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Whitcomb, Selinsky, PC

Whitcomb, Selinsky, PC
Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.
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Owners of Las Uvas Valley Dairies Sued by Liquidating Trustee

Posted by Whitcomb, Selinsky, PC on Feb 18, 2021 3:05:10 PM

Robert Marcus, the liquidating trustee of the Las Uvas Valley Dairies sued Dean L. Horton and Frances H. Horton in the U.S. Bankruptcy Court of New Mexico. Mr. Marcus sought declaration that the main assets in the bankruptcy estate at issue were held in constructive trust for the estate he represents. Dean and Frances Horton applied for motion for judgment on the pleadings requesting the proceedings be dismissed for failure to state a claim. Mr. Marcus asserted he had a valid claim for recognition of a constructive trust.

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GAO: VA Needs Better Sexual Harassment Protection for its Employees

Posted by Whitcomb, Selinsky, PC on Sep 25, 2020 10:57:40 AM

A report released by the Government Accountability Office regarding the testimony before the Subcommittee on Oversight and Investigations and the Women Veterans Task Force, Committee on Veterans’ Affairs before the House of Representatives was released in July 2020. The report evaluated the extent to which VA policies prevent and address sexual harassment of VA employees; how data informs VA concerning sexual harassment of its employees; and the extent to which the VA provides training to its employees to address sexual harassment. It includes a survey conducted by the Merit Systems Protection Board in 2016, which indicated approximately 22 percent of VA employees and 14 percent of federal employees experience some form of sexual harassment in the workplace.

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Tags: Civil Rights Law

Worldwide Language Resources Awarded Reimbursement From the Army

Posted by Whitcomb, Selinsky, PC on Apr 22, 2020 1:42:03 AM

WorldWide Language Resources, Inc. (WWLR) of North Carolina asked the Department of the Army to reimburse it for the reasonable costs of filing and pursuing its protest of the agency’s award of a task order to Valiant Government Services, LLC. WWLR’s contention was that the agency failed to take prompt corrective action to resolve meritorious grounds for a protest.


In 2017, the Army issued a request for task order proposals (RTOP) under the Department of Defense’s Language Interpretation and Translation Enterprise II Indefinite Delivery Indefinite Quantity (IDIQ) contract (DLITE II). The RTOP was to acquire linguist support for the Combined Joint Task Force-Operation Inherent Resolve, the Department of State Office of Special Cooperation-Iraq, and the U.S. Army Central Command.

In July 2019, the Army notified WWLR that it had awarded the task order to a different bidder, Valiant. WWLR timely filed a protest challenging the agency’s evaluation of Valiant’s cost and technical proposals, its failure to credit WWLR’s proposals with additional strengths, its discussions with WWLR, and its best-value tradeoff determination.

A month later, WWLR filed a supplemental protest challenging the agency’s cost realism evaluation considering a reduction in Valiant’s proposed cost. WWLR later filed comments on a report the agency made in response to WWLR’s protest and submitted a second supplemental protest. It challenged aspects of the Army’s cost-realism evaluation and argued the agency unreasonably and disparately evaluated Valiant’s proposal and the Army’s best-value tradeoff was flawed due to these errors.

On September 30, 2019, WWLR filed its third and final supplemental protest. This time it challenged additional elements of the cost-realism evaluation, discussions with offerors, and the “cross walk” process used by the Army to assess the impact of Valiant’s cost elements on its technical approach.

On October 4, 2019, the Army announced it would take corrective action. It stated it would reevaluate proposals and make a new source selection decision. The agency reserved the right to reopen discussions and solicit revised proposals.

GAO Opinion

The GAO noted that the Army did not dispute three of the protest grounds, and that it took corrective action based on the errors that it identified. WWLR’S protests included arguments that the agency failed to conduct an adequate cost-realism evaluation, conducted misleading discussions with the protester, unreasonably and unequally evaluated the awardee’s proposal, and that the agency’s best-value determination was flawed.

The Army argued that with the exception of these arguments, WWLR’s protest grounds were not meritorious and readily severable from these grounds. The GAO, however, noted that protests are meritorious “where a reasonable agency inquiry into the protest allegations would have shown facts disclosing the absence of a defensible legal position.”

