Amicus Curiae Brief — Eastern Oregon Mining Association, et al., Petitioners v. Oregon Department of Environmental Quality, et al.

No. 19-839

In The

Supreme Court of the United States

____________________

EASTERN OREGON MINING ASSOCIATION,

et al.,

Petitioners,

v.

OREGON DEPARTMENT OF ENVIRONMENTAL

QUALITY, et al.,

Respondents.

____________________

On Petition for Writ of Certiorari

to the Supreme Court of Oregon

____________________

BRIEF AMICUS CURIAE OF

AMERICAN MINING RIGHTS ASSOCIATION,

BOHEMIA MINE OWNERS ASSOCIATION,

COEUR D’ALENE MINING DISTRICT, GALICE

MINING DISTRICT, NORTHWEST MINERAL

PROSPECTOR’S CLUB, PUBLIC LANDS FOR

THE PEOPLE, THE NEW 49’ERS LEGAL

FUND, TOM QUINTAL, WILLAMETTE VALLEY

MINERS, JOSEPHINE COUNTY, AND

SISKIYOU COUNTY

IN SUPPORT OF PETITIONERS

____________________

PAUL J. BEARD II

FISHERBROYLES LLP

4470 W. Sunset Blvd., # 93165

Los Angeles, CA 90027

Telephone: 818-216-3988

paul.beard@fisherbroyles.com

Counsel for Amici Curiae

i

QUESTION PRESENTED

The Clean Water Act forbids the unpermitted

“addition of any pollutant to navigable waters,” 33

U.S.C. § 1362(2) (emphasis added). See id. § 1311(a).

Below, the Oregon Department of Environmental

Quality determined, pursuant to federally delegated

power, that the Act’s prohibition applies to small-scale

suction dredge mining. Although such mining results

in the movement of native streambed matter, it adds

no material to the waters in which it is conducted. The

Supreme Court of Oregon upheld the Department’s

assertion of Clean Water Act authority, ruling—in

conflict with decisions of this Court as well as the D.C.

and the Sixth Circuit Courts of Appeals—that the

mere repositioning of things within a water results in

the “addition” of pollutants to that water.

The question presented is:

Does the Clean Water Act regulate activities that

simply move pre-existing material, such as rock, sand,

and gravel, within a “navigable water”?

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

IDENTITIES AND INTERESTS OF AMICI

CURIAE ............................................................ 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT ..................................... 6

ARGUMENT ............................................................... 8

I.

II.

The Question Presented in the Petition Is

of National Importance ............................. 8

The Question Presented in the Petition

Has Created a Split Among the Courts .. 12

CONCLUSION.......................................................... 17

iii

TABLE OF AUTHORITIES

Cases

Borden Ranch P’ship v. United States Army

Corps of Eng’rs,

261 F.3d 810 (9th Cir. 2001) ............................ 11-12

Catskill Mts. Chapter of Trout Unlimited, Inc. v.

City of New York,

273 F.3d 481 (2d Cir. 2001).............................. 13-15

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) ............................................... 14

EPA v. National Crushed Stone Ass'n,

449 U.S. 64 (1980) ................................................. 16

Levin v. United States,

568 U.S. 503 (2013) ............................................... 16

Los Angeles County Flood Control Dist. v.

Natural Res. Defense Council,

568 U.S. 78 (2013) ............................................ 13-17

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ........................................... 14

Rybacheck v. U.S. EPA,

904 F.2d 1276 (9th Cir. 1990) ............................... 15

Sackett v. Envtl. Protection Agency,

566 U.S. 120 (2012) ........................................ 7-8, 17

South Florida Water Management Dist. v.

