ELR Citation: ELR 20588
No(s). 84-1657 (8th Cir. Apr 26, 1985)

The court holds that a city requesting the modification of a sewage treatment consent decree must be allowed to present evidence supporting its allegation of mutual mistake in the need for construction of new treatment facilities, despite a clause in the decree providing that technological infeasibility shall not be cause for delay. The court notes that both Federal Rule of Civil Procedure 60(b) and the court's equitable powers allow for modification of a consent decree if new and unforeseen circumstances produce hardship sufficient to make enforcement of the decree oppressive. The court holds that the district court correctly held that the force majeure clause, allowing no exception for technological infeasibility, prevents the city from seeking relief through the decree's dispute resolution clause. However, the court holds that the city's allegations of mutual mistake concerning the facilities needed for compliance, if proved, are grounds for a modification of the decree. Therefore, the court remands the case for an evidentiary hearing on the city's allegations.

Counsel for Appellant
Jerry Canfield
Daily, West, Core, Loffman & Canfield
Stephens Office Bldg., P.O. Box 1446, Fort Smith AK 72902
(501) 782-0361

Counsel for Appellee
Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4037

Before BRIGHT, ARNOLD, and BOWMAN, Circuit Judges.