Petition for Writ of Certiorari — Eastern Oregon Mining Association, et al., Petitioners v. Oregon Department of Environmental Quality, et al.
Supreme Court briefDec 20, 2019
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Appendix A-1
FILED: July 25, 2019
IN THE SUPREME COURT OF
THE STATE OF OREGON
EASTERN OREGON MINING ASSOCIATION;
Guy Michael; and Charles Chase,
Petitioners on Review,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY;
Dick Pederson, in his capacity as Director of the
Department of Environmental Quality; and
Neil Mullane, in his capacity as Administrator
of the Water Quality Division of the
Department of Environmental Quality,
Respondents on Review.
(CC 10C24263)
WALDO MINING DISTRICT,
an unincorporated association;
Thomas A. Kitchar; and Donald R. Young,
Petitioners on Review,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY;
Dick Pederson, in his capacity as Director of the
Department of Environmental Quality; and
Neil Mullane, in his capacity as Administrator
of the Water Quality Division of the
Department of Environmental Quality,
Respondents on Review.
(CC 11C19071) (CA A156161) (SC S065097)
On review from the Court of Appeals. *
On appeal from the Marion County Circuit Court, Courtland
Geyer, Judge. 285 Or App 821, 398 P3d 449 (2017).
*
Appendix A-2
Argued and submitted May 10, 2018.
James L. Buchal, Murphy & Buchal, LLP,
Portland, argued the cause and filed the briefs for
petitioners on review.
Michael A. Casper, Assistant Attorney General,
Salem, argued the cause and filed the brief for
respondents on review. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, Salem.
Before Walters, Chief Justice, and Balmer,
Nakamoto, Flynn, Duncan, and Nelson, Justices, and
Kistler, Senior Judge pro tempore. **
KISTLER, S.J.
The decision of the Court of Appeals is affirmed.
Balmer, J., dissented and filed an opinion.
Garrett, J., did not participate in the consideration or decision
of this case.
**
Appendix A-3
KISTLER, S. J.
The Clean Water Act, 33 USC §§ 1251-1388,
prohibits the discharge of any pollutant into the
waters of the United States unless the Environmental
Protection Agency (the EPA) or the Army Corps of
Engineers (the Corps) has issued a permit authorizing
the discharge. 33 USC §§ 1311(a), 1342, 1344. Acting
under authority delegated by the EPA, the Oregon
Department of Environmental Quality (DEQ) issued a
general permit in 2010 for the discharge of certain
pollutants resulting from suction dredge mining.
Petitioners filed this proceeding arguing, among other
things, that only the Corps has authority under the
Clean Water Act to permit the discharge of materials
resulting from suction dredge mining. The Court of
Appeals disagreed and affirmed the trial court’s order
upholding DEQ’s permit. Having allowed review, we
now affirm the Court of Appeals decision.
As applicable here, suction dredge mining involves
using a small motorized pump mounted on a boat to
“vacuum up” water and sediment from stream and
river beds. 1 The water and sediment are passed over
a sluice tray, which separates out heavier metals, such
as gold, and the remaining material is then
discharged into the water. In addition to discharging
the leftover sediment and water, suction dredge
mining creates a turbid wastewater plume and can
remobilize pollutants, such as mercury, that
Small suction dredge mining is a type of in-stream placer
mining. See Nadia H. Dahab, Muddying the Waters of Clean
Water Act Permitting: NEDC Reconsidered, 90 Or L Rev 335, 33839 (2011) (discussing placer mining generally and small suction
dredge mining).
1
Appendix A-4
otherwise would have remained undisturbed and
relatively inactive in the sediment.
This litigation began when DEQ’s predecessor, the
Oregon Environmental Quality Commission (EQC),
issued a general permit in 2005 authorizing suction
dredge mining in Oregon as long as that activity met
certain water quality standards. See Northwest
Environmental Defense Center v. EQC, 232 Or. App.
619, 223 P.3d 1071 (2009). The 2005 permit was
challenged by both miners and environmentalists. In
considering those challenges, the Court of Appeals
reviewed regulations promulgated by the Corps and
the EPA, as well as those agencies’ application of the
regulations to suction dredge mining. See id. at 63142, 223 P.3d 1071. Based on that review, the Court of
Appeals concluded that the process of suction dredge
mining created both turbid wastewater plumes and
dredged spoil. Id. at 643-44, 223 P.3d 1071. It
reasoned that turbid wastewater plumes are
pollutants that may not be discharged into navigable
water without a permit from the EPA (or a state
agency to which the EPA has delegated its permitting
authority) while dredged spoil constitutes dredged
material that requires a permit from the Corps before
it may be discharged. Id. at 644-45, 223 P.3d 1071.
Both sides sought review of that decision. After
this court allowed review, the 2005 permit expired,
and the case was dismissed as moot. See Northwest
Environmental Defense Center v. EQC, 349 Or. 246,
245 P.3d 130 (2010). In 2010, DEQ issued a new fiveyear permit for suction dredge mining that complied
with the distinction that the Court of Appeals had
drawn in NEDC. See Eastern Oregon Mining Assoc. v.
DEQ, 285 Or. App. 821, 826, 398 P.3d 449 (2017).
Appendix A-5
Petitioners challenged the 2010 permit, which expired
while the case was pending in the Court of Appeals,
and the Court of Appeals dismissed the case as moot.
Eastern Oregon Mining Assoc. v. DEQ, 273 Or. App.
259, 361 P.3d 38 (2015). This court reversed that
decision, reasoning that the issue was capable of
repetition yet evading review. Eastern Oregon Mining
Association v. DEQ, 360 Or. 10, 376 P.3d 288 (2016).
We remanded this case to the Court of Appeals so that
it could consider whether to exercise its discretion to
hear one or more of the issues that petitioners sought
to raise.
On remand, the Court of Appeals exercised its
discretion to consider petitioners’ first assignment of
error—whether DEQ, acting under authority
delegated by the EPA, legally could issue a permit for
suction dredge mining. EOMA, 285 Or. App. at 833,
398 P.3d 449. The Court of Appeals did not exercise its
discretion to consider petitioners’ other assignments
of error. Id. at 834, 398 P.3d 449. Specifically, it did
not exercise its discretion to consider petitioners’ third
assignment of error claiming that DEQ’s factual
findings were not supported by substantial evidence.
Id. Focusing only on the legal issues raised by the first
assignment of error, the Court of Appeals adhered to
its decision in NEDC; more specifically, it considered
and rejected the grounds that petitioners raised for
reconsidering that decision. Id. at 838-39, 398 P.3d
449. We allowed review to consider the single
assignment of error that the Court of Appeals decided.
Before turning to that assignment of error, we note
that neither petitioners nor the state disputes that the
material discharged as a result of suction dredge
mining constitutes a “pollutant” for the purposes of
Appendix A-6
the Clean Water Act. That act provides that
“pollutant” means, among other things, “dredged
spoil,” “rock,” and “sand.” 33 USC § 1362(6). The
parties’ dispute arises over which agency (the EPA or
the Corps) has authority under the Clean Water Act
to permit the discharge of those pollutants into the
waters of the United States. Petitioners raise
essentially two arguments on that issue. They argue
initially that suction dredge mining does not come
within the EPA’s authority because that activity does
not entail the “discharge” or “addition” of a pollutant
to the water. They argue alternatively that, even if
discharging material resulting from suction dredge
mining adds a pollutant to the waters of the United
States, the discharge is “dredged material,” which the
Corps has exclusive authority to permit. We begin
with petitioners’ first argument.
I. ADDITION OF A POLLUTANT
Petitioners’ first argument starts from the
proposition that the EPA’s permitting authority
applies only to the “discharge of a pollutant,” and they
note that the statutory phrase “discharge of a
pollutant” is defined as “any addition of any pollutant
to navigable waters from any point source.” 33 USC
§ 1362(12). Petitioners contend that, because suction
dredge mining does not add anything to the water that
was not already there, there is no addition of any
pollutant and thus no discharge of a pollutant for the
EPA to permit.
Petitioners’ first argument is problematic. Almost
30 years ago, the United States Court of Appeals for
the Ninth Circuit held that, “even if the material
discharged [as a result of placer mining] originally
comes from the streambed itself, [the] resuspension [of
Appendix A-7
the material in the water] may be interpreted to be an
addition of a pollutant under the [Clean Water] Act.”
Rybachek v. EPA, 904 F.2d 1276, 1285 (9th Cir 1990);
accord National Mining Assoc. v. Army Corps of
Engineers, 145 F.3d 1399, 1406 (DC Cir 1998)
(reaffirming Rybachek while holding that the
“addition” of a pollutant does not include incidental
fallback of dredged material). As we read Rybachek,
the court recognized that the statutory term
“addition” is ambiguous, and it deferred to the EPA’s
reasonable conclusion that the suspension of solids
resulting from placer mining—a practice that includes
suction dredge mining—constitutes the “addition” of a
pollutant within the meaning of the Clean Water Act.
Since Rybachek, the EPA has confirmed that
conclusion. In 2018, in responding to comments
regarding the reissuance of a general permit for
suction dredge mining in Idaho, the regional office of
the EPA reaffirmed that the suspension of solid
materials caused by suction dredge mining constitutes
the “addition” of a pollutant to the water. EPA,
Response to Comments on Idaho Small Suction
Dredge General Permit 5 (May 2018). 2 Similarly, the
EPA explained in response to another comment:
“If, during suction dredging, only water was
picked up and placed back within the same
waterbody, the commenter would be correct that
no permit would be necessary. See South Florida
Water Management Dist. v. Miccosukee Tribe of
Indians, 541 U.S. 95 [124 S.Ct. 1537, 158
2 Both petitioners and the state ask us to take judicial notice of
various documents, permits, and explanations that the Corps
and the EPA have issued. We do so.
Appendix A-8
L.Ed.2d 264] (2004). However, in suction
dredging, bed material is also picked up with
water. Picking up the bed material is in fact the
very purpose of suction dredging—the bed
material is processed to produce gold. This
process is an intervening use that causes the
addition of pollutants [rock and sand, see CWA
§ 502(6) ] to be discharged to waters of the
United States.”
Id. at 6 (bracketed material in original).
We also note that, when the EPA reissued a
general permit for suction dredge mining in Idaho in
2018, it prohibited suction dredge mining that
resulted in visible turbidity “above background
[levels] beyond any point more than 500 feet
downstream of the suction dredge operation,” directed
operators to avoid “concentrated silt and clay,” which
could cause “a significant increase in suspended solids
resulting in increased turbidity and downstream
sedimentation,” and provided that, if mercury is found
during suction dredge mining, the operator must stop
suction dredge mining “immediately if that is the only
way to prevent remobilization of the collected
mercury.” EPA, General Permit for Small Suction
Dredge Miners in Idaho 19-20 (April 25, 2018). Those
restrictions reflect the EPA’s considered conclusion
that suction dredge mining can result in the addition
of pollutants to navigable waters in the form of
suspended solids and “remobilized” heavy metals.
Beyond that, the Corps and the EPA have issued
numerous regulations in which they have recognized
that redepositing materials dredged from stream and
river beds constitutes a regulable discharge or
addition of a pollutant. See, e.g.,
Appendix A-9
(2001); 40 Fed Reg 31321 (July 25, 1975) (explaining
the types of redeposits of dredged material that would
constitute a “discharge of dredged material” under the
regulations). 3 Those regulations implementing the
Clean Water Act, as well as the agencies’ consistent
interpretation of them, warrant deference as a matter
of federal law. See Coeur Alaska, Inc. v. Southeast
Alaska Conservation Council, 557 U.S. 261, 277-78,
129 S. Ct. 2458, 174 L. Ed. 2d 193 (2009) (setting out
standards for deferring to agency regulations that
interpret ambiguous statutes and the agencies’
interpretation of their own regulations).
Petitioners contend, however, that Los Angeles
County Flood Control District v. Natural Resources
Defense Council, 568 U.S. 78, 133 S. Ct. 710, 184 L.
Ed. 2d 547 (2013), requires a different conclusion. In
that case, the Court reaffirmed that “the transfer of
polluted water between ‘two parts of the same water
body’ does not constitute a discharge of pollutants
under the [Clean Water Act].” Id. at 82, 133 S. Ct. 710
(summarizing South Florida Water Management
District v. Miccosukee Tribe of Indians, 541 U.S. 95,
109-112, 124 S. Ct. 1537, 158 L. Ed. 2d 264 (2004)). As
the Court explained, “no pollutants are ‘added’ to a
water body when [polluted] water is merely
transferred between different portions of the same
3 Both the Corps’ and the EPA’s permitting authority extends
only to the discharge of pollutants into navigable water. See
33 USC §§ 1342, 1344. If the EPA lacks authority to issue a
permit for the pollutants resulting from suction dredge mining
because there is no addition of pollutants to the water, then the
Corps lacks that authority too—a conclusion that is contrary to
numerous regulations issued by the Corps treating the redeposit
of dredged material into navigable waters as the addition of a
pollutant.
Appendix A-10
water body.” Id. In this case, by contrast, the EPA
reasonably could find that suction dredge mining does
more than “merely transfe[r]” polluted water from one
part of the same water body to another. Rather, the
EPA reasonably could find that suction dredge mining
adds suspended solids to the water and can
“remobilize” heavy metals that otherwise would have
remained undisturbed and relatively inactive in the
sediment of stream and river beds. We agree with the
Oregon Court of Appeals that the reasoning in Los
Angeles County Flood Control District and Miccosukee
does not call Rybachek’s holding into question. To be
sure, a federal Court of Appeals decision does not bind
a state court interpreting federal law. 4 However, we
agree with Rybachek that the EPA reasonably has
concluded that the suspension of solids and the
remobilization of heavy metals resulting from suction
dredge mining constitutes the “addition” of a pollutant
that requires a permit under the Clean Water Act.
II. POLLUTANTS RESULTING FROM
SUCTION DREDGE MINING
Petitioners mount a second, more substantial
argument. They contend that, even if suction dredge
mining adds pollutants to the water, the material
discharged as a result of suction dredge mining
constitutes “dredged material” over which the Corps
has exclusive permitting authority. 5 Petitioners
Only the United States Supreme Court’s interpretations of
federal law bind state courts.
4
5 Petitioners suggest that the material discharged as a result of
suction dredged mining can be viewed alternatively as “fill
material,” over which the Corps also has exclusive permitting
authority. See 33 USC § 1344. Petitioners, however, did not raise
that issue before the Court of Appeals and may not raise it here
Appendix A-11
recognize that the Clean Water Act does not define the
phrases “dredged * * * material” or the “discharge of
dredged * * * material,” but they argue that the
regulations implementing the Act necessarily lead to
the conclusion that material discharged as a result of
suction dredge mining qualifies as “dredged material.”
The state, for its part, argues that the EPA reasonably
has concluded that suction dredge mining results in
the discharge of processed waste that is subject to the
EPA’s permitting authority. In the state’s view, the
statutes and the implementing regulations are
ambiguous on that issue; that is, the state recognizes
that the material discharged as a result of suction
dredge mining reasonably could be characterized
either as dredged material or processed waste. The
state maintains, however, that, in interpreting and
administering their regulations, the Corps and the
EPA reasonably have concluded that the material is
processed waste subject to the EPA’s permitting
authority rather than unprocessed dredged material
subject to the Corps’ permitting authority and that we
should defer to those agencies’ reasonable
interpretation.
In considering the parties’ arguments, we note, as
a preliminary matter, that the United States Supreme
Court addressed a related but separate question in
Coeur Alaska. Because that decision resolves some of
the issues in this case, we begin by briefly describing
as a basis for reversing the Court of Appeals decision. Moreover,
even if they had raised it, we note that petitioners’ argument is
difficult to square with the preamble to the current regulatory
definition of “fill,” which the Court quoted in Coeur Alaska. See
557 U.S. at 289, 129 S.Ct. 2458 (quoting 67 Fed Reg 31135
(May 9, 2002)).
Appendix A-12
the Court’s reasoning in Coeur Alaska. The initial
issue in Coeur Alaska was whether the EPA or the
Corps had authority under the Clean Water Act to
issue a permit for the discharge of mining slurry into
a lake. 557 U.S. at 273, 129 S.Ct. 2458. Coeur Alaska
planned to use a process known as “froth flotation” to
remove gold bearing minerals from rock taken from a
defunct gold mine; specifically, it planned to churn
crushed rock from the mine in chemically treated
water, which would cause gold-bearing minerals in
the rock to rise to the surface of the water. Id. at 267,
129 S.Ct. 2458. After skimming off those minerals, the
company planned to discharge the resulting slurry
(the leftover rock and chemically treated water) into a
lake, where the mine tailings would sink to the bottom
of the lake and the chemically treated water would be
purified before it left the lake and drained into an
adjacent creek. 6 Id.
Given regulations issued by both the EPA and the
Corps, no party in Coeur Alaska disputed that the
slurry constituted “fill,” which was subject to the
Corps’ permitting authority. Id. at 275, 129 S Ct 2458;
see 33 USC § 1344(a) (authorizing the Corps to issue
permits for the discharge of “dredged or fill material”).
There were two discharges that required a permit in Coeur
Alaska. The first involved the discharge of slurry into the lake.
The second involved the discharge of the purified water from the
lake into the adjacent creek, which was a separate water body.
Cf. Los Angeles County Flood Control District, 548 US at 82
(explaining that the transfer of polluted water from one part of a
water body to another part of the same water body would not
implicate the Clean Water Act). The parties disagreed in Coeur
Alaska whether the EPA or the Corps had authority to issue a
permit for the first discharge. They agreed that the EPA had
exclusive permitting authority over the second discharge.
6
Appendix A-13
However, there was also no dispute that the
chemically treated slurry constituted a “pollutant”
that was subject to the EPA’s permitting authority.
See 33 USC § 1342(a)(1) (authorizing the EPA to issue
permits for the discharge of pollutants other than
dredged or fill material). The Court concluded that, in
those circumstances, the Clean Water Act gave the
Corps sole authority to issue a permit for the
discharge of the slurry into the lake. 557 U.S. at 27374, 129 S.Ct. 2458. 7 The Court then turned to a second
issue, which this case does not present; specifically,
the Court considered the extent to which the Corps
had to follow or, at a minimum, accommodate the
water quality standards that the EPA had established
for froth flotation mining in deciding whether to
permit discharging the slurry into the lake. Id. at 27791, 129 S Ct 2458.
As relevant here, Coeur Alaska holds that, if a
single discharge constitutes “dredged or fill material”
and another “pollutant,” only the Corps has authority
under the Clean Water Act to issue a permit
authorizing the discharge of that material into
navigable water. As noted, this case differs from Coeur
Alaska primarily in one respect. Although no party
disputed that the slurry in Coeur Alaska constituted
In reaching that conclusion, the Court relied on the text of
section 402(a)(1), which gave the EPA permitting authority over
pollutants “[e]xcept as provided in” section 404 of the Act—the
section that gave the Corps permitting authority over dredged
and fill material. (Sections 402 and 404 are the Public Law
sections, which have been codified respectively as 33 USC § 1342
and 33 USC § 1344.) The Court reasoned that, even if the
statutory text was ambiguous, EPA’s regulations reasonably
established that the Corps had exclusive permitting authority
over dredged or fill material. Coeur Alaska, 557 U.S. at 273-74,
129 S.Ct. 2458.
7
Appendix A-14
“fill,” which was subject to the Corps’ permitting
authority, the parties in this case disagree whether
the material discharged as a result of suction dredge
mining constitutes “dredged material” over which the
Corps has permitting authority or processed waste
over which the EPA has permitting authority.
Coeur Alaska teaches that, if Congress has not
spoken directly to that issue, then the Corps and the
EPA’s reasonable interpretation of the Clean Water
Act both in issuing regulations and interpreting their
regulations is entitled to deference in determining
whether a discharge constitutes “fill,” “dredged
material,” or some other “pollutant.” See id. at 277-78,
129 S Ct 2458 (describing when the agencies’
regulations and interpretation of their regulations
will bear on the meaning of the Clean Water Act). As
Justice Breyer explained, the majority opinion in
Coeur Alaska:
“recognizes a legal zone within which regulating
agencies might reasonably classify material
either as ‘dredged or fill material’ subject to
[regulation under section 404 of the Clean Water
Act by the Corps] or as a ‘pollutant’ subject to
[regulation under section 402 of the Clean Water
Act by the EPA]. Within this zone, the law
authorizes the environmental agencies to
classify material as one or the other, so long as
they act within the bounds of the relevant
regulations, and provided that the classification,
considered in terms of the purposes of the
statutes and relevant regulations, is reasonable.”
Id. at 291-92 (Breyer, J., concurring) (citations
omitted); see also id. at 295-96, (Scalia, J., concurring
in part and concurring in the judgment) (describing
Appendix A-15
the majority’s opinion as reflecting a form of deference
to the agencies’ interpretation and administration of
the Clean Water Act). Following Coeur Alaska, we
consider the text of the Clean Water Act, the
implementing regulations, and the agencies’
interpretation of those regulations. Finally, we
consider what deference, if any, we owe to the
agencies’ interpretation of the Act and their
regulations.
A. Text
Section 404 of the Clean Water Act authorizes the
Corps “to issue permits, after notice and an
opportunity for a public hearing, for the discharge of
dredged or fill material.” 33 USC § 1344(a). Unlike the
term “pollutant,” the Clean Water Act does not define
what the phrase “discharge of dredged *** material”
means. More specifically, it does not define whether
material that was dredged from navigable water
remains “dredged material” after it has been
processed. And, if processing dredged material can
change its character, the text does not identify the
point at which the processed material becomes a
pollutant other than dredged material that is subject
to the EPA’s rather than the Corps’ permitting
authority.
It follows that the text of the Clean Water Act does
not speak directly to the issue that this case presents;
it does not answer whether the material discharged as
a result of suction dredge mining is “dredged material”
over which the Corps has permitting authority or
some other pollutant over which the EPA has
permitting authority. We accordingly turn first to the
regulations promulgated to implement the Act and
then to the agencies’ interpretation and application of
Appendix A-16
those regulations. See Coeur Alaska, 557 U.S. at 27778, 129 S.Ct. 2458 (explaining that, if the text of the
Clean Water Act is ambiguous, courts look to the
agencies’ implementing regulations and, if those
regulations are ambiguous, to the agencies’
interpretation and application of their regulations to
determine what the Act means).
B. Regulation and administration
of the Clean Water Act
The regulations issued by the Corps and the EPA
to implement the Clean Water Act do not specifically
address which agency has authority to permit the
discharge of material resulting from suction dredge
mining. However, in later interpreting the
regulations, the Corps and the EPA explained first in
1986 and later in 1990 that the EPA, not the Corps, is
authorized under the Clean Water Act to issue
permits for the discharge of material resulting from
suction dredge mining. More importantly, since that
time, the EPA has issued general permits after notice
and comment for the discharge of material resulting
from suction dredge mining, and the Corps has acted
consistently with the EPA’s permitting authority. As
we discuss below, last year, the EPA reaffirmed that
allocation of authority in issuing a general permit for
suction dredge mining in Idaho.
That regulatory history goes a long way toward
answering the second issue that petitioners raise.
Petitioners, however, argue that regulations adopted
in 1975 and 2001 support their view that the Corps
has exclusive permitting authority. We accordingly
set out the regulatory history in greater (some might
say mind-numbing) detail below. Cf. Save Our Rural
Oregon v. Energy Facility Siting, 339 Or. 353, 363, 121
Appendix A-17
P.3d 1141 (2005) (providing similar trigger warning).
We begin with the Corps’ promulgation of regulations
defining “dredged material” and the “discharge of
dredged material” in 1975. We then turn to a separate
but related dispute over the difference between “fill”
and “waste,” which led to the Corps’ express statement
in 1990 that the EPA had exclusive authority to
permit the discharge of waste resulting from suction
dredge mining. After that, we consider the EPA’s
efforts from 1999 to 2001 to comply with a federal
decision that “incidental fallback” of dredged material
does not constitute the “discharge of dredged
material,” efforts that petitioners contend led to a
2001 regulation that supports their position. We also
consider the Corps’ 2008 rules, which the dissent
views as dispositive. Finally, we look to the EPA’s and
the Corps’ history of issuing permits for suction
dredge mining.
1. “Dredged material” and the
“discharge of dredged material”
On May 6, 1975, the Corps published four
alternative sets of proposed regulations in response to
a federal district court decision issued less than two
months earlier. See 40 Fed Reg 31320 (July 25, 1975)
(recounting that history). The district court had ruled
that the statutory phrase “navigable waters” to which
the Clean Water Act applies was broader than the
Corps had understood, and it directed the Corps to
adopt final regulations within 30 days (later extended
to 80 days) that applied to “the entire aquatic system,
including all of the wetlands that are part of it, rather
than only those aquatic areas that are arbitrarily
distinguished by the presence of an ordinary or mean
Appendix A-18
high water mark.” See 42 Fed Reg 37124 (July 19,
1977) (recounting the regulatory history).
In carrying out that task, the Corps adopted
definitions of “dredged material” and the “discharge of
dredged material” in 1975 that, in relevant part, have
remained largely unchanged. The regulations defined
“dredged material” as “material that is excavated or
dredged from navigable waters.” 33 CFR §
209.120(d)(4) (1976). That definition, however, did not
add much to the statutory phrase “dredged * * *
material.” The regulatory definition essentially
restated the statutory term and left unanswered
when, if ever, dredged material that has been
processed will become some other form of a pollutant
that is subject to the EPA’s permitting authority
rather than the Corps’.
The 1975 definition of “discharge of dredged
material” shed more light on the issue. It provided:
“The term ‘discharge of dredged material’ means
any addition of dredged material, in excess of one
cubic yard when used in a single or incidental
operation, into navigable waters. The term
includes, without limitation, the addition of
dredged material to a specified disposal site
located in navigable waters and the runoff or
overflow from a contained land or water disposal
area. Discharges of pollutants into navigable
waters resulting from the onshore subsequent
processing of dredged material that is extracted
for any commercial use (other than fill) are not
included within this term and are subject to 402 of
the [Clean Water Act] ***.”
33 CFR § 209.120(d)(5) (1976).
Appendix A-19
Not surprisingly, that definition makes clear that,
if unprocessed dredged material is reintroduced into
navigable water, it remains “dredged material,” which
is subject to the Corps’ permitting authority. In
explaining its proposed regulations, the Corps
observed:
“The types of activities encompassed by this term
[discharge of dredged material] would include
the depositing into navigable waters of dredged
material if it is placed alongside of a newly
dredged canal which has been excavated in a
wetland area. It would also include maintenance
of these canals if excavated material is placed in
navigable waters. Also included is the runoff or
overflow from a contained land or water disposal
area.”
40 Fed Reg 31321 (July 25, 1975). All those activities
focused on the placement of unprocessed dredged
material adjacent to or in navigable waters, and the
commentary to the regulations makes clear that the
Corps’ focus was on the discharge of dredged material
in wetlands. That focus is hardly surprising since the
district court’s order had directed the Corps to include,
for the first time, wetlands as part of the navigable
waters to which the Clean Water Act applies.
The definition of “discharge of dredged material”
also identified an exception to that definition. It
provided that “[d]ischarges of pollutants into
navigable waters resulting from the onshore
subsequent processing of dredged material extracted
for any commercial use (other than fill) are not
included within the term and are subject to section
402 of the [Clean Water] Act.” 33 CFR § 209.120(d)(5)
(1976). In explaining the exception, the Corps stated
Appendix A-20
that “[d]ischarges of materials from land based
commercial washing operations are regulated under
section 402 of the [Clean Water Act]” by the EPA. 40
Fed Reg 31321 (July 25, 1975).
That exception resolves a question that the
statutory text and the regulatory definition of
“dredged material” had left unanswered. The
exception makes clear that the act of processing
dredged material can result in the discharge of a
“pollutant” that requires a permit from the EPA under
section 402 rather than the discharge of “dredged
material” that requires a permit from the Corps under
section 404. 8
Petitioners, however, rely on that exception to
argue that the definition of “discharge of dredged
material” draws a broad distinction between
discharges resulting from processing dredged
material on land, which will be subject to the EPA’s
permitting authority, and discharges resulting from
processing dredged material over water, which will be
subject to the Corps’ permitting authority. 9 Because
8 Dredged material, of course, is a subset of the broader statutory
term pollutant. However, in this context, the exception’s
reference to “pollutants” that are subject to section 402
establishes that the act of processing dredged material can result
in pollutants other than dredged material.
9 In making that argument, petitioners contrast the exception to
the definition of “discharge of dredged material,” which was
enacted in 1975, with a rule defining “incidental fallback,” which
was enacted in 2001 and repealed in 2008. Not only does the
repeal of the 2001 rule call into question the contrast on which
petitioners’ argument depends, but, as explained below,
petitioners misperceive the effect of the 2001 rule. In considering
petitioners’ argument, we analyze the 1975 rule and the repealed
2001 rule separately.
Appendix A-21
dredged material is typically processed over water
during suction dredge mining, it necessarily follows,
petitioners reason, that the material discharged as a
result of suction dredge mining is “dredged material,”
which requires a permit from the Corps rather than
the EPA.
Petitioners’ argument is problematic for at least
two reasons. First, the exception to the definition of
“discharge of dredged material” does not draw the
distinction that petitioners perceive. The exception
does not distinguish between discharges that result
from processing dredged material over water and
discharges that result from processing dredged
material over land. Rather, the exception applies to
discharges from the onshore processing of dredged
material that is extracted for a commercial use. If,
however, dredged material is extracted for some other
use (a recreational one, for example), then the
exception does not apply regardless of whether the
dredged material is processed over land or water. 10
Second, petitioners’ argument depends on drawing
a negative inference from the existence of a single
exception to the definition of “discharge of dredged
material.” That is, petitioners’ argument depends on
the proposition that, by recognizing that discharges
resulting from the onshore processing of dredged
10 To the extent that petitioners intended to draw a distinction
between discharges resulting from onshore and offshore
processing of dredged material extracted for a commercial use,
that distinction does not advance their argument. The EPA has
deemed suction dredge mining a recreational activity, not a
commercial one. See EPA, Response to Comments on Idaho Small
Suction Dredge General Permit at 13 (explaining that the EPA
deemed suction dredge mining as a “recreational activity”).
Appendix A-22
material extracted for a commercial use are pollutants
subject to the EPA’s permitting authority, the rule
implies that all other discharges resulting from
processing dredged material will be dredged material
that is subject to the Corps’ permitting authority.
Apparently, in petitioners’ view, that is true however
the dredged material is processed and regardless of
the type of chemicals that are discharged into the
water as a result of processing.
Ordinarily, the sort of negative inference upon
which petitioners’ argument depends is appropriate
when there is “a series of terms from which an
omission bespeaks a negative implication.” Chevron
U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81-82, 122 S. Ct.
2045, 153 L. Ed. 2d 82 (2002) (declining to infer that,
by identifying a single statutory exception, Congress
had precluded an agency from recognizing other
exceptions). When, as in this case, a statute or a rule
identifies only a single exception, a negative inference
is unlikely. See id. (explaining that the canon of
construction for negative inferences “depends on
identifying a series of two or more terms or things that
should be understood to go hand in hand”). Beyond
that, nothing in the Corps’ explanation for recognizing
the exception suggests that the Corps intended that
all other discharges resulting from land-based and
water-based processing of dredged material would be
subject to the Corps’ rather than the EPA’s permitting
authority.
In our view, the better reading of the 1975
definition of “discharge of dredged material” is as
follows: First, as a general rule, the redeposit of
unprocessed dredged material into navigable water
will constitute the “discharge of dredged material” and
Appendix A-23
require a permit from the Corps. Second, some
onshore processing of dredged materials will result in
discharges of pollutants that require a permit from the
EPA under section 402 rather than the Corps under
section 404. Third, that exception to the definition of
discharge of “dredged material” does not go further
than identifying a single exception. That is, in
recognizing an exception for one category of onshore
processing (discharges from dredged material
extracted for commercial uses), the rule leaves
unanswered whether other categories of water-based
or land-based processing operations will result in the
“discharge of dredged material” that requires a permit
from the Corps under section 404 or the discharge of a
pollutant that requires a permit from the EPA under
section 402. 11 Because the 1975 regulatory definition
11 Although petitioners do not cite it, the EPA promulgated
proposed water quality guidelines for the discharge of dredged or
fill material that, among other things, incorporated the Corps’
definitions of “dredged material” and “discharge of dredged
material.” See 40 Fed Reg 41293, 41297 (Sept 5, 1975). In
responding to comments on the proposed guidelines, the EPA
noted that “many commenters [had] object[ed] to the execution
[sic] of raw material extraction from the section 404 permit
process.” Id. at 41292. It then responded to that concern by
observing that the Corps’ regulatory authority “included”
discharges from material extracted and processed on shipboard
while discharges from “land-based processing are included ***
under section 402 of the Act.” Id. That response provides a
general rule of thumb regarding what each agency’s sphere of
authority “includes,” but it does not define the precise boundary
between them. That much follows from the 1975 definition of
“discharge of dredged material,” which did not assign discharges
from all onshore processing to the EPA. Moreover, as explained
below, both the EPA and the Corps later concluded that the
discharges from suction dredge mining fall within the EPA’s
Appendix A-24
of “discharge of dredged material” either does not
address or does not unambiguously resolve whether
discharges resulting from suction dredge mining are
subject to the Corps’ or the EPA’s permitting
authority, we look to the ways in which the Corps and
the EPA subsequently resolved that issue.
2. Fill and waste
In 1977, the Corps renumbered and amended the
regulations to address issues that had arisen since it
promulgated them two years earlier. See 42 Fed Reg
37122-30 (July 19, 1977). Of relevance here, the Corps
considered when the discharge of “waste materials
such as sludge, garbage, trash, and debris in water”
would constitute “fill” that was subject to the Corps’
permitting authority and when they would constitute
another pollutant that was subject to the EPA’s
permitting authority. Id. at 37130. Initially, the Corps
took the position that the answer to that question
turned on the purpose for which those materials were
discharged into the water. Id. It modified the
definition of “fill” in the 1977 regulations to “exclude
those pollutants that are discharged into water
primarily to dispose of waste,” with the result that the
EPA would have permitting authority over waste
discharged primarily for that purpose while the Corps
would have permitting authority over waste that was
discharged primarily to convert wetlands into dry
land. Id.
In 1986, the EPA and the Corps entered into a
Memorandum of Agreement to resolve a lingering
dispute about the scope of “fill” materials that were
permitting authority, even though the processing occurs over
water.
Appendix A-25
subject to the Corps’ permitting authority. See 51 Fed
Reg 8871 (Mar 14, 1986) (publishing the 1986
agreement). The 1986 agreement was intended to be
an interim measure pending the completion of studies
that were being undertaken to determine the effect of
solid waste disposal on ground water and human
health. Id. Among other things, the 1986 agreement
established criteria to determine when waste would be
considered “fill” subject to the Corps’ authority and
when it would be considered another pollutant subject
to the EPA’s authority. Id. at 8872 (setting out the
agreement).
Paragraph B.4 of the agreement identified four
criteria for determining when waste discharged into
water ordinarily would be regarded as fill subject to
the Corps’ authority. 12 Paragraph B.5 then described
when waste discharged into the water would be
considered a pollutant subject to the EPA’s authority.
It provided:
“‘a pollutant (other than dredged material) will
normally be considered by the EPA and the
Corps to be subject to section 402 [and the EPA’s
permitting authority] if it is a discharge in liquid,
semi-liquid, or suspended form or if it is a
discharge of solid material of a homogenous
12 Factors that bore on whether the material constituted “fill”
were: (1) whether the primary or one principal purpose was to
replace the waters of the United States with dry land or to raise
the bottom elevation; (2) whether the discharge resulted from
activities such as road construction; (3) whether the principal
effect of the discharge was the physical loss or modification of the
waters of the United States; and (4) whether the discharge was
“heterogeneous in nature and of the type normally associated
with sanitary land fill discharges.” 51 Fed Reg 8872.
Appendix A-26
nature normally associated with single industry
wastes, and from a fixed conveyance, or if
trucked, from a single site and set of known
processes. These materials include placer mining
wastes, phosphate mining wastes, titanium
mining wastes, sand and gravel wastes, fly ash,
and drilling muds. As appropriate, EPA and the
Corps will identify additional such materials.’”
Id. (quoting that paragraph of the agreement).
The first sentence in paragraph B.5 identifies the
properties of discharged material that ordinarily will
render the discharge subject to the EPA’s permitting
authority: That is, the sentence asks whether the
discharged materials are liquid, semiliquid, or
suspended, or, if solid, whether they are of a
homogenous nature from a single source. 13 Those
properties were broad enough to include unprocessed
“dredged material,” and, presumably for that reason,
the first sentence of paragraph B.5 expressly excepted
“dredged material” from materials that possess those
characteristics. The second sentence in paragraph B.5
took a different approach to defining which materials
are subject to the EPA’s permitting authority. Instead
of listing the properties of discharged material, the
second sentence listed specific examples of processed
waste that will be subject to the EPA’s authority. Not
only does the second sentence expressly name the
specific types of processed waste over which the EPA
will have permitting authority, but it lists “placer
mining wastes,” which includes waste from suction
As noted above, one criteria for “fill” subject to the Corps’
permitting authority is that the discharge is “heterogeneous in
nature,” as opposed to homogeneous.
13
Appendix A-27
dredge mining, as one of the wastes that will fall
within the EPA’s authority. Put differently, the second
sentence makes clear that placer mining wastes are
pollutants other than dredged material and thus
subject to the EPA’s permitting authority. 14
Four years after the Corps and the EPA issued the
1986 memorandum of agreement, the Corps issued a
regulatory guidance letter that interpreted the 1986
agreement and stated that the material discharged as
a result of placer mining is subject to the EPA’s
exclusive permitting authority. The 1990 guidance
letter stated in full:
“Paragraph B.5 in the Army’s 23 Jan 86
Memorandum of Agreement (M[O]A) with EPA,
concerning the regulation of solid waste
discharges under the Clean Water Act, states
that discharges that result from in-stream
mining activities are subject to regulation under
Section 402 [by the EPA] and not under Section
404 [by the Corps].
14 As petitioners note, the 1986 memorandum of agreement was
not intended to be the last word on “fill” material. Since then, the
Corps and the EPA have redefined fill material as any material
that has the effect of changing the bottom elevation of water. See
Coeur Alaska, 557 US at 268. Despite that fact, in Coeur Alaska,
decided almost 25 years after the 1986 memorandum of
agreement, the Court relied on the fact that the Corps’
permitting decision was consistent with the principles set out in
the 1986 memorandum of agreement in upholding the Corps’
decision to permit Coeur Alaska to discharge slurry into the lake.
See id. at 288 (explaining that “[t]he MOA [the 1986
memorandum of agreement] is quite consistent with the
agencies’ determination that the Corps regulates all discharges
of fill material and that § 306 does not apply to these
discharges”).
Appendix A-28
“Dredged material is that material which is
excavated from the waters of the United States.
However, if this material is subsequently
processed to remove desired elements, its nature
has been changed; it is no longer dredged
material. The raw materials associated with
placer mining operations are not being excavated
simply to change their location as in a normal
dredging operation, but rather to obtain
materials for processing, and the residue of this
processing should be considered waste.
Therefore, placer mining waste is no longer
dredged material once it has been processed, and
its discharge cannot be considered to be a
‘discharge of dredged material’ subject to
regulation under Section 404.”
Corps Regulatory Guidance Letter 88-10 (July 28,
1990). 15
3. Incidental fallback
Before 1993, the Corps excluded “de minimus,
incidental soil movement occurring during normal
dredging operations” from the definition of “discharge
of dredged material.” See National Mining Assoc., 145
F3d at 1401. In response to litigation, the Corps
15 The Corps’ guidance letter expired on December 31, 1990. In
2005, the Corps issued another guidance letter, in which it
explained that some expired guidance letters continue to provide
useful information while others “have been superseded, replaced
or otherwise made obsolete.” Corps Regulatory Guidance Letter
05-06 (Dec 7, 2005). The Corps noted that, although the second
class of regulatory guidance letters provide historical context,
“they are no longer valid.” The Corps did not include the 1990
regulatory guidance letter on a list of expired guidance letters
that continue to provide useful information. See id.
Appendix A-29
removed the de minimus exception in 1993 and
expanded the regulatory definition of “discharge of
dredged material” to include “‘[a]ny addition,
including any redeposit of dredged material, including
excavated material, into waters of the United States.’”
Id. at 1402 (quoting 33 CFR § 323.2(d)(1)(iii) (1993))
(emphasis omitted). Various trade associations
challenged that expanded definition on the ground
that it erroneously included “incidental fallback” that
occurred during dredging. They reasoned that
“incidental fallback” that occurs during the removal of
dredged material does not constitute the discharge—
namely, the addition—of dredged material. Both the
district court and the Court of Appeals for the District
of Columbia Circuit agreed.
The Court of Appeals explained that “incidental
fallback occurs, for example, during dredging, ‘when a
bucket used to excavate material from the bottom of a
river, stream, or wetland is raised and soils or
sediments fall from the bucket back into the water.’ ”
Id. at 1403. The court noted that “[f]allback and other
redeposits also occur during mechanized land
clearing, when bulldozers and loaders scrape or
displace wetland soil.” Id. In holding that such
“incidental fallback” did not require a permit under
the Clean Water Act, the Court of Appeals explained
“that the straightforward statutory term ‘addition’
cannot reasonably be said to encompass the situation
in which material is removed from the waters of the
United States and a small portion of it happens to fall
back.” Id. at 1404. The Court of Appeals accordingly
directed the Corps to exclude “incidental fallback”
from the definition of “discharge of dredged
materials.”
Appendix A-30
In directing the Corps to exclude “incidental
fallback,” the Court of Appeals specifically
distinguished the discharges at issue in Rybachek
from incidental fallback. Id. at 1406. It explained that
Rybachek had:
“held that the material separated from gold and
released into the stream constituted a pollutant,
and, to the extent that ‘the material discharged
originally comes from the streambed itself, [its]
resuspension [in the stream] may be interpreted
to be an addition of a pollutant under the Act.’”
Id. (quoting Rybachek, 904 F2d at 1285) (bracketed
material added by National Mining Assoc.). As the
court explained in National Mining Assoc., Rybachek
addressed “the discrete act of dumping leftover
material into the stream after it had been processed,”
not “imperfect extraction, i.e., extraction accompanied
by incidental fallback of dirt and gravel.” 145 F3d at
1406.
Although the concept of incidental fallback seems
relatively straightforward, defining the concept
proved difficult. The Corps initially declined to define
“incidental fallback” and explained that it would
identify it on a case-by-case basis. See 64 Fed Reg
25120 (May 10, 1999). The next year, the Corps issued
a proposed rule in the form of a rebuttable
presumption that identified the types of mechanized
earth-moving activities that ordinarily would result in
the discharge of dredged material. See 65 Fed Reg
50108, 50111-12 (Aug 16, 2000). Procedurally, the
effect of the proposed rule was to shift the burden of
persuasion to the regulated party to prove that any
discharge was only incidental fallback. Id. After
receiving comments on the proposed rule, the Corps
Appendix A-31
issued a final rule in 2001 that retained the substance
of the presumption but stated that the burden of proof
would not shift. 33 CFR § 323.2(d)(2)(i) (2001). Finally,
in 2008, the Corps repealed the 2001 rule listing the
type of earth moving activities that ordinarily would
result in the discharge of dredged material and simply
excepted “incidental fallback,” without further
explanation, from the definition of discharge of
dredged material. 33 CFR § 323.2(d)(2)(iii) (2008).
Petitioners argue that the 2001 rule demonstrates
that material discharged as a result of suction dredge
mining constitutes “dredged material” over which the
Corps has exclusive permitting authority. 16 We first
set out the relevant terms of that rule and then
explain why we reach a different conclusion.
The 2001 rule sought to define the phrase
“incidental fallback” in two ways: first, by identifying
the types of activities that ordinarily will result in
something more than incidental fallback, 33 CFR
§ 323.2(d)(2)(i) (2001); and second, by providing a
specific definition of the phrase, 33 CFR
§ 323.2(d)(2)(ii) (2001). Section 323.2(d)(2) (2001)
provided:
“(i) The Corps and the EPA regard the use of
mechanized earth-moving equipment to conduct
land clearing, ditching, channelization, instream mining or other earth moving activity in
16 As noted, the part of the 2001 rule on which petitioners rely
has been repealed. We hesitate to rely too heavily on that fact,
however. Neither the 1986 memorandum of agreement or the
Corps’ 1990 guidelines letter on which the state relies are
currently in force. And, as noted above, the Court relied on the
principles stated in the 1986 memorandum in deciding Coeur
Alaska in 2009.
Appendix A-32
waters of the United States as resulting in a
discharge of dredged material unless projectspecific evidence shows that the activity results
in only incidental fallback. This paragraph (i)
does not and is not intended to shift any burden
in any administrative or judicial proceeding.
“(ii) Incidental fallback is the redeposit of small
volumes of dredged material that is incidental to
excavation activity in waters of the United
States when such material falls back to
substantially the same place as the initial
removal. Examples of incidental fallback include
soil that is disturbed when dirt is shoveled and
the back-spill that comes off the bucket when
such small volume of soil or dirt falls into
substantially the same place from which it was
initially removed.”
Petitioners argue that the reference to “in-stream
mining” in paragraph (i) includes suction dredge
mining and, as a result, establishes that suction
dredge mining ordinarily results in the discharge of
dredged material that is subject to the Corps’
permitting authority. Petitioners focus on only half
the sentence. Although “in-stream mining” most likely
includes suction dredge mining, the general rule
stated in paragraph (i) applies only to “the use of
mechanized earth-moving equipment to conduct ***
in-stream mining.” The small shop-vac-like
equipment used to conduct suction dredge mining
hardly qualifies as “mechanized earth-moving
equipment,” unless one views vacuum cleaners and
other small suction devices as “mechanized earthmoving equipment.” Were there any doubt about the
matter, the explanation for the 2001 rule removes it.
Appendix A-33
It explains that the phrase “mechanized earth-moving
equipment” refers to “bulldozers, graders, backhoes,
bucket dredges, and the like.” 66 Fed Reg 4552
(Jan 17, 2001).
More importantly, the point of the rule was to
distinguish large-scale earth moving activities where
any redeposit of unprocessed dredged material into
the water was likely to be a regulable discharge of
dredged material from smaller scale activities where
the redeposit of unprocessed dredged material was
likely to be only “incidental fallback.” The 2001 rule
was not intended to determine, nor did it determine,
whether discharges resulting from processing dredged
material were subject to the Corps or the EPA’s
permitting authority. When both the entire rule and
the reason for promulgating it are considered, we
cannot agree with petitioners that the 2001 rule
signaled a departure from the Corps and the EPA’s
stated position in the 1986 memorandum of
agreement. Similarly, we do not agree with petitioners
that the 2001 rule reflects the Corps’ conclusion that
discharges resulting from processing dredged
material over water, as opposed to processing it over
land, will be automatically subject to the Corps’
permitting authority under section 404.
That same conclusion follows from the explanation
for the 2001 final rule, which incorporated the
preamble to the 2000 proposed rule. 17 See 66 Fed Reg
17 Both rules stated that using mechanized earth-moving
equipment to conduct certain dredging activities ordinarily will
result in a regulable redeposit of dredged material. The two rules
differed only in how they allocated the burden of proving or
disproving whether activities that came within that general rule
resulted in incidental fallback. Presumably for that reason, the
Appendix A-34
4552 (Jan 17, 2001). Specifically, the preamble to the
2000 proposed rule expressly recognized that the
discharge of material resulting from placer mining is
“the ‘addition of a pollutant’ under the [Clean Water
Act] subject to EPA’s section 402 regulatory
authority.” 65 Fed Reg 50110 (Aug 16, 2000).
In the preamble to the 2000 proposed rule, the
Corps recognized that one problem in defining
“incidental fallback” is that it shares many
characteristics with regulable discharges of dredged
material. See 65 Fed Reg 50109 (Aug 16, 2000). The
Corps accordingly sought to identify the “nature of
th[e] activities and the types of equipment used” that
ordinarily will result in the regulable discharge of
dredged materials. See id. The Corps also reviewed
federal decisions holding that the redeposit of dredged
material constituted a regulable discharge. See id. at
50110. In doing so, the Corps listed cases concluding
that the discharge of unprocessed dredged material
resulted in a discharge of dredged materials subject to
the Corps’ authority under section 404 of the Clean
Water Act. See id. (discussing cases involving
sidecasting of dredged material, the redeposit of
dredged material on adjacent sea grass beds, and
backfilling trenches with dredged material).
After citing cases involving the redeposit of
unprocessed dredged material, the Corps cited one
decision that involved the discharge of processed
dredged material, which it distinguished from the
other cited cases with a “see also” cite. The
explanation stated:
preamble to the proposed 2000 rule remained relevant to
explaining the final 2001 rule.
Appendix A-35
“see also, Rybachek v. EPA, 904 F.2d 976 [1276]
(9th Cir. 1990) (removal of dirt and gravel from
a stream bed and its subsequent redeposit in the
waterway after segregation of minerals is ‘an
addition of a pollutant’ under the CWA subject to
EPA’s section 402 regulatory authority).”
Id. That explanation is consistent with the District of
Columbia Circuit’s decision in National Mining
Assoc., which explained that Rybachek had addressed
“the discrete act of dumping leftover material into the
stream after it had been processed,” not “imperfect
extraction, i.e., extraction accompanied by incidental
fallback of dirt and gravel.” See National Mining
Assoc., 145 F.3d at 1406. The Corps’ description of
Rybachek, however, went further than that and
stated, consistently with the 1986 memorandum of
agreement, that the material discharged as a result of
placer mining “is ‘an addition of a pollutant’ under the
CWA subject to EPA’s section 402 regulatory
authority.” Far from suggesting an intent to depart
from the conclusion in the 1986 memorandum of
agreement, the 2001 final rule and the explanation for
the 2000 proposed rule are consistent with the Corps’
and the EPA’s earlier conclusion that the discharge of
placer mining waste is not the discharge of dredged
material and that, as a result, the EPA is authorized
to issue permits under section 402 of the Clean Water
Act for the processed waste discharged as a result of
suction dredge mining.
4. The Corps’ 2008 rules
As explained above, the 1975 exception to the
definition of “discharge of dredged material” identified
one instance in which the act of processing dredged
material will result in the discharge of a pollutant that
Appendix A-36
requires a permit from the EPA under section 402. It
did not, however, unambiguously resolve whether
other instances of processing dredged material would
result in such a discharge. The dissent reasons that,
even if that is a correct interpretation of the 1975
definition of “discharge of dredged material,” the 2008
version of that definition resolved the ambiguity. We
reach a different conclusion. The 2008 version of the
definition of “discharge of dredged material” left the
relevant part of the 1975 regulations unchanged, and
the differences between the 1975 version and the 2008
version of the definition provide no reason to think
that the 2008 regulation somehow changed what the
1975 regulation meant when it was initially
promulgated.
The relevant part of the 1975 definition of
“discharge of dredged material” does not differ in any
material respect from the 2008 definition. The 1975
regulation provided that “[t]he term ‘discharge of
dredged material’ means any addition of dredged
material * * * into navigable waters.” 33 CFR
§ 209.120(5) (1976). It then provided that
“[d]ischarges of pollutants into navigable waters
resulting from the onshore subsequent processing of
dredged material that is extracted for any commercial
purpose (other than fill) are not included within th[e]
term [discharge of dredged material].” Id. The 2008
regulation says the same thing. It provides that
“[e]xcept as provided in paragraph (d)(2) below, the
term discharge of dredged material means any
addition of dredged material into *** the waters of the
United States.” 33 CFR § 323.2(d)(1) (2009).
Paragraph (d)(2) then provides that the term
“discharge of dredged material does not include the
following: *** discharges of pollutants into the waters
Appendix A-37
of the United States resulting from the onshore
subsequent processing of dredged material that is
extracted for any commercial use (other than fill).”
33 CFR § 323.2(d)(2)(i) (2009).
There are two potentially relevant changes to the
definition of the phrase “discharge of dredged
material” between 1975 and 2008. First, the
exceptions are organized slightly differently, an
organizational change that occurred in 1993 and that
prompted no discussion when it occurred. 58 Fed Reg
45008 (Aug 25, 1993), codified as 33 CFR § 323.2(d)
(1994). 18 That is, the 1993 regulation (and the 2008
regulation) group initially two and later three
exceptions together and put them in one place rather
than stating each exception in a separate sentence, as
the regulations did from 1977 to 1993.
Second, between 1975 and 2008, the Corps added
two exceptions to the term “discharge of dredged
material.” In 1977, the Corps restated what had been
an exception to the definition of “dredged material” for
“material resulting from normal farming, silviculture,
and ranching activities, such as plowing, cultivating,
seeding, and harvesting, for the production of food,
fiber, and forest products” and moved it to become an
exception to the definition of “discharge of dredged
material.” See 33 CFR § 209.120(d)(4) (1976); 33 CFR
§ 323.2(l) (1978). The Corps explained that it had
The explanation for the changes in the Federal Register
focused almost completely on the Corps’ decision to expand the
definition of “discharge” to include incidental fallback. See 58 Fed
Reg 45008-26 (Aug 25, 1993). More specifically, the discussion
focused on when the incidental discharge of unprocessed dredged
material would constitute a regulable discharge. See id.
18
Appendix A-38
intended in 1975 to make clear that “activities such as
plowing, seeding, harvesting, and any other activity
by any other industry that do not involve discharges of
dredged or fill material” do not require section 404
permits. 42 Fed Reg 37130 (July 19, 1977) (emphasis
added). It reasoned that restating and moving that
exception to the definition of “discharge of dredged
material” clarified its intent to except only those
ordinary sorts of activities that do not result in a
discharge of dredged material. 19 Id. The third
exception was added in 1999 (and restated several
times) to exclude “incidental fallback” from the
definition of discharge of dredged material. That
exception is discussed at some length above.
The second and third exceptions (added in 1977
and 1999) are excluded from the definition of
“discharge of dredged material” because the Corps
concluded that they do not involve any “discharge” of
dredged material. The first exception stands on a
different footing. That exception assumes that there is
a “discharge” but establishes that, as a result of the
19 In 1993, the Corps restated that agricultural exception one
more time. 33 CFR § 323.2(d)(2)(ii) (1994). As restated, the
exception provided that the discharge of dredged material does
not include:
“activities that involve only the cutting or removing of
vegetation above the ground (e.g., mowing, rotary cutting,
and chainsawing) where the activity neither substantially
disturbs the root system nor involves mechanized pushing,
dragging, or other similar activities that redeposit excavated
soil material.”
Id. As before, the Corps explained that the reason for the
exception was that the listed activities “would not cause either
the addition or redeposition of dredged material.” 58 Fed Reg
45017 (Aug 25, 1993).
Appendix A-39
act of processing dredged material, the material
discharged is a “pollutant” subject to section 402
rather than “dredged material” subject to section 404.
That is, the second and third exceptions turn on the
absence of a discharge; the first turns on the nature of
the material being discharged.
Contrary to the dissent’s reading of the 2008
definition of “discharge of dredged material,” the
changes to that definition between 1975 and 2008
provide no reason to say that the exception
promulgated in 1975 means anything other than what
it meant in 1975. Specifically, both the 1975 and the
2008 regulations leave open the question whether
other instances of processing dredged material—
namely, instances other than the one instance
identified in the 1975 exception—will result in the
discharge of a pollutant subject to section 402 or the
discharge of dredged material subject to section 404.
It is precisely because the regulations leave that
question open that the EPA and the Corps’ application
of the statute and regulations matters.
5. Regulatory approval
Either the EPA or a state agency acting under
authority delegated by the EPA may issue a permit
under section 402 of the Clean Water Act for the
discharge of pollutants after providing an opportunity
for a hearing. See 33 USC § 1342(a)(1) (permits issued
by the EPA); 33 USC § 1342(b) (states acting under
delegated authority). However, in considering
regulatory approval of permits for suction dredge
mining, we focus on permits issued by the EPA or the
Corps and do not rely on permits issued by states, such
as Oregon, that are acting pursuant to authority
delegated by the EPA. Without some showing that the
Appendix A-40
EPA has formally adopted a state agency’s issuance of
a permit, the states’ regulatory actions do not provide
a strong basis for determining the meaning of a
federal statute. Cf. DeCambre v. Brookline Housing
Auth., 826 F3d 1, 19 (1st Cir 2016) (explaining that
deference to state agency interpretations of federal
statutes could undercut the uniform interpretation of
federal law).
Focusing on the EPA’s issuance of permits, the
state argues and petitioners do not dispute that the
Regional Administrator of the EPA has issued general
permits for suction dredge mining in Alaska that were
in effect from 1994 to 2015. 20 Not only has the EPA
issued general permits for suction dredge mining in
Alaska, but the Corps in Alaska administers a general
permit for “mechanical placer mining,” which notes
that small scale suction dredge mining is not an
activity covered by the Corps’ general permit but is
instead regulated under a permit issued by the state
agency acting under delegated authority from the
EPA. 21 Specifically, the Corps’ permit provides that
the “use of a suction device to remove bottom
substrate from a water bod[y] and discharges of
material from a sluice box for the purpose of
extracting gold or other precious metals *** [are]
regulated by the ADEC [Alaska Department of
20 Since that time, the responsibility for issuing permits for
suction dredge mining has been delegated to Alaska’s
counterpart to Oregon’s DEQ. While the Alaska counterpart has
acted consistently with the EPA, we look primarily to the EPA’s
permitting decisions.
21 The Corps may issue a permit under section 404 only after
notice and an opportunity for a public hearing. See 33 USC
§ 1344(a)(1); 33 CFR § 325.3.
Appendix A-41
Environmental Conservation] under a Section 402
Alaska Pollution Discharge Elimination System
(APDES) permit.”
To be sure, in 2012, the Corps extended another
regional general permit, 2007-372-MI, that regulates
“floating recovery devices” used for the purposes of
recovering metals. That permit, however, was not
issued under the Clean Water Act but under the
Corps’ authority under Section 10 of the Rivers and
Harbors Act. Moreover, the Corps’ permit excepts
small suction dredge mining. It provides:
“[N]o Corps authorization is required for these
operations. Recovery of metals in a Section 404
water results in discharge from a sluice,
trommel, or screen, however this discharge is
regulated
by
Alaska
Department
of
Environmental Conservation (ADEC) under a
Section 402, Alaska Pollutant Discharge
Elimination System Permit (APEDS).” 22
As the Corps’ and the EPA’s joint exercise of authority
in Alaska demonstrates, those agencies have adhered
to the distinction reflected in the 1986 memorandum
of agreement and stated in the Corps’ 1990 regulatory
guidance letter. The EPA has issued permits for
discharges resulting from small scale suction dredge
22 In a 2017 notice stating that it was extending the permit until
2018, the Corps added:
“The Corps DOES NOT regulate the discharge or release
of rocks and or sediment from a sluice box mounted on a
recovery device. The sluice box discharge is regulated by
the ADEC under a section 402 APDES permit.”
(Capitalization in original.)
Appendix A-42
mining, and the Corps has recognized the EPA’s
authority to do so.
Additionally, as noted above, in April 2018, the
Regional Administrator of the EPA reissued a general
permit for suction dredge mining in Idaho after notice
and comment. Before doing so, the EPA addressed
several comments questioning the EPA’s authority to
issue a permit for suction dredge mining. See EPA,
Response to Comments on Idaho Small Suction
Dredge General Permit at 3-7. Some commenters took
the position that suction dredge mining should not be
regulated at all. Id. at 3-4. Similarly, others argued
that the material discharged as a result of suction
dredge mining was incidental fallback and thus not
subject to regulation. Id. at 5-6. In responding to those
comments, the EPA explained that “commenters often
confuse the ‘discharge of dredged material’ with the
‘discharge of a pollutant.’ ” Id. at 7. The EPA
reaffirmed its position that the material discharged as
a result of suction dredge mining was the “discharge
of a pollutant” subject to regulation under section 402
and not incidental fallback, which does not constitute
a regulable discharge of dredged material. Id. The
EPA then noted that, consistently with that
conclusion, “the Corps routinely informs applicants
who request a 404 permit for small suction dredging
in Idaho that, unless a regulable discharge of dredged
or fill material will occur, the EPA is the lead agency
for the activity.” Id.
The EPA thus reaffirmed that the material
discharged as a result of suction dredge mining is a
pollutant that requires a permit from the EPA under
section 402 and not dredged material that requires a
permit from the Corps under section 404. Petitioners
Appendix A-43
argue, however, that the Corps has issued three
permits that lead to a different conclusion.
Specifically, they rely on two nationwide permits
(NWP) issued by the Corps and a regional permit also
issued by a division of the Corps. We consider each
permit separately.
The first permit, NWP 19, authorizes dredging of
“no more than 25 cubic yards below” the plane of the
ordinary high water mark. 82 Fed Reg 1988 (Jan 6,
2017). Notably, NWP 19 only authorizes dredging—
the removal of dredged material from navigable
waters. It does not authorize the discharge or addition
of dredged material to the navigable waters of the
United States, which is the statutory predicate for a
section 404 permit under the Clean Water Act. See
National Mining Assoc., 145 F3d at 1404
(distinguishing between the Corps’ authority to
permit dredging under the Rivers and Harbors Act of
1899 and its authority to permit the discharge of
dredged or fill material into navigable waters under
section 404 of the Clean Water Act). Because a permit
authorizing the removal of dredged material from
navigable water differs from a permit authorizing the
discharge of dredged material into navigable water,
NWP 19 does not advance petitioners’ argument.
The second permit, NWP 44, is arguably closer to
the mark. It authorizes the discharge of “dredged or
fill material” into the nontidal waters of the United
States for mining activities, provided that either the
discharge does not cause the loss of “greater than 1/2acre of nontidal wetlands” or as long as the total
mined area does not exceed 1/2 acre for open waters,
such as rivers, streams, lakes, and ponds. 82 Fed Reg
1994 (Jan 6, 2017). By its terms, NWP 44 applies to
Appendix A-44
the issuance of a permit for a single mining project
that can entail water impoundments and construction
on fill or dredged material discharged into the water.
See NWP 44, General Conditions Nos. 8, 9, 14, 15, 23,
and 24. Moreover, it requires preconstruction
notification for certain activities and remedial
mitigation by the project proponent. Id.
At first blush, the fact that NWP 44 authorizes the
discharge of dredged material for mining purposes
appears to support petitioners’ argument. On closer
inspection, however, we reach a different conclusion.
First, NWP 44 is directed at individual mining
projects that can involve the impoundment of water
and construction of temporary or permanent
structures for mining, rather than recreational
suction dredge mining. Second, in authorizing the
discharge of up to one-half acre of fill or dredged
material, NWP 44 appears to refer to unprocessed
dredge material or fill. It does not expressly address
whether processed dredged material remains subject
to the Corps’ permitting authority under section 404
or whether processing can result in the addition of a
pollutant subject to the EPA’s permitting authority
under section 402. Third, and consistently with the
second observation, the commentary to NWP 44 states
that “[d]ischarges of processed mine materials into
waters of the United States may require authorization
[by the EPA] under section 402 of the Clean Water
Act.” 82 Fed Reg 1921 (Jan 6, 2017).
Finally, petitioners rely on a regional general
permit that the Corps issued in 1995 for northern
California for “certain work activities and incidental
discharges of dredged or fill material associated with
suction dredge mining.” Department of the Army,
Appendix A-45
Regional General Permit No. 21181-98 (June 7, 1995).
Again, at first blush, the permit appears to support
petitioners’ view that the Corps has exercised
permitting authority over suction dredge mining.
However, from 1961 to 2009, the State of California
issued permits authorizing suction dredge mining
under section 5653 of the California Fish and Wildlife
Code, see People v. Rinehart, 1 Cal 5th 652, 658, 206
Cal.Rptr.3d 571, 377 P.3d 818 (2016), cert den sub nom
Rinehart v. California, 138 S Ct 635 (2018), 23 and the
Corps’ permit on which petitioners rely specifically
provides that “[w]ork under this regional general
permit is authorized only for holders of current and
valid California Department of Fish and Game
[section] 5653 Permits * * * commonly referred to as
‘standard permits’, for the purpose of engaging in
suction dredge mining for mineral extraction.”
(Emphasis added.)
Moreover, the Corps issued the 1995 regional
permit two years after it promulgated the 1993
regulations that defined the “discharge” of dredged
materials as including “any addition, including any
redeposit, of dredged material, including excavated
material, into the waters of the United States, which
is incidental to any activity * * *.” 32 CFR
§ 323.2(d)(1)(iii) (1994). That rule was later modified
in 1999 to except “incidental fallback,” and it is
unclear whether the Corps’ 1995 regional permit was
issued merely to comply with the rules in effect from
1993 to 1999 that the discharge of unprocessed
dredged material that was incidental to any activity
23 In 2009, the California imposed a temporary moratorium on all
suction dredge mining, which was scheduled to sunset in 2016.
See Rinehart, 1 Cal 5th at 658, 377 P3d 818.
Appendix A-46
required a permit under section 404 of the Clean
Water Act. See Regional General Permit No. 21181-98
(authorizing “incidental discharges of dredged or fill
material associated with suction dredge mining”).
Beyond that, the 1995 regional permit does not
purport to be the exclusive permitting authority for
suction dredge mining but serves instead only as
auxiliary authorization. The Corps’ permit applies
only if a person possesses a standard permit for
suction dredge mining issued by the State of
California. Finally, the 1995 regional permit expired
on July 1, 2000, and petitioners do not identify any
other permit issued by the Corps after it amended its
regulations in 1999 to exclude incidental fallback that
provides auxiliary authorization for incidental
discharges resulting from suction dredge mining.
Ultimately, we do not view NWP 19, NWP 44, or
Regional General Permit No. 21181-98 as persuasive
authority for petitioners’ position. Rather, NWP 19
does not authorize the discharge of dredged materials;
the commentary to NWP 44 recognizes that the
discharge of processed mining waste may require a
permit from the EPA under section 402; and the 1995
regional
general
permit
provided
auxiliary
authorization for incidental discharges associated
with suction dredge mining at a time when the Corps’
regulations recognized that any discharge of
unprocessed dredged material that was “incidental to
any activity” was a regulable discharge under section
404.
In our view, the regulatory history reveals that,
from 1986 to 2018, the EPA and the Corps have been
on the same page. From the 1986 memorandum of
agreement between the EPA and the Corps to the
Appendix A-47
general permits issued by the EPA in 2018 and the
Corps in 2017, both agencies consistently have
recognized that processed waste discharged as a result
of suction dredge mining is a pollutant that requires a
permit from the EPA under section 402. Similarly,
they consistently have concluded that the discharge
resulting from suction dredge mining is not “dredged
material” that requires a permit from the Corps under
section 404. With that regulatory history in mind, we
turn to the deference owed those agency decisions.
C. Deference
In Coeur Alaska, the Court explained that
Congress had not “directly spoken” to the precise
question in that case, and it looked “to the agencies’
regulations construing [the statutory text], and [the
Corps and] the EPA’s subsequent interpretation of
those regulations” to determine the answer to that
question. 557 US at 277.
As Coeur Alaska recognized, agencies charged with
administering a federal statute may interpret that
statute in ways that call for deference. See id. The
agencies may promulgate rules after notice and
comment. See Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 US 837, 104 S.
Ct. 2778, 81 L. Ed. 2d 694 (1984); accord United States
v. Mead Corp., 533 US 218, 226-27, 121 S Ct 2164, 150
L Ed 2d 292 (2001). Or they may engage in formal
adjudication following notice and comment, which will
also warrant Chevron deference. See Mead Corp., 533
US at 227 (explaining that “[d]elegation of such
authority may be shown in a variety of ways, as by an
agency’s power to engage in adjudication or noticeand-comment rulemaking”); Charles H. Koch, Jr. and
Richard Murphy, 4 Administrative Law & Practice
Appendix A-48
§ 11.34.10 (3d ed 2010) (recognizing “a safe harbor for
Chevron deference where an agency uses notice and
comment, formal adjudication, or similarly extensive
procedures
to
develop
the
interpretation”).
Additionally, the Court recently reaffirmed that an
agency’s reasonable interpretation of its own
regulations will warrant deference. See Kisor v.
Wilkie, 588 U.S. ––––, 139 S. Ct. 2400, 2414-18, ––– L.
Ed. 2d –––– (2019) (listing the criteria for deferring to
an agency’s interpretation of its own regulations). 24
Finally, agency interpretations contained in opinion
letters and the like are entitled to respect but only to
the extent that they have the power to persuade.
Christensen v. Harris County, 529 U.S. 576, 587, 120
S. Ct. 1655, 146 L. Ed. 2d 621 (2000) (citing Skidmore
v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L.
Ed. 124 (1944)).
As explained above, the text of the Clean Water Act
does not speak directly to the question whether
discharges resulting from suction dredge mining
constitute the “discharge of dredged *** material”
subject to the Corps’ permitting authority or the
discharge of processed waste subject to the EPA’s
permitting authority. One would hardly expect
Congress to have focused on such a small detail.
Rather, that is precisely the sort of issue that
ordinarily would be (and was) left to the EPA’s and the
Corps’ application of the broader principles stated in
the Clean Water Act. We also conclude that the
regulations that those agencies have promulgated do
24 In Kisor, a majority of the Court joined in only part of Justice
Kagan’s opinion. See Kisor, 139 S Ct at 2424 (Roberts, C.J.,
concurring in part) (joining in Parts I, II-B, III-B, and IV of
Justice Kagan’s opinion). In discussing Kisor, we refer only to
those parts of the decision that state the opinion for the Court.
Appendix A-49
not resolve that issue. The regulations expressly
recognize that the act of processing dredged material
can result in the discharge of a pollutant that requires
a permit from the EPA under section 402 rather than
the discharge of dredged material that requires a
permit from the Corps under section 404. However, as
explained above, the regulations do not resolve
whether the discharges resulting from suction dredge
mining constitute a pollutant subject to section 402 or
dredged material subject to section 404. Both the
statutes and the regulations are genuinely ambiguous
on that question.
In our view, the most persuasive answer to that
question lies in the general permits for suction dredge
mining that the EPA has issued after notice and
comment. Because the level of formality that attends
the issuance of those permits bears on the deference
due the EPA’s interpretation, see Mead Corp., 533 US
at 230, we discuss that issue briefly. Congress has
provided that the EPA may issue a permit for the
discharge of a pollutant into the navigable waters of
the United States only “after opportunity for a public
hearing.” 33 USC § 1342(a)(1). Consistently, the
EPA’s rules provide that the Regional Administrator
of the EPA may issue an individual or a general
permit only after providing notice and an opportunity
for comment. See 40 CFR § 124.10 (requiring notice
and an opportunity for comment); 40 CFR § 124.8
(requiring preparation of a fact sheet); 40 CFR
§ 124.17 (requiring a response to all significant
comments as a prerequisite to the issuance of a final
permit); 40 CFR § 122.28(b)(4) (providing that general
permits are subject to the procedures in 40 CFR Part
124). Any person who filed comments on the draft
permit or participated in a public hearing on the draft
Appendix A-50
permit may petition for review to the Environmental
Appeals Board. 40 CFR § 124.19 (a)(2). Only when the
petition for review is finally resolved may the Regional
Administrator issue a permit. 40 CFR § 124.19(l).
As we read both the Clean Water Act and the
EPA’s rules, they require the opportunity for a
hearing before the Regional Administrator following
notice and comment and provide for an appeal to the
Environmental Appeals Board, which serves as the
arm of the Administrator of the EPA to ensure that
the agency speaks with one voice. 40 CFR § 1.25(e)
(defining the role of the Environmental Appeals
Board). 25 Not only does the formality that attends the
issuance of individual permits call for Chevron
deference under Mead Corp., but that is particularly
true for the general permits that the EPA issues.
General permits are not limited to discharges from a
single point source, as an individual permit is;
instead, they apply to multiple discharges resulting
from an activity, such as suction dredge mining, that
can occur across a wide geographic area. See 40 CFR
§ 122.2 (defining “general permit”). As such, general
permits possess many if not more similarities with
rules than they do individual adjudications.
As discussed above, the EPA has issued general
permits for suction dredge mining in Alaska that were
in force from 1994 to 2015, and it reissued a general
permit for suction dredge mining in Idaho in 2018.
Similarly, in extending a general permit for floating
recovery devices in 2012 and again in 2017, the Corps
25 As noted above, the Corps follows similar procedures in issuing
permits under section 404. See 33 USC § 1344(a)(1); 33 CFR
§ 325.3.
Appendix A-51
agreed that “no Corps authorization is required” for
the processed waste discharged as a result of small
suction dredge mining. The Corps explained instead
that those discharges are regulated by the Alaska
Department of Environmental Conservation under
section 402. All those permits, issued after notice and
comment and an opportunity for a hearing, reaffirm
the EPA’s and the Corps’ conclusion that the EPA is
authorized under section 402 of the Clean Water Act
to issue permits for the processed waste discharged as
a result of suction dredge mining.
Not only do those permits possess a sufficient
measure of formality to warrant Chevron deference,
but the EPA’s conclusion that it is authorized to
permit discharges resulting from suction dredge
mining and the Corps’ acquiescence in that conclusion
are reasonable. Cf. Coeur Alaska, 557 US at 283
(deferring to a similar issue that had been “addressed
and resolved in a reasonable and coherent way by the
practice and policy of the two agencies”); id. at 291
(Breyer, J., concurring) (recognizing a “legal zone
within
which the regulating agencies might
reasonably classify material as ‘dredged *** material’
subject to § 404 *** or as a ‘pollutant’ subject to §§ 402
and 306”). As explained above, it is possible to classify
the material discharged as a result of suction dredge
mining as “dredged material” subject to the Corps’
permitting authority. However, is it equally possible
to classify the material discharged as a result of
suction dredge mining as a “pollutant” that is subject
to the EPA’s permitting authority under section 402.
Petitioners argue, however, that the material
discharged as a result of suction dredge mining is
indistinguishable from the discharge of unprocessed
Appendix A-52
dredged material over which the Corps has permitting
authority. Both can remobilize heavy metals, such as
mercury, and both can result in turbid wastewater
plumes. As we understand petitioners’ argument, they
contend that it is arbitrary to classify the discharge
resulting from suction dredge mining as anything
other than “dredged material.” 26 One difference,
however, between the two types of discharges is the
cumulative impact of suction dredge mining. Unlike
the discharge of dredged material, which often is
project-specific, suction dredge mining is a
recreational activity that numerous people can pursue
simultaneously in the same or multiple locations.
EPA, Response to Comments on Idaho Small Suction
Dredge General Permit at 13 (explaining that the EPA
The dissent starts from a similar but analytically separate
premise in interpreting the regulations. It reasons that, if the act
of processing dredged material consists only of only removing
part of the dredged material and adds nothing to it, then the
resulting discharge will necessarily be “dredged material.” The
dissent, however, never identifies the basis for that premise,
other than its own intuitive sense of the matter. Certainly,
nothing in the text of the regulations stands for that proposition.
Indeed, the one regulation that addresses discharges resulting
from processing dredged material points in precisely the opposite
direction. That regulation excepts discharges of pollutants
resulting from the onshore processing of dredged material
extracted for a commercial use from the “discharge of dredged
material,” without regard to whether the processing consisted of
removing part of the dredged material or adding something to it.
Finally, the dissent’s premise is contrary to over 30 years of the
EPA’s and the Corps’ consistent interpretation of their rules that
the discharge of placer mining waste (waste left over after
minerals have been removed from dredged material) is the
discharge of a pollutant that requires a permit from the EPA
under section 402.
26
Appendix A-53
deemed suction dredge mining as a “recreational
activity,” which numerous people can undertake).
In responding to similar objections to treating the
discharge from suction dredge mining as a pollutant
subject to section 402, the EPA has observed that
suction dredging is “ ‘of special concern where it is
frequent, persistent, and adds to similar effects
caused by other human activities.” Id. at 11 (quoting
Bret C. Harvey and Thomas E. Lisle, Effects of Suction
Dredging on Streams: a Review and an Evaluation
Strategy 15 (Aug 1998)). In determining the extent to
which suction dredge mining should be permitted, the
EPA considers the total maximum density load of
sediment that a stream is capable of handling. That
varies depending on, among other things, the type of
sediment where the suction dredge mining will be
conducted, the extent to which a stream is already
impaired by sediment, the rate of stream-flow, and the
number of point sources—i.e., suction dredge
miners—discharging additional sediment into the
stream. Id. at 26. The concern is not with the
navigability of the water body, a concern that falls
within the Corps’ expertise; rather, the concern is with
the health of the water body, a concern that lies at the
heart of the EPA’s expertise.
The Corps and the EPA reasonably could conclude
that the EPA was better suited than the Corps to
make those types of water quality decisions. The risks
posed by the cumulative effects of multiple suction
dredge mining operations on the overall health of a
stream differ from the sort of engineering issues that
the Corps typically addresses. See Nadia H. Dahab,
Muddying the Waters of Clean Water Act Permitting:
NEDC Reconsidered, 90 Or L Rev 335, 352-54 (2011)
Appendix A-54
(discussing the EPA and the Corps’ respective spheres
of expertise). Specifically, the effect of increased
sedimentation on water quality posed by multiple
suction dredge mining operations requires the
permitting agency to consider the number of permits
that should be issued, the streams in which suction
dredge mining should be permitted or limited, and the
appropriate restrictions that should be included for
each stream on the intensity, duration, and frequency
of the activity.
Perhaps the Corps could have made those same
kinds of water quality decisions. However, in light of
the cumulative impact of sedimentation on water
quality that can result from suction dredge mining
and in light of the need to include appropriate limits
on the permits to maintain the health of affected
water bodies, the Corps and the EPA reasonably could
conclude, as they have, that permits for the discharge
of material resulting from suction dredge mining
should be issued by the EPA under section 402 rather
than by the Corps under section 404. It follows, we
think, that the general permits issued by the both the
EPA and the Corps are reasonable agency
interpretations of a statute following notice and
comment procedures that warrant deference under
Mead. 27
27 Both the EPA and the Corps are charged with implementing
the Clean Water Act. Because both agencies have issued general
permits after a formal adjudication recognizing that discharges
from small suction devices are subject to a permit issued by the
EPA (or its state delegate) under section 402, this case does not
require us to decide whether only one agency’s formal order
would be sufficient under Mead. Cf. Proffitt v. FDIC, 200 F3d
855, 860 (DC Cir 2000) (explaining that when two agencies
Appendix A-55
We note alternatively that the EPA’s and the
Corps’ resolution of this issue can be viewed as the
agencies’ interpretation of their own “genuinely
ambiguous” regulations. As explained above, the
regulations recognize that the act of processing
dredged material can result in the discharge of
“pollutants” that require a permit under section 402
rather than the discharge of “dredged material” that
requires a permit under section 404. However, as
explained
above,
the
regulations
do
not
unambiguously answer the specific question in this
case—whether the processed waste discharged as a
result of suction dredge mining falls into the former or
the latter category. See Kisor, 139 S Ct at 2415
(directing courts to consider “the text, structure,
history, and purpose of a regulation” in determining
whether it is genuinely ambiguous). We accordingly
look to the agencies’ interpretation of their regulations
and conclude, for the reasons set out above, that their
consistent conclusions come “within the bounds of
reasonable interpretation.” See id. at 2416 (internal
quotation
marks
omitted).
Moreover,
their
interpretation reflects the agencies’ authoritative or
official position. See id. As noted above, the
Administrator of the EPA has delegated authority to
issue general permits to the Regional Administrators,
a decision that is subject to centralized review by the
Environmental Appeals Board. The agencies’
interpretation also implicates their substantive
expertise, as the Court recognized in Coeur Alaska.
See Kisor, 139 S Ct at 2417 (listing that criterion);
Coeur Alaska, 557 US at 291-92 (Breyer, J.,
administer a statute, one agency’s interpretation is not
sufficient).
Appendix A-56
concurring) (describing the Court’s decision as
deferring to the agencies’ expertise). Finally, the
agencies’ interpretation reflects their fair and
considered judgment. See Kisor, 139 S Ct. at 2417-18.
Their interpretation is not a convenient litigating
position, a post-hoc rationalization, or a new
interpretation that creates unfair surprise. See id.
Indeed, since entering into a memorandum of
agreement in 1986, both the EPA and the Corps
consistently have recognized that the processed waste
discharged as a result of small suction dredge mining
is a pollutant that requires a permit from the EPA
under section 402 rather than dredged material that
requires a permit under section 404. Even if deference
to the agencies’ formal interpretation of their
regulations were not sufficient under Mead, the EPA
and the Corps’ consistent and reasonable
interpretation of the regulations warrants deference
under Kisor. 28
Two other issues require mention. First, much of
petitioners’ opening brief focuses on evidentiary
challenges to the factual premises underlying DEQ’s
issuance of the permit. The Court of Appeals, however,
declined to exercise its discretion to consider
petitioners’ third assignment of error contending that
DEQ’s findings were not supported by substantial
evidence. Petitioners have not argued that the Court
of Appeals abused its discretion in making that
decision, and it is unclear how much, if any, of
petitioners’ fact-specific challenges are properly before
28 We would reach the same conclusion even if we viewed the
agencies’ actions less deferentially as a persuasive agency
interpretation under Skidmore.
Appendix A-57
us. Beyond that, as we understand the legal question
before us, it is whether the EPA and the Corps
reasonably have concluded that the EPA (and by
extension DEQ) has permitting authority under
section 402 over discharges resulting from suction
dredge mining. It is difficult to understand how the
factual record developed in a state hearing somehow
limits the Corps’ and the EPA’s interpretation of their
own regulatory authority, as opposed to establishing
the appropriate numeric, geographic, and temporal
limitations on suction dredge mining permitted in
local rivers and streams.
Second, petitioners argue that the Court of
Appeals erred in concluding that the single discharge
resulting from suction dredge mining was subject to
permits issued by both the Corps and the EPA (or its
state delegate). In petitioners’ view, only one agency
had the authority to permit the discharge. Although
petitioners do not cite Coeur Alaska in support of their
argument, we note that that decision is consistent
with their position. See Coeur Alaska, 557 US at 286
(agreeing that a “two-permit regime [for a single
discharge] is contrary to the [Clean Water Act] and
the regulations”); see also Dahab, Muddying the
Waters of Clean Water Act Permitting, 90 Or L Rev at
354-56 (critiquing the two-permit reasoning in NEDC,
232 Or App at 644-45).
We need not resolve that issue to decide this case.
As explained above, we defer to the EPA’s and the
Corps’ reasonable conclusion that the EPA (or its state
delegate) has the authority to issue a permit under
section 402 for all the processed waste discharged as
a result of suction dredge mining. Given the Corps’
and the EPA’s conclusion that the EPA has authority
Appendix A-58
over that permitting decision, we need not decide
whether those agencies could have divided permitting
responsibility for a single discharge between them. To
be sure, DEQ’s 2010 permit may have been too narrow
in that it applied to only part of the discharge
resulting from suction dredge mining. However,
petitioners do not challenge the 2010 permit on the
ground that it is too narrow. Rather, they challenge it
on the ground that it is too broad. In their view, the
EPA did not have any permitting authority over
discharges resulting from suction dredge mining. That
argument is not well taken and provides no basis for
reversing the Court of Appeals decision.
The decision of the Court of Appeals is affirmed.
BALMER, J., dissenting.
The majority opinion reaches a result that may be
sensible, but takes a path that is closed off by the
federal caselaw that we are bound to follow. When an
agency reasonably interprets an ambiguous statute by
promulgating a rule, we must give deference to its
interpretation. Here, the two agencies charged with
administering the Clean Water Act (CWA) created
rules interpreting some of its ambiguous terms; those
definitions, to which we must defer, clearly resolve
this case in petitioners’ favor. The majority colors
outside the lines of agency deference, and in the
process ends up interpreting the statute by deferring
to certain actions of the two federal agencies involved
here, and perhaps to their desires, but not, as we
must, to their duly promulgated interpretation of the
Clean Water Act. I respectfully dissent.
The CWA imposes responsibilities on both the
Army Corps of Engineers and the Environmental
Appendix A-59
Protection Agency (EPA). Section 402, administered
by the EPA, gives that agency permitting authority
over “the discharge of any pollutant.” 33 USC
§ 1342(a)(1). The Corps, under section 404, “may issue
permits, after notice and opportunity for public
hearings for the discharge of dredged or fill material
into the navigable waters at specified disposal sites.”
33 USC § 1344(a). But that authority does not overlap.
“If the Corps has authority to issue a permit, then the
EPA may not do so.” Coeur Alaska, Inc. v. Southeast
Alaska Conservation Council, 557 US 261, 275,
129 S Ct 2458, 174 L Ed 2d 193 (2009).
In 2010, Oregon’s Department of Environmental
Quality (DEQ) issued a general permit for suction
dredge mining under the authority of section 402.
DEQ issued the general permit on the understandable
theory that suction dredge mining involves the release
of dirt and gravel into the water, creating a plume of
turbidity that is the “addition of a pollutant.”
Petitioners argue that DEQ exceeded its authority
under section 402 because, even if the release of dirt
and gravel from suction dredge mining would
otherwise constitute the “discharge” or “addition” of a
pollutant, it is a “discharge of dredged *** material”
under section 404 and therefore properly subject to
permitting only by the Corps.
This case therefore turns on the meaning of the
phrase “discharge of dredged * * * material” in section
404. “When a court reviews an agency’s construction
of the statute which it administers,” Chevron U.S.A. v.
Natural Resources Defense Council, 467 US 837, 842,
104 S Ct 2778, 81 L Ed 2d 694 (1984), it is bound to
apply an interpretive canon known as Chevron
deference. Chevron involves a two-step inquiry. At the
Appendix A-60
first step, the court interprets the statute “employing
traditional tools of statutory construction ***.” Id. at
843 n 9. “If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed
intent of Congress.” Id. at 842-43. At the second step,
“if the statute is silent or ambiguous with respect to
the specific issue, the question for the court is whether
the agency’s answer is based on a permissible
construction of the statute.” Id. at 843, 104 S Ct 2778.
“Even under that deferential standard, however,
‘agencies must operate within the bounds of
reasonable interpretation.’ ” Michigan v. EPA, –––
US ––––, –––– 135 S Ct 2699, 2707, 192 L Ed 2d 674
(2015) (quoting Utility Air Regulatory Group v. EPA,
573 US 302, 321, 134 S Ct 2427, 189 L Ed 2d 372
(2014)).
Chevron does not require deference to all agency
interpretations, because Chevron depends on the
scope of Congress’s delegation to the agency and how
the agency has set forth its interpretation. However,
“administrative implementation of a particular
statutory provision qualifies for Chevron
deference when it appears that Congress
delegated authority to the agency generally to
make rules carrying the force of law, and that
the agency interpretation claiming deference
was promulgated in the exercise of that
authority.”
United States v. Mead Corp., 533 US 218, 226-27, 121
S Ct 2164, 150 L Ed 2d 292 (2001).
Appendix A-61
I begin with the first step, interpreting CWA
section 404 itself, and determining whether suction
dredge mining involves “the discharge of dredged or
fill material into the navigable waters ***.” 33 USC
§ 1344(a). It could be argued that this text is enough
to settle the case. After all, suction dredge mining does
“dredge” material. And, in a literal sense, that
material is then “discharged” into water. But suction
dredge mining also involves passing that dredged
material over a sluice tray in order to separate out
gold. It may be that dredged material remains
dredged material indefinitely. But it might reasonably
be thought that in some circumstances material that
has been dredged will cease to qualify as dredged
material. For example, the gold removed from the
stream may be “dredged material” initially, but it
might be anomalous to refer to it as “dredged
material” once it has been turned into a wedding ring.
Additionally, the context of section 404 is relevant.
The words “discharge of dredged or fill material”
demarcate the jurisdictional line between the EPA
and the Corps, and thus might be read in a way that
takes into account the relative competencies of the
agencies—such as by focusing on the purpose or the
environmental effects of the discharge. Thus, at
Chevron step one, I find the statute ambiguous.
Chevron’s first step being satisfied, it is
appropriate to turn to agency interpretations. The
Corps and the EPA have promulgated rules, through
notice and comment rulemaking, to clarify the
definitions of “dredged material” and “discharge of
dredged material.” Those rules, which were most
recently revised in 2008, define dredged material as
follows:
Appendix A-62
“The term dredged material means material that
is excavated or dredged from waters of the
United States.”
33 CFR § 323.2(c). 1 Thus, “dredged material” is
defined based solely on the source of the material—the
waters of the United States—and the process by which
it is removed—excavation or dredging. There is no
temporal caveat, and no qualification based on
subsequent processing or environmental effects. 2 To
read the definition to be conditioned on such
requirements would require a judicial addition to the
rule’s text, which would be entirely inconsistent with
the Supreme Court’s directive that we “must employ
traditional tools of interpretation” to interpret
regulations. Christopher v. SmithKline Beecham
Corp., 567 US 142, 161, 132 S Ct 2156, 183 L Ed 2d
153 (2012).
There are parallel and identical definitions contained in rules
issued by the EPA and located in 40 CFR § 232.2. For
convenience, I cite only to the Corps’ rules in 33 CFR § 323.2.
1
The omission of any consideration of effects is particularly
telling because in the context of fill material, the Corps and the
EPA did opt for an effect-based definition:
2
“(e)(1) Except as specified in paragraph (e)(3) of this
section, the term fill material means material placed in
waters of the United States where the material has the
effect of:
“(i) Replacing any portion of a water of the United
States with dry land; or
“(ii) Changing the bottom elevation of any portion of
a water of the United States.”
33 CFR § 323.2.
Appendix A-63
To be sure, an interesting question would be raised
if we were faced with a mixture of dredged material
and some other substance which had not been
“excavated or dredged from waters of the United
States.” The definition does not, perhaps, speak
clearly to the question of whether such a mixture, or a
portion thereof, would constitute “dredged material.”
Suction dredge mining, however, processes material
only by removing part of it. All of the remaining
material, absolutely everything ultimately added to
the water, was “excavated or dredged from waters of
the United States.”
Because everything released by suction dredge
mining is “dredged material,” the next question is
whether the release of that material into the water
qualifies as “discharge of dredged material”:
“(d)(1) Except as provided below in paragraph
(d)(2), the term discharge of dredged material
means any addition of dredged material into,
including redeposit of dredged material other
than incidental fallback within, the waters of
the United States.”
33 CFR § 323.20(d)(1). Leaving aside, for the moment,
the exceptions, this definition also favors the Corps’
authority. The material released from suction dredge
mining, all of which is “dredged material,” is released
into—added to—the water. Thus, it is captured by
“any addition of dredged material into *** the waters
of the United States.”
I turn to the exceptions set out in paragraph (d)(2):
“(2) The term discharge of dredged material
does not include the following:
Appendix A-64
“(i) Discharges of pollutants into waters of the
United States resulting from the onshore
subsequent processing of dredged material that
is extracted for any commercial use (other than
fill). These discharges are subject to section 402
of the Clean Water Act even though the
extraction and deposit of such material may
require a permit from the Corps or applicable
State section 404 program.
“(ii) Activities that involve only the cutting or
removing of vegetation above the ground (e.g.,
mowing, rotary cutting, and chainsawing)
where the activity neither substantially
disturbs the root system nor involves
mechanized pushing, dragging, or other similar
activities that redeposit excavated soil
material.
“(iii) Incidental fallback.”
33 CFR § 323.20(d)(2). The first exception confirms
that “dredged material” does include material that has
subsequently been processed, including that which
has been processed onshore. If it did not, then
subparagraph (d)(2)(i) would be superfluous—it would
serve no purpose to exclude from the definition of
“discharge of dredged material” the release of
something that was not “dredged material” in the first
place. See Corley v. United States, 556 US 303, 314,
129 S Ct 1558, 173 L Ed 2d 443 (2009) (referring to
the rule against superfluities as “one of the most basic
interpretive canons”).
The exclusion from the Corps’ jurisdiction of
certain subsequently processed material also shows
that the Corps and the EPA considered how to handle
Appendix A-65
processed dredged material. And the only exception to
the Corps’ jurisdiction related to processing is not one
that applies here. To fall under subparagraph (d)(2)(i),
and thus be subject to permitting under section 402
rather than section 404, the processing must be
“onshore,” and the dredged material must be
“extracted for any commercial use (other than fill).” It
could reasonably be disputed whether the second
condition is satisfied here—many suction dredge
miners are hobbyists—but the first is not. Suction
dredge mining typically involves processing that is not
“onshore,” and DEQ’s permitting scheme—and
certainly its assertion of authority over petitioners’ instream suction dredging—reaches beyond onshore
processing.
The agencies’ regulations interpret the ambiguous
terms “dredged material” and “release of dredged
material,” and they do so reasonably. The definitions
that they have selected are natural and permissible
constructions of the statutory text. Under Chevron,
the deferring court “need not conclude that the agency
construction was the only one it permissibly could
have adopted to uphold the construction, or even the
reading the court would have reached if the question
initially had arisen in a judicial proceeding.” Chevron,
467 US at 843 n. 11. The definitions contained in the
rules therefore pass Chevron’s second step. Because
those rules were adopted through notice and comment
rulemaking, and agreed on both agencies charged
with administering the relevant sections of the CWA, 3
3 Some courts have held that “[w]hen a statute is administered
by more than one agency, a particular agency’s interpretation is
not entitled to Chevron deference.” Proffitt v. F.D.I.C., 200 F3d
855, 860 (DC Cir 2000). However, where, as here, both agencies
Appendix A-66
they satisfy Mead. This is heartland Chevron
territory, and we are bound to defer to the agencies’
interpretation.
The majority does not dispute that the 2008 rules
are owed deference, but concludes that those rules are
best read not to speak, one way or the other, to the
question at hand. However, the majority’s analysis of
the definition of “discharge of dredged material”
places heavy reliance on a textual ambiguity that no
longer exists. The majority reasons that the 1975
version of the same regulation sets forth a “general
rule” that “redeposit of unprocessed dredged material
into navigable water will constitute the ‘discharge of
dredged material,’ ” Eastern Oregon Mining Assoc. v.
DEQ, 365 Or 313, 329, 445 P.3d 251 (2019); that there
is an exception for some dredged material that is
processed onshore; and that “the rule leaves
unanswered whether other categories of water-based
or land-based processing operations will result in the
‘discharge of dredged material’ that requires a permit
from the Corps under section 404,” Id. at 329, 445 P.3d
at 260.
It does not matter whether that was a permissible
reading of the 1975 regulation; it is clearly foreclosed
by the current text of 33 CFR § 323.2(d)(1),
promulgated in 2008:
“Except as provided below in paragraph (d)(2),
the term discharge of dredged material means
any addition of dredged material into, including
charged with administering a statute have jointly promulgated a
single interpretation, deference is appropriate. See Loan
Syndications & Trading Association v. S.E.C., 882 F3d 220, 222
(DC Cir 2018) (holding that Chevron does apply when the
multiple involved agencies have issued a joint interpretation).
Appendix A-67
redeposit of dredged material other than
incidental fallback within, the waters of the
United States.”
(Emphasis added.) The present structure of the
definition makes clear that aside from redeposit of
“incidental fallback” and the express exceptions
contained in paragraph (d)(2), every other “addition of
dredged material” is a “discharge of dredged
material.” There is no longer—if there ever was—a
phantom category of dredged material additions that
the definition simply does not address. The only
exception for processed dredged material is the
express exception contained in subparagraph (d)(2)(i).
Having brushed past the easy answer, the majority
wends through a thicket of past regulatory decisions
by the EPA and the Corps. Those materials, which
postdate the statute, are not relevant to our Chevron
step one interpretation of section 404, using the
ordinary tools of statutory construction. Instead, the
majority interprets section 404 by deferring, under
Chevron, to a few of those agency materials: a general
permit issued by the EPA in Idaho in 2018, and
general permits issued by the Corps and the EPA in
Alaska over the past decade.
Any attempt to defer to those materials faces an
insurmountable hurdle. Chevron requires deference to
an agency’s interpretation of a statute, but nothing in
the permits, or even in the associated materials,
contains an interpretation of section 404 or any of its
terms. Of course, implicit interpretations can still
merit deference. In National Railroad Passenger
Corporation v. Boston & Maine Corp., 503 US 407,
420, 112 S Ct 1394, 118 L Ed 2d 52 (1992), the
Supreme Court reasoned that
Appendix A-68
“the fact that the ICC did not in so many words
articulate its interpretation of the word
‘required’ does not mean that we may not defer
to that interpretation, since the only reasonable
reading of the Commission’s opinion, and the
only plausible explanation of the issues that the
Commission addressed after considering the
factual submissions by all of the parties, is that
the ICC’s decision was based on the proffered
interpretation.”
That case, however, involved a situation where it was
clear, at least contextually, that the agency had
interpreted the statute and what the interpretation
was. When those features are lacking, courts typically
do not defer to implicit interpretations. As the D.C.
Circuit explained in declining to defer to an agency
manual,
“even if we were prepared to accord Chevron
deference to the PRO Manual, that document
contains no interpretation of [the statute] to
which we might defer. * * * Most important,
there is no place in the manual where the
agency explains why it believes that a PRO
satisfies the statutory injunction to inform a
complainant of the ‘final disposition’ of the
complaint simply by telling him that it has
investigated the matter and will take action if
appropriate. Because the manual thus contains
no reasoning that we can evaluate for its
reasonableness, the high level of deference
contemplated in Chevron’s second step is
simply inapplicable.”
Public Citizen, Inc. v. U.S. Department of H.H.S., 332
F3d 654, 661 (DC Cir 2003) (emphasis in original); see
Appendix A-69
also Former Employees, Marathon Ashland Pipe Line
v. Chao, 370 F3d 1375, 1382 n 2 (Fed Cir 2004)
(expressing confusion about deference to an implicit
interpretation because “it is not entirely clear what it
is that the government wishes us to defer to”).
The non-overlapping authority of the EPA and the
Corps means that when EPA issues a general permit
under section 402, it must have concluded that the
permitted activity is not the subject of the Corps’
permitting authority under section 404. Similarly, the
Corps permits state that the EPA has authority over
suction dredge mining. But none of that allows us to
discern what either agency understood “discharge,”
“dredged material,” or any other statutory term in
section 404, to mean (much less that they agreed on
an interpretation). The majority does not hazard a
guess as to what their interpretation is. Therefore,
rather than assessing the agency interpretation of the
statute for reasonableness, as Chevron’s second step
requires, the majority evaluates only the
reasonableness of its practical consequence—that the
EPA rather than the Corps gets to regulate suction
dredge mining. See 365 Or at 351-52.
Moreover, it is doubtful that the agencies’ analysis
of section 404 extended any further than concluding
(as they must) that the answer really turns on the
meaning of the more specific definitions contained in
33 CFR § 323.2, not the bare text of the CWA.
Consequently, the permitting decisions that the
majority relies on are very likely interpretations of the
agencies’ regulations, not a statute. That
interpretation would be entitled to deference, if at all,
not under Chevron, but under Auer v. Robbins, 519 US
452, 117 S Ct 905, 137 L Ed 2d 79 (1997), which
Appendix A-70
requires courts, when interpreting regulations, to
defer to the agency’s interpretation of its own
regulations. Not long ago, the distinction might not
matter in a case like this one, because Auer was
generally understood to give even more deference to
agency interpretations of rules than is accorded to
agency interpretations of statutes under Chevron.
However, the Supreme Court recently emphasized
that it “has cabined Auer’s scope in varied and critical
ways.” Kisor v. Wilkie, ––– US ––––, –––– 139 S Ct
2400, 2418, ––– L Ed 2d –––– (2019). The upshot of
that shift is that while courts previously could have
been insensitive to whether the implicit agency
interpretation of a statute that they were deferring to
under Chevron was actually an implicit interpretation
of a rule—because even if it were, deference would be
required anyway—accepting that uncertainty is no
longer an option. Given that Auer and Chevron have
different, non-coextensive limits, it cannot be
appropriate to defer to an agency’s implicit
interpretation under Chevron unless it is either clear
that the agency really is interpreting a statute, or, at
minimum, that the agency’s interpretation would be
owed deference under Auer and Kisor even if the
agency were interpreting a rule. 4 For that reason, the
majority decides, in the alternative, that it can defer
to the same materials under Auer in interpreting the
4 In Coeur Alaska, Justice Scalia accused the Court of invoking
Auer to defer to what was effectively an agency’s interpretation
of a statute, in order to avoid the limitations that Mead had
imposed on Chevron deference. 557 US at 295, 129 S.Ct. 2458
(Scalia, J, concurring in part and concurring in the judgment).
Now, Auer’s own application having been restricted, we should
not use Chevron to avoid Kisor’s limitations.
Appendix A-71
applicable regulations. 365 Or at 352, 445 P.3d at 27273.
In light of Kisor, Auer now requires a five-step
analysis before deference can be accorded to an
agency’s interpretation of its rules. “First and
foremost, a court should not afford Auer deference
unless the regulation is genuinely ambiguous.” Kisor,
––– US at ––––, 139 S Ct at 2415. Before deferring to
the agency, “a court must ‘carefully consider[ ]’ the
text, structure, history, and purpose of a regulation, in
all the ways it would if it had no agency to fall back
on.” Id. at ––––, 139 S Ct at 2415 (quoting Pauley v.
BethEnergy Mines, Inc., 501 US 680, 707, 111 S Ct
2524, 115 L Ed 2d (1991) (Scalia, J., dissenting)).
Second, the agency’s reading “must come within the
zone of ambiguity the court has identified after
employing all its interpretive tools.” Id. at ––––, 139
S Ct at 2416. Third, the interpretation “must be the
agency’s ‘authoritative’ or ‘official position,’ rather
than any more ad hoc statement not reflecting the
agency’s views.” Id. at ––––, 139 S Ct at 2416. Fourth,
“the agency’s interpretation must in some way
implicate its substantive expertise.” Id. at ––––,
139 S Ct at 2417. Fifth, “an agency’s reading of a rule
must reflect ‘fair and considered judgment’ to receive
Auer deference,” Id. (quoting Christopher, 567 US at
155, meaning that, among other things, a court
generally should not give “Auer deference to an agency
construction ‘conflict[ing] with a prior’ one.” Id. at
––––, 139 S Ct at 2417-18 (quoting Thomas Jefferson
University v. Shalala, 512 US 504, 515, 114 S Ct 2381,
129 L Ed 2d 405 (1994)).
The first and simplest reason that no agency is
owed deference in its interpretation of
Appendix A-72
is that that rule is not genuinely ambiguous as to the
question at hand, once ordinary interpretive methods
have been applied. Neither the majority nor the state
offers a permissible reading of the 2008 rule under
which suction dredge mining involves the discharge of
anything other than “dredged material.” But even if
the regulation were ambiguous, deference would not
be appropriate here.
Although the majority points to recent general
permits by the EPA regulating suction dredge mining
under section 402, the Corps has also issued a general
permit for suction dredge pursuant to section 404.
That occurred in California, in 1995, with the permit
expiring in 2000. See Department of the Army,
Regional General Permit No. 21181-98 (Jan 7, 1995).
The majority downplays that fact, suggesting that
“the 1995 regional permit does not purport to be the
exclusive permitting authority for suction dredge
mining, but serves instead only as an auxiliary
authorization” to state permits. 365 Or at 345. The
same is true of the 2018 EPA Idaho permit that the
majority does rely upon—suction dredge miners also
need approval from the Idaho Department of Water
Resources—and is of no consequence for either. More
substantial is the majority’s suggestion that the 1995
permit may have been issued as part of the Corps’
short-lived efforts to regulate in-stream excavation
under the theory that the “incidental fallback” from
excavation constituted a regulable “discharge of
dredged material.” 365 Or at ____. If the 1995 permit
were directed only to the excavation involved in
suction dredging, and not to the release of processed
dredged material back into the water, then any
inconsistency with the EPA’s subsequent permitting
of suction dredge mining would be lessened. But the
Appendix A-73
majority’s suggestion does not hold up to scrutiny,
because the 1995 general permit plainly was not
limited to “incidental fallback” from excavation. As
the permit was “for certain work activities and
incidental discharges of dredged or fill material
associated with suction dredge mining” (emphasis
added), its coverage was not limited to incidental
discharges, much less to incidental fallback. And the
requirements of the permit made clear that it applied
to the post-processing discharge of dredged material,
not (or, at least, not just) incidental fallback as a result
of excavation. For example, it specified that
“[m]ercury recovered from the waterway as part of the
suction dredging-process may not be returned to the
waterway.” That requirement makes sense only if it is
understood as a limitation on the release of dredged
material that has been fully removed from the water
and processed in some form.
Thus, in 1995, under the same statute and a
functionally-identical operative regulation, the Corps
concluded that suction dredge mining involved a
discharge of dredged material under section 404, from
which it would necessarily follow that the EPA would
not have permitting authority. If there is an agency
interpretation in play here, it does not appear to have
been a consistent one, as Kisor requires. Those
inconsistent actions, the product of regional offices,
also raise serious concerns that the regional
permitting process may not “ ‘reflect[ ] the considered
judgment of the agency as a whole’ ” as to the meaning
of the regulations. Kisor, ––– US at ––––, 139 S Ct at
2424 (quoting Mead, 533 US at 233.
But even putting those qualms to one side, any
deference would require the interpreting court first to
Appendix A-74
perform its task of ensuring that “the agency’s reading
[falls]
‘within
the
bounds
of
reasonable
interpretation.’ Kisor, ––– US at ––––, 139 S Ct at
2416 (quoting Arlington v. FCC, 569 US 290, 296, 133
S Ct 1863, 185 L Ed 2d 941 (2013)). The Supreme
Court has reaffirmed that Auer “gives agencies their
due, while also allowing—indeed, obligating—courts
to perform their reviewing and restraining functions.”
Id. at ––––, 139 S Ct at 2415 (emphasis added); see
also id. at ––––, 139 S Ct at 2449 (Kavanaugh, J.,
concurring in the judgment) (“after today’s decision, a
judge should engage in appropriately rigorous
scrutiny of an agency’s interpretation of a regulation,
and can simultaneously be appropriately deferential
to an agency’s reasonable policy choices within the
discretion allowed by a regulation”). We cannot satisfy
that obligation here because, as discussed above in the
context of Chevron deference, it is impossible to tell
what the supposed joint interpretation is. Certainly,
the cited materials give no hint. 5 The majority points
to the purpose and effects of suction dredge mining—
suction dredge mining is recreational and may cloud
the water—and to the EPA’s expertise on the health
of water bodies. 365 Or at 350-51. But the regulation
is, on any reading, completely unambiguous that those
considerations do not factor into the division of
jurisdiction between the two agencies. In any event, “a
court should decline to defer to a merely ‘convenient
5 The majority highlights a 1990 guidance letter that that did
offer an interpretation of the relevant regulation, 365 Or at 33233, but acknowledges that that letter expired almost thirty years
ago and that the Corps has since indicated that that letter is no
longer valid and no longer provides useful information, id. at
333 n. 15. It is not, therefore, an interpretation that might merit
deference.
Appendix A-75
litigating position’ or ‘post hoc rationalizatio[n]
advanced’ to ‘defend past agency action against
attack,’ ” Kisor, ––– US at ––––, 139 S Ct at 2417
(quoting Christopher, 567 US at 155). That being the
case, this court certainly should not square the circle
by deferring to its own post hoc rationalization.
It is true that, as the majority documents, there are
some indications that both agencies might presently
prefer discharges from suction dredge mining to be
regulated by the EPA. But those signals do not qualify
for deference under either Chevron or Auer. 6 And the
only agency product that does demand deference, the
regulations promulgated by both agencies after notice
and comment, points decisively in the other direction.
That leaves one final issue: whether there are, as
the Court of Appeals held, two discharges from suction
dredge mining—“ ‘dredged spoil and mining tailings’ ”
and “ ‘turbid wastewater’ ”—or one. Eastern Oregon
Mining Assoc. v. DEQ, 285 Or App 821, 825, 398 P3d
449 (2017) (quoting Northwest Environmental Defense
Center v. EQC, 232 Or App 619, 644, 223 P3d 1071
(2009)). To find, as the Court of Appeals did, two
simultaneous discharges, one regulated by each
agency, would seem to contravene the Supreme
Court’s interpretation of the CWA in Coeur Alaska
and its holding that “a two-permit regime is contrary
to the statute and regulations.” 557 US at 286. In any
event, even if there are two discharges, both would fall
Other agency actions may still qualify for deference under
Skidmore v. Swift & Co., 323 US 134, 65 S Ct 161, 89 L Ed 124
(1944), to the extent that they have the power to persuade. But,
because the general permits that the majority relies on do not
advance an interpretation or a justification, Skidmore deference
also is unavailable.
6
Appendix A-76
under the Corps’ permitting authority. However the
discharge is characterized or subdivided, it involves
only the “redeposit of dredged material.”
Nothing that I have said should suggest that
suction dredge mining might not be better regulated
by DEQ in concert with the EPA, rather than by the
Corps. I take no position on that policy question and
heed instead the Supreme Court’s caution “that
‘judges ought to refrain from substituting their own
interstitial lawmaking’ for that of an agency.”
Arlington, 569 US at 304-05 (quoting Ford Motor
Credit Co. v. Milhollin, 444 US 555, 568, 100 S Ct 790,
63 L Ed2d 22 (1980)). I also do not mean to suggest
that the CWA cannot permissibly be read to divide
authority between the agencies as the majority does.
If the Corps and the EPA were to promulgate a new
rule, clarifying that suction dredge mining was not
within the Corps’ jurisdiction, I doubt that I would
have any difficulty concluding that that also was a
reasonable interpretation of section 404. The point is
simply that those agencies have not done so. The last
time that they spoke in a way that merited
deference—when they jointly promulgated the 2008
regulations—they put suction dredge mining within
the Corps’ purview. The Corps may now wish to
disclaim permitting authority over suction dredge
mining. But the current rules say what they say, and
no principle of agency deference accords the
emanation of an intention the same stature as a rule
promulgated after notice and comment.
Accordingly, I respectfully dissent.
Appendix B-1
FILED: June 01, 2017
IN THE COURT OF APPEALS
OF THE STATE OF OREGON
EASTERN OREGON MINING ASSOCIATION;
GUY MICHAEL; and CHARLES CHASE,
Petitioners-Appellants,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY;
DICK PEDERSON, in his capacity as Director of the
Department of Environmental Quality; and NEIL
MULLANE, in his capacity as Administrator of the
Water Quality Division of the Department
of Environmental Quality,
Respondents-Respondents.
Marion County Circuit Court
10C24263
___________________________________________
WALDO MINING DISTRICT, an unincorporated
association; THOMAS A. KITCHAR;
and DONALD R. YOUNG,
Petitioners-Appellants,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY;
DICK PEDERSON, in his capacity as Director of the
Department of Environmental Quality; and NEIL
MULLANE, in his capacity as Administrator of the
Water Quality Division of the Department
of Environmental Quality,
Respondents-Respondents.
Marion County Circuit Court
11C19071
A156161
Appendix B-2
On remand from the Oregon Supreme Court, Eastern
Oregon Mining Association v. DEQ, 360 Or 10, 376
P3d 288 (2016).
Courtland Geyer, Judge.
Submitted on remand August 23, 2016.
Argued on remand May 04, 2017.
James L. Buchal argued the case for appellants. With
him on the briefs was Murphy & Buchal LLP.
Michael A. Casper, Assistant Attorney General,
argued the cause for respondents. On the answering
brief were Ellen F. Rosenblum, Attorney General,
Anna M. Joyce, Solicitor General, and Inge D. Wells,
Assistant Attorney General. On the supplemental
brief were Ellen F. Rosenblum, Attorney General,
Benjamin Gutman, Solicitor General, and Michael A.
Casper, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Egan, Judge,
and Shorr, Judge.
SHORR, J.
Portion of judgment concluding DEQ had authority to
issue 2010 700-PM permit under section 402 of the
Clean Water Act affirmed; otherwise declining to
address remaining moot issues under ORS 14.175.
Appendix B-3
_________________________________________________
DESIGNATION OF PREVAILING
PARTY AND AWARD OF COSTS
Prevailing party:
Respondents
[ ] No costs allowed.
[X] Costs allowed, payable by Appellants.
[ ] Costs allowed, to abide the outcome on remand,
payable by
_________________________________________________
SHORR, J.
This case returns to us on remand from the
Supreme Court. The first issue on remand is whether
we will exercise our discretion under ORS 14.175 to
decide the otherwise moot issues presented by this
case. As discussed below, we decide to exercise our
discretion to reach only petitioners’ first assignment
of error. With respect to the merits of that assignment,
we determine, based on our decision in a prior related
case, that the trial court did not err in concluding that
respondent Department of Environmental Quality
(DEQ) had the delegated authority under section 402
of the Clean Water Act 1 to issue the general permit to
regulate “visible turbidity” from small suction dredge
mining. We decline to exercise our discretion to reach
the second through fourth assignments of error.
This litigation and the type of small suction dredge
mining permit at issue has a long history. Some
background is helpful to understand our opinion. We
1 As we have done in the past, we refer to the Federal Water
Pollution Control Act Amendments of 1972, 33 USC §§ 12511387, by the more commonly used “Clean Water Act.”
Appendix B-4
start with a brief history of the prior related case,
which, as we later discuss, resolves our decision on the
first assignment of error. The two primary parties
involved in this case, petitioner Eastern Oregon
Mining Association (EOMA) and respondent DEQ,
were also parties to that prior case, Northwest
Environmental Defense Center v. EQC, 232 Or App
619, 223 P.3d 1071 (2009), rev. dismissed, 349 Or 246
(2010) (Northwest Environmental Defense Center I). In
that case, petitioners EOMA and other petitioners
(collectively
petitioners) 2
sought
a
judicial
determination from us under ORS 183.400 that would
have invalidated a general discharge permit, which
was known as the “700-PM permit,” that was issued
by DEQ in 2005. 3 232 Or App at 622. The 2005 700PM permit placed conditions on the operation of small
suction mining dredges in Oregon waters. Id.
Petitioners are individual small suction dredge
miners and associations of such miners. Small suction
dredge mining generally involves using a gas-powered
pump to pull streambed sediments and water through
a small intake hose, which passes the material
through a sluice tray that separates out gold and other
dense particles for collection, and then returns the
discharged water and lighter material back into the
stream. Id. at 623.
2 There is some, but not complete, overlap among petitioners in
Northwest Environmental Defense Center I and petitioners in this
appeal.
The 700-PM permit was adopted by DEQ’s policy and rulemaking board, the Oregon Environmental Quality Commission,
and issued by DEQ. Northwest Environmental Defense Center I,
232 Or App at 623 n. 2.
3
Appendix B-5
In the prior case, petitioners argued to us that the
permitting of discharges from small suction dredge
mining was within the exclusive regulatory authority
of the Army Corps of Engineers (Corps) under the
Clean Water Act. Id. at 622. In other words,
petitioners claimed that DEQ had no authority under
federal law to issue the 700-PM permit. Conversely,
DEQ argued that it had the delegated authority to
issue the permit under the Clean Water Act’s National
Pollution Discharge Elimination System (NPDES)
and ORS 468B.035, by which the state accepted that
delegated authority. 4 Northwest Environmental
Defense Center I, 232 Or App at 622. Broadly stated
for these introductory purposes, the Corps has
exclusive authority under section 404 of the Clean
Water Act to regulate the permitting of the “discharge
of dredged or fill material” into navigable waters. 33
USC § 1344(a). Separately, the Environmental
Protection Agency (EPA) has the authority under
Northwest Environmental Defense Center (NEDC), an
environmental interest group, was also a party to the prior case
and argued that the 700-PM permit was invalid because DEQ
“failed to follow certain procedural requirements and because the
permit violates aspects of the Clean Water Act.” Northwest
Environmental Defense Center I, 232 Or App at 622.
4
NEDC is not a party to this case, although issues related to
NEDC are raised here. In later litigation, NEDC again
challenged DEQ’s practices with respect to the issuance of small
suction dredge mining permits by filing a petition for review in
the circuit court. NEDC ultimately reached a settlement
agreement with DEQ that resolved that litigation. As part of this
case, petitioners contest DEQ’s authority to resolve certain issues
relating to the permitting of small suction dredge mining through
that settlement agreement rather than through administrative
rule-making or contested-case procedures. As discussed below,
we do not exercise our discretion to reach that issue.
Appendix B-6
section 402 of the Clean Water Act to regulate the
permitting of the “discharge of any pollutant” into
navigable waters. 33 USC § 1342(a)(1), (4). As part of
the NPDES program, states also have the delegated
authority to administer their own permit programs for
the discharge of pollutants into navigable waters.
Id. § 1342(a)(3), (b).
In December 2009, we issued our opinion in
Northwest Environmental Defense Center I, which
addressed the 700-PM permit that DEQ issued in
2005. We examined whether the small suction dredge
mining that was regulated by that 700-PM permit
involved the discharge of dredged material,
exclusively regulated by the Corps, or the discharge of
pollutants, which can be regulated by the state. 232
Or App at 630. We concluded that small suction
dredge mining usually “involves the placement of
dredged spoil and mining tailings in piles and that
such a discharge constitutes the ‘discharge of dredged
material’ ” that is regulated exclusively by the Corps.
Id. at 643-44. However, we further concluded that
small suction dredge mining also involves the
discharge of “turbid wastewater—i.e., the discharge of
water that contains suspended solids.” Id. at 644. We
determined that turbid wastewater sent further
downstream is a “pollutant” regulated by the EPA
and, by federal statutory delegation, the state. Id. at
644-45. We noted that the problem was that the 2005
700-PM permit regulated “all waste discharges from
small suction dredges,” which would include the
regulation of both the discharge of “dredged material”
that piles up in navigable waterways and turbid
wastewater that disperses water and suspended solids
further downstream. Id. at 645 (emphasis in original).
Appendix B-7
The United States Supreme Court has held that
the regulatory authority granted to the Corps by
section 404 (governing, in part, the discharge of
“dredged or fill material”) forecloses the EPA’s
authority to act under section 402 (governing the
discharge of “any pollutant[s]”). Coeur Alaska, Inc. v.
Southeast Alaska Conservation Council, 557 U.S. 261,
274, 129 S Ct 2458, 174 L Ed 2d 193 (2009) (stating
that the Clean Water Act “is best understood to
provide that if the Corps has authority to issue a
permit for a discharge under § 404, then the EPA lacks
authority to do so under § 402”). As a result of the
encroachment of the 2005 700-PM permit on the
Corps’ exclusive regulation of the discharge of dredged
material (even if the permit also regulated pollutants
in the form of turbid wastewater), we held that the
permit exceeded the state’s “statutory authority to
implement the Clean Water Act.” Northwest
Environmental Defense Center I, 232 Or App at 645.
Following
our
decision
in
Northwest
Environmental Defense Center I, the parties sought
and initially were allowed review by the Oregon
Supreme Court. In the meantime, after our decision,
the 2005 700-PM permit expired and was replaced by
DEQ in July 2010 by a newly issued 700-PM permit
regulating small suction dredge mining. Rather than
exercising its rule-making authority, DEQ issued the
new permit as an “order in other than a contested
case.” See ORS 468B.050(2) (giving DEQ authority to
issue certain permits by rule or order). The new 2010
permit, compared to the 2005 permit, focused on
regulating just the discharge of “visible turbidity” in
streams and narrowed the permit to respond directly
to our decision in Northwest Environmental Defense
Center I. DEQ stated in an accompanying fact sheet
Appendix B-8
that the 2010 permit was changed expressly to
“address[ ] a pending Oregon Court of Appeals ruling
that DEQ had not adequately articulated the basis for
prior permit conditions and requirements.”
As a result of the expiration of the 2005 permit, the
issues in Northwest Environmental Defense Center I
were rendered moot. Northwest Environmental
Defense Center v. Environmental Quality Commission,
349 Or 246, 245 P3d 130 (2010) (Northwest
Environmental Defense Center II). Accordingly, the
Supreme Court dismissed the petition for review. Id.
At that time in our history, our courts did not have the
“judicial power under the Oregon Constitution” to
decide a moot case even if the issues presented by the
case were “capable of repetition, yet evading review.”
Yancy v. Shatzer, 337 Or 345, 363, 97 P3d 1161 (2004),
overruled by Couey v. Atkins, 357 Or 460, 520, 355 P3d
866 (2015). Thus, the case in Northwest
Environmental Defense Center II concluded. 349 Or at
246.
That brings us to the current litigation, which in
many ways is “déjà vu all over again” 5 of the prior
litigation. Following DEQ’s issuance of the 2010 700PM permit, the mining petitioners again challenged
the small suction dredge mining permit. This time,
however, they filed a petition for judicial review in the
circuit court under ORS 183.484 challenging the
permit (instead of filing directly with us as a rule
challenge under ORS 183.400). 6 In the operative
5 Attributed to Yogi Berra.
6 Several mining petitioners filed two separate petitions for
judicial review. The environmental group NEDC filed its own
petition for judicial review, which was later resolved by
Appendix B-9
petition, petitioners ultimately asserted two claims for
relief alleging several violations of law. In their first
claim for relief, petitioners alleged that DEQ violated
federal law in issuing the 2010 700-PM permit
because—petitioners claimed again—the permit
regulated the discharge of dredged material that was
exclusively regulated by the Corps under section 404
of the Clean Water Act, and, accordingly, was not
within the EPA and the state DEQ’s delegated
regulatory authority over the discharge of pollutants
under section 402. As part of their first claim,
petitioners also contended that DEQ violated state
water quality laws in issuing the 2010 700-PM permit.
In their second claim for relief, petitioners alleged that
a settlement agreement reached between DEQ and
NEDC that related to the 2010 700-PM permit
violated Oregon law, because it was a privately
negotiated agreement that resolved issues that were
required to be addressed publicly through either
administrative rule making or procedures applicable
to the issuance of agency orders. Petitioners sought,
among other things, to set aside the 700-PM permit
and a declaration that the settlement agreement could
not be used to issue any new suction dredge mining
permit. DEQ moved for summary judgment on all of
petitioners’ claims for relief, and petitioners crossmoved for summary judgment on most, but not all, of
their claims.
The trial court granted summary judgment to
DEQ, agreeing with DEQ on nearly every issue. There
settlement agreement. For ease of reference, we follow the
parties’ practice of relying on the operative petition filed by lead
petitioner EOMA in Marion County Circuit Court Case
No. 10C-24263.
Appendix B-10
are four issues that are relevant to this appeal. First,
the trial court concurred with DEQ that it had the
delegated authority under section 402 of the Clean
Water Act to issue the 2010 700-PM permit to regulate
turbid wastewater. Second, the trial court agreed with
DEQ that it had the authority under state law to issue
the 700-PM permit. Third, the trial court also agreed
with DEQ that substantial evidence supported DEQ’s
decision to issue the 700-PM permit. Fourth, and
finally, the trial court concluded that DEQ had
authority to reach a settlement agreement with
NEDC that resolved pending litigation, and that DEQ
did not have to reach that agreement through either
rule-making or contested-case procedures. After the
parties stipulated to the resolution of one outstanding
issue, the trial court granted DEQ summary judgment
on all claims and denied petitioners summary
judgment on all claims.
Petitioners then appealed the trial court’s
judgment. As happened previously with respect to the
2005 permit, the 2010 700-PM permit expired during
the pendency of the appeal and a new 2015 permit was
issued. Eastern Oregon Mining Assoc. v. DEQ, 273 Or
App 259, 261, 361 P3d 38 (2015) (Eastern Oregon
Mining Assoc. I), rev.’d and rem’d, 360 Or 10, 376 P3d
288 (2016) (Eastern Oregon Mining Assoc. II).
However, unlike during the prior Northwest
Environmental Defense Center litigation, when, under
Yancy, the appellate courts lacked the judicial power
to decide moot cases, by the time we issued our
decision in Eastern Oregon Mining Assoc. I, the
Supreme Court had overruled Yancy, holding in Couey
that Oregon courts do have discretion to decide certain
otherwise moot cases that are “public actions” or
Appendix B-11
involve “matters of public interest.” Couey, 357 Or at
520.
Couey held that the legislature had the authority
under the Oregon Constitution to enact ORS 14.175, 7
which confirms the authority of Oregon courts to
consider otherwise moot cases if they meet three
statutory factors. 357 Or at 463. We applied those
factors in Eastern Oregon Mining Assoc. I and held
that the issues presented did not satisfy the third
factor, which requires that “[s]imilar acts[ ] are likely
to evade judicial review in the future.” 273 Or App at
262. We concluded that a future “challenge to the 2015
permit is not likely to evade judicial review” and that
petitioners could use the accumulated work from their
challenge to the 2010 permit to challenge the 2015
permit. Id.
On review, the Supreme Court disagreed and
concluded that petitioners had met each of the three
factors under ORS 14.175. Eastern Oregon Mining
Assoc. II, 360 Or at 19. The Supreme Court remanded
7 ORS 14.175 provides, in part, that, in any action in which a
party alleges that a certain government act, policy or practice is
unconstitutional or otherwise contrary to law,
“the party may continue to prosecute the action and the court
may issue a judgment on the validity of the challenged act,
policy or practice even though the specific act, policy or practice
giving rise to the action no longer has a practical effect on the
party if the court determines that:
“(1) The party had standing to commence the action;
“(2) The act challenged by the party is capable of repetition, or
the policy or practice challenged by the party continues in
effect; and
“(3) The challenged policy or practice, or similar acts, are likely
to evade judicial review in the future.”
Appendix B-12
the case to us to decide whether we would exercise our
discretion to review the issues in this otherwise moot
case. Id. With that long procedural history stated and
our stage set, we turn to the two issues presently
before us. First, we consider whether we should
exercise our discretion to reach some or all of the
otherwise moot issues presented by petitioners’ four
assignments of error. Second, after deciding to
consider just petitioners’ first assignment of error, we
consider whether the trial court erred in determining
that DEQ had the authority to issue the 2010 700-PM
permit under section 402 of the Clean Water Act.
We consider first whether to exercise our discretion
to consider any of the issues on appeal. As stated
above, petitioners raise four assignments of error
arising from the trial court’s grant of DEQ’s motion for
summary judgment and the denial of petitioners’
cross-motion for summary judgment. Petitioners urge
us to exercise our discretion to consider the merits of
all four assignments of error. In response, DEQ agrees
that we should consider the first assignment of error,
regarding whether DEQ had authority under the
Clean Water Act to issue the 2010 700-PM permit to
regulate turbid wastewater. It contends, however,
that we should not consider the remaining three
assignments. As we discuss below, we agree with DEQ
and choose to address only petitioners’ first
assignment of error.
There has been little, if any, guidance since Couey
on what should guide our exercise of discretion to
consider the merits of otherwise moot issues. See, e.g.,
Hooper v. Division of Medical Assistance Programs,
273 Or App 73, 84, 356 P3d 666 (2015) (concluding
that we will exercise our discretion under
Appendix B-13
and noting “the ongoing relationship between the
parties and the petitioner’s need for the medical
transportation service ultimately at issue”). Couey,
however, offers potential guideposts in its review of
the history of the mootness doctrine.
In Couey, the Supreme Court concluded that
mootness is a prudential, rather than a constitutional,
constraint on justiciability in cases involving “public
actions” or “matters of public interest.” 357 Or at 520.
The court noted that the legislature’s enactment of a
statute, ORS 14.175, to permit consideration of
certain otherwise moot cases merely codified the
historical practice of courts to consider whether to
exercise their judicial power under the Oregon
Constitution over such cases. 357 Or at 521 (stating
that “[s]uch legislation purports to confer no more
authority than what we have just concluded the courts
possess under Article VII (Amended), section 1”).
Consequently, considering that Couey carefully
discussed the history of the prudential justifications
for addressing certain otherwise moot cases, we find it
appropriate to look to those same justifications when
deciding whether to exercise our discretion to consider
the issues in this case. See Eastern Oregon Mining
Assoc. II, 360 Or at 15 (stating that “[e]xisting case
law on the subject of mootness offers guidance
concerning the circumstances under which the court
will continue to dismiss moot claims” even when
considering just prudential considerations).
Although the following list is not exhaustive, we
identify several significant considerations bearing on
whether to exercise our judicial power over moot cases
involving “public actions” or “matters of public
interest.” Couey, 357 Or at 520. Those factors may
Appendix B-14
include, but are not limited to, the adversarial nature
of the parties’ interests, the effect of the decision on
both the parties and others not before the court,
judicial economy, and the extent of the public
importance of the issues presented.
First, Couey recognized that the nature of the
parties’ adverse interests may guide a court’s exercise
of discretion in considering whether to decide
otherwise moot cases. In Couey, when reviewing the
historical prudential justifications for dismissing
moot cases, the court observed that early courts
dismissed moot cases to avoid creating “ ‘rules for the
government of cases in which the real parties would
have had no opportunity to be heard.’ ” 357 Or at 500
(quoting Smith v. Cudworth, 41 Mass 196, 197 (1837)
(emphasis added)). Relatedly, existing case law on the
issue of mootness has also considered whether the
“court’s decision no longer will have a practical effect
on or concerning the rights of the parties.” Brumnett
v. PSRB, 315 Or 402, 406, 848 P2d 1194 (1993). 8 Given
that history, when deciding whether to exercise our
discretion, we conclude that it is appropriate to
8 Of course, in “public action” cases or those involving “matters of
public interest,” the court first considers those same two factors
in determining whether a case is moot before turning to the test
in ORS 14.175(1) to (3) and then whether to exercise discretion
to consider the otherwise moot case. See, e.g., Eastern Oregon
Mining Assoc. II, 360 Or at 15-19 (undertaking analysis). The
application of those factors, even if they have already been
addressed as part of mootness analysis, may still be relevant to
the later issue of whether to exercise discretion to consider the
issues in the case. The parties’ interests may or may not be
adverse in the future even if the litigation at issue has been
resolved. As is the case here, petitioners and DEQ appear likely
to have adverse interests into the future.
Appendix B-15
consider whether the parties’ interests remain
adverse as to future disputes that are likely to recur.
Second, and relatedly, we may also consider whether
the parties are advocating only narrow arguments and
rules of law that may benefit just themselves or are
presenting arguments affecting a wider group of
parties or interests.
Third, Couey recognized “judicial economy” as a
factor that past courts have considered when deciding
whether to exercise judicial power over moot cases.
357 Or at 501. Courts disposed of moot cases, in part,
to avoid “ ‘decid[ing] questions which might never
arise.’ ” Id. at 500 (quoting Smith, 41 Mass. at 197). Of
course, ORS 14.175 already provides that we are to
consider whether an act challenged by a legal action
is “capable of repetition” and yet “likely to evade
judicial review.” ORS 14.175(2)-(3). However, in
deciding whether to exercise our discretion, we may
dig deeper to consider if the challenged act is likely to
arise often. We may also consider whether judicial
economy supports addressing the issue presented by
the litigation before us based on the existing record
and circumstances or whether another, future case
might present a more developed record or more
thoroughly developed arguments.
Considering judicial economy as a relevant factor
is also consistent with our decisions in other similar
areas where we exercise discretion. For example, in
plain-error analysis, we will often exercise our
discretion to correct plain error where not doing so
would “waste further judicial resources.” State v.
Simkins, 263 Or App 459, 461, 330 P3d 1235 (2014).
Appendix B-16
Fourth, Couey recognizes the relative “public
importance” of a case as a historical consideration in
guiding courts’ discretion to exercise judicial power
over otherwise moot cases. 357 Or at 508, 510-11, 519,
521-22. That includes consideration of the “public
interest” in the issues involved as well as the universe
of people and interests potentially affected by the
challenged rule or practice. Id. at 508. Couey
concludes that the Oregon Constitution does not
“require dismissal” of a case that is moot if it is a
“public action[ ]” or one involving “matters of public
interest.” Id. at 520 (emphasis in original). The facts
in Couey did not require the Supreme Court to “define
the outer limits of what might constitute a ‘public
action’ or one involving issues of ‘public interest’ ” for
the purpose of determining the authority of a court to
decide an otherwise moot case. Id. at 522. Although
we do not undertake to define those outer limits here
either, we conclude that courts may consider the
relative public importance of the issues and the
universe of people or interests potentially affected as
part of its exercise of discretion.
As stated, this list is not exhaustive. In addition,
some factors could be in conflict but still lead a court
to exercise discretion to hear a moot case or issue. For
instance, a challenged practice may not be likely to
repeat very often in the future, but it may have such
widespread public effect and importance that the
latter factor still leads us to exercise our discretion.
Applying those factors here, we conclude that we
should exercise our discretion to consider the issues
presented in petitioners’ first assignment of error, but
not the second through fourth assignments of error.
As part of their first assignment of error, petitioners
Appendix B-17
contend that the trial court erred in concluding that
DEQ had authority under federal law, viz., section 402
of the Clean Water Act, to issue a permit that
regulates petitioners’ small suction dredge mining.
We conclude that the discretionary factors that we
discuss above—(a) the past and continuing adversity
of the parties’ interests, (b) the application of the
disputed federal and state laws to wider interests
than those of the parties themselves, (c) judicial
economy, and (d) the relative public importance of the
case and the breadth of people and interests
potentially
affected—support
resolving
that
assignment of error. These same parties have been
litigating a nearly identical legal issue for years, and
there is no indication that the litigation of these issues
will end if we dismiss this appeal as moot. Indeed,
DEQ has issued a new 700-PM permit that relies on
section 402 of the Clean Water Act as a continuing
source of its authority to regulate small suction dredge
mining. The litigated issues certainly affect the
parties, but they also affect a wider class of interests—
those interested in the proper regulation and practice
of small suction dredge mining, including government,
environmental, and mining interests. Judicial
economy also favors considering the first assignment
of error. The factual record has been completely and
well developed. The first assignment presents a legal
issue. The parties have already developed and
presented their arguments to the court twice—each
time being prevented from reaching a conclusion due
to mootness. Refusal to consider petitioners’ argument
on the first assignment of error would lead to a waste
of further judicial resources in developing the factual
and legal issues again in new litigation. Finally,
although we do not consider this a matter of
Appendix B-18
overarching public importance, it raises a significant
issue that affects the public interests noted above.
In their second assignment of error, petitioners
argue that the trial court erred in concluding that
DEQ properly issued the 2010 700-PM permit under
state law. Although petitioners’ argument in this
assignment is not entirely clear, they appear to argue
that, although the 2010 700-PM permit “purports” to
be issued under state law, ORS 468B.050, as well as
the federal Clean Water Act, it actually is solely
authorized, incorrectly in petitioners’ view, under the
Clean Water Act and contains requirements unique to
federal law. DEQ, in response, appears to contend that
its authority is under “both” state and federal law in
furtherance of the “partnership” contemplated by the
Clean Water Act—presumably the state’s delegated
authority under section 402 of the Clean Water Act to
issue NPDES permits. In their reply brief, petitioners
then argue that “whether or not [DEQ] might exercise
state-law-based regulatory power * * * is not before
this Court” and asks us to remand the case back to
DEQ for new permitting under state law or possibly
under different authority, viz., section 401 of the
Clean Water Act.
Without reaching the merits of this dispute, we
choose not to exercise our discretion to reach
petitioners’ second assignment of error because the
argument, as framed by the parties, is not well
developed for this court and may be quite narrow.
Both parties’ arguments can be read to contend that
Appendix B-19
the purely state-law issues are not even properly
before us. For that reason, we will not reach them. 9
We also do not exercise our discretion to reach
petitioners’ third and fourth assignments of error. In
the third assignment of error, petitioners contend that
the trial court erred in concluding that DEQ’s findings
were supported by substantial evidence. Without
discussing each of the discretionary factors that apply
here, we find most persuasive that this assignment of
error raises a case-bound question that, although
perhaps significant to this now-mooted case, does not
present a recurring legal issue that has implications
beyond this particular litigation. Petitioners also no
longer have any ongoing or future “adverse interest”
in whether the 2010 700-PM permit is supported by
“substantial evidence.” Petitioners are no longer
subject to that expired 2010 permit and, significantly,
the 2015 permit is based on a different factual record.
9 There is a chance that there may be new state laws with respect
to small suction dredge mining in the coming years. In 2013, the
legislature passed Senate Bill (SB) 838, which imposed a
moratorium on suction dredge mining from January 2, 2016,
until January 2, 2021, in “any river and tributary thereof” that
contains “essential indigenous anadromous salmonid habitat
* * * or naturally reproducing populations of bull trout,” except
where the populations do not exist due to a “naturally occurring
or la
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