WaterLegacy v. United States Environmental Protection Agency et al
Filing
50
MEMORANDUM OPINION AND ORDER (1) Granting in part and denying in part Mesabi Nugget's 29 Motion for Intervention and Related Relief. a) Motion is granted to the extent it seeks intervent ion for the limited purpose of opposing the March 10, 2014 Unopposed Motion for a Voluntary Remand With Vacatur. b) The request that the remand to the EPA be without vacatur is grranted. c) The motion is denied to the extent it seeks a thirty-day delay prior to the entry of this Order. (2) Granting in part and denying in part defendants' unopposed 26 Motion for a Voluntary Remand with Vacatur to U.S. EPA a) Motion is granted only to the extent it seeks voluntary remand of this matter to the EPA. b) Motion is denied to the extent it seeks vacatur of the December 27, 2012, Variance Approval Decision during the pendency of the remand. The denial of vacatur is w ithout prejudice and any party, including intervenor-Mesabi Nugget, may move for vacatur should the circumstances and timing of remand become different than currently represented by Defendants and therefore warrant such relief. (Written Opinion). Signed by Judge John R. Tunheim on June 2, 2014. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
WATERLEGACY, FOND DU LAC
BAND OF LAKE SUPERIOR
CHIPPEWA, GRANT PORTAGE BAND
OF LAKE SUPERIOR CHIPPEWA, and
MINNESOTA CENTER FOR
ENVIRONMENTAL ADVOCACY,
Plaintiffs,
Civil No. 13-1323 (JRT/LIB)
MEMORANDUM OPINION
AND ORDER
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, UNITED
STATES ENVIRONMENTAL
PROTECTION AGENCY REGION 5,
SUSAN HEDMAN, in her official
capacity as Administrator of the United
States Environmental Protection Agency
Region 5, GINA MCCARTHY, in her
official capacity as Acting Administrator
of the United States Environmental
Protection Agency,
Defendants.
and
MESABI NUGGET DELAWARE, LLC,
Intervenor.
Paula G. Maccabee, JUST CHANGE LAW OFFICE, 1961 Selby
Avenue, St. Paul, MN 55104, for plaintiff WaterLegacy.
Paula G. Maccabee, JUST CHANGE LAW OFFICE, 1961 Selby
Avenue, St. Paul, MN 55104; and Sara K. Van Norman, JACOBSON,
27
MAGNUSON, ANDERSON & HALLORAN, PC, 1295 Bandana
Boulevard, Suite 335, St. Paul, MN 55108, for plaintiffs Fond du Lac Band
of Lake Superior Chippewa and Grand Portage Band of Lake Superior
Chippewa.
Kathryn
M.
Hoffman,
MINNESOTA
CENTER
FOR
ENVIRONMENTAL ADVOCACY, 26 East Exchange Street, Suite 206,
St. Paul, MN 55101, for plaintiff Minnesota Center for Environmental
Advocacy.
David A. Carson, UNITED STATES DEPARTMENT OF JUSTICE,
ENVIRONMENT AND NATURAL RESOURCES DIVISION, 999
Eighteenth Street, South Terrace Suite 370, Denver, CO 80202, for
defendants.
David L. Hatchett, HATCHETT & HAUCK LLP, 111 Monument Circle,
Suite 301, Indianapolis, IN 46204; and David R. Oberstar, FRYBERGER
BUCHANAN SMITH & FREDERICK, 302 West Superior Street, Suite
700, Duluth, MN 55802, for intervenor.
This is an action for declaratory judgment and injunctive relief pursuant to the
Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq. and the Administrative Procedure
Act (“APA”), 5 U.S.C. §§ 500 et seq.
Plaintiffs in this matter are two nonprofit
organizations – WaterLegacy and the Minnesota Center for Environmental Advocacy
(“MCEA”) – that have an interest in Minnesota’s water quality generally and the
Fond Du Lac and Grand Portage Bands of the Lake Superior Chippewa (“the Bands”)
that have an interest in Minnesota’s water quality in the area at issue. Defendants are the
United States Environmental Protection Agency, the branch of the agency that reviews
water quality decisions for Minnesota (Region 5), and various officers of that agency
(collectively, “the EPA”). Plaintiffs challenge the EPA’s December 2012 approval of a
water quality standards variance for a commercial-scale iron nugget production facility
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located in Hoyt Lakes, Minnesota, owned by intervenor Mesabi Nugget Delaware, LLC
(“Mesabi Nugget”).
On March 10, 2014, the EPA filed an unopposed motion to vacate its approval of
the variance and remand the matter to the agency for further consideration. Three days
later, Mesabi Nugget moved to intervene for the limited purposes of delaying remand for
thirty days to allow it to discuss the issue with the EPA and preventing the variance from
being vacated during the period of remand. Because the Court concludes that Mesabi
Nugget has satisfied the requirements for intervention it will grant Mesabi Nugget’s
request for intervention. The Court will also grant the EPA’s unopposed motion for
remand, but will remand the matter without vacating the December 2012 variance
approval.
BACKGROUND
I.
DECEMBER 2012 VARIANCE APPROVAL
A.
Regulatory Structure
Under the CWA, Mesabi Nugget is prohibited from discharging any pollutant into
waters of the United States from a point source, such as its facility, unless the discharge is
authorized by a permit under the National Pollutant Discharge Elimination System
(“NPDES”). 33 U.S.C. §§ 1311(a), 1342(a)(1). The EPA has delegated to the Minnesota
Pollution Control Agency (“MPCA”) the authority to issue NPDES permits for
discharges of pollutants within Minnesota that comply with or are more stringent than
federal permit conditions. See In re Alexandria Lake Area Sanitary Dist. NPDES/SDS
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Permit No. MN0040738, 763 N.W.2d 303, 308-09 (Minn. 2009) (citing Minn. Stat.
§ 115.03, subd. 5; 40 C.F.R. § 123.25(a)); see also 33 U.S.C. § 1342(b). An NPDES
permit must include conditions that will result in compliance with state water quality
standards. 33 U.S.C. § 1342(a)(1); 40 C.F.R. § 122.44(d). The EPA is required to
review and either approve or disapprove any new or revised state water quality standards
promulgated by the MPCA before they can become effective. 33 U.S.C. § 1313(c); 40
C.F.R. § 131.5. Variances authorizing discharges from individual facilities that exceed
state water quality standards are considered modifications to state water quality
standards, and therefore any variances granted by the MPCA must be submitted to the
EPA for approval or disapproval. See 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.21;
see also 40 C.F.R. § 124.62.
B.
Mesabi Nugget’s Variance
Mesabi Nugget’s iron production facility was originally governed by an NPDES
permit issued in June 2005 which granted the facility variances from Minnesota water
quality standards for certain types of discharges for a period of five years. (Am. Compl.
¶¶ 76-77, Nov. 27, 2013, Docket No. 23; Administrative Record (“R.”) at 654, Nov. 15,
2013, Docket No. 20.) The 2005 variance expired on June 30, 2010, and Mesabi Nugget
voluntarily ceased discharging from the facility because the MPCA had not extended its
water quality variances. (Am. Compl. ¶ 85; R. at 64.) In June 2010 Mesabi Nugget
applied to the MPCA for another variance, requesting “a continuation of the variances
from the water quality standards for the 5-year term of the reissued permit.” (R. at 654.)
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On January 30, 2012, the MPCA provided public notice of its intent to issue
Mesabi Nugget a variance from compliance with Minnesota water quality standards.
(Am. Compl. ¶ 88; R. at 80.) Prior to and during this public comment period, all
Plaintiffs in the present lawsuit submitted comments expressing opinions and concerns
regarding the content and legality of the proposed variance. (R. at 8-9, 80; Am. Comp.
¶ 117; Exhibit List, Ex. A, Mar. 20, 2014, Docket No. 38.)
On October 23, 2012, the MPCA Citizens’ Board approved the MPCA’s proposed
findings of fact, conclusions of law, and order approving the issuance of an NPDES
permit to Mesabi Nugget containing a variance from Minnesota water quality standards.
(R. at 1370-90.) The MPCA then requested approval of the variance from the EPA.
(R. at 41.) On December 27, 2012, the EPA approved the variance granted by the MPCA
for Mesabi Nugget’s facility through August 1, 2021. (R. at 3-24.)
II.
PROCEDURAL HISTORY
WaterLegacy, the MCEA, and the Bands each filed separate petitions appealing
the EPA’s variance approval to the EPA Environmental Appeals Board. (Compl., Ex. B
at 2-3, June 3, 2013, Docket No. 1.) Both the EPA and Mesabi Nugget filed motions to
dismiss the petitions for lack of jurisdiction. (Id., Ex. B at 3.) On March 19, 2013, the
Board granted the motions to dismiss, finding that it lacked jurisdiction to review the
EPA’s approval of a water quality standards variance issued pursuant to Section 303(c) of
the CWA and 40 C.F.R. part 131. (Id., Ex. B at 7.) The Board explained that review of
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the EPA’s decision could instead be properly sought in federal district court pursuant to
the Administrative Procedure Act. (Id.)
On June 3, 2013 WaterLegacy filed a complaint in this Court against the EPA
challenging its December 27, 2012 approval of the variance, and requesting declaratory
judgment and injunctive relief. (Compl., June 3, 2013, Docket No. 1.) The Bands and
the MCEA initiated separate lawsuits against the EPA seeking identical relief. (See Civ.
No. 13-1324, Compl., June 3, 2013, Docket No. 1; Civ. No. 13-1393, Compl., June 10,
2013, Docket No. 1.) The EPA filed an answer in each of the cases disputing the
allegations that its approval of the variance was arbitrary and capricious and asserting as
defenses that the complaints failed to state claims upon which relief could be granted.
(Answer, Aug. 27, 2013, Docket No. 13; Civ. No. 13-1324, Answer, Aug. 27, 2013,
Docket No. 12; Civ. No. 13-1393, Answer, Aug. 27, 2013, Docket No. 14.)
On August 27, 2013, the three cases were consolidated. (Order, Aug. 27, 2013,
Docket No. 12.) Pursuant to stipulation, the Plaintiffs filed a single amended complaint
in the present action on November 27, 2013. (Order, Nov. 26, 2013, Docket No. 22; Am.
Compl.) The EPA was not “required to file an amended answer in order to preserve [its]
denial of all claims made by plaintiffs.” (Id. ¶ 2.)
A.
Consent Motion to Remand to the EPA with Vacatur
On March 10, 2014, the EPA brought an unopposed motion for a voluntary
remand with vacatur. (Defs.’ Unopposed Mot. for Voluntary Remand with Vacatur,
Mar. 10, 2014, Docket No. 26.) In the motion the EPA explains:
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Upon further review of this matter, EPA has determined that it should
reconsider the request for a variance by the Minnesota Pollution Control
Agency that EPA granted in the December 27, 2012, Variance Approval
Decision. EPA therefore requests a remand of the December 27, 2012,
Variance Approval Decision. EPA intends to disapprove the variance
request on remand under section 303(c) of the Clean Water Act, 33 U.S.C.
§ 1313(c). Under these unique circumstances, EPA requests that the Court
vacate the December 27, 2012, Variance Approval Decision before
remanding the matter to EPA.
(Id. ¶ 3.) The EPA notes that “[w]hile vacatur is not always appropriate when an agency
requests a voluntary remand, as noted above, given EPA’s intention to disapprove the
variance request on remand, EPA requests that the Court vacate the December 27, 2012,
Variance Approval Decision prior to remanding the matter to EPA.” (Id. ¶ 4.) Finally,
with respect to resolution of the pending case, the EPA states that because the motion for
remand and vacatur is unopposed “it is the parties’ intention to file a stipulation of
dismissal under Fed. R. Civ. P. 41 after the Court grants this motion.” (Id. ¶ 5.)
B.
Motion to Intervene
The day after the motion for remand was filed, Mesabi Nugget delivered a letter to
United States Magistrate Judge Leo I. Brisbois indicating that its “ability to operate will
be affected by EPA’s motion” and requesting “that the court delay its action on the
EPA’s motion” for several days to allow Mesabi Nugget the opportunity to prepare “a
response to the motion seeking limited relief.” (Letter, Mar. 12, 2014, Docket No. 28.)
On March 13, 2014, Mesabi Nugget brought a motion for intervention and “related
relief.” (Mot. for Intervention & Related Relief, Mar. 13, 2014, Docket No. 29.) In the
motion, Mesabi Nugget seeks leave “to intervene in the above-entitled lawsuit for the
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purpose of opposing EPA’s March 10, 2014 Motion for Voluntary Remand.” (Id. at 2.)
Mesabi Nugget also requests that the Court
[d]elay[] any order granting EPA’s Motion for Remand for a period of 30
days to allow for Mesabi to meet with defendant EPA as to the basis for the
EPA’s decision to allow remand of the Variance that is the subject of this
litigation, after which meeting Mesabi will not object to EPA’s request for
this Court to remand the Variance back to EPA for further proceedings,
except to object to the request to vacate the Variance.
(Id.) Finally, Mesabi Nugget requests that “[t]o the extent that an order remanding the
Variance is issued in the future” the Court “abstain from vacating the Variance while the
remand proceedings take place.”
(Id.; see also Mem. of Law in Supp. of Mot. to
Intervene at 2, Mar. 13, 2014, Docket No. 31.)
ANALYSIS
I.
MOTION TO INTERVENE
Mesabi Nugget seeks to intervene as a matter of right, and in the alternative seeks
permissive intervention.1 Federal Rule of Civil Procedure 24(a) governs intervention as a
matter of right, and provides that:
On timely motion, the court must permit anyone to intervene who:
(1)
is given an unconditional right to intervene by a federal statute; or
1
Plaintiffs oppose Mesabi Nugget’s motion to intervene. (Joint Response to Mesabi
Nugget’s Mot. to Intervene, Mar. 20, 2014, Docket No. 37; Response to Mesabi Nugget’s Mot.
for Intervention & Related Relief, Mar. 20, 2014, Docket No. 35.) The EPA opposes Mesabi
Nugget’s request for “other relief” – namely the thirty-day delay in ordering remand and
eliminating vacatur from the EPA’s remand motion – but “takes no position on Mesabi’s motion
to intervene.” (EPA’s Response to Mesabi Nugget’s Mot. to Intervene and For Related Relief at
3 n.1, Mar. 20, 2014, Docket No. 36.)
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(2)
claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action
may as a practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately represent that
interest.
Fed. R. Civ. P. 24(a). A party seeking mandatory intervention under Rule 24(a) must
establish that “(1) it has a recognized interest in the subject matter of the litigation; (2) the
interest might be impaired by the disposition of the case; and (3) the interest will not be
adequately protected by the existing parties.” S.D. ex rel. Barnett v. U.S. Dep’t of
Interior, 317 F.3d 783, 785 (8th Cir. 2003).
Where a proposed intervenor cannot
demonstrate entitlement to intervene as of right by satisfying these criteria, a court may
permit intervention to anyone who brings a timely motion and “has a claim or defense
that shares with the main action a common question of law or fact.” Fed. R. Civ.
P. 24(b)(1)(B). In exercising its discretion to allow permissive intervention, the Court
“must consider whether the intervention will unduly delay or prejudice the adjudication
of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). A motion for intervention under
either Rule 24(a) or 24(b) “must state the grounds for intervention and be accompanied
by a pleading that sets out the claim or defense for which intervention is sought.” Fed. R.
Civ. P. 24(c). The Court must “construe Rule 24 liberally and resolve any doubts in
favor of the proposed intervenors.” United States v. Ritchie Special Credit Invs., Ltd.,
620 F.3d 824, 831 (8th Cir. 2010) (internal quotation marks omitted).
The parties do not dispute, and the Court finds, that Mesabi Nugget meets the
criteria for intervention as of right or permissive intervention due to its interest in the
variance and the fact that its interest in maintaining the variance is not adequately
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represented by the parties to the litigation.
Plaintiffs do, however, oppose Mesabi
Nugget’s motion for intervention on a number of other bases, including that the motion
contains fatal procedural flaws, is moot in light of the EPA’s unopposed motion for
remand, and is untimely. The Court will address each of these arguments in turn.
A.
Procedural Flaws
1.
Scope of Intervention
Plaintiffs first challenge Mesabi Nugget’s motion for intervention on the basis that
“[i]t is not even clear whether Mesabi seeks to intervene as a plaintiff or defendant.”
(Joint Response to Mesabi Nugget’s Mot. to Intervene at 6, Mar. 20, 2014, Docket
No. 37.) Courts have “recognized that the resolution of a Rule 24 motion requires
flexibility” and engage in “a practical analysis of the facts and circumstances of each
case” even where a motion to intervene is not “conventional” and does not fit neatly into
the contours of “the analytical framework established by Rule 24.” United States v.
Petters, Civ. No. 08-5348, 2008 WL 5234527, at *2 (D. Minn. Dec. 12, 2008) (internal
quotation marks omitted) (granting a motion to intervene for the limited purpose of lifting
the stay of litigation because “a practical, commonsense application of Rule 24 suggests
intervention for th[at] limited purpose . . . is appropriate here”). In keeping with these
principles, courts have consistently allowed intervention for a limited purpose, such as
intervention to challenge a protective order, see Jessup v. Luther, 227 F.3d 993, 999
(7th Cir. 2000) (holding that where the district court sealed a portion of its proceedings
and records “the Newspaper should have been allowed to intervene for the limited
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purpose of challenging the district court’s order”); In re Baycol Prods. Litig., 214 F.R.D.
