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Portland Pipe Line Corp. v. City of South Portland

United States District Court, D. Maine

January 9, 2017

PORTLAND PIPE LINE CORPORATION, et al., Plaintiffs
v.
CITY OF SOUTH PORTLAND, et al., Defendants

          ORDER ON MOTIONS TO FILE BRIEFS AS AMICI CURIAE

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         The Court grants the motions of amici curiae to file briefs in this lawsuit.

         I. BACKGROUND

         Pending before the Court is Portland Pipe Line Corporation's lawsuit challenging the legality of the City of South Portland's “Clear Skies Ordinance, ” which prohibits all bulk loading of crude oil at the South Portland harbor and the installation, construction, reconstruction, modification, or alteration of new or existing facilities, structures, or equipment for the purpose of bulk loading of crude oil onto any marine tank vessel in the harbor of South Portland. Compl. for Declaratory and Injunctive Relief ¶ 38 (ECF No. 1). The effect of the Clear Skies Ordinance is to prohibit all activities related to the importation of crude oil by pipeline or other transportation methods for export. Id. By its nature, the lawsuit is a matter of public importance.

         On November 2, 2016, the Court held a Local Rule 56(h) pre-filing conference in anticipation of the parties filing dispositive motions. Min. Entry (ECF No. 83). On November 17, 2016, the Plaintiffs filed a sixty-two-page motion for summary judgment, and the Defendants filed a sixty-page motion to dismiss and motion for summary judgment. Pls.' Mot. for Summ. J. (ECF No. 87); Defs.' Consolidated Mot. to Dismiss Pursuant to Rule 12(b)(1) and Mot. for Summ. J. (ECF No. 88). On December 20, 2016, the Defendants filed their opposition to the Plaintiffs' motion for summary judgment, and the Plaintiffs filed their opposition to the Defendants' motions to dismiss and for summary judgment. Pls.' Mem. in Opp'n to Defs.' Mot. to Dismiss and for Summ. J. (ECF No. 127); Defs.' Opp'n to Pls.' Mot. for Summ. J. (ECF No. 123). The parties' replies are due on January 13, 2017. Procedural Order at 1 (ECF No. 84).

         Meanwhile, the Court received requests for leave to file amicus briefs on behalf of both the Plaintiffs and the Defendants. Mot. for Leave to Participate as Amicus Curiae and File a Br. in Supp. of Pls.' Mot. for Summ. J. on Behalf of Portland Pilots, Inc., Me. Energy Mkt'rs Ass'n, and Associated Gen. Contractors of Me. (ECF No. 100) (Pilots, Energy, and Contractors Mot.); Mot. of the Conserv. Law Found. for Leave to File a Br. Amicus Curiae (ECF No. 101) (Conservation Mot.); Mot. for Leave to File Br. of Amicus Curiae in Supp. of Pls.' Mot. for Summ. J. (ECF No. 105) (Chamber Mot.); Mot. of the Am. Fuel & Petrochem. Mfrs., the Am. Petro. Inst., the Ass'n of Oil Pipe Lines, and the Int'l Liquid Terminal Ass'n for Leave to File Amici Curiae Br. in Supp. of Pls.' Mot. for Summ. J. (ECF No. 109) (Petroleum Mot.).

         In an already controversial case, the motions by potential amici curiae sparked a separate dispute and devolved into an exhaustive round of points and counterpoints. On December 1, 2016, the Defendants objected to the motions of the United States Chamber of Commerce and the Associated General Contractors of Maine to file amicus briefs. Defs.' Consolidated Opp'ns to the Mots. of the U.S. Chamber of Commerce and Associated Gen. Contractors of Me, et[] al[]., for Leave to File Brs. Amicus Curiae (ECF No. 111) (Defs.' Opp'n). The Chamber, the Contractors, and the Plaintiffs replied in support of the motions. Reply in Supp. of Me. Energy Mkt'rs Ass'n, et al.'s Mot. for Leave to File an Amicus Curiae Br. in Supp. of Pl.'s Mot. for Summ. J. (ECF No. 115) (Contractors Reply); Reply in Supp. of Mot. for Leave to File Br. of Amicus Curiae in Supp. of Pls.' Mot. for Summ. J. (ECF No. 116) (Chamber Reply); Pls.' Resp. to Defs.' Opp'n to the Pending Mots. for Leave to File Brs. Amicus Curiae (ECF No. 117) (Pls.' Reply).

         On December 16, 2016, the Defendants moved to file a sur-reply to the reply of the Plaintiffs. Defs.' Mot. for Leave to Resp. to Pls.' Resp. to Defs.' Opp'n to Pending Mots. for Leave to File Brs. Amicus Curiae (ECF No. 118). On December 19, 2016, the Court granted the Defendants' December 16, 2016 motion. Order Granting Mot. for Leave to File Sur-Reply (ECF No. 121). The Defendants filed a sur-reply on December 22, 2016. Defs.' Resp. to Pls.' Reply to Defs.' Opp'n to the Pending Mots. for Leave to File Brs. Amicus Curiae [Leave Granted 12/19/16] (ECF No. 129) (Defs.' Sur-Reply). On December 28, 2016, the Plaintiffs responded to the Defendants' sur- reply. Pls.' Resp. to Defs.' Third Opp'n to the Pending Mots. for Leave to File Brs. Amicus Curiae (ECF No. 131) (Pls.' Sur-Resp.).

         Meanwhile, on December 16, 2016, the Defendants objected to the American Petroleum motion for leave to file a brief as amici curiae. Defs.' Opp'n to the Mot. of the Am. Petro. Inst., et[] al[]., for Leave to File a Br. Amicus Curiae (ECF No. 119) (Defs.' Petroleum Opp'n). Finally, on December 30, 2016, American Petroleum replied to the Defendants' opposition to their motion to file an amicus curiae brief. The Am. Fuel & Petrochem. Mfrs., the Am. Petro. Inst., the Ass'n of Oil Pipe Lines, and the Int'l Liquid Terminals Ass'n's Reply to Defs.' Opp'n to Mot. for Leave to File Amici Curiae Br. (ECF No. 134) (Petroleum Reply).

         II. POSITIONS OF THE PARTIES

         A. The Amici Motions

         The initial amici motions give synoptic treatment to whether they should be allowed to file friend of the court briefs. Pilots, Energy, and Contractors Mot. at 1- 4; Conservation Mot. at 1-4; Chamber Mot. at 1-3; Petroleum Mot. at 1-5. Each potential amicus posits its unique perspective and its special interest in the subjects of the lawsuit and contends that its participation as amicus would be beneficial to the proceedings. Id.

         B. The Defendants' Opposition

         1. The Contractors' and Chamber's Motions

         On December 1, 2016, the Defendants filed their eleven-page opposition to the Contractors' and Chamber's motions. Defs.' Opp'n at 1-11. The Defendants' main argument is that the Contractors' and Chamber's briefs attempt to introduce and argue new facts and do not restrict themselves to arguments of law. Id. In particular, the Defendants object to the Contractors' and Chamber's references to a report authored by Dr. Charles Lawton, an economist, whom they claim the Plaintiffs partially funded. Id. at 1-2. The Defendants note that the Plaintiffs repeatedly disavowed the need to designate an expert, and they worry that the proposed amicus briefs will place expert evidence before the Court, avoiding the Plaintiffs' discovery obligations and their discovery rights and seeking to get through the back door what the Plaintiffs ...


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