Petition for Writ of Certiorari — Shannon Poe, Petitioner v. Idaho Conservation League
Supreme Court briefMar 15, 2024
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No. __________
In The Supreme Court of the United States
____________________
SHANNON POE,
v.
Petitioner,
IDAHO CONSERVATION LEAGUE,
____________________
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
____________________
PETITION FOR WRIT OF CERTIORARI
____________________
DAMIEN M. SCHIFF
Pacific Legal Foundation
555 Capitol Mall,
Suite 1290
Sacramento, CA 95814
DANIELLE R. BETTENCOURT
Fairfield and Woods P.C.
1801 California St.,
Suite 2600
Denver, CO 80202-2645
FRANK D. GARRISON
Counsel of Record
Pacific Legal Foundation
3100 Clarendon Blvd.,
Suite 1000
Arlington, VA 22201
Telephone: (202) 888-6881
FGarrison@pacificlegal.org
Counsel for Petitioner Shannon Poe
i
QUESTION PRESENTED
The Clean Water Act forbids the unpermitted
“discharge of any pollutant” into “navigable waters.”
33 U.S.C. §§ 1311(a), 1362(11). The Act defines
“discharge of a pollutant” as “any addition of any
pollutant to navigable waters[.]” Id. § 1362(12). This
Court has twice held that, as a matter of ordinary
meaning, there can be no “addition of any pollutant”
unless there is an increase of pollutants to a
waterbody. S. Florida Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S. 95, 109–12
(2004); Los Angeles Cnty. Flood Control Dist. v.
Natural Res. Def. Council, Inc., 568 U.S. 78, 82–84
(2013). In conflict with these decisions, as well as
rulings from several courts of appeals, the Ninth
Circuit below found “addition” ambiguous, applied
Chevron deference, and held that Petitioner’s smallscale suction dredge mining added pollutants to an
Idaho river—even though his mining just temporarily
resuspended material in the water column that was
already present within the waterbody.
The question presented is:
Whether there is a “discharge of a pollutant”
under the Clean Water Act when material already
within a regulated waterbody is merely moved or
resuspended within that waterbody?
ii
PARTIES TO THE PROCEEDING
Petitioner is Shannon Poe. Respondent is the
Idaho Conservation League.
STATEMENT OF RELATED CASES
These proceedings are directly related to the
above-captioned case under Rule 14.1(b)(iii):
Idaho Conservation League v. Poe, No. 2235978, 86 F.4th 1243 (9th Cir.), judgment
entered on November 20, 2023;
Idaho Conservation League v. Poe, No. 1:18cv-353-REB, 2021 WL 2316158 (D. Idaho),
judgment entered on June 4, 2021;
Idaho Conservation League v. Poe, No. 1:18cv-353-REB, 2022 WL 4536465 (D. Idaho),
judgment entered on September 28, 2022.
iii
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING ........................... ii
STATEMENT OF RELATED CASES ....................... ii
TABLE OF AUTHORITIES ....................................... v
PETITION FOR A WRIT OF CERTIORARI ............. 1
OPINIONS BELOW ................................................... 1
JURISDICTION.......................................................... 1
STATUTORY PROVISIONS AT ISSUE.................... 1
INTRODUCTION ....................................................... 3
STATEMENT OF THE CASE .................................... 7
A. The Clean Water Act ................................. 7
B. Factual and Procedural Background ........ 9
REASONS FOR GRANTING THE PETITION ....... 14
I.
The Ninth Circuit’s decision conflicts with this
Court’s precedents construing the Clean Water
Act ................................................................... 14
A. The Ninth Circuit’s decision conflicts with
this Court’s decisions in Miccosukee Tribe
and L.A. County ....................................... 14
B. The Ninth Circuit’s decision conflicts with
this Court’s application of clear statement
rules in Sackett ........................................ 19
iv
II. The Ninth Circuit’s decision deepens an
already entrenched conflict over the meaning of
“addition” under the Clean Water Act .......... 21
III. This case is a good vehicle for the Court to
clarify an exceptionally important issue of
statutory interpretation under the Clean Water
Act ................................................................... 25
CONCLUSION.......................................................... 30
APPENDIX
Opinion, U.S. Court of Appeals for the Ninth Circuit,
filed November 20, 2023 ...................................... 1a
Memorandum Decision and Order Re: Plaintiff Idaho
Conservation League’s Motion for Remedies, U.S.
District Court, District of Idaho, filed
September 28, 2022 ........................................... 21a
Memorandum Decision and Order Re: Idaho
Conservation League’s Motion for Summary
Judgment on Liability and Shannon Poe’s Motion
for Summary Judgment, U.S. District Court,
District of Idaho, filed June 4, 2021 ................. 61a
Order (denying petition for rehearing en banc), U.S.
Court of Appeals for the Ninth Circuit, filed
January 11, 2024 ............................................... 97a
v
TABLE OF AUTHORITIES
Cases
Avoyelles Sportsmen’s League, Inc. v. Marsh,
715 F.2d 897 (5th Cir. 1983) ................... 13, 22, 24
Borden Ranch Partnership v.
U.S. Army Corps of Engineers,
261 F.3d 810 (9th Cir. 2001),
aff’d, 537 U.S. 99 (2002) ...........7, 11, 13, 16, 22, 24
Catskill Mountains Chapter of Trout
Unlimited v. City of New York,
273 F.3d 481 (2d Cir. 2001) ......................... 3–4, 23
Chevron v. NRDC,
467 U.S. 837 (1984) ............................................. 13
Cnty. of Maui v. Hawaii Wildlife Fund,
140 S. Ct. 1462 (2020) ......................................... 27
Comm. to Save Mokelumne River v.
East Bay Mun. Util. Dist.,
13 F.3d 305 (9th Cir. 1993) ................................... 8
Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167 (2000) ............................................. 28
Gutierrez-Brizuela v. Lynch,
834 F.3d 1142 (10th Cir. 2016) ........................... 26
Lawrence on Behalf of Lawrence v. Chater,
516 U.S. 163 (1996) ............................................. 26
Loper Bright Enterprises v. Raimondo,
143 S. Ct. 2429 (2023),
cert. granted in part May 1, 2023........................ 26
vi
Los Angeles Cnty. Flood Control Dist. v.
Natural Res. Def. Council, Inc.,
568 U.S. 78 (2013) ..........................3, 14–15, 17, 25
Michigan v. EPA,
576 U.S. 743 (2015) ............................................. 26
Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399 (D.C. Cir. 1998) ..................... 22–23
Nat’l Wildlife Fed’n v. Consumers Power Co.,
862 F.2d 580 (6th Cir. 1988) ......................... 22–23
Nat’l Wildlife Fed’n v. Gorsuch,
693 F.2d 156 (D.C. Cir. 1982) ......................... 8, 22
North Carolina Coastal Fisheries
Reform Group v. Capt. Gaston LLC,
76 F.4th 291 (4th Cir. 2023) ...................... 5, 24–25
Pereira v. Sessions,
585 U.S. 198 (2018) ............................................. 26
Perez v. Mortgage Bankers Ass’n,
575 U.S. 92 (2015) ............................................... 26
Rapanos v. United States,
547 U.S. 715 (2006) ......................................... 9, 18
Rybachek v. EPA,
904 F.2d 1276 (9th Cir. 1990) ......11–13, 16, 22, 24
S. Florida Water Mgmt. Dist. v.
Miccosukee Tribe of Indians,
541 U.S. 95 (2004) ........................................... 3, 14
S.D. Warren Co. v. Maine Bd. of Env’t Prot.,
547 U.S. 370 (2006) ............................................. 15
Sackett v. EPA,
598 U.S. 651 (2023) ......................5, 6, 9, 18–21, 27
vii
Skilling v. United States,
561 U.S. 358 (2010) ............................................. 21
United States v. Deaton,
209 F.3d 331 (4th Cir. 2000) ............................... 23
United States v. Law,
979 F.2d 977 (4th Cir. 1992) ............................... 23
United States v. M.C.C. of Florida, Inc.,
772 F.2d 1501 (11th Cir. 1985) ............... 13, 22, 24
United States v. Moses,
496 F.3d 984 (9th Cir. 2007) ............................... 18
Statutes
28 U.S.C. § 1254(1) ..................................................... 1
33 U.S.C. § 1251(a) ..................................................... 7
33 U.S.C. § 1311(a) ............................................. 1, 3, 7
33 U.S.C. § 1319(a)–(d) ............................................... 9
33 U.S.C. § 1319(b) ..................................................... 9
33 U.S.C. § 1319(d) ..................................................... 9
33 U.S.C. § 1342 .......................................................... 3
33 U.S.C. § 1342(a) ..................................................... 8
33 U.S.C. § 1342(a)(1) ............................................. 1–2
33 U.S.C. § 1342(b) ..................................................... 8
33 U.S.C. § 1344 ................................................ 3, 8, 11
33 U.S.C. § 1344(g) ..................................................... 8
33 U.S.C. § 1362(3) ..................................................... 8
33 U.S.C. § 1362(6) ................................................. 2, 7
33 U.S.C. § 1362(12) ....................................... 2, 15, 29
viii
33 U.S.C. § 1362(12)(A) .......................................... 3, 8
33 U.S.C. § 1365 .......................................................... 4
33 U.S.C. § 1365(a) ..................................................... 8
33 U.S.C. § 1365(b)(1)(A) .......................................... 10
33 U.S.C. § 1365(d) ..................................................... 9
33 U.S.C. § 1377(e)...................................................... 8
Regulations
40 C.F.R. § 19.4 tbl.1 .................................................. 9
40 C.F.R. § 440.140(b)............................................... 12
Other Authorities
Bernell, David et al., Inst. For Natural
Resources, Or. State Univ., Recreational
Placer Mining in the Oregon Scenic
Waterways System (2003),
https://bit.ly/34W5AcW ....................................... 17
Bishop, Timothy S. et al.,
Counting the Hands on Borden Ranch,
34 Envtl. L. Rep.
(Envtl. L. Inst.) 10,040 (2004) ............................. 28
Cal. State Water Resources Control Bd.,
Mercury Losses and Recovery During
a Suction Dredge Test in the South
Fork of the American River (2005) ...................... 10
Coon, Arthur F., Is Plowing a Point Source
Discharge? The Aftermath of Borden Ranch,
18-SUM Nat. Resources & Env’t 6
(Summer 2003) .................................................... 28
ix
Dahab, Nadia H., Note, Muddying the
Waters of Clean Water Act Permitting:
NEDC Reconsidered,
90 Or. L. Rev. 335 (2011)............................. 4, 9–10
EPA, NPDES General Permit for Small Suction
Dredge Placer Miners in Idaho,
https://www.epa.gov/npdes-permits/idahonpdes-program-authorization ............................... 8
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 (2004) ............................. 28
Kavanaugh, Brett M.,
Fixing Statutory Interpretation,
129 Harv. L. Rev. 2118 (2016) ............................ 26
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) ............................. 19, 27–28
Robertson, Marc, Environmental Ambulance
Chasing: DOJ Urges Court To Scrutinize
Clean Water Citizen-Suit Settlements,
Forbes (June 26, 2018),
https://bit.ly/3R0xFIW ................................... 28–29
Webster’s Third New International
Dictionary (2002) ................................................. 15
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Shannon Poe respectfully petitions for
a writ of certiorari to review the judgment of the
United States Court of Appeals for the Ninth Circuit.
OPINIONS BELOW
The Ninth Circuit’s panel opinion is reported at 86
F.4th 1243 and is reproduced in the Appendix
beginning at 1a. The United States District Court for
the District of Idaho’s opinion on remedies is
unreported but is available at 2022 WL 4536465 and
is reproduced in the Appendix beginning at 21a. The
United States District Court for the District of Idaho’s
opinion on liability is unreported but is available at
2021 WL 2316158 and is reproduced in the Appendix
beginning at 61a. The Ninth Circuit’s denial of
rehearing en banc is unreported but is reproduced in
the Appendix beginning at 97a.
