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

Supreme Court briefMay 8, 2020

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No. 19-839

_____________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

___________________

EASTERN OREGON MINING ASSOCIATION, et al.,

Petitioners,

OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, et al.,

Respondents.

___________________

RESPONDENTS’ BRIEF IN OPPOSITION

___________________

On Petition for Writ of Certiorari to the

Supreme Court of the State of Oregon

___________________

ELLEN F. ROSENBLUM

Attorney General

BENJAMIN GUTMAN*

Solicitor General

DENISE G. FJORDBECK

Attorney-in-Charge

1162 Court St. NE

Salem, Oregon 97301-4096

Telephone: (503) 378-4402

denise.fjordbeck@doj.state.or.us

Attorneys for Respondents

Counsel of Record

_______________________________________________________________

QUESTION PRESENTED

Did the Oregon Supreme Court correctly hold, in agreement with the

views of the U.S. Environmental Protection Agency, that the discharged

wastewater from suction dredge mining requires a permit under section 402 of

the Clean Water Act?

TABLE OF CONTENTS

QUESTION PRESENTED................................................................................... I

INTRODUCTION ................................................................................................1

STATEMENT.......................................................................................................2

The state regulates suction dredge mining under both the

Clean Water Act and state law.........................................................2

The Oregon Supreme Court upheld DEQ’s authority to issue

the 2010 permit allowing suction dredge mining under

certain conditions. ............................................................................7

ARGUMENT........................................................................................................9

There is a serious question whether this case is moot under

Article III standards........................................................................10

The Clean Water Act question has little practical

significance for petitioners because their mining can be and

is regulated under state law............................................................13

The Oregon Supreme Court’s ruling is correct, matches the

EPA’s longstanding interpretation of the Clean Water Act,

and does not conflict with decisions of this Court or the

courts of appeals.............................................................................15

CONCLUSION...................................................................................................23

TABLE OF AUTHORITIES

Cases Cited

ASARCO Inc. v. Kadish,

490 U.S. 605 (1989) .................................................................................12

Bohmker v. Oregon,

903 F.3d 1029 (9th Cir. 2018),

cert. den., 139 S. Ct. 1621 (2019) ..............................................................6

Catskill Mountain Chapter of Trout Unlimited, Inc.

v. City of New York,

273 F.3d 481 (2d Cir. 2001) .............................................................. 19, 22

County of Maui v. Hawaii Wildlife Fund,

__ U.S. __ (April 20, 2020)......................................................................18

DeFunis v. Odegaard,

416 U.S. 312 (1974) .................................................................................12

Kingdomware Technologies, Inc. v. United States,

136 S. Ct. 1969 (2016) .............................................................................11

Local No. 8-6, Oil, Chem. & Atomic Workers Int’l Union,

AFL-CIO v. Missouri,

361 U.S. 363 (1960) .................................................................................12

Los Angeles County Flood Control Dist. v. Natural Resources

Defense Council, Inc.,

568 U.S. 78 (2013) ...................................................................................19

National Min. Assn. v. U.S. Army Corps of Engineers,

145 F.3d 1399 (D.C. Cir. 1998) ...............................................................22

National Wildlife Fed. v. Consumers Power Co.,

862 F.2d 580 (6th Cir. 1988)....................................................................21

National Wildlife Federation v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982) .................................................................21

Nw. Envtl. Def. Council v. Envtl. Quality Comm’n,

223 P.3d 1071 (Or. App. 2009)

rev. allowed, 240 P.3d 1097,

rev. dismissed, 245 P.3d 130 (Or. 2010) ........................................... 4, 5, 8

Penn v. Bd. of Parole & Post-Prison Supervision,

451 P.3d 589 (Or. 2019) ...........................................................................11

PUD No. 1 of Jefferson County v. Washington Dept. of Ecology,

511 U.S. 700 (1994) ...................................................................................3

Richardson v. Ramirez,

418 U.S. 24 (1974) ...................................................................................12

iii

Rybachek v. EPA,

904 F.2d 1276 (9th Cir. 1990)....................................................... 9, 20, 21

South Florida Water Management Dist. v.

Miccosukee Tribe of Indians,

541 U.S. 95 (2004) ...................................................................................19

U.S. v. Law,

979 F.2d 977 (4th Cir. 1992) .....................................................................22

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018) .............................................................................10

Constitutional and Statutory Provisions

33 U.S.C. § 1251...................................................................................................3

33 U.S.C. § 1251(a) ..............................................................................................3

33 U.S.C. § 1251(b) ..............................................................................................3

33 U.S.C. § 1311(a) ........................................................................................3, 15

33 U.S.C. § 1314(a)(4)....................................................................................4, 15

33 U.S.C. § 1342(a)(1)..........................................................................................4

33 U.S.C. § 1342(b) ........................................................................................4, 13

33 U.S.C. § 1342(c)(1)..........................................................................................4

33 U.S.C. § 1362(12) ......................................................................................3, 15

33 U.S.C. § 1362(6) ........................................................................................4, 15

33 U.S.C. § 1370.............................................................................................4, 14

Or. Laws. 2013, ch. 783 § 1..................................................................................5

Or. Rev. Stat. § 14.175..........................................................................................7

Or. Rev. Stat. § 468.116........................................................................................6

Or. Rev. Stat. § 468B.114(1) ..........................................................................6, 14

Or. Rev. Stat. § 468B.114(2) ................................................................................6

Administrative Rules

40 C.F.R. 122.3(i) ...............................................................................................18

RESPONDENTS’ BRIEF IN OPPOSITION

__________

INTRODUCTION

The question presented in this case is narrow, easily answered, and of

little forward-looking consequence to the parties to this case. Suction dredge

mining discharges a turbid mixture of stream water and sediment from the

streambed back into the stream. The question is whether that activity involves

the “addition of any pollutant” to the stream; if it does, it requires a permit

under section 402 of the Clean Water Act.

In 2010, respondent Oregon Department of Environmental Quality

(DEQ) issued a general permit under section 402 that allowed individuals to

engage in small-scale suction dredge mining as long as they met certain waterquality criteria. Petitioners challenged the permit, arguing that it was beyond

DEQ’s authority under section 402. The permit expired in 2014, and Oregon

has since adopted a different and more restrictive set of regulations of suction

dredge mining as a matter of state law. Whether the now-expired 2010 permit

should or should not have issued under the Clean Water Act has little forwardlooking significance for petitioners, who must comply with state law regardless

how the Clean Water Act is interpreted.

As explained below, there are strong prudential reasons to deny review

here even if the question presented otherwise deserved this Court’s attention. In

particular, there is a serious mootness issue that this Court would have to

address if it granted review. But in any event, the question presented does not

warrant review. The Oregon Supreme Court’s interpretation of the Clean Water

Act here is consistent with the longstanding views of the U.S. Environmental

Protection Agency (EPA) and the conclusion of every other appellate court to

consider the issue. Its ruling does not conflict with any decisions of this Court

and does not implicate any circuit split. For those reasons, the Court should

deny the petition.

STATEMENT

The state regulates suction dredge mining under both the Clean

Water Act and state law.

Suction dredge mining involves the use of a small motorized pump to

vacuum up water and sediment. Pet. App. A-3. The material is then passed

over a sluice tray, separating out heavy metals including gold, and the

remainder is discharged into the stream. Id. Ejection of the water and sediment

creates a plume of turbid wastewater, and re-mobilizes pollutants such as

mercury that would otherwise have remained undisturbed and inactive in the

stream bed. Pet. App. A-3 to A-4.

Because of the adverse effects that suction dredge mining can have on

water quality, it is regulated under both federal and state law. At issue here are

now-expired general permits that the state issued under section 402 of the Clean

Water Act to allow suction dredge mining as long as that activity met certain

water-quality standards.

