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In re In re Bunker Ltd. Partnership

Citation: 17 ELR 20899
No. No. 85-4257, 820 F.2d 308/26 ERC 1300/(9th Cir., 06/19/1987) Dismissed as moot

The court holds moot a mining and smelting complex owner's appeal of the district court's refusal to quash an ex parte administrative inspection warrant issued to the Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first notes that the parties agree that EPA's appeal of the district court's protective order limiting the scope of the search under the warrant has been mooted, since the warrant has been executed and a 1986 amendment to CERCLA § 104(e) expressly provides that EPA may enter property to choose or take any response action. The court then holds that the dispute over EPA's power to obtain an ex parte warrant under pre-amendment § 104(e) is also moot. That the complex owner may have taken every step possible to preserve the status quo does not preclude a finding of mootness. Further, this appeal does not fall within the "capable of repetition, yet evading review" exception to mootness. There is not a reasonable expectation that EPA will again seek to enter and inspect the complex owner's premises by obtaining a warrant under pre-amendment § 104(e). The pre- and post-amendment versions of § 104(e) are not sufficiently similar to conclude that the law on the administrative warrant issue has remained essentially the same.

[The district court's order granting the complex owner's motion for a protective order appears at 16 ELR 20757.]

Counsel for Plaintiff
William D. Symmes, Leslie R. Weatherhead
Witherspoon, Kelley, Davenport & Toole
11th Fl., Old Nat'l Bk. Bldg., Spokane WA 99201
(509) 624-5265

Counsel for Defendants
Anne S. Almy, Martin W. Matzen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Before Fletcher and Brunetti, JJ.