United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-2613

___________

Hempstead County Hunting Club, Inc. * 

* 

Appellant, * 

* Appeal from the United States

v. * District Court for the 

* Western District of Arkansas.

Southwestern Electric Power * 

Company, * [PUBLISHED]

*

Appellee. *

___________

Submitted: March 05, 2009

Filed: March 12, 2009

___________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.

___________

PER CURIAM.

Hempstead County Hunting Club (HCHC) filed a citizen's suit against

Southwestern Electric Power Company (SWEPCO) pursuant to the Clean Air Act

(CAA), 42 U.S.C. §§ 7401–7671, seeking a preliminary and permanent injunction to

prevent SWEPCO from commencing construction, constructing, or continuing

construction of its 600-megawatt pulverized coal-fired power plant in Hempstead

County, Arkansas, without first obtaining a Prevention of Significant Deterioration
1

Although not relevant to this interlocutory appeal, HCHC also sought

declaratory relief concerning SWEPCO's violations of the CAA, along with civil

penalties for those violations. 

2

The Honorable Harry F. Barnes, United States District Judge for the Western

District of Arkansas. 

-2-

(PSD) permit as required by the CAA.1

 On the same day that it filed its complaint,

HCHC filed a motion for temporary restraining order and preliminary injunction. The

district court2

 denied the motion, and HCHC filed an interlocutory appeal, pursuant

to 28 U.S.C. § 1292(a)(1), arguing that the district court abused its discretion in

denying the preliminary injunction because "SWEPCO has proposed to construct and

is constructing its Hempstead Plant, although it does not have a CAA permit."

SWEPCO has filed a motion to dismiss this appeal, arguing that the appeal is

moot because it has now received the CAA permit and has lawfully begun

construction at the site, rendering HCHC's appeal of the denial of its motion for a

preliminary injunction to halt preconstruction activities moot. We agree and now

dismiss the appeal as moot. 

I. Background

HCHC is an Arkansas nonprofit corporation incorporated for recreational

purposes and to preserve the club's over 4000 acres of real property in Hempstead

County, Arkansas. HCHC's property includes a 2315 acre marshy body of water

known as Grassy Lake, which forms the floor of an ancient Bald Cypress forest.

Grassy Lake is home to a wide variety of wildlife, including alligators and

approximately 128 bird species. The members of HCHC partake in duck, deer, and

turkey hunting, bird watching, alligator spotting, fishing, and various other activities

involving local and migratory wildlife. 
-3-

SWEPCO is a general electric utility business that generates, transmits,

distributes, and sells electric power and energy to customers in its service area. It is

a public utility within the meaning of Arkansas Code Annotated § 23-1-101, meaning

that it is subject to the jurisdiction of the Arkansas Public Service Commission ("the

Commission"). 

On December 8, 2006, SWEPCO filed with the Commission an Application for

a Certificate of Environmental Compatibility and Public Need ("Certificate") to

construct a 600-megawatt pulverized coal-fired power plant ("Turk Plant") in

Hempstead County, Arkansas. In January 2007, HCHC and others owning property

adjacent to or in the general proximity of SWEPCO's proposed plant site were allowed

to intervene in the proceeding before the Commission. On November 21, 2007, after

receiving public and agency comments and conducting a public hearing on the

application, the Commission granted SWEPCO a Certificate in connection with the

Turk Plant. HCHC has appealed the Commission's decision to grant the Certificate to

the Arkansas Court of Appeals.

The Certificate issued to SWEPCO is subject to various conditions, including

the condition that SWEPCO obtain and comply with all necessary permits required

by the United States Environmental Protection Agency (EPA) and the Arkansas

Department of Environmental Quality (ADEQ). At the time that the instant litigation

was commenced, SWEPCO was in the process of obtaining a PSD permit, as required

by the CAA, 42 U.S.C. § 7475(a), and EPA and ADEQ regulations. On June 12, 2007,

ADEQ issued a draft PSD permit for the Turk Plant. Thereafter, HCHC submitted

written comments to ADEQ and participated in a public hearing regarding the draft

permit.

