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October 19, 1993


The opinion of the court was delivered by: DAVID G. LARIMER



 This is a citizen suit under the Federal Water Pollution Control Act, also known as the Clean Water Act ("CWA" or "the Act"), 33 U.S.C. § 1251 et seq. Also originally pleaded were several supplemental state claims including negligence, nuisance and trespass. The relevant facts have been set out in this Court's prior decisions on defendants' motions to dismiss and for summary judgment, entered on August 29, 1991 and April 7, 1993 respectively. Familiarity with those decisions is assumed.

 On May 19, 1993, a jury returned in a verdict in the trial of this action finding that defendants had violated the CWA on five occasions, and that defendants had committed a common law trespass against each plaintiff. The jury found in favor of defendants on six other alleged CWA violations, and it also found no cause of action on all of the negligence and nuisance claims.

 The jury awarded damages on the trespass claims, but the court's determination of a remedy for the CWA claims is contingent upon my resolution of these post-trial motions.

 Defendants now move for judgment as a matter of law under Fed. R. Civ. P. 50(b) on the CWA and trespass claims.

 Defendants' motion is granted on all of the CWA claims, but otherwise denied.


 1. Legal Standard

 Defendants' burden to prevail on a motion for judgment as a matter of law following a jury verdict in plaintiffs' favor is a strict one. Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489 U.S. 1034, 103 L. Ed. 2d 230, 109 S. Ct. 1095 (1989). The court should grant the motion "only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him." Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167-68 (2d Cir. 1980). If the evidence, viewed in the light most favorable to plaintiffs, was sufficient to have allowed a reasonable juror to arrive at a verdict for plaintiffs, the motion must be denied. Konik v. Champlain Valley Physicians Hosp., 733 F.2d 1007, 1013 (2d Cir. 1984), cert. denied, 469 U.S. 884, 83 L. Ed. 2d 190, 105 S. Ct. 253 (1984).

 In deciding the motion, the court must draw all reasonable inferences, and resolve all questions of credibility, in plaintiffs' favor. Id. "The trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Mattivi, 618 F.2d at 167.

 Despite the heavy burden placed on the moving party, however, when it is clear that the evidence does not support the verdict, the motion must be granted. "It is error to deny a judgment notwithstanding the verdict when it is clear that the evidence and its inferences cannot reasonably support a judgment in favor of the opposing party." Erickson v. Pierce County, 960 F.2d 801, 804 (9th Cir.), cert. denied, 121 L. Ed. 2d 687, 113 S. Ct. 815 (1992); see also Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 207 (2d Cir. 1984) (district court erred in denying motion for judgment n.o.v. in view of insufficiency of the evidence to support plaintiff's claim).

 In addition, a mere scintilla of evidence will not suffice to support a verdict. Meyers v. Ideal Basic Indus., Inc., 940 F.2d 1379, 1383 (10th Cir. 1991), cert. denied, 117 L. Ed. 2d 106, 112 S. Ct. 935 (1992). "The jury's role as the finder of fact does not entitle it to return a verdict based only on confusion, speculation or prejudice; its verdict must be reasonably based on evidence presented at trial." Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1042 (2d Cir.), cert. denied, 429 U.S. 885, 50 L. Ed. 2d 166, 97 S. Ct. 236 (1976). If, after viewing all the evidence most favorably to plaintiffs, the court cannot say that the jury could reasonably have returned the verdict in their favor, it is the court's duty to set the verdict aside. Id.

 2. July 12, 1989 and August 22, 1989 CWA Violations

 The jury found that CWA violations occurred on five dates: July 12, 1989; July 13, 1989; August 22, 1989; September 26, 1990; and April 15, 1991. Defendants allege that there is no evidence that the July 12, 1989 and August 22, 1989 discharges occurred at all.

 Plaintiff Philip Karcheski testified at trial about the alleged July 12 violation. He stated that while driving his vehicle on a nearby road at dusk, he saw "tanks pulled by the tractors" going into a certain field. Def. Ex. A at 4. *fn1" "At that point [he] didn't pay attention" to whether manure was being discharged from the field. Id.

 His curiosity aroused, Karcheski returned the next evening, July 13, in the company of plaintiff Kirk Bly. Karcheski stated that he saw "the same thing, and still manure trucks were operating the lagoons--the tanker trucks." Id. at 5. He then "went into the field, and the area was just kind of saturated with kind of like liquid manure." Id. Some of the manure was exiting the property through a ditch. Id. at 6.

 Bly also testified at trial. He stated that on July 12, while riding on a road, he "noticed a field on the Wyant farm that had received a large amount of--a large amount of liquid manure." Def. Ex. B at 6. He stopped his vehicle and looked at the field and a "running light in the far corner of the field" for several minutes, but he did not get out of his vehicle to inspect the field. Id.

 Bly also testified that when he went back to that spot on July 13, first alone and then with Karcheski, what he saw was "very similar to what [he] observed on the 12th." Id. at 8. Walking around with Karcheski, he saw "a slurry type manure" flowing out of the field and eventually into a stream. Id. at 9.

 As to the August 22 violation, Karcheski testified that on that date he saw "the tankers . . . coming down the road again and entering the same area [as on July 12 and 13] . . ." Def. Ex. A at 8. He stayed for about ten or fifteen minutes, and did not see any liquid manure leaving defendant's property. Id.

 Bly gave similar testimony. He said that in "the same field, same area" as on July 12 and 13, he "noticed a heavy application of manure had been applied again." Def. Ex. B at 11-12. He did not actually enter the field, and he did not testify that he saw any discharges from the property.

