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The deadline for all questions pertaining to the 2015 Problem is October 24, 2014. You should review the Problem prior to the deadline and email the NELMCC Board at firstname.lastname@example.org with any question(s). Questions will be answered once a week to all team contacts via email through the NELMCC ListServ. You, at the team contact, will be responsible for forwarding the emails to your team members. Problem Q&As will also be posted weekly on the NELMCC website. No questions about the Problem will be answered after the October 24 deadline.
Q&As - Note that the response to problem question 19 below was partially revised on 10/29.
Q1: Page 6 of the Record states that Dean James ignored the "No Trespassing" signs and proceeded up the canal through Moon Moo Farm's property. Did he actually walk "onto" Moon Moo's farmland when he did this?
Q2: Are there "No Trespassing" signs on both sides of the Queechunk Canal? Or are the "No Trespassing" signs only on one part of the canal.
A2: The opinion recites that the canal is prominently posted. It's a fair assumption this means both sides as well as the entrances.
Q3: Did Dean James extract the water sample directly out of the "drainage ditch" on Moon Moo's farm, or did he extract it directly out of the Queechunk Canal? The exact language I need clarification on is "James took samples of the water flowing from the ditch and later had them tested by a water testing laboratory."
A3: He sampled the water coming from the ditch where it entered the canal and could get the jon boat close enough.
Q4: Should we address Moon Moo's counter claim in our appeal?
A4: Only to the extent that if the waters are public trust waters, James was not trespassing as a matter of law.
Q5: Where does Chokos get its milk for production of the yogurt?
A5: The record is silent on this issue.
Q6: The Problem states that the Queechunk Canal is 50 yards wide and 3-4 feet deep on page 5. However, the Canal's length is not specified -- unless by width the judge meant length. Can you please clarify on the approximate dimensions of the Canal?
A6: The record is silent on this issue. Width means width.
Q7: Does the Deep Quod River cross any interstate boundaries or is it solely confined within the boundaries of the State of New Union?
A7: The record is silent on this issue. The Court can take judicial notice of the fact that the Mississippi River crosses state boundaries.
Q8: In Issue 1 on page 2 of the Problem, it is alleged by the district court judge that the bottom of the canal is owned by Moon Moo Farms; however this fact does not appear in the opinion. Is this fact assumed by the finding that Moon Moo Farms owns the land on either side of the canal?
A8: The record is silent on this specific issue.
Q9: What year did Moon Moo Farm acquire the property? Can you tell us a little more about the Farm's management and ownership structure?
A9: The record is silent on this issue. No.
Q10: What is the state of the relationship between Moon Moo Farms and Chokos Greek Yogurt processing facility? Is there any corporate agreement (e.g. one is a subsidiary of the other) in place, or is there a contract that exists about the transfer of whey? Is either party paying for the acid whey? Is there a known market value for the acid whey?
A10: The record is silent on this issue.
Q11: What is the primary purpose of the Bermuda grass sileage? Is it fed to the cows on Moon Moo Farms, and if so, how often? Is 100% of the sileage used for the cows?
A11: The record is silent on this issue.
Q12: What evidence was the district court relying on when it made a finding that there was no imminent and substantial endangerment to families with young children?
A12: All evidence the District Court relied on is cited in the district court opinion.
Q13: Page 11 of the District Court opinion cites to 40 C.F.R. 261(a)(2)(i). There is no 40 C.F.R. 261--it's a part, not a particular regulation or rule. There is a relevant regulation at 40 C.F.R. 261.2(a)(2)(i). Is this what 261(a)(2)(i) on page 11 of the problem refers to?
A13: Yes, the opinion was supposed to refer to 261.2(a)(1).
Q14: The issue we are having is with the third brief question, part (b): “If it is not a CAFO, excess nutrient discharges from its manure application fields remove it from the agricultural stormwater exemption and subject it to NPDES permitting liability.” The phrase “if it is not a CAFO” indicates that we are to assume Moon Moo Farm is not a CAFO. If that is the case then the CAFO regulation 40 C.F.R. § 122.23 would not apply at all to the question prompt, which seems to be directly counter to what the district court decision was based on, especially § 122.23(e). Is this a mistake?
A14: This is a fair subject for argument.
Q15: Relatedly, The district court's decision, page 9, states that “this type of discharge is agricultural storm water runoff, not a CAFO discharge” pursuant to ALT. v. USA. As I read ALT. v. USA, a discharge can both come from a CAFO point source and be exempted as agricultural stormwater discharge; the whole point of the case was that the terms are not mutually exclusive. Based on the district court’s decision and the question prompt I assume the drafter may have made a mistake in treating the two as mutually exclusive. This would also explain why the question prompt says, “if it is not a CAFO” as the drafter thought he/she had to separate CAFO and agricultural stormwater discharge. If the drafting is not a mistake, I would like some reassurance that my reading is wrong.