542, 543-44 (D. Minn. 2003) (allowing intervention for limited purpose of seeking
modification of a protective order), to object to the production of certain discovery, see
Sackman v. Liggett Grp., Inc., 167 F.R.D. 6, 17 (E.D.N.Y. 1996) (considering motions to
intervene “for the limited purpose” of objecting to an order regarding the discovery of
certain documents), or to challenge a settlement, United States v. Carpenter, 298 F.3d
1122, 1125-26 (9th Cir. 2002).
Here, Mesabi Nugget clearly seeks intervention for a limited purpose and therefore
need not specify whether it seeks intervention as a plaintiff or defendant. In other words,
Mesabi Nugget does not wish to file claims, defend against the allegations in the
amended complaint, or engage with the merits of the lawsuit. Instead, Mesabi Nugget
seeks to intervene for the limited purpose of addressing issues that are ancillary to the
merits of the lawsuit. Mesabi Nugget does not dispute that the case – which challenges
the propriety of the EPA’s December 27, 2012 approval of the variance – should be
remanded for reconsideration by the EPA, but brings its motion to intervene solely to
delay entry of the unopposed motion for remand for a period of thirty days and to
challenge the collateral issue of whether the variance should be vacated during the
pendency of the remand proceedings. Plaintiffs have identified, and the Court has found,
no authority that would prevent Mesabi Nugget from intervening for the limited purposes
it has identified.
Instead, applying a flexible and commonsense understanding of
Rule 24, the Court concludes that Mesabi Nugget’s failure to seek intervention as either a
party plaintiff or party defendant does not provide a basis to deny its motion.
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2.
Failure to Include Pleading
Relatedly, Plaintiffs argue that Mesabi Nugget’s motion to intervene is improper
under Rule 24 because it fails to include a pleading. Plaintiffs contend that “before the
Court can consider the merits, Mesabi must conform its Motion by filing a pleading and
then re-noticing the parties.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 6.)
Rule 24 requires that a motion for intervention “state the grounds for intervention
and be accompanied by a pleading that sets out the claim or defense for which
intervention is sought.” Fed. R. Civ. P. 24(c). But the Eighth Circuit has held that failure
to comply with this requirement is not fatal to a motion for intervention where a proposed
intervenor submits “a statement of interest explaining why it seeks intervention.” United
States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir. 2009).
Such a
statement of interests satisfies Rule 24’s requirement of an accompanying pleading if “it
provides sufficient notice to the court and the parties of [the intervenor]’s interests.” Id.
Here, the Court concludes that Mesabi Nugget’s brief in support of its motion to
intervene provides sufficient notice to the Court and the parties of its interests and the
basis for its motion to satisfy Rule 24(c).
In its brief Mesabi Nugget has clearly
identified its interest in the variance and its rationale for seeking a thirty-day meet and
confer period and challenging the vacatur of the variance.
Indeed, given Mesabi
Nugget’s request for limited intervention, which does not seek to challenge the
allegations in the Amended Complaint or assert independent claims, the briefing
submitted in connection with Mesabi Nugget’s motion provides far more relevant
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information to the Court and the parties than would a formal pleading. Furthermore, the
Court notes that Plaintiffs do not seek denial of Mesabi Nugget’s motion due to the
failure to file a pleading, instead Plaintiffs merely request refiling of the instant motion.
Given the important timing concerns of the remand identified by Plaintiffs, the Court
concludes that requiring Mesabi Nugget to refile its motion would elevate form over
substance and merely serve to delay the relief sought by Plaintiffs. Accordingly, because
Mesabi Nugget’s brief meets the standards of Rule 24(c)’s pleading requirement, by
apprising the Court and the parties of the purpose and scope of its proposed intervention,
the Court will consider the motion on the merits, despite the lack of a formal pleading.
3.
Arguments Responsive to Motion for Remand
Plaintiffs also contend that Mesabi Nugget’s motion is improper because it offers
argumentation that is responsive to the unopposed motion for remand, arguing that “[a]
motion to intervene can only deal with whether a party is entitled to appear in a case” and
“Mesabi is not entitled to proffer a response to the Unopposed Motion until and unless it
is granted intervention.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 6.)
Although Plaintiffs do not contend that this “impermissible” inclusion of a response to
the motion for remand is a basis to deny Mesabi Nugget’s motion, they request that the
motion be “conformed and the parties re-noticed” before the Court hears the motion. (Id.
at 7.)
Plaintiffs have cited, and the Court has found, no authority for the proposition that
a proposed intervenor cannot include in its motion for intervention arguments against a
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pending motion that the intervenor would make if intervention was allowed. Indeed,
where, as here, Mesabi Nugget seeks intervention for the limited purpose of challenging a
pending motion it would make little sense for its motion to intervene not to include its
position with respect to the pending motion. In other words, Mesabi Nugget’s arguments
about the motion for remand are essential to understanding the basis for its motion for
intervention, and are therefore not improper. Finally, as explained more fully below, the
parties’ interest in the expeditious remand of this case would not be furthered by
requiring Mesabi Nugget to refile its motion for intervention. Although Plaintiffs are
correct that Mesabi Nugget has no right to have its responses to the motion for remand
considered if its motion for intervention is denied, the Court has identified no procedural
deficiency in Mesabi Nugget providing its arguments regarding the motion for remand to
the Court. See Sackman, 167 F.R.D. at 20 (“Further, in an effort to avoid delaying these
proceedings the putative intervenors have already filed their objections, the consideration
of which are contingent upon the Court’s decision with respect to these motions.”).
Therefore, the Court will consider Mesabi Nugget’s motion to intervene on the merits
even though its briefing contains substantive arguments regarding the motion for
remand.2
2
Plaintiffs and the EPA also object to Mesabi Nugget setting a hearing on its motion to
intervene in front of United States Magistrate Judge Leo I. Brisbois. (See Notice of Hearing on
Mot., Mar. 13, 2014, Docket No. 30.) Plaintiffs contend that although motions to intervene are
nondispositive matters properly heard by magistrate judges, Mesabi Nugget’s motion also seeks
denial of vacatur “[s]o, via these backdoor means, Mesabi has impermissibly set before a
magistrate judge a dispositive-motion hearing that no other party wanted – and Mesabi’s not
even a party to the case yet.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 7; see
(Footnote continued on next page.)