 In my view, this testimony is not sufficient to support the jury's finding that discharges occurred on July 12 and August 22. Neither Karcheski nor Bly stated that they actually saw a discharge of manure from the property on either date, and their testimony was not strong enough to support an inference that violations occurred on those days simply because they saw a discharge in the same area on July 13. There are so many variables involved--the amount of manure spread, the duration of the spreading, the physical condition of the ground, etc.--that it would be speculation to infer discharges on July 12 or August 22 based on the July 13 incident.

 Even assuming that defendants were spreading manure in the exact same manner and place on the 12th as on the 13th, that alone does not warrant drawing the conclusion that a discharge of pollutants into navigable waters occurred on the 12th merely because one allegedly occurred on the 13th. For one thing, there was no evidence of how long defendants had been spreading manure when Karcheski and Bly saw the tank trucks on July 12. Both men said that they noticed manure-spreading going on in the early evening of July 12. Neither knew how long this activity had been going on at that point, which would obviously have a bearing on the amount of manure the field had received. *fn2"

 Moreover, the conditions under which the manure was spread on July 13 differed in one highly important respect from the day before, precisely because defendants had spread manure on the 12th. If defendants spread manure in the same area on both days, then there must have already been manure on the ground when they began spreading on the 13th. That would obviously make it more likely that the ground would become saturated sooner and the manure would spill out from the field.

 Evidence from which the jury could have reasonably inferred a discharge on August 22 is also lacking. Even crediting Bly's statement that the application of manure that day was "heavy," that simply does not warrant the conclusion that some of the manure left the field and entered navigable waters. Bly's statement that the weather that day was "dry," Def. Ex. B at 12, further weakens such an inference.

 What remains as to both dates, then, is testimony that manure was applied to defendants' fields, and that testimony is insufficient to find a CWA violation.

 I conclude that the jury's finding of a discharge on July 12, 1989 and August 22, 1989 "was sheer surmise and conjecture." Mattivi, 618 F.2d at 167 (quoting Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 960 (2d Cir.), cert. denied, 400 U.S. 833, 27 L. Ed. 2d 65, 91 S. Ct. 67 (1970)). There was simply a "complete absence of substantial evidence supporting the verdict" on this question, id. at 169, and the verdict must therefore be set aside as to these two CWA violations.

 3. September 26, 1990 and April 15, 1991 CWA Violations

 Defendants argue that the September 26, 1990 and April 15, 1991 discharges were "agricultural stormwater discharges," which are specifically excluded from the definition of "point source," 33 U.S.C. § 1362(14), and hence from the coverage of the Act itself, since only point source discharges of pollutants constitute violations of the Act.

 Sally Hunt, a non-party to this action, was called as a witness by plaintiffs. She testified that on September 26, 1990, she observed an application of liquid manure by defendants on a field adjacent to her property. She said that this application was heavier than most, and that the manure "pooled in the corner of [defendants'] field right next to [her] property." Def. Ex. C at 4. She stated that later that day it rained, and the manure "drizzled into the ditch and through the drainage pipe." Id.

 Bly testified that on September 26, as he was driving near fields surrounding the Hunt residence, he "could see the manure flowing, the tracks made by the equipment, flowing off the end of the fields where there was severe erosion [sic]." Bly Tr., Apr. 30, 1993, at 16. He did not see any tankers. He also noticed that there was discolored water flowing through a ditch along the field. Id. at 17.

 As to the April 15, 1991 incident, Hunt testified that on that date, defendants "had worked the field and worked all the grass off up to the ditch. And so then they spread manure, and it subsequently rained, and it washed into the ditch." Def. Ex. C at 8. When asked if she had personally observed the manure being washed into the ditch, she replied, "Not myself, but I know they spread it." Id.

 Plaintiff Bly testified that April 15 was "a wet day" and that a photograph he took that day depicted "water flowing--water runoff flowing off the field towards the fencepost." Def. Ex. B at 38-39. Other photographs taken that day showed a "close-up of the water run-off showing the brown water, foam in the field," a "stream in Letchworth Park, several yards from the field, which the run-off was coming from showing brown, yellow water and foam." Id. at 39.

 Plaintiff Karcheski also testified about his observations on April 15. He stated that near the intersection of Middle Reservation and Swyers Roads, he saw "a lot of manure coming off the field through the areas where the banks had fallen away and like, you know, tractors had come in and out, and they leave culverts or furrows and that." He saw "water and manure" in an adjacent ditch. Karcheski Tr. Apr. 28, 1993 p. 20. He stated that "the ground was wet, but he didn't recall it raining when [he] was there." Id. p. 21.

 In addition to this live testimony, two reports prepared by the New York State Department of Environmental Conservation ("DEC") were admitted into evidence. The first, which was prepared in response to a complaint by Hunt to the DEC, stated that "Due to heavy rain in area about 2 PM on 9/26/90 - Runoff from fields on north side of Swyers Rd. caused manure to run into road ditch. Drainage enters Genesee River through Letchworth State Park property." Def. Ex. G.

 The second report was written after an investigation of a complaint by Bly on April 15, 1991. That report stated that "Heavy rain caused manure to run off into streams through park into Genesee River." Def. Ex. G.

 In my view, the evidence does not support the verdict as to either of these two discharges. First--particularly concerning the April 15 discharge--there was insufficient evidence that any discharge occurred from a point source. Bly's testimony that he saw "water runoff flowing off the field," in fact, supports precisely the opposite view: that the discharge on this date was simply disparate run-off caused by rainfall. The DEC report was consistent with Bly's testimony, stating only that manure had run off into streams.

 Hunt's testimony about the April 15 incident was also inadequate. Although she said that manure had "washed into the ditch," the basis for that statement is not apparent, since Hunt then said that she had not "personally observed it being washed into the ditch," but only that she "knew they ...

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