[00:00:02] Speaker 04: I think maybe my day sheet has the wrong council for the wrong... Mr. Meyer, are you representing Cottonwood Environmental Law Center, I assume? [00:00:11] Speaker 04: Yes, Your Honor. [00:00:11] Speaker 04: All right. [00:00:11] Speaker 04: I think my day sheet says that you're representing CHSP Acquisition, but unless you change sides. [00:00:17] Speaker 03: No. [00:00:17] Speaker 03: Okay. [00:00:18] Speaker 04: So you'll be going first. [00:00:19] Speaker 04: And then Mr. Goltz, is that right? [00:00:22] Speaker 04: You'll be responding. [00:00:23] Speaker 04: Okay. [00:00:24] Speaker 04: Go ahead and start when you're ready, Mr. Meyer, and let us know how much time you hope to reserve. [00:00:31] Speaker 03: Good morning, Your Honors, and may it poise the court. [00:00:32] Speaker 03: My name is John Meyer. [00:00:34] Speaker 03: I'm here on behalf of Appellant Cottonwood Environmental Law Center. [00:00:37] Speaker 03: I'd like to reserve two minutes for a bottle, please. [00:00:42] Speaker 03: Cottonwood settled the Clean Water Act lawsuit against Spanish Peaks in 2022. [00:00:47] Speaker 03: And that settlement required Spanish Peaks to replace the holding pond liner that was leaking sewage into the Gallant River. [00:00:55] Speaker 03: And it also required Spanish Peaks to limit the volume of irrigation that was applied onto its golf course at 33.6 million gallons per year. [00:01:05] Speaker 03: Cottonwood then filed a second Clean Water Act case against Spanish Peaks alleging that its spring treated sewage out of its snow guns onto ski slopes during summertime and that so much sewage ran down the ski slope that's running down the road and getting into a different tributary of the Gallatin River. [00:01:24] Speaker 04: Can I ask you a question? [00:01:25] Speaker 04: I think we're probably all very familiar with the facts of this. [00:01:29] Speaker 04: So why didn't you just seek to enforce the consent decree [00:01:34] Speaker 04: for the second violating. [00:01:36] Speaker 04: Obviously the issue is whether or not it's encompassed within the consent decree. [00:01:39] Speaker 04: Judge Morris thought it was. [00:01:42] Speaker 04: Why didn't you seek to enforce the consent decree? [00:01:44] Speaker 04: In theory, that'd be better because you could get a contempt order or something from that. [00:01:49] Speaker 03: The consent decree required the defendants to provide Cottonwood with a copy of the nutrient management plan that was in place for the alleged violations. [00:01:59] Speaker 03: And so in this case, Spanish Peaks provided us with a nutrient management plan from 2017 for the first golf course. [00:02:05] Speaker 03: And that was it. [00:02:06] Speaker 03: We didn't know there was a second golf course, and we didn't know there was a second nutrient management plan. [00:02:10] Speaker 03: So we've always been on the impression we can only enforce a consent decree regarding violations of the nutrient management plan for the golf course. [00:02:19] Speaker 03: But there's a whole separate golf course and a whole separate nutrient management plan here. [00:02:23] Speaker 03: And that's why we couldn't enforce the long answer. [00:02:25] Speaker 03: We couldn't possibly enforce the consent decree, because it didn't cover these issues, because it was covered in a totally different nutrient management plan. [00:02:33] Speaker 04: If this panel was to agree with Judge Morris and say, no, this is within the consent decree, [00:02:41] Speaker 04: In theory, if you thought they were doing something like this and it violated, could you now go and say this is a violation of the consent decree and attempt to seek relief that way? [00:02:55] Speaker 03: Your honor, the consent decree requires Cottonwood to notify the DEQ of any violation that they think of the consent decree. [00:03:03] Speaker 03: And we have done that. [00:03:04] Speaker 03: We filed a complaint with the DEQ. [00:03:06] Speaker 03: They haven't done anything for a year. [00:03:07] Speaker 03: And so the consent decree says you can then file a case. [00:03:10] Speaker 03: And so we have filed a case. [00:03:12] Speaker 03: We are here right now. [00:03:13] Speaker 03: Again, the action in this case is totally different than the action in Cottonwood 1. [00:03:18] Speaker 04: No, I understand. [00:03:20] Speaker 04: I think we all understand your argument that this is different. [00:03:22] Speaker 04: But I'm saying if it's not, it doesn't. [00:03:24] Speaker 04: I'm trying to figure out if Judge Morris is right, do you still have some remedy? [00:03:30] Speaker 04: And that's the question, specific question is, would you be able to do something under the consent decree or the consent order for the prior lawsuit? [00:03:38] Speaker 03: The consent order says, you need to enforce it. [00:03:43] Speaker 03: And again, there's not much to enforce, Your Honor. [00:03:46] Speaker 03: I mean, the consent decree is totally silent on spraying treated effluent off a snow gun. [00:03:52] Speaker 04: Well, assume for a second that they just started spraying double the amount that the consent order says. [00:04:01] Speaker 04: onto the golf course, through the sprinklers on the golf course. [00:04:04] Speaker 03: Yes. [00:04:05] Speaker 04: You would be able to do what? [00:04:06] Speaker 04: You would come and you would ask? [00:04:09] Speaker 03: We would notify the DEQ and then wait six months and file a complaint in federal court alleging a claim warrant violation. [00:04:16] Speaker 04: And you might not have to wait six months, because hopefully the DEQ would go up there and do something about that. [00:04:20] Speaker 04: Correct. [00:04:22] Speaker 04: And what do we take from the fact that the DEQ, I mean, in that instance I'm talking about, if the DEQ didn't do something, I suppose you might [00:04:29] Speaker 04: You know, it might appear to be some indication that the DEQ doesn't actually think that they're spraying double the amount of water. [00:04:35] Speaker 03: Sure. [00:04:35] Speaker 04: In which case, we will file a complaint. [00:04:36] Speaker 04: And here, do we take anything from the fact that the DEQ didn't respond, that they disagree? [00:04:44] Speaker 04: I mean, part of their argument here, their secondary argument is, [00:04:48] Speaker 04: that we can rule for them because there isn't actually any violation going on here and that the evidence is unrebutted. [00:04:54] Speaker 03: So that goes to the actual merits, the summary judgment. [00:04:57] Speaker 03: And that's a question of fact, whether they are actually discharging the sewage into the river. [00:05:02] Speaker 03: That's a question of fact reserved for the jury. [00:05:05] Speaker 04: Right, right. [00:05:05] Speaker 04: And I think we understand your arguments on that. [00:05:07] Speaker 04: And their arguments are that there's not actually a dispute of material fact because [00:05:16] Speaker 04: the fact that they're saying there is no evidence on summary judgment that you come. [00:05:19] Speaker 04: But I understand that. [00:05:20] Speaker 04: But I'm asking a different question about that, which is, should we draw any sort of inference from the fact that the DEQ has not responded here, that it sort of takes their side of that characterization, or why should we not [00:05:39] Speaker 03: Your Honor, we filed a complaint with the DEQ regarding leakage from the Big Sky Water and Sewer District cooling ponds. [00:05:47] Speaker 03: We waited over a year, and they did not do anything at all. [00:05:50] Speaker 03: They didn't respond, like total radio silence. [00:05:53] Speaker 03: So we filed a lawsuit. [00:05:54] Speaker 04: You're talking about the big ponds that are at the bottom down there. [00:05:56] Speaker 03: Yeah, exactly. [00:05:56] Speaker 03: Yeah, you're a Bobcat, so you know this stuff. [00:05:59] Speaker 04: I actually worked on those ponds. [00:06:00] Speaker 04: Oh, you did? [00:06:01] Speaker 04: Yeah, my dad's construction company. [00:06:03] Speaker 04: That might be my line of this leaking. [00:06:06] Speaker 04: So, okay, so I totally know what you're talking about. [00:06:08] Speaker 04: And you're saying, basically, I think you're saying the DEQ just isn't doing its job. [00:06:11] Speaker 04: Is that your position? [00:06:13] Speaker 03: And so we filed a complaint with the DEQ saying they're not doing their job, and the court ordered us to draft an opinion that we wanted it to adopt. [00:06:22] Speaker 03: And it said to both sides, the DEQ and Cotwood. [00:06:24] Speaker 03: But so the court is amenable to hearing this idea that the DEQ is not doing its job. [00:06:30] Speaker 03: But in terms of this case- Judge Morris, you're talking about? [00:06:32] Speaker 03: No, this is state court, Gallatin County District Court. [00:06:35] Speaker 03: Gotcha, okay. [00:06:35] Speaker 03: Judge Morris's order, summary judgment order, says, quote, Cottonwood remains free to allege clean water record violations against Spanish Peaks, distinguishable from the facts alleging Cottonwood won, even if such allegations related these to the alleged pollution of the same West Fork of Galveston River and its associated tributaries. [00:06:56] Speaker 03: And that's on page ER 14. [00:06:58] Speaker 03: And then he issued a second order saying, Cottonwood has failed to present evidence that the activities challenged in this action [00:07:05] Speaker 03: And those previously resolved in Cottonwood 1 proved to differ significantly. [00:07:10] Speaker 03: And so when you look at the DEQ's language for its nutrient management plan, the second nutrient management plan, it says each of the three areas are significantly different from one another in their composition and the types of irrigation that will occur. [00:07:25] Speaker 02: So, Mr. Meyer, the relevant documents in this case are frankly maddeningly vague and inconsistent and ambiguous that let both sides argue them with full vigor, basically. [00:07:41] Speaker 02: One of the interesting things about this case is that the usual approach to the Clean Water Act's notice requirement is flipped as between plaintiff and defendant, right? [00:07:52] Speaker 02: You're saying the notice requirements are very tight. [00:07:55] Speaker 02: The defense is saying, oh, this was broad enough to cover our second golf course and so on. [00:08:00] Speaker 02: A lot of this frankly feels like word games to me. [00:08:04] Speaker 02: I was not involved in the construction of the relevant facilities here in Montana. [00:08:10] Speaker 02: It would be helpful for me to know a little bit about the geography of the two different golf courses and what streams they drain into, and even the difference between the west fork and the middle fork of the Gallatin River. [00:08:27] Speaker 03: Yes, sir. [00:08:28] Speaker 03: So to give you a very brief summary of what's happening, down low is Big Sky Water and Sewer District. [00:08:36] Speaker 03: It's the holding ponds where they treat the effluent. [00:08:38] Speaker 03: They then send it uphill to Spanish peaks to irrigate on their golf course. [00:08:43] Speaker 03: They have one full-size golf course and evidently a second smaller golf course. [00:08:48] Speaker 03: And above all of that is the ski runs. [00:08:51] Speaker 03: And so they are now irrigating the ski runs in such a way that it's [00:08:56] Speaker 03: Going down the grass in the summer and running down the road into the river and so that then drains into the middle fork of the West fork of the Gallatin River Okay, so that's but but all of the activity you're talking about drains into that middle fork of the West fork of the Gallatin River Yes, sir. [00:09:18] Speaker 03: Okay different tributaries your honor [00:09:20] Speaker 02: OK, I guess the question is how big a problem that is, and we'll have to wrestle with this. [00:09:25] Speaker 02: Could I just ask you very briefly [00:09:28] Speaker 02: I want to understand the relevance of the notice requirement here. [00:09:33] Speaker 02: Suppose you were bringing a nuisance claim under state law without the notice provisions of the Clean Water Act. [00:09:42] Speaker 02: Would there really be any doubt that your first lawsuit against Spanish Peaks would have been broad enough for claim preclusion to apply to the second? [00:09:57] Speaker 03: Your Honor, the activities that are being challenged, the activities that are causing a nuisance or a criminal violation, are totally separate. [00:10:05] Speaker 02: I don't know what that means. [00:10:07] Speaker 02: You've got the same party, same general tract of land, same river that's being polluted, according to you. [00:10:16] Speaker 02: And the new activity that you're alleging was occurring before the entry of the consent judgment, correct? [00:10:28] Speaker 03: Before entry after the parties entered it right well. [00:10:31] Speaker 02: Yeah, let's be careful Yeah, yeah exactly filed and we don't if I was it correct, but before the judge approved and entered it so the activities were going on before Judgment we had no idea that that was happening your honor well you did because you sent the notice the second Clean Water Act notice before the entry by the judge of that first consent order correct and [00:10:58] Speaker 03: Yes. [00:10:59] Speaker 02: OK. [00:11:00] Speaker 02: So you did know about it before judgment. [00:11:03] Speaker 03: The consent decree limits claims that were known and unknown. [00:11:07] Speaker 03: And we could have not possibly known they were spraying treated effluent out of the snow guns because they weren't doing it. [00:11:12] Speaker 02: Well, I'm sorry. [00:11:14] Speaker 02: I thought you told me and you told the defendants in your second Clean Water Act notice before entry of judgment that they were doing these violations, right? [00:11:28] Speaker 03: We told the defendants, after we filed our first 60-day notice and after we filed our first medical point, we said, hey, we have now been informed that you are spraying in a different area using a different mechanism to irrigate, to spray your sewage. [00:11:46] Speaker 03: And that's a separate violation of Clean Water Act. [00:11:51] Speaker 04: So can I ask you? [00:11:52] Speaker 04: I'm taking way over time. [00:11:53] Speaker 04: I'm taking your way over, but thankfully, I get to control that. [00:11:57] Speaker 04: And we didn't have a lot of time for this argument. [00:12:00] Speaker 04: Sometimes that happens in this important case. [00:12:05] Speaker 04: I think my colleague, Judge Hamilton, sort of referred to this a little bit. [00:12:10] Speaker 04: There is a little bit of an oddity in this case in that [00:12:14] Speaker 04: As I read your arguments that are directed towards how we should interpret the 2021 notice, you're sort of strangely, at least in my view, asking us to read that very narrowly. [00:12:31] Speaker 04: And there's two oddities about that. [00:12:33] Speaker 04: One is just a general oddity that normally somebody on your side of one of these environmental cases would want a notice letter to be read broadly because [00:12:42] Speaker 04: Normally, it would be the defendant saying, hey, the notice doesn't cover this, so you didn't get to bring the lawsuit. [00:12:46] Speaker 04: You're going to try to throw it out. [00:12:48] Speaker 04: If we were to agree with your narrow characterization of the notice letter, I'm trying to figure out how that notice letter would have covered the original lawsuit that was settled with this consent order. [00:13:04] Speaker 04: Because you talk about, well, we didn't mention the notice letter. [00:13:07] Speaker 04: It didn't mention snow guns. [00:13:09] Speaker 04: It didn't mention irrigating. [00:13:11] Speaker 04: that wasn't on the golf course, but the actual notice letter didn't mention irrigation at all. [00:13:16] Speaker 04: It didn't mention golf course irrigation. [00:13:18] Speaker 04: It's very broad. [00:13:19] Speaker 04: It talks about effluent holding ponds and associated infrastructure as, quote, contributing to the issue. [00:13:29] Speaker 04: Those things contribute both to what you settled in your consent order, but it also obviously contributes to your allegations that are at issue in this case. [00:13:40] Speaker 04: I'm trying to figure out how we could possibly read the 2021 notice letter the way you're asking the court to read it narrowly and not have it [00:13:54] Speaker 04: and still have it have been brought enough to cover the first lawsuit. [00:13:57] Speaker 04: Are you following what I'm asking? [00:13:59] Speaker 03: Yeah, I think so, Your Honor. [00:14:00] Speaker 03: So the Ninth Circuit, in a recent case, Cottonwood v. Edwards said, the Ninth Circuit has never abandoned the requirement there would be a true notice that tells the target precisely what it allegedly did wrong and when. [00:14:14] Speaker 04: So what you're saying, I think, is that we have precedent that says we don't read these notices in a crabbed, really tight fashion. [00:14:25] Speaker 04: But you need us to for you to prevail in this. [00:14:28] Speaker 04: Normally, you would not. [00:14:30] Speaker 04: And so there's a sense in which your argument in this case, if we were to accept it and write an opinion on that, would hurt you, I think, in future cases. [00:14:38] Speaker 04: That's why this case is a little bit [00:14:40] Speaker 03: from our perspective do you understand like I understand your honor and I It would be impossible for us to write a notice saying you guys are Violating the Clean Water Act by spraying trees sewage out of a snow gun when they had never actually done that We could not give them the dates of the violation of when they're spraying on snow guns because they hadn't done that I totally get that and [00:15:03] Speaker 04: But then, so the challenge is that when you settled the case, you wrote a very broad notice. [00:15:09] Speaker 04: And when you settled the case, you said, we're settling for anything known and unknown that relates to those facts that were in our very broad notice. [00:15:18] Speaker 04: And so if there was a mistake made, I suppose, one might say that the mistake was you being willing to enter into such a broad release. [00:15:28] Speaker 04: that was tied to your very broad notice document. [00:15:32] Speaker 03: I understand your question. [00:15:33] Speaker 03: And I guess my best answer is that the claim was not known or unknown. [00:15:38] Speaker 03: There was no claim. [00:15:40] Speaker 02: You're saying it's not based on the factual allegations of your original amended complaint, right? [00:15:45] Speaker 03: There was no known or unknown claim. [00:15:47] Speaker 03: There was no claim. [00:15:48] Speaker 03: You can't assert a claim when they're not doing something. [00:15:53] Speaker 01: The challenge for me is different. [00:15:54] Speaker 01: Maybe this goes to Judge Hamilton's question a moment ago, which is that I think the letter in this case was sent November 4th. [00:16:02] Speaker 01: The consent order was entered November 16th. [00:16:06] Speaker 01: So it seems like you did know about the snow guns and such before that consent order was entered. [00:16:11] Speaker 01: And I'm just wondering why that isn't, I don't know, relevant to our evaluation here. [00:16:15] Speaker 01: I mean, maybe you already gave the answer. [00:16:26] Speaker 03: Judge Morris said that if the activities were different he would hear this second case and We have provided evidence to the court from Montana DEQ saying the activities are significantly different [00:16:43] Speaker 03: We're challenging totally different activities. [00:16:45] Speaker 03: The activity that we're challenging in this case didn't begin until far long after we filed our 60-day notice in Cottwood 1. [00:16:53] Speaker 03: I would like to reserve just a minute for a vote, if possible. [00:16:57] Speaker 04: Yeah, we'll make sure and put a minute. [00:16:58] Speaker 04: Thank you, Your Honor. [00:16:58] Speaker 04: Thank you, Counsel. [00:17:03] Speaker 04: Mr. Goltz? [00:17:16] Speaker 00: Thank you, Judge Van Dyke, and may it please the court. [00:17:20] Speaker 00: So settlements are supposed to end litigation. [00:17:23] Speaker 00: A plaintiff is not supposed to sue, settle without conducting any discovery, and then try again when it later learns additional details about its claim. [00:17:31] Speaker 00: But that's exactly what happened in this case. [00:17:35] Speaker 00: So I'd like to jump right into a few of the questions you just discussed with Mr. Meyer, because I think they raised some really important points about this case. [00:17:44] Speaker 00: And one is the remedy here for Cottonwood based on its supposed discovery of the snow guns, the snow gun sprinklers, after the parties had submitted the proposed consent order to the district court. [00:18:01] Speaker 00: And this actually, Judge Van Dyke, to your question about, well, what was the remedy? [00:18:05] Speaker 00: What was Cottonwood supposed to do? [00:18:07] Speaker 00: Well, it was supposed to go to DEQ and raise its complaint under the consent decree. [00:18:11] Speaker 00: And it actually did that in this case. [00:18:13] Speaker 00: And this isn't a matter of the record, based on the timing of how this case proceeded. [00:18:19] Speaker 00: But DEQ did investigate Spanish Peaks. [00:18:21] Speaker 00: And it did close that investigation, finding that Cottonwood's claims didn't have any merit. [00:18:29] Speaker 04: Remedy here and the force of the consent decree actually was acted upon As to the consent order itself, so let me make sure I understand under your theory of the case if tomorrow You just opened up a two-inch pipeline and was just shooting effluent straight into you know, one of these tributaries Your view is that they could bring a They could come to judge Morris and say listen the consent decrees. [00:18:56] Speaker 04: Well, first of all, they'd have to go to DQ and [00:18:58] Speaker 04: And presumably, DEQ would do something about this. [00:19:01] Speaker 04: But if DEQ did not do something, then they would go to Judge Morris after waiting six months and say, they're violating the consent decree. [00:19:08] Speaker 04: And you would not be able to, under your view, would not be able to say, no, this consent decree was about sprinklers on a golf course, and we're shooting it out a two-inch pipe straight in now. [00:19:20] Speaker 04: Is that correct? [00:19:24] Speaker 00: So under your hypothetical where Spanish Peaks is, you know, pulling water out of the whole 10 pond and directly discharging it into the river intentionally. [00:19:34] Speaker 00: Yes, I agree with that. [00:19:36] Speaker 00: I mean, I think the nucleus of fact here that the consent order is intended to encompass fundamentally is Spanish Peaks irrigation of its property with reclaimed water. [00:19:46] Speaker 00: And if Cottonwood discovered a Clean Water Act violation of a fundamentally different nature, for example, discharging treated effluent intentionally and purposefully straight into the river, that's not an irrigation purpose at all. [00:20:00] Speaker 00: It wouldn't be our position that that is covered by the release. [00:20:03] Speaker 04: So you say that, but the 2021 notice doesn't use the word irrigation at all. [00:20:10] Speaker 04: It just talks about discharging pollutants to navigable waters without a DES permit in violation of the Clean Water Act. [00:20:19] Speaker 04: So why would even the two-inch pipe not be included within [00:20:24] Speaker 04: the language of that notice, and therefore included within the language of the consent decree. [00:20:29] Speaker 00: Sure. [00:20:30] Speaker 00: And so I do think this goes back to the district court's application of the modified claim preclusion test in this case. [00:20:35] Speaker 00: So it's difficult to draw a bright line distinction between the claims that are going to be encompassed and not. [00:20:42] Speaker 00: It's always going to be a very fact-intensive inquiry that requires the district court to look at the language of the settlement and compare it to the allegations that are being brought. [00:20:54] Speaker 00: that if allegations of a two-inch pipe that was sticking right into the river were to arise, the district court would have to look at that factual allegation and understand its relationship to the allegations in the 2021 notice letter. [00:21:10] Speaker 00: And I mean, you know, now that I think about that, I mean, if that pipe were part of the irrigation system, you know, this is part of the allegation in the 2022. [00:21:20] Speaker 04: If you use the word irrigation, but if that pipe were downstream of those ponds, of the, quote, effluent holding ponds and associated infrastructure, that would be the language of 2021. [00:21:33] Speaker 04: Sure. [00:21:35] Speaker 04: But. [00:21:35] Speaker 04: The reason I'm asking this question is, [00:21:40] Speaker 04: Basically, they have to know whether they need to go and try to file a new lawsuit, comply with the CTA, give the 60-day notice, and file a new lawsuit, or whether they need to try to comply with the consent order. [00:21:52] Speaker 04: And so it seems to me, given the broadness of the notice and therefore the broadness of the scope of this consent order, [00:22:02] Speaker 04: they would know that they could go and do the things that they're supposed to do to enforce the consent order. [00:22:09] Speaker 04: Contact the DQ, and then if that doesn't work. [00:22:13] Speaker 04: But you're making it sound like, well, I don't know. [00:22:16] Speaker 04: We don't know. [00:22:16] Speaker 04: We have to ask the judge to decide some really esoteric factual things. [00:22:22] Speaker 04: And that means that they might do what happened here, which is they just pick wrong. [00:22:28] Speaker 04: And then they got to start over. [00:22:29] Speaker 04: And I guess one question is, if they pick wrong, [00:22:31] Speaker 04: What is the consequence of that? [00:22:33] Speaker 04: So in this instance, if he picked wrong, but if next year, let's change the hypothetical a little bit, you just start spraying directly from one of your snow guns into the stream. [00:22:43] Speaker 04: I assume your argument is that he could try to go to DQ, say, hey, they're spraying right out of the snow gun in the stream. [00:22:49] Speaker 04: that violates the consent order, do something about this. [00:22:51] Speaker 04: If something doesn't happen in six months from the EQ, then they could come and try to enforce this consent order. [00:22:56] Speaker 04: Is that clearer? [00:22:57] Speaker 04: I mean, is that crystal clearer? [00:22:58] Speaker 00: Yes. [00:22:59] Speaker 00: Yeah. [00:22:59] Speaker 00: And I appreciate the facts you're proposing, but on the facts of our case, the concern about whether Cottonwood was going to be confused about its potential remedies, that's [00:23:12] Speaker 00: just not how the facts proceeded in this case. [00:23:14] Speaker 04: They obviously were, right? [00:23:15] Speaker 04: I mean, unless you think Mr. Myers did this intentionally, but I think he thought he should bring a new lawsuit instead of just seeking enforcement. [00:23:23] Speaker 04: Why did he do what he did instead of just trying to enforce the consent decree? [00:23:27] Speaker 00: Well, respectfully, Your Honor, I mean, I think Cottonwood's trying to have its cake and eat it too here. [00:23:33] Speaker 00: Somebody is. [00:23:35] Speaker 02: Let me ask you if I could, Mr. Goltz. [00:23:38] Speaker 02: Let me follow up with that. [00:23:41] Speaker 04: I'm trying to figure out incentives here. [00:23:42] Speaker 04: So why do you say, I don't want to impugn Cottonwood, but I'm trying to figure out why is Cottonwood incentivized to do what they did as opposed to enforce it? [00:23:51] Speaker 04: Because normally you think if you've got a consent decree, [00:23:54] Speaker 04: That's pretty powerful. [00:23:55] Speaker 04: You can actually get contempt, et cetera. [00:23:57] Speaker 04: Is it the six month waiting thing? [00:24:01] Speaker 04: Maybe I'll ask him on rebuttal, but why wouldn't he prefer to go to the consent decree route and argue that the consent decree is really broad? [00:24:09] Speaker 04: The consent order is really broad. [00:24:11] Speaker 04: Rather than go this route, did he win? [00:24:12] Speaker 04: That's one thing I'm a little confused about here. [00:24:14] Speaker 00: Sure. [00:24:14] Speaker 00: Well, in this case, for example, Cottonwood had discovered the snow gun sprinklers in mid-September of 2022. [00:24:23] Speaker 00: So going to the court at this point about this issue had the potential, I think, to frustrate or potentially blow up the settlement. [00:24:32] Speaker 00: And I think Cottonwood made an intentional decision not to do that. [00:24:36] Speaker 00: It you know as was it's right it brought a broad case alleging allegations related to a large system and it entered a broad release that reflected those allegations and you know it wanted to settle and reap the benefits of a settlement including attorneys fees including civil penalties in the form of a supplemental environmental project and then try again once I got more information so your point just to be clear is that that [00:25:01] Speaker 04: They maybe didn't bring this as a violation of the country intentionally because of fear that it would actually blow up the consent order that was in front of Judge Morris at that time to be signed. [00:25:13] Speaker 04: And then would they, in theory, get a settlement in this case that's different and get additional damages? [00:25:22] Speaker 00: I think the goal would be to bring another lawsuit and say, this is a totally separate thing. [00:25:27] Speaker 00: This is a totally separate Clean Water Act claim. [00:25:29] Speaker 00: We settled that. [00:25:30] Speaker 00: We got our fees. [00:25:31] Speaker 00: We got our penalty. [00:25:33] Speaker 00: We've got a whole new case now. [00:25:34] Speaker 00: We can take a whole new case to trial and get totally different penalties, another attorney's fee award for litigating what is fundamentally the same conduct related to the same irrigation system. [00:25:44] Speaker 02: I apologize. [00:25:45] Speaker 02: Go ahead. [00:25:45] Speaker 02: If I could follow up on some of this. [00:25:51] Speaker 02: I'm trying to get my head into the Clean Water Act here with the notice requirements because this is so different and the doctrines as applied to this settlement and consent order are so different from ordinary civil litigation. [00:26:10] Speaker 02: has this broad language, all other claims known and unknown that could be asserted based on the factual allegations made in the amended complaint and 60-day notice letter. [00:26:20] Speaker 02: So that narrows things down considerably. [00:26:23] Speaker 02: As I understand this, as a matter of fact, please correct me if I'm wrong, the second lawsuit and notice are alleging conduct on different golf courses. [00:26:38] Speaker 02: Is that right? [00:26:39] Speaker 00: Actually, respectfully, Your Honor, I don't think that's quite right. [00:26:44] Speaker 00: The irrigation at issue in the second case is occurring on a forested area that's next to ski slopes that are right next to the... Yeah, okay. [00:26:55] Speaker 02: Go ahead. [00:26:55] Speaker 00: that are right next to the 18-hole golf course that Cottonwood ultimately moved its focus into on the first case. [00:27:02] Speaker 02: Do the ski slopes drain into the same smallest tributary as was alleged in the first notice? [00:27:18] Speaker 02: I thought it was agreed that they went into separate streams. [00:27:21] Speaker 00: I'm not sure it's agreed as a matter of the record. [00:27:27] Speaker 00: This is geography. [00:27:30] Speaker 02: I kept looking for maps. [00:27:31] Speaker 00: Well, for a little bit of context, in the 2021 notice letter, Cottonwood [00:27:38] Speaker 00: alleged this violation related to our irrigation system, and it provided sampling data in the Middle Fork Gallatin River above and below a tributary that entered the river. [00:27:48] Speaker 00: So a single tributary that enters the river was the basis for its claims in that first case. [00:27:54] Speaker 00: And that tributary, once it moves away from the river, as most tributaries do, it has lots of little branches and things that run at certain times of year or don't and different things like that. [00:28:05] Speaker 00: But it's all fundamentally the same tributary that's entering the Middle Fork from Spanish Peaks property. [00:28:10] Speaker 00: And that was the gist. [00:28:12] Speaker 02: So all Spanish Peaks property feeds into the same unnamed tributary? [00:28:17] Speaker 00: The all of the I don't even I couldn't even put a number on it, you know dozens or Branches of this unnamed tributary system that cross the property Ultimately converge into a single channel that enters the middle fork Okay, I'll mr. Meyer I'll be interested in your perspective on that in rebuttal See [00:28:43] Speaker 02: I guess if I could ask you to hypothesize a little bit more, Mr. Colts. [00:28:48] Speaker 02: Suppose there had been no settlement in Cottonwood 1 here, and you were litigating ahead. [00:28:54] Speaker 02: In September of 2022, plaintiffs hear about these snow guns. [00:29:00] Speaker 02: They seek to amend their complaint. [00:29:02] Speaker 02: Can they do that? [00:29:03] Speaker 00: Absolutely. [00:29:05] Speaker 00: And I guarantee you had this case proceeded in that manner, that's exactly what would have happened. [00:29:11] Speaker 02: You wouldn't have had a valid objection based on the scope of the first 60-day notice? [00:29:17] Speaker 00: The original 2021 notice letter on its face absolutely included the snow gun sprinklers. [00:29:23] Speaker 02: What language do you rely on in that? [00:29:25] Speaker 00: Sure, so that's in the record at I believe it's SER 142 and that is Cottonwood's 2021 notice letter referring to Spanish Peaks effluent holding ponds and associated infrastructure as contributing to the nitrogen discharges to the middle fork that Cottonwood alleged in that case. [00:29:45] Speaker 00: And that language associated infrastructure is absolutely key here because what Cottonwood was targeting and what the district court identified as the core nucleus of fact here [00:29:55] Speaker 00: was nitrogen discharges from Spanish Peaks reclaimed water irrigation system. [00:30:00] Speaker 00: And just like the sprinklers that are located on the golf course or on the other areas next to the golf course, the snow gun sprinklers, which by the way, Cottonwood actually refers to as sprinklers in its amended complaint in this case, draw the same reclaimed water from the same pond and use it to irrigate property that's right next to the golf course. [00:30:21] Speaker 00: And so, you know, and to your question earlier about the geography here, I would just direct the court's attention to two maps that are in the record. [00:30:30] Speaker 00: One is at SER163, and the other is at SER250. [00:30:34] Speaker 00: And that shows the scope of the irrigated footprint of Spanish Peaks property. [00:30:39] Speaker 00: And all of those parcels, I mean, they interlock like puzzle pieces. [00:30:42] Speaker 00: They're right next to each other, and they're all operated in conjunction. [00:30:46] Speaker 00: So we're not talking about associated infrastructure of some totally different type of geography. [00:30:53] Speaker 00: It's all the same stuff. [00:30:57] Speaker 00: I see I'm over time here, Your Honors. [00:30:59] Speaker 00: In closing, the district court carefully looked at these facts and determined that Cottonwood's lawsuit concerns the irrigation of the same property with the same reclaimed water stored in the same pond at issue in the consent order that the court signed in the last lawsuit. [00:31:13] Speaker 00: Cottonwood had its day in court, and it had time, and it had information to pursue its claim. [00:31:18] Speaker 00: So it doesn't get to pursue that claim again. [00:31:20] Speaker 00: The court should affirm. [00:31:21] Speaker 04: Before you sit down, let me make sure my colleagues don't have any further questions. [00:31:25] Speaker 04: OK, we'll hear again from Mr. Meyer, please. [00:31:27] Speaker 00: Thank you. [00:31:42] Speaker 03: Your Honor, you asked about the different streams. [00:31:46] Speaker 03: If they both discharge into the smallest stream, and they do not, they discharge into totally different streams. [00:31:51] Speaker 03: So in Cottonwood 1, we said there is a tributary that seems to originate on the golf course. [00:31:57] Speaker 03: We believe you're polluting that. [00:31:58] Speaker 03: In this case, we said you're irrigating a stream that's totally different from the one starting on the golf course. [00:32:04] Speaker 03: We gave the GPS locations. [00:32:06] Speaker 03: We provided a declaration. [00:32:08] Speaker 04: So I was looking at the complaint even. [00:32:11] Speaker 04: It seems like the notices, would you agree that the notices has really broad language, doesn't even talk about irrigation? [00:32:16] Speaker 04: And the complaint seems to kind of narrow down a little bit, the amended complaint. [00:32:19] Speaker 04: I'm talking about the first amendment, not the one for this case, but the one involved. [00:32:23] Speaker 04: But even that amended complaint talks about the treated sewage pond and associated equipment as point sources. [00:32:29] Speaker 04: It talks about the golf course and related equipment, including but not limited to sprinklers and drains. [00:32:35] Speaker 04: And then it talks about a stream that travels through the Spanish Peaks golf course. [00:32:41] Speaker 04: And so it seems like these are very broad. [00:32:46] Speaker 04: I mean, I don't know that I see the word tributary in here at all. [00:32:51] Speaker 04: And so it seems like they have very broad allegations even in the complaint. [00:32:58] Speaker 04: And so once again, it feels like you're sort of discussing those like everybody should have known that those would be narrowly mean just this one single tributary. [00:33:06] Speaker 04: which we're both very familiar with what it's like up at Big Sky. [00:33:08] Speaker 04: I mean, literally, it's stuff right. [00:33:10] Speaker 04: So of course, any one acre of land is going to have multiple tributaries on it if you count it as divots in the ground where water could run down and then meet up and eventually flow into some fork of the gallatin. [00:33:24] Speaker 04: So I'm trying to see how you would know that from this complaint, that you were narrowly focused on just one tributary. [00:33:34] Speaker 03: Your Honor, again, the notice says or the complaint talks about a tributary that appears to originate on the golf course. [00:33:42] Speaker 03: And then we entered a declaration from a Cotwood member or employee saying, I accompany the Spanish Peaks member to the site of the spring that was described in order to determine if the ledge spring was occurring on the golf course and or polluting the same unknown tributary [00:33:59] Speaker 03: of the Gallatin River that was described in Cottonwood 1. [00:34:02] Speaker 03: The site I visited, and they give the GPS coordinates, was not located on the golf course. [00:34:07] Speaker 03: And so a fundamental tenet of the Clean Water Act 16 notice requirement is to give the exact location of where this pollution is occurring. [00:34:15] Speaker 03: And we did not ever say that you're polluting this area. [00:34:19] Speaker 03: We never said you're polluting this stream, because they were not at the time. [00:34:28] Speaker 03: I heard the words, cake and eat it too, and it raised my hackles. [00:34:33] Speaker 03: It really raised my hackles because [00:34:36] Speaker 03: We're a community-based organization. [00:34:39] Speaker 03: We want clean water. [00:34:40] Speaker 03: We have members who fish the Galveston River. [00:34:42] Speaker 03: We all want clean water. [00:34:44] Speaker 03: And Spanish Peak says, well, we got busted polluting because of the leaking holding pond, so we settled that. [00:34:52] Speaker 03: But now we can keep spring treated sewage out of snow guns away from that area as much as we want and keep polluting the river. [00:34:58] Speaker 04: Can I ask the questions I was asking? [00:34:59] Speaker 04: Because that would be a problem, right? [00:35:01] Speaker 04: If basically there was some interpretation that would allow them to just [00:35:06] Speaker 04: violate the Clean Water Act and not have some remedy. [00:35:09] Speaker 04: But it seems like either you can bring this lawsuit, which Judge Morris said you can't because it's encompassed, or you could bring something under the original lawsuit. [00:35:18] Speaker 04: And so you're not without a remedy under Judge Morris's interpretation, I don't think. [00:35:23] Speaker 04: But tell me if I'm wrong about that. [00:35:25] Speaker 03: You asked the defendants if we would be able to bring this, if we would be able to amend the complaint and bring this in the first case. [00:35:34] Speaker 04: No, you can't do that now. [00:35:35] Speaker 04: What I'm saying is I think that was a question about if before the consent decree was entered, as I understand it. [00:35:42] Speaker 04: What I'm saying is you have a consent order. [00:35:45] Speaker 04: And so if this is included within the scope of that consent order, as Judge Morris concluded it was, then you're not without a remedy. [00:35:53] Speaker 04: You can just come in and ask for DEQ to enforce. [00:35:58] Speaker 04: And if it won't do it, then you can go before Judge Morris and say they're violating the consent order. [00:36:03] Speaker 04: I just want to make sure that I'm right in thinking that. [00:36:08] Speaker 04: If I'm not, then I think you have a really strong argument. [00:36:11] Speaker 03: I don't read the notice letter or the amended complaint to talk about spring sewage out of a snow gun at all. [00:36:22] Speaker 03: And so the consent decree doesn't talk about spring. [00:36:26] Speaker 04: So this is important. [00:36:27] Speaker 04: I think very carefully before you answer my question, because this will be used against you in future litigation. [00:36:33] Speaker 04: If Judge Morris's decision is upheld and tomorrow or right after it's upheld, they start spraying water right out of a snow gun directly into some stream, right? [00:36:46] Speaker 04: Then do you think you will be able to go and try to get that stopped by seeking to enforce the original consent order? [00:36:58] Speaker 03: It depends on where they're spraying, what the activity is. [00:37:02] Speaker 03: If it's a significantly different activity, we can file a new case. [00:37:05] Speaker 03: That's what Judge Moore said. [00:37:06] Speaker 03: You can bring the second case if the activities are significantly different. [00:37:10] Speaker 03: But I've decided they're not significantly different. [00:37:12] Speaker 03: And that's why I'm here before you today saying, hey, the Montana DEQ has said these activities are significantly different. [00:37:18] Speaker 03: I mean, it says right there, the DEQ said in print, these activities are significantly different. [00:37:23] Speaker 03: So we can bring a second case. [00:37:25] Speaker 02: All right, well, let me make sure. [00:37:29] Speaker 03: Is that imprinted in the NMPs? [00:37:48] Speaker 03: It says that on ER 156. [00:37:51] Speaker 04: Thank you. [00:37:54] Speaker 04: Is there any other questions from my colleagues? [00:37:56] Speaker 04: All right, well thank you, counsel. [00:37:57] Speaker 04: Thank you to both sides for your argument in this important case. [00:38:00] Speaker 04: And this case will be submitted as of today.