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ITT Rayonier, Inc. v. United States

ELR Citation: 11 ELR 20823
Nos. No. 80-5034, 651 F.2d 343/16 ERC 1265/(5th Cir., 07/20/1981)

The Fifth Circuit Court of Appeals holds that a challenge to the Environmental Protection Agency's (EPA's) designation of appellant's paper mill as a "violating facility" became moot when EPA's suit against appellant for noncompliance with its national pollutant discharge elimination system permit, which was the basis for the designation, was settled. Affirming the district court's opinion, the court notes that, with three exceptions, settlement of a dispute renders moot any case between the parties growing out of that dispute. The first exception, where one issue is moot but the case as a whole remains alive, is inapplicable. There is no continuing controversy because appellant is no longer listed as a "violating facility," the threat of EPA listing appellant in the future is too remote and speculative, and appellant will not be deprived of any future benefits from a listing. Second, generally if one party unilaterally alters its conduct to terminate a dispute, the controversy is not rendered moot. This exception, however, does not apply in this situation because a joint voluntary settlement of the dispute, not EPA's unilateral action, terminated the dispute. Finally, this case does not represent a controversy capable of repetition yet evading review. An aggrieved party need only apply for a preliminary injunction against listing in order to secure judicial review.

Counsel for Appellant
Thomas M. Baumer, John Sefton
Mahoney, Hadlow & Adams
P.O. Box 4099, Jacksonville FL 32201
(904) 354-1100

Counsel for Appellees
Robert S. Yerkes, Ass't U.S. Attorney
P.O. Box 600, Jacksonville FL 32201
(904) 791-2683

Jerry L. Jackson, Anne S. Almy; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2772

Before TUTTLE, RONEY, and VANCE, Circuit Judges.