IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE : C.A. No. SlSM-06-002 RFS
DEPARTMENT OF NATURAL
RESOURCES &
ENVIRONMENTAL CONTROL,
Plaintiff,

V.

MOUNTAIRE FARMS OF
DELAWARE, INC.,

Defendant.

ORDER DENYING LEAVE TO APPEAL

FROM INTERLOCUTORY ORDER

AND NOW, the State of Delaware Department of Natural Resources and
Environrnental Control (“DNREC”) having made application under Rule 42 of the
Supreme Court for an order certifying an appeal from the interlocutory order of
this Court dated March 29, 2019,l and this Court having considered that
application, opposition thereto, and the record in this case, it appears to the Court

that:

 

'Department of Natural Resources & Environmental Control v. Mountaire Farms of
Delaware, Inc., 2019 WL 1430620 (Del. Super. Mar. 29, 2019).

l

l) This is an action which DNREC filed against Mountaire F arms of
Delaware, Inc. (“Mountaire”) alleging various violations of statutes, regulations
and permits in connection with the poultry plant Mountaire operates in Millsboro,
Delaware. The complaint invokes issues raised by violations of the Resource
Conservation and Recovery Act (“RCRA”) and the Clean Water Act (“CWA”). At
the same time as it filed the action, DNREC submitted for the Court’s approval a
Consent Decree it had entered into with Mountaire that resolves various issues the
complaint raises. Two groups moved to intervene in this action: one consisting of
Gary Cuppels, Anna-Marie Cuppels, and other unnamed property owners (“the
Cuppels”) and the other including Joseph Balbacl<, Joan Balback, a non-profit and
other community members and property owners in the vicinity of the poultry plant
at issue (“the Balbacks”). On the same date DNREC filed this state action, it filed
an enforcement action against Mountaire in the United States District Court in and
for the District of Delaware (“District Court”), alleging violations of RCRA and
CWA.2 Bef`ore DNREC filed these suits, the Cuppels and the Balbacks filed
federal notices of intent to sue for RCRA violations.

2) The Court did not grant or deny the Cuppels and Balbacks’ motions to

intervene. Instead, its review of the motions to intervene led it to conclude that a

 

2The Cuppels have been allowed to intervene in the District Court suit.

2

stay of this action was appropriate for the following reasons. Although the
Consent Decree provided for Mountaire to upgrade its water treatment facility and
provide a water system to nearby landowners, provisions of that Consent Decree
were problematical In particular, this Court determined that one provision could
be found to relieve Mountaire of liability under RCRA and CWA and ultimately,
render the District Court case moot. This Court explained it would not rubber
stamp the Consent Decree. The Court stayed this action in favor of the District
Court action proceeding first in order to promote justice by allowing the potential
intervenors to be heard on their claims and to promote judicial economy. With
regards to the judicial economy element, the Court concluded a failure to enter the
stay would increase the amount of litigation in these cases and would complicate
proceedings in both this Court and the District Court. The Court determined that
the consequences from granting the stay would overbalance the potential delay in
Mountaire’s upgrading the water treatment facility and providing a water system
to nearby landowners.

3) “Interlocutory appeals should be exceptional, not routine.”3 The Court

may certify an interlocutory appeal under Rule 42 only when the order to be

 

3Dei. supr. Ct. R. 42(b)(ii).

certified decides “a substantial issue of material importance.”4 The additional
factors the Court considers are:

(A) The interlocutory order involves a question of law resolved for
the first time in this State;

(B) The decisions of the trial courts are conflicting upon the
question of law;

( C) The question of law relates to the constitutionality,
construction, or application of a statute of this State, which has not
been, but should be, settled by this Court in advance of an appeal
from a final order;

(D) The interlocutory order has sustained the controverted
jurisdiction of the trial court;

(E) The interlocutory order has reversed or set aside a prior decision
of the trial court, a jury, or an administrative agency from which an
appeal was taken to the trial court which had decided a significant
issue and a review of the interlocutory order may terminate the
litigation, substantially reduce further litigation, or otherwise serve
considerations of justice;

(F) The interlocutory order has vacated or opened a judgment of the
trial court;

(G) Review of the interlocutory order may terminate the litigation;
or

(H) Review of the interlocutory order may serve considerations of
justice.5

The Court also considers “its own assessment of the most efficient and just
schedule to resolve the case,” and identifies “whether and why the likely benefits

of interlocutory review outweigh the probable costs, such that interlocutory review

 

4Dei. supr. Ct. R. 42(b)(i).

5Del. Supr. Ct. R. 4l(b)(iii).

is in the interests of justice.”6
4) As the Superior Court noted in Lz`ma Delta Compcmy v. Global
Aerospace, Inc. 17
“[The] Supreme Court generally does not accept interlocutory appeals
relating to motions to stay because motions to stay usually do not

address the substantive merits of the parties? underlying claims,
which is the central focus of the Rule 42 analysis.” FN 21

FN 21 MiCHII Holdings LLC v. schron, 2012 WL 3224351, at * 6
(Del. Ch. 2012).

5) The Court’s discretionary decision granting the stay in this action
addressed a procedural issue; the Court did not decide a substantial issue of
material importance and thus, the application must be denied for not meeting this
requirement of Supr. Ct. R. 42(b)(i). Furthermore, none of the eight factors set
forth in Rule 42(b)(iii)(A)-(H) are implicated. Certification will not promote the
most efficient and just schedule to resolve this case. Finally, the likely benefits of
interlocutory review will not outweigh the probable costs so that interlocutory
review is not in the interest of justice.

6) For the foregoing reasons, the Court concludes that DNREC has failed to

meet the strict standards for certification under Supreme Court Rule 42.

 

6Ia'.

72()16 WL 3659859 (Del. Super. March 17, 2016) (ORDER), interloc. app. den., 135
A.3d 311, 2016 WL 1436582 (Del. Apr. 5, 2016) (TABLE).

5

NOW, THEREFORE, IT IS HEREBY ORDERED that DNREC’s Motion
for Certification of Interlocutory Appeal of the Court’s March 29, 2019 order is

DENIED this day of April, 2019.

 

cc: Prothonotary’s Office
Counsel of Record