Miccosukee Tribe of Indians,

541 U.S. 95 (2004) ............................................ 13-17

U.S. Army Corps of Eng’rs v. Hawkes Co.,

136 S. Ct. 1807 (2016) ............................................. 7

iv

Statutes

33 U.S.C. § 1311(a) .................................................. i, 6

33 U.S.C. § 1319(c) .................................................... 11

33 U.S.C. § 1362 (12) ............................................... i, 6

Calif. Fish & Game Code § 5653.1(b) ......................... 5

Or. Rev. Stats. § 517.123 ............................................ 9

Regulations

40 C.F.R. § 19.4 ......................................................... 11

Other Authorities

Calfornia Dep't of Fish & Game, "Draft

Subsequent Environmental Impact Report

for Suction Dredge Permitting Program,"

Chapter 3 (Feb. 2011).............................................. 9

Dunn, Rachel, et al., The Economic Impact of

Suction Dredging in California,

79 Prospecting & Mining J. 1 (2009) .................... 10

Gerber, Adam, Casenote, Borden Ranch

Partnership v. U.S. Army Corps of Engineers:

A Barge in a Bucket? May Isolated Wetlands Be

Considered “Navigable Waters” Under the CWA?,

15 Vill. Envtl. L.J. 415, 433 (2004) ...................... 11

McDowell Group, The Economic Impacts of

Placer Mining in Alaska (2014) .............................. 9

Miller, Jeffrey G., Plain Meaning, Precedent, and

Metaphysics: Interpreting the “Addition” Element

of the Clean Water Act Offense, 44 Envtl. L. Rep.

News & Analysis 10770 (2014) ............................. 14

v

Skelton, Brittany M., Note & Comment: To

Dredge, or Not To Dredge, That Is the Issue,

38 Whittier L. Rev. 291, 291 (2017) ........................ 8

1

IDENTITIES AND INTERESTS

OF AMICI CURIAE

Amici1 consist of a broad coalition of mining

organizations, individuals, and public agencies who

share a substantial interest in the fate of small-scale

mining. As described in greater detail below, amici

live, work, and are based in a variety of Western

states where small-scale mining has had a long and

storied history, including California, Oregon, Idaho,

and Washington.

The issue presented in the petition has serious

implications for that time-honored vocation, which is

an important source of income and recreation for

many Americans, and contributes to many local

economies in the Western United States. Amici urge

the Court to grant the petition and determine whether

an overzealous and atextual interpretation of the

Clean Water Act will snuff out the work and passion

of “modern-day forty-niners” who “participate in the

living heritage of the intrepid prospector”—and, with

it, a more-than-160-year-old tradition that has helped

to define the West. Petition at 4.

Miner Amici

American Mining Rights Association (CA) is

a 501(c)(3) nonprofit association established in 2012

Counsel of record for all parties received timely notice of

the intention to file this brief, and the parties have consented to

the brief’s filing.

No counsel for any party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund its preparation or submission. No person other

than Amici Curiae, their members, or their counsel made a

monetary contribution to the brief’s preparation or submission.

1

2

and based in Coulterville, California. With more than

10,000 dues-paying members and supporters across

the country, the association was created by and for

miners, for the purpose of preserving and promoting

their rights to access and mine on public lands. The

association regularly advocates on behalf of its

members before regulatory and management

agencies. Many members, including the association’s

founder and president, have made significant

investments in suction dredge mining equipment, just

to see their investments—and income sources—

evaporate in the face of increasing regulatory

burdens. Members have claims in Arizona, California,

Colorado, Idaho, Nevada, Oregon, and Washington.

Bohemia Mine Owners Association (OR) is a

501(c)(3) nonprofit corporation organized in Cottage

Grove, Oregon. Miners from the Bohemia Mining

District (OR) created the association on October 17,

1903. Its mission is to advocate for mining rights and

access to public lands, facilitate the exchange of

information between miners and government

agencies, and educate children and the general public

about

mining

practices

and

environmental

stewardship. The association owns eight placer claims

that are used by more than 250 of its members. Those

claims—and others within the Bohemia Mining

District—are at serious risk, as state and federal

assaults on the modern practice of suction-dredge

mining make it more expensive and more difficult to

commercially and profitably mine.

The Coeur d’Alene Mining District (ID) was

established in 1983 in the Idaho Territory. The

district is an unincorporated association whose

members hold hundreds of active claims. Members

3

find their livelihood, recreation and even identity in

suction dredge, placer, and hard rock mining. The

district’s members have multiple thousands of dollars’

worth of suction dredge mining equipment lying idle

due to the uncertainly and burdens of Clean Water Act

regulation of their beloved vocation.

