WildEarth Guardians v. Lamar Utilities Board et al

Filing 21

ORDER granting 14 Plaintiff's Motion for Leave to Extend Briefing Schedule on Defendants' Motion to Dismiss to Permit Plaintiff an Opportunity to Conduct Limited Discovery Regarding Jurisdiction. Plaintiff may file a supplemental or amen ded response brief once the limited discovery regarding jurisdiction is completed to 12 Defendants' Motion to Dismiss Complaint. Each party shall pay their own attorney fees and costs for this motion, by Magistrate Judge Michael J. Watanabe on 06/24/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00742-MSK-MJW
WILDEARTH GUARDIANS,
Plaintiff,
v.
LAMAR UTILITIES BOARD d/b/a Lamar Light and Power, and
ARKANSAS RIVER POWER AUTHORITY,
Defendants.

ORDER REGARDING
PLAINTIFF’S MOTION FOR LEAVE TO EXTEND BRIEFING SCHEDULE ON
DEFENDANTS’ MOTION TO DISMISS TO PERMIT PLAINTIFF AN OPPORTUNITY
TO CONDUCT LIMITED DISCOVERY REGARDING JURISDICTION
(DOCKET NO. 14)

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Plaintiff’s Motion to for Leave to Extend Briefing
Schedule on Defendants’ Motion to Dismiss to Permit Plaintiff An Opportunity to
Conduct Limited Discovery Regarding Jurisdiction (docket no. 14). The court has
reviewed the subject motion (docket no. 14), the response (docket 18), and the reply
(docket no. 20). In addition, the court has taken judicial notice of the court file and has
considered applicable Federal Rules of Civil Procedure and case law. The court now
being fully informed makes the following findings of fact, conclusions of law, and Order.
In this lawsuit, Plaintiff alleges in the Complaint violations of the Federal Clean
Air Act in connection with Defendants’ operation of a coal-fired electronic generation
facility known as the Lamar Repowering Project and seeks declaratory and injunctive
relief, as well as civil monetary penalties, against the Defendants. Plaintiff seeks an

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Order from this court allowing limited discovery regarding jurisdiction and once such
discovery is complete to allow Plaintiff to file a supplemental or amended response brief
to Defendants’ Motion to Dismiss Complaint (docket no. 12).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That venue is proper in the state and District of Colorado;

2.

That each party has been given a fair and adequate opportunity to
be heard;

3.

That Plaintiff’s Complaint alleges that the Lamar Light and Power
Plant has an ongoing compliance problem, that future violations will
recur when the Plant resumes operations, and that those violations
are imminent. See Complaint (docket no. 1) at paragraphs 105
through 108, inclusive;

4.

That in the Defendants’ Motion to Dismiss (docket no. 12), the
Defendants seek dismissal of Plaintiff’s Complaint and this lawsuit
pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction;

5.

That Defendants argue in the Motion to Dismiss (docket no. 12)
that this case is MOOT unless Plaintiff proves that “there is a
realistic prospect that the violations alleged in their Complaint will
continue notwithstanding the Consent Orders.” See docket no. 12
at pages 13 through 15, inclusive;

6.

That as argued by Defendants in their Motion to Dismiss (docket

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no. 12), the Consent Orders do not address all alleged violations as
outlined in Plaintiff’s Complaint. In particular, the Consent Orders
do not address counts seven through ten, inclusive, in the Plaintiff’s
Complaint. Counts seven through ten, inclusive, of Plaintiff’s
Complaint allege that Defendants failed to monitor continuously
Nox, SO2, CO, and opacity and failed to ensure compliance with its
emission limitations when operating the coal-fired boiler at the
Lamar Light and Power Plant, violating Lamar’s Permit, the
Colorado SIP, and the Clean Air Act. See Complaint (docket no. 1)
at paragraphs 160 through 195, inclusive; and
7.

That whether future violations may occur, under the realistic
prospect test, is a factual dispute, and therefore limited discovery
regarding jurisdiction should be permitted at this stage of this
litigation pursuant to Sizova v. Nat. Institute of Standards &
Technology, 282 F.3d 1320, 1326 (10th Cir. 2002) (“When a
defendant moves to dismiss for lack of jurisdiction, either party
should be allowed discovery on the factual issues raised by that
motion.”).
ORDER

WHEREFORE, based upon these findings of facts and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Motion for Leave to Extend Briefing Schedule on
Defendants’ Motion to Dismiss to Permit Plaintiff An Opportunity to

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Conduct Limited Discovery Regarding Jurisdiction (docket no. 14) is
GRANTED as follows;
2.

That Plaintiff may file a supplemental or amended response brief
once the limited discovery regarding jurisdiction is completed to
Defendants’ Motion to Dismiss Complaint (docket no. 12);

3.

That a Rule 16 Scheduling Conference is set before Magistrate
Judge Watanabe on July 12, 2011, at 9:30 a.m. The parties shall
file their proposed Rule 16 Scheduling Order with the court five (5)
days prior to the Rule 16 Scheduling Conference. The proposed
Rule 16 Scheduling Order shall be limited in scope to discovery
on the issue of jurisdiction only. At the Rule 16 Scheduling
Conference, Magistrate Judge Watanabe will also be setting a date
certain for filing with the court any supplemental or amended
response brief to Defendants’ Motion to Dismiss Complaint (docket
no. 12) by Plaintiffs and will also be setting a date certain for any
supplemental or amended reply brief by Defendants; and

4.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 24th day of June 2011.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE