• Mark Ryan

Three New Cases and another Sackett Brief

The United Affiliates case below is the latest twist on the very long-standing Spruce Mine 404(c) litigation, which has been going on since at least 2011. Only the lawyers win in those cases. This iteration of the case takes place in the Court of Claims. The judge opened up the EPA to all kinds of discovery of what went on behind the normal veil of secrecy. It's not clear how EPA's behind-the-scenes decision-making process affects plaintiff's investment-backed expectations, so it will be interesting to watch how this develops.

The Pacific Coast Fed. case is the third ag case I've reported on in the last few days, which is unusual. See my prior blog post on CAFO cases. The Conservation Law Found. case below is interesting because it raises the question of whether an otherwise valid case can be mooted out after the filing of the complaint by a future event. I suspect we'll see an appeal out of that one.

Finally, the Sacketts have filed their opposition to EPA's motion to dismiss in the 9th Cir. See my April 1 blogpost for a discussion of the motion. The Sacketts argue that because EPA has not withdrawn the JD, the case is not moot. (I'm not sure a formal JD was ever issued by the EPA.) The Sacketts further argue rules of voluntary cessation and collateral legal consequences preserve the appeal from mootness. Because the appeal is a challenge to the validity of the 309(a) order, and that order was withdrawn, and because EPA stated in its motion that it intends "not to issue a similar order in the future," I don't see the 9th Cir. keeping this one alive.

Pacific Coast Fed. Of Fishermen’t Assn’s. v. Glaser, 2020 WL 1685832 (E.D. Cal. 2020) (on remand from 9th Cir. in case involving discharges defendants argued were covered by 402(l) exemption for return flows from irrigated agriculture, granting parties requests for discovery on various issues including what discharges “plaintiffs argue eliminate the availability of the NPDES exemption or exclusion”)

Conservation Law Found. V. N.H. Fish and Game Dept., 2020 WL 1692430 (Not for Publication) (D.N.H. 2020) (on motion for summary judgment in case alleging unpermitted phosphorous discharges from fish hatchery, held that the soon-to-be-re-issued NPDES permit will contain phosphorous limits and will likely moot out plaintiff’s case for injunctive relief; court holds in abeyance its ruling on whether phosphorous deposited in river bed that continues to discharge would be covered under the expected Maui decision from the Supreme Court)

United Affiliates Corp. v. United States, No. 17-67L (Ct. Cl. March 27, 2020) (granting plaintiffs’ motion to compel in takings case against government in connection with EPA’s 404(c)-veto of the Spruce/Mingo Mine permit 2011, held that discovery is not limited in a takings case to APA review of the official record; plaintiffs are entitled to discover pre-decisional documents because they are potentially relevant to the extent that they demonstrate the agency foresaw any retroactive liability; court denied production of privileged documents pending submission of a privilege log by EPA)

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