In response to the DEP’s October 7 complaint, the operator filed a motion to stay the administrative proceedings relating to the complaint. The operator argued that resolving parts of the dispute before the Board will be a waste of time because any finding will be appealed to the court in which the declaratory judgment action is pending. In response, the DEP noted that it has filed a motion to dismiss the operator’s declaratory judgment action on the grounds that the operator had failed to exhaust administrative remedies and was simply forum shopping.
On October 28, 2014, the Board denied the operator’s motion to stay. The Board said that the “case is precisely the sort of case that is the raison d’être for the [Board],” and noted that a stay of Board proceedings is “an extraordinary measure that should only be granted for compelling reasons.” The Board then opined that there was “significant value and efficiency in allowing . . . discovery [in the Board proceedings] because that factual development will eventually be needed one way or the other.” Ultimately, the Board was skeptical that that motion to stay was anything other than a dilatory tactic and refused to grant a stay that, in the Board’s opinion, would have little benefit to the administration of justice.
This post was written by Barclay Nicholson (email@example.com or 713 651 3662) and Jim Hartle (firstname.lastname@example.org or 713 651 5695) from Norton Rose Fulbright's Energy Practice Group.