The Galice Mining District (OR) was

organized on Skull Bar, at the confluence of Galice

Creek and the Rogue River, in 1853—in what would

later become Josephine County, Oregon. It was the

third mining district organized in Oregon Territory

and was established to protect the mining rights and

properties of active miners, most of whom today still

have mining claims within a few square miles of the

mouth of Galice Creek. Originally, the district was

considered the self-governing entity of the small

mining community of Galice, and later drafted and

enforced local mining regulations inside its

jurisdiction, as well as performed other functions of

local government in the vicinity due to its remoteness.

Today, the Galice Mining District’s principal aim is to

promote and protect the mining rights and local

mining customs of its 100-plus members, most of

whom own mining claims which have historically been

worked using suction dredges.

The New 49’ers Legal Fund (CA) is a 501(c)(3)

nonprofit, tax-exempt organization based in Happy

Camp, California. Its mission is to defend the civil and

statutory rights of some 20,000 mining members,

through public education and participation in

litigation and other public forums.

Established in 1981, NorthWest Mineral

Prospector’s Club (WA) is a 501(c)(4) nonprofit

organization from Vancouver, Washington. Its

4

mission is to teach members and the general public

about “best practices” in small-scale gold mining and

mineral recovery. The Club represents 156 members.

Public Lands for the People (CA) is a 501(c)(3)

nonprofit organization founded in 1990 and based in

Inyokern (Kern County), California. It is dedicated to

preserving the rights of its mining members to access

and use public lands. The organization is an advocate

for responsible mining practices and reasonable

regulation of the activity. Its members and supporters

have suffered tremendous financial and other harms

as the result of government overreach, including

through the enforcement of the Clean Water Act.

Tom Quintal (OR) has been a suction dredge

miner in Oregon for over thirty years. Now retired,

Mr. Quintal has been able to provide himself

supplemental income through his efforts as a suction

dredge miner. An increasingly hostile regulatory

environment has undermined his ability to mine on

his privately owned 40-acre placer mining claim.

The Oregon-based, nonprofit Willamette Valley

Miners was founded by five ambitious weekend

miners in 1986. Today, the association totals more

than 200 members, and offers mining-related outings

and activities to individuals and families throughout

the Willamette Valley area. Many members are

retired and rely on mining as a source of supplemental

income to help make ends meet. The association’s

mission is to preserve the rights of all miners and

prospectors by encouraging small-scale mining and

helping to establish a positive image of today’s

mineral prospectors and miners.

5

Public-Entity Amici

In 1851, a group of prospectors made the first

discovery of gold in southern Oregon in what would

become Josephine County, Oregon. Since then, the

County has attracted professional and recreational

miners from all over the world. Just as hunting and

fishing are part of Native American heritage, mining

is an essential part of Josephine County’s unique

cultural identity. Mining activity in Josephine County

has supported the economy for decades. Currently,

hundreds of placer mining claims are located in

Josephine County. Each miner spends money on

equipment, fuel, and supplies. Additionally, mining

attracts tourists every year. Oregon’s suction dredge

ban has caused uncertainty and has discouraged

investment. Many Josephine County citizens now face

the possibility of losing their livelihoods and even

their homes.

Siskiyou County, California is a political

subdivision of the State of California, and is a rural

county whose citizens rely extensively on the

responsible and proper utilization of the County’s

natural resources. Approximately sixty percent (60%)

of Siskiyou County’s 2.5-million-acre land base lies

within federal forestlands. Mining has played an

important role in Siskiyou County’s history and

economy, including suction dredge mining. In 2009,

suction dredge mining was banned throughout

California as a result of California Fish and Game

Code section 5653.1(b). This has had a major impact

on miners throughout California, who no longer have

the ability to exercise rights granted to them by the

United States. The County continues to seek support

from state and federal partners to make regulatory

6

changes that would bring suction dredge mining back

to its rural economy. Further, the County has a

significant interest in ensuring that federal laws, such

as the Clean Water Act, are interpreted and applied

in a reasonable and fair manner that does not create

undue regulatory obstacles for rural miners.

