Thursday, December 4, 2008

Black Warrior Riverkeeper v. Cherokee Mining

Nov 13: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-10810. The Appeals Court explained that Black Warrior Riverkeeper (Black Warrior) is a non-profit membership organization that supports enforcement of environmental laws for the preservation, protection, and defense of the Black Warrior River located in Alabama. Cherokee Mining, LLC (Cherokee) is the owner and operator of two surface coal mines located in northern Alabama. Black Warrior sued Cherokee alleging that it had violated the Federal Water Pollution Control Act (the Clean Water Act) and similar provisions of Alabama law.

Cherokee moved to dismiss, arguing that Black Warrior’s suit was barred by a provision of the Clean Water Act, § 1319(g)(6)(A)(ii) [precludes citizen suits when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a polluter], and thus should be dismissed for lack of subject matter jurisdiction. The district court denied the motion, concluding that another provision of the Clean Water Act, § 1319(g)(6)(B)(ii) [i.e. notice of intent to sue was given to Cherokee prior to the State of Alabama’s commencement of its enforcement action], lifted the bar that would otherwise have precluded Black Warrior’s suit.

The Appeals Court said, "We find Cherokee’s interpretation of these provisions to be an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language. . . We thus find that the plain meaning of the phrase 'limitations contained in subparagraph (A). . . shall not apply [to bar citizen suits] means that citizen suits are not barred when either the federal EPA or a state is pursuing an administrative enforcement action and the notice and filing requirements of § 1319(g)(6)(B) have been met."

The Appeals Court clarifies further in affirming the district court decision, "We conclude that, in accordance with the plain and ordinary meaning of §1319(g)(6)(B), all of the limitations against a citizen suit as provided for in §1319(g)(6)(A), which include federal and state administrative enforcement actions, are lifted so long as § 1319(g)(6)(B)’s notice and filing requirements are met."

Access the complete opinion (
click here).

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