## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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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.

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PER CURIAM.
Hempstead County Hunting Club (HCHC) filed a citizen's suit against Southwestern Electric Power Company (SW EPCO) pursuant to the Clean Air Act (CAA), 42 U.S.C. §§ 7401–7671, seeking a pre liminary and permanent injunction to prevent SWEPCO from commencing construction, constructi ng, or continuing construction of its 600-megawatt pulverizedcoal-fired power plant in Hempstead County, Arkansas, without first obtaining a Prevention of Significant Deterioration1 Although not relevant to this inte rlocutory appeal, HCHC also sought declaratory relief concerning SWEPCO's vi olations of the CAA, along with civil penalties for those violations.

2 The Honorable Harry F. Barnes, United St ates 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 restrain ing order and preliminary injunction. The district court 2denied the motion, and HCHC file d 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 th is appeal, arguing that the appeal is moot because it has now received th e 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 corpor ation 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 fl oor of an ancient Bald Cypress forest. Grassy Lake is home to a wide variety of wildlife, including alligators and approximately 128 bird species. The member s of HCHC partake in duck, deer, and turkey hunting, bird watching, alligator s potting, 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 w ith the Commission an Application for a Certificate of Environmental Compatib ility 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 th e 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 app ealed 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 comp ly with all necessary permits required by the United States Environmental Prot ection Agency (EPA) and the Arkansas Department of Environmental Quality (ADE Q). At the time that the instant litigation was commenced, SWEPCO was in the proce ss 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 Tu rk 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 wate r runoff control; installing construction-4- trailers, office trailers, break trailers, and porta-potties; installing parking lots, storage and laydown areas for construction equipmen t and construction materials; installing utilities (telephone lines, computer lines, el ectrical, sanitary and potable water) to construction facilities; ordering, mobilizi ng 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 citi zen'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 aske d the district court to enjoin SWEPCO from further construction on the proposed pl ant site until such time as a PSD permit had been obtained from the ADEQ. In res ponse, 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 moti on for a preliminary injunction, the district court issued an order denying th e 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 issu ed SWEPCO the PSD permit. Acting pursuant to the EPA's approval of its state PSD program, the ADEQ has now permitted SWEPCO to construc t 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 pr ovision, filing a motion for partial relief from automatic stay to avoid substantial j ob 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 AP C&EC granted SWEPCO's motion and modified the automatic stay to the exte nt that it would have otherwise precluded SWEPCO from proceeding with the construc tion 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 valid ity. Thus, HCHC asserts thata live case and controversy exists because SWEPCO's permit is the subject of an administrative and legal challenge testing whether SWEPCO has propos ed to construct and is constructing the Hempstead Plant without a valid permit.-6- Second, HCHC argues that, in interloc utory appeals regarding requests for preliminary injunctive relief, well-establishe d doctrine encourages appellate courts to resolve the underlying merits of a case if le gal and factual issues were sufficiently "illuminated" in the proceedings before a di strict 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 bur den 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 assumi ng 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 ju risdiction and can only hear actual 'cases or controversies' as defined under Artic le III of the Constitution. The 'case or controversy' requirement applie s 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 wh en it "no longer presents an actual, ongoing case or controversy." Id . (holding that complaint seeking to enjoin highway construction project pending completion of e nvironmental impact statement for larger project no longer presented any live controversy after highway project was completed and, thus, was moot and provided no ba sis for federal c ourt 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 pr ovisions 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 allege d 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 wh en 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 wh en suit was filed, or when review was obtained in the Court of Appeals. The partie s must continue to have a personal stake in the outcome of the lawsuit.") (internal quotations and citations omitted).

We have previously addressed the i ssue 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 Po llutant Discharge Elimination System (NPDES)] permits." The district court had di smissed the complaints as moot after the Minnesota Pollution Control Agency (M PCA) issued storm water permits. Id . On appeal, we pointed out that the CWA violations alleged in the environmental organizations' complaints "were the Citi es' 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 inj unctive and declaratory relief are moot." Id

. (emphasis added). Thus, the only issu e before the court was whether the environmental organizations' claims for civil penalties were moot. Id . We ultimately held that the claims for civil penaltie s 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 b ecame moot when the companies' NPDES permit terminated and the MPCA approve d a stipulated agreement requiring the companies to pay penalties fo r 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 b ecause 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 sentthe companies a warning letter, noting permit violations. Id . The companies responded, asse rting that they had properly addressed the problems. Id . Thereafter, a lake associati on 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 th en filed a citizen's suit. Id. at 354. Two months before the lake a ssociation 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 correct ed the deficiencies, and the MPCA issued a memorandum stating that the violations had been corrected. Id . The companies completed construction and app lied for termination of the NPDES permit, which the MPCA terminated. Id . The MPCA also issued a stipulated agreement requiring the companies to pay civil penaltie s for past violations of the permit; the agreement recited that it covered all allege d permit violations that occurred at the construction site and that such violations had been satisfactorily resolved. Id

. Thereafter, the companies then moved for su mmary 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 argue d, inter alia, "that permit termination did not moot its claim for injunctive relief because [the companies] constructed three settling ponds that are disc harging pollutants into [the lake] without an NPDES permit, and because [the compan ies] 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 suereferenced 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 th at "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 enjointhe 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 co mpany 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 th e 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 a llege that the company had violated its preconstruction PSD permit because "it doe s not logically follow . . . that a preconstruction permit violation cannot o ccur 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—"alb eit one that may no longer be valid." Id

. The company asserted that the matter wa s not ripe for adjudication until the IEPA issued a final decision on whether th e 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 pers on alleged to be in violation of a PSD permit." Id . "Moreover, even if having an e xpired 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 citizen s 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 th at 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 cha llenges "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 HC HC'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 validityof 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 pe rmit 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 mo tion to dismiss the instant appeal as

moot.

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