INTRODUCTION AND SUMMARY OF

THE ARGUMENT

The Clean Water Act prohibits “the discharge of

any pollutant by any person” without a permit. 33

U.S.C. § 1311(a). A “discharge of any pollutant” is

defined as “any addition of any pollutant to

navigable waters [i.e., jurisdictional waters] from any

point source.” Id. § 1362(12) (emphasis added). The

petition presents a clean federal question of national

importance that touches the lives and livelihoods of

Americans across the country whose work involves

activities in jurisdictional waters under the Clean

Water Act: Does the mere movement of pre-existing

material within a federally regulable water constitute

the “addition” of a pollutant therein?

Amici are among those with a significant stake in

the answer to that question. They are miners and

counties in areas of the country with a long history of

small-scale mining—which, today, is carried out by

the modern and environmentally sound means of

suction dredging. As explained below, that method

adds nothing (let alone pollutants) to the water in

which the activity is conducted, but nevertheless has

been deemed by the Oregon Supreme Court subject to

the Clean Water Act’s prohibition against adding

pollutants to jurisdictional waters. Others whose

livelihoods are at risk by such a broad-sweeping

interpretation of the Act include farmers and ranchers

7

whose activities often involve the mere movement of

soil. Unless the issue presented in the petition is

resolved, Amici and others will continue to face

uncertain—if not prohibitively burdensome and

costly—regulation under the Act.

Besides being of national importance to

Americans across a variety of jurisdictions and sectors

of the economy, the federal question presented in this

case has starkly split the lower courts. The Oregon

Supreme Court, as well as the Ninth and Eleventh

Circuit Courts of Appeals, have held that the “mere

movement” of pre-existing material in jurisdictional

waters constitutes an “addition of [a] pollutant” under

the Clean Water Act. Those courts are at odds with

this Court, as well as the D.C. and Sixth Circuit

Courts of Appeal. The Court has rightly acknowledged

the problems inherent in the interpretation and

enforcement of the Act, to the detriment of the dueprocess and property rights of the regulated public.

This is an opportunity to resolve a clear-cut

disagreement among the courts about the reach of the

term “addition”—a sine qua non of federal regulation

of waters under the Act. United States Army Corps of

Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1816-17 (2016)

(Kennedy, Thomas, Alito, JJ., concurring) (“[T]he

reach and systemic consequences of the Clean Water

Act remain a cause for concern,” and the Act

“continues to raise troubling questions regarding the

Government’s power to cast doubt on the full use and

enjoyment of private property throughout the

Nation.”); Sackett v. Envtl. Protection Agency, 566

U.S. 120, 132 (2012) (Alito, J., concurring) (“The reach

of the Clean Water Act is notoriously unclear,” and

enforcement of that statute can “put the property

rights of ordinary Americans entirely at the mercy of

8

Environmental Protection Agency (EPA) employees . .

. . In a Nation that values due process, not to mention

private property, such treatment is unthinkable.”).

For these reasons, and the reasons provided in

the petition, the petition should be granted.

ARGUMENT

I.

The Question Presented in the Petition Is of

National Importance

Suction dredge mining is a type of “placer

mining,” which involves the mining of streambed

deposits for minerals.2 As the Oregon Supreme Court

in this case described it, “suction dredge mining

involves using a small motorized pump mounted on a

boat to ‘vacuum up’ water and sediment from stream

and river beds.” Appendix A-3. “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.” Id. The process adds nothing back into the

water that was not already there.3 Suction dredge

mining emerged as the main form of small-scale,

2 See https://en.wikipedia.org/wiki/Placer_mining.

3 Some environmentalists contend that the modern practice of

suction dredge mining may cause significant environmental

harm, including to fish. Amici miners disagree, pointing to the

absence of sufficient scientific research establishing a connection

between suction dredge mining and such environmental effects.

Regardless of the merits of either side’s view, that debate does

not bear on the question before the Court. Brittany M. Skelton,

Note & Comment: To Dredge, or Not To Dredge, That Is the Issue,

38 Whittier L. Rev. 291, 291 (2017) (“There is much debate on

whether or not suction dredge mining is harmful to the

environment.”). The question is whether a federal statute—the

Clean Water Act—reaches activities that do not add pollutants

to regulable waters.

