morrow Counties that it uses to grow and process onion, corn, and other

agricultural products. Id. ¶ 36. Threemile owns 39,500 acres in Morrow County that it uses to

grow and process alfalfa, corn, onions, and other produce. Id. ¶ 37. The Farm Defendants all

apply nitrogen fertilizers to their crops. Id. ¶ 61. But crops can only intake so much nitrogen, and

any nitrogen applied beyond the “agronomic rate” (the amount of nitrogen that crops can

recover) leaches into the surrounding soil. Id.

The Farm Defendants regularly and intentionally apply nitrogen fertilizer to their crops

above the agronomic rate to ensure maximized yield and profit potential, knowing that the extra

nitrogen will leach and convert to nitrates. Id. ¶¶ 61-62. Applying fertilizer beyond the

agronomic rate is a regular practice in the industry, because the extra fertilizer can provide a key

boost of nutrients during “rare-optimal” growing conditions or create an extra nitrogen buffer in

case growing conditions turn sub-optimal. Id. The DEQ estimates that 10 percent of nitrogen that

farms apply to their crops leaches into the groundwater. Id. ¶ 62. Together, the Farm Defendants

apply nearly 23 million pounds of nitrogen to fields in the LUBGWMA every year. Id. ¶ 63.

3 Farmers contribute to nitrate contamination by using fertilizer containing nitrogen,

wastewater containing nitrogen, and nitrogen-rich manure on their farmland. See id. at ¶¶ 60-65,

67, 69-73.

CAFOs are also responsible for nitrate contamination in the LUBGWMA. Id. ¶ 66.

CAFOs within the LUBGWMA house more than 148,000 animals in dairies and feedlots that

excrete more than 9,000 tons of nitrogen per year. Id. To dispose of animal waste, which itself is

rich in nitrogen, CAFOs typically use “lagoons” or other storage facilities that are designed to

leak into the surrounding environment, even when properly constructed. Id. ¶ 67. The DEQ has

found the greatest increases in nitrate contamination on lands subjected to CAFO manure land

applications. Id. ¶ 68. As noted, the CAFO Defendants (Threemile and BNW) each maintain

CAFOs. Id. ¶¶ 37, 38. Further, BNW has an active CAFO permit issued by the Oregon

Department of Agriculture. Id. ¶ 38.

Finally, wastewater processing also contributes to, and does not adequately abate, nitrate

pollution in the LUBGWMA. As noted, the Port operates an industrial wastewater treatment and

disposal system in Morrow County. Id. ¶ 34. Lamb Weston operates an industrial wastewater

treatment and disposal system in Umatilla County. Id. ¶ 35. The Wastewater Defendants (the

Port and Lamb Weston) each contract with local food processors to collect and dispose of

nitrogen-heavy wastewater, which they pump and transport to the Farm Defendants to be sprayed

on fields. Id. ¶ 69.

The Wastewater Defendants transport wastewater to farms using large pipes. Id. ¶ 70.

They pump this water to the Farm Defendants year-round, including during the winter, when

most fields are fallow, and crops do not need or benefit from nitrogen. Id. ¶ 71. The Wastewater

Defendants have not installed adequate “digesters” or other technology to process the wastewater

to reduce nitrogen, nor have they paid for water filtration systems or provided any such systems

to public entities affected by the nitrate pollution. Id. ¶ 72. To store wastewater and other

nitrogen effluent, the Wastewater Defendants also use “lagoons” or storage ponds. See id. ¶¶ 81,

91, 93 (Port of Morrow), 76 (Lamb Weston).

Permits cap the total amount of nitrogen-heavy wastewater that the Wastewater

Defendants may discharge onto nearby farmland. Id. ¶¶ 74-76. The Wastewater Defendants,

however, routinely violated these limits and permits,4 with the Port incurring more than $2

million in fines from the DEQ. Id. ¶¶ 77-90. The Port’s violations result from dumping in excess

of its permitted limits and improperly discarding wastewater through leaks in several wastewater

pipelines. See id. The Port also has stated publicly that it will continue to apply wastewater to

farmland during the winter because “there is no alternative short of closing processing plants,”

and DEQ has stated that it “expects the port will commit more violations.” Id. ¶ 92.

C. Plaintiffs

Plaintiffs are residents of the LUBGWMA. See id. ¶¶ 12-33. Plaintiff Michael Pearson

owns a home in Morrow County with a private well that he and his family rely on for drinking

and bathing. Id. ¶¶ 12-13. Pearson’s private well draws from the Umatilla Basin. Id. ¶ 13. In

June 2022, Pearson learned that the Morrow County Commission declared a local state of

emergency over groundwater nitrate pollution. Id. ¶ 14. Oregon Rural Action performed a test of

Pearson’s well at his request, and the test results showed nitrate levels of about 47 mg/L, which

is more than four times the EPA safe-consumption threshold. Id. ¶ 15. Morrow County paid for

Pearson to install a reverse osmosis system in his well, but the filtration system only brought

Pearson’s water down to a nitrate concentration of about 16 mg/L. Id. ¶¶ 16-17. Pearson and his

4 Lamb Weston allegedly violated its permit at least 90 times since 2015. FAC ¶ 77. The

Port has allegedly violated its permit 40 times from 2007 and 2011, 158 times from 2012

to 2014, 1,532 times from 2018 to 2021, 258 times from 2021 to 2022, 748 times from 2022

to 2023, 395 times from 2023 to January 2024, and 486 times in February 2024 alone. Id. ¶¶ 78,

79, 82, 85, 91.

family rely on bottled water for drinking and cooking. Id. ¶ 18. Pearson and his wife use between

six and eight five-gallon water bottles for those essential activities every week. Id. Pearson

regularly calls the delivery company because it has not brought water as scheduled or has not

brought enough water to satisfy his family’s regular household use. Id. Morrow County

purchases this bottled water for Pearson and coordinates its delivery.

Plaintiffs James and Silvia Suter also are homeowners in Morrow County who rely on a

private well for their household water. Id. ¶¶ 20-21. Unlike Pearson’s well, however, the Suters’

well is not connected to any public water system. Id. ¶¶ 13, 21. In 1999, water in the Suters’ well

had a nitrate contamination level of less than 7 mg/L. Id. ¶ 22. “After reports surfaced of water

contamination in the area,” the Suters again tested their well water, which revealed nitrate

concentrations of nearly 38 mg/L. Id. ¶ 23. The Suters could drill a 300-foot deep well to access

clean drinking water, but drilling such a well would cost approximately $24,000. Id. ¶ 24. The

Suters currently rely on bottled water for drinking and cooking, using between three and four

five-gallon bottles every week. Id. ¶ 25.

Plaintiff Jeannie Strange rents a home in Umatilla County, to which water is supplied by

the Hermiston Water Department. Id. ¶¶ 26-27. In November 2022, Strange’s pet fish died the

day after she changed the water in their tank using tap water. Id. ¶ 28. The day that her fish died,

Strange used an at-home test kit to test her tap water for contaminants. Id. ¶ 29. The kit’s nitrate

test water turned bright red, indicating a dangerously high level of nitrates in the sample. Id.

Strange, her husband, and the only water that their three children now drink is bottled water. Id.

¶¶ 30-31. Strange and her family use at least 12 five-gallon jugs of water and at least a case of

bottled water every month. Id. ¶ 31. The water costs Strange at least $100 per month. Id. ¶ 32.

Pearson, the Suters, and Strange allege three classes under Rule 23. Id. ¶ 100. The alleged

“Resident Class” includes all persons who currently reside in the LUBGWMA. Id. The alleged

“Well-Reliant” Subclass includes all persons who currently reside in the LUBGWMA and rely

on private wells to supply their drinking water. Id. The alleged “Renter/Owner” Subclass

includes all persons who rent or own property in the LUBGWMA and are supplied with drinking

water from either private wells or a public water system. Id.

DISCUSSION5

A. Motions for Judicial Notice

BNW, Lamb Weston, the Port, Threemile, and Madison request that the Court take

judicial notice of various documents in support of their motions to dismiss.6 Before Judge

Hallman, Plaintiffs argued that judicial notice was inappropriate only with respect to two kinds

of documents.7 The first consists of federal agency reports that Madison relies on to define the

term “irrigation return flow,” ECF 70 at 2 n.3 (listing documents in ECF 59). The second

consists of documents and permits related to Threemile’s CAFO operations in Oregon, ECF 70

at 2 n.4 (listing documents in ECF 57 and ECF 58). Judge Hallman recommended that the Court

5 Defendants raise several arguments for dismissal through four separate briefs, see

ECF 51 (BNW), 54 (Lamb Weston), 56 (Port and Threemile), and 59 (Madison), and four

separate sets of objections, see ECF 103 (BNW), 104 (Lamb Weston), 107 (Port and Threemile)

and 109 (Madison). The Court discusses below Defendants’ primary arguments. The Court has

considered de novo but need not discuss Defendants’ remaining arguments.

6 See ECF 52 (BNW); ECF 53 (Lamb Weston); ECF 58 (the Port and Threemile);

ECF 59 (Madison); ECF 82 (Port and Threemile); ECF 84 (Lamb Weston).

7 See Plaintiffs’ Response to Request for Judicial Notice (ECF 70) at 2 (“Plaintiffs do not

object to the Court taking notice of those documents that pertain to permits issued by [DEQ] and

to Defendants’ violation thereof, because these are similar to documents that Plaintiffs reference

in their Complaint.”) and 2 n.2 (listing documents Plaintiffs do not object to, but reserving the

“right to dispute the factual accuracy of any assertions” within the documents).

grant each motion for judicial notice. See F&R at 14-17. No party objected, and the Court finds

no clear error.

After Judge Hallman referred his F&R to the Court, Lamb Weston filed an additional

request for judicial notice relating to five documents contained in administrative proceedings

with the DEQ. ECF 105. Plaintiffs oppose this motion on two grounds. First, Plaintiffs argue that

the Court should not take judicial notice because none of the documents were part of the record

before Judge Hallman. The Court, however, has discretion to accept new evidence submitted

with a party’s objections to findings and recommendation, so the fact that Lamb Weston’s

evidence is new does not preclude it from consideration. See United States v. Howell, 231

F.3d 615, 621 (9th Cir. 2000) (concluding that a district court “has discretion, but is not

required” to consider new evidence when reviewing de novo a magistrate judge’s findings and

recommendations); see also 28 U.S.C. § 636(b)(1) (stating that the district court judge “may also

receive further evidence”).

