MORE CLEAN WATER ACT SUITS ON THE WAY?

Posted on July 14, 2009 by Fournier J. Gale, III

Part II

And now for the rest of the story…

As reported in this blog in January, the Eleventh Circuit’s recent decision in Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986 (11th Cir. 2008), left an opening for Clean Water Act citizen suits to proceed despite an enforcement action being filed by the state environmental agency on the heels of the issuance of a plaintiffs’ 60-day notice letter. However, the recent dismissal of the Cherokee Mining case upon its return to District Court may give some pause to those who file citizen suits in the future.

As reported in more detail in January, the defendant in Cherokee Mining originally filed a Motion to Dismiss plaintiff’s Clean Water Act citizen suit for lack of subject matter jurisdiction arguing that the suit was barred under Section 309 because the state environmental agency had commenced enforcement subsequent to the plaintiff’s issuance of a 60-day notice letter. The plaintiff successfully defeated the Motion to Dismiss in the District Court by relying on what was a largely overlooked provision of Section 309 stating that the bar to citizen suits does not apply to actions filed “before the 120th day after the date on which…notice is given.” 33 U.S.C. § 1319(6)(B)(ii). The Eleventh Circuit, which is still the only Court of Appeals to address this issue, affirmed the District Court’s decision. See also Black Warrior Riverkeeper v. Birmingham Airport Authority, 561 F. Supp. 1250 (N.D. Ala. 2008) (applying the 120th-day exception to the citizen suit bar and allowing the same plaintiff to go forward in a separate case filed against other defendants).

 

However, upon Cherokee Mining’s return to District Court, the plaintiff’s case was dismissed on mootness grounds—arguably the same grounds on which Congress based the statutory bar to citizen suits filed after a state enforcement action. Specifically, the United States District Court for the Northern District of Alabama dismissed plaintiff’s claims for injunctive relief and civil penalties as moot because the issuance of a consent order by the state environmental agency adequately addressed the plaintiffs’ alleged violations. Indeed, despite allegations of additional violations subsequent to the issuance of the consent order, the District Court concluded that the plaintiff had failed to demonstrate that there was a serious prospect that the alleged violations would continue to occur. The District Court further held that because the consent order required Cherokee Mining to pay a penalty of $15,000, the Court was reluctant to second guess the state agency enforcement action. Thus, the Court dismissed plaintiff’s claims as moot. Black Warrior Riverkeeper v. Cherokee Mining, No. 07-AR-1392-S (N.D. Ala. Jun. 5, 2009).

Notwithstanding the ultimate outcome of Cherokee Mining, the back door to citizen suits opened by the Eleventh Circuit’s opinion is still available. In other words, at least in Alabama, Florida, and Georgia, a plaintiff can proceed with a Clean Water Act citizen suit despite enforcement action taken by the state environmental agency as long as the plaintiff files suit within 120 days of its 60-day notice letter. However, the entry of an administrative order by the state may quickly make the citizen suit moot. As aptly noted by the District Court, “[i]f there is a lesson to be learned from this case, it is that a citizen who admittedly has a right to file a citizen suit seeking to remedy a perceived water violation, although knowing, as a matter of law, that ADEM has concurrent jurisdiction over the issue, is taking the risk that he will be headed off at the pass by subsequent appropriate ADEM enforcement action.” Cherokee Mining, No. 07-AR-1392-S at 14-15.



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