Problem Questions

The deadline for all questions pertaining to the 2013 Problem is October 26, 2012. Questions should be directed to nelmcc@law.pace.edu. The NELMCC board will respond once a week to all team contacts (designated on your registration form) via the 2013 NELMCC ListServ email. Problem Q&As will also be posted weekly on the NELMCC website. No questions about the Problem will be answered after the October 26 deadline.

Q&As

Q1: We would like clarification regarding the date of the District Court Order. The date given is June 1, 2012. However, this would precede the start of Bowman's actions on his land, which is listed as June 15, 2012 in the District Court's Findings of Fact.

Q2: Can you clarify/confirm the date of the District Court order (6/1/12) and the date that land clearing started (7/1/12).
 
A1&2: All dates on pages 3-7 of the Problem should be 2011 rather than 2012.

Q3: What, if any, precedent is binding on the Twelfth circuit?

A3:  Supreme Court decisions.

Q4: Does the 150 feet of remaining wooded area run along the entire 650 feet of river frontage on Mr. Bowman's property?

A4: Yes.

Q5: Should we refer to the department as New Union Department of Environmental Conservation or as New Union Department of Environmental Protection? The problem provides for both titles.

A5: Department of Environmental Protection.

Q6: Our team had a question regarding the date of the order. It precedes the date of the clearing activities (June 15, 2012), the dates the parties filed cross-motions for summary judgment, and the court's status conference (November 1, 2012). Is this simply a typo?

A6: Please see our NELMCC Q&A page for the answer to this question. All dates on pages 3-7 of the Problem should refer to 2011, not 2012. The land clearing activity referred to on page 4 should be changed to June 15, 2011.

Q6: Our team had a question regarding the date of the order. It precedes the date of the clearing activities (June 15, 2012), the dates the parties filed cross-motions for summary judgment, and the court's status conference (November 1, 2012). Is this simply a typo?

A7: Yes.

Q8: Just to clarify, are we to understand that Mr. Bowman conveyed to NUDEP the 150 foot area that has not been cleared, plus the additional 75 foot buffer, making it an approximate 146,250 feet area (225 feet wide area along the 650 ft shoreline)?

A8: He has conveyed an easement.

Q9: Is the easement adjacent to/contiguous with the Muddy River?

A9: Yes.

Q10: Can a particular party introduce arguments that were not addressed in the District Court’s opinion?

A10: You may raise different arguments but not different issues on appeal.

Q11: In the Court of Appeal’s Order, issue number 4 states, in part, "when he moved dredge and fill material," which could be read that the Court of Appeals is presuming the material was "dredge material" in contradiction to the district court holding. Can you please clarify the intent of the Court of Appeals’ language - specifically, whether or not the District Court's holding that the material was not "dredge material" is still an issue to be argued on appeal.

A11: The Court of Appeals Order number 4 should read “dredged and fill material” rather than “dredge and fill material.” The real jurisdictional issue is “addition.”

Q12: Are issues that both parties have agreed and/or stipulated to open for re-argument or should we only be focusing on the issues about which the parties still disagreed in the District Court’s opinion?

A12: They are not open for re-argument.

Q13: Did Bowman clear all 1,000 acres of his previously wooded land except for the 150-foot wide strip adjacent to the Muddy River?

A13: Yes.

Q14: On page 7 under Part IV, is “Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 484 U.S. 49 (1987)” supposed to read “Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49 (1987)”?

A14: Yes.

Q15: On page 9 under subsection C, is the “Corp’s Wetlands Determination Manual” actually referring to the U.S. Army Corps of Engineers “Wetlands Delineation Manual” (1987)?

A15: Yes.

Q16: Is Mr. Norton a commercial frogger or a recreational frogger?

A16: Recreational and subsistence.

Q17: Are the parties’ stipulations as to the issues addressed in Sections VI(a)-(c) on pages 8-9 (i.e., pollutant, point source, navigable waters) reviewable by the 12th Circuit?

A17: No.

Q18: Can we assume that the entire state statutory scheme under which NUDEP issued the administrative order to Bowman is “comparable” to federal Clean Water Act (CWA)? The decision only states that the “state statute (is) virtually identical in relevant parts to §309 (a) and (g) of CWA.”

A18: Yes.

Q19: Are we limited to the facts stipulated in the problem? We have some doubt as to the accuracy of some of the facts, but were unclear as to whether we should assume the facts outlined are accurate, or at least that the court has no reason to overturn the admission of the expert testimony.

A19: Yes.

Q20: Are we to assume that the EPA interpretation of addition concerning the unitary waters theory is the only interpretation that exists for purposes of this problem?  

A20: No.

