Tuesday, February 17, 2009

Friends Milwaukee v. Milwaukee Metro

Feb 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-1103. The Appeals Court comments on the long history of litigation on the case saying, "After over six years of litigation and two trips back and forth between the district court and this court, we are hopeful that the sun is breaking through." The case involves Friends of Milwaukee’s Rivers and Lake Michigan Federation, n/k/a Alliance for the Great Lakes (collectively, Friends), and their citizens’ suit against the Milwaukee Metropolitan Sewerage District (MMSD) under the Federal Water Pollution Control Act (the Clean Water Act or the Act), alleging that certain sanitary sewer overflows that occurred between January 1, 1995 and September 25, 2001 were violations of MMSD’s Clean Water Act permit and of the Act itself. The State of Wisconsin (the State) also filed suit against MMSD.

On May 19, 2008, the WDOJ and MMSD resolved the WDOJ’s 2005 enforcement action with a new stipulation (the 2008 Stipulation). The district court found that the 2002 Stipulation was a diligent prosecution for privity purposes, and therefore dismissed plaintiffs’ suit on res judicata grounds. Plaintiffs appealed the dismissal as well as the denial of their motions to supplement the record. The Appeals Court says, "The questions presented in this successive appeal are relatively narrow. Friends do not challenge the sufficiency of the evidence supporting the district court’s decision." The Appeals Court concludes that the, "district court was within its discretion when it found that the letter did not set forth the activities of the EPA. Moreover, even if any abuse of discretion had occurred, it would have been harmless."

Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

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