The Clean Water Act, 33 U.S.C. § 1251 et seq., is a comprehensive

statute designed to “restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” Id. § 1251(a). To accomplish that goal, the

Act assigns “distinct roles for the Federal and State Governments.” PUD No. 1

of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 704 (1994).

That structure gives states, not the federal government, primary responsibility

for regulating water quality. “It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution” in the Nation’s waters. 33 U.S.C.

§ 1251(b) (emphasis added); see also PUD No. 1 of Jefferson County, 511 U.S.

at 707.

In general terms, the Clean Water Act makes it unlawful to discharge any

pollutant without a permit. 33 U.S.C. § 1311(a) (“Except as in compliance with

this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title,

the discharge of any pollutant by any person shall be unlawful.”). The term

“discharge of a pollutant,” in turn, is defined as “any addition of any pollutant

to navigable waters from any point source[.]” 33 U.S.C. § 1362(12) (emphasis

added). The Act’s definition of “pollutant” explicitly includes the materials

ejected from suction dredges:

The term “pollutant” means dredged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge, munitions, chemical

wastes, biological materials, radioactive materials, heat, wrecked

or discarded equipment, rock, sand, cellar dirt and industrial,

municipal, and agricultural waste discharged into water.

33 U.S.C. § 1362(6) (emphasis added). Furthermore, suspended solids are

specifically included in the definition of conventional pollutants. 33 U.S.C.

§ 1314(a)(4).

The EPA is empowered, under Section 402 of the Act, to issue permits

for the discharge of pollutants. 33 U.S.C. § 1342(a)(1). In the alternative, a

state may opt to administer its own program. 33 U.S.C. § 1342(b). If the state

program is approved by the EPA, it supplants EPA’s role in issuing permits for

discharges to water. 33 U.S.C. § 1342(c)(1). Any such state program must be

at least as stringent as that administered by the EPA, but states are free to adopt

standards that are more stringent than required by the Clean Water Act. 33

U.S.C. § 1370.

In 2005, the Oregon Environmental Quality Commission issued a fiveyear general permit allowing anyone to engage in small-scale suction dredge

mining as long as they complied with state water quality standards. Nw. Envtl.

Def. Council v. Envtl. Quality Comm’n, 223 P.3d 1071, 1074 (Or. App. 2009)

(“NEDC”). Both miners and environmentalists challenged the permit in state

court. The Oregon Court of Appeals concluded that the process of suction

dredge mining created turbid wastewater plumes that required a section 402

permit. Id. at 1085. It also held, however, that the permit was overbroad to the

extent it regulated dredged material within the exclusive jurisdiction of the

Army Corps of Engineers. Id. at 1086. The Oregon Supreme Court allowed

review, 240 P.3d 1097 (Or. 2010), but later dismissed the petition for review as

moot after the permit expired by its own terms in 2010, 245 P.3d 130 (Or.

2010).

In 2010, DEQ issued another five-year general permit, tailored to match

the requirements set by the Court of Appeals in the NEDC case. Pet. App. C-4.

That permit, which expired at the end of 2014 (Pet. App. D-3), is the subject of

this case. Pet. App. H.

In the meantime, the state has also taken action under state law to

regulate suction dredge mining and mitigate its impacts on water quality. In

2013, the legislature adopted a moratorium on motorized mining in streams

containing salmon habitat and adjoining uplands. 2013 Or. Laws, ch, 783,

available at https://www.oregonlegislature.gov/bills_laws/lawsstatutes/

2013orLaw0783.pdf. In passing that law, the legislature found that the practice

had increased significantly in recent years, raising concerns about cumulative

impacts, and that the practice posed “significant risks to Oregon’s natural

resources, including fish and other wildlife, riparian areas, water quality, the

investments of this state in habitat enhancement and areas of cultural

significance to Indian tribes.” Id. § 1(4)–(5).

The moratorium was to remain in effect until January 2, 2021. Id. § 2.

The legislature directed the governor to consult with relevant state and federal

agencies, tribes, and affected stakeholders and propose a revised regulatory

framework. Id. § 8. In 2017, the legislature acted again, enacting a prohibition

on motorized mining operations in streams designated as “essential indigenous

anadromous salmonid habitat.” Or. Rev. Stat. § 468B.114(2). Motorized

mining is allowed in streams not so designated, provided that the operator has

an individual permit or is covered under a general permit. Or. Rev. Stat.

§468B.114(1). The legislation also imposes additional restrictions, such as

limiting the size of dredge hoses. Or. Rev. Stat. § 468.116. Miners challenged

the state law, but the Ninth Circuit held that it was a reasonable state

environmental regulation that was not preempted by federal mining laws, and

this Court denied review of that ruling. Bohmker v. Oregon, 903 F.3d 1029 (9th

Cir. 2018), cert. den., 139 S. Ct. 1621 (2019).

The Oregon Supreme Court upheld DEQ’s authority to issue the

2010 permit allowing suction dredge mining under certain

conditions.

As noted earlier, in 2010 ODEQ exercised its authority under section 402

of the Clean Water Act to issue a new five-year general permit allowing smallscale suction dredge mining as long as it complied with water-quality standards.

Petitioners challenged the permit, arguing (among other things) that section 402

did not give DEQ authority to regulate their suction dredge mining. Pet. App.

C-5.

That challenge was still pending in the Oregon Court of Appeals at the

end of 2014, when the permit expired. Pet. App. C-6. That court held that the

case was moot and dismissed the appeal. Pet. App. D-4.

The Oregon Supreme Court reversed. Pet. App. C-14. The court agreed

with the Court of Appeals that the case was moot. Pet. App. C-8. But because

there is no “case or controversy” provision in the Oregon Constitution, Oregon

courts have the discretion, under certain circumstances, to decide moot cases.

Pet. App. C-10. Those circumstances are defined by a statute, Or. Rev. Stat.

§ 14.175, that sets forth a standard similar to but not exactly the same as the

capable-of-repetition-yet-evading-review standard that applies in federal court:

In any action in which a party alleges that an act, policy or practice

of a public body, as defined in ORS 174.109, or of any officer,

employee or agent of a public body, as defined in ORS 174.109, is

unconstitutional or is 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.

Applying that standard, the Oregon Supreme Court held the case met the

statutory criteria and that the Court of Appeals therefore had the discretion to

decide to hear the case notwithstanding that it was moot. Pet. App. C-13. It

remanded the case to the Court of Appeals for that court to decide whether to

exercise that discretion. Id.

On remand, the Court of Appeals upheld the order and general permit.

Pet. App. B-27. The court determined that it would exercise its discretion to

consider a single issue: whether DEQ had authority, under Section 402 of the

Clean Water Act, to regulate turbid wastewater discharges from suction

dredges. Pet. App. B-16 to B-20. On that issue, the court adhered to its 2009

NEDC opinion, noting again that the EPA has consistently agreed that the

turbid wastewater discharge was a “pollutant” subject to regulation under

Section 402. Pet. App. B-21 to B-27.

The Oregon Supreme Court affirmed. Pet. App. A-3. The court rejected

petitioners’ argument that suction dredge mining did not add a pollutant to the

water. Pet. App. A-10. It agreed with the holding of Rybachek v. EPA, 904

F.2d 1276 (9th Cir. 1990), that even if the material discharged as a result of the

mining comes from the streambed itself, the resuspension of the material in the

water constitutes the addition of a pollutant that requires a permit. Pet. App. A6 to A-7. The court noted that the EPA confirmed that conclusion as recently as

2018, stating that no permit is necessary if “only water was picked up and

placed back within the same waterbody” but that when bed material is also

picked up with the water that causes the addition of pollutants to the stream.

Pet. App. A-7 to A-8.

The Oregon Supreme Court also rejected at much greater length a

separate argument that petitioners do not raise here: that the discharge from

suction dredge mining is a discharge of fill material regulated under section 404

of the Clean Water Act rather than under Section 402. Pet. App. A-10 to A-58.