In May 2007, SWEPCO began site preparation work at the proposed site of the

Turk Plant. This work included the following: site clearing; grading and site leveling;

installing a detention pond for surface water runoff control; installing construction
-4-

trailers, office trailers, break trailers, and porta-potties; installing parking lots, storage

and laydown areas for construction equipment and construction materials; installing

utilities (telephone lines, computer lines, electrical, sanitary and potable water) to

construction facilities; ordering, mobilizing and storing construction equipment on

site; ordering, mobilizing and storing construction materials on site; installing access

roads to and on site; and installing temporary security fencing on site. 

On May 9, 2008, HCHC filed this citizen's suit against SWEPCO pursuant to

42 U.S.C. § 7604(a)(3). In its complaint, HCHC alleged that SWEPCO had begun

actual construction of the proposed Turk Plant without first obtaining a valid PSD

permit as required by the CAA. HCHC asked the district court to enjoin SWEPCO

from further construction on the proposed plant site until such time as a PSD permit

had been obtained from the ADEQ. In response, SWEPCO asserted that it had not

begun actual construction of the Turk Plant. Rather, it contended that it was engaging

in site preparatory work that is allowed by EPA and ADEQ regulations, along with

the EPA's guidance memorandums interpreting the PSD requirements.

After conducting a hearing on HCHC's motion for a preliminary injunction, the

district court issued an order denying the preliminary injunction on July 10, 2008. At

the time of the district court's judgment, the ADEQ had not yet issued a final permit

to SWEPCO. HCHC timely filed a Notice of Appeal on July 17, 2008.

On November 5, 2008, the ADEQ issued SWEPCO the PSD permit. Acting

pursuant to the EPA's approval of its state PSD program, the ADEQ has now

permitted SWEPCO to construct and operate the Turk Plant. But in early December

2008, HCHC and others filed requests for an adjudicatory hearing on the Turk Plant

PSD permit. All challenges were consolidated into a proceeding before an

administrative law judge (ALJ) with the Arkansas Pollution and Ecology Commission

(APC&EC). The ALJ has not yet held a hearing on the merits of the permit

challenges. 
-5-

Under Arkansas Code Annotated § 8-4-205(c)(6), the issuance, modification,

or revocation of a permit by the ADEQ that is subject to an adjudicatory appeal is

automatically stayed. But this provision permits the APC&EC to grant an application

by a party to modify or terminate the otherwise automatic stay "under appropriate

circumstances to avoid substantial prejudice to any party." Ark. Code Ann.

§ 8-4-205(c)(6)(C). SWEPCO invoked this provision, filing a motion for partial relief

from automatic stay to avoid substantial job losses and to allow SWEPCO to continue

constructing, but not operating, the facility. HCHC opposed SWEPCO's request. After

a hearing on December 5, 2008, the APC&EC granted SWEPCO's motion and

modified the automatic stay to the extent that it would have otherwise precluded

SWEPCO from proceeding with the construction activities at the site. Construction

of the Turk Plant is now underway in Hempstead County, Arkansas. 

II. Discussion

In its motion to dismiss the appeal as moot, SWEPCO asserts that it has now

received the PSD permit under the CAA and has lawfully begun construction at the

site, rendering moot HCHC's appeal of the denial of its motion for a preliminary

injunction to halt preconstruction activities. 