9

nonindustrial mining in the 1950s, growing in

popularity because of its cost-effective and efficient

method of recovering minerals from underwater

streambed sediments. California Department of Fish

and Game, “Draft Subsequent Environmental Impact

Report for Suction Dredge Permitting Program,”

Chapter 3, at 3-1 (February 2011).4

Small-scale mining has long been a cherished

tradition of the Western United States. For example,

the State of Oregon has codified the importance of

small-scale mining to the economic and social fabric of

its communities. The State’s Legislative Assembly

found and declared that “small scale mining and

recreational mining” are “important parts of the

heritage of the State of Oregon” and “[p]rovide

economic benefits to the state and local communities.”

Or. Rev. Stats. § 517.123. A comprehensive study of

placer mining’s economic impacts in Alaska

reaffirmed the significant role of that activity in

providing employment in and generating tourism to

the State. McDowell Group, The Economic Impacts of

Placer Mining in Alaska at 4 (2014) (“This form of

mining has a rich history in Alaska, and the image of

a goldpanner is iconic in Alaska’s culture,” occurring

“in all corners of Alaska” and ranging “from small

family affairs to larger corporate undertakings.”).5

“[T]he total economic impact of recreational mining in

Alaska likely exceeds several million dollars,

including payments to private owners and spending

on transportation, accommodations, food, services and

4 Available at

https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=27392&i

nline.

5 Available at http://www.alaskaminers.org/placer-mines.

10

supplies.” Id. at 14. And before suction dredge mining

was banned in California in 2009, one researcher

concluded that “without a doubt . . . suction dredge

miners contribute[d] significant wealth to the

economy of California,” conservatively estimated at

around $75 million in 2008 alone (the last year suction

dredge mining was legal in the State). Rachel Dunn,

et al., The Economic Impact of Suction Dredging in

California, 79 Prospecting & Mining J. 1 (2009).6

The continued viability of small-scale mining,

represented largely by suction dredge mining, turns

on whether the “mere movement” rule adopted by the

Oregon Supreme Court and other courts will stand.

Consider the plight of Amicus Tom Quintal, whose

experience mirrors that of other small-scale miners.

Before the section 402 permit requirement was

imposed, his 40-acre placer mining claim was valued

at $30,000. Now, thanks to the exorbitant fees and

restrictions that section 402 permitting involves, that

same claim has very little market value. Imposing a

section 402 permit—if lawful (which it is not)—has

caused Mr. Quintal to lose an important asset and

severely limited the supplemental retirement income

he can generate. The same can be said of so many

other members of Amici organizations, whose

supplemental income sources have been curtailed or

even extinguished by the “mere movement” rule

adopted by the Oregon Supreme Court and other

federal circuit courts.

6 Available at

https://westernminingalliance.org/wp_content/uploads/

2014/01/The_Economic_Impact_of_Suction_Dredging_in_Califor

nia_REVISED_2011.pdf.

11

The two Amicus counties can attest to the harm

that suction-dredge miners in their jurisdictions have

suffered. Josephine County, Oregon, benefits

significantly from the economic activity that smallscale mining generates, including in the form of

tourism. Josephine County has expressed serious

concerns about the uncertainty and financial loss to

its citizens resulting from prohibitive regulation of

suction-dredge mining. So, too, has Siskiyou County,

California, where suction-dredge mining is banned.

The County’s rural miners have seen their lives

turned upside down from that ban. Should regulated

suction-dredge mining return to California, it would

be important to ensure that section 402 of the Act is

not read to impose additional—and unnecessary—

burdens on an already overregulated activity. Adam

Gerber, Casenote, Borden Ranch Partnership v. U.S.

Army Corps of Engineers: A Barge in a Bucket? May

Isolated Wetlands Be Considered “Navigable Waters”

Under the CWA?, 15 Vill. Envtl. L.J. 415, 433 (2004)

(noting that the “mere movement” rule—if allowed to

stand—could impose severe regulatory burdens”); 33

U.S.C. § 1319(c) (imposing criminal liability for

violation of the Act); 40 C.F.R. § 19.4, Table 1

(establishing civil penalties of up to $37,500 per day

for violation of the Act).

Finally, Amici represent, not just small-scale

mining, but other vocations whose work involves mere

movement of material in jurisdictional waters.