One justice dissented as to that issue alone. Pet App. A-58 to A-76.

ARGUMENT

This Court should deny the petition for certiorari both because of

problems with using this case as a vehicle to decide the question presented and

because that question does not warrant this Court’s review. First, there is a

serious question whether this case is moot under Article III standards, even

though it satisfied the looser requirements for adjudication in state court. The

petition does not grapple with that question. Regardless whether mootness is a

jurisdictional problem here, it is a strong prudential reason to deny review.

Second, the question presented has limited practical significance to petitioners

because their mining activities can be (and are) regulated just as much under

state law. Finally, the Oregon Supreme Court’s decision does not conflict with

prior decisions of this court or decisions of the federal courts of appeals.

Whatever other issues may arise in interpreting the Clean Water Act, the courts

and the EPA agree that vacuuming up heavy metals and other materials from

the streambed, resuspending them in water, and then discharging the turbid

wastewater is the addition of a pollutant to the stream that requires a Clean

Water Act permit.

There is a serious question whether this case is moot under Article

III standards.

The judicial power under Article III extends to “Cases” and

“Controversies.” A case that becomes moot at any point during the proceedings

is no longer a case or controversy for purposes of Article III. United States v.

Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018). There is an exception for a

controversy that is “capable of repetition, yet evading review.” Id. at 1540. But

that exception applies only if “(1) the challenged action is in its duration too

short to be fully litigated prior to its cessation or expiration, and (2) there is a

reasonable expectation that the same complaining party will be subjected to the

same action again.” Id. (emphasis added).

The same constraints do not apply in Oregon’s state courts. In particular,

the state capable-of-repetition exception to mootness does not require a

showing that the same party will again be affected by a similar action. Penn v.

Bd. of Parole & Post-Prison Supervision, 451 P.3d 589, 620 (Or. 2019).

Here, the permit that petitioners challenged expired in 2014. Pet. App.

D-3. The state courts nonetheless decided the case under the broader state

capable-of-repetition exception to mootness, on the ground that five years (the

permit’s length) is too short to allow full litigation of the permit’s validity. Pet.

App. C-12.

But it is unclear whether those circumstances would also satisfy Article

III’s stricter requirements. First, although this Court has held that duration of

less than two years may satisfy the evading-review prong, see Kingdomware

Technologies, Inc. v. United States, 136 S. Ct. 1969, 1976 (2016), the period of

time here—five years—is longer than anything this Court approved under that

prong. Second, there may be other procedural vehicles for addressing the

question presented that will not go moot when the permit expires. For example,

a challenge to a permit’s validity likely will not evade review, regardless when

the permit expires, if the challenger is fined for violating it and contests the

fine. Finally, the record does not reflect whether petitioners personally will be

affected by the permitting question in the future in light of the more recent state

laws restricting suction dredge mining in certain streams.

This Court’s precedents suggest that it cannot review a case that is moot

under Article III standards even if the state courts would choose to adjudicate

them. “Whatever the practice in the courts” of Oregon, “the duty of this Court

is to decide actual controversies by a judgment which can be carried into effect,

and not to give opinions upon moot questions or abstract propositions, or to

declare principles or rules of law which cannot affect the matter in issue in the

case before it.” Local No. 8-6, Oil, Chem. & Atomic Workers Int’l Union, AFLCIO v. Missouri, 361 U.S. 363, 367 (1960); see also Richardson v. Ramirez,

418 U.S. 24, 36 (1974) (“While the Supreme Court of California may choose to

adjudicate a controversy simply because of its public importance, and the

desirability of a statewide decision, we are limited by the case-or-controversy

requirement of Art. III to adjudication of actual disputes between adverse

parties.”); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). But cf. ASARCO

Inc. v. Kadish, 490 U.S. 605, 617–18 (1989) (holding that a state court

adjudication of a federal question can give rise to Article III standing even if the

plaintiff would not have met the requirements for standing in federal court).

But even if this case satisfied Article III requirements, either under the

capable-of-repetition exception or because the state court addressed the merits

of the federal issue, the serious mootness question would be a strong prudential

reason to deny review. It is all the more compelling a reason to deny review

when the petition does not grapple with the question or explain why the

mootness issue that the Court would inevitably have to confront warrants

review.

The Clean Water Act question has little practical significance for

petitioners because their mining can be and is regulated under state

law.

This Court also should deny review because the question presented, even

if otherwise certworthy, will have limited forward-looking significance for

petitioners. Even if the Clean Water Act did not require them to get a section

402 permit to engage in suction dredge mining, the state could (and would)

insist that they get a materially identical permit under state law. It is of limited

practical significance whether the permit is required by federal or state law or

both.

At the time that this matter was filed, the regulations adopted by DEQ

were based on the authority delegated to states under the Clean Water Act. 33

U.S.C. § 1342(b). Since that time, the Oregon legislature has exercised its own

authority to impose stricter environmental regulations to protect sensitive fish

and other species. The Clean Water Act explicitly allows states to do so. 33

U.S.C. § 1370.

The fundamental premise advanced by the petitioners is that the Clean

Water Act does not authorize DEQ to regulate the discharge of the small

suction dredges that they operate. Even if that were true, the Oregon

Legislature required in 2013 and again in 2017 that operators of motorized instream dredges obtain a permit from DEQ. The current statute, Or. Rev. Stat.

§ 468B.114(1) states, “An operator may not allow a discharge to waters of the

state from a motorized in-stream placer mining operation or activity without

having an individual permit or being covered by a general permit issued under

ORS 468B.050.” The latter statute refers to water quality permits issued by

DEQ or, for agricultural operations within its delegated authority, the Oregon

Department of Agriculture. These Oregon statutes provide independent

authority to DEQ to regulate the discharge of turbid wastewater from motorized

suction dredges through a permit system. As a result, petitioners are subject to

the same requirements regardless whether those requirements arise under

federal or state law.

The Oregon Supreme Court’s ruling is correct, matches the EPA’s

longstanding interpretation of the Clean Water Act, and does not

conflict with decisions of this Court or the courts of appeals.

Even if the procedural and practical reasons discussed above for denying

review were not present, the question presented here does not warrant this

Court’s review. The Oregon Supreme Court correctly held that discharging

turbid wastewater through suction dredge mining is the addition of a pollutant

to a stream that requires a permit under section 402. That uncontroversial

decision follows straightforwardly from the text of the Clean Water Act, is

consistent with the EPA’s interpretation of the statute and this Court’s

precedent, and neither creates nor implicates any circuit split.

The Clean Water Act requires a person to obtain a permit, such as

a section 402 permit, to “discharge any pollutant.” 33 U.S.C. § 1311(a). The

term “discharge of a pollutant” is defined as “any addition of any pollutant to

navigable waters from any point source.” 33 U.S.C. § 1362(12). The definition

of “pollutant” includes “dredged spoil,” “rock,” and “sand,” and another section

of the Act expressly recognizes “suspended solids” as pollutants. 33 U.S.C.

§ 1314(a)(4), 1362(6).

Suction dredge mining involves vacuuming up water and sediment from

a streambed, running it over a sluice to remove some of the heavier metals, and

discharging the turbid wastewater back into a stream. Pet. App. A-3. There is

no dispute for purposes of this petition that the turbid wastewater is a pollutant,

the streams at issue are navigable waters, and the suction dredge is a point

source; the sole dispute is whether the mining causes the “addition” of the

pollutant to the waters. Petitioners argue that it does not because the suspended

solids in the wastewater came from the streambed, so they are merely moving

pollutants from one part of a waterbody to another part of the same waterbody.

Pet. 20. But as the Oregon Supreme Court correctly held, the turbid wastewater

that comes out of a suction dredge is not the same as what went in.

The court explained 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.” Pet. App. A-10. It thus does not “merely transfer polluted water from

one part of the same water body to another.” Id. (brackets and quotation marks

omitted). Thus, even if the solids came from the streambed, “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.” Id.

The EPA has consistently interpreted the Clean Water Act the

same way. For decades, it has regulated the operation of suction dredges in the

states that have chosen not to accept a delegation of authority under section 402

of the Act. For example, in 2018, EPA issued a general permit for small

suction dredge operators in Idaho. See Pet. App. A-7 to A-8. The primary

pollutant of concern was described as suspended solids resulting from agitation

of the stream water and bed materials while processing it through the dredge.

EPA, IDG370000 Fact Sheet, at 8, available at https://www.epa.gov/sites/

production/files/2017-12/documents/r10-npdes-idaho-suction-dredge-gpidg370000-fact-sheet-2017.pdf (last visited Apr. 16, 2020). In describing the

permit, EPA stated:

Operators of small suction dredges in Idaho must obtain NPDES

permit coverage. The permit places conditions on the discharge of

rock and sand from each mining operation to protect water quality

and aquatic resources. These conditions include best management

practices and prohibited areas.

EPA, NPDES General Permit for Small Suction Dredge Placer Mining in

Idaho, available at https://www.epa.gov/npdes-permits/npdes-general-permitsmall-suction-dredge-placer-miners-idaho (last visited Apr. 16, 2020). In

response to a comment similar to the argument made here, that suction dredging

simply moves material from one place to another within the same body of

water, EPA explained the difference between merely moving water around and

manipulating it to make it more turbid:

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. 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. As a result, the water transfer exclusion in 40 CFR 122.3(i)

does not apply, and an NPDES permit is required for the discharge

from this activity.

EPA, Response to Comments, at 6 (May 2018), available at

https://www.epa.gov/sites/production/files/2018-05/documents/r10-npdesidaho-suction-dredge-gp-idg370000-rtc-2018.pdf (last visited Apr. 29, 2020)

(citation omitted; brackets in original).

This Court often pays particular attention to the views of the agencies

charged with enforcing legislation, “in light of the agency’s expertise in a given

area, its knowledge gained through practical experience, and its familiarity with

the interpretive demands of administrative need.” County of Maui v. Hawaii

Wildlife Fund, __ U.S. __ (slip op. at 12) (April 20, 2020). EPA has

consistently treated the material emitted from small suction dredges is a

pollutant to be regulated under Section 402 of the Clean Water Act. EPA’s

views confirm that the Oregon Supreme Court ruled correctly here.

The Oregon Supreme Court’s ruling is consistent with this Court’s

precedent under the Clean Water Act. Petitioners argue that the ruling conflicts

with two of this Court’s opinions (Pet. 14–16), but neither addressed the issue

presented here.

In South Florida Water Management Dist. v. Miccosukee Tribe of

Indians, 541 U.S. 95 (2004), the dispute was about whether a permit was

needed when a water district pumped water from a canal into a reservoir a short

distance away. This Court ultimately remanded to the district court for further

factual development about whether the canal and the reservoir were distinct

water bodies. Id. at 99. The parties agreed that no permit was required if they

were a single waterbody: “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.” Id. at 110 (quoting Catskill Mountain Chapter of Trout Unlimited,

Inc. v. City of New York, 273 F.3d 481, 492 (2d Cir. 2001)) (brackets omitted).

The ladle analogy explains why a permit is not needed when a point

source (the ladle) merely takes water (soup) from a body (pot) and moves it to

unchanged to another part of the body. Here, however, suction dredge mining

does not take a ladle of “soup” (clean water) from the stream and redeposit it. It

takes the soup, mixes it with sediment that was not in the water, and pours the

turbid mixture with suspended solids it back into the pot. It is not the simple

movement of water from one place in a stream to another. South Florida Water

Management did not address anything like the activity at issue here.

Neither did Los Angeles County Flood Control Dist. v. Natural

Resources Defense Council, Inc., 568 U.S. 78 (2013). The question presented

there was, “Under the CWA, does a “discharge of pollutants” occur when

polluted water ‘flows from one portion of a river that is navigable water of the

United States, through a concrete channel or other engineered improvement in

the river,’ and then ‘into a lower portion of the same river’?” Id. at 82. This

court held that “no discharge of pollutants occurs when water, rather than being

removed and then returned to a water body, simply flows from one portion of

the water body to another.” Id. at 83. But suction dredge mining does not

involve water “simply flow[ing] from one portion of the water body to

another.” It removes material from a stream and its streambed, processes the

material, and returns the result to a stream in an entirely different state than it

entered.

Finally, petitioners are incorrect in asserting that there is an

“entrenched conflict” between decisions of federal circuit courts of appeal

about the question presented here. Pet. 17. To the contrary, those courts that

have considered the issue presented here—whether suction dredge mining

causes the addition of a pollutant that requires a Clean Water Act permit—have

uniformly decided the issue in the same way that the Oregon Supreme Court

did. There is no conflict that requires resolution by this court.

In Rybachek, the Ninth Circuit squarely addressed the issue presented

here and rejected the argument that suction dredge mining does not add any

pollutant to the water. 904 F.2d at 1286. Citing cases from the Fifth and

Eleventh Circuits, as well as EPA’s longstanding interpretation, the court

concluded that “resuspension” of solids in the wastewater from the dredge was

within Section 402’s purview as discharge of pollutants from a point source. Id.

at 1285–86.

The decision in Rybachek is not at odds with National Wildlife

Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982). There, the court

adopted an interpretation set forth by the EPA that the discharge from

hydroelectric dams did not introduce “pollutants” into the water. Id. at 161.

The question turned on whether low dissolved oxygen, cold, or supersaturation

are pollutants, and whether “addition” of those qualities was a discharge from a

point source under Section 402. Id. at 171–75. The court deferred to EPA’s

longstanding position, since the Act was adopted, that dams are not subject to

Section 402. Id. at 171. EPA’s position was reasonable, because unlike the

pollutants in this case (dredged spoil, rock, and sand), the conditions brought

about by dams were not listed as pollutants in the Act, and they were conditions

rather than substances. Id. at 171; see also National Wildlife Fed. v. Consumers

Power Co., 862 F.2d 580 (6th Cir. 1988) (adopting EPA’s distinction between

facilities that remove fish from water and discharge dead fish from a facility

that, in the process of moving water, causes some fish mortality).

The other cases that petitioners cite to support the argument that there is a

circuit split are not to the contrary. Petitioner refer to a selective quote in

United States v. Law, 979 F.2d 977 (4th Cir. 1992), but the holding in that

case—affirming a felony conviction for discharging pollutants without a

Section 402 permit—confirms rather than conflicts with the consistent position

of the federal courts of appeals. Similarly, in Catskill Mountains, 273 F.3d 481,

the Second Circuit held that a discharge of water containing sediments from a

tunnel into a creek was a discharge of pollutants. And National Mining

Association v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998),

dealt with incidental fallback of dredged material from a permitted dredging

operation. The court held that fallback of material into the same place from

where it was removed is not a discharge of pollutants. That case did not

address the discharge of suspended solids creating a turbid plume.

The federal appellate courts have consistently held that the movement of

suspended materials such as dredge spoil, soil, and rock—as opposed to the

mere movement of water from one place to another—creates the discharge of a

pollutant that is subject to the requirements of the Clean Water Act. Whatever

other disagreements there may be about how to interpret the Clean Water Act,

the question presented here does not implicate any circuit split that requires

resolution by this court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ELLEN F. ROSENBLUM

Attorney General

/s/ Benjamin Gutman

_________________________________

BENJAMIN GUTMAN

Solicitor General

benjamin.gutman@doj.state.or.us

DENISE G. FJORDBECK

Attorney-in-Charge

denise.fjordbeck@doj.state.or.us

Attorneys for Respondents

DGF:aw2/10227390

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.