A15: This is a fair subject for argument.
Q16: For the first issue presented as: "Whether the Queechunk Canal, a man-made water body, is a public trust navigable water of the State of New Union allowing for a public right of navigation..." are we to assume we need to brief only whether the canal "is a public trust navigable water" and can we assume if it is, that it allows for a public right of navigation? Or do we secondarily have to also brief whether there is a public right of navigation if we find the canal to be a public trust navigable water?
A16: Please brief the issue to the extent necessary to answer the question. This is up to the team’s discretion.
Q17: For the second issue presented as: "If the canal is not a public trust navigable water, whether evidence obtained through trespass and without a warrant is admissible..." are we to presume that if the canal is not a public trust navigable water that it is thereby a trespass? Or do we have to secondarily brief whether the site visit was a trespass (outside of the right of navigation question) prior to discussing whether evidence obtained through trespass and without a warrant is admissible?
A17: Please brief the issue to the extent necessary to answer the question. This is up to the team’s discretion.
Q18: Discharge from a CAFO is exempt from NPDES permitting if that discharge fits into the definition of agricultural stormwater. 40 C.F.R. § 122.23(e), Waterkeeper Alliance, Inc. v. U.S. E.P.A., 399 F.3d 486, 507 (2d Cir. 2005). So how is the phrase, “If it is not a CAFO…” at the beginning of Issue 3(b) intended to limit or change the question of whether the agricultural stormwater exemption applies? It seems that whether Moon Moo Farm's manure land application discharge is exempt from NPDES permitting as agricultural stormwater is independent of whether Moon Moo Farm is a CAFO.
A18: This is a fair subject for argument.
Q19: Please clarify EPA and Moon Moo Farm’s position in Issue 3(b). The question states, “EPA and Moon Moo Farm argue that application of manure in compliance with a nutrient management plan (NMP) exempts it from NPDES permitting requirements as agricultural stormwater.” Does “it” refer to Moon Moo Farm as a whole or just to the “application of manure?” If “it” means Moon Moo Farm as a whole, this would require the EPA to argue contradictory positions in 3(a) and 3(b) (that the farm does and does not require a NPDES permit, respectively), so what position is the EPA instructed to take on Issue 3 overall?
A19: Yes, "it" refers to Moon Moo Farm for the purpose of issuing a NPDES permit. The sub issues are to be discussed separately, taking into account EPA's position on both.
Q20: Moon Moo Farm is operating under a Nutrient Management Plan filed with the New Union Department of Agriculture. When was this NMP submitted to and accepted by the New Union DOA?
A20: The record is silent on this issue.
Q21: Does the State of New Union DOA operate the "no discharge" animal feeding operation regulatory scheme pursuant to its authority to issue general permits under the Clean Water Act?
A21: Please assume the State of New Union operates within its authority under the CWA.
Q22: On page 11, the court cites to 42 USC 6973(a)(1)(B) for RCRA's citizen suit provision. Did the court mean to cite to 42 USC 6972(a)(1)(B)?
A22: Yes, the citizen suit provision is 42 U.S.C. 6972(a)(1)(B).
Q23: Just to clarify: Riverwatcher is only arguing that the manure and whey should be considered non-hazardous solid waste for both RCRA claims (open dumping and imminent and substantial endangerment). Riverwater does not assert for either RCRA claim that the waste constitutes hazardous waste. Is that correct?
A23: Please refer to the record for clarification.
Q24: Is there a map or diagram available for the layout of the property, including its relation to the river and the canal?
A24: No, there is no map available.
Q25: How far into the farm does the canal go?
A25: The record is silent on this issue.
Q26: What is the length of the canal?
A26: The record is silent on this issue.
Q27: Our team has one quick question. What year did the State of New Union officially become a state? The fact pattern states that the Queechunk Canal was created in the 1940’s. While they are outliers, the last states to join the United States (Alaska and Hawaii) entered the union in 1959. Accordingly, it is possible that the Canal was created after the State of New Union became a state. Overall, the question is: Are we supposed to assume that the Queechunk Canal was created after the State of Union officially became a state?
A27: Assume that New Union became a state before 1940.
Q28: Is EPA arguing that plaintiffs have established a claim subject to redress under RCRA s.7002(a)(1)(B)?
A28: It is EPA's position that Riverwatcher has established an imminent and substantial endangerment claim subject to redress under RCRA § 7002(a)(1)(B).