Second, Plaintiffs oppose Lamb Weston’s motion to the extent that Lamb Weston seeks

judicial notice of the facts contained within the new exhibits. Under Rule 201 of the Federal

Rules of Evidence, a court make take judicial notice of facts that are either “generally known” or

“capable of accurate and ready determination by sources whose accuracy cannot be reasonably

questioned.” United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (quoting Fed. R.

Evid. 201(b)(1), (2)). “Accordingly, a court may take judicial notice of matters of public record

without converting a motion to dismiss into a motion for summary judgment.” Khoja v. Orexigen

Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (cleaned up). This includes “records and

reports of administrative bodies.” Interstate Nat. Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385

(9th Cir. 1953); see also Trees v. Serv. Emps. Int’l Union Loc. 503, 763 F. Supp. 3d 1250,

1260-61 (D. Or. 2025) (taking judicial notice of briefing, rulings, and orders in state

administrative proceeding). A court may not, however, “take judicial notice of facts presented in

those documents or in court opinions for the purpose of considering those facts to be established

in the case currently before them.” Dauven v. U.S. Bancorp, 390 F. Supp. 3d 1262, 1269 (D.

Or. 2019) (citing Wyatt v. Terhune, 315 F.3d 1108, 1114 (9th Cir. 2003)). The Court thus takes

judicial notice of the requested exhibits only to determine the scope and timeframe of the

Compliance Plan established between the Oregon DEQ and Lamb Weston but does not take

judicial notice of any facts included in those exhibits.

B. Motions under Rule 8

Defendants have moved to dismiss Plaintiffs’ Amended Complaint under Rule 8, arguing

that the Amended Complaint is an improper “shotgun pleading.” See A.B. v. Hilton Worldwide

Holdings Inc., 484 F. Supp. 3d 921, 943 (D. Or. 2020) (describing “shotgun pleadings”). Judge

Hallman recommended that the Court deny this motion. “All that is required” under Rule 8 of the

Federal Rules of Civil Procedure “are sufficient allegations to put defendants fairly on notice of

the claims against them.” McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). In the absence

of a well-pleaded allegation of joint conduct or an agency relationship, however, failing to allege

specific facts relating to a specific defendant and lumping multiple defendants together is

routinely rejected by courts. Allegations are thus factually deficient when a “complaint lumps

defendants together and fails to adequately distinguish claims and alleged wrongs among

defendants. . . . Plaintiffs must allege more than generic and conclusory allegations

demonstrating that ‘Defendants’ collectively engaged in [misconduct] and allege with at least

some degree of specificity the acts which each defendant is alleged to have engaged in which

support Plaintiff’s claims.” McKeon v. Cent. Valley Cmty. Sports Found., 2018 WL 6436256,

at *4 (E.D. Cal. Dec. 7, 2018) (collecting cases). A complaint must be construed based on its

allegations, and if there are insufficient allegations about the underlying facts relating to an

individual defendant, that is a deficiency in the pleading. See Evans v. Sherman, 2020

WL 1923176, at *3 (E.D. Cal. Apr. 21, 2020) (noting that the plaintiff “simply lumps all

defendants together” and “makes it impossible for the Court to draw the necessary connection

between the actions or omissions” of the various defendants).

In recommending that the Court deny Defendants’ motion to dismiss under Rule 8, Judge

Hallman acknowledged that Plaintiffs’ Amended Complaint lacks clarity as to the role that each

Defendant played in the groundwater contamination and Plaintiffs’ injuries. He found, however,

that the Amended Complaint sufficiently differentiates among the three groups of Defendants

(the CAFO Defendants, the Wastewater Defendants, and the Farm Defendants), see F&R

at 34-35, and adequately specifies the harm allegedly caused by each group and the allegedly

wrongful actions taken by each. Accordingly, Judge Hallman recommended that the Court deny

Defendants’ motion to dismiss under Rule 8, and the Court agrees.

Lamb Weston also argues that Judge Hallman “sidestepped” the “clear causation issue”

in Plaintiffs’ Amended Complaint. That objection, however, improperly conflates Judge

Hallman’s analyses under Rules 8 and 12. To the extent there are problems with Plaintiffs’

allegations of causation, those are properly addressed under Defendants’ Rule 12(b)(6) motions.

See Soto v. Hernandez, 2024 WL 5412053, at *7 (C.D. Cal. Dec. 30, 2024) (explaining how a

complaint that “falls well within Rule 8(a)’s standards” may nonetheless “fail[ ] to show that

Plaintiff is entitled to relief” under Rule 12).

C. Abstention

Defendants request that the Court abstain from adjudicating Plaintiffs’ claims and dismiss

the Complaint under Rule 12(b)(1).8 They argue that the primary jurisdiction doctrine and the

Burford doctrine provide independent grounds supporting abstention. Judge Hallman

recommended that the Court deny Defendants’ motions under Rule 12(b)(1). All Defendants

objected.

1. Primary Jurisdiction

All Defendants request that the Court abstain under the doctrine of primary jurisdiction.

Application of the doctrine of primary jurisdiction is “committed to the sound discretion of the

court.” Syntek Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 781 (9th Cir. 2002).

There are four factors that are “uniformly present in cases where the doctrine properly is

invoked: (1) the need to resolve an issue that (2) has been placed by Congress within the

jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that

subjects an industry or activity to a comprehensive regulatory scheme that (4) requires expertise

or uniformity in administration.” United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1362

(9th Cir. 1987). “[E]fficiency is the deciding factor in whether to invoke” the doctrine. Astiana v.

Hain Celestial Grp., Inc., 783 F.3d 753, 760 (9th Cir. 2015) (cleaned up).

8 BNW, the Port, and Threemile contend that Rule 12(b)(1) is the proper vehicle for their

motions for abstention and thus the Court may review evidence beyond Plaintiffs’ allegations

and need not presume the truthfulness of those allegations. The Ninth Circuit has “not squarely

held whether abstention is properly raised under Rule 12(b)(6), Rule 12(b)(1), both, or neither.”

Courthouse News Serv. v. Planet, 750 F.3d 776, 779 n.2 (9th Cir. 2014). Judge Hallman assumed

that Rule 12(b)(1) was the correct vehicle under which the Court should evaluate Defendants’

abstention arguments. Because no party objected to that standard, the Court will assume without

deciding that Rule 12(b)(1) is the appropriate mechanism to evaluate the pending abstention

arguments.

No Defendant objected to Judge Hallman’s discussion regarding the first General

Dynamics factor. Defendants, however, objected to Judge Hallman’s analysis under the

remaining General Dynamics factors and the efficiency consideration. The Court will address

each in turn.

First, Defendants argue that Judge Hallman’s reasoning with respect to the remaining

three factors creates a bright-line rule that the primary jurisdiction doctrine can never be applied

in RCRA cases or in any lawsuit under a federal statute with a citizen-suit provision and a

diligent prosecution bar. Specifically, Defendants object to the following statement in Judge

Hallman’s F&R: “Where, as here, state agencies have not commenced any of the actions set

forth under the diligent prosecution bar . . . invoking primary jurisdiction would thwart

Congress’s intent to provide affected citizens a forum to litigate alleged RCRA violations.” F&R

at 24. The Court agrees with Defendants that RCRA’s statutory framework does not

categorically bar application of the primary jurisdiction doctrine.

Notwithstanding that conclusion, the Court agrees with Judge Hallman’s

recommendation that, considering RCRA’s statutory framework, the second and third General

Dynamics factors weigh against abstention. Although not dispositive, statutory characteristics

like a citizen suit provision and a diligent prosecution bar strongly suggest that Congress did not

place the issue of nitrate water contamination exclusively within the “jurisdiction of an

administrative body.” Gen. Dynamics, 828 F.2d at 1362. Indeed, “[t]he primary indication” of

Congressional “intent is the language of the statute.” See United States v. Aguilar, 21 F.3d 1475,

1480 (9th Cir. 1994), aff’d in part, rev’d in part on other grounds, 515 U.S. 593 (1995); see also

CTS Corp. v. Waldburger, 573 U.S. 1, 12 (2014) (“Congressional intent is discerned primarily

from the statutory text.”). By the same token, there is no better evidence to evaluate whether the

“statute . . . subjects an industry or activity to a comprehensive regulatory scheme” than the

statute itself. Gen. Dynamics, 828 F.2d at 1362 (emphasis added). Further, the Ninth Circuit has

described RCRA’s citizen suit provisions as “expansive.” See Cal. River Watch v. City of

Vacavillle, 39 F.4th 624, 629 (9th Cir. 2022) (quoting Ecological Rts. Found. v. Pac. Gas &

Elec. Co., 874 F.3d 1083, 1089 (9th Cir. 2017) (Ecological Rts. Found. II)). “This structure

demonstrates that Congress did not assign comprehensive regulatory authority to the EPA;

rather, Congress assigned substantial enforcement responsibility to federal courts and the

public.” Eagle Star Rock Prods. LLC v. PCC Structurals, Inc., 756 F. Supp. 3d 1062, 1080 (D.

Or. 2024) (emphasis in original).

Defendants also object to Judge Hallman’s analysis with respect to the fourth General

Dynamics factor—whether nitrate contamination in the LUBGWMA “requires expertise or

uniformity in administration” such that abstention is prudent. Specifically, Defendants argue that

any relief granted by a federal court would be duplicative of, or in conflict with, the enforcement

actions taken by the Oregon DEQ. Defendants further contend that even if relief is not in tension

with administrative action, a federal court could not adequately remediate all harms suffered by

Plaintiffs because of the size of the LUBGWMA, the number of non-party polluters contributing

to nitrate concentration, and the infeasibility of joining them.9 Judge Hallman, however,

considered these factors, and the Court agrees with his recommendation that “this action

ultimately presents RCRA and state law claims that this Court is competent to resolve.” F&R

at 26. Just as the perfect should not be the enemy of the good, the absence of complete relief

should not be the enemy of some relief.