JURISDICTION
The Ninth Circuit issued its opinion on
November 20, 2023, and denied rehearing en banc on
January 11, 2024. This Court has jurisdiction under
28 U.S.C. § 1254(1).
STATUTORY PROVISIONS AT ISSUE
The Clean Water Act provides:
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. 33 U.S.C. § 1311(a);
Except as provided in sections 1328 and
1344 of this title, the Administrator may,
2
after opportunity for public hearing issue
a permit for the discharge of any
pollutant, or combination of pollutants,
notwithstanding section 1311(a) of this
title, upon condition that such discharge
will meet either (A) all applicable
requirements under sections 1311, 1312,
1316, 1317, 1318, and 1343 of this title,
or (B) prior to the taking of necessary
implementing actions relating to all such
requirements, such conditions as the
Administrator determines are necessary
to carry out the provisions of this
chapter. 33 U.S.C. § 1342(a)(1);
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);
The term “discharge of a pollutant” and
the term “discharge of pollutants” each
means (A) any addition of any pollutant
to navigable waters from any point
source, (B) any addition of any pollutant
to the waters of the contiguous zone or
the ocean from any point source other
than a vessel or other floating craft. 33
U.S.C. § 1362(12).
3
INTRODUCTION
This case presents an intractable conflict among
the lower courts, as well as between those courts and
this Court, over an important issue of statutory
interpretation. The Clean Water Act generally
prohibits “the discharge of any pollutant” without
obtaining a permit from the Environmental Protection
Agency or the Army Corps of Engineers. 33 U.S.C.
§§ 1311(a), 1342, 1344. The Act defines “discharge of
a pollutant” as “any addition of any pollutant to
navigable waters from any point source.” Id.
§ 1362(12)(A). Thus, under the statute’s text, if a
person does not add pollutants to a “navigable water,”
then that person has not discharged a pollutant and
need not obtain a federal permit before engaging in an
activity within that jurisdictional water.
This Court has twice construed “addition” using
the traditional tools of statutory construction, found
no ambiguity, and held that there is no discharge of a
pollutant when water containing suspended
pollutants is moved between different parts of the
same waterbody. S. Florida Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S. 95, 109–12
(2004), and Los Angeles Cnty. Flood Control Dist. v.
Natural Res. Def. Council, Inc., 568 U.S. 78, 82–84
(2013). This is because there can be no “addition” of a
pollutant unless there is an increase in pollutants to
the waterbody. Id. at 82. Or, as the Court colorfully
put it in both cases, “[i]f 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.” Miccosukee Tribe, 541 U.S. at 110; L.A. County,
568 U.S. at 82–83 (both quoting Catskill Mountains
4
Chapter of Trout Unlimited v. City of New York, 273
F.3d 481, 492 (2d Cir. 2001)).
Despite the Clean Water Act’s and this Court’s
clear direction, the Ninth Circuit below followed a
different course, creating a conflict with this Court
and deepening a conflict among the courts of appeals
over the statute’s meaning.
Respondent Idaho Conservation League (ICL)
sued Petitioner Shannon Poe under the Act’s citizen
suit provision, 33 U.S.C. § 1365, alleging that his
instream mining activities in an Idaho river resulted
in the unlawful discharge of pollutants. Mr. Poe
practices a form of placer mining.1 Instream miners
like Mr. Poe use an engine-powered hose to dredge
streambed materials—rocks, sand, gravel, or other
minerals or metals within a waterbody’s streambed—
and then run those materials through a sluice box.
Dredgers separate and trap the dense gold (and
similarly heavy metals, such as mercury) from other
streambed materials, remove and keep the heavy
metals, and let the remaining materials fall back to
the streambed, thus decreasing material within the
waterbody.
The Ninth Circuit nevertheless upheld summary
judgment for ICL. But the panel did not apply this
Court’s precedents in Miccosukee Tribe and L.A.
County—which established, under the Clean Water
Act’s ordinary meaning, that before there is an
1 Placer mining is, broadly speaking, the extraction of valuable
minerals from sediment. See Nadia H. Dahab, Note, Muddying
the Waters of Clean Water Act Permitting: NEDC Reconsidered,
90 Or. L. Rev. 335, 338 (2011). The specific type of placer mining
in this case is small-scale suction dredge mining.
5
“addition” of a pollutant, there must be an increase in
pollutants to a waterbody. The panel instead relied on
lower court precedents predating Miccosukee Tribe
and L.A. County, found the term “addition”
ambiguous, and applied Chevron deference to hold
that merely “resuspending” pollutants (here, the
riverbed materials) within a waterbody “may be
interpreted to be an addition of a pollutant under the
Act.” App. 8a–10a (citation omitted).
More still, this Court made it plain last Term that
when construing the Clean Water Act, not only should
courts start “with the text,” they should also consider
background clear statement principles grounded in
federalism and due process before blessing an
agency’s interpretation. Sackett v. EPA, 598 U.S. 651,
671, 679–81 (2023). Yet here, the Ninth Circuit turned
those principles on their head: not only is there no
clear statement in the Act supporting the Ninth
Circuit’s judgment, but the court’s ruling also directly
contradicts the ordinary meaning of the Act’s text.
In diverging from this Court’s precedents, the
panel also deepened a conflict among the courts of
appeals. After briefing was completed below, Mr. Poe
alerted the panel to North Carolina Coastal Fisheries
Reform Group v. Capt. Gaston LLC, 76 F.4th 291 (4th
Cir. 2023). In Gaston, a unanimous Fourth Circuit
panel cited L.A. County’s holding and applied the
ordinary meaning of “addition” to hold that there was
no “discharge of a pollutant” when fishing nets
“disturb[ed] the [Pamlico] Sound’s floor, causing
sediment [rocks and sand] to temporarily suspend in
the water.” Id. at 302. Put differently, there was no
“addition” of a pollutant when pollutants (ocean-bed
materials) were moved within and resuspended in a
6
single waterbody. That holding directly conflicts with
not only the Ninth Circuit’s ruling below, but also with
the decisions of other circuits finding “addition”
ambiguous.
It is important that this Court resolve these
conflicts and provide ordinary citizens with the
uniformity and clarity they are entitled to under the
law. Time and again, this Court has reaffirmed that
lower courts must apply the traditional tools of
statutory construction before deferring to the
executive branch’s legal interpretations. Indeed, even
in the age of Chevron deference, federal agencies are
bound by the law as written by Congress—and lower
courts must not reflexively defer to an agency’s view
of a statute’s meaning. When courts do so, they
abdicate their judicial duty, flout the Constitution’s
separation of powers, and deprive litigants of due
process.
