S TATE OF MINNESOTA
OFFICE OF THE ATTORNEY GENERAL
SUITE 90 0
445 MINNESOTA STREET
ST. PAUL, MN 55101-2127
TELEPHONE : (651) 297-107 5
LORISWANSON
ATT ORNEY GENERAL
June 9, 2009
Brian B. O'Neill
Richard A . Duncan
Michelle E . Weinberg
Faegre & Benson LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-390 1
Neil S . Kagan
National Wildlife Federatio n
213 West Liberty Street, Suite 3200
Ann Arbor, MI 48104-1398
Andrew D . Parker
Daniel N . Rosen
Daniel N . Lovejoy
Parker Rose, LLC
300 First Avenue North, Suite 200
Minneapolis, MN 5540 1
,,harry M . Hartman
Christopher R . Nestor
Christopher R . Tate
K&L Gates LL P
1601 K Street NW
Washington, DC 20006-1600
RE : U.S. Environmental Protection Agency (USEPA) Vessel General Permit for
Discharges Incidental to the Normal Operation of Commercial Vessels
Appellate Court Case No. : A08-219 6
Dear Counsel :
Enclosed and served upon you by U .S . Mail please find Respondent Minnesota
Pollution Control Agency's Memorandum of Law Opposing Motion to Waive Requirement to
Render Decision Within Ninety Days with regard to the above referenced matter .
Sincerely ,
ROBERT B . ROCHE
Assistant Attorney Genera l
(651) 215-1506 (Voice)
(651) 297-4139 (Fax )
Enclosure s
AG : #2455568-v 1
TTY: (651) 296-1410 • Toll Free Lines: (800) 657-3787 (Voice), (800) 366-4812 (TTY) * www.ag .state .mn .us
An Equal Opportunity Employer Who Values Diversity
Q*Printed on 50% recycled paper (15% post consumer content)
s
STATE OF MINNESOTA
OFFICE OF THE ATTORNEY GENERAL
SUITE 900
445 MINNESOTA STREET
ST. PAUL, MN 55101-2127
TELEPHONE : (651) 297-1075
LORI SWANSON
ATTORNEY GENERAL
June 9, 2009
Mr. Frederick Grittner
Clerk of Minnesota Appellate Courts
305 Minnesota Judicial Cente r
25 Rev. Dr. Martin Luther King, Jr . Blvd.
St . Paul, MN 5515 5
RE : U.S. Environmental Protection Agency (USEPA) Vessel General Permit for
Discharges Incidental to the Normal Operation of Commercial Vessels
Appellate Court Case No . : A08-219 6
Dear Mr. Grittner:
Enclosed for filing in the above-entitled matter are the following :
1)
Respondent Minnesota Pollution Control Agency's Memorandum of Law
Opposing Motion to Waive Requirement to Render Decision Within Ninety Days ;
and
2)
Affidavit of Service by U .S. Mail.
Thank you for your assistance in this ma tter .
Sincerely ,
ROBERT B . ROCHE
Assistant Attorney Genera l
(651) 215-1506 (Voice)
(651) 297-4139 (Fax)
Enclosures
cc:
Neil S . Kagan, National Wildlife Federatio n
Brian O'Neill, Richard Duncan, Michelle Weinberg, Faegre & Benson LLP
Andrew Parker, Daniel Rosen, Daniel Lovejoy, Parker Rosen, LL C
:d3arry Hartman, Christopher Nestor, Christopher Tate, K&L Gates LLP
Mary Jean Fenske, MPCA St . Paul
Jeff Stollenwerk, MPCA Duluth
AG: #2455568 -v 1
TTY: (651) 296-1410 • Toll Free Lines : (800) 657-3787 (Voice), (800) 366- 4812 (TTY) • www. ag.state .mn.us
An Equal Opportunity Employer Who Values Diversity
O Printed on 50 % recycled paper (15% post consumer content)
sum
STATE OF MINNESOTA
IN COURT OF APPEAL S
U.S. Environmental Protection
Agency (USEPA) Vessel General
Permit for Discharges Incidental to
the Normal Operation of
Commercial Vessels
RESPONDENT MINNESOTA
POLLUTION CONTROL AGENCY'S
MEMORANDUM OF LAW
OPPOSING MOTION TO
WAIVE REQUIRMENT TO RENDER
DECISION WITHIN NINETY DAY S
Appellate Court Case No . A08-219 6
INTRODUCTION
Pursuant to Minn . R. Civ . App . P . 127, Respondent Minnesota Pollution Control Agenc y
("MPCA") respectfully requests that this Court deny the National Wildlife Federation's motion
to postpone a decision in a separate appeal to which the National Wildlife Federation is not a
party and which was argued almost a month ago .
As set forth more fully below, the National Wildlife Federation's motion to postpone a
decision in that case should be denied for three reasons . First, the National Wildlife Federation
has moved this Court for an order delaying resolution of a separate appeal to which the National
Wildlife Federation is not a party . The National Wildlife Federation therefore has no standing to
bring this motion . Second, the motion is untimely . If the National Wildlife Federation believed
that the issues in the two separate cases were as intertwined as it now claims, then it could and
should have brought a motion to consolidate the cases at the beginning of the appeals . Third, the
National Wildlife Federation has failed to demonstrate good cause for delaying a decision in the
separate appeal and public policy requires a timely decision in that case .
ARGUMENT
1.
SUMMARY OF SEPARATE APPEALS.
The case that the National Wildlife Federation asks this Court to delay, In re Request for
Issuance of SDS General Permit MNG30000 for Ballast Water Discharges from Vessels
Transiting Minnesota Waters of Lake Superior, No . A08-1828 (hereafter "State Permit Appeal")
involves a certiorari appeal of a Minnesota State-law based permit for ballast water discharges in
Lake Superior . The Relator in that case, the Minnesota Center for Environmental Advocacy,
argued that the State Permit did not satisfy certain state law environmental protection
requirements . As noted above, that case has been fully briefed and was argued almost a month
ago.
This case, on the other hand, involves a challenge to the State of Minnesota's certification
of the Environmental Protection Agency federal permit for ballast water discharges (hereafter
"Federal Permit Appeal") . The key issue in this case is whether this appeal is moot because the
federal permit has been final-issued and a decision from this Court will not affect the terms of
that permit .' (See full briefs .)
II .
THE NATIONAL WILDLIFE FEDERATION IS NOT A PARTY TO THE APPEAL THAT IT
SEEKS TO DELAY AND HAS NO STANDING TO BRING THIS MOTION .
Under Minnesota law, an argument offered without citation to authority is waived .
Minn . v. Manley,
664 N .W.2d 275, 286 (Minn . 2003) (arguments offered without citation to any
relevant legal authority deemed waived) ; Minn . v. Krosch, 642 N .W.2d 713, 719 (Minn . 2002)
(assertion without citation to legal authority is deemed waived) . In this case, the National
Wildlife Federation is not a party to the appeal that it seeks to delay. The National Wildlife
' When the National Wildlife Federation filed its initial motion on this matter, oral argument in
the Federal Permit Appeal had not yet been scheduled . Oral argument in the Federal Permit
Appeal has now been scheduled for July 29, 2009 .
2
Federation offers no argument or authority to demonstrate that a nonparty has standing to ask
this Court to delay issuing a timely decision in a case that has been fully briefed and argued .
(See
Mot. To Waive Req't To Render Decision Within Ninety Days .) In the absence of
argument or authority establishing standing to bring this motion the Court should decline to
consider the motion .
III .
IF THE NATIONAL WILDLIFE FEDERATION BELIEVED THAT THE ISSUES IN THIS CASE
WERE AS INTERTWINED AS IT NOW CLAIMS, THEN THE PROPER PROCEDURE WOULD
HAVE BEEN To MOVE To CONSOLIDATE THE APPEALS AT THE OUTSET .
The National Wildlife Federation claims that delaying a decision in the State Permit
Appeal is appropriate because the two cases have a single issue in common . Id., at p. 1 . If the
National Wildlife Federation believed that the two appeals were as intertwined as it now claims,
then the proper procedure would have been to move to consolidate the appeals at the outset .
Minn. R. Civ . App . P . 103 .02, subd. 2.
The Minnesota Center for Environmental Advocacy filed its appeal in the State Permit
Appeal on October 22, 2008 . (See Pet . for Cert. in case #A08-1828) . The National Wildlife
Federation filed its appeal in this case less than two months later on December 17, 2008 . (See
Pet. for Cert . in case #A08-2196 .) The National Wildlife Federation could have moved for
consolidation at that point if it believed that the cases needed to be considered together . Instead,
the National Wildlife Federation waited until after the MPCA had expended the resources to file
briefs in both cases and until almost a month after oral argument took place in the State Permit
Appeal before deciding to ask the Court to delay its decision so that the cases could be
considered collectively . In view of the fact that the National Wildlife Federation has waited until
so late in the process, such a request should be considered untimely ; especially as no good reason
for the delay has been given . The National Wildlife Federation's eleventh hour attempt to
prevent a decision from being issued in the State Permit Appeal should be denied .
3
IV.
THE NATIONAL WILDLIFE FEDERATION HAS NOT ESTABLISHED GOOD CAUSE FOR
DELAYING A DECISION IN THE SEPARATE APPEAL .
Under Minnesota law, delaying decision of a case before this Court is only allowed for
good cause. Minn . Stat. § 480A .08 .
The National Wildlife Federation claims that delaying a decision in the State Permit
Appeal is appropriate because the two cases have a single issue in common . Id., at p. 1 . A
single issue in common does not qualify as good cause for a delay . A review of the issues raised
by the different Relators and the MPCA in the two cases show that they are separate appeals with
distinct issues . In fact, the predominant issue in the Federal Permit Appeal is mootness ; which is
not even raised in the State Permit Appeal .
Now that the parties have fully briefed and argued the State Permit Appeal, the National
Wildlife Federation claims that it might be prejudiced by a decision in that case . This does not
qualify as good cause to delay a decision in the State Permit Appeal . Every case this Court
decides has the potential to impact subsequent cases . That is the essence of the principle of stare
If this Court were to delay every decision before it that might effect other cases, then no
decisis .
decisions would ever issue . The need for judicial finality compels this Court to issue timely
decisions and this case is no exception .
V.
PUBLIC POLICY REQUIRES A TIMELY DECISION IN THE STATE PERMIT APPEAL .
Public policy especially requires a timely decision in the State Permit Appeal case . As
set out in the briefs, the State Permit Appeal case involves the first permit to ever regulate the
discharge of ballast water in Minnesota waters of Lake Superior . Hundreds of vessels are
impacted by the permit, and prolonging the legal uncertainty regarding the validity of the permit
is against the public interest . This Court should rule on the State Permit Appeal within the
timeframe established by § 480A.08.
4
VI .
THE COURT WILL NOT BENEFIT FROM DELAYING ITS DECISION IN THE STATE
PERMIT APPEAL UNTIL THE NATIONAL WILDLIFE FEDERATION HAS PRESENTED ITS
ORAL ARGUMENTS IN THE FEDERAL PERMIT APPEAL .
The National Wildlife Federation has failed to establish that delaying a decision in the
State Permit Appeal would in any way benefit this Court . As noted above, the State Permit
Appeal has been fully briefed and was argued over a month ago . There is no reason for the
Court to delay issuance of a decision in that important case simply so the National Wildlife
Federation can present its oral argument in the Federal Permit Appeal six weeks from now .
As noted above, the key issues in the two cases are separate and distinct . There is no
reason to believe that the panel that heard the State Permit Appeal needs or desires to consider
the National Wildlife Federation's oral argument in the separate Federal Permit Appeal before
rendering a decision . The Court should therefore rule on the State Permit Appeal within the
timeframe established by § 480 .08.
CONCLUSION
The National Wildlife Federation has known about the State Permit Appeal for ove r
seven months now . The State Permit Appeal was argued almost a month ago . As noted above,
the National Wildlife Federation could have moved to consolidate the State and Federal Permit
Appeal at the outset of the two cases but chose not to do so . As a non-party to this case, the
National Wildlife Federation lacks standing to bring this motion . The motion is also untimely ,
5
and the National Wildlife Federation has failed to demonstrate good cause for delaying a
decision in the State Permit Appeal . MPCA therefore respectfully requests that this Court deny
the National Wildlife Federation's motion .
Dated :
~
Respectfully submitted ,
4
LORI SWANSON
Attorney General
State of Minnesota
--T
ROBERT B . R CH E
Assistant A ttorney General
Atty . Reg. No. 028958 9
445 Minnesota Street, Suite 900
St. Paul, Minnesota 55101-2127
(651) 215-1506 (Voice )
(651) 296-1410 (TTY)
ATTORNEYS FOR MINNESOTA
POLLUTION CONTROL AGENCY
AG : #2454274-vi
6
STATE OF MINNESOT A
IN COURT OF APPEAL S
U .S . Environmental Protection
Agency (USEPA) Vessel General
Permit for Discharges Incidental to
the Normal Operation of
Commercial Vessels
RESPONDENT MINNESOTA
POLLUTION CONTROL AGENCY'S
MEMORANDUM OF LAW
OPPOSING MOTION TO
WAIVE REQUIRMENT TO RENDE R
DECISION WITHIN NINETY DAY S
Appellate Court Case No . A08-2196
INTRODUCTION
Pursuant to Minn . R . Civ. App. P . 127, Respondent Minnesota Pollution Control Agenc y
("MPCA") respectfully requests that this Court deny the National Wildlife Federation's motion
to postpone a decision in a separate appeal to which the National Wildlife Federation is not a
party and which was argued almost a month ago .
As set forth more fully below, the National Wildlife Federation's motion to postpone a
decision in that case should be denied for three reasons . First, the National Wildlife Federation
has moved this Court for an order delaying resolution of a separate appeal to which the National
Wildlife Federation is not a party . The National Wildlife Federation therefore has no standing to
bring this motion . Second, the motion is untimely . If the National Wildlife Federation believed
that the issues in the two separate cases were as intertwined as it now claims, then it could and
should have brought a motion to consolidate the cases at the beginning of the appeals . Third, the
National Wildlife Federation has failed to demonstrate good cause for delaying a decision in the
separate appeal and public policy requires a timely decision in that case .
ARGUMENT
1.
SUMMARY OF SEPARATE APPEALS .
The case that the National Wildlife Federation asks this Court to delay, In re Request for
Issuance of SDS General Permit MNG30000 for Ballast Water Discharges from Vessels
Transiting Minnesota Waters of Lake Superior, No . A08-1828 (hereafter "State Permit Appeal")
involves a certiorari appeal of a Minnesota State-law based permit for ballast water discharges in
Lake Superior . The Relator in that case, the Minnesota Center for Environmental Advocacy,
argued that the State Permit did not satisfy ce rtain state law environmental protection
requirements . As noted above, that case has been fully briefed and was argued almost a month
ago.
This case, on the other hand, involves a challenge to the State of Minnesota's certification
of the Environmental Protection Agency federal permit for ballast water discharges (hereafter
"Federal Permit Appeal") . The key issue in this case is whether this appeal is moot because the
federal permit has been final-issued and a decision from this Court will not affect the terms of
that permit .' (See full briefs .)
II .
THE NATIONAL WILDLIFE FEDERATION IS NOT A PARTY TO THE APPEAL THAT IT
SEEKS TO DELAY AND HAS NO STANDING TO BRING THIS MOTION .
Under Minnesota law, an argument offered without citation to authority is waived .
Minn. v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (arguments offered without citation to any
relevant legal authority deemed waived) ; Minn. v. Krosch, 642 N.W.2d 713, 719 (Minn . 2002)
(assertion without citation to legal authority is deemed waived) . In this case, the National
Wildlife Federation is not a party to the appeal that it seeks to delay. The National Wildlife
' When the National Wildlife Federation filed its initial motion on this matter, oral argument in
the Federal Permit Appeal had not yet been scheduled . Oral argument in the Federal Permit
Appeal has now been scheduled for July 29, 2009 .
2
Federation offers no argument or authority to demonstrate that a nonparty has standing to ask
this Court to delay issuing a timely decision in a case that has been fully briefed and argued .
(See
Mot. To Waive Req't To Render Decision Within Ninety Days .) In the absence of
argument or authority establishing standing to bring this motion the Court should decline to
consider the motion .
III . IF THE NATIONAL WILDLIFE FEDERATION BELIEVED THAT THE ISSUES IN THIS CASE
WERE AS INTERTWINED AS IT NOW CLAIMS, THEN THE PROPER PROCEDURE WOULD
HAVE BEEN To MOVE To CONSOLIDATE THE APPEALS AT THE OUTSET .
The National Wildlife Federation claims that delaying a decision in the State Permit
Appeal is appropriate because the two cases have a single issue in common. Id., at p. 1 . If the
National Wildlife Federation believed that the two appeals were as intertwined as it now claims,
then the proper procedure would have been to move to consolidate the appeals at the outset .
Minn. R. Civ. App . P. 103 .02, subd. 2 .
The Minnesota Center for Environmental Advocacy filed its appeal in the State Permit
Appeal on October 22, 2008 . (See Pet. for Cert. in case #A08-1828) . The National Wildlife
Federation filed its appeal in this case less than two months later on December 17, 2008 . (See
Pet. for Cert . in case #A08-2196 .) The National Wildlife Federation could have moved for
consolidation at that point if it believed that the cases needed to be considered together . Instead,
the National Wildlife Federation waited until after the MPCA had expended the resources to file
briefs in both cases and until almost a month after oral argument took place in the State Permit
Appeal before deciding to ask the Court to delay its decision so that the cases could be
considered collectively. In view of the fact that the National Wildlife Federation has waited until
so late in the process, such a request should be considered untimely ; especially as no good reason
for the delay has been given . The National Wildlife Federation's eleventh hour attempt to
prevent a decision from being issued in the State Permit Appeal should be denied .
3
IV.
THE NATIONAL WILDLIFE FEDERATION HAS NOT ESTABLISHED GOOD CAUSE FOR
DELAYING A DECISION IN THE SEPARATE APPEAL .
Under Minnesota law, delaying decision of a case before this Court is only allowed for
good cause. Minn . Stat. § 480A.08 .
The National Wildlife Federation claims that delaying a decision in the State Permit
Appeal is appropriate because the two cases have a single issue in common . Id., at p. 1 . A
single issue in common does not qualify as good cause for a delay . A review of the issues raised
by the different Relators and the MPCA in the two cases show that they are separate appeals with
distinct issues . In fact, the predominant issue in the Federal Permit Appeal is mootness ; which is
not even raised in the State Permit Appeal .
Now that the parties have fully briefed and argued the State Permit Appeal, the National
Wildlife Federation claims that it might be prejudiced by a decision in that case . This does not
qualify as good cause to delay a decision in the State Permit Appeal . Every case this Court
decides has the potential to impact subsequent cases . That is the essence of the principle of stare
decisis .
If this Court were to delay every decision before it that might effect other cases, then no
decisions would ever issue . The need for judicial finality compels this Court to issue timely
decisions and this case is no exception .
V.
PUBLIC POLICY REQUIRES A TIMELY DECISION IN THE STATE PERMIT APPEAL .
Public policy especially requires a timely decision in the State Permit Appeal case . As
set out in the briefs, the State Permit Appeal case involves the first permit to ever regulate the
discharge of ballast water in Minnesota waters of Lake Superior . Hundreds of vessels are
impacted by the permit, and prolonging the legal uncertainty regarding the validity of the permit
is against the public interest . This Court should rule on the State Permit Appeal within the
timeframe established by § 480A .08.
4
VI .
THE COURT WILL NOT BENEFIT FROM DELAYING ITS DECISION IN THE STATE
PERMIT APPEAL UNTIL THE NATIONAL WILDLIFE FEDERATION HAS PRESENTED ITS
ORAL ARGUMENTS IN THE FEDERAL PERMIT APPEAL .
The National Wildlife Federation has failed to establish that delaying a decision in the
State Permit Appeal would in any way benefit this Court . As noted above, the State Permit
Appeal has been fully briefed and was argued over a month ago . There is no reason for the
Court to delay issuance of a decision in that important case simply so the National Wildlife
Federation can present its oral argument in the Federal Permit Appeal six weeks from now .
As noted above, the key issues in the two cases are separate and distinct . There is no
reason to believe that the panel that heard the State Permit Appeal needs or desires to consider
the National Wildlife Federation's oral argument in the separate Federal Permit Appeal before
rendering a decision . The Court should therefore rule on the State Permit Appeal within the
timeframe established by § 480 .08.
CONCLUSION
The National Wildlife Federation has known about the State Permit Appeal for ove r
seven months now . The State Permit Appeal was argued almost a month ago . As noted above,
the National Wildlife Federation could have moved to consolidate the State and Federal Permit
Appeal at the outset of the two cases but chose not to do so . As a non-party to this case, the
National Wildlife Federation lacks standing to bring this motion . The motion is also untimely,
5
and the National Wildlife Federation has failed to demonstrate good cause for delaying a
decision in the State Permit Appeal . MPCA therefore respectfully requests that this Court deny
the National Wildlife Federation's motion.
Dated:
Respectfully submitted ,
LORI SWANSON
Attorney General
State of Minnesot a
R BERT B. R
Assistant Attorney General
Atty. Reg. No. 028958 9
445 Minnesota Street, Suite 900
St . Paul, Minnesota 55101-2127
(651) 215-1506 (Voice )
(651) 296-1410 (TTY)
ATTORNEYS FOR MINNESOTA
POLLUTION CONTROL AGENC Y
AG : #2454274-v]
6
AFFIDAVIT OF SERVICE BY U .S . MAIL
RE : U.S. Environmental Protection Agency (USEPA) Vessel General Permit for
Discharges Incidental to the Normal Operation of Commercial Vessels
Appellate Court Case No . : A08-219 6
STATE OF MINNESOTA )
ss .
COUNTY OF RAMSEY
)
Elizabeth J . Levings, being first duly sworn, deposes and says :
That at the City of St . Paul, County of Ramsey and State of Minnesota, on June 9,
2009, she caused to be served the RESPONDENT MINNESOTA POLLUTION CONTROL AGENCY'S
MEMORANDUM OF LAW OPPOSING MOTION TO WAIVE REQUIREMENT TO RENDER DECISION
WITHIN NINETY DAYS by depositing the same in the United States mail at said city and state,
true and correct copy(ies) thereof, properly enveloped with prepaid first class postage, and
addressed to :
Neil S . Kagan
National Wildlife Federation
213 West Liberty Street, Suite 3200
Ann Arbor, MI 48104-139 8
Brian B . O'Neill
Richard A . Duncan
Michelle E . Weinberg
FAEGRE & BENSON LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-390 1
Attorneys for Relator s
National Wildlife Federation and
Minnesota Conservation Federation
Andrew D. Parker
Daniel N . Rosen
Daniel N . Lovejoy
Parker Rose, LLC
300 First Avenue North, Suite 200
Minneapolis, MN 55401
Attorneys for Amicus Curiae
Lake Carriers' Associatio n
Barry M . Hartman
Christopher R . Nestor
Christopher R . Tate
K&L Gates LL P
1601 K Street NW
Washington, DC 20006-1600
Associate Counsel for Amicus Curiae
Lake Carriers' Association
h J . L~ f ings
Subschr bed and sworn to before me
thj4 `7 d4Kof We, 2009.
AG : #2455568-v1