• Mark Ryan

Two New, Very Old Wetlands Cases and an Update on Kinder Morgan

Updated: May 7

These two wetlands cases have been kicking around forever. Both are very short unpublished opinions with some colorful language if you're looking for some arguments to avoid on your next appeal. You don't want to see this sentence in one of your cases, "On appeal Heinrich frivolously argues that the district court wrongly denied his Rule 60(b) motion."

Huntress v. United States, 2020 WL 2079456 (2nd Cir. 2020) (unpublished) (affirming lower court, held that the EPA’s conduct in criminal wetlands enforcement matter was discretionary and susceptible to policy analysis, and therefore fell within the discretionary function exemption to the FTCA; mere conclusory assertions of unconstitutionality cannot carry plaintiffs’ burden of establishing jurisdiction)

United States v. Heinrich, 2020 WL 2092803 (7th Cir. 2020) (unpublished) (affirming lower court holding that defendant missed his Rule 60(d) motion to reconsider the injunction in wetlands enforcement action deadline by 15 years)

The Supreme Court yesterday issued an order granting cert. in the Kinder Morgan case, and simultaneously remanding it to the Fourth Circuit for reconsideration in light of the Maui decision. This is no surprise since the 2018 Fourth Circuit decision, which I summarize below, uses different methodology from Maui to analyze the discharge.

Upstate Forever v. Kinder Morgan Energy, 887 F.3d 637 (4th Cir. 2018), cert. granted and remanded for consideration of County of Maui v. Hawaii Wildlife Fund, (reversing district court, held that discharges from a groundwater plume from a ruptured pipeline that traveled 1000 feet via groundwater into a stream was an ongoing point source discharge even though the rupture had long been repaired, and the pipeline itself was no longer leaking; the definition of “discharge of pollutant” does not place temporal conditions on the discharge of a pollutant from a point source; the CWA is a strict liability statute; a pipeline is a point source; CWA does not bar plaintiff from seeking injunctive relief after the polluter has repaired the initial cause of the pollution; note dissent)

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