9 But see n.1, supra.

Finally, Defendants argue that abstention would lead to the most efficient resolution

because the Oregon DEQ is the agency that can most effectively remediate the nitrate

contamination in the LUBGWMA. Lamb Weston and the Port specifically object to Judge

Hallman’s statement that “there is no current proceeding or enforcement action that would allow

Plaintiffs to seek the relief that they could seek under RCRA in this proceeding,” F&R at 27,

because Lamb Weston and the Port already have been “punished” by the Oregon DEQ several

times and both parties have entered into Mutual Agreement and Final Orders (“MAOs”) with the

Oregon DEQ that govern the parties’ conduct.10 There are two problems with Defendants’

argument. First, primary jurisdiction is “not a doctrine of futility”; that is, abstention is

inappropriate “when the case must eventually be decided on a controlling legal issue wholly

unrelated to determinations for the ascertainment of which the proceeding was sent to the

agency.” Amalgamated Meat Cutters & Butcher Workmen of N. Am. v. Jewel Tea Co., 381

U.S. 676, 686 (1965) (quotation omitted). Defendants’ objections would turn the primary

jurisdiction doctrine into something akin to an exhaustion requirement, but Plaintiffs need not

wait to bring their RCRA claims until the Oregon DEQ has completed its executive action with

respect to the LUBGWMA, particularly where, as Judge Hallman noted, no agency has invoked

RCRA’s diligent prosecution bar.

Second, the Oregon DEQ administrative proceedings are not the most efficient means for

these Plaintiffs to obtain the sort of relief they seek in this action. The terms of Lamb Weston’s

MAO, for example, require it to pay a civil penalty of $143,000 and complete a remedial

investigation and feasibility study for the Oregon DEQ. Those remedies primarily flow to the

10 Although the Port and Threemile filed joint objections, it does not appear that

Threemile is a party to the MAO or has ever been sanctioned by the Oregon DEQ.

State and only incidentally and incrementally to Plaintiffs. Meanwhile, Plaintiffs allege that they

have suffered—and continue to suffer—tortious injury at the hands of Defendants.

A civil suit is a proper forum in which a plaintiff may recover for injuries to person or

property. Even accepting Defendants’ argument that the Court is incapable of providing a

complete remedy for the nitrate contamination throughout the LUBGWMA, the Court likely can

grant injunctive relief to Plaintiffs that includes compelling Defendants to provide clean, potable

water to Plaintiffs, connecting Plaintiffs to the Port’s clean water pipes, or awarding money

damages. Defendants are correct in asserting that “[e]fficiency is the deciding factor in whether

to invoke primary jurisdiction.” Astiana, 753 F.3d at 760 (quotation omitted). But abstention

here would not be efficient. Instead, it would “significantly postpone” a final ruling on Plaintiffs’

RCRA and state law tort claims, which are decisions “that a court is otherwise competent to

make.” Id. at 761.

Finally, application of primary jurisdiction is particularly inappropriate at this stage of the

proceedings. In evaluating Defendants’ primary jurisdiction argument, the Court must identify

whether “any set of facts could be proved which would avoid application of the [primary

jurisdiction] doctrine.” See Davel Comm’s, Inc. v. Qwest Corp., 460 F.3d 1075, 1088 (9th

Cir. 2006). When “the allegations of the complaint do not necessarily require the doctrine’s

applicability, then the primary jurisdiction doctrine may not be applied on a motion to dismiss.”

Id. Declining jurisdiction under the primary jurisdiction doctrine is not necessary at this juncture.

2. Burford Abstention

Defendants also request that the Court abstain in light of Burford v. Sun Oil Co., 319

U.S. 315 (1943). “[T]he power to dismiss recognized in Burford represents an ‘extraordinary and

narrow exception to the duty of the District Court to adjudicate a controversy properly before

it.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728 (1996) (quoting Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)). In the Ninth Circuit, Burford

abstention is only appropriate when: (1) “the state has chosen to concentrate suits challenging the

actions of the agency involved in a particular court”; (2) “federal issues could not be separated

easily from complicated state law issues with respect to which the state courts might have special

competence”; and (3) “federal review might disrupt state efforts to establish a coherent policy.”

Blumenkron v. Multnomah County, 91 F.4th 1303, 1312 (9th Cir. 2024) (quoting United States v.

Morros, 268 F.3d 695, 705 (9th Cir. 2001)). After finding that none of those factors weigh in

favor of abstention, Judge Hallman recommended that the Court exercise jurisdiction.

The Port and Threemile objected to Judge Hallman’s recommendation that the first

Burford factor has not been met. Defendants contend that Judge Hallman’s analysis is “fatally

flawed” because it “ignores the actual actions of the DEQ against the Port . . . plead[ed] in

[Plaintiffs’ Amended] Complaint.” ECF 107 at 28-29. Defendants’ objection, however, is

inaccurate. Judge Hallman explicitly recognized the Oregon DEQ actions in his analysis of the

first factor when he explained that Plaintiffs “characterize the state’s actions . . . as insufficient.”

See F&R at 31.

Defendants’ objection is also irrelevant. The first requirement for Burford abstention is

that “the state has chosen to concentrate suits challenging the actions of the agency involved in a

particular court.” See Blumenkron, 91 F.4th at 1312 (emphasis added). As Judge Hallman

explained, this is not a suit challenging the action of an agency. Plaintiffs do not seek to unwind

or alter the Oregon DEQ enforcement actions or MAO with the Port. See F&R at 31 (“Plaintiffs

are not seeking to change a state-issued determination.”). Further, Defendants point to no state

statute or regulation that demonstrates that the “Oregon legislature has concentrated review of”

Plaintiffs’ RCRA or tort claims “in a state court forum.” Contra Blumenkron, 91 F.4th at 1313.

The Ninth Circuit’s Blumenkron test is conjunctive, meaning that all three elements must

be met for Burford abstention to be appropriate. See id. at 1312. Because the Court agrees with

Judge Hallman’s analysis regarding the first element, Burford abstention is inappropriate, and the

Court need not reach the remaining two factors.11

D. Motions to Dismiss under Rule 12(b)(6)

All Defendants move to dismiss Plaintiffs’ Amended Complaint under Rule 12(b)(6). The

Port also moves to dismiss Plaintiffs’ state law tort claims on immunity grounds, arguing that

Plaintiffs have failed to comply with the Oregon Tort Claims Act (“OTCA”).

A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual

allegations, a court must accept as true all well-pleaded material facts alleged in the complaint

and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-

Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint

“may not simply recite the elements of a cause of action, but must contain sufficient allegations

of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Court must draw all

11 Lamb Weston argues that “[i]f this Court orders Lamb Weston to do precisely what

Oregon DEQ is already requiring, then these proceedings will have been wasteful.” ECF 104

at 30. Defendants may later re-raise their abstention arguments, but for now, this argument is

speculative and unavailing. See Nelson-Baca v. Oregon ex rel. Dep’t of Hum. Servs., 2021

WL 3702486, at *8 (D. Or. Apr. 21, 2021) (“Burford abstention may be raised at any time,

including on appeal, and it may be raised by a court sua sponte.” (quotation omitted)), report and

recommendation adopted, 2021 WL 2711466 (D. Or. July 1, 2021).

reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon

Off. Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The Court need not, however, credit a

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation

marks omitted).

1. RCRA

Pearson, on behalf of the Well-Reliant Subclass, asserts a federal claim against all

Defendants under RCRA. See FAC ¶¶ 111-20. Judge Hallman recommended that the Court find

that Plaintiffs state a RCRA claim against the CAFO Defendants and the Wastewater Defendants

but not the Farm Defendants. The Court concludes that Plaintiffs state a claim against the

Wastewater Defendants, but not the CAFO Defendants or the Farm Defendants.

a. Standards

“RCRA is a comprehensive statute that governs the treatment, storage, and disposal of

solid and hazardous waste . . . . ‘so as to minimize the present and future threat to human health

and the environment.’” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (quoting 42 U.S.C.

§ 6902(b)). To survive a motion to dismiss, a plaintiff must plausibly allege:

(1) that the defendant “has contributed to the past or is contributing

to the present handling, treatment, transportation, or disposal” of

certain material; (2) that this material constitutes “solid waste”

under RCRA; and (3) that the solid waste “may present an

imminent and substantial endangerment to health or the

environment.”

Cal. River Watch, 39 F.4th at 629 (brackets omitted) (quoting Ctr. for Cmty. Action & Env’t Just.

v. BNSF R. Co., 764 F.3d 1019, 1023 (9th Cir. 2014)); accord 42 U.S.C. § 6972(a)(1)(B). A

plaintiff alleging a RCRA violation must also provide notice to the parties sixty days before

filing suit. 42 U.S.C. § 6972(b)(1)(A).

“To establish the ‘contribution’ element of a RCRA claim, a plaintiff must allege that the

defendant was ‘actively involved in or [has] some degree of control over the waste disposal

process.’” Eagle Star Rock Prods., 756 F. Supp. 3d at 1080 (alteration in original) (quoting Ctr.

for Biological Diversity v. U.S. Forest Serv., 80 F.4th 943, 950 (9th Cir. 2023)).12

RCRA defines “solid waste” as

any garbage, refuse, sludge from a waste treatment plant, water

supply treatment plant, or air pollution control facility and other

discarded material, including solid, liquid, semisolid, or contained

gaseous material resulting from industrial, commercial, mining,

and agricultural operations, and from community activities, but

does not include solid or dissolved material in domestic sewage, or

solid or dissolved materials in irrigation return flows or industrial

discharges which are point sources subject to permits under section

1342 of title 33 . . . .

42 U.S.C. § 6903(27).

12 “[T]o state a claim predicated on RCRA liability for ‘contributing to’ the disposal of

hazardous waste, a plaintiff must allege that the defendant had a measure of control over the

waste at the time of its disposal or was otherwise actively involved in the waste disposal

process.” Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 852 (9th Cir. 2011) (emphasis added); see

also Cal. River Watch, 39 F.4th at 632-33 (same). To state a claim predicated on RCRA liability

for contributing to the transportation of waste, “the ‘transportation’ at issue must also be directly

connected to the waste disposal process—such as shipping waste to hazardous waste treatment,

storage, or disposal facilities.” Cal. River Watch, 39 F.4th at 633.

By definition, a material can be any state of matter (including liquid) and still be “solid

waste.” See id. However, “materials must be ‘discarded’ to be considered solid waste.” See Safe

Air for Everyone v. Meyer, 373 F.3d 1035, 1045 (9th Cir. 2004); see also Ecological Rts. Found.

v. Pac. Gas & Elec. Co., 713 F.3d 502, 514-15 (9th Cir. 2013) (Ecological Rts. Found. I)

(describing plain meaning of “discard” in textual analysis of RCRA’s definition of “solid

waste”); Cal. River Watch, 39 F.4th at 629 (same). “The determination of whether [a material]

has been ‘discarded’ is made independently of how the materials are handled.” Safe Air for

Everyone, 373 F.3d at 1046 n.13 (emphasis in original). It is the relationship between the

consumer and the material that determines whether the material is discarded. See Ecological Rts.