And nowhere are these first principles more
critical than when courts construe the Clean Water
Act. The Act is a “potent weapon” imposing “crushing
consequences.” Sackett, 598 U.S. at 660, 671 (citation
omitted). Yet since the Act’s inception, lower courts
have often failed to provide meaningful judicial review
over the statute’s terms. This in turn has exposed
ordinary citizens to evolving, expanding, and
uncertain legal rules, the violation of which can lead
to ruinous citizen suits, crushing civil penalties, and
even criminal prosecution for engaging in everyday
conduct.
For these reasons, this Court has consistently
taken cases to enforce the Act’s textual boundaries,
including in Miccosukee Tribe, L.A. County, and
Sackett. It is also why this Court granted certiorari
7
over the “addition” issue in Borden Ranch Partnership
v. U.S. Army Corps of Engineers, 261 F.3d 810, 814–
15 (9th Cir. 2001), aff’d, 537 U.S. 99 (2002)
(affirmance by an equally divided Court)—a precedent
relied on by the Ninth Circuit below, App. 9a–10a. In
Borden Ranch the Ninth Circuit found “addition”
ambiguous and held that a farmer added pollutants to
a “navigable water” because he “redeposited” soil by
plowing his field. As Borden Ranch shows, and this
case confirms, the extra-textual rule adopted below
and followed by several other circuits—that the Act’s
“addition of any pollutant” element is ambiguous and
can be satisfied by the mere movement, resuspension,
or redeposit of material within a regulated
waterbody—captures
various
ordinary
and
environmentally benign activities.
Because of Justice Kennedy’s recusal in Borden
Ranch, this Court did not resolve the question
presented. This case is a good vehicle for the Court to
finally do so, provide the regulated public with clarity,
and ensure that the lower courts apply the law as
written by Congress. Certiorari should be granted.
STATEMENT OF THE CASE
A. The Clean Water Act
1. Congress enacted the Clean Water Act to
“restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). To do so, the Act makes illegal, unless
otherwise permitted, the “discharge of any pollutant
by any person.” Id. § 1311(a). The statute defines
“pollutant” as, among other things, “dredged spoil,”
“rock,” “sand,” and “cellar dirt” that is “discharged into
water.” Id. § 1362(6). The Act then defines “discharge
8
of a pollutant” as “any addition of any pollutant to
navigable waters from any point source,” id.
§ 1362(12)(A), but it does not define “addition.”
The statute divides regulatory authority among
federal agencies and the states. Nonexempt
discharges to regulated waters (other than those of
dredged or fill material, which the Army Corps of
Engineers regulates, see id. § 1344) require a permit
from EPA (commonly called a National Pollutant
Discharge Elimination System (NPDES) permit). Id.
§ 1342(a). This permitting authority may be delegated
to the states, territories, and Indian tribes.2 See 33
U.S.C. §§ 1342(b), 1344(g), 1362(3), 1377(e). The Act
also delegates enforcement authority to private
parties: “any citizen” may bring a civil action against
any person who is alleged “to be in violation” of
specified provisions of the Act, including its NPDES
permitting requirement. See id. § 1365(a).
2. To prove a violation of the Act, would-be
enforcers have the burden to establish five elements:
(1) a “pollutant” must be (2) “discharged—there must
be an addition of a pollutant—(3) to “navigable
waters” (4) from (5) a “point source.” See Comm. to
Save Mokelumne River v. East Bay Mun. Util. Dist.,
13 F.3d 305, 308 (9th Cir. 1993) (citing Nat’l Wildlife
Fed’n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982)).
2 At the time of the alleged violations at issue here, EPA had not
delegated federal NPDES permitting power over suction dredge
mining to Idaho but has since done so. See EPA, NPDES General
Permit for Small Suction Dredge Placer Miners in Idaho,
https://www.epa.gov/npdes-permits/idaho-npdes-programauthorization.
9
If these elements are not met, then a person is not
subject to the Act.
3. If a person subject to the Act discharges
pollutants without a required permit or violates
permit conditions, he risks cease-and-desist orders,
compliance
orders,
administrative
penalties,
significant civil penalties and injunctions, and
criminal liability for even negligent violations. See 33
U.S.C. § 1319(a)–(d); 40 C.F.R. § 19.4 tbl.1 (allowing
for civil penalties of over $60,000 per day per
violation); Sackett, 598 U.S. at 660 (persons who
“negligently discharge ‘pollutants’ into covered waters
may face severe criminal penalties including
imprisonment”); Rapanos v. United States, 547 U.S.
715, 721 (2006) (“[T]he Clean Water Act imposes
criminal liability, as well as steep civil fines, on a
broad range of ordinary industrial and commercial
activities.”) (cleaned up).
Private enforcers can seek injunctive relief and
civil penalties payable to the United States Treasury.
33 U.S.C. § 1319(b), (d). They can also recover
attorney fees, expert witness fees, and other litigation
costs for successful suits. Id. § 1365(d).
B. Factual and Procedural Background
1. Petitioner Shannon Poe is a gold miner who
engages in instream suction dredge mining—a form of
placer mining.3 Rather than pan for gold, Mr. Poe uses
Particularly in comparison to larger types of placer mining,
suction dredge mining’s environmental impact is limited. See
Dahab, Muddying, supra, at 339 (“[S]mall suction dredging is
more similar, at least with respect to the magnitude of its impact,
to hand panning than it is to large placer mining: with small
3
10
a suction dredge, a small engine-powered hose that
vacuums materials from the streambed. The
suctioned material is made to pass through a floating
sluice box, which separates and traps gold and other
heavy metals. The miner then removes and keeps the
gold while depositing the dangerous mercury at
proper disposal sites.4 The rest of the suctioned
material—the left-over rocks, sand, and other
material—then falls back into the water, ultimately
settling again on its native streambed.