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B.
Mootness
Plaintiffs next argue that the motion to intervene must be denied because, in light
of the filing of the unopposed motion for remand, no case or controversy exists.
Specifically Plaintiffs argue “[n]ow that the EPA has formally changed course, the Court
lacks jurisdiction to adjudicate the ‘present or future legality’ of the Variance Decision
because there is no longer a case or controversy between the existing parties.” (Joint
Response to Mesabi Nugget’s Mot. to Intervene at 11.)
“‘The exercise of judicial power under Art. III of the Constitution depends on the
existence of a case or controversy.’” Ringo v. Lombardi, 677 F.3d 793, 796 (8th Cir.
2012) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). If no actual, ongoing case
or controversy exists “the case is moot and the federal court no longer has jurisdiction to
hear it.” Id. (internal quotation marks omitted). A motion to intervene is generally
rendered moot where the action in which the litigant seeks to intervene has been
dismissed.
See W. Coast Seafood Processors Ass’n v. Natural Resource Defense
Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011); cf. Robert F. Booth Trust v. Crowley,
687 F.3d 314, 318 (7th Cir. 2012) (concluding that appeal from denial of a motion to
____________________________________
(Footnote continued.)
also EPA’s Response to Mesabi Nugget’s Mot. to Intervene and For Related Relief at 2
(“Because Mesabi’s motion to intervene is intertwined with its motion for ‘related relief’ . . . this
matter should be heard by Judge Tunheim in its entirety.”).) Because this Court, not the
Magistrate Judge, heard argument on the motion to intervene and for related relief and took that
motion and the unopposed motion for remand under advisement, (Ct. Minutes, May 7, 2014,
Docket No. 49) the parties’ objections to Mesabi Nugget’s motion on this basis are moot.
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intervene was not moot where “the case remains pending, and the parties have submitted
another settlement for the district judge’s approval”).
Because the present case remained open when Mesabi Nugget filed its motion to
intervene, neither this case, nor the motion, is moot. Although the EPA had filed an
unopposed motion requesting remand and vacatur prior to the filing of the motion for
intervention, the Court had not yet ruled on that motion. Therefore, currently before the
Court are several cases or controversies that are sufficient to satisfy the jurisdictional
requirements of Article III. First, by filing a motion for intervention prior to the entry of
final judgment in the case, Mesabi Nugget put at issue “the merits and the propriety of
intervention.”
Robert F. Booth Trust, 687 F.3d at 318.
Plaintiffs oppose Mesabi
Nugget’s motion for intervention, indicating that the issues raised in that motion “are live
issues.” Id. Second, even if Mesabi Nugget had not filed a motion for intervention, the
propriety of remand and vacatur remains an issue before the Court.
Contrary to
Plaintiffs’ suggestion, the fact that they do not oppose the EPA’s motion for remand does
not mean that the Court is bound by the parties’ agreement as to the propriety of remand
and vacatur. See Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375
F.3d 412, 417-18 (6th Cir. 2004) (explaining that although “courts typically grant an
agency’s motion to remand a case” a court may refuse an agency’s request for remand if
the “request is frivolous or in bad faith” or if does not occur in a reasonable period of
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time (internal quotation marks omitted));3 see also Natural Resources Defense Council v.
U.S. E.P.A., 676 F. Supp. 2d 307, 312 (S.D.N.Y. 2009) (“Where an agency action is
remanded for further proceedings, the determination of whether or not also to vacate the
agency action is left to the court’s discretion.” (emphasis added)). Therefore, despite
the filing of the unopposed motion for remand, a live case or controversy remains for the
Court to decide.
As support for its position that the case is moot, Plaintiffs rely upon Save Greers
Ferry Lake, Inc. v. Dep’t of Defense, 255 F.3d 498, 501 (8th Cir. 2001). In Save Greers,
the Eighth Circuit held that no case or controversy existed with respect to the validity of a
shoreline management plan promulgated by the United States Corps of Engineers
because the Corps had since cancelled and withdrawn the shoreline management plan.
Id. at 500-01. Because a portion of the case challenged the validity of a plan which was
no longer in force, the court held that with respect to that issue, “there is no longer a case
or controversy for the courts to adjudicate regarding the present or future validity of the
[shoreline management plan].” Id. at 501. But the present case is distinguishable from
Save Greers. Unlike the Corps in Save Greers here, the EPA has not yet taken any action
to cancel or vacate the variance. Therefore, the present or future validity of the variance
can be adjudicated by a court. More importantly, Save Greers speaks only to the issue of
mootness when an agency has withdrawn or removed the challenged agency action and
3
The Court does not believe that the EPA’s request for remand here is frivolous or in bad
faith; it cites Mineta only for the proposition that, even where the parties’ agree, a live case or
controversy remains and the Court has jurisdiction to assess the propriety of an agency’s request
for remand.
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says nothing about whether Mesabi Nugget’s motion to intervene, which presents its own
case or controversy (the propriety of intervention), and which, incidentally, does not seek
to challenge the present or future validity of the variance, is moot. Therefore, the Court
will decline to deny Mesabi Nugget’s motion on the basis of mootness.
C.
Timeliness
Both motions for intervention as of right and for permissive intervention must be
timely, see Fed. R. Civ. P. 24, and “the timeliness of a motion to intervene is a threshold
issue,” Ritchie Special Credit Invs., Ltd., 620 F.3d at 832. Whether a motion to intervene
is timely “is determined by considering all the circumstances of the case” and “[n]o
ironclad rules govern this determination.” Mille Lacs Band of Chippewa Indians v.
Minnesota, 989 F.2d 994, 998 (8th Cir. 1993).
