Wis. Res. Prot. Council v. Flambeau Mining Co.

• Decision Date: 13 April 2012
• Docket Number: No. 11–cv–45–bbc.,11–cv–45–bbc.
• Citation: 903 F.Supp.2d 690
• Parties: WISCONSIN RESOURCES PROTECTION COUNCIL, CENTER FOR BIOLOGICAL DIVERSITY and Laura Gauger, Plaintiffs, v. FLAMBEAU MINING COMPANY, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

903 F.Supp.2d 690

WISCONSIN RESOURCES PROTECTION COUNCIL, CENTER FOR BIOLOGICAL DIVERSITY and Laura Gauger, Plaintiffs,

v.FLAMBEAU MINING COMPANY, Defendant.

No. 11–cv–45–bbc.

United States District Court, W.D. Wisconsin.

April 13, 2012.

Christa Oliver Westerberg, David C. Bender, James Neville Saul, Pamela R. McGillivray, McGillivray, Westerberg and Bender, LLC, Madison, WI, Daniel Parke Mensher, Pacific Environmental Advocacy Center, Portland, OR, Kevin M. Cassidy, Norwell, MA, Marc Fink, Center for Biological Diversity, Duluth, MN, for Plaintiffs.

Harry E. Van Camp, Cari Anne Renlund, Henry James Handzel, Jr., Scott M. Paler, Dewitt Ross & Stevens S.C., Madison, WI, for Defendant.

OPINION and ORDER

BARBARA B. CRABB, District Judge.

Plaintiffs Wisconsin Resources Protection Council, Center for Biological Diversity and Laura Gauger bring this action for declaratory and injunctive relief and civil penalties under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(1). Plaintiffs contend that defendant Flambeau Mining Company is violating the Clean Water Act by discharging pollutants without a Wisconsin or National Pollutant Discharge Elimination System permit issued under the Act.

Now before the court are plaintiffs' motion for partial summary judgment; defendant's motion for summary judgment on all of plaintiffs' claims; defendant's motion to dismiss the case for plaintiffs' failure to join the Wisconsin Department of Natural Resources as an indispensable party; plaintiffs' motion for leave to file supplemental proposed findings of fact; defendant's motion to strike plaintiffs' supplemental facts; and the state of Wisconsin's motion to file an amicus curiae brief.

In their motion for partial summary judgment, plaintiffs seek a declaration that they have standing to bring this suit and a determination that defendant violated the Clean Water Act on 23 days by discharging pollutants without a permit. In its motion for summary judgment, defendant seeks judgment on all of plaintiffs claims, contending that plaintiffs lack standing to bring this suit. On the merits, defendant contends that it did not discharge pollutants into navigable waters that are protected by the Act and that even if it did, it was complying with a permit issued under the Act. Defendant also raises several affirmative defenses, contending that plaintiffs' claims should be dismissed because plaintiffs failed to exhaust their administrative remedies and waived their claims. Additionally, defendant contends that plaintiff's claims are barred by the statute of limitations, the doctrines of issue and claims preclusion, various forms of estoppel and laches and their failure to exhaust their administrative remedies.

With respect to the threshold jurisdictional and procedural questions, I conclude that plaintiffs have Article III standing to bring this suit and that the Department of Natural Resources is not a necessary or indispensable party under Fed.R.Civ.P. 19. Therefore, I am granting plaintiffs' motion for summary judgment on the issue of standing and am denying defendant's motion to dismiss the case under Rule 19. I am granting the state's motion to file an amicus curiae brief. The brief sets forth the state's interpretation of state statutes and regulations relating to mining and storm water discharge permits and provides useful background on issues relevant to the case. In addition, I am denying defendant's motion for summary judgment on its contentions that plaintiffs are barred from bringing this suit by their failure to exhaust their administrative remedies, by the running of the statute of limitations, by laches or by the doctrines of issue and claims preclusion.

With respect to the merits of plaintiffs' claims, plaintiffs have shown that defendant discharged pollutants from the biofilter located on its former mine site, that Stream C is a navigable water that is protected by the Clean Water Act and that defendant did not have a permit under the Act authorizing the discharges. Therefore, I am granting plaintiffs' motion for summary judgment on those issues. However, there are disputed issues of fact regarding whether the discharges from defendant's biofilter entered Stream C or a grassy wetland. Because plaintiffs have not shown that the grassy wetland qualifies as navigable waters under the Act, I am denying plaintiffs' motion for summary judgment with respect to defendant's ultimate liability under the Act for the discharges. Before defendant can be held liable for its unpermitted discharges, plaintiffs must prove that defendant discharged pollutants into Stream C or that the wetland area near the biofilter outlet has a “significant nexus” to the Flambeau River.

