A1:  Your question is affirmative.  The reference on page 3, paragraph 1, line 7 should be 33 U.S.C. §§ 1311(a), 1362(12).

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Q2:  On page 5, at the top of the page, the second full sentence reads: "The City opposed the first part of the motion but supported the second and third parts."  Should the word "City" actually be the word "State?"  The sentence is discussing a 3 part motion the City made, so I don't understand why the City would oppose any part of the motion that they made.

A2:  The observation is correct.  "City" on page 5, line 2 should be "State."

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Q3:  The problem states that "[t]he parties are limited in their briefs to the above issues, but are not limited to the arguments for their positions raised in the Court below."  Should this be interpreted literally? (i.e., Should the briefs ONLY discuss those four issues and not address other issues that may have been raised?)

A3:  There are four issues on appeal.

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Q4:  Page 1 of the Problem shows the court as the "Thirteenth Circuit of the United States."  But footnote 2 on page 2 of the Official Rules states that the court is the "Twelfth Circuit of the United States."  Should it be the Twelfth or Thirteenth Circuit?

A4:  The correct court is the "United States Court of Appeals for the Twelfth Circuit" as stated in the Official Rules. 

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Q5:  On page 4 of the Problem, third full paragraph, third sentence from the bottom, the sentence reads: "..query what is their injury is for standing purposes?"  Is there supposed to be two "is" in that sentence?

A5:  Page 4, 3rd full paragraph, lines 11 & 12 of the Problem should be corrected to read: "Since they do not eat the fish and can still conveniently catch it, query what their injury is for standing purposes."

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Q6:  Page 4 of the Problem: "But Defendant did not raise this issue at the District Court level or in its brief to us."  Considering that this is written by the District Court, who is "us?" Shouldn't this sentence read: "But Defendant did not raise this issue."

A6:  Your observation is correct.  We have corrected page 4, third full paragraph, line 13 to read: "But Defendant did not raise this issue at the District Court level."

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Q7:  The Problem states on page 2: "For purposes of briefing and argument, legal authorities may be cited that date until September 1, 2004.  More recent legal authorities may not be cited . . . ."  The first sentence is clear, but the first two words of the second sentence seem to allow for authorities from the day of September 1, 2004.  If I find authority dated September 1, 2004, may I use it?

A7:  We have revised page 2, last paragraph, second sentence to read: "Legal authorities dated September 1, 2004 or after may not be cited or otherwise referred to in briefs or oral arguments."

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Q8:  On page 6 of the Problem, first sentence, last paragraph, the "1994" should be "2004," correct?

A8:  You are correct.  The first sentence of the last paragraph on page 6 of the Problem should read: “FSSC’s notice alleged violations occurring up to the date of the notice, June 1, 2004.”

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Q9:  On page 6 in the second full paragraph, should the first sentence read: "FSSC's notice alleged additions of suspended solids to the Rapid River" instead of "silt?"  If so, the remaining sentences in that paragraph, as well as Exhibit A, need to be modified to reflect this change.

A9:  We have consulted with the problem writer concerning your question.  In response, the writer states that “it says what it says.”

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Q10:  In the Order from the Twelfth Circuit New Union is identified as an appellant but in the District Court New Union is an intervenor.  Should the brief for New Union comply with the Federal Rules of Appellate Procedure for an appellant or intervenor?

The Federal Rules of Appellate Procedure indicate that margins may be 1 inch on all sides.  Do the rules of the competition require different margins?

If New Union is an appellant, will they be entitled to rebuttal at the oral arguments?  If not, who is entitled to rebut.

A10:  In response to your questions regarding New Union's appellant/intervenor status and the brief margins, please refer to Rule IV (B)(1) and footnote 2. This should clarify things for you.

Regarding your question about rebuttal, please refer to Rule V (D)(2), which states that each party may reserve up to 5 minutes for rebuttal. We are currently reviewing the oral argument procedures and will soon make them available to competitors.

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Q11:  Note that the case citation on Page 6, line 10 of the first full paragraph should be 72, not 172 F.3d 830.

A11:  We have noted the correction.  The case and citation should read: "New Mexico Citizens for Clean Air and Clean Water v. Espanola Mercantile Co., 72 F.3d 830 (10th Cir. 1995)."

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Q12:  On page 3 of the Problem, toward the end of the first paragraph, it says that "Since EPA has not approved New Union's program, any permit here would have to have been issued by EPA."  Is it correct to assume that New Union has developed a program that has been submitted to EPA for approval?

A12:  You may make assumptions at your own risk.

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Q13:  The last paragraph on page 9 says it is the Defendant's argument, but isn't this actually the Plaintiff's argument?

A13:  No.

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Q14:  On page 1 of the Order the appellant is referred to as "Friends of the South Slope Cutthroat, Inc." while on page 3 it is "Friends of the Southern Slope Cutthroat, Inc."  All other references to appellant throughout the Order are "South Slope."  We assume it is South Slope, but thought we would check.

A14:  The writer has informed us that the correct reference to the appellant throughout the Problem is "Friends of the South Slope Cutthroat, Inc."

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Q15:  Is footnote 1 on page 5 correct?  It states that "Capitol City might have been expected to argue for the motion. When asked the reason for its posture at oral argument, it responded that it occasionally used citizen suit provisions to sue federally owned facilities for violations and therefore favored liberal interpretations of the section's procedural requirements."  Doesn't Capitol City prefer a literal interpretation instead of a liberal interpretation because it wants the statue to be interpreted to mean exactly what it says?

Footnote 1 of the opinion below (page 5, second sentence in part I) is somewhat unclear.  "Capitol City might have been expected to argue for the motion. When asked the reason for its posture at oral argument, it responded that it occasionally used citizen suit provisions to sue federally owned facilities for violations and therefore favored liberal interpretations of the section’s procedural requirements."  This footnote is in the section discussing the first issue, New Union's motion to intervene, which Capitol City opposed. It is unclear how opposing a motion to intervene would square with Capitol City's stated preference for liberal interpretation of procedural requirements. It seems that this footnote would be more properly placed in the discussion of the second issue, the motion for summary judgment for lack of proper notice. Capital City opposed that motion, which would better square with its stated preference for liberal interpretation of procedural rules. Can you shed any more light on the proper placement of this footnote?

On page five, in the first full paragraph, Capitol City opposes New Union’s right to intervene by offering a strict and narrow interpretation of 33 USC 1365(c)(2) (i.e., arguing “New Union simply is not the United States”).  However, in footnote 1 on that same page, Capitol City says it “favored liberal interpretations of the section’s procedural requirements.”  Is there a typo, a misstatement, or something else missing in the footnote, or are we supposed to resolve this apparent inconsistency in the city’s position?  

A15:  Footnote 1 on page 5 is incorrect.  "Capitol City" should read "New Union" and the footnote should be placed after "New Union" on the first line of the first full paragraph on page 7.

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Q16:  Page 4, second full paragraph from the top, relating to the Rapid Reservoir. Could you explain what "effectively" means where the problem says the reservoir "effectively end[ed] the flow of the River at the dam forming the Reservoir?"

A16:  While we appreciate your question, the Board can only respond that "it says what it says."

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Q17:  In Exhibit D, the letter from Fish and Game to Mr. Creel is dated August 1, 2003.  His affidavit was not taken until a whole year later.  I believe the date on the F&G letter should be August 1, 2004, although it also seems strange that Creel's affidavit and F&G's response would be dated the same day.  

A17:  The date of August 1, 2003 in Exhibit D is correct.

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Q18:  Is the Rapid Reservoir open to the public or is it used just for the city's water supply?

A18:  The Board replies that the record does not answer this question.

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Q19:  The Order says not to cite authorities after September 1. My question is, does that mean argued or opinion issued after September 1?  I ask because I ran across an opinion I’d like to cite, argued in March of this year, but the opinion wasn’t actually published until September 2.

A19:  Decisions published after September 1 may not be cited even if they were argued before September 1.

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Q20:  As corrected, footnote 1 on page 5 will now suggest that New Union uses the citizen suit provisions to sue federally owned facilities.  However, courts have held that states cannot use the citizen suit, since states are not citizens (by contrast, cities can since they are corporations of the state, and therefore people, and therefore citizens of the state).  The governor of a state may bring an action under 1365(h), but such actions are exempt from the procedural requirements of the citizen suit.  Is New Union simply mistaken in its ability to use the citizen suit, or is the footnote still incorrect? 

A20:  The Problem is now published and stands as is.

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