2. In 2018, ICL sued Mr. Poe in the U.S. District
Court for the District of Idaho under the Clean Water
Act’s citizen suit provision.5 ICL alleged that Mr. Poe’s
suction dredge mining illegally discharged pollutants
into Idaho’s South Fork Clear Water River, a
navigable-in-fact water, in 2014, 2015, and 2018. App.
6a. It was undisputed below that Mr. Poe mined in the
river between 2014 and 2018. App. 22a. It was also
suction-dredging, the streambed volume disturbed is relatively
limited, as is the ancillary effect on sediment upstream and
downstream of the mining location.”).
Indeed, suction dredge mining often benefits the aquatic
environment because miners remove dangerous heavy metals,
such as mercury, found within streambeds. See Cal. State Water
Resources Control Bd., Mercury Losses and Recovery During a
Suction Dredge Test in the South Fork of the American River 7
(2005) (“The test showed that a typical suction dredge set up to
recover gold recovered about 98 percent of the mercury in the
high-mercury, test sediment sample.”).
4
5 Initially, Mr. Poe moved to dismiss the case for lack of subject
matter jurisdiction because ICL’s required notice of intent to sue
under the Clean Water Act’s citizen suit provision was defective,
see 33 U.S.C. § 1365(b)(1)(A), and because ICL lacked standing.
The motion was denied, and Mr. Poe did not appeal these issues.
See App. 6a–7a.
11
undisputed that the State of Idaho allowed instream
suction dredge mining in the river and that Mr. Poe
always obtained a permit from the Idaho Department
of Water Resources before mining. App. 49a. But on
advice from his attorney at the time, Mr. Poe never
sought an NPDES permit from EPA. App. 52a.6
On cross-motions for summary judgment, Mr. Poe
argued that under the ordinary meaning of
“addition”—as this Court had established in
Miccosukee Tribe and L.A. County—his dredging did
not add pollutants to the river. And he was thus not
required to obtain an NPDES permit. This is because
suction dredging does not result in the increase of any
material within a waterbody. App. 66a–67a. The
district court rejected that argument, holding instead
that, despite Miccosukee Tribe and L.A. County,
“addition” remains ambiguous, as the Ninth Circuit
had held in Rybachek v. EPA, 904 F.2d 1276, 1285 (9th
Cir. 1990), and Borden Ranch, 261 F.3d at 814–15.
App. 67a–69a. And based on those precedents, Mr.
Poe’s suction dredge mining resulted in the “addition”
of a pollutant. Id.7
After granting ICL summary judgment, the court
issued a separate opinion and order over remedies,
6 In 2014, EPA sent Mr. Poe a notice of violation. Through his
attorney, Mr. Poe disputed the notice, and he never heard back
from the agency. App. 52a–53a.
7 Below, Mr. Poe also argued that, even if his dredging added
pollutants to the river, those pollutants are “dredged or fill
material” regulated exclusively by the Corps, see 33 U.S.C.
§ 1344, so his mining still did not require a permit from EPA. The
district court rejected that argument and the Ninth Circuit
affirmed. App. 95a, 17a. Petitioner does not seek certiorari on
this issue.
12
enjoining Mr. Poe from suction dredge mining in the
river and ordering him to pay $150,000 to the United
States Treasury. App. 60a.8
3. On appeal, Mr. Poe renewed his argument that
Miccosukee Tribe and L.A. County clarified the
statutory meaning of “addition” and that they control
over Rybacheck and Borden Ranch.
Responding to that point, the panel started off on
the right foot by acknowledging that “[i]t is well
settled that the starting point for interpreting a
statute is the language of the statute itself,” and
“[w]hen interpreting a statute, [courts] use the
‘traditional tools of statutory construction,’ to
determine whether Congress directly addressed the
‘precise question at issue.’” App. 7a–8a (citations
omitted). But then the panel inexplicably ignored the
statutory text and skipped right to the Ninth Circuit’s
decisions in Rybachek and Borden Ranch.
Rybachek addressed, among other things, a facial
challenge to an EPA regulation that broadly sought to
regulate pollution from larger “placer mining”
activities under the NPDES permitting regime. 904
F.2d 1276.9 The challengers argued, among other
things, that instream placer mining did not result in
8 After the district court issued its remedies opinion and order,
ICL filed a motion for attorneys’ fees, costs, and other litigation
expenses totaling nearly $200,000. ECF Dkt. # 69. Though the
district court stayed that motion and held it in abeyance, ECF
Dkt. # 75, ICL has now filed a renewed motion for attorneys’ fees
in the amount of $264,440.25. See ECF Dkt. # 81.
9 The pollution limits set in these regulations do not apply to
Mr. Poe’s small-scale suction dredge mining. See 40 C.F.R.
§ 440.140(b) (exempting “dredges which process less than 50,000
cu yd of ore per year”).
13
the “addition” of pollutants to regulated waters, and
thus EPA could not regulate the activity. Id. at 1285.
The Ninth Circuit rejected this argument in a single
paragraph—with no textual analysis—and held that
“if the material discharged originally comes from the
streambed itself, such resuspension may be
interpreted to be an addition of a pollutant under the
Act.” Id.10 And so the court “defer[ed] to the EPA’s
interpretation of the word ‘addition.’” Id. at 1286.
(citing Chevron v. NRDC, 467 U.S. 837, 844 (1984)).
Borden Ranch, in turn, relied on Rybachek to hold that
deep plowing in regulated wetlands results in the
“addition” of pollutants even though it does not
“involve the introduction of material brought in from
somewhere else” and even though “no new material
has been ‘added . . . .’” 261 F.3d 814–15. Because
“addition” is ambiguous under these precedents, the
panel below concluded that the resuspension of rocks
and sands from Mr. Poe’s suction dredge mining
qualifies as the “addition of any pollutant” even
though those materials came from the bed of the
stream itself. App. 67a.
As for Miccosukee Tribe and L.A. County, the
panel distinguished those cases because they involved
“polluted water [] transferred from one location to
another within the same waterbody,” and Mr. Poe’s
dredge mining involves “excavat[ing] rocks, gravel,
The opinion relied on Avoyelles Sportsmen’s League, Inc. v.
Marsh, 715 F.2d 897, 923 (5th Cir. 1983), and United States v.
M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir. 1985).
Both decisions, in turn, applied broad deference to the EPA’s
view that “redeposit”—in contexts the Rybachek court found
similar to placer mining—may be considered an “addition” of a
pollutant. Rybachek, 904 F.2d at 1285–86.
10
14
sand, sediment, and silt from the riverbed,” which are
then discharged into the same waterbody. App. 10a–
11a. Yet the panel left unexplained why the precise
location of pollutants within a regulated waterbody
should make a legal difference.
Mr. Poe also argued that, even if “addition” is
ambiguous, Rybachek’s reliance on Chevron conflicts
with this Court’s recent decision in Sackett, which
precludes deference under supposedly ambiguous
statutes that impose significant civil liability and
criminal sanctions for ordinary, everyday conduct.
App. 10a–13a. Yet the panel did not cite Sackett, much
less address Mr. Poe’s argument based on that ruling.
Mr. Poe then moved for rehearing en banc, which
was denied. App. 97a.
REASONS FOR GRANTING THE PETITION
I.
The Ninth Circuit’s decision conflicts with
this Court’s precedents construing the
Clean Water Act.
A. The Ninth Circuit’s decision conflicts
with this Court’s decisions in Miccosukee
Tribe and L.A. County.
Under the ordinary meaning of “addition,” a
person does not discharge pollutants under the Clean
Water Act unless he increases the amount of
pollutants in a jurisdictional water. The Court
confirmed this commonsense interpretation of the
statute in both Miccosukee Tribe, 541 U.S. at 109–12,
and L.A. County, 568 U.S. at 82–84.
In neither case did this Court find “addition”
ambiguous; it simply employed traditional tools of
statutory construction and then applied the resulting
15
legal rule—the ordinary meaning of the term. Indeed,
the Court held in Miccosukee Tribe that “the transfer
of polluted water between ‘two parts of the same water
body’ does not constitute a discharge of pollutants
under the CWA.” L.A. County, 568 U.S. at 82 (citation
omitted). The Court “derived that determination from
the CWA’s text, which defines the term ‘discharge of a
pollutant’ to mean ‘any addition of any pollutant to
navigable waters from any point source.’” Id. (citing
33 U.S.C. § 1362(12)). And “[u]nder a common
understanding of the meaning of the word “add,” no
pollutants are “added” to a water body when water is
merely transferred between different portions of that
water body.” Id. (citing Webster’s Third New
International Dictionary 24 (2002) (“add” means “to
join, annex, or unite (as one thing to another) so as to
bring about an increase (as in number, size, or
importance) or so as to form one aggregate”)
(emphasis added)).11 Neither the Ninth Circuit’s
decision below nor the precedents it relies on can be
squared with this Court’s rulings.
First, in Rybachek, the Ninth Circuit reflexively
deferred to the EPA’s view that “resuspension” could
be the “addition” of a pollutant. Rybachek was a broad
challenge to a regulation of many forms of placer
mining, including mining that takes place both on
11 This Court’s construction of “addition” is bolstered by statutory
context, which shows that Congress wanted to cabin the statute’s
scope by including “addition” as a term of limitation. Cf. S.D.
Warren Co. v. Maine Bd. of Env’t Prot., 547 U.S. 370, 380–81
(2006) (“The triggering statutory term” under NPDES permitting
“is not the word ‘discharge’ alone, but ‘discharge of a pollutant,’
a phrase made narrower by its specific definition requiring an
‘addition’ of a pollutant to the water.”) (emphasis added).
16
shore and instream.12 Reasonably enough, the court
held that “if the material discharged is not from the
streambed itself, but from the bank alongside, this is
clearly the discharge into navigable waters of a
pollutant under the Act.” 904 F.2d at 1285. And
“[b]ecause, under this scenario, the material
discharged is coming not from the streambed itself,
but from outside it, this clearly constitutes an
‘addition.’” Id.
Yet Rybachek did not stop there. In a single
paragraph—without employing the traditional tools of
statutory construction—it then found, applying
Chevron deference, that “even if the material
discharged originally comes from the streambed itself,
such resuspension may be interpreted to be an
addition of a pollutant under the Act.” Id. (emphasis
added). This statutory analysis applying broad and
reflexive deference, which the panel below relied on,
conflicts with this Court’s decisions in Miccosukee
Tribe and L.A. County applying the ordinary meaning
of “addition” under the Clean Water Act.
Nor can Borden Ranch be reconciled with this
Court’s precedents. Indeed, the Ninth Circuit’s
holding—that the plowing of wet farm fields results in
the “addition” of pollutants because dirt is moved
around within those fields—makes no sense under the
ordinary meaning of “addition.” As Judge Gould
observed in dissent, “the return of soil in place after
deep plowing is not a ‘discharge of a pollutant.’” 261
F.3d at 819 (Gould, J., dissenting). Although through
plowing “the hydrological regime is modified,” any
12 Noticeably absent from 40 C.F.R. § 440.140 is any attempt by
EPA to define “addition” of a pollutant.
17
such ecological impact is irrelevant, because
“Congress spoke in terms of discharge or addition of
pollutants, not in terms of change of the hydrological
nature of the soil.” Id. at 820. And just as the plowing
in Borden Ranch involved no movement of
“process[e]d” material “to a substantially different
location,” see id., the same is true of suction dredge
mining, which entails merely the passing of gravel
and sand through a floating sluice box. See David
Bernell et al., Inst. For Natural Resources, Or. State
Univ., Recreational Placer Mining in the Oregon
Scenic Waterways System 44 (2003) (“There is no
discharge of pollutants into the waterways, [and]
there are no chemical components being used in the
mining process . . . .”).13
Second, the panel’s attempt to distinguish
Rybachek from this Court’s precedents was also
misplaced because there is no legal difference between
Rybachek’s ultimate judgment and this Court’s
holdings in Miccosukee Tribe and L.A. County. See
App. 10a–11a. In both cases, the Court did not hold
that “simply transferring water,” id. at 11a, between
two parts of the same waterbody was not an “addition”
of a pollutant. Those cases held that transferring
water—which contained pollutants—between parts of
the same waterbody was not an addition of a
pollutant. See L.A. County, 568 U.S. at 80.
To be sure, Miccosukee Tribe and L.A. County both
concerned the movement of polluted “water”—and
suction dredge mining “[p]ick[s] up the bed material,”
including “rock and sand,” from the streambed. App.
11a. But this distinction makes no legal difference,
13 Available at https://bit.ly/34W5AcW.
18
and the Ninth Circuit did not even attempt to explain
any legal difference. This is for a good reason: as far
as Mr. Poe is aware, no court has ever held that a
regulated water’s streambed and the material on or
within it are not part of the “navigable water” itself.
See United States v. Moses, 496 F.3d 984, 991 (9th Cir.
2007) (“[A]s the Supreme Court has recognized,
regardless of any other disagreements, ‘no one
contends that federal jurisdiction appears and
evaporates along with the water in such regularly dry
channels.’”) (quoting Rapanos, 547 U.S. at 733 n.6).
That should not be surprising—were the rule
otherwise, a person would be free to flout all the Clean
Water Act’s provisions by simply discharging
pollutants when a “navigable water” is dry. But see
Sackett, 598 U.S. at 671 (adopting the Rapanos
plurality’s view that the Clean Water Act’s “use of
‘waters’
encompasses
‘only
those
relatively
permanent, standing or continuously flowing bodies of
water’”); Rapanos, 547 U.S. at 732 n.5 (“By describing
‘waters’ as ‘relatively permanent,’ we do not
necessarily exclude streams, rivers, or lakes that
might dry up in extraordinary circumstances, such as
drought. We also do not necessarily exclude seasonal
rivers, which contain continuous flow during some
months of the year but no flow during dry months[.]”).
To put a slightly different spin on the analogy the
Court used in Miccosukee Tribe and L.A. County,
imagine if soup contained vegetables that are ladled
from the bottom of a pot, then the soup with the same
vegetables is returned to the pot. No one would think
someone increased the amount of vegetables in, or
added different vegetables to, the soup or the pot. But
if someone then added, say meat to the soup from a
19
different pot, then there would be an “addition” of
materials (or pollutants).14
At bottom, this Court’s decisions in Miccosukee
Tribe and L.A. County should have controlled the legal
analysis below where an instream suction dredge
miner takes materials (the soup) from the waterbody
(the pot) and moves those materials through his
dredge (the ladle) and then returns some of those
same materials back to the waterbody (the pot). In
both instances, no new materials are added to the
“navigable waters”—thus there can be no increase of
pollutants. The Ninth Circuit’s judgment, applying
Rybachek’s holding that deference is owed to EPA’s
view that resuspending pollutants within a
waterbody, sharply departs from this Court’s
precedents and the Clean Water Act’s ordinary
meaning.
B. The Ninth Circuit’s decision conflicts
with this Court’s application of clear
statement rules in Sackett.
Mr. Poe argued below that Chevron deference was
precluded by this Court’s recent decision in Sackett,
which explained that “background principles of
construction” require EPA to “provide clear evidence
that it is authorized to regulate in the manner it
proposes.” 598 U.S. at 679. Yet the panel simply
ignored Mr. Poe’s argument and did not address
14 See
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,
10800 (2014) (arguing that Miccosukee Tribe rejected the
argument that redepositing pollutants from the same regulated
water could add new or different pollutants).
20
Sackett at all in its opinion. The Court should
therefore take this case and clarify that Sackett means
what it says: lower courts should not defer to executive
branch agencies’ statutory interpretations under the
Clean Water Act.
First, background principles of construction
“require Congress to enact exceedingly clear language
if it wishes to significantly alter the balance between
federal and state power[.]” Id. (citation omitted). This
is because “[r]egulation of land and water use lies at
the core of traditional state authority” and an “overly
broad interpretation of the [Act’s] reach would
impinge on this authority.” Id. at 679–80. Here, EPA’s
overbroad view of “addition” has expanded the Clean
Water Act’s reach to normal productive activities like
instream mining (this case) and farming (see Borden
Ranch) with no clear statement for that authority.
Worse still, the Ninth Circuit’s blessing of this flawed
view of the statute has allowed private enforcers to
infringe on the states’ (and even the federal
government’s) enforcement authority with no clear
statement. Indeed, in Mr. Poe’s case, he annually
obtained a permit from the State of Idaho before
suction dredge mining, App. 49a, with EPA being fully
aware of his activity, yet he is now facing ruinous fines
in federal court through a citizen suit based on a
supposedly “reasonable” view of the statute.
Second, fair notice and “[d]ue process require[]
Congress to define penal statutes with sufficient
definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does
not encourage arbitrary and discriminatory enforcement.” Id. at 680 (cleaned up). And “[w]here a penal
statute could sweep so broadly as to render criminal a
21
host of what might otherwise be considered ordinary
activities, we have been wary about going beyond
what ‘Congress certainly intended the statute to
cover.’” Id. at 681 (quoting Skilling v. United States,
561 U.S. 358, 404 (2010)). Under the Ninth Circuit’s
judgment, whenever materials are removed from a
riverbed and resuspended within a regulated water,
there is a regulable “addition” of pollutants. That rule
contains little to no limiting principle for what conduct
could be illegal. For example, imagine if someone
scooped sand (pollutants) from the riverbed with a
shovel (a point source), picked out the aesthetically
pleasing rocks, and “resuspended” (added) the leftover materials back into the water. Federal criminal?
Simply put, after Sackett, a clear statement is
required from Congress before courts can
mechanically accept agencies’ interpretations of the
Clean Water Act. And these clear statement rules
enunciated in Sackett mean here that any ambiguity
in “addition” should be resolved in favor of the
regulated party. Yet the Ninth Circuit’s decision
below, by effectively creating ambiguity and resolving
that ambiguity against the regulated party, did not
just fail to follow these principles; it turned them on
their head. Certiorari is warranted.
II. The Ninth Circuit’s decision deepens an
already entrenched conflict over the
meaning of “addition” under the Clean
Water Act.
Besides conflicting with decisions of this Court,
the Ninth Circuit’s decision below deepens an already
entrenched split among lower courts over the
statutory meaning of “addition of any pollutant.” For
many years after the Act’s passage—but before this
22
Court provided guidance over the meaning of
“addition”—the various circuit courts often found the
term ambiguous, gave broad deference to the
executive branch, and issued conflicting decisions over
the Act’s scope.15 This Court should grant certiorari
and provide clarity and uniformity to the law.
