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Problem Questions

The deadline for all questions pertaining to the 2014 Problem is October 25, 2013. You should review the Problem prior to the deadline and email the NELMCC Board with any question(s). 

The Board will provide the Q&As once a week to all team contacts via the NELMCC List Serv email. The team contact will be responsible for forwarding the information to their team members. Problem Q&As will also be posted on the NELMCC website weekly. No questions about the Problem will be answered after the October 25 deadline.

Q&As

NOTE: Answer to Question 22 was revised on 11/14/13.

Q1: We believe we found a typo in the problem on pg. 2 of the packet (issue 1), "Whether Bonhomme is the real party in interest under FRCP 17 to bring suit against Maleau for violating § 301(a) of the CWA, 33 U.S.C. § 1331(a)." We think that this should read, "33 U.S.C. §1311," not 1331.

A1: You are correct in identifying the typo in the first issue on page 2 of the problem. The text should read, "Whether Bonhomme is the real party in interest under FRCP 17 to bring suit against Maleau for violating § 301(a) of the CWA, 33 U.S.C. § 1311(a)."

Q2: Is the motion to dismiss based on Rule 12(b)(6)?  

A2: Motion to dismiss under Rule 12(b)(6)

Q3: Is Bonhomme profiting from the hunting parties or is he using them for purely recreational purposes?

A3: He uses the lodge for hunting parties, mostly for business acquaintances.

Q4: Where is Bonhomme domiciled?
 
A4: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q5: How much time does Bonhomme spend at the lodge and for what purpose does he use the lodge for? The problem states on page 6 that his property fronts part of the wetlands and he uses it primarily for duck hunting. However, on page 7 it states that he uses it only for hunting parties.

A5: He uses the lodge for hunting parties, mostly for business acquaintances.

Q6: Where is PMI incorporated/principle place of business?

A6: Incorporated in Delaware, headquartered in NYC.

Q7: On page 2, issue 2, third line, should that statute read 33 U.S.C. "1365" and not 1354?

Q8: We believe there is a typo on page 2 of the record (issue 2): "Bonhomme argues that he is a 'citizen' as defined in CWA §§ 505(g), 502(5), 33 U.S.C. §§ 1354(g), 1362(5)..." We think that "1354(g)" should be "1365(g)." 

A7&8: Yes. The text should read, "Bonhomme argues that he is a 'citizen' as defined in CWA §§ 505(g), 502(5), 33 U.S.C. §§ 1365(g), 1362(5), and that the court below erred in granting Progress' and Maleau's motion to dismiss on this issue."

Q9: Does PMI stand for Precious Minerals International or Precious Metals International? "Minerals" is used on pages 1 & 2 of the record, and "Metals" is used on page 6.

A9: Minerals.

Q10: Where is PMI located geographically (specifically, in what State/County)? In the problem it says that, "PMI owns five gold mines around the world, including two in the United States" (page 7). If PMI's geographic location is relevant, are its headquarters in Progress?

A10: The company has no mines in either Progress or New Union.

Q11: The problem states that Bonhomme's hunting lodge "sits on his property on the edge of the marsh" (page 6). Is the lodge near Reedy Creek, as well? Or has Reedy Creek already become the marsh on this part of Bonhomme's property?

A11: The property is on the edge of the marsh, near where the creek flows into the marsh.

Q12: On pages 1-2 of the problem, it states that "Bonhomme takes issue with the decision of the lower court with respect to its holding that...Ditch C-1 is not a navigable water because it is a point source." Are we to assume that the District Court below actually held that the Ditch is a point source?

A12: Yes, the District Court held that C-1 is a point source.

Q13: Does Bonhomme's culvert lead directly to the Reedy? If not, does Ditch C-1 connect the culvert to the Reedy?

A13: C-1 flows across B’s property, into the culvert, which in turn flows into the creek.

Q14: Page 6 of the problem packet states that "As Ditch C-1 flows from the Maleau property towards Reedy Creek, the concentration of arsenic decreases in proportion to the increasing flow in the Ditch." Does this mean that there is an active leaching of arsenic from Maleau's piles into the ditch as the pollutant flows away from the Ditch?

A14: The inference is that the arsenic leaches from the piles to C-1 and that the concentration of arsenic thereafter decreases as the amount of the water increases, diluting the arsenic concentration.

Q15: The normal response for a motion to dismiss is to amend and refile; here, is this a motion to dismiss with prejudice?

A15: The dismissal was not with prejudice.

Q16: Page 7 of the problem packet states that Bonhomme is on the Board of Directors of PMI. How many members are on the Board?

A16: Seven.

Q17: Can you clarify whether Wildman Marsh is a navigable body of water, or is this in dispute? Also, can we assume that the wetlands and waters in Wildman Marsh are "waters of the United States?"

A17: Those are legal questions.

Q18: What is the nature of Maleau's property in Lincoln County? Is it residential or commercial?

A18: Mining.

Q19: Can we assume that Maleau utilizes "strip mining" at the gold mine?

A19: Open pit mine.

Q20: Page 5 of the problem packet states that Ditch C-1 runs three miles through several agricultural properties before it discharges through a culvert underneath a farm road on Bonhomme's property. Can you clarify if the Ditch is also on Bonhomme's property, or does the Ditch end before Bonhomme's property flowing into the culvert under Bonhomme's farm road?

A20: C-1 flows across B’s property, into the culvert, which in turn flows into the creek.

Q21: Can we assume that the Ditch begins before Maleau's property?

A21: Yes.

Q22: Have there been any changes in the flora and fauna surrounding the hunting lodge as a result of the arsenic in the water?

A22 (revised 11/14/13): There have been no notable changes in the flora and fauna surrounding the hunting lodge as a result of arsenic; however, the U.S. Fish and Wildlife Service has detected arsenic in three Blue-winged Teal in Wildman Marsh.

Q23: What type of vegetation is in the surrounding saturated soils abutting Ditch C-1?

A23: Don't know.

Q24: How wide and deep is Ditch C-1?

A24: Three feet across and one foot deep, on average.

Q25: We believe there is a typo on page one in the last line.  We believe it should say 1362 instead of 1365.

A25: You are correct.

Q26: There may also be a typo on page 2 under issue 2 in the third line.  Instead of 1354 it should say 1356.

A26: The text should read, "Bonhomme argues that he is a 'citizen' as defined in CWA §§ 505(g), 502(5), 33 U.S.C. §§ 1365(g), 1362(5), and that the court below erred in granting Progress' and Maleau's motion to dismiss on this issue."

Q27: Is Ditch C-1, which the problem indicates was originally constructed for agricultural purposes, is still being used for agricultural purposes?

A27: Yes. The Problem states that the Ditch runs through several agricultural properties; the Ditch still drains the agricultural properties.

Q28: What is Bonhomme seeking from the court in terms of redress -- injunctive relief, civil penalties, damages, etc.? 

A28: Bonhomme has asked for all of the relief available under the citizen suit provision of the Clean Water Act.

Q29: On p. 10 of the record, it says, "Earth Sciences was a pre-Rapanos decision and is no longer good law." Is that something that we are to assume is true, or is that an argument that Maleau is making?

A29: This is an argument that the lower court found persuasive.

Q30: Can/should we look to precedent from each of the (real) 12 circuits? Should we give any one circuit with more weight than others? (This is critical as different circuits have conflicting interpretations of Rapanos).

A30: Yes. You may look to federal case law across the United States. No circuit holds more weight than the others, unless you can find case law from the Twelfth Circuit.

Q31: Should we look to any state law? Or should we restrict our research to federal law?

A31: That is up to you.

Q32: The factual background mentions that Maleau trucks overburden and slag to his property in Lincoln County and places it in piles adjacent to the Ditch C-1 in Jefferson County. Just to clarify, are the piles located in Lincoln County (on Maleau's property), but the ditch is located entirely in Jefferson County (also on Maleau's property)?

A32: Maleau trucks the overburden and slag from that operation on his property in Lincoln County and places it in piles on his property in Jefferson County, Progress adjacent to Ditch C-1.

Q33: On page 6 where it says, "Just below the Maleau property, arsenic is present in Ditch C-1 in high concentrations," does this refer to a sample taken just below the southern border of Maleau's property? In other words, none of the water samples were taken on Maleau's property? 

A33: None of the samples were taken on Maleau’s property.

Q34: Does Bonhomme hold the official title of "President of PMI," or is he just a board member? (Page 6 says "President," but page 7 just says he is "on the Board of Directors.")

A34: Bonhomme is both the president of PMI and a board member of PMI.

Q35: Does Maleau's property in Lincoln County require permits under the Clean Water Act? If so, is he in compliance with such permits?

A35: Yes, it does. There is no evidence in the record that he does not comply with the permits.

Q36: The Problem states that Maleau's waste piles are "adjacent to Ditch C-1." How close are the piles to the edge of the ditch?

A36: This raises an interesting  issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q37: The Problem states that Maleau's waste piles have "channels eroded by gravity from the configuration of the waste piles into Ditch C-1." How many such channels exist?

A37: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q38: How wide and deep is Reedy Creek?

A38: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q39: The problem contains conflicting case numbers. On the first page the caption reads "D.C. No. 155-CV-2012" and "D.C. No. 165-CV-2012," but the text in the first paragraph reads "Civ. 155-2013" and "Civ. 165-2013." Additionally, the caption on page 4 of the problem reads "155-CV-2013, 165-CV-2013." Which case numbers are correct?

A39: D.C. No. 155-CV-2012 and D.C. 165-CV-2012 are the correct case numbers.

Q40: Is Progress a riparian or prior appropriation jurisdiction?

A40: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q41: How do we cite to information found in the Q&As in our briefs?

A41: The Problem will be amended with any relevant information resulting from the Q&As. You may then cite to the Problem.

Q42: Should we assume that Constitutional standing for all three parties is not being contested in this law suit and is therefore not among one of the issues to be addressed?

A42: Constitutional standing was not raised in the district court, but no further assumptions should be made.

Q43: Is Maleau presently piling mining waste or has he discontinued this action? The Factual Background section uses present tense and the Procedural Background uses past tense.

A43: Maleau piled mining waste next to Ditch C-1 in the past and continues to do so.

Q44: Are the chicken coops, in which Maleau allegedly houses the undocumented workers, on the same property as where the mining piles are deposited?

A44: The chicken coops are on his Lincoln County property.

Q45: Where is Reedy Creek in relation to the Buena Vista River?

A45: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q46: How many slag/overburden piles are currently near Ditch C-1 and how close are they to the Ditch?

A46: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q47: How large are these piles?

A47: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q48: How large or small are the erosion channels caused by gravity acting on the piles?

A48: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q49: Can a map of the area with the locations in the problem be posted on the website along with the location of arsenic and arsenic levels at various points mentioned in the problem?  If so, will such a map be posted?

A49: No.

Q50: Can a diagram/map of the piles, erosion channels, and how the channels run under Bonhomme’s farm road to the culvert that discharges into Reedy Creek be posted on the website?  If so, will such a diagram/map be posted?

A50: No.

Q51: How many employees of PMI accompany Bonhomme on his hunting trips and what percent of PMI’s workforce accompanies Bonhomme on his hunting trips?

A51: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q52: Are the workers that accompany Bonhomme on his hunting trips covered under PMI’s health insurance benefits?  How much is the total amount PMI spends on its health insurance benefits and the percent of health insurance benefits spent on workers that accompany Bonhomme on hunting trips?

A52: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q53: How are employees selected to accompany Bonhomme on his hunting trip?  Are these employees required to attend the hunting trip as a condition of employment, selected as a reward for performance, or simply invited by personal invitation of Bonhomme?

A53: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q54: How much as a percent of Bonhomme’s total net worth is the property that fronts the marsh?

A54: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q55: How much of a percentage of Bonhomme’s total net income is generated from his hunting parties in the Marsh?

A55: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q56: How many independent board of directors does PMI have?

A56: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q57: Was the decision by PMI to pay for the arsenic sampling and analyses, Bonhomme’s attorney, and expert witnesses vetted by an independent litigation committee of the Board of Directors?

A57: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q58: Was the decision by PMI to pay for the arsenic sampling and analyses, Bonhomme’s attorney, and expert voted on by either PMI shareholders or board members to be a form of compensation for Bonhomme’s services?  How much did the arsenic sampling and analyses, Bonhomme’s attorney, and expert cost?

A58: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q59: Bonhomme owns 3% of PMI, how much of the voting shares does he own?

A59: This raises an interesting issue that might be uncovered in discovery, but does not appear in the pleadings relevant to this motion to dismiss.

Q60: Is PMI a publicly traded corporation?

A60: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q61: How many total shares of PMI are outstanding?

A61: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q62: What is the total value of PMI?

A62: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q63: What is the total value of Maleau’s mining operations?

A63: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q64: If Bonhomme is ordered to pay for the cost of cleaning up the arsenic how much would that cost be and what percent of his net worth would that be?

A64: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q65: If Maleau’s mining operation were ordered to pay for the cost of removing the arsenic how much would that be and what percent of Maleau’s mining operation’s net worth and annual income would that be?

A65: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q66: How did Bonhomme pay for his property adjacent to Wildman Marsh?  (e.g. wages received by PMI, PMI paid for it as a reward for his employment, savings Bonhomme had prior to his PMI employment)

A66: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q67: Does Bonhomme pay taxes to the U.S. government?

A67: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q68: Has Bonhomme ever taken a U.S. citizenship test or applied for U.S. citizenship?

A68: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q69: Has Bonhomme began the process of applying for U.S. citizenship?

A69: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q70: Does Bonhomme own any residence outside the United States?

A70: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q71: Does Bonhomme pay taxes to any foreign government?

A71: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q72: Is Bonhomme married?

A72: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q73: If Bonhomme is married is his spouse an American citizen and if his spouse is an American citizen does the spouse have multiple nationalities or citizenship?  What governments tax Bonhomme’s spouse if he is married?

A73: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q74: Does Bonhomme have any children?  If so, what are their age, citizenship status, residence, place of education, occupation, and if employed which governments tax his children?

A74: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q75: Besides Bonhomme is any member of Bonhomme’s family listed on the deed and is that family member a U.S. citizen and what age is that family member?  Is anyone other than Bonhomme listed on the deed?

A75: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q76: How long has Bonhomme lived in the United States?

A76: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q77: What is the character of Maleau’s mining operations?  If it is surface mining does it come under the  Surface Mining Act and the CWA? 

A77: This raises an interesting issue, but the answer either is not addressed on the record and/or is irrelevant to the legal issues to be briefed.

Q78: Is the ditch C–1 still used for any agricultural purposes on Maleau’s property? Would it then come under the exception of CWA 33 U.S.C. s 1362 (14) (exceptions exclude storm water runoff from irrigated agriculture)?

A78: No.

Q79: Following the Rapanos and Carabell decisions, the Corps and EPA issued some guidance on CWA jurisdictional requirements. They held that the agencies will not assert jurisdiction over ditches excavated wholly in and draining only uplands that also do not carry a relatively permanent flow of water. So our question is: Are the lands on Maleau and Bonhomme's property only uplands? (The problem indicated that Bonhomme tested water from upstream and downstream flow so we think no but clarification would be helpful.)

A79: No.

Q80: Do other bodies of water (Reedy Creek/Buena Vista River) experience periods of intermittent flow during periods of drought?

A80: There is nothing in the record to indicate that either water source is intermittent.