Q29: Have Riverkeeper and James sufficiently established standing to sue under its RCRA s.4005(a) claim? Was this done in prior proceedings or must it be established in this brief?
A29: Assume Riverwatcher has established standing.
Q30: The problem states that Queechunk Canal is commonly used as a shortcut up and down the Deep Quod River. How long has this been the case? Has it been used continuously by the public since its excavation in the 1940's?
A30: The record is silent this issue.
Q31: On page 10, the record states that "EPA has not joined in Riverwatcher's RCRA claims." If EPA has not joined in this part of the suit, then how can they argue on appeal?
A31: EPA has not joined Riverwatcher's solid waste and open dumping RCRA claims against Moon Moo Farm. However, as a party to the appeal EPA is arguing its position on all the issues presented.
Q32: On page 9, the record states, "It is undisputed that Moon Moo Farm filed an NMP with the State agricultural field office, and applied manure in accordance with its filed plan." Is it just undisputed that Moon Moo filed an NMP with the state, or does the undisputed also apply to the second part of the sentence, i.e. that it applied manure in accordance with its filed plan?
A32: It applies to the whole sentence.
Q33: The decision and order starts out with this paragraph: "Plaintiff, the United States (on behalf of the United States Environmental Protection Agency) (collectively referred to as EPA) brought this action for civil penalties and injunctive relief for claimed violations by defendant Moon Moo Farm of the permitting requirements of the Clean Water Act (CWA), 33 U.S.C. §§ 1311(a), 1319(c), (d), 1342." The paragraph references claims brought under 33 U.S.C. 1319(c), the criminal penalties subsection of the standards and enforcement section. Is this a mistake considering that the order only discusses civil penalties under 1319(d), which is cited right after the criminal penalties section, or were criminal penalties also sought in this action?
A33: The cite to 1319(c) is a typo, it should read 1319(b).
Q34: Can the judges provide us with a visual picture of the Queechunk Canal, the Deep Quod River, and the drainage ditch? If not, is the Queechunk Canal located on the inside of the bend of the river? Is the bend in the Deep Quod River similar to an oxbow?
A34: A picture will not be provided.
Q35: The problem references the RCRA citizen suit provision as 42 U.S.C §7002; however that has since been amended as 42 U.S.C. §6972. Are we expected to cite to 42 U.S.C §6972 when referencing the RCRA citizen suit provision since §7002 is not the current section number?
A35: The record references RCRA § 7002 and 42 U.S.C. § 6972. Please follow correct Bluebook citation format.
Q36: In terms of citing to the record, is it preferred to just use the problem packet as the record and use the page numbers of each page for citing, or should we include each necessary document from the problem in an appendix at the end of our brief and cite to the record that way?
A36: Please use the problem packet and page numbers from the record for citing.
Q37: Does Moon Moo farm apply the manure mixer to its land that is on both sides of the Queechunk Canal?
A37: Moon Moo Farm applies the manure mixture to its fields. The record is silent as to which side of the canal these fields are on. Moon Moo Farm owns the land on both sides of canal and the land can be considered part of its operations.
Q38: The problem states that the "Deep Quod River is navigable by small boat both upstream and downstream of the Queechunk Canal." Is the Deep Quod River also navigable via the remaining river bend that has less flow than the canal?
A38: The Deep Quod River is a navigable body of water.
Q39: Can we craft an argument under different law other than that which was presented in the trial court?
A39: Please use law necessary for the full argument.
Q40: Are we to assume for jurisdictional purposes that Deep Quod Riverwatcher, Dean James, and Moon Moo Farm are all citizens of the State of New Union?
A40: It can be assumed that Riverwatcher, Dean James, and Moon Moo Farm are citizens of the State of New Union.
Q41: The only District Court order in the record is the one dated April 21, 2014. The Court of Appeals' Order, however, makes reference to an "Order" of the District Court dated June 1, 2014. Are we to assume that this latter order of June 1 is the final order below from which an appeal has been taken in the case?
A41: Yes, please assume that June 1 is the final order date from which the appeal is taken.
Q42: Are all 350 dairy cows on Moon Moo's farm mature?
A42: The record is silent on this issue.
Q43: The problem states that the area of the Deep Quod River above and below the canal is navigable. R.5. The problem also states that most of the flow of the River is diverted into the Queechunk Canal. R.5. Is the area of the River that is below the diversion and above the reentrance of the water from the canal navigable?
A43: The Deep Quod River is a navigable body of water.
Q44: What is Riverwatcher's mission?
A44: The record is silent on this issue.
Q45: How did James collect the water from the canal? Was it in a scientifically acceptable manner?
A45: The record is silent on this issue.
Q46: Is the lab where James's water collection was tested a widely recognized facility for water quality testing?
A46: The record is silent on this issue.
Q47: What exactly was admitted as evidence that Moon Moo is arguing should be excluded? The lab result?
A47: The evidence is referenced in the record.
Q48: Should the word, "sileage" found on page five of the record be spelled "silage?"
A48: Yes, it is silage.
Q49: Question 4 on Page 2 of the Problem refers to RCRA Subtitle IV. Should this instead be referring to Subtitle D?
A49: Yes, question 4 is meant to refer to RCA subtitle D, which is subchapter IV of the US code cite.
Q&As added on 10/31 (inadvertently left off)
Q50: On page 2, the problem twice refers to “Subtitle IV.” Should this be “Subtitle D?”
Q51: On page 11, the problem cites RCRA § 7002(a)(1)(B) as 42 U.S.C. § 6973(a)(1)(B). Should this be 42 U.S.C. § 6972(a)(1)(B)?
Q52: In its original brief, did Riverwatcher allege an imminent and substantial danger to the environment and human health under RCRA § 7002(a)(1)(B) or just to human health? On p. 10, the problem states: “Riverwatcher also asserts a claim that Moon Moo Farm’s landspreading practices constitute a disposal of solid waste in a manner that presents an imminent and substantial endangerment to human health or the environment, subject to judicial redress under RCRA § 7002.” However, on p. 11: “Riverwatcher alleges that Moon Moo Farm’s land application practices present an imminent and substantial endangerment to human health, pointing to the nitrate advisories that have been issued to Farmville’s drinking water customers.” Likewise, on p. 2: “Plaintiffs can establish that the mixture constitutes an imminent and substantial endangerment to human health subject to redress under RCRA § 7002(a)(1)(B).”
A52: No further information is available beyond what appears in the opinion.
Q53: There seem to be some inconsistencies regarding whether EPA has asserted a cause of action under the “imminent and substantial endangerment” provision of RCRA (for the Agency, this would be RCRA § 7003, not § 7002). The procedural history section of the problem states: “Before the expiration of the waiting period after notice, EPA commenced this civil enforcement action against Moon Moo Farm, seeking civil penalties under CWA § 309(d) as well as injunctive relief under CWA § 309(b). At the conclusion of the ninety day RCRA waiting period, Riverwatcher intervened as a plaintiff in the EPA action pursuant to CWA § 505(b)(1)(B), and alleged additional causes of action under the citizen suit provision of RCRA § 7002. Similarly, later in the problem, it states: “EPA has not joined in Riverwatcher’s RCRA claims.” However, earlier in the problem, it states: “(EPA and Riverwatcher argue that Riverwatcher has established an imminent and substantial endangerment, Moon Moo Farm argues that it has not.)”
Our two questions are: 1) Is EPA in fact asserting a cause of action for imminent and substantial endangerment to human health/the environment under RCRA § 7003, i.e., 42 USC § 6973? and 2) If EPA does assert this cause of action, did it assert it in its initial complaint, or did it amend its complaint to add this cause of action after Riverwatcher intervened and brought its RCRA claims? N/A
A53: Response to question 1 – No and question 2 – N/A
For clarification, EPA has not asserted its own RCRA imminent and substantial endangerment claim, but is nevertheless arguing that Riverwatcher has adequately established its own imminent and substantial endangerment claims.
Q54: Has New Union adopted the RCRA regulations without comment or alteration? Additionally, is New Union a RCRA-authorized state? See http://www.epa.gov/wastes/laws-regs/state/.
A54: The record does not reveal the answer to this question.
Q55: On page 11, the problem states: “During the past two years (since 2012), Moon Moo Farm has accepted acid whey produced by the Chokos plant, which it has added to its manure lagoons and included in the mixture sprayed on its fields.” Does the word “accepted” mean that Moon Moo Farm has not purchased the whey from Chokos?
A55: Yes, Moon Moo Farms has not purchased the whey.
Q56: I was rereading the problem and realized the nitrate advisory date is really unclear. On p. 6 is appears that (at least one) nitrate advisory was issued prior to the rain event on April 11-12 ("In the late winter and early spring of 2013, Deep Quod Riverwatcher received complaints that the Deep Quod River smelled of manure and was an unusually turbid brown color. In addition, the Farmville Water Authority issue a 'nitrate' advisory for its drinking water customers..."). But then on p. 7 it suggests that the advisory was actually issued after the rain event--it specifically refers to "the April 2013 nitrate advisory." It's also possible there were multiple advisories being issued over those several months, but the facts aren't clear on that point.
A56: The record does not provide any more information with respect to this question.