However, the GAO concluded the Army did not take corrective action based on the errors that it identified. The GAO found that the Army did not take prompt corrective action. GAO considers prompt corrective action to be if it is taken before the due date for the agency report responding to the protest. The due date for the agency report was September 18, 2019, but the agency didn’t take corrective action until nearly a month later on October 4, 2019.

The agency argued that the remaining protest issues are severable because they are based on different facts and legal theories. The GAO disagreed. It found that the protester’s arguments shared a common set of facts and legal theory, and that these causes of action are not severable from each other. It noted the protests were grounded in errors made by the Army to identify and account for Valiant’s low costs in its evaluation.

WWLR asserted that these errors impacted the evaluation of Valiant’s management and staffing plan, and that the agency should have taken Valiant’s low employee-compensation rates into account when it evaluated the strengths in Valiant’s proposal. One example is WWLR’s allegation that the Army conducted a “cross walk” analysis of the “impact of Valiant’s pricing …on its technical approach.” WWLR argued this inadequate evaluation allowed Valiant to “reap the reward of an ‘outstanding’ technical rating and multiple other strengths, without any consideration whether its [Valiant’s] cost approach would allow it to achieve those lofty promises.”

The GAO said that when the protester’s challenges did not directly reference the agency’s cost-realism evaluation, it noted that they were intertwined with WWLR’s successful protest grounds. The GAO also noted that the agency conceded WWLR’s challenge to the evaluation of Valiant’s staffing plan was “that clearly meritorious.” It viewed this successful challenge as sharing a “common factual basis with the protester’s other technical evaluation challenges; both the meritorious and non-meritorious issues are intertwined and interrelated with the agency’s flawed evaluation of Valiant’s proposal.” Accordingly, the GAO ruled that the technical evaluation issues were not severable from WWLR’s other claims.


The GAO sustained WWLR’s protest. The GAO recommended that the Army reimburse WWLR for its reasonable costs of filing and pursuing its protest challenging the agency’s award decision. For more information on filing a protest before the Government Accountability Office, please contact Whitcomb, Selinsky PC at 866-476-4558. Your first consultation with one of our attorneys is always free.
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Tags: Bid Protest

Booz Allen Hamilton Loses Post-Award Protest of VA Best-Value Decision

Posted by Whitcomb, Selinsky, PC on Apr 16, 2020 9:49:20 AM


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Tags: SBA Bid protest

BP Contests Walmart’s Economic Loss Claims

Posted by Whitcomb, Selinsky, PC on Mar 11, 2020 12:11:29 AM

The effects of the explosion from the Deepwater Horizon in the Gulf of Mexico on April 20, 2010 are still present today. The explosion killed 11 people and leaked 3.19 million barrels of oil into the Gulf of Mexico on the ocean floor 42 miles off the coast of Louisiana. It is likely that much of the oil spilled is still present in the Gulf today. As a result of the explosion and spill, a settlement agreement was made between BP and class action representatives that claimed damages from the disaster. The agreement included provisions for business economic-loss (BEL) claims for those companies that incurred damages resulting from the explosion and spill.

BP challenged (BEL) awards made to Wal-Mart stores, East, L.P. Its challenge was based on Walmart changing its accounting system one month after the explosion on the Deepwater Horizon. The accounting change affected the amount of Walmart’s BEL claims, which are based upon the difference between expenses before and after the disaster. BP contended that the change resulted in “artificially inflated award amounts.”

In June 2015, Walmart submitted BEL claims for each of its nine stores located along the Gulf Coast. BP questioned the validity of five of the claims. The United States Court of Appeals consolidated these claims in an appeal filed by BP. To facilitate reconciliation of the differences between the accounting systems, Walmart submitted supplemental documentation to the Claims Administrator for the claims in April 2017. After reviewing Walmart’s claims with PWC accountants, the Claims Administrator issued awards to Walmart in 2018 of over $17.4 million.

BP Appeal

BP appealed the Court Supervised Settlement Program (“CSSP”) awards. It argued the change in Walmart’s accounting system “made its profit and loss data for the pre-May 2010 period inconsistent with the subsequent period.” BP argued to the Appeal Panels that Walmart artificially inflated its awards by changing its accounting system. The change in accounting systems caused the pre-disaster period to appear more profitable compared to the later period following the Deepwater Horizon disaster.

U.S. Court of Appeals Decision

The U.S. Court of Appeals was tasked with determining whether it should reverse the district court’s decision not to review a final award under the CSSP settlement program. The Court applied the abuse-of-discretion standard to the district court’s refusal to review the final award. In applying the standard, the Appeals Court considered whether the final award “actually contradicted or misapplied the Settlement Agreement or had the clear potential to contradict or misapply the Settlement agreement.”

The Appeals Court noted the district court would not abuse its discretion if it denied a request for review that “involves no pressing question of how the Settlement Agreement should be interpreted and implemented,” but instead raised questions as to whether the discretionary administrative decision is correct or not.

Misapplication of Settlement Agreement

BP argued that the case BP Expl. & Prod., Inc. v. Claimant ID 100094497, 910 F.3d 797 (5th Cir. 2018) demonstrated that a claimant that changes its accounting system during the relevant time period, as Walmart did, must provide information on how each expense was categorized before and after the change. Walmart responded by providing supplemental information to the Claims Administrator, which the court concluded was necessary for the change in its accounting system to be factored into the calculations. The court also noted that the Claim Administrator’s calculation notes indicate the accounting systems were reconciled. The U.S. Court of Appeals held BP did not show that the Claims Administrator or any Appeal Panel misapplied the Settlement Agreement, nor was there potential for any contradiction or misapplication.

BP’s Request for Walmart Expenses

BP argued that Walmart needed to provide additional information describing how each expense in Walmart’s pre-May 2010 accounting systems was classified in its post-May 2010 system. The U.S. Court of Appeals held it was “unconvinced by BP’S pleas for more information.” It stated it was presiding over an exercise of judgment by the district court, Appeal Panels and Claims Administrator whether there was enough evidence under the Settlement Agreement to make an award. The Court of Appeals found that BP’s challenge to the Appeal Panels’ decisions raised issues regarding the “correctness of a discretionary administrative decision in the facts of a single claimant’s case.” The U.S. Court of Appeals concluded that the district court’s denial of a request for discretionary review was not an abuse of discretion.


The U.S. Court of Appeals held that the district court’s denial of a request for discretionary review was not an abuse of discretion. This case demonstrates the lengthy amount of time it takes for legal issues to be resolved following a disaster. The events of the Deepwater Horizon disaster occurred nearly ten years ago, and the question of Walmart’s economic loss claims were not resolved until January 14, 2020. Environmental restoration will take even longer. If your company has sustained a casualty loss resulting from a disaster, or if you would like more information on this case, please contact Whitcomb Selinsky PC at 303-534-1958.
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Tags: Trial Lawyer

OSHA and MSHA Raise Penalty Fees

Posted by Whitcomb, Selinsky, PC on Mar 10, 2020 11:58:06 PM

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act. It was passed to improve the effectiveness of civil penalties and to maintain their deterrent effect. The Act requires agencies to adjust their level of monetary penalties and to make subsequent annual adjustments for inflation no later than January 15th of each year.

The Labor Department issued an annual inflation adjustment of civil penalties in 2019. It calculates the annual adjustment based on the Consumer Price Index for all Urban Consumers (CPI-U). The most recent adjustment is based on the percent change between the October 2019 and October 2018 CPI-U.

The Federal Civil Penalties Inflation Adjustment Act provides a cost-of-living formula for the adjustment of civil penalties. The Act increases penalty levels to those assessed after the effective date of the increase. The final rule became effective January 15, 2020, increasing penalty fees. The changes to the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA) penalties take effect immediately and apply to penalties assessed after January 15, 2020.

Penalty Assessment Formula

Penalties for health and safety violations are assessed by MSHA’s Office of Assessments’ formula that considers five factors: the history of previous violations, size of the business, negligence of the operator, gravity of the violation, and the operator’s good faith attempt to correct the violation promptly (if any). The inspector determines these findings from inspections, MSHA records, and information supplied by the operator. The effect of the penalty on the operator’s ability to remain in business is also considered when an operator submits information to the inspector.

OSHA Penalties

OSHA raised its civil penalties by about 1.8% at the beginning of this year. Some of the changes to the OSHA penalties include the following: willful violations where an employer knowingly failed to comply with OSH standards or demonstrated plain indifference for employee safety now has an increased penalty from $49,472 to 49,639 and the maximum penalty increases from $132,598 to $134,937. Violations that are repeated or substantially similar to previous violations have penalties that increase from $132,598 to $134,937.

MSHA Penalties

MSHA violations are the most serious and can impose the greatest fees. The most severe MSHA flagrant violation will now cost $266,275. Employers that fail to abate a citation will incur a maximum penalty of $7,867 per day. Failure to report a fatality or serious injury within 15 minutes will incur a minimum penalty of $6,052.

Contesting Health and Safety Citations

There are multiple options employers can take if OSHA or MSHA cites the company for a violation. If you believe you unfairly received a citation or have evidence to defend your business’ health and safety standards, it may be beneficial to contest the citation. You can contest a citation if you do not believe that your company violated a health and safety order, you believe the violation was improperly classified, you do not believe that the Government gave your company enough time to complete the abatement, or if you believe the assessed penalty was unreasonable.

OSHA Citations must be addressed as soon as possible. Requests to contest OSHA citations must be made within 15 calendar days. Mine operators have 30 days to file a notice of contest with the Secretary of Labor or can wait until a penalty is assessed. After receiving the penalty, the operator has 30 days to file a contest and request a hearing before an administrative law judge of the Federal Mine Safety and Health Review Commission.

There are other factors employers should consider beside the monetary expense of citations. It is also important to consider the consequences of receiving a citation. Workplace safety violations that lead to repeat violations are likely to receive greater fines. Employers are cited for ‘repeated’ violations if they receive ‘substantially similar’ violations anywhere in the nation within the past three years. Employers can also develop poor reputations in the labor community if it consistently receives citations or has employees who continue to get hurt on the job.

Health and Safety Violation Consequences

OSHA and MSHA violations will result in larger penalties for employers. It is important that employers take the necessary steps to improve the health and safety of their most important resources, their employees. A healthy workforce makes employees more likely to work at companies longer. This helps employers save money by not having to train replacements and it limits the penalties that their company may incur from OSHA and MSHA. It is best to be proactive and solve problems and prevent accidents before they occur. If you have been cited for an OSHA or MSHA violation or you anticipate that you will be cited, please contact the experts in workplace safety at Whitcomb Selinsky PC. Consultations are free and you can reach the firm at 303-538-1958.
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Tags: Workplace safety

Trump Proposes NEPA Changes

Posted by Whitcomb, Selinsky, PC on Mar 10, 2020 11:25:38 PM

Trump Proposes Limiting Environmental Reviews and Eliminating Climate Change Considerations From NEPA

On the 50th anniversary of the National Environmental Policy Act (“NEPA”), the President has proposed making the first regulatory change to the Act in over 40 years. The White House Council on Environmental Quality (“CEQ”) recently proposed changes to NEPA. The Act requires environmental reviews of projects like highways and pipelines. The changes to NEPA will reduce the number of projects that would trigger environmental reviews, expand the number of project categories that can be exempted from NEPA review, and allow companies to conduct their own environmental assessments.


NEPA was signed into law in 1970 under the Nixon Administration. The purpose of NEPA is to “use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.” It requires federal agencies to assess the environment impacts of their proposed actions before making those decisions. This includes making decisions on permit applications, adopting federal land-management actions, and making decisions concerning highways and publicly-owned facilities.

Trump Proposal

Under the new changes that President Trump has proposed, the scope of NEPA would dramatically change. Large-scale projects like highways, pipelines, and mines would be exempt from the Act’s requirements. In a speech President Trump declared that “Most of America’s most critical infrastructure projects have been tied up and bogged down by an outrageously burdensome federal approval process.” President Trump added, “these endless delays waste money, keep projects from breaking ground and deny jobs to our nation’s incredible workers.”

Proponents of NEPA “Modernization”

The limits on environmental reviews have been touted and criticized by sides of the political aisle. Those supporting the changes to NEPA have stated it would be good for industry, while those who are opposed argue it will be detrimental to environmental and public health. In November, over thirty industry groups that included the Chamber of Commerce and American Petroleum Institute, called on the CEQ to hurry the release of the NEPA “modernization.” As part of the “modernization,” the CEQ is expected to announce federal agencies will not be required to consider the impact of federal projects on “cumulative” climate change. A statement by Wyoming Governor, Mark Gordon, expressed support for the narrowed focus of NEPA. He stated Wyoming is proud of its environment and protective of its natural resources, while also stating NEPA “is not a platform to engage in speculation and it is not a convenient mechanism to obstruct development.”

Critics of NEPA Revision

Critics of the proposed changes argue that upending NEPA is irresponsible considering how it would negatively impact CO2 emissions and climate change. Environmental groups and advocates have raised concerns, stating that the NEPA regulatory process offers protections for communities that are directly affected by big projects. Raul Garcia, senior counsel at Earthjustice, stated, “A lot is riding on this.” He expressed concern that expediting the NEPA process would lead to “environmental reviews cutting corners and overlooking potentially hazardous impacts.” Gina McCarthy, former Environmental Protection Agency (“EPA”) Administrator in the Obama Administration and current president and CEO of the Natural Resource Defense Council (“NRDC”), has said the NRDC will use every tool it has to stop this proposal.

Critics have also said the environmental rollback could impact minorities and low-income communities the hardest. An article by Cheryl Katz in Scientific American indicates that air pollution contains more hazardous ingredients in nonwhite and low-income communities than that of affluent white ones. Katz writes, “the greater the concentration of Hispanics, Asians, African Americans or poor residents in an area, the more likely that potentially dangerous compounds such as vanadium, nitrates and zinc are in the mix of fine particles they breathe.” Latinos receive the highest exposure to these compounds, while whites experience the lowest exposure to such compounds. A study published in the American Journal of Public Health in 2018 echoed the results of Cheryl Katz’ article in Scientific American. It indicates persons of color suffer a greater burden of particulate matter air pollution than white people. According to the study, race is the greatest predictor of exposure to health-threatening particulate matter.

Stay Tuned

If Congress votes in support of the changes to NEPA (which is far from certain), it is likely that the decision will generate considerable controversy. Statutory changes are subject to public hearings before Congress votes to make a change. The proposed statutory changes will most likely face opposition from environmental groups. If the revisions are enacted, both public hearings and court proceedings will delay their implementation. The results of the upcoming presidential elections may also affect the outcome, depending on who is elected. Stay tuned for more information on the proposed changes to NEPA. If you have concerns or questions about NEPA, contact Whitcomb Selinsky PC and talk to one of our attorneys about the impact of the proposed changes.
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Tags: environmental law

Plaintiffs Backpay Private Action Precluded by SCA

Posted by Whitcomb, Selinsky, PC on Mar 9, 2020 2:33:20 PM

A group of plaintiffs that included Tiffaney L. Mayes filed a complaint with the Wage and Hour Division of the United States Department of Labor against Excelsior Ambulance Service, Inc. and James A. Graham, M.D. when they discovered they were being underpaid by the defendant’s business.  According to the Defendants, the Wage and Hour Division concluded the Plaintiffs were improperly classified and sought retroactive pay for the Plaintiffs.

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Tags: Services contract act

Sunset Roadless Area Remanded to Study Impact on Water and Fish Resources

Posted by Whitcomb, Selinsky, PC on Feb 24, 2020 12:17:56 AM

U.S. District Court Remands Case Challenging Environmental Impact Statement

A group of environmental organizations sought to protect public lands and the environment by seeking judicial review of a decision by the Department of the Interior, Office of Surface Mining Reclamation and Enforcement (“OSM”). The OSM decision recommended approval of a mining plan that authorizes the mining of federally owned coal on public lands by Mountain Coal Company (“MCC”). The plaintiffs, WildEarth Guardians, High Country Conservation, The Center for Biological Diversity, and the Sierra Club, argue the decision must be set aside because it did not comply with the National Environmental Policy Act (“NEPA”).


NEPA requires federal agencies to assess the environmental effects of their proposed actions before making major decisions. Title I of NEPA contains a policy that requires the federal government to use all practicable means to ensure that humans and nature can exist in productive harmony. Federal agencies do so by preparing Environmental Impact Statements (“EIS”) and evaluating the potential impacts the agency’s proposed action may have on the environment, The EIS explores all reasonable alternatives to a proposed action. Reasonable alternatives are options “bounded by some notion of feasibility.” Departments and agencies are not required to consider alternatives that are too “remote, speculative, impractical, or ineffective.”

Mineral Leasing Act (“MLA”) and Surface Mining Reclamation

The MLA allows the Secretary of the Interior to lease federal coal resources for mining operations. However, the operator is required to submit a plan for the Secretary’s approval if such operations “might cause significant disturbance of the environment.” Following consideration of the EIS and other relevant information, the Office of Surface Mining Reclamation and Enforcement (“OSM”) prepares and submits a decision to the Secretary of the Interior, recommending approval or disapproval of the mining plan. OSM is required to base its recommendation on information prepared for NEPA compliance, and recommendations of federal agencies and the public.

Mine Location and Plan

The West Elk coal mine is an underground mine located beneath public lands managed by the Forest Service. The mine sits adjacent to the Sunset Roadless Area. The area sits within the Gunnison National Forest, containing 5,800 acres of undeveloped forest and scrub land. The mine first began operating in 1981. Coal operation activities began in 2018. A new mining plan would expand Mountain Coal Company (“MCC”) operations into the Sunset Roadless Area. The plan would build 8.4 miles of new roads and install 43 methane drainage wells that would release an estimated 11.91 million tons of methane.

Legislative History

The United States Forest Service (“USFS”) and Bureau of Land Management (“BLM”) issued decisions in 2012 and 2013 allowing MCC to expand the West Elk Mine. The expansion was challenged in 2014 in High Country Conservation Advocates v. United States Forest Serv., 67 F. Supp. 3d 1262 (D. Colo. 2014), where the Court concluded MCC violated NEPA for not considering the environmental costs in the cost/benefit analysis. The Court vacated the exploration plan and MCC was enjoined from its proposed expansion. In 2017 the BLM and USFS reinstated the coal mine exception to the Colorado Roadless Rule and began proceedings to lease part of the Sunset Roadless Area to MCC once again. A Supplemental and Final Environmental Impact Statement (“SFEIS”) was issued to comply with NEPA. Environmental advocacy groups challenged the plan in High Country Conservation Advocates v. United States Forest Serv., 333 F. Supp. 3d 1107 (D. Colo. 2018) but were unsuccessful. Mining was scheduled to begin at the beginning of 2020 when WildEarth Guardians sought judicial review of the decision by the OSM in the present case. The court heard oral arguments in October 2019, and the U.S. District Court delivered its decision a month later.

The Court’s Decision: Impacts on Climate Change

The United States District Court found that the environmental conservation groups waived their argument regarding the cumulative impact of the mining expansion on climate change. The case, Forest Guardians v. U.S. Forest Serv., 641 F.3d 423, 430 (10th Cir. 2011), indicated, “plaintiffs must exhaust available administrative remedies before the USFS prior to bringing their grievances to federal court.” Claims that are not before an agency are waived, unless the claims are ‘obvious.’ The environmental groups did not present the argument of the mining expansion’s impact on climate change in the leasing stage. This allowed the agency to “reasonably conclude” the new information did not significantly alter the analysis. The court stated the SFEIS sufficiently weighed the threat of federal coal program on climate. It added, “neither I nor conservation groups can substitute our judgment for the agencies.’” It found the agency did not act arbitrarily with respect to the expansion’s impact on climate change.

The Court’s Decision: Impact on Water and Fish

The Court concluded that the agencies violated NEPA by failing to conduct additional studies on perennial streams. The SFEIS contained contradicting statements in this regard. The impact statement said that “two short perennial stream reaches exist within the modification area.” The agencies’ analysis, however, relied on the SFEIS statement that “there are no known perennial springs in the lease modification area.” The SFEIS included, without limitation, information favorable to mining expansion. The SFEIS said that there was no expected impact on local fish “due to lack of perennial water.” The court found that the SFEIS failed to include valuable information from the NEPA Adequacy Review Form (“NARF”). Unlike the SFEIS, the NARF included information from the 2016 Annual Hydrology Report and stated that perennial streams did exist and would be affected by the mine expansion.

U.S. District Court Holding

The Court remanded the mining plan record of decision (“ROD”) to the OSM for further consideration of the methane flaring alternative and its potential impact on water and fish resources. The other agency actions were vacated, and the defendants were enjoined from proceeding with the mining plan.

Mining expansion could have brought more jobs to Colorado. However it would have done so at the cost of the surrounding environment and would have contributed to the problem of climate change. If your business has an environmental issue that it needs to resolve, we recommend that you contact Whitcomb, Selinsky PC and speak with one of our attorneys.
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Tags: environmental law

Group Sues U.S. Bureau of Reclamation for Discharging Pollutants

Posted by Whitcomb, Selinsky, PC on Feb 20, 2020 12:06:51 AM

California’s Central Valley is home to fertile agricultural land, though it receives little rainfall. The federal government helped alleviate this problem by constructing irrigation and drainage projects to provide water to the region. A diverse group of plaintiffs sued the United States Bureau of Reclamation and San Luis & Delta Mendota Water Authority on the grounds that the drainage system discharged pollutants into the surrounding waters, violating the Clean Water Act (“CWA”). The plaintiffs appealed rulings by the district court in favor of the defendants.


          The Central Valley Project (“CVP”) transferred water from the Sacramento River to southern regions of the Central Valley. Water projects that bring fresh water to agricultural areas must remove the salty water that remains after crops are irrigated away from the service area. The Grasslands Bypass Project (“the Project”) performed this necessary function, to prevent the leaching of selenium and salt-rich soils into the groundwater. The Project was “designed to collect and convey contaminated groundwater from lands adjacent to and upstream of the Drain to Mud Slough.” Both plaintiffs and defendants acknowledged the Drain discharges substantial amounts of selenium and other pollutants into the Mud Slough, San Joaquin River, and Bay-Delta Estuary.


          The Clean Water Act requires government agencies to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit before discharging pollutants from a point source into navigable waters of the United States. The dispute between the parties is whether the Drain’s discharges required defendants to obtain an NPDES permit, or whether the discharges were exempt from the permit requirements. Plaintiffs argued the district court erred in its interpretation of CWA § 1342(l)(1). Plaintiffs argued the district court erred by placing the burden of proof on the plaintiffs to show the Drain’s discharges were not exempt.

          Plaintiffs argued the district court erred in interpreting the term “discharges…from irrigated agriculture.” In the pretrial order, the district court stated the plaintiffs bore the burden of proving that the discharges were not exempt from CWA’s permitting requirement. The U.S. Court of Appeals, however, agreed with the plaintiffs that the burden was on the defendants to prove the discharges were not covered by an exception to the NPDES. The appellate court cited the case N. California River Watch v. City of Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007), which held that once a plaintiff establishes the elements of a violation under the CWA, the burden to demonstrate an exception to the CWA is placed on the defendant.

          The plaintiffs argued that the district court interpreted NPDES incorrectly. The district court stated that NPDES exempted discharges related to crop production from the CWA’s permitting requirement. However, the Court of Appeals noted that NPDES’ statutory text, its context, legislative history, and prior case law demonstrate Congress intended to define “irrigated agriculture” broadly. The Court of Appeals held that the district court’s interpretation of “irrigated agriculture” was accurate.

          The third error plaintiffs argued the district court made was interpreting the word “entirely” to mean “most.” The district court rejected the literal interpretation of “entirely” believing “it would lead to an absurd result.” The U.S. Court of Appeals disagreed with the district court. The Court of Appeals concluded Congress used the word “entirely” to limit the scope of its statutory interpretation. The court stated that Congress intended for NPDES to require permits for discharges “that include return flows from activities unrelated to crop production.”

Effects of District Court’s Errors

          The defendants argued the district court’s errors were harmless because “the record contains no evidence of any discharge of pollutants unrelated to agricultural flows.” The U.S. Court of Appeals said that the erroneous interpretation of the word “entirely” was the but-for-cause of the dismissal of the Plaintiffs’ CWA Claim. The court found it reasonable to conclude that the plaintiffs would have proceeded to trial if the district court had interpreted “entirely” correctly. The defendants would have been required to “prove the discharges were composed entirely of return flows from irrigated agriculture.” The Court of Appeals held the erroneous dismissal of the plaintiffs’ other claims were also impactful. The defendants should have been required to show the discharges were composed entirely from irrigated agriculture. According to the Court of Appeals, even if there were a lack of evidence that demonstrated the discharges arose from activities unrelated to crop production, “it would not have been fatal to Plaintiffs.”


          The United States Court of Appeals concluded the district court properly interpreted “discharges…from irrigated agriculture.” The Court of Appeals, however, found the district court erred when it interpreted “entirely” to mean “majority,” and when it placed the burden on the plaintiffs, instead of the defendants, to show the discharges were not covered under § 1342(l)(1) of the CWA. The Court also held that the district court erred by striking plaintiffs’ seepage and sediment theories of liability from their motion for summary judgment. For more information on this case or for assistance arguing your case against the government, contact Whitcomb Selinsky PC.
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Tags: Natural Resources Litigation

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