In response, HCHC argues that the appeal should not be dismissed for two

reasons. First, HCHC maintains that CAA § 304(a)(3) authorizes a citizen's suit when

a person proposes to construct or constructs a CAA facility without a valid permit

under the CAA. According to HCHC, § 304(a)(3) claims are viable even in relation

to already-issued permits if the permits are the subject of administrative or legal

challenges testing their validity. Thus, HCHC asserts that a live case and controversy

exists because SWEPCO's permit is the subject of an administrative and legal

challenge testing whether SWEPCO has proposed to construct and is constructing the

Hempstead Plant without a valid permit.
-6-

Second, HCHC argues that, in interlocutory appeals regarding requests for

preliminary injunctive relief, well-established doctrine encourages appellate courts to

resolve the underlying merits of a case if legal and factual issues were sufficiently

"illuminated" in the proceedings before a district court and if doing so serves judicial

economy. HCHC maintains that the relevant legal and factual issues were sufficiently

and exhaustively "illuminated" and presented in the district court and that the parties

will incur undue expense and burden if this matter is remanded. HCHC thus seeks to

avoid reargument of these substantive issues to the district court on remand. As a

result, HCHC contends that, even assuming there is no longer a case or controversy

regarding HCHC's request for preliminary relief, the court should resolve the

underlying merits of HCHC's claim before remanding the matter to the district court.

"Federal courts are courts of limited jurisdiction and can only hear actual 'cases

or controversies' as defined under Article III of the Constitution. The 'case or

controversy' requirement applies at all stages of review." Neighborhood Transp.

Network, Inc. v. Pena, 42 F.3d 1169, 1172 (8th Cir. 1994). A federal court no longer

has jurisdiction to hear a case on appeal when it "no longer presents an actual, ongoing

case or controversy." Id. (holding that complaint seeking to enjoin highway

construction project pending completion of environmental impact statement for larger

project no longer presented any live controversy after highway project was completed

and, thus, was moot and provided no basis for federal court jurisdiction); see also

Agrigenetics, Inc. v. Rose, 62 F.3d 268, 270 (8th Cir. 1995) (holding that question of

whether former employer was entitled to preliminary injunction ordering former

employees to comply with noncompetition provisions of employment agreements was

moot, since the noncompetition restriction expired by time of appeal). 

"A claim for injunctive relief may become moot if challenged conduct

permanently ceases." Comfort Lake Ass'n, Inc. v. Dresel Contracting, Inc., 138 F.3d

351, 354 (8th Cir. 1998). "When the alleged violation underlying a Clean Water Act

[CWA] citizen suit ceases while the suit is pending, longstanding principles of
-7-

mootness prevent the maintenance of suit when there is no reasonable expectation that

the wrong will be repeated." Id. (internal quotations, alterations, and citation omitted).

As with the CWA, these same principles apply to a citizen's suit pursuant to the CAA.

See Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477–78 (1990) ("This

case-or-controversy requirement subsists through all stages of federal judicial

proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not

enough that a dispute was very much alive when suit was filed, or when review was

obtained in the Court of Appeals. The parties must continue to have a personal stake

in the outcome of the lawsuit.") (internal quotations and citations omitted).

We have previously addressed the issue of mootness in relation to a CWA

citizen's suit. In Mississippi River Revival, Inc. v. City of Minneapolis, 319 F.3d 1013,

1014 (8th Cir. 2003), three environmental organizations brought citizens' suits against

the Cities of Minneapolis and St. Paul (collectively "Cities"), "alleging that the Cities

were violating the [CWA] by discharging storm waters through their storm sewer

systems without required [National Pollutant Discharge Elimination System

(NPDES)] permits." The district court had dismissed the complaints as moot after the

Minnesota Pollution Control Agency (MPCA) issued storm water permits. Id. On

appeal, we pointed out that the CWA violations alleged in the environmental

organizations' complaints "were the Cities' continuing discharge of storm waters

without NPDES Storm water permits." Id. at 1015 (emphasis added). Relevant to the

present appeal, we also noted that "[b]ecause permits have now issued, plaintiffs

concede that their initial claims for injunctive and declaratory relief are moot." Id.