Farmers and ranchers, too, already are the targets of

Clean Water Act regulation simply for plowing or

“deep ripping” their lands—without adding anything,

let alone pollutants, to jurisdictional wetlands.

Borden Ranch P’ship v. United States Army Corps of

Eng’rs, 261 F.3d 810, 819 (9th Cir. 2001). Borden

12

Ranch drew a strong dissent from Judge Gould, who

aptly explained the problem with the majority’s

interpretation:

The problem of interpretation here

arises because Congress prohibited the

discharge or addition of any pollutant to

navigable waters from any point source.

It did not literally prohibit any conduct

by farmers or ranchers that changes the

hydrological character of their land. The

majority opinion, motivated perhaps by

the purposes of the statute, makes new

law by concluding that a plow is a point

source and that deep ripping includes

discharge of pollutants into protected

waters. The policy decision involved here

should be made by Congress, which has

the ability to study and the power to

make such fine distinctions.

Id. at 821 (Gould., J. dissenting); see also id. at 819

(Gould, J. dissenting) (explaining that, in his

considered view, “the return of soil in place after deep

plowing is not a ‘discharge of a pollutant’”).

In summary, the petition presents a federal

question of significance to a broad cross-section of

Americans across the country engaged in different

vocations that implicate activities in jurisdictional

waters. The Court’s resolution of the question would

have far-reaching effects.

II.

The Question Presented in the Petition Has

Created a Split Among the Courts

The petition effectively illustrates how a

conflict among the lower courts exists on the question

13

whether the mere movement of pre-existing material

in a jurisdictional water constitutes an “addition of [a]

pollutant” under the Clean Water Act. Amici wish to

address the Oregon Supreme Court’s misguided effort

to reconcile the “mere movement” rule it with this

Court’s decisions in Los Angeles County Flood Control

District v. Natural Resources Defense Council, 568

U.S. 78 (2013), and South Florida Water Management

District v. Miccosukee Tribe of Indians, 541 U.S. 95

(2004). Contrary to the Oregon Supreme Court’s

conclusion, the adoption of the “mere movement” rule

is in direct and irreconcilable conflict with both

decisions.

In Los Angeles County and Miccosukee, this

Court

adopted

the

dictionary’s

“common

understanding of the meaning of the word ‘add,’” Los

Angeles County, 568 U.S. at 82, and held that “no

pollutants are ‘added’ to a water body when water is

merely transferred between different portions of that

water body.” Id.; Miccosukee, 541 U.S. at 109-10.

Significantly, the Court cited the apt metaphor used

in an earlier Second Circuit Court of Appeals decision:

If one takes a ladle of soup from a pot,

lifts it above the pot, and pours it back

into the pot, one has not “added” soup or

anything else to the pot (beyond,

perhaps, a de minimis quantity of

airborne dust that fell into the ladle). In

requiring a permit for such a “discharge,”

the EPA might as easily require a permit

for Niagara Falls.

Catskill Mts. Chapter of Trout Unlimited, Inc. v. City

of New York, 273 F.3d 481, 492 (2d Cir. 2001) (quoted

14

in Los Angeles County, 568 U.S. at 82-83, and

Miccosukee, 54 U.S. at 109-10).

Notably, this Court’s decisions in Los Angeles

County and Miccosukee, as well as the Second

Circuit’s decision in Catskill, turn on the fact that the

plain meaning of the term “addition” is clear and

unambiguous. Los Angeles County, 568 U.S. at 82

(applying the dictionary definition of “addition”—and

no more—to derive the term’s plain meaning);

Miccosukee, 541 U.S. at 109-10 (adopting the “plain

meaning” approach in Catskill); Catskill, 273 F.3d at

493-94 (rejecting recourse to legislative history or the

Clean Water Act’s “broad purposes” to define

“addition,” because the term has a “plain meaning”

and is not “sufficiently ambiguous” to justify recourse

to extra-textual aids). Finding no ambiguity in the

term, the courts had no reason—or legal

justification—for deferring to the agency’s creative

and boundary-pushing interpretations of “addition.”

As this Court has stated, “[i]f 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.”

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843

(1984); Pereira v. Sessions, 138 S. Ct. 2105, 2113

(2018) (“[T]he Court need not resort to Chevron

deference, as some lower courts have done, for

Congress has supplied a clear and unambiguous

answer to the interpretive question at hand.”); Jeffrey

G. Miller, Plain Meaning, Precedent, and Metaphysics:

Interpreting the “Addition” Element of the Clean Water

Act Offense, 44 Envtl. L. Rep. News & Analysis 10770,

10792 (2014) (“Although the Second Circuit did not

explicitly employ the two-step Chevron deference test

to EPA’s water transfer rule, it left no doubt how it

15

would have decided the case under Chevron. With

regard to the first step, whether the statute is

ambiguous, the court in Catskill I held the statute's

plain meaning was clear.”).

The Oregon Supreme Court tried to distinguish

this case from Los Angeles County and Miccosukee. A9—A-10. With little explanation, the court concluded

that suction dredge mining “does more than ‘merely

transfer[]’ polluted water from one part of the same

water body to another.” Appendix A-10. Relying on an

older Ninth Circuit Court of Appeals case, Rybacheck

v. U.S. EPA, 904 F.2d 1276 (9th Cir. 1990), the

supreme court concluded that the agency “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 sediment of stream and river

beds.” A-10.

There are two flaws in the supreme court’s

attempt to avoid a conflict with Los Angeles County

and Miccosukee. First, the supreme court departed

from the fundamental premise of Los Angeles County

and Miccosukee: The plain meaning of “addition” is

clear and unambiguous—and “that is the end of the

matter,” so that no consideration of or deference to an

agency’s interpretation is warranted. By implicitly

assuming the ambiguity of the term “addition,” the

Oregon Supreme Court’s decision parts ways with Los

Angeles County and Miccosukee. For the same reason,

Rybacheck—the 1990 decision of the Ninth Circuit

that informed the Oregon Supreme Court’s analysis

and pre-dates this Court’s more recent treatment of

the “addition” issue—is flawed. Having wrongly

assumed the term “addition” to be ambiguous, the

16

Ninth Circuit showed “great deference to the

interpretation

given

the

statute”

by

the

Environmental Protection Agency. Rybacheck, 904

F.2d at 1285-86 (quoting EPA v. National Crushed

Stone Ass’n, 449 U.S. 64, 83 (1980)). This Court’s later

decisions in Los Angeles County and Miccosukee

establish that the plain meaning of “addition” is

unambiguous—and can be applied based on the

“common understanding” of the word as defined in the

dictionary.

Second, the distinction upon which the supreme

court sought to avoid conflict with this Court’s

decisions is wrong on the merits. Consistent with the

plain meaning of “addition,” and this Court’s

precedents, the relevant inquiry is whether a point

source

“increase[s]”—“in

number,

size,

or

importance”—pollutants into a jurisdictional water.

Los Angeles County, 568 U.S. at 82 (quoting Webster’s

Third New International Dictionary). The issue is a

change in the quantity of pollutants. The issue is not

a change in a particular pollutant’s location (e.g.,

suspended versus resting) or qualitative state (e.g.,

active versus inactive). Had the Congress wanted to

make relevant to the inquiry something other than an

quantifiable increase in pollutants, it easily could

have used more precise language. Levin v. United

States, 568 U.S. 503, 504 (2013) (“Had Congress

wanted to adopt the Government’s counterfactual

interpretation, it could have used more precise

language . . . .”).

The lower court’s decision conflicts with this

Court’s decisions in Los Angeles County and

Miccosukee. For that reason, and the reasons stated in

the petition, the conflict merits review.

17

CONCLUSION

Amici and similarly situated Americans have

much riding on this case—and so much to lose, if the

Court does not review the question presented and

resolve deep-seated doubts about the limits of the

Clean Water Act’s “notoriously unclear” reach.

Sackett, 566 U.S. at 132 (Alito, J., concurring). The

Court should grant the petition.

DATED: February 2020.

Respectfully submitted,

PAUL J. BEARD II

Counsel of Record

FISHERBROYLES LLP

4470 W. Sunset Blvd.

Suite 93165

Los Angeles, CA 90027

818-216-3988

paul.beard@fisherbroyles.com

Counsel for Amici Curiae