William Fairhurst v. Jeff Hagener, Director, Montana Department of Fish, Wildlife & Parks

William Fairhurst appeals the district court’s grant of summary judgment in favor of Jeff Hagener, director of the Montana Department of Fish, Wildlife and Parks (“Department”). We hold that a pesticide applied to a river pursuant to an intentional scheme aimed at eliminating pestilent fish species is not a “pollutant” for the purposes of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387 , and thus not subject to the Act’s permit requirements. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the district court.

I. BACKGROUND

Hagener initiated a ten year program known as the Cherry Creek Native Fish Introduction Project (“Cherry Creek Project”), in which the Department sought to re-introduce a threatened fish species called the westslope cutthroat trout. Because this species was threatened in part by competition with other non-native trout species, Hagener’s program included a plan to remove the non-native fish. The Department would apply the pesticide an-timycin into the water for short periods of time over the course of several years and afterwards reintroduce the westslope cutthroat. As the Department began executing the project, it performed at least one…