(emphasis added). Thus, the only issue before the court was whether the

environmental organizations' claims for civil penalties were moot. Id. We ultimately

held that the claims for civil penalties were mooted by the MPCA's issuance of

NPDES permits. Id. at 1017–18 (holding that the remedies available to the

environmental organizations were limited to those that would redress ongoing and

future injury, and there was no evidence that discharges without permit would

resume).
-8-

Similarly, this court has held that a lake association's CWA claim for injunctive

relief against contracting companies became moot when the companies' NPDES

permit terminated and the MPCA approved a stipulated agreement requiring the

companies to pay penalties for past permit violations. Comfort Lake, 138 F.3d at 355.

In Comfort Lake, the MPCA issued the companies an NPDES permit, which "required

erosion and sediment control facilities because of run-off to pollutants from the

construction site threatened the water quality of [a nearby lake]." Id. at 353. After

investigating complaints, the MPCA sent the companies a warning letter, noting

permit violations. Id. The companies responded, asserting that they had properly

addressed the problems. Id. Thereafter, a lake association issued a notice of intent to

sue the companies over the same NPDES permit violations noted in the MPCA's

warning letter. Id. at 353–54. The association then filed a citizen's suit. Id. at 354. Two

months before the lake association filed suit, the MPCA again "inspected the

construction site, found continuing violations, and issued a Notice of Violation to [the

companies]." Id. Ultimately, the companies corrected the deficiencies, and the MPCA

issued a memorandum stating that the violations had been corrected. Id. The

companies completed construction and applied for termination of the NPDES permit,

which the MPCA terminated. Id. The MPCA also issued a stipulated agreement

requiring the companies to pay civil penalties for past violations of the permit; the

agreement recited that it covered all alleged permit violations that occurred at the

construction site and that such violations had been satisfactorily resolved. Id.

Thereafter, the companies then moved for summary judgment in the lake association's

citizen's suit, which the district court granted. Id.

On appeal, the issue before this court was whether the lake association's claim

for injunctive relief was moot. Id. The lake association argued, inter alia, "that permit

termination did not moot its claim for injunctive relief because [the companies]

constructed three settling ponds that are discharging pollutants into [the lake] without

an NPDES permit, and because [the companies] are likely to violate their umbrella
-9-

NPDES permit at other construction sites." Id. at 355. This court rejected the lake

association's argument, stating:

The answer to this contention is that these issues are not proper subjects

of the lawsuit because Comfort Lake's notice of intent to sue referenced

only the alleged permit violations discussed in MPCA's December 20,

1994, warning letter, violations relating to the Wal-Mart store

construction. A citizen suit is limited to violations that are closely related

to and of the same type as the violations specified in the notice of intent

to sue.

Id. (emphasis added); see also Envtl. Conservation Org. v. City of Dallas, 529 F.3d

519, 526, 529–31 (5th Cir. 2008) (recognizing that "developments subsequent to the

filing of a citizen suit may moot the citizen's case" and holding that environmental

organization's claims for injunctive relief in CWA citizen enforcement action alleging

that City of Dallas failed to develop and implement effective program to monitor and

reduce its discharge of storm water pollutants into river were mooted by resolution of

EPA's enforcement action). 

HCHC heavily relies on Sierra Club v. Franklin County Power of Illinois, 546

F.3d 918 (7th Cir. 2008), in support of its argument that a live case and controversy

still exists. In Sierra Club, a power company wanted to build a coal power plant. Id.

at 922. Because the plant would emit a large amount of air pollution, the company had

to first obtain a PSD permit from the Illinois Environmental Protection Agency

(IEPA). Id. The Sierra Club sought to enjoin the company from building the power

plant by bringing a citizen's suit under the CAA, alleging that the company's 2001

PSD permit had expired because the company had neglected to "commence

construction" of the plant within an 18-month time frame required under the permit.

Id. It also claimed that the permit was invalid under EPA regulations because the

company had discontinued construction of the plant for over 18 months. Id. The

district court permanently enjoined the company from building the plant until it
-10-

obtained a new PSD permit, and the company appealed, asserting that the permit

remained valid. Id.

On appeal, the company argued, inter alia, that Sierra Club's claim was not ripe

and permissible under 42 U.S.C. § 7604(a)(3). Id. at 928. Section 7604(a)(3) permits

a person to commence a civil action "against any person . . . who is alleged . . . to be

in violation of any condition of [a PSD] permit." Id. The court rejected the company's

argument that the Sierra Club must wait until the company actually began constructing

the plant before the Sierra Club could allege that the company had violated its

preconstruction PSD permit because "it does not logically follow . . . that a

preconstruction permit violation cannot occur until actual construction begins." Id.

The company also argued that § 7604(a)(3) only allows suits against entities

that are "without a permit," meaning that the Sierra Club could not bring the suit

because the company received a permit—"albeit one that may no longer be valid." Id.

The company asserted that the matter was not ripe for adjudication until the IEPA

issued a final decision on whether the company's 2001 permit had expired. Id. The

court rejected this argument, finding that it ignored the explicit language of §

7604(a)(3) because the company is "a person alleged to be in violation of a PSD

permit." Id. "Moreover, even if having an expired permit were akin to having no

permit at all, [the court found that the] Sierra Club would still be able to sue under

section 7604(a)(3), which enables citizens to sue entities like the Company that

'propose[ ] to construct . . . new or modified major emitting facilit[ies] without a

[PSD] permit.'" Id. at 928–29 (quoting 42 U.S.C. § 7604(a)(3)) (emphasis added in

Sierra Club). The court concluded that it was "irrelevant that the IEPA has yet to

finish deciding whether the Company's permit is invalid because that's not what

section 7604(a)(3) requires." Id. at 929. According to the court, a district court has

jurisdiction over a citizen's suit that challenges "the validity of a permit even though

[the relevant agency] ha[s] not yet acted to revoke the permit." Id. The court rejected

a "categorical rule requiring a plaintiff to wait until the relevant agency finishes
-11-

deciding whether a permit is valid (at least when, as here a suit is not asking us to

review an agency action)" and found that the "Sierra Club ha[d] properly brought this

suit under [§ 7604(a)(3)]." Id. 

Here, HCHC's request for preliminary injunctive relief—the only issue in this

interlocutory appeal—is based on its argument that "SWEPCO has proposed to

construct and is constructing its Hempstead Plant, although it does not have a CAA

permit." In support of its argument, HCHC cites § 7604(a)(3), which authorizes a

citizen's suit when "any person who proposes to construct or constructs any [CAA]

facility without the required permit." Thus, HCHC's allegation that SWEPCO is acting

illegally rests on its argument that SWEPCO is engaging in construction activities

without a permit. Therefore, the present case is comparable to Mississippi River

Revival in which, after the MPCA issued storm permits, the district court dismissed

the environmental organizations' complaints as moot, as the complaints were based

on the allegation that the Cities were discharging storm waters without required

permits. 

Likewise, as in Comfort Lake, HCHC's argument that the appeal is not moot

because it may challenge an issued permit as "invalid" is "not [the] proper subject[]

of the lawsuit" because HCHC's complaint referenced only SWEPCO's construction

of the Turk Plant without first obtaining a permit. Comfort Lake, 138 F.3d at 355. The

district court's consideration of injunctive relief extended only to preconstruction

activities conducted before the PSD permit was issued, and its consideration of the

merits extended only to measuring HCHC's likelihood of success on its underlying

claim. Because the ADEQ had not issued a permit at the time that the district court

issued its decision, no question regarding the validity of the subsequently issued Turk

Plant PSD permit was properly before the district court. This fact distinguishes the

present case from Sierra Club. In that case, the issue before the district court was

always whether a previously issued permit was "valid." Here, no permit was even
-12-

issued at the time that HCHC brought its citizen's suit, so HCHC could not have

alleged that an issued permit was "invalid." 

III. Conclusion

Accordingly, we grant the appellee's motion to dismiss the instant appeal as

moot.

______________________________