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Problem Questions

The deadline for all questions pertaining to the 2015 Problem is October 24, 2014. You should review the Problem prior to the deadline and email the NELMCC Board at nelmcc_rules@pace.edu with any question(s). Questions will be answered once a week to all team contacts via email through the NELMCC ListServ. You, at the team contact, will be responsible for forwarding the emails to your team members. Problem Q&As will also be posted weekly on the NELMCC website. No questions about the Problem will be answered after the October 24 deadline.

Q&As

Q1: Page 6 of the Record states that Dean James ignored the "No Trespassing" signs and proceeded up the canal through Moon Moo Farm's property. Did he actually walk "onto" Moon Moo's farmland when he did this?

A1: No.

Q2: Are there "No Trespassing" signs on both sides of the Queechunk Canal?  Or are the "No Trespassing" signs only on one part of the canal.

A2: The opinion recites that the canal is prominently posted. It's a fair assumption this means both sides as well as the entrances.

Q3: Did Dean James extract the water sample directly out of the "drainage ditch" on Moon Moo's farm, or did he extract it directly out of the Queechunk Canal? The exact language I need clarification on is "James took samples of the water flowing from the ditch and later had them tested by a water testing laboratory."

A3: He sampled the water coming from the ditch where it entered the canal and could get the jon boat close enough.

Q4: Should we address Moon Moo's counter claim in our appeal?

A4: Only to the extent that if the waters are public trust waters, James was not trespassing as a matter of law.

Q5: Where does Chokos get its milk for production of the yogurt?
 
A5: The record is silent on this issue.
 
Q6: The Problem states that the Queechunk Canal is 50 yards wide and 3-4 feet deep on page 5. However, the Canal's length is not specified -- unless by width the judge meant length. Can you please clarify on the approximate dimensions of the Canal?

A6: The record is silent on this issue. Width means width.

Q7: Does the Deep Quod River cross any interstate boundaries or is it solely confined within the boundaries of the State of New Union?

A7: The record is silent on this issue. The Court can take judicial notice of the fact that the Mississippi River crosses state boundaries.

Q8: In Issue 1 on page 2 of the Problem, it is alleged by the district court judge that the bottom of the canal is owned by Moon Moo Farms; however this fact does not appear in the opinion. Is this fact assumed by the finding that Moon Moo Farms owns the land on either side of the canal?

A8: The record is silent on this specific issue.

Q9: What year did Moon Moo Farm acquire the property? Can you tell us a little more about the Farm's management and ownership structure?  

A9: The record is silent on this issue. No.

Q10: What is the state of the relationship between Moon Moo Farms and Chokos Greek Yogurt processing facility? Is there any corporate agreement (e.g. one is a subsidiary of the other) in place, or is there a contract that exists about the transfer of whey? Is either party paying for the acid whey? Is there a known market value for the acid whey?  

A10: The record is silent on this issue.

Q11: What is the primary purpose of the Bermuda grass sileage? Is it fed to the cows on Moon Moo Farms, and if so, how often? Is 100% of the sileage used for the cows?  

A11: The record is silent on this issue.

Q12: What evidence was the district court relying on when it made a finding that there was no imminent and substantial endangerment to families with young children? 
 
A12: All evidence the District Court relied on is cited in the district court opinion.
 
Q13: Page 11 of the District Court opinion cites to 40 C.F.R. 261(a)(2)(i). There is no 40 C.F.R. 261--it's a part, not a particular regulation or rule. There is a relevant regulation at 40 C.F.R. 261.2(a)(2)(i). Is this what 261(a)(2)(i) on page 11 of the problem refers to?  

A13: Yes, the opinion was supposed to refer to 261.2(a)(1).
 
Q14: The issue we are having is with the third brief question, part (b): “If it is not a CAFO, excess nutrient discharges from its manure application fields remove it from the agricultural stormwater exemption and subject it to NPDES permitting liability.” The phrase “if it is not a CAFO” indicates that we are to assume Moon Moo Farm is not a CAFO. If that is the case then the CAFO regulation 40 C.F.R. § 122.23 would not apply at all to the question prompt, which seems to be directly counter to what the district court decision was based on, especially § 122.23(e). Is this a mistake?  

A14: This is a fair subject for argument.
 
Q15: Relatedly, The district court's decision, page 9, states that “this type of discharge is agricultural storm water runoff, not a CAFO discharge” pursuant to ALT. v. USA. As I read ALT. v. USA, a discharge can both come from a CAFO point source and be exempted as agricultural stormwater discharge; the whole point of the case was that the terms are not mutually exclusive. Based on the district court’s decision and the question prompt I assume the drafter may have made a mistake in treating the two as mutually exclusive. This would also explain why the question prompt says, “if it is not a CAFO” as the drafter thought he/she had to separate CAFO and agricultural stormwater discharge. If the drafting is not a mistake, I would like some reassurance that my reading is wrong.   

A15: This is a fair subject for argument.