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Michigan Peat v. EPA

ELR Citation: 29 ELR 21125
Nos. 98-1595, 175 F.3d 422/(6th Cir., 04/28/1999)

The court reverses a district court's dismissal of a peat company's Federal Water Pollution Control Act (FWPCA) §404 and takings claims against the federal government concerning a proposed §404 permit. The court first holds that the district court erred in finding that it did not have subject matter jurisdiction over the company's claims against the U.S. Environmental Protection Agency (EPA). EPA agreed to the state's proposed wetlands permit for the company. Although the permit stated that it was not final or valid until signed and accepted by the company, EPA's action was final because statutorily there was nothing left for EPA to do once it signed off on the proposed permit. Moreover, if the company did sign the permit it would have waived the appellate remedies it is pursuing.

The court then holds that the district court did not err by dismissing the company's claims against the state and its environmental agency on Eleventh Amendment grounds. Congress has not abrogated the state's immunity. Further, the state's voluntary involvement in the FWPCA §404 program does not constitute consent to be sued in federal court. In addition, the court holds that the district court was correct in finding that the company cannot sue the director of the state environmental agency under Ex Parte Young, 209 U.S. 123 (1908). Moreover, the company failed to allege that the director has individually taken actions that constitute continuing violations of federal law.

Counsel for Plaintiff
Steven D. Weyhing
Butzel & Long
350 S. Main St., Ste. 300, Ann Arbor MI 48101
(313) 995-3110

Counsel for Defendants
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Batchelder and Cole, JJ.