Found. I, 713 F.3d at 515 (holding that escaping preservative is not “solid waste” because it is

not “a material that the consumer . . . no longer wants.”). Thus, “whether a product has ‘served

its intended purpose and is no longer wanted by the consumer’ is a ‘key’ consideration in

determining whether a substance constitutes solid waste.” Cal. River Watch, 39 F.4th at 629

(quoting Ecological Rts. Found. I, 713 F.3d at 515). A substance that “is released into the

environment as a natural, expected consequence” of a product’s intended use has not necessarily

been discarded, and therefore it “is not automatically ‘solid waste’ under RCRA’s definition of

the term.” See Ecological Rts. Found. I, 713 F.3d at 518 (emphasis added) (“[W]ood

preservative that escapes from wooden utility poles as those poles age has not itself been

‘discarded,’ and therefore is not a ‘solid waste,’ under RCRA.”).

Congress expressly contemplated that consumers might re-use “industrial and agricultural

waste,” making it “therefore not a part of the discarded materials disposal problem” Congress

sought to address. See Safe Air for Everyone, 373 F.3d at 1045-46 (quoting H.R. Rep.

No. 94-1491, at 3 (1976), reprinted in 1976 U.S.C.C.A.N. at 6239-41); see also id.

(“Agricultural wastes which are returned to the soil as fertilizers or soil conditions are not

considered discarded materials in the sense of this legislation.” (quoting same)). Because a

material must be “discarded” to qualify as solid waste, see id. at 1041, a material might not

qualify as a solid waste when it is handled by a re-using consumer but later meet the definition of

“solid waste” when its last user disposes of it.

Finally, “[t]he imminent and substantial endangerment element should be construed

broadly to allow for affirmative equitable relief.” Santa Clarita Valley Water Agency v.

Whittaker Corp., 99 F.4th 458, 475 (9th Cir. 2024). “‘[E]ndangerment’ means a threatened or

potential harm and does not require proof of actual harm.” Price v. U.S. Navy, 39 F.3d 1011,

1019 (9th Cir. 1994) (collecting cases). Endangerment must also be “substantial or serious.” Id.

“Imminence refers to the nature of the threat rather than identification of the time when the

endangerment initially arose.” Id. (cleaned up). Thus, “‘imminency’ does not require a showing

that actual harm will occur immediately so long as the risk of threatened harm is present.” Id. Put

another way, “[a]n endangerment can only be ‘imminent’ if it ‘threaten[s] to occur immediately,’

and the reference to waste which ‘may present’ imminent harm quite clearly excludes waste that

no longer presents such a danger.” Meghrig, 516 U.S. at 485-86 (second alteration in original)

(citation omitted). “The threat of harm must be ‘present now, although the impact of the threat

may not be felt until later.’” Whittaker, 99 F.4th at 475 (emphasis in original) (quoting U.S.

Navy, 39 F.3d at 1019). Finally, for an “endangerment to be substantial, ‘there must be some

necessity for the action.’” Id. (quoting U.S. Navy, 39 F.3d at 1019).

b. Analysis

Plaintiffs argue that Defendants violated RCRA by: (1) over-applying fertilizer to

agricultural fields; (2) over-applying animal waste to agricultural fields; (3) over-applying

wastewater and allowing wastewater to spill by leaks from wastewater pipes while the water is

being pumped to local farms; and (4) allowing industrial waste, wastewater, and other industrial

effluent containing nitrogen to leach from waste lagoons into the soil. See FAC ¶ 115.

i. Over-Applying Fertilizer

Judge Hallman recommends that the Court find that Plaintiffs fail to state a claim against

the Farm Defendants for their application of excess fertilizer to crops. Judge Hallman explains

that fertilizer is not a “discarded” material under RCRA’s definition of solid waste because it is

applied to crops for its beneficial use and therefore is still wanted by the consumer. See F&R

at 47-52. No party objected, and the Court finds no clear error.

ii. Over-Applying Animal Waste

Judge Hallman recommends that the Court find that Plaintiffs state a claim against the

CAFO Defendants for their application of excess animal waste. The Court, however, agrees with

BNW that Plaintiffs fail to state a claim against the CAFO Defendants under this theory.13

Plaintiffs make the following allegations with respect to BNW: (1) that BNW is a CAFO

licensed with the Oregon Department of Agriculture that “operates a large beef feedlot in the

GMA,” FAC ¶¶ 38, 5; (2) that “[m]anaging and disposing of large quantities of nitrogen-laden

animal waste is an unavoidable part of a CAFO’s everyday operating procedures, including for

BNW Feeders,” id. ¶ 67; and (3) that “CAFOs, including BNW Feeders, may cause nitrate

contamination when animal waste is spilled or otherwise leaks during handling,” id.

13 Although this argument was raised only by BNW, it applies with equal force to any

RCRA claim against Threemile predicated on its CAFO. See Abigninin v. AMVAC Chem.

Corp., 545 F.3d 733, 743 (9th Cir. 2005) (“A district court may properly on its own motion

dismiss an action as to defendants who have not moved to dismiss where such defendants are in

a position similar to that of moving defendants.” (cleaned up)). Plaintiffs allege only that

Threemile maintains a CAFO and has 29,000 acres of range space. FAC ¶ 37.

Taking these allegations together, Plaintiffs do not allege any specific practice showing

that BNW has caused nitrate pollution. Plaintiffs allege only that BNW “may cause nitrate

contamination” if “animal waste is spilled or otherwise leaks” while being handled. See FAC

¶ 67 (emphasis added). Because the Amended Complaint does not contain “facts plausibly

showing” that BNW disposed of a solid waste in violation of RCRA, dismissal of this claim

without prejudice is proper. See Iqbal, 556 U.S. at 683.14

14 Because the Court concludes that Plaintiffs do not allege facts plausibly showing that

the CAFO Defendants disposed of a solid waste, it need not reach the CAFO Defendants’

arguments that their discharges are not solid wastes under RCRA’s point source exception or

anti-duplication provision, 42 U.S.C. §§ 6903(27), 6905(a). See ECF 56 at 30-31 (arguing that

Threemile’s manure, which is applied subject to its NPDES permit in its operations as a CAFO,

is exempt from RCRA solid waste definition); ECF 51 at 32-33 (arguing that “discharges from

CAFOs subject to NPDES permits are not ‘solid wastes’”).

Neither statutory exception precludes Plaintiffs’ claims against Threemile in its capacity

as a Farm Defendant. The Court adopts Judge Hallman’s statutory interpretation of the

exceptions, discussed only in the context of CAFO discharges. See F&R at 39-43. The point

source exception, 42 U.S.C. § 6903(27), does not automatically exempt a party from “RCRA

liability simply by having an NPDES permit for certain discharges; ‘[t]hey must be required by

the [Clean Water Act (“CWA”)] to have a permit for the discharges at issue.’” San Diego

Coastkeeper v. Pick-Your-Part Auto Wrecking, 2023 WL 4879832, at *15 (S.D. Cal. July 31,

2023) (emphasis in original) (quoting Inland Steel Co. v. EPA, 901 F.2d 1419, 1422) (7th

Cir. 1990)). Because Threemile’s CAFO discharges—the subject of Threemile’s NPDES

permit—do not serve as the basis for Plaintiffs’ RCRA claims, the point source exception does

not apply.

In addition, RCRA’s anti-duplication provision, 42 U.S.C. § 6905(a), “does not bar

RCRA’s application unless that application contradicts a specific mandate imposed under the

CWA.” Ecological Rights Found., 874 F.3d at 1095. Applying that principle to RCRA suits

against CAFO-permit holders, it is possible that “relief that could exceed the CAFO permit

standards” might not “be inconsistent with the CAFO standards.” See Comm. Ass’n for

Restoration of Env’t Inc., 2019 WL 13117758, at *6 (E.D. Wash. Oct. 24, 2019) (emphasis in

original). To evaluate that, the Court would have to consider “factual evidence about

[Threemile’s] current CAFO permit requirements, the specific conditions Plaintiffs request as

injunctive relief, and whether the latter conflicts with the former.” Id. Thus, Threemile’s “anti-

duplication argument requires significant consideration of facts outside of the complaint,” which

is a “kind of factual inquiry that goes well beyond the allegations contained in Plaintiffs’

Complaint and is therefore not grounds for a Rule 12(b)(6) motion.” Id.

iii. Over-Applying Wastewater and Spilling Wastewater from Pipes

Judge Hallman recommends that the Court find that Plaintiffs state a claim against the

Wastewater Defendants for their application of excess wastewater to crops and spilling

wastewater from their transportation pipes. Lamb Weston argues that these allegations are only

stated against the Port, but Plaintiffs plausibly allege this theory against both Wastewater

Defendants.15

Plaintiffs plausibly allege that the Wastewater Defendants had enough control over the

wastewater when it was disposed because they are the only entities licensed in the counties to

process wastewater and they pumped the water to the farms. See Eagle Star Rock Prods., 756 F.

Supp. 3d at 1080; Hinds, 654 F.3d at 852. As explained further below, the Court also concludes

that wastewater meets the definition of “solid waste” 16 when applied to farms by both

Wastewater Defendants, because it is “discarded.” See 42 U.S.C. § 6903(27); Safe Air for

Everyone, 373 F.3d at 1041 (“[M]aterials must be ‘discarded’ to be considered solid waste.”).

15 Plaintiffs allege that Lamb Weston “pump[s] [wastewater] to local farms” and rents out

the Port’s Boardman Industrial Park property, which is connected to a pipe system. See FAC

¶¶ 69, 70 & fig. 5; see also id. ¶ 71 (“Lamb Weston pump[s] nitrogen-rich wastewater to nearby

farms year-round.”). Plaintiffs also allege that Lamb Weston operates a wastewater treatment

facility in Hermiston, where it maintains wastewater storage ponds. Id. ¶ 76. Water from these

ponds allegedly is transported by a “system of pumps and pipes . . . to two farms—one owned by

Lamb Weston itself and the other owned by Madison Ranches.” Id. (footnote omitted).

16 RCRA expressly contemplates that liquids, such as wastewater, can be solid waste.

See 42 U.S.C. § 6903(27) (“The term ‘solid waste’ means garbage, refuse, sludge from a waste

treatment plant, water supply treatment plant, or air pollution control facility and other discarded

material, including solid, liquid, semisolid, or contained gaseous material . . . .” (emphasis

added)).

Plaintiffs argue that the wastewater at issue here meets the definition of “solid waste”

because it is “other discarded material” resulting from “industrial” or “agricultural” activities.

See ECF 68 at 45; see also 42 U.S.C. § 6903(27). They do not pursue a theory that wastewater is

sludge or refuse.

Because the relationship between the consumer and the material is the central consideration in

determining whether a substance is “discarded,” see Cal. River Watch, 39 F.4th at 629, the Court

discusses separately Plaintiffs’ allegations about the Port and Lamb Weston’s uses of

wastewater.

Plaintiffs plausibly allege that the Port discards wastewater that meets the definition of

“solid waste.” Plaintiffs allege that the Port has constructed an intricate pipe system to transport

wastewater to local farms, and that the farms that receive the wastewater save hundreds of

thousands of dollars per year in fertilizer and water costs. See id. ¶ 76 n.3 (“Madison Ranches

does not pay for the wastewater” and “Madison Farm has saved hundreds of thousands of dollars

or more in fertilizer and water costs”). These allegations adequately state that the Port is

discarding its wastewater when it pumps the water to local farms.

The same is true for Lamb Weston. Plaintiffs allege that Lamb Weston sends some of its

water to Madison, in addition to Lamb Weston’s own farms, and regularly dumps more water

than its permits for “nitrogen discharge” allow. See FAC ¶¶ 76-77. Plaintiffs contend that, more

than 90 times since 2015, Lamb Weston has dumped wastewater greater than its permit with

DEQ allows. See FAC ¶¶ 76-77. Plaintiffs also allege that Lamb Weston dumps wastewater in

winter, when fields are fallow. Id. ¶ 71. Taken together, these allegations sufficiently plead that

at least some of the wastewater dumped by Lamb Weston is “solid waste” as defined under

RCRA.

Lamb Weston objects that the F&R articulated no reasonable basis for treating the

application of process water to farmland for its agricultural benefits differently than similar

applications of nitrogen fertilizer. This argument fails for two reasons. First, Plaintiffs allege that

Lamb Weston allegedly dumps wastewater not only on its own farm but also on Madison’s farm,

even if Lamb Weston only applies fertilizer on its own farm. See FAC ¶ 76 & n.3 (describing

how wastewater from Lamb Weston’s pipes is transported to Madison’s farm). When Lamb

Weston dumps wastewater on Madison’s farm, “Madison Ranches does not pay for the water.”

See id. This suggests that Lamb Weston is discarding wastewater on Madison’s farm, even if

Lamb Weston is not “discarding” fertilizer.

Second, Plaintiffs allege that it is a usual practice for farmers to over-apply nitrogen

fertilizer, id. ¶¶ 61-62, but there is no allegation that it is expected of wastewater processors to

dump excess nitrogen-rich water on farms. In fact, it is expected that wastewater processors do

not dump water in excess of regulatory limits based on their permits. See id. ¶ 85 (explaining that

a condition of the Port’s permit is not to discard nitrogen-containing wastewater onto fields after

the nitrogen from all sources exceeds the agronomic rate for the crop grown).

Lamb Weston also objects that the wastewater it pumps to farms is not solid waste

because it is exempted from the statutory definition as a “solid or dissolved material in irrigation

return flow[ ].” 42 U.S.C. § 6903(27). To evaluate this argument, the Court adopts Judge

Hallman’s definition of the phrase “irrigation return flow” and the well-reasoned interpretation

underlying it:

RCRA does not define “irrigation return flow.” “In determining the

plain meaning of a word, [a court] may consult dictionary

definitions in an attempt to capture the common contemporary

understandings of a word.” Pac. Coast Fed’n of Fishermen’s

Ass’ns v. Glaser, 945 F.3d 1076, 1084 (9th Cir. 2019). When

RCRA was enacted, “irrigation” was defined as “the artificial

watering of land . . . to supply moisture for plant growth.”

Webster’s Third New International Dictionary 1196 (1971).

There is no similarly instructive dictionary definition of “return

flow.” . . . [T]wo reports, one from 1969 prepared for the DOI and

one from 1971 prepared by the EPA, . . . discuss “irrigation return

flow” and “return flow,” respectively. The 1969 report defines

“irrigation return flow” as “[a]ny water diverted for irrigation

purposes that finds its way back to a source of supply (stream or

groundwater basin)[, which] includes bypass water, deep

percolation losses, tail water runoff and seepage.” Utah State

University Foundation, Characteristics and Pollution Problems of

Irrigation Return Flow 199 (1969). “Deep percolation losses” are

defined as the “portion of irrigation water applied to the land that

percolates below the crop root zone and is not subject to

consumptive use by the agricultural crops.” Id. at 198. And the

1971 EPA report explains that “the primary sources of return flow

[are] canal seepage, bypass water, deep percolation, and tailwater

or surface return flow.” James P. Law, National Irrigation Return

Flow Research and Development Program 3 (1971).

This Court finds that “irrigation return flow” may be properly

understood with reference to its dictionary definition and its

established usage predating RCRA’s enactment. When Congress

uses a technical term or term-of-art in a statute, courts generally

give it its established meaning. See Johnson v. United States, 559

U.S. 133, 140 (2010) (noting that a court will not do so if that

meaning does not fit or would produce “nonsense”). “Irrigation

return flow” is a term of art that had an understood, scientific

meaning before it was included in RCRA. Thus, this Court finds it

appropriate to incorporate that definition into its interpretation of

the exception. Therefore, this Court finds that “irrigation return

flow” means water that returns to a source of supply—including

surface water and groundwater—after it was artificially applied to

land to supply moisture for plant growth.

F&R at 45-46 (citations to briefing omitted).

Because the irrigation return flow exception exempts only water that is applied to land

“to supply moisture for plant growth,” id., and because Plaintiffs allege that the Wastewater

Defendants dump wastewater for purposes other than irrigation, the Court cannot conclude that

this exception applies as a matter of law. At this preliminary stage, Plaintiffs have sufficiently

alleged that wastewater qualifies as solid waste under RCRA.17

17 Lamb Weston also argues that RCRA should be interpreted consistently with the Clean

Water Act (“CWA”), which has a permitting exemption for discharges “composed entirely of

return flows from irrigated agriculture.” 33 U.S.C. § 1342(l)(1). The Ninth Circuit has

interpreted this exemption to cover “discharges from activities related to crop production.” See

Pac. Coast Fed’n of Fishermen’s Ass’ns v. Glaser, 945 F.3d 1076, 1083, 1087 (9th Cir. 2019)

The Port also argues that Plaintiffs’ RCRA claim fails because Plaintiffs do not allege an

imminent and substantial endangerment. Specifically, the Port argues that Plaintiffs fail to allege

present harm, a risk of future harm, or any reasonable pathway of exposure because Plaintiffs did

not explain how the gradient of the water table affects how the Port’s nitrates flow to Plaintiffs’

wells. This is a subject for expert testimony, and there is no requirement under Rule 12(b)(6) that

a pleading that alleges causation also provide that expert analysis. Essentially, the Port argues

that Plaintiffs’ claim must fail at the pleading stage unless they also “prove up” in their pleading

that they will be able to prove causation to a scientific certainty. Plaintiffs allege that the Port’s

nitrates seep into the water table, which lands in the groundwater, which later runs into

Plaintiffs’ wells. That is sufficient at this stage of the lawsuit.

RCRA also does not punish prudent plaintiffs. That the named Plaintiffs tested their

water and now avoid drinking it does not neutralize the threat of harm in that water. Plaintiffs

have plausibly alleged that the contaminated water presents an imminent and substantial

endangerment to anyone who drinks it, based on the high nitrate concentration and the serious

adverse health effects from consuming nitrates. For the residents in the LUBGWMA, the threat

of harm is present now. Additionally, because “endangerment means a threatened or potential

harm,” Plaintiffs’ failure to plead actual harm is irrelevant to the RCRA analysis. See U.S.

Navy, 39 F.3d at 1019.

The Court also rejects the Port’s suggestion that Plaintiffs must allege some special injury

so as to warrant immediate action beyond what the agencies are already doing. Agency action

may, under some circumstances, mitigate the imminence or substantiality of a particular

This argument, however, does nothing to overcome the well-pleaded allegations in the FAC that

the Wastewater Defendants dump wastewater on fallow farmlands or above the agronomic load.

endangerment. In U.S. Navy, for example, the Ninth Circuit held that “extensive government

involvement with the cleanup operations of contaminated soil at a former United States Navy

junkyard—repurposed into a residential neighborhood—mitigated any risk of imminent

endangerment.” See Whittaker, 99 F.4th at 475 (describing holding of U.S. Navy, 39 F.3d at

1012, 1018-20). Here, agency action allegedly has only marginally improved conditions in the

LUBGWMA and has not brought Plaintiffs’ water quality anywhere close to safe consumption

levels. After Morrow County paid for a filtration system in Pearson’s well, for example, nitrate

concentration in his well dropped from 46.8 mg/L to 16.4 mg/L, but that is still one-and-a-half

times the EPA’s 10 mg/L safe-consumption threshold. FAC ¶¶ 15-17. In addition, the Port and

Lamb Weston continue to dump wastewater beyond the amounts allowed by their DEQ permits,

undeterred by fines of more than $1,000,000 per violation. See id. ¶¶ 74-93. The Court cannot

say that, as a matter of law, state or county agency action has eliminated the imminent and

substantial endangerment that Plaintiffs face, particularly because this “element should be

construed broadly to allow for affirmative equitable relief.” Whittaker, 99 F.4th at 475.

Accordingly, Plaintiffs state a claim under this theory against the Wastewater Defendants.

iv. Allowing Wastewater and Effluent to Leach from Lagoons

Judge Hallman recommends that the Court find that Plaintiffs state a claim against the

Wastewater Defendants for allowing wastewater and nitrogen effluent to leach from lagoons.18

The Court agrees with Judge Hallman’s analysis. Although Lamb Weston objects that the F&R

improperly lumped together allegations about it and the Port, this theory is sufficiently plead as

18 Judge Hallman also recommends that the Court find the allegations against BNW as a

CAFO sufficient to state a claim against BNW under this theory. See F&R at 50-51, 53. As

explained earlier, however, Plaintiffs have insufficiently alleged causation against BNW and thus

have not stated a RCRA claim against BNW under any theory.

to both Wastewater Defendants. Plaintiffs allege that the Port has “leaching lagoons,” and that

Lamb Weston uses “wastewater ponds.” FAC ¶¶ 81, 91, 93 (Port of Morrow), 76 (Lamb

Weston).

Plaintiffs plausibly allege that the Wastewater Defendants’ placement of nitrogen-rich

effluent in lagoons contributes to the handling or disposal of that material. Because the lagoons

are designed to leak, id. ¶ 67, Plaintiffs plausibly allege that the Wastewater Defendants had a

measure of control over the waste when it was disposed of—i.e., when it remained in their

possession in the lagoons. See Eagle Star Rock Prods., 756 F. Supp. 3d at 1080; Hinds, 654 F.3d

at 852. For the same reason, Plaintiffs plausibly allege that leaching material is “discarded” by

alleging that the Wastewater Defendants no longer want material that it stores in lagoons

designed to leak into the environment.19 See Cal. River Watch, 39 F.4th at 629; see also Cmty.

Ass’n for Restoration of the Env’t, Inc. v. D&A Dairy, 2013 WL 3188846, at *4 (E.D. Wash.

June 21, 2013) (holding, at the motion to dismiss stage, “that it is plausible for manure to be

solid waste after it has ceased to be beneficial or useful when it . . . has leaked away from the

lagoons” (quotations omitted)). Further, as already explained, Plaintiffs have plausibly alleged an

imminent and substantial endangerment from the nitrate contamination.

2. Oregon Tort Claims Act

The Port moved to dismiss all state law tort claims against it on the grounds that Plaintiffs

failed to comply with the Oregon Tort Claims Act (“OTCA”). Plaintiffs do not deny the OTCA

applies to their state law claims but argue that they complied with the statute by timely notifying

the Port about their claims. Judge Hallman agreed and found that Plaintiffs adequate plead that a

19 The Port appears to concede that its nitrogen materials are solid waste; it does not

argue otherwise in its Motion to Dismiss. See ECF 56 at 28-30 (“Threemile’s Alleged Discharges

Are Not Solid Waste” (emphasis added)).

reasonable person in Plaintiffs’ position would not have learned of the nitrate contamination or

the Port’s relationship to that contamination before June 2022, making Plaintiffs’

December 2022 notice timely. F&R at 72-73. Judge Hallman, therefore, recommends that the

Court deny the Port’s motion under the OTCA. Id. at 73.

Under the OTCA, “[n]o action arising from any act or omission of a public body” shall

“be maintained unless notice of claim is given . . . within 180 days after the alleged loss or

injury.” Or. Rev. Stat. (“ORS”) § 30.275. “The pleading and proof of notice sufficient to satisfy

the requirements of ORS 30.275 [are] a mandatory requirement and a condition precedent to

recovery under the Oregon Tort Claims Act.” Urb. Renewal Agency of City of Coos Bay v.

Lackey, 275 Or. 35, 40 (1976). “The requirements of the statute may be satisfied, however, by a

substantial compliance with such requirements.” Id. If the OTCA is applicable, the 180-day

notice period begins when the “plaintiff has a reasonable opportunity to discover his injury and

the identity of the party responsible for that injury.” Adams v. Or. St. Police, 289 Or. 233, 239

(1980). Put another way, the clock starts when it “appear[s] probable that plaintiff’s ‘damage

actually suffered’ was caused by defendant,” or when “a reasonably prudent person perceives the

role which the defendant has played in the plaintiff’s injury.” Id. (quoting U.S. Nat’l Bank of Or.

v. Davies, 274 Or. 663, 670 (1976)).

This “discovery rule presents a factual question for determination by a jury unless the

only conclusion that a jury could reach is that the plaintiff knew or should have known the

critical facts at a specified time and did not file suit within the requisite time thereafter.”

Kaseberg v. Davis Wright Tremaine, LLP, 351 Or. 270, 278 (2011); see also Doe 1 v. Lake

Oswego Sch. Dist., 353 Or. 321, 332-33 (citing Kaseberg in the OTCA context for the

proposition that the discovery rule presents a “question of fact determined by an objective

standard”).

In their Amended Complaint, Plaintiffs did not allege that they served a tort claim notice.

The Port, however, concedes in their motion that Plaintiffs served a tort claim notice on

December 8, 2022. ECF 56 at 44. Indeed, the Port provided the Court with a copy of that notice.

ECF 57-8. The Port also argues that the Court may consider the date of that notice and other

related “matters outside the pleadings to determine compliance with the OTCA” “[b]ecause the

OTCA is a jurisdictional statute.” ECF 56 at 44 n.12. The Court agrees. The Port then argues that

because Plaintiffs could have learned earlier that the Port was contaminating the groundwater,

Plaintiffs did not comply with the 180-day notice period required under the OTCA. Here, the

Court disagrees with the Port.

None of the well-pleaded allegations establish as a matter of law that a reasonable person

in Plaintiffs’ position would or should have known about their injuries earlier than June 2022.

The Port argues that high nitrate contamination in the LUBGWMA in the mid-1990s should have

put Plaintiffs on notice of their claims. But that knowledge would not necessarily reasonably put

Plaintiffs on notice that their personal wells or water supplies were dangerously polluted. Indeed,

when the Suters moved to the LUBGWMA in 1999, water in their private well tested at a nitrate

concentration of less than 7 mg/L. FAC ¶ 22.

Nor did the 180-day clock begin in January 2022, as the Port alternatively argues, when

“state and local officials” allegedly encouraged “Morrow and Umatilla County residents who

rely on private wells to have their wells tested for nitrates.” Id. ¶ 51. When a plaintiff cannot see

or otherwise sense her own injury but must rely on specialized equipment to determine whether

she is injured, the Court cannot say as a matter of law that a plaintiff had a “reasonable

opportunity to discover” that injury. See Adams, 289 Or. at 239. Thus, although Plaintiffs were

warned in January of 2022 to get their private wells tested, they could not actually discover

whether they were injured until they obtained testing on those wells.20 Pearson did not learn that

his well was contaminated until he completed testing in June 2022. Id. at ¶ 14.21 And Strange

was unaware of the contamination until November 2022, when she tested her tap water for

pollutants. Id. ¶¶ 28, 30.

Because the discovery rule is conjunctive, the 180-day clock does not start until it is

probable to Plaintiffs that their “damage actually suffered was caused by” the Port. See

Adams, 289 Or. at 239 (quotations omitted); see also Kaseberg, 351 Or. at 278. Indeed, the Port

itself still argues that it could not have possibly caused the nitrate pollution in Plaintiffs’ wells

based on the hydrogeologic conditions in the LUBGWMA and the gradient of the water table.

See ECF 107 at 31-32. If the Port disputes that it could have, as a matter of science, caused

Plaintiffs’ tort injuries, it is inappropriate to say that Plaintiffs could or should have known

earlier, as a matter of law, about the Port’s involvement.

Plaintiffs, however, did not allege in their Amended Complaint that they served the Port

with a claims notice. Thus, the Port raises a new argument in its objections that this Court has no

20 Not all Plaintiffs rely on private wells. Strange, for example, gets her water supply

from a public source.

21 Plaintiffs fail to allege the date that the Suters tested their well and discovered their

nitrate contamination. See FAC ¶¶ 20-25. Plaintiffs represent in briefing that the Suters learned

their water was contaminated in June 2022, see ECF 68 at 90, whereas the Complaint states that

the Suters commenced their testing “[a]fter reports surfaced of water contamination in the area,”

FAC ¶ 23, the earliest of which date back to the mid-1990s and early 2000s, id. at ¶¶ 46-49. The

Court need not resolve when the Suters learned about their injury. Because the plaintiff must

know about both the injury and the identity of the governmental defendant, see Adams, 289 Or.

at 239, the 180-day clock cannot begin to run until a plaintiff knows about both elements. Thus,

even if the Suters knew about their well contamination before June 2022, there is still a question

about when the Suters learned about the Port’s involvement in the contamination.

jurisdiction to hear any tort claim against the Port and must dismiss those claims under

Rule 12(b)(1). The Port cites Johnson v. Smith for the proposition that “pleading of notice” under

the OTCA “in a proper fashion is a jurisdictional prerequisite to bringing a claim against the

state.” ECF 107 at 38 (quoting 24 Or. App. 621, 626 (1976) (emphasis added by the Port)).

Although the Port did not raise this jurisdictional argument in its briefing before Judge Hallman,

a motion to dismiss under Rule 12(b)(1) for lack of “subject-matter jurisdiction, because it

involves a court’s power to hear a case, can never be forfeited or waived.” United States v.

Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court lacks subject matter

jurisdiction may be raised by any party, or by the court on its own initiative, at any time.

Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ. P. 12(b)(1). Thus, a court must

dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see also

Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks subject-

matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the

court must dismiss the complaint, even sua sponte if necessary).

When a claim is subject to the notice requirement of the OTCA, a plaintiff must allege

compliance with the law. See Johnson, 24 Or. App. at 625-26 (“It is the allegation in the

complaint that notice has been afforded the state pursuant to the requirements of the Act which

confers jurisdiction on the court.”); see also Urb. Renewal Agency, 275 Or. at 40. Allegations of

“substantial compliance” are sufficient under Oregon law, see id. at 40-41, but Plaintiffs’

Amended Complaint is void of any mention of its OTCA notice. With recognition that this facet

of Oregon law is quite formalistic (particularly based on the Port’s own presentation to the Court

of Plaintiffs’ tort claim notice), the Court nonetheless has a duty to evaluate its jurisdiction. The

tort claims against the Port must be dismissed, albeit without prejudice. As the analysis above

demonstrates, however, Plaintiffs have in substance complied with the OTCA and will be

afforded an opportunity to replead properly to allege that they timely provided the required

OTCA notice to the Port.

3. Negligence

Judge Hallman recommends that the Court find that Plaintiffs state a claim for

negligence. The Court agrees with respect to the Farm Defendants but not with respect to BNW

or the Port for the reasons previously discussed. “A negligence complaint, to survive a motion to

dismiss, must allege facts from which a factfinder could determine” five elements:

(1) that defendant’s conduct caused a foreseeable risk of harm,

(2) that the risk is to an interest of a kind that the law protects

against negligent invasion, (3) that defendant’s conduct was

unreasonable in light of the risk, (4) that the conduct was a cause

of plaintiff’s harm, and (5) that plaintiff was within the class of

persons and plaintiff’s injury was within the general type of

potential incidents and injuries that made defendant’s conduct

negligent.

Moody v. Or. Comm. Credit Union, 371 Or. 772, 784 (2023) (quoting Solberg v. Johnson, 306

Or. 484, 490-91 (1988)). Further, foreseeability “embodies a prospective judgment about a

course of events; it ‘therefore ordinarily depends on the facts of a concrete situation’ and, if

disputed, is a jury question.” Piazza v. Kellim, 360 Or. 58, 69-70 (2016) (quoting Fazzolari v.

Portland Sch. Dist. No. 1J, 303 Or. 1, 4 (1987)). Only “in an extreme case” can a court decide

that the risk to the plaintiff was unforeseeable as a matter of law. See Donaca v. Curry

County, 303 Or. 30, 38-39 (1987).

The Amended Complaint adequately alleges that the Farm Defendants, by intentionally

over-applying nitrogen-rich fertilizers and products to their farmlands, caused a foreseeable and

unreasonable risk of harm to Plaintiffs’ legally protected property interest in nitrate-free water.

Madison argues that Plaintiffs failed to allege harm, but under Oregon law, the “simplest legally

protected interest is in being ‘free from physical harm at the hands of another,’” which “includes

both bodily injury and property damage.” Moody, 371 Or. at 784 (quoting Philibert v.

Kluser, 360 Or. 698, 703 (2016)). Plaintiffs’ alleged injury of “property damage” caused by

Madison and the other Farm Defendants’ nitrate pollution in the LUBGWMA is therefore

sufficient to state a claim. FAC ¶ 128.

Plaintiffs also plausibly allege that the Farm Defendants knew or should have known

about the risk from nitrate pollution,22 and that the Farm Defendants’ over-application of

nitrogen was unreasonable in light of the risk to Plaintiffs’ water quality; specifically, Plaintiffs

allege that application of nitrogen-rich fertilizer in excess of the agronomic rate, or in the winter

seasons, have little to no benefit to the Farm Defendants’ crops, but pose serious risk to water

quality in the LUBGWMA. Id. at ¶¶ 61-62 (fertilizer in excess of agronomic rate is not absorbed

or beneficial); 71 (the Farm Defendants pump nitrogen-rich wastewater onto fallow fields).

Plaintiffs plausibly allege causation, as DEQ has attributed 70 percent of nitrate contamination in

the LUBGWMA to irrigated farmland and the Farm Defendants engage in irrigated agriculture

operations in the LUBGWMA, contributing to this harm. Id. ¶¶ 5, 35-37, 60-65. Finally,

Plaintiffs have plausibly alleged that their injuries are foreseeable—between EPA studies about

nitrates and DEQ naming the LUBGWMA a groundwater management area in the early 2000s, a

reasonable jury could conclude that the Farm Defendants would foresee that over-application of

nitrogen fertilizer would contaminate the water of those people living in the LUBGWMA.

22 See FAC ¶¶ 42 (EPA and DEQ’s established nitrate safety thresholds); 48 (DEQ

declared the LUBGWMA a groundwater management area in 2001); 54-55 & Table 1-2 (“nitrate

exceedances” list, including “Lamb Weston,” submitted to EPA); 76 (Lamb Weston’s DEQ

permit); 80, 83 (public DEQ penalties issued to Port of Morrow describing adverse effects of

nitrogen on drinking water);124-25 (Defendants “know that nitrates are hazardous to human

health”).

Threemile also argues that Plaintiffs do not sufficiently allege facts to show that

Threemile caused Plaintiffs’ harm. Threemile suggests that Plaintiffs should have alleged facts

such as the permits that Threemile maintains in connection with its irrigated agriculture, how

much nitrogen in the LUBGWMA is attributable to Threemile, or the quantity of nitrogen-rich

wastewater that Threemile discharges. The full extent to which Threemile’s actions caused

damage to Plaintiffs need not be pleaded. Instead, that can be addressed in discovery or

thereafter.

Although Plaintiffs adequately state a negligence claim against the Farm Defendants,

they fail to state a claim against BNW for the same reason previously discussed that they fail to

state a RCRA claim against BNW. Plaintiffs make no allegations about what BNW did in the

LUBGWMA, only what they may have done. In short, Plaintiffs fail to allege a facially plausible

causal connection between BNW’s actions and the harm that Plaintiffs have suffered. In

addition, Plaintiffs have not yet adequately stated a negligence claim against the Port because of

Plaintiffs’ failure to allege timely notice under the OTCA.

4. Negligence Per Se

Judge Hallman recommends that the Court dismiss Plaintiffs’ negligence per se claim

without prejudice. No party objected, and the Court finds no clear error.

5. Trespass

Judge Hallman recommends that the Court allow Plaintiffs’ trespass claim to proceed.

The Court adopts this recommendation with respect to the Farm Defendants, but not with respect

to BNW or the Port for the reasons previously discussed. “A plaintiff claiming trespass must

show that the defendant invaded the exclusive possession of his property . . . .” Hay v. Or. Dep’t

of Transp., 301 Or. 129, 135 (1986). However, “a trespass can result from an intrusion by

invisible as well as visible forces and [] it is the force of the instrumentality rather than its size

which is significant in determining whether a trespass has been committed.” Martin v. Union

Pac. R.R. Co., 256 Or. 563, 566 (1970). A plaintiff must also “show that the intrusion was

intentional or, if unintentional, the result of defendants’ negligence or ultrahazardous activity.”

Gibson v. Morris, 270 Or. App. 608, 613 (2015). “In the case of continuing intrusion, conduct is

intentional if the intruder knew of the continuing intrusion and allowed the intrusion to persist,

regardless of whether the defendant acted intentionally when the intrusion began.” Goldingay v.

Progressive Cas. Ins. Co., 306 F. Supp. 3d 1259, 1265 (D. Or. 2018).

Plaintiffs sufficiently allege that the Farm Defendants intentionally trespassed on their

property by continuing to cause nitrate pollution in the groundwater. As Judge Hallman

recommends, each Plaintiff sufficiently alleged that the contamination compromised the drinking

water on their properties and that these Defendants knew that their actions were contaminating

the groundwater in the LUBGWMA. However, Plaintiffs fail to allege that BNW invaded their

properties. Accordingly, the claim against BNW must be dismissed. As explained, Plaintiffs also

have not yet adequately stated a nuisance claim against the Port because of the OTCA.

6. Private Nuisance

Judge Hallman recommends that the Court allow Plaintiffs’ private nuisance claim to

proceed. The Court adopts that recommendation with respect to the Farm Defendants but not

with respect to BNW or the Port for the reasons previously discussed. “[A] plaintiff claiming

private nuisance must show that the defendant unreasonably and substantially interfered with the

use and enjoyment of his property . . . .” Hay, 301 Or. at 135. The substantial and unreasonable

use and enjoyment “inquiry ‘depends on the individual facts of a particular case’ and requires

‘clear and convincing’ proof.” Mark v. State ex rel. Dep’t of Fish & Wildlife, 191 Or. App. 563,

573 (2004) (quoting Jewett v. Deerhorn Enters., Inc., 281 Or. 469, 473 (1978)). Courts look to

five guidelines to determine the severity of the nuisance: “(1) the location of the claimed

nuisance; (2) the character of the neighborhood; (3) the nature of the thing complained of; (4) the

frequency of the intrusion; and (5) the effect upon the enjoyment of life, health and property.” Id.

(quoting Smith v. Wallowa County, 145 Or. App. 341, 346 (1996)).

Plaintiffs plausibly allege that the Farm Defendants have committed a private nuisance.

As alleged, Plaintiffs cannot consume their well or tap water and must instead purchase bottled

water because nitrate contamination has rendered their water unsafe. See FAC ¶¶ 12-33. This is a

substantial interference with Plaintiffs’ use and enjoyment of their properties. As Judge Hallman

found, “[t]he nature of the thing complained of—access to safe drinking water—is fundamental

to the use and enjoyment of any residential property,” “the frequency of the intrusion is

constant,” and the “unavailability of clean drinking water has a profound and substantial effect

upon the enjoyment of life, health, and property.” F&R 67-68. The interference also is

unreasonable, given that Plaintiffs allege that there is no benefit to crop to over-applying

nitrogen in the manner that is polluting Plaintiffs’ water. Thus, Plaintiffs have plausibly alleged

nuisance. For the same reasons as explained above, Plaintiffs fail to allege a nuisance claim

against BNW and the Port.23

7. Public Nuisance

Judge Hallman recommends that the Court dismiss Plaintiff Strange’s public nuisance

claim without prejudice. As to all other Plaintiffs, Judge Hallman recommends that the Court

allow their public nuisance claims to proceed. The Court agrees that Plaintiff Strange fails to

state a claim. As with the other tort claims, the Court adopts Judge Hallman’s recommendations

23 Because Plaintiffs fail to state a claim against the Port for nuisance, the Court does not

reach the Port’s argument that its actions were not unreasonable, and therefore cannot constitute

a nuisance, because they were taken pursuant to the Port’s DEQ license.

with respect to the Farm Defendants but not with respect to BNW or the Port for the reasons

previously discussed.

“A plaintiff claiming public nuisance must show ‘an unreasonable interference with a

right which is common to members of the public generally.’” Hay, 301 Or. at 135 (quoting

Raymond v. S. Pac. Co., 259 Or. 629, 634 (1971)). “Because the primary responsibility for

preventing public nuisances is with the public authorities, a private action to enforce that right

requires proof that the plaintiff suffered an injury distinct from the injury that the public as a

whole suffered.” Drayton v. City of Lincoln City, 244 Or. App. 144, 148 (2011) (quotation

omitted). Thus, an individual bringing a public nuisance claim must “show special injury,

different in kind than that suffered by the general public.” Frady v. Portland Gen. Elec. Co., 55

Or. App. 344, 348 (1981). Greater “proximity” or “inconvenience” is insufficient—“special

injury must be different in kind, not merely degree.” Id. at 349.

The special injury that Plaintiffs allege is nitrate contamination of the properties they rent

or own, which requires them to purchase bottled water. See FAC ¶¶ 15, 23, 31. For Plaintiffs

Pearson and the Suters, this harm is a special injury, as it materialized in actual loss of value to

their property. See Frady, 55 Or. App. at 349 (recognizing that specific injuries may be to “an

individual’s right to use and enjoy his real property”). Plaintiff Strange is a renter, however,

whose inconvenience in being required to drink bottled water is, although greater in degree, not

different in kind from the injury suffered by the public at large. The Court therefore adopts Judge

Hallman’s recommendation that Plaintiffs Pearson and the Suters have plead a special injury, but

Plaintiff Strange has not. Thus, Defendants’ motions to dismiss the public nuisance claim

brought by Plaintiff Strange and the proposed renter subclass is granted.

