To cease and desist or not to cease and desist, that is the question. Same goes for other government-ordered directives.
Are cease and desist orders, court orders and injunctions there for the disregarding?
For this argument, I will call failure to comply with government directives an ill-mannered contempt for the law. Is this a new trend in American society? Is what I think as thumbing one’s nose nothing more than good legal strategy? Let us review government cease-and-desist directives to begin answering these questions.
The reader will understand a cease-and-desist order to be the same thing as a court-ordered injunction. Such an order is unique in that it can be issued without a judge. A government agency may issue a cease-and-desist order either through an administrative law judge or through another authorized official, such as the agency’s chief engineer. A cease-and-desist order and an injunction both require a person or organization to stop specified conduct. Both are binding on the recipient until modified or overturned on appeal, with non-compliance subject to civil penalties or case-specific enforcement measures.
A South Dakota cease-and-desist case
Prior to the issuance of a cease-and-desist order by South Dakota, eight notices of violation of rules or permit-terms were issued to a mining company. Thereafter, the state issued a notice of violation and order to the company for failure to install a liner in a process pond prior to use, failure to construct a minimum of 2 feet of freeboard in ponds, and because the company had sandbagged the overflow structures of ponds (preventing the release of excess water).
The company also failed to report a possible release of cyanide into the environment. In settlement of the order, the company stopped the flow of process solutions to several ponds until construction was completed, repaired damage to lining systems, and hauled excess liquid to a disposal area.
The company rolled the dice and lost. After all this, and some time later the state issued a cease-and-desist order to the company for failure to comply with a prior notice of violation and order. In settlement of the charges, the mining company paid a penalty and reclaimed several acres of relic mine tailings.
A Nevada cease-and-desist case
This year, certain water permits supporting a large mining operation in Nevada were reversed by a Nevada District Court judge. The judge ruled the previously-authorized permits were to be reverted to “application status.” Several days after the order, the state engineer advised the mining operation that their particular water permits were invalid.
The order of the court and the demand letter of the state engineer were allegedly to no avail. An additional follow-up letter from the state engineer was consequently issued. This letter included a cease-and-desist directive from the state engineer.
The letter stated, among other matters, that the applicant “does not currently have a permit allowing the use of water, in any amount … [from the well in use].” The last letter alleges the applicant continued to use the wells in question and states its supporting evidence. The state engineer directed the company to “immediately CEASE AND DESIST any further pumping … [and that] the applicant must submit a written response within fourteen (14) days from the date of this letter [showing that it] has complied with this cease and desist notice.”
Then the mining company filed an emergency motion with the court seeking clarification on whether it needs to stop pumping water for its mining project. The mining company continues to pump water from the wells in question based on its questioning of the “immediacy” of the state engineer’s directive. Is this a legal strategy or disobedience to the law?
Do actions (continuing to pump water) speak louder than words (“immediately cease and desist any further pumping”)? An answer may soon be available to the public after the judge issues a decision on the company’s motion.
In Nevada, one is generally allowed to gamble. Here are some informal odds on whether the mining company’s strategy will prevail. Bear in mind, I am not a licensed bookie, and clearly I lost the ability to see into the future when I hit my 19th birthday.
The odds: 1.) A judge has already ruled that the water use permits were issued incorrectly. 2.) A bureaucrat with authority (the state’s chief engineer) demanded by a cease-and-desist directive on two occasions that the previously-issued permits should not be used.
I must provide a postscript to my discerning readers. Readers will recall, of course, that Nevada has not authorized gambling on legal cases.
David Ganje is an attorney who practices natural resources, environmental and commercial law. The website is lexenergy.net.
Photo: Jerauld County Courthouse, Wessington Springs, public domain, wikimedia commons
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