Some courts of appeals, although in a few
instances applying broad deference, ultimately issued
decisions consistent with the statute’s ordinary
meaning and this Court’s precedent in Miccosukee
Tribe and L.A. County: moving or resuspending
pollutants within a navigable water is not the
“addition” of pollutants. See, e.g.,
Gorsuch, 693 F.2d at 174–75 (giving deference
to EPA’s position about dams as point
sources—and that the “addition from a point
source occurs only if the point source itself
physically introduces a pollutant into water
from the outside world”);
Nat’l Mining Ass’n v. U.S. Army Corps of
Eng’rs, 145 F.3d 1399, 1404 (D.C. Cir. 1998)
(“[T]he straightforward statutory term
‘addition’ cannot reasonably be said to
encompass the situation in which material is
15 Indeed,
most if not all circuit court decisions construing
“addition” and deferring to EPA or the Corps’ view predated this
Court’s decisions in Miccosukee Tribe and L.A. County. See Nat’l
Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 174–75 (D.C. Cir. 1982);
Avoyelles Sportsmen’s League v. Marsh, 715 F.2d 897, 922–25
(5th Cir. 1983); United States v. M.C.C. of Florida, Inc., 772 F.2d
1501, 1506 (11th Cir. 1985); Nat’l Wildlife Fed’n v. Consumers
Power Co., 862 F.2d 580, 585 (6th Cir. 1988); Rybachek v. EPA,
904 F.2d 1276, 1285 (9th Cir. 1990); Borden Ranch P’ship v. U.S.
Army Corps of Eng’rs, 261 F.3d 810, 814–15 (9th Cir. 2001).
23
removed from the waters of the United States
and a small portion of it happens to fall
back.”);
Nat’l Wildlife Fed’n v. Consumers Power Co.,
862 F.2d 580, 585 (6th Cir. 1988) (following
Gorsuch to hold that “manipulation of water
by [a point source that] changes the form of
the pollutant from live fish to a mixture of live
and dead fish in the process of generating
electricity . . . does not mean that the [point
source] ‘adds’ a pollutant to Lake Michigan”);
Catskill Mountains, 273 F.3d at 492 (“The
Gorsuch and Consumers Power decisions
comport with the plain meaning of ‘addition’
. . . .”);
United States v. Law, 979 F.2d 977, 979 (4th
Cir. 1992) (“[W]here ‘pollutants’ exist[] . . . in
the waters of the United States before contact
with [point sources], the mere diversion in the
flow of the waters [does] not constitute
‘additions’ of pollutants to the waters.”).
Other courts of appeals decisions—including the
Ninth Circuit’s precedent relied on below—often
applied broad deference and ultimately came to a
decision not reflecting the statute’s ordinary meaning
or consistent with this Court’s precedent. See, e.g.,
United States v. Deaton, 209 F.3d 331, 335
(4th Cir. 2000) (“The idea that there could be
an addition of a pollutant without an addition
of material seems to us entirely unremarkable
. . . .”);
24
Rybachek, 904 F.2d at 1285–86 (“[E]ven if the
material discharged originally comes from the
streambed itself, such resuspension may be
interpreted to be an addition of a pollutant
under the Act.”);
Borden Ranch, 261 F.3d at 814–15 (deep
plowing of vernal pool wetlands to plant
orchards and vineyards results in the addition
of a pollutant (soil) even though “no new
material has been ‘added’”);
Ayoyelles Sportsmen’s League, 715 F.2d at 923
(“The word ‘addition,’ as used in the definition
of the term ‘discharge,’ may reasonably be
understood to include ‘redeposit.’”);
United States v. M.C.C. of Florida, Inc., 772
F.2d 1501, 1506 (11th Cir. 1985) (a tugboat
propeller’s stirring up of sediment onto
submerged sea grass beds was an “addition”
of “dredged spoil” pollution).
Most recently, the Fourth Circuit in Gaston
applied this Court’s precedent in L.A. County and the
ordinary meaning of the Act’s text. Gaston concerned
a private enforcement action under the Clean Water
Act’s citizen suit provision. The suit alleged that the
owners of certain shrimp trawlers violated the Clean
Water Act because they discharged pollutants into a
jurisdictional water without a NPDES permit. 76
F.4th at 302–04. The private-party enforcers in that
case argued that the shrimp trawlers’ nets “disturb
the Sound’s floor, causing sediment [i.e., rocks and
sand] to temporarily suspend in the water.” Id. at 302.
And thus, the shrimp trawlers added pollutants to the
Pamlico Sound. Id. But a unanimous Fourth Circuit
25
panel rejected that claim because the “rocks and sand”
allegedly “discharged” from the Sound’s floor (the bed
of the navigable water) were not added—those
materials were already “present in the body of
water[.]” Id. at 304. “[M]oving that pollutant around
inside that same body of water is not discharging it—
nothing is added.” Id. (citing L.A. County, 568 U.S. at
82–83).
Gaston directly conflicts with not only the Ninth
Circuit’s decision here, but many decisions cited
above. Indeed, the panel’s decision below (and thus
Rybachek) conflicts with Gaston in two ways. First,
the Fourth Circuit did not find “addition”
ambiguous—it followed this Court’s precedent in L.A.
County and applied the term’s ordinary meaning. 76
F.4th at 304. Second, the Fourth Circuit found that
materials suspended in the water coming from the
ocean floor did not “add” any pollutants because the
materials were “already present in the body of water.”
Id. That holding conflicts with the panel’s purported
distinction below that Mr. Poe added materials to the
river because they came from the riverbed.
This Court should grant certiorari and resolve
these conflicts to bring uniformity to the Clean Water
Act.
III. This case is a good vehicle for the Court to
clarify an exceptionally important issue of
statutory interpretation under the Clean
Water Act.
1. As this Court’s rulings in Miccosukee Tribe and
L.A. County show, the Ninth Circuit’s application of
Chevron deference flouts the Clean Water Act’s text.
And as many members of this Court have explained,
26
reflexively granting executive branch agencies broad
deference (or any deference at all) is incompatