Amicus Curiae Brief — Southview Farm v. Concerned Area Residents for the Environment

No. 94-1316 wad 1 age |

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IN THE ae,

Supreme Court of the United States

OCTOBER TERM, 1994

SOUTHVIEW FARM and RICHARD H. Popp,

Petitioners,

V.

CONCERNED AREA RESIDENTS FOR

THE ENVIRONMENT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF AMICI CURIAE OF

THE AMERICAN FARM BUREAU FEDERATION AND

THE NEW YORK FARM BUREAU, INC.

IN SUPPORT OF PETITIONER

JEFFERY H. KIRBY JOHN J. RADEMACHER *

General Counsel General Counsel

NEW YORK FARM BUREAU, INC. MICHAEL J. STIENTJES

Route 9W, Box 992 Assistant Counsel

Glenmont, NY 12077 AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, IL 60068

(312) 399-5732

Counsel for Amici

* Counsel of Record

WILSON - Eres PrintING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT ......____

I,

IT.

ITT.

IV.

EXCEPT FOR CONCENTRATED ANIMAL

FEEDING OPERATIONS, CONGRESS

CLEARLY INTENDED THAT ALL OTHER

AGRICULTURAL ACTIVITIES BE REGU-

LATED AS NON-POINT SOURCES UNDER

WE pore ee

THE APPLICATION OF MANURE TO

FARM LANDS THROUGH HUMAN ACTIV-

ITY IS NOT A POINT SOURCE DISCHARGE

EVEN THOUGIL IT ACCUMULATES AS

RUNOFF IN NATURAL OR ARTIFICIAL

CONVEYANCES AND IS CHANNELED TO

AND ENTERS SURFACE WATERS AT A

SPUD WOME nsec a

MANURE SPREADING VEHICLES AND

EQUIPMENT ARE NOT THEMSELVES

POINT SOURCES UNDER THE CWA _.___.

FARMS LIKE SOUTHVIEW FARM ARE

NOT CONCENTRATED ANIMAL FEEDING

OPERATIONS UNDER THE CWA......__

CONCLUSION 00000... within haannaiitcibiabteddéntnuanans

6

11

16

ii

TABLE OF AUTHORITIES

Cases:

Natural Resources Defense Council v. Train, 396

F. Supp. 1393 (D.D.C. 1975), aff’d sub nom.....

National Resources Defense Council v. Costle, 568

fe & BF: RR Sear on

Statutes and Regulations:

Be et Be ic hcntnicestesnitiatieeuonchandisiiaabtbdamlatioeddicaatile

2 TS | eee PEP ae SN NOES

38 U.S.C. § 1944.............. RIS ME rere ee Saar a ST cea ra

gk ERE enna ere Pe oe

PA ROR ce re een te en NN

Federal Water Pollution Control Act Amendments

of 1972, Pub. L. No. 92-500, 86 Stat. 816 ...........

Clean Water Act of 1977, Pub. L. No. 95-217, 91

— ___, GRIME Com NON ea "CRIN a THIN ALICE

Water Quality Act of 1987, Pub. L. No. 100-4, 101

RB akissitaneaicunbiscinniaeaasenbiatameniebaeintatiaia ‘i.

Miscellaneous:

S. Rep. No. 414, 92nd Cong., Ist Sess. 39, Re-

printed in 1972 U.S.C.C.A.N. 3759 .....................

S. Rep. No. 95-370, 95th Cong., Ist Sess. 35, Re-

printed in 1977 U.S.C.C.A.N. 4360 ........000.0.2200----

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1316

SOUTHVIEW FARM and RICHARD H. Popp.

‘ Petitioners,

CONCERNED AREA RESIDENTS FOR

THE ENVIRONMENT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF AMICI CURIAE OF

THE AMERICAN FARM BUREAU FEDERATION AND

THE NEW YORK FARM BUREAU, INC.

IN SUPPORT OF PETITIONER

With the written consent of all parties given and filed

with the Clerk of the Court, the American Farm Bureau

Federation and the New York Farm Bureau, Inc.. re-

spectfully submit this brief as amici curiae.

Amici curiae, the American Farm Bureau Federation

and the New York Farm Bureau, Inc., pray that a Writ

of Certiorari be issued to review the judgment of the

United States Court of Appeals for the Second Circuit

in this case.