The Eighth Circuit has, however,
articulated several factors that the Court should specifically consider when making the
determination: “(1) the extent the litigation has progressed at the time of the motion to
intervene; (2) the prospective intervenor’s knowledge of the litigation; (3) the reason for
the delay in seeking intervention; and (4) whether the delay in seeking intervention may
prejudice the existing parties.” ACLU of Minn. v. Tarek ibn Ziyad Academy, 643 F.3d
1088, 1094 (8th Cir. 2011) (internal quotation marks omitted).
1.
Extent Litigation Has Progressed
Plaintiffs’ primary argument regarding timeliness is that Mesabi Nugget’s motion
to intervene is untimely because the parties have “agreed to a full resolution” of the case,
in the form of the unopposed motion for remand, making this “the final stage of
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litigation.” (Joint Response to Mesabi Nugget’s Mot. to Intervene at 13-14 (emphasis in
original).) The factor examining the extent of progress in the litigation typically weighs
against finding a motion for intervention to be timely where the motion is brought after
the “litigation is nearly wrapped up.” Tweedle v. State Farm Fire & Cas. Co., 527 F.3d
664, 671 (8th Cir. 2008). But “absolute measures of timeliness should be ignored,” Sierra
Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994), and “nothing in Rule 24(a) precludes
postjudgment or even post-appeal intervention,” Tweedle, 527 F.3d at 671. Additionally,
in analyzing the extent to which litigation has progressed courts consider not only the
current stage of the litigation but also what has occurred in the litigation before the filing
of the motion to intervene. See Stupak-Thrall v. Glickman, 226 F.3d 467, 472, 475
(6th Cir. 2000); see also Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder,
Inc., 72 F.3d 361, 369 (3d Cir. 1995) (“While four years had elapsed before the Seipels
filed their motion to intervene, the critical inquiry is: what proceedings of substance on
the merits have occurred?”). “The requirement of timeliness is not a tool of retribution to
punish the tardy would-be intervenor, but rather a guard against prejudicing the original
parties by the failure to apply sooner.” Espy, 18 F.3d at 1205.
Here, although the parties to the litigation have reached a resolution in the form of
a remand, the parties have engaged in no discovery or motion practice and no
proceedings regarding the merits of the litigation have occurred. See Midwest Realty
Mgmt. Co. v. City of Beavercreek, 93 F. App’x 782, 786 (6th Cir. 2004) (reversing
determination that motion to intervene was untimely even though the “action was
commenced in July 1998, had progressed to the point of a tentative settlement, and was
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subject to a conditional dismissal order by the time the proposed intervenors filed their
motion on June 4, 2001” because little progress had been made “in discovery and motion
practice” where “after the City’s motion to dismiss was denied, although the discovery
period had expired, little or no energy was devoted to discovery before the parties
embarked on settlement negotiations”). After Plaintiffs filed their amended complaint in
November 2013 a pretrial scheduling order was entered in December 2013. Thereafter,
no action, other than private settlement discussions, occurred prior to the filing of the
motion for remand on March 10, 2014 and Mesabi Nugget’s motion to intervene on
March 13, 2014. This is therefore not a case where extensive litigation has occurred
suggesting that the parties would be prejudiced by intervention.
Cf. Tarek ibn Ziyad
Academy, 643 F.3d at 1094 (affirming the district court’s denial of a motion to intervene
as untimely where “the fact that extensive motion practice and some discovery had
occurred during the parents’ delay in moving to intervene would prejudice the existing
parties”); Clarke v. Baptist Mem’l Healthcare Corp., 264 F.R.D. 375, 379 (W.D. Tenn.
2009) (finding that the extent of litigation factor weighed against a finding of timeliness
where “several important litigation milestones have passed” between the filing of the
complaint and the motion to intervene, including the court’s denial of a motion to
dismiss, passing of the deadline to join additional parties, the conclusion of class
certification discovery, and the court’s denial of a motion for class certification).
Furthermore, where, as here intervention is sought for a limited purpose, courts
have analyzed the issue of timeliness narrowly, as the period of time elapsing between
the event giving rise to the limited intervention and the motion to intervene.
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See
Sackman, 167 F.R.D. at 20 (noting that because “these Rule 24 motions are for the
limited purpose of objecting” to a discovery order and were filed ten days after the entry
of that order “any delay is negligible”); see also In re Ethylene Propylene Diene
Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308, 315 (D. Conn. 2009) (“In cases
where parties have sought intervention for the limited purpose of modifying a protective
order, the requirement of timeliness is quite broad. Where a party seeks intervention to
modify a protective order and not to participate on the merits, courts have permitted
intervention even where the parties to the underlying litigation have settled their dispute.”
(citation omitted)).
As explained above, Mesabi Nugget seeks intervention for the
limited purpose of challenging the type of remand that occurs (with or without vacatur),
and does not seek to intervene for purposes of arguing the merits of the case. Mesabi
Nugget filed its motion to intervene only three days after the filing of the remand motion
to which it objects.
Therefore, the Court concludes that, although the parties have
reached tentative resolution of the case, the extent of progress in the litigation weighs
only slightly against intervention.
2.
Mesabi Nugget’s Knowledge and Reason for Delay
It is undisputed that Mesabi Nugget had knowledge of this very highly publicized
litigation as soon as, or shortly after, it was filed in June 2013. (See, e.g. Exhibit List,
Exs. B-C (news coverage of the lawsuit).) It is also undisputed that Mesabi Nugget has
been aware of the position of the Plaintiffs in this matter for several years, as they
participated actively in opposing the approval of the variance sought in June 2010. But
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Mesabi Nugget argues that it did not know or have reason to know that the EPA would
cease to defend its December 2012 approval of the variance until the motion for remand
was filed. Up until that point – including before the EPA Environmental Appeals Board
and in its answers to the Plaintiffs’ complaints in the present case – the EPA’s position
was that it had properly approved Mesabi Nugget’s variance. Therefore, Mesabi Nugget
would not have known prior to the filing of the motion for remand that remand of the
variance decision would be with vacatur. Because Mesabi Nugget seeks to intervene for
the limited purpose of challenging the type of remand, the Court concludes that it did not
have a reason to know that its interests were not being represented by the EPA until the
motion for remand was filed. See Midwest Realty Mgmt. Co., 93 F. App’x at 787-88
(“The proposed intervenors undoubtedly knew that this litigation could affect their legal
interests from the beginning. However, it was not until there was reason to believe their
interests were not being adequately represented by the City that they would have been
alerted to the need to seek intervention. The mere pendency of settlement negotiations
cannot be deemed to trigger such awareness. Only notice of objectionable terms in a
proposed settlement will ordinarily suffice.” (citation omitted)); see also Carpenter, 298
F.3d at 1125 (“[U]ntil parties have notice that the government may not be representing
their interests, parties are entitled to rely on the presumption that the government is
representing their interests.”). Therefore, the Court finds that this factor weighs in favor
of intervention.
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3.
Prejudice
Finally, Plaintiffs argue that they will be prejudiced by intervention because “the
existing parties will be subjected to litigation costs and burdensome delays . . . all so
Mesabi can block the case’s resolution” and that the parties would be prejudiced by the
Court’s refusal “to allow the EPA to voluntarily reconsider the Variance Decision.”
(Joint Response to Mesabi Nugget’s Mot. to Intervene at 15, 16.)
But Plaintiffs’
arguments regarding prejudice misconstrue the scope and purpose of Mesabi Nugget’s
motion for intervention.
It is true that courts have denied motions to intervene as
untimely where the motion threatened to jeopardize the parties’ settlement agreement.
See United States v. Alisal Water Corp., 370 F.3d 915, 922 (9th Cir. 2004) (“In the past,
we have affirmed the denial of motions to intervene in cases where granting intervention
might have compromised long-litigated settlement agreements or delicate consent
decrees.”); United States v. Pitney Bowes, Inc., 25 F.3d 66, 72 (2d Cir. 1994) (“[T]he
government and the settling defendants would have been prejudiced had BAII been
permitted to intervene at such a late stage in the litigation since they would have had to
begin negotiations again from scratch.”); Clarke, 264 F.R.D. at 381 (finding prejudice
where the addition of the proposed intervenor “would serve to derail this case from its
current track to trial and/or resolution by summary judgment” and would “require the
Defendants to start from scratch”). Here, however, Mesabi Nugget’s intervention does
not threaten to undo the parties’ agreement to remand the variance approval to the EPA.
The intervention will not cause the litigation to continue, and therefore will not subject
the parties to continued litigation costs or require them to begin settlement negotiations
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anew. Instead, Mesabi Nugget agrees that this matter should be remanded to the EPA
and merely seeks to leave the variance in place during the pendency of the remand. The
parties have at no point indicated that vacatur is an integral part of their agreement for the
disposition of this case or that if the Court were to remand without vacatur that the parties
would choose instead to continuing litigating the case in this forum. Indeed, as explained
more fully below, the EPA has represented to the Court that its proposed action on
remand will be taken swiftly, suggesting that whether the variance is vacated or not
during the pendency of remand will have little practical consequence. Accordingly, the
Court concludes that prejudice suffered by the existing parties, if any, will be minimal,
and therefore does not weigh against intervention.
Having considered all of the
circumstances of the case, the Court concludes that Mesabi Nugget’s motion is timely
and will grant its motion for intervention for the limited purpose of challenging the
vacatur of the variance during the pendency of remand.4 Because the Court finds that
4
Although Mesabi Nugget’s motion initially sought a thirty-day period in which to meet
and confer with the EPA prior to the Court entering an order remanding the matter, Mesabi
Nugget represented at oral argument that this thirty-day delay is no longer necessary. At the
time Mesabi Nugget filed its motion for intervention and related relief, its facility was actively
discharging pursuant to its NPDES permit. Therefore, Mesabi Nugget requested the additional
time to allow it to prepare for the cessation of discharge allowed under the variance. Pursuant to
the terms of its permit, however, the facility does not discharge between April 1 and September 1
at the earliest. Consequently, the concern about immediately ceasing discharge in the event of
remand and vacatur – and the reason for the thirty-day meeting and confer period – is no longer
present. Furthermore, the EPA represented at oral argument that it would be unable to share with
Mesabi Nugget the reasons for its change of opinion regarding the variance approval decision as
that rationale is protected by attorney client privilege, and will be disclosed to everyone –
including Plaintiffs and Mesabi Nugget – when the EPA issues its decision reversing the
variance. Therefore, to the extent Mesabi Nugget is continuing to request a thirty-day delay in
the entry of this Order remanding the case to the EPA for the purposes of learning the reasons for
the EPA’s decision, the Court denies the request as futile. In light of the representations of the
(Footnote continued on next page.)
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intervention is proper, it will go on to consider the challenge raised by Mesabi Nugget to
the motion for remand with vacatur.
II.
UNOPPOSED MOTION FOR REMAND WITH VACATUR
Neither Plaintiffs nor Mesabi Nugget dispute that remand to the EPA for
reconsideration of the variance approval is appropriate in this case, and the Court has
found no evidence of bad faith or untimeliness on the part of the agency that would
render remand inappropriate. See Citizens Against Pellissippi Parkway Extension, Inc.,
375 F.3d at 417-18. Mesabi Nugget does, however, challenge that such remand be with
vacatur as requested in the EPA’s motion.
Even where the Court orders remand, it retains discretion to determine whether the
agency action or decision should remain in effect while the agency seeks to correct the
action or decision. See Advocates for Highway & Auto Safety v. Fed. Motor Carrier
Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005). Whether an agency’s decision
should be vacated on remand “depends on the seriousness of the order’s deficiencies (and
thus the extent of doubt whether the agency chose correctly) and the disruptive
consequences of an interim change that may itself be changed.” Sugar Cane Growers
Coop. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002) (internal quotation marks
omitted).
____________________________________
(Footnote continued.)
parties, an additional thirty-day delay in remanding this matter would serve no purpose, and
therefore the Court will not delay in entering this Order.
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As an initial matter, the Court notes that there is a split in the case law regarding
whether a court has the authority to order vacatur during the pendency of remand where,
as here, a court has made no determination on the merits of the agency’s decision. See
Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d 126, 135-36 (D.D.C. 2010)
(concluding that because the court did not make “a determination of the merits as a result
of the federal defendants’ confession of legal error” it was without “the authority to grant
the federal defendants’ request for vacatur”). But see Center For Native Ecosystems v.
Salazar, 795 F. Supp. 2d 1236, 1241-43 (D. Colo. 2011) (noting that courts may grant
vacatur even where they have not considered the agency action on the merits). As
explained below, the fact that the Court has not considered the variance approval on the
merits in even the most general sense is certainly relevant to a determination of vacatur.
However, for purposes of this Order, the Court will assume, without deciding, that it has
the authority to vacate the EPA’s variance approval, because it concludes that vacatur is
not warranted under these circumstances.
With respect to the first prong of the vacatur inquiry – the seriousness of the
deficiencies in the agency action – vacatur is appropriate where “the Court has significant
doubts as to ‘whether the agency chose correctly’” in taking the action. Am. Petroleum
Inst. v. Johnson, 541 F. Supp. 2d 165, 185 (D.D.C. 2008) (quoting Int’l Union, United
Mine Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C. Cir.
1990)).
Courts have vacated, for example “when the agency has not responded to
empirical data or to an argument inconsistent with its conclusion.” Comcast Corp. v.
F.C.C., 579 F.3d 1, 8 (D.C. Cir. 2009); see also Am. Petroleum Inst., 541 F. Supp. 2d at
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185 (remanding with vacatur where “the deficiencies in EPA’s explanation strongly
suggest that the agency failed to engage in reasoned decisionmaking”). Even where a
court has not expressly considered a decision on the merits, but instead remands an
agency decision at the request of the parties, the parties can still provide information to
the court regarding the propriety of the remand. See Center For Native Ecosystems, 795
F. Supp. 2d at 1242 (noting that courts may grant vacatur even where they have not
considered the agency action on the merits, but nonetheless examining the contentions of
the parties regarding the deficiencies with the remanded rule in determining whether
vacatur was appropriate).
Here, although the EPA has indicated that it intends to disapprove the variance
request on remand, it has proffered no explanations for its action nor has it provided the
Court with any reasons why its original approval of the variance was not the product of
reasoned decisionmaking, or was otherwise arbitrary and capricious. Frito-Lay, Inc. v.
U.S. Dep’t of Labor, Civ. No. 12-1747, 2014 WL 2027525, at *8 (N.D. Tex. Feb. 11,
2014) (noting that “[v]acatur is rarely mentioned in cases granting a motion for voluntary
remand” and that “[w]ithout a finding that the Final Order is arbitrary and capricious, or
otherwise unlawful, a ruling vacating or setting aside the Final Order is premature”).
Therefore the Court is unable to conclude that it has significant doubts as to whether the
EPA chose correctly when it initially approved the variance, and this factor weighs
against vacatur.
With respect to the second prong of the vacatur inquiry – the disruptive
consequences of vacatur – the Court finds that this factor also weighs against vacatur.
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The EPA has represented to the Court that vacatur of the variance approval would have
no effect on Mesabi Nugget’s current operations, as it does not currently discharge under
its existing permit until at least September 1, and would, in any case, be shielded from
liability for actions taken that are consistent with its existing permit until the EPA
actually reverses its approval of the variance and a new permit is issued. Courts have
typically declined to remand with vacatur where vacatur would not actually have the
effect of undoing the agency action. See Sugar Cane Growers, 289 F.3d at 97-98
(remanding without vacatur when farmers had already plowed their crops in response to
the administrative rule in question). Until the EPA reverses the approval of the variance
and a new permit is issued, vacatur would have no discernable effect, and the Court will
therefore decline to order it. Additionally, the Court notes that the EPA has stated that it
“intends to make its decision on remand within 30 days after the Court remands this
matter to the EPA.” (EPA’s Response to Mesabi Nugget’s Mot. to Intervene and for
Related Relief at 6.) Thus, the Court is not presented with a situation where, in the
absence of vacatur, an erroneous rule will stay in place for a long period of time during
remand and adversely affect the environment. See Natural Resources Defense Council v.
U.S. E.P.A., 676 F. Supp. 2d at 316 (vacating after determining that the pesticide at issue
“was not lawfully registered” and finding it “more appropriate to vacate the registration”
which would result in the removal of the pesticide from the market during remand).
Because the Court has no basis upon which to assess the deficiencies of the EPA’s
variance approval and vacatur will not serve to change the status quo during the pendency
of the remand, the Court will grant the EPA’s motion for remand, but will deny its
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request for vacatur. The Court notes that this denial is without prejudice, and should the
circumstances of remand become different than currently represented by the EPA, any
party is entitled to reapply to the Court for vacation of the variance approval.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendants’ Unopposed Motion for a Voluntary Remand With Vacatur
[Docket No. 26] is GRANTED in part and DENIED in part.
a.
The motion is GRANTED only to the extent it seeks voluntary
remand of this matter to the EPA.
b.
The motion is DENIED to the extent it seeks vacatur of the
December 27, 2012, Variance Approval Decision during the pendency of the
remand. The denial of vacatur is without prejudice and any party, including
intervenor-Mesabi Nugget, may move for vacatur should the circumstances and
timing of remand become different than currently represented by Defendants and
therefore warrant such relief.
2.
Mesabi Nugget’s Motion for Intervention and Related Relief [Docket
No. 29] is GRANTED in part and DENIED in part as follows:
a.
The motion is GRANTED to the extent it seeks intervention for the
limited purpose of opposing the March 10, 2014 Unopposed Motion for a
Voluntary Remand With Vacatur.
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b.
The request that the remand to the EPA be without vacatur is
GRANTED.
c.
The motion is DENIED to the extent it seeks a thirty-day delay prior
to the entry of this Order.
DATED: June 2, 2014
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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