8. Or. Const. art. 1, § 18, Inverse Condemnation

Regarding the Renter/Owner Subclass, Plaintiffs assert that the Port’s dumping

contaminated water in amounts greater than was allowed under its permits is a governmental

taking in violation of the Oregon Constitution. FAC ¶¶ 151-56. The Port moved to dismiss,

arguing that Plaintiffs failed to allege: (1) that any taking by the Port was intentional; (2) that any

taking was for “public use”; and (3) that any interference with the Renter/Owner Subclass’s

property by the port was substantial. Judge Hallman recommends that the Court allow Plaintiffs’

inverse condemnation claim to proceed. The Court adopts Judge Hallman’s recommendation.

a. Standards

Article I, Section 18 of the Oregon Constitution provides: “Private property shall not be

taken for public use . . . without just compensation.” As the Oregon Supreme Court has

explained, however, that clause “itself does little to inform the understanding of when a

government action constitutes a compensable taking,” and there is “no single or uniform legal

test” to evaluate whether something is a taking. Dunn v. City of Milwaukee, 355 Or. 339, 347-48

(2014). “The most that can be said is that there must be an appropriation of private property for a

public purpose that is characteristic of an exercise of eminent domain authority.” Id. at 347

(quotations omitted). The private property at issue is not “limited to real property,” but extends

to “the owner’s fundamental legal interests in the property, such as the right to possess, use, and

dispose of property.” Id. at 347-48; see also Cereghino v. State ex rel. State Highway

Comm’n, 230 Or. 439, 449 (1962) (“The word ‘property’ in [the Oregon and United States

Constitutions] is not used in its vulgar and untechnical sense . . . but to denote the group of rights

inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of

it.” (quotations omitted)). Under any takings theory, a plaintiff asserting an inverse

condemnation claim must show that the government took private property “intending to put that

property to public use.” Mossberg v. Univ. of Or., 240 Or. App. 490, 501 (2011). Whether

something is a public use “is always a question of law for judicial determination.” Id. at 501 n.7

(quoting Port of Umatilla v. Richmond, 212 Or. 596, 611 (1958)). “Public use implies a

possession, occupation, and enjoyment of the land by the public at large or by public agencies.”

Gearin v. Marion County, 110 Or. 390, 401 (1924) (quotation omitted).

One way that a de facto taking occurs is when a governmental actor “invades a private

property right in a way that substantially interferes with the owner’s use and enjoyment of the

property, thereby reducing its value.” Hall v. State ex rel. Or. Dep’t of Transp., 355 Or. 503, 511

(2014); see also Dunn, 355 Or. at 349 (collecting cases for the proposition that “the intentional

physical occupation or invasion of property by government for a public purpose generally

amounts to a taking, if there is a substantial interference with the property owner’s protected

interests”). Under this theory, the government must have an “intent to take.” Dunn, 355 Or. at

351-52 (“[W]here a government action results in a physical invasion of property, a taking arises

only if the injurious invasion was the necessary, inevitable, or otherwise certain consequence of

the government’s intentional act.”). To prove an intent to take, the plaintiff need only “show that

the government intentionally undertook its actions and that the inevitable result of those actions,

in the ordinary course of events, was the invasion of the plaintiff’s property that is the basis for

the inverse condemnation claim.” Id. at 358-59.

b. Application

Plaintiffs’ theory is that the Port’s water pollution substantially interferes with Plaintiffs’

use and enjoyment of their properties and reduces the value of Plaintiffs’ properties. Under this

theory, Plaintiffs who own properties in LUBGWMA have stated an inverse condemnation claim

against the Port. Plaintiff Strange and the proposed renter subclass, however, have not.

The Port cannot take something that Plaintiffs do not have. See Dunn, 355 Or. at 347-48

(taking is infringement on “the owner’s fundamental legal interests in the property” (emphasis

added)). Because Plaintiff Strange and renters do not own the properties the Port is allegedly

taking, they have not plausibly alleged that the Port’s actions have reduced their property values.

See Hall, 355 Or. at 511. The Port’s motion is granted with respect to them.

On the other hand, the owner Plaintiffs have stated a claim. Those Plaintiffs have

sufficiently alleged that the Port’s taking was for public use. Plaintiffs allege that the Port’s

executive director “said that the Port will continue to apply wastewater to farmland during the

winter because there is no alternative short of closing processing plants.” FAC ¶ 92. Put another

way, the Port dumps nitrogen-rich wastewater onto farms, which in turn contaminates Plaintiffs’

water and lowers their property value, to save the government entity money. This is precisely the

sort of sacrifice of “property rights . . . to public convenience or necessity without just

compensation” that the Oregon Constitution prohibits. See Tomasek v. State, 196 Or. 120, 146

(1952) (quotation omitted). The Port argues that Plaintiffs fail to allege that the public, or the

Port, had any direct use of any property owned by any of the Plaintiffs. But the Oregon Court of

Appeals has rejected the premise that public use may only be defined as a “direct” and beneficial

use of land by a governmental entity. See Vokoun v. City of Lake Oswego, 189 Or. App. 499,

504-505 (2003) (collecting cases), cert. denied, 336 Or. 406 (2004). In Tomasek, for example,

the Oregon Supreme Court held that the public use element was satisfied when, in the pursuit of

constructing a new bridge and relocating a stretch of highway, the State of Oregon accidentally

flooded a portion of the plaintiff’s property. See 196 Or. at 124-32. Because the construction was

for a public purpose, and because the “direct effect of this construction was a partial destruction

of plaintiff’s lands, it constituted a taking for a public purpose within the meaning of the

constitution.” Id. at 151. “It is the fact of taking, rather than the manner of taking, that is

important.” Id. The Port’s argument that Plaintiffs failed to allege that the Port directly used their

properties is also irrelevant to Plaintiffs’ takings theory. Plaintiffs allege that, by dumping

contaminated water in the LUBGWMA in excess of its permits,” the Port contaminated

Plaintiffs’ wells and infringed on their “property interests.” See FAC ¶¶ 153-55 (emphasis

added). Plaintiffs need not allege that the Port made direct use of their properties when their

claims revolve around a derogation of their property interests.

The owner Plaintiffs also have sufficiently alleged that the Port’s taking was intentional.

Although the Port argues that “the Complaint includes no allegations that the Port took any

action to intentionally impact any particular Plaintiff,” and no allegations that the Port

intentionally invaded any of the Plaintiffs’ properties, those allegations are not necessary to state

a takings claim under Oregon law. Rather, the plaintiff need only plausibly allege that the Port

intentionally dumped wastewater, and that the “inevitable result” of that action, “in the ordinary

course of events,” was the contamination of Plaintiffs’ water. See Dunn, 355 Or. at 358-59.

Plaintiffs allege that the Port regularly violates its DEQ permits by dumping wastewater in

excess of crops’ agronomic load. FAC ¶¶ 78-92. The purpose of the Port’s permit is to limit the

amount of nitrogen entering the groundwater to curtail water pollution in the LUBGWMA. See

id. ¶ 74 (describing permit). Indeed, DEQ has explicitly warned the Port that its violations would

further contaminate groundwater and drinking water in the LUBGWMA. Id. at ¶¶ 80 (“Your

land application sites are located in a Groundwater Management Area so designated by DEQ

because of nitrogen contamination. DEQ issued this penalty because discharging more nitrogen

than allowed by your permit in a groundwater below the root zone and enter groundwater.”); 83

(“DEQ issued this penalty because groundwater adversely impacted by the Port of Morrow’s

wintertime land application of nitrogen containing wastewater is used as drinking water by

residents of the [LUBGWMA].”). Because nitrate contamination is a necessary and common

consequence to over-applying nitrogen-rich materials (including wastewater) to soil, Plaintiffs

have plausibly alleged intent.

Finally, the owner Plaintiffs have sufficiently alleged that the Port’s interference has

substantially interfered with Plaintiffs’ use and enjoyment of their property. See Hall, 355 Or.

at 511. Pearson, the Suters, and Strange allege that they depend on bottled water for drinking and

cooking. See FAC ¶ 18 (Pearson), 25 (the Suters), 30-31 (Strange). Pearson and the Suters have

wells with nitrate concentrations scores higher than the EPA’s 10 mg/L safe consumption

threshold. Id. ¶¶ 16-17 (Pearson, 16 mg/L), 23 (the Suters, 38 mg/L). Strange’s water has

“dangerously high” levels of nitrates according to an at-home test kit. Id. ¶ 29. Whether these

interferences with Plaintiffs’ use and enjoyment of their properties are “substantial . . . are

questions of fact that cannot be decided on the pleadings.” See Gutierrez v. C&H Sugar,

Inc., 2023 WL 7927771, at *5 (N.D. Cal. Nov. 15, 2023) (holding that question of how

substantial and unreasonable any “alleged interferences with plaintiff’s use of his property” is

inappropriate to decide at motion to dismiss stage); see also City of Bristol v. Tilcon Minerals,

Inc., 284 Conn. 55, 84-86 (2007) (permitting takings claim to proceed to trial when issue was

whether “contaminated groundwater . . . substantially interfere[d] with the present or future use

of the property”; evaluating homeowners’ ability to market the property, property value, and

other trial evidence to determine that no taking occurred).

E. Medical Monitoring

Judge Hallman recommends that the Court dismiss without prejudice Plaintiffs’ requested

relief of medical monitoring. No party objected, and the Court finds no clear error.

CONCLUSION

The Court adopts in part and rejects in part Judge Hallman’s F&R (ECF 98). Specifically,

the Court: grants all motions for judicial notice (ECF 52, 53, 58, 82, and 84); grants BNW’s

motion to dismiss (ECF 51) and dismisses without prejudice all claims against BNW; grants in

part the Port and Threemile’s motion to dismiss (ECF 56) and dismisses without prejudice

Plaintiffs’ claims of negligence, negligence per se, trespass, private nuisance, and public

nuisance, and Plaintiff Strange and the proposed renter subclass’s inverse condemnation claim,

and dismisses without prejudice Plaintiff Strange and the proposed renter subclass’s public

nuisance claim against Threemile; and grants in part Lamb Weston and Madison’s motions to

dismiss (ECF 54; ECF 59) and dismisses without prejudice Plaintiff Strange and the proposed

renter subclass’s public nuisance claim. The Court grants Plaintiffs leave to replead.

IT IS SO ORDERED.

DATED this _1_9_th day of December, 2025.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge