TOTO lawsuit in judges hands
It is now up to U.S. District Judge Carlos Murguria to decide if the proposed transfer of the Sunflower Army Ammunition Plant is ripe for judicial review.
In March, Taxpayers Opposed To Oz Inc. filed a suit in Kansas City, Kan., U.S. District Court against the U.S. General Services Administration. The action seeks to halt the transfer of the Sunflower pending an environmental impact study and completion of a required historical survey.
In the suit, attorneys with the Session Law Firm of Kansas City, Mo., argued the GSAs decision-making process is ready for judicial review. The release of an environmental assessment on Sunflower, which included a finding that there is no significant impact from transferring the plant to private hands, represents the GSAs final decision, they argued.
In its final response to the TOTO suit, U.S. Justice Department attorney Silas DeRoma argued that Murguria should stay action on the lawsuit until the required historical survey is completed.
The governments final response puts the lawsuit in the hands of the court, said Andrew Bailey of the Session Law Firm. He added the latest response includes little that wasnt in its original response to the TOTO suit, Bailey said.
Its think it is very weak, he said. It doesnt address many of our arguments. We think that says the Department of Justice doesnt have a leg to stand on.
TOTO saw the governments original response as a victory because it admitted the required survey of historical sites at Sunflower is not complete.
It is the federal governments contention that the GSA has not yet completed its decision-making process on the transfer of Sunflower. That will only happen when the historical survey is finished, DeRoma wrote in the response filed last week. Only when that survey is finished will the GSAs decision-making process be complete and ready for judicial review, he argued.
TOTO lawyers have asked Murguria to deny the stay and rule on the merits of the lawsuit. TOTO argued GSA wanted to proceed with the transfer of Sunflower to Oz Entertainment Co. based on the finality of the environmental assessment, while postponing judicial review because the agencys actions are not final.
Bailey said the government limited its response to the argument of whether the GSAs decision-making was ready for judicial review. DeRoma failed to address TOTOs argument that the historical review must be completed before the Defense Department property can be subject to an early transfer, which is what is being considered for Sunflower, he said.
TOTO also contends the finding of no significant impact cannot be determined until the ongoing historical review is completed.
They ignored both those arguments, Bailey said.
The Justice Departments latest response puts the case in the hands of the court. But Bailey said he isnt certain when Murguia will schedule a court date for the case.
Who knows what that timetable will be, he said. It could be a couple of weeks, or it could be four to six weeks.
A TOTO lawyers request for oral arguments before Murguia could affect the timetable, Bailey said.