As for the remaining motions, I am denying plaintiffs' motion for leave to file supplemental proposed findings of fact because the proposed findings were not necessary to the decisions on the parties' substantive motions. Consequently, I am denying defendant's motion to strike the supplemental facts as moot.

From the findings of fact proposed by the parties, I find that the following facts are material and undisputed.

UNDISPUTED FACTS

A. Defendant Flambeau Mining Company

From 1993 to 1997, defendant Flambeau Mining Company owned and operated an open pit metallic mine, along with related facilities, on property in Ladysmith, Wisconsin. The mine has been partially reclaimed but several industrial buildings and structures remain in place and in use. One of these remaining structures is a “biofilter” that is used to detain and partially treat runoff from a 32–acre business and industrial park on defendant's property, known as the “industrial outlot.” The biofilter collects, stores and periodically discharges storm water. The industrial outlot contains various buildings and structures, including an administrative office and laboratory, recreational facilities, defendant's former wastewater treatment building and a parking area. Defendant still owns the former mine site, including the industrial outlot, which is leased by the Ladysmith Community Industrial Development Corporation.

B. Stream C

The Flambeau mine site is bordered on the east by State Highway 27 and on the west and southwestern sides by the Flambeau River. Several intermittent streams flow on the mine site. The only stream relevant to this case is a seasonally-flowing intermittent stream known as Stream C that flows in a generally southwesterly direction on the east side of the property. During various stages of mining and reclamation, defendant manipulated the channel of Stream C by re-routing segments of it, installing culverts underneath the former access road and rail spur and performing significant grading of the lands on its property that drain to Stream C.

C. Plaintiffs

Plaintiff Wisconsin Resources Protection Council is a Wisconsin nonprofit environmental organization headquartered in La Crosse, Wisconsin, with approximately 225 members in Wisconsin and Minnesota. One of its primary purposes is to educate citizens about the effects of large scale metallic mining on Wisconsin's water supplies, the tourism and dairy industries and the Native American communities located near potential mine sites. Since at least 1991, the Council has worked with the Wisconsin Department of Natural Resources on issues relating to the Flambeau mine, including the development of defendant's 1991 mining permit; advocating the passage of Wisconsin's Metallic Mining Moratorium in 1998; and tracking defendant's compliance with its mining permit and monitoring requirements.

Plaintiff Center for Biological Diversity is a nonprofit environmental membership organization headquartered in Tucson, Arizona, with a regional office in Duluth, Minnesota and approximately 320 members in Wisconsin. The Center's mission is preservation, protection and restoration of biodiversity, native species, ecosystems and public lands, with an emphasis on protecting the habitats of threatened and endangered species. It also promotes the ability of its members to engage in recreational activities and study the habitat of species that are or may become imperiled.

One of the Council's members, Harold Flater, lives approximately 15 miles downstream from the Flambeau mine site and owns Flater's Flambeau Point Resort, which provides guided fishing trips on the Flambeau River. Flater enjoys boating and fishing on the river near and downstream from the Flambeau mine. He is familiar with the mine and has attended several public hearings and meetings concerning defendant's permit applications over the years. Flater knows that both copper and zinc are considered toxic pollutants and can be harmful to human health and aquatic life at elevated concentrations. He is concerned that discharges from defendant's industrial outlot and biofilter will harm fish and other aquatic wildlife and will decrease his enjoyment of fishing and boating on the river.

Plaintiff Laura Gauger lived in Wisconsin from September 1991 to February 2010 and is now a citizen and resident of Duluth, Minnesota. She is a member of plaintiff Center for Biological Diversity and plaintiff Wisconsin Resources Protection Council. Gauger is an outdoor enthusiast who enjoys hiking, bird and animal watching, canoeing, fishing and camping, among other activities. On multiple occasions, she has canoed and hiked near the Flambeau River and Flambeau mine site. Between May 2007 and October 2011, Gauger visited the Flambeau mine site at least 12 times. She has co-authored a 1,200 page book documenting the history of the Flambeau Mine and its effects on the surrounding area.

Lori Andresen is a member of plaintiffs Center for Biological Diversity and Wisconsin Resource Protection Council and enjoys outdoor activities. She has been involved in mining issues in Minnesota and Wisconsin for many years and has been interested in reclamation of the Flambeau mine since 2006. Andresen visited the...