INTEREST OF AMICI CURIAE

The American Farm Bureau Federation (AFBF) is

a voluntary general farm organization formed in 1919

2

and organized in 1920 under the General Not-For-Profit

Corporation Act of the State of Illinois and has its prin-

cipal offices in Park Ridge, Illinois. AFBF was founded

to protect, promote, and represent the business, eco-

nomic, social and educational interests of American

farmers and ranchers. AFBF has member organizations

in 50 states and Puerto Rico (including the New York

Farm Bureau, Inc.) and represents more than 4 million

member families. AFBF farm and ranch members pro-

duce virtually every kind of agricultural commodity pro-

duced commercially in the United States.

The New York Farm Bureau, Inc. (NYFB) ts a non-

governmental, voluntary farm organization. It is a not-

for-profit corporation which was originally organized

under the “Membership Corporation Law” of New York

State in 1953. NYFB’s purpose is to promote, protect

and represent the economic, social and educational inter-

ests of New York farmers, as well as to encourage the

development and preservation of agricultural areas within

the state. NYFB has a statewide membership of more

than 25,000 member families in 50 counties including

Wyoming County wherein the land and farming activities

of this case are situated.

The American Farm Bureau Federation and the New

York Farm Bureau, Inc. (hereinafter collectively re-

ferred to as “Farm Bureau”) and their members have a

vital interest in this case. The Court of Appeals for the

Second Circuit has overridden clear Congressional intent

and rewritten the Clean Water Act (CWA) so as to

regulate agricultural activities as point sources rather than

non-point sources of pollution. The Circuit Court ex-

panded the scope of what constitutes a concentrated ani-

mal feeding operation as a regulated point source far

beyond that intended by Congress. The Circuit Court

disregarded the clear intent of Congress that, except for

concentrated animal feeding operations, all other agri-

cultural activities are to be regulated under the CWA

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as non-point sources. The Circuit Court has even gone

so far as to make farm machinery and implements them-

selves into point sources of pollution, and made the appli-

cation of manure to land to fertilize crops growing thereon

a point source discharge to waters of the United States.

If allowed to stand, the Circuit Court’s decision will

have a devastating impact on virtually every farmer and

rancher in America through the imposition of an unin-

tended, unnecessary and extremely costly industrial-type

regulatory compliance burden involving additional re-

strictive and uneconomical farm and ranch operating

practices. Under the reach of the Circuit Court’s deci-

sion farmers and ranchers will have to seek federal per-

mits for usual and customary farming activities, includ-

ing the application of manure to farm fields and crop

lands as fertilizer. The Circuit Court’s decision is even

broad enough to encompass the application of any and

all fertilizers, pesticides and herbicides to agricultural

fields and crop lands. The Circuit Court’s decision also

opens the federal courts to a myriad of CWA citizen

suit actions against farmers and ranchers by individuals

whose real complaints are with the usual and customary

farm smells and odors that exist in the rural areas where

such individuals have chosen to reside.

STATEMENT OF THE CASE

Petitioners are a dairy farm and its manager (herein-

after collectively referred to as “Southview Farm”).

Southview Farm’s dairy operation is located in Wyoming

County, New York, and includes approximately 1,290

milking cows and 900 calves and heifers. Southview

Farm’s operation involves a manure collection, separation

and storage system that allows Southview Farm to recycle

organic nutrients through the application and spreading

of manure as fertilizer on some 1,900 acres of attendant

crop lands growing forage and feed for Southview Farm’s

dairy animals.

4

This case was initiated by the Respondents, a group

of rural residents, in federal court through the filing of

a citizen’s suit under the CWA. Respondents’ complaint

alleged violations of the CWA and also contained state

law causes of negligence, nuisance and trespass. The

CWA allegations complained of manure leakage from

Southview Farm’s storage lagoon to surface and ground-

water, and that manure applied by Southview Farm to

its crop lands accumulated and ran in discrete rivulets

into drainage ditches that drained into adjacent surface

waters. Respondents did not allege that the Southview

Farm’s dairy farm was a concentrated animal feeding

operation under the CWA.

Southview Farm moved unsuccessfully to dismiss Re-

spondents’ complaint and subsequently for summary judg-

ment on grounds that Respondents failed to allege and

could not show activities that constituted an illegal dis-

charge of a pollutant from a point source into waters of

the United States, all essential to the maintenance of a

citizen’s suit under the CWA. Southview Farm contended

that their operations were a non-point source of pollution

and as such not subject to a citizen’s suit enforcement

action. In denying Southview Farm’s motions the trial

court utilized a broad interpretation of what constituted

a point source, relying primarily on case authority involv-

ing the channeling or collecting of surface runoff into dis-

crete rivulets from industrial activities such as mining,

and not involving agricultural activities.

The case was tried to a jury which found for Respond-

ents on five of eleven alleged CWA discharge violations.

However, the trial court, on Southview Farm’s motion,

overturned the jury verdict on the CWA violations. Re-

spondents appealed to the Second Circuit Court of

Appeals.

The trial court had ruled prior to the submission of

the case to the jury that Southview Farm was not a con-

——————eeeeeeEee

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centrated animal feeding operation because Southview

Farm grew crops on its dairy farm lands. Respondents

did not appeal that ruling to the Circuit Court. Because

it was not raised on appeal by the Respondents, neither

Southview Farm nor Farm Bureau (which participated as

amici before both the trial court and the appellate court)

addressed the concentrated animal feeding operation issue

before the Circuit Court.

Four days prior to oral arguments, the United States

Environmental Protection Agency (EPA) through the

Department of Justice filed an out-of-time amicus brief

with the Circuit Court which was accepted over the

objection of Southview Farm. The Circuit Court further

refused to grant Southview Farm a continuance and per-

mission to file a response to the new arguments raised by

EPA relative to Southview Farm’s dairy activities con-

stituting a concentrated animal feeding operation.

The Circuit Court thereafter issued its decision which

substantially adopted the position and reasoning contained

in EPA’s out-of-time amicus brief. The Circuit Court

held that, because Southview Farm’s operation involved

more than 700 dairy animals and it did not grow e

within the area in which the animals were confined.

was a facility defined in EPA’s regulations under a

CWA as a concentrated animal feeding operation. The

Circuit Court also held that Southview Farm’s applica-

tion of manure to its crop fields was a point source dis-

charge when the manure accumulated or was picked- “up

in stormwater run-off and was channeled in discrete riv-

ulets to surface waters. And, finally, the Circuit Court

held that manure spreading equipment and vehicles them-

selves to be point sources under the CWA.

6

REASONS FOR GRANTING THE WRIT

The case now comes before this Court on petition for

certiorari which amici curiae, the American Farm Bureau

Federation and the New York Farm Bureau, Inc., strongly

support and urge this Court to grant. The Circuit Court

has seriously misconstrued the CWA and its regulation

of agricultural activities. It has overturned the intent of

Congress that, except for the singular activity of a con-

centrated animal feeding operation, agricultural activities

are to be regulated as non-point sources, not as point

sources.

The Circuit Court has rewritten the CWA such that

every farmer and rancher in America that maintains any

number of animals in a confined area can be regulated as

a concentrated animal feeding operation; that every

mechanical manure, fertilizer, pesticide, and herbicide ap-

plicator used by every farmer and rancher in America will

be regulated as a point souce under the CWA, and that

the application of manure, commercial fertilizers, pesti-

cides, and herbicides to crop lands will be illegal dis-

charges of a pollutant under the CWA if they find their

way into any surface waters through a discrete entry

point.

Virtually every farmer and rancher in the United

States is affected by the Circuit Court’s decision and is

vitally concerned with this Court accepting this case

for review and ultimately restoring Congress’ intent for

the regulation of agriculture as a non-point source under

the CWA.

I. EXCEPT FOR CONCENTRATED ANIMAL FEED-

ING OPERATIONS, CONGRESS CLEARLY IN-

TENDED THAT ALL OTHER AGRICULTURAL

ACTIVITIES BE REGULATED AS NON-POINT

SOURCES UNDER THE CWA

The CWA had it’s origin in the Federal Water Pollu-

tion Control Act Amendments of 1972, Pub. L. No. 92-

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500, 86 Stat. 816, 33 U.S.C. § 1251 et seg. This lengthy

and complicated Act represented the first serious attempt

to address the nation’s water pollution problems by focus-

ing on “point source” pollution. To address point source

pollution, the 1972 Amendments established the National

Pollution Discharge Elimination System (NPDES) which

applied effluent limitations through a federally mandated

and supervised permit system. Pub. L. No. 92-500,

§ 403, 86 Stat. 816, 880, codified as amended at 33

U.S.C. § 1342.

“Non-point sources,” on the other hand, were addressed

by Congress through the Section 208 planning process

which placed primary responsibility on the states. Pub.

L. 92-500, § 208, 86 Stat. 816, 839, codified as amended

at 33 U.S.C. § 1288. The exemption of non-point sources

from the NPDES permit system was not the result of a

failure to appreciate the problem on the part of the Con-

gress or to exclude it from regulation under the CWA.

To the contrary, Congress recognized that controlling

non-point sources, particularly agricultural activities, was

required to achieve its water quality goals.

Congress gave careful attention to agricultural activi-

ties when enacting the Federal Water Pollution Control

Act. But for the singular exception of a concentrated

animal feeding operation which was expressly included

within the definition of a point source, Congress chose

to address the problem of agricultural pollution under the

non-point source control provisions of Section 208. Pub.

L. No. 92-500, § 208(b)(2)(f), 86 Stat. 816, 841, codi-

fied as amended at 33 U.S.C. § 1288(b)(2)(f). The

problem’s magnitude, in terms of the number and variety

of sources, the site specific nature of such sources, the

lack of known control technologies, and the perception

that many non-point problems could be addressed only

through land use controls, a traditional state role. re-

quired an approach different from that given point

sources under the NPDES. As Senator Bob Dole indi-

8

cated in his supplemental views in the Senate Report

accompanying the 1972 Amendments, “A major new

thrust of this bill is in the field of agricultural pollution

. . The bill would amend the Federal Pollution Con-

trol Act to place responsibility on the states for instituting

and expanding the control of water pollution related to ,

agriculture.” See S. Rep. No. 414, 92d Cong., Ist Sess.

39, Supplemental Views of Senator Bob Dole, reprinted

in 1972 U.S.C.C.A.N. at 3759.

Congress has revisited and revised the Federal Water

Pollution Control Act Amendments several times since

1972, including renaming it as the “Clean Water Act”

in 1977. Pub. L. 95-217, sec. 2, § 518, 91 Stat. 1566.

For the most part, however, the basic 1972 framework

remains in place and the fact that Congress intended to

continue regulating agricultural activities as non-point

sources under Section 208 is evidenced by the specific

revisions made in direct response to subsequent court

interpretations that ran contrary to such intent. Most

revealing is the revision made amending the point source

definition in 1977 to exclude “return flows from irrigated

agriculture.” Pub. L. No. 95-217, § 33(b), 91 Stat.

1577, codified at 33 U.S.C. § 1362(14). This revision

was made to override Natural Resources Defense Coun-

cil v. Train, 393 F. Supp. 1393 (D.D.C. 1975), aff'd

sub nom., and Natural Resources Defense Council v.

Costle, 568 F.2d 1369 (D.C. Cir. 1977), where permit

requirements under Section 402 of the CWA were held

to apply to return flows from irrigated agriculture in spite

of the fact that section 208(b)(f) provided for state

control plans that included a process to (i) identify, if

appropriate, agriculturally and silviculturally related non-

point sources of pollution, including return flows from

irrigated agriculture.

In responding to these court decisions with rectifying

legislation, Congress made a very clear statement as to

what its intent was and is for agriculture under the CWA:

9

Testimony in field hearings suggested that effluent

limitations based on technological methods may not

be appropriate for control of return flow pollutants

and the committee determined that these sources

were practically indistinguishable from any other

agricultural runoff, which may or may not involve a

similar discrete point of entry into a water-course.

All such sources, regardless of the manner in which

the flow was applied to the agricultural lands, and

regardless of the discrete nature of the entry point,

are more appropriately treated under the require-

ments of section 208(b)(2)(F). (Emphasis added)

S. Rep. No. 95-370, 95th Cong., Ist Sess. 35, reprinted

in 1977 U.S.C.C.A.N. at 4360.

This same non-point intent was the basis upon which

Congress added the express exclusion for “agricultural

stormwater discharges” from the point source definition

when the CWA was amended in 1987 to provide for the

comprehensive regulation of certain forms of industrial

and municipal stormwater runoff. Pub. L. No. 100-4,

§ 503, 101 Stat. 75, codified at 33 U.S.C. § 1362(14).

Congress so acted to preclude any possible misconstruc-

tion that agriculture was to be included in the municipal

and industrial stormwater control program.

Il. THE APPLICATION OF MANURE TO FARM

LANDS THROUGH HUMAN ACTIVITY IS NOT

A POINT SOURCE DISCHARGE EVEN THOUGH

IT ACCUMULATES AS RUN-OFF IN NATURAL

OR ARTIFICIAL CONVEYANCES AND IS CHAN-

NELED TO AND ENTERS SURFACE WATERS

AT A DISCRETE POINT

Noting that the definition of a point source under the

CWA is to be broadly interpreted, the Circuit Court held

that manure applied by Southview Farm to its farm lands

and thereafter collected and channeled to surface waters

constituted a discharge by a point source. Expanded to

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its broadest extent, the Circuit Court’s decision is equally

applicable to the application of any fertilizer, pesticide

or herbicide to agricultural lands if they collect in run-off

that becomes channeled and enters surface waters through

a discrete point.

The Circuit Court supported its interpretation of the

CWA with authorities that involved or relied upon cases

that involved activities other than agriculture, primarily

mining activities. As indicated by the foregoing discus-

sion of the special consideration and treatment accorded

agriculture by Congress in enacting and amending the

CWA, decisions involving the interpretation and applica-

tion of the law in mining and industrial pollution cases

are not applicable to agricultural activities.

In any event, the Circuit Court’s broad point source

interpretation ignores the clear expression of contrary

intent when it overrode the court decisions holding agri-

cultural irrigation return flows to be point sources. As

Congress clearly indicated, such flows were indistinguish-

able from any other agricultural runoff which may or may

not involve a discrete point of entry into a water course.

All such agricultural sources regardless of the manner

in which applied to the agricultural lands, and regardless

of the discrete nature of the entry point, are to be treated

and regulated under the CWA as non-point sources.

III. MANURE SPREADING VEHICLES AND EQUIP-

MENT ARE NOT THEMSELVES POINT SOURCES

UNDER THE CWA

Relying primarily again on case authorities that in-

volved activities other than agriculture, the Circuit Court

held manure spreading vehicles are themselves point

sources. The cases relied on by the Circuit Court for

this decision involved the role of vehicles and equipment

in the dredging and filling of wetlands under Section 404

of the CWA. 33 U.S.C. § 1344(a). Not only are such

11

cases inappropriate to assess the role of vehicles and

equipment used in the conduct of normal farming prac-

tices, but the Circuit Court has stretched the defintion of a

point source beyond its endurable limits. In the case of

Southview Farm, such equipment only applied manure

to farm fields and crop lands. It was later, through natu-

ral collection and channeling, that the applied manure

reached any surface waters. If anything, vehicles and

equipment that apply manure and other farm chemicals

to agricultural crop lands and fields are instruments of

non-point pollution.

IV. FARMS LIKE SOUTHVIEW FARM ARE NOT CON-

CENTRATED ANIMAL FEEDING OPERATIONS

UNDER THE CWA

The CWA, while generally treating agriculturally re-

lated pollution as nonpoint source pollution under Section

208, does specifically treat pollution from “concentrated

animal feeding operations” as point sources. The term

“concentrated animal feeding operation” is not defined

under the CWA, but is found in EPA’s implementing

regulations, at 40 C.F.R. § 122.23(b)(3), as follows:

“Concentrated animal feeding operation” means an

“animals feeding operation” which meets the criteria

in Appendix B of this part, or which the Director

designates under paragraph (c) of this section (40

C.F.R. § 122.23(b)).

The structure of this definition requires that in order

to be a “concentrated animal feeding operation”, the

facility must first be an “animal feeding operation”. The

term “animal feeding operation” is defined at 40 C.F.R.

$ 122.23(b)(1). which reads as follows:

“Animal feeding operation” means a lot or facility

(other than an aquatic animal production facility)

where the following conditions are met:

(i) Animals (other than aquatic animals) have

been, are, or will be stabled or confined and

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fed or maintained for a total of 45 days or

more in any 12 month period and

(ii) crops, vegetation forage growth, or post

harvest residues are not sustained in the normal

growing season over any portion of the lot or

facility. (emphasis added)

It is clear from the structure and criteria of the defi-

nitions of “concentrated animal feeding operation”

(CAFO) and “animal feeding operation” (AFO), that

these terms were intended to apply to the specific situa-

tion of a “feeding” operation where animals are brought

together in a facility which consists only of a “confined

area”; where the facility does not include actual “farm

acreage” where crops are grown and where other normal

farming activities are conducted; and where the facility

is not a “farming operation” at all. The most obvious

example of an AFO or CAFO facility as intended by

Congress is a cattle-fattening feedlot, where animals are

simply held for feeding and fattening prior to slaughter.

In that situation, the facility consists of a feedlot only,

with no attendant farming operation or farm acreage for

the raising of crops for those animals, and where all feed

inputs are brought to the facility from outside sources.

The present case is very different from the cattle fatten-

ing feedlot scenario, and represents a situation which

Congress did not intend to be considered a “CAFO”.

Southview Farm is not a feedlot or a feeding operation.

Southview Farm is, as its name implies, a “farm”. South-

view Farm’s animals are not brought there temporarily

for the purpose of confined feeding and fattening, but

are instead there as an integral part of the overall farm

operation. Being a dairy farm, the ultimate purpose or

goal of the activity is the production of milk. However,

the overall farming operation at Southview Farm, and at

thousands of other similar dairy farms throughout the

country, is much broader and includes, for example, ex-

tensive crop production. In contrast to the “no crops or

13

forage sustained on the premises” requirement, Southview

Farm’s operation includes over 2,000 acres of land, both

owned and rented, where an immense volume of crops

and forage is cultivated, specifically for the purpose of

sustaining the dairy cows at Southview Farm.

Since the definition of “animal feeding operation”

under the CAFO regulations uses the word “and” rather

than “or”, both the conditions of (1) and (ii) above must

be satisfied in order for a facility to meet the definition

of an “animal feeding operation”. Southview Farm can-

not be considered an “animal feeding operation”, since it

does not meet condition (ii) above. In contrast to con-

dition (ii) of that definition, which requires that “crops,

vegetation forage growth, or post-harvest residues are not

sustained in the normal growing season over any portion

of the lot or facility”, Southview Farm grows or produces

a vast quantity of the forage and feed for its animals

directly on the acreage of the farm operation. The total

projected volume of crops and forage produced on the

farm property for the 1992 crop year was 25,000 tons.

That amount was produced on a total of approximately

1,900 tillable acres of the total 2,200 acres of South-

view’s farm operation, and consisted of corn silage,

alfalfa, clover and grasses.

Due to the large volume of crops and forage sustained

on the farm during the normal growing season, and cover-

ing almost 90% of total farm acreage, Southview Farm

clearly does not meet the definition of an “animal feeding

operation”, and by law cannot be held to be such an

operation. Since Southview Farm cannot be considered

an “animal feeding operation”, and since by definition a

facility must be an “animal feeding operation” in order to

meet the definition of “concentrated animal feeding oper-

ation”, Southview Farm, by definition and by law, cannot

be considered a “concentrated animal feeding operation”

point source under the CWA.

a

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The Circuit Court, however, adopted the view that for

the “crops forage exception” to apply, and thereby re-

move the farm from the CAFO category, the crops or

vegetation must be grown within the facility. Specifically,

the Circuit Court held that “a lot or facility is an AFO

when it confines and maintains animals on a lot which

does not contain vegetation in the normal growing season.

The vegetation criterion applies to the lot or facility in

which the animals are confined”.

The Circuit Court has grossly misconstrued the mean-

ing and intent of this CWA regulatory language and

rendered it nonsensable. This language simply cannot

mean that crops must be grown inside the confinement

facility or feeding area. Crops or forage for large num-

bers of animals are never grown inside the actual struc-

ture where the animals are housed or fed. Crops for

farm operations are always grown outside of the barn or

place of confinement in open fields. Congress would

never have intended an interpretation of the CWA which

makes no common sense, or which has no practical mean-

ing or application in the real world, or to those Congress

intended to regulate. Clearly, Congress intended to ex-

cept those farms where even though there may be more

than seven hundred dairy animals, crops are grown over

some portion of the lot or facility on which a barn or

place of confinement exists.

Furthermore, the Circuit Court’s interpretation is not

supported by the specific language of the AFO definition,

which simply does not say the vegetation or growth must

be grown within the facility. First, the AFO definition

States that an “animal feeding operation” means a lot or

facility “where the following conditions are met”. The

language does not say, for instance, “within which the

following conditions are met”. The word “where” is

much broader than a restrictive phrase such as “within

which”. Secondly, in part (ii) of the definition, the words

“over any portion of” the lot or facility are used. Again,

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the fact that such broad language is used works against

the restrictive interpretation adopted by the Circuit Court,

that the crops or forage must be grown “within” a feedlot

facility in order to be removed from the CAFO category.

Farm Bureau submits that the use of the terms “where”

rather than “within”, and the phrase “over any portion

of” rather than “within”, makes it very clear that the

Circuit Court’s interpretation of these terms is erroneous.

The Circuit Court also placed heavy emphasis on the

fact that the daiy animals at Southview Farm are not

pastured. The Circuit Court’s focus and emphasis on

whether the animals are pastured is misplaced. There is

nothing in the CWA regulatory language or Congres-

sional intent that even remotely or indirectly refers to

whether or not the animals are pastured. Pasturing is

simply not a factor that Congress intended regulators or

courts to utilize in determining whether or not a farm

operation is a CAFO.

In addition, the Court’s emphasis on the pasturing issue

leads to a direct conflict with the position adopted by the

Circuit Court in regard to the “crops forage exception”

within the regulatory definition of an AFO. As previ-

ously indicated, the Circuit Court interpreted that lan-

guage to mean that the crops must be actually grown

inside the facility in order to remove an operation from

the CAFO category. The Circuit Court’s repeated em-

phasis on the fact that Southview Farm’s cows are not

pastured implies that if the cows had been pastured, they

would have been “confined” in an area which sustains

“vegetation forage growth”, and Southview Farm would

then have satisfied the crop forage exception and would

not be considered a CAFO. Therefore, the Circuit

Court’s decision appears to reason that when animals are

pastured, the pasture areas are part of the “area of con-

finement”, which is how crops and forage could be grown

inside that confinement area.

Farm Bureau disagrees with this reasoning. If pastur-

ing areas were intended to be considered part of the

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“area of confinement”, what would Congress have con-

sidered to be “unconfined”? Farm Bureau is not aware

of any situations where dairy animals are totally uncon-

fined and allowed to roam completely free. If the animals

are “pastured”, then they are no longer “confined”.

Therefore, although the regulations do not define the

terms “lot” or “facility”, its use of the terms “confined”

in part (i) of the CAFO definition, and “lot or facility”

in part (ii) of that definition, when interpreted in com-

bination, must refer to the barn, barnyard, or immediate

enclosure. It then follows that the “crops forage growth”

language cannot reasonably require such growth to occur

inside the actual stucture or confinement area. The only

reasonable interpretation of part (ii) of the AFO defini-

tion is that the language “crops, vegetation forage

growth, or post-harvest residues . . . sustained in the

normal growing season over any portion of the lot or

facility” refers to the lot where the barn or place of

confinement is located, and the rest of the “facility,” in-

cluding adjacent fields, which are part and parcel of the

overall farming operation.

CONCLUSION

For the reasons outlined above, certiorari should be

granted and the judgment below reversed.

Respectfully submitted,

JEFFERY H. KIRBY JOHN J. RADEMACHER *

General Counsel General Counsel

NEW YORK FARM BUREAU, INC. MICHAEL J. STIENTJES

Route 9W, Box 992 Assistant Counsel

Glenmont, NY 12077 AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, IL 60068

(312) 399-5732

Counsel for Amici

* Counsel of Record

Dated: March 31, 1995

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