Q21: We have noticed a possible factual ambiguity. The factual background reads: “Bowman’s thousand acres includes 650 feet of shoreline on the Muddy River.  The property is wholly within the one-hundred year flood plain of the Muddy.” Does “property” refer to the 650 feet of shoreline, or the entire one thousand acres?

A21: 1,000 acres.

Q22: Can we argue that Bowman "discharge[d] . . . dredged . . . material into waters of the United States" rather than fill material?

A22: You can argue it.

Q23: Where exactly was Norton 'frogging?' Is the frogging location now within the conservation easement such that he would have public access to that space for frogging in the future? Was any frogging done on lands to which Norton had legal access before the conservation easement?

A23: All relevant facts are in the lower court’s opinion.

Q24: How can NUDEP file a claim under § 505 of the CWA, which requires an ongoing violation, and simultaneously argue (as an intervenor in NUWF's citizen suit) that Bowman's violations are wholly past because he ceased his activities on July 15? Wouldn't the position that Bowman's activities are wholly past bar NUDEP's own § 505 suit?

A24: Good question. NUDEP probably assumed no one would challenge its authority to file the complaint, since the defendant was consenting to a decree to settle it. Plus, of course, there is an argument the violations are ongoing. 

Q25: In response to Answers 10-11 & 17, can a party raise defenses or exemptions that the district court never discussed?

A25: As long as they are responsive to the issues posed in the Court of Appeals’ order.

Q26: Are we to assume that the Jim Bob Bowman's 1,000 acres are "waters of the United States?" Answers 17 and 11 imply that we should.

A26: See issue four in the Court of Appeals’ order.

Q27: Can we assume that all state law (including statutes, state common law, and administrative regulations) is identical (that is, not more stringent; not less stringent) to federal law? If no, then can you further define "comparable" or clarify in what way the state law differs from federal law?

A27: State law is identical to federal law with regard to civil and administrative penalties, except, of course it makes the state rather than EPA the penalizing party.

Q28: Can we assume that NUDEP has been properly delegated authority to implement the CWA?

A28: Does it make a difference? If it does, EPA has approved the state’s 402 program.

Q29: Where is the city of Mudflats located relative to Bowman's property and the Muddy River? Is the town adjacent to the river, and if so, it is north or south of Bowman's property?

A29: The facts don’t tell us. It is irrelevant.

Q30: We are told that 650 feet of Mr. Bowman's 1,000 acre property is along the Muddy River. Is Bowman's property mostly rectangular in shape, and thus extends at a width of 650 feet to fill an area of 1,000 acres, or is the property more oddly shaped? Does it connect with the Muddy River along a turn of the river, or along a straight portion?

A30: The facts don’t tell us. It is irrelevant.

Q31: After Mr. Bowman altered the land, is the leveled field now above the water table?

A31: The facts don’t tell us. It is irrelevant.

Q32: Does the swale created by Mr. Bowman run the length of the property and does it traverse the uncleared land to reach the river?

A32: To drain the field, the swale must have run from the back of the field to the river.

Q33: What are the estimated costs to Bowman to construct the artificial wetland as well as to maintain the artificial wetland? The district court described construction costs as "considerable." Is there a more specific answer available?

A33: State law is identical to federal law with regard to civil and administrative penalties, except, of course it makes the state rather than EPA the penalizing party.

Q34: Does the state statute authorize NUDEP to reserve the right to administer a penalty at a later time?

A34: Don’t know.

Q35: Is NUDEP's motion to enter a decree still pending until this appeal is decided? Was any action whatsoever taken on it?

A35: Still pending. 

Q36: The three members "testified that they use the Muddy" for recreational purposes. Are we to assume that the present tense of "use" implies their use of the river (boating, picknicking, fishing) has not changed since the wetland was cleared? (i.e. same frequency of visits, etc.)

A36: Good assumption.

Q37: The facts state that Norton "has frogged the area for years." Does "the area" refer exclusively to Bowman's property or to the general vicinity?

A37: He frogged the general area, but found the Bowman property to be the most productive.

Q38: Is it required that the brief follow the order in which the issues are posed in the question?

A38: Check the rules. Otherwise, you are on your own.

Q39: Can we assume that the determination of the property as a wetland by the US Army Corps of Engineers means that the property is a wetland under CWA?

A39: That’s a legal question.

Q40: "Also in September 2012, Bowman observed that the field had sufficiently drained to plant and sowed it with winter wheat." In this sentence, is the "field" meant to be interpreted as the entire area of his property that Bowman cleared, leaving only the 150 feet-wide strip adjacent to the Muddy River unsown? Or, in the alternative, is the "field" meant to mean that area minus the 75 foot buffer zone on which Bowman had agreed to construct a wetland. In other words, did Bowman sow the 75 feet-wide area of land that he had agreed to leave as a buffer zone?

A40: The field does not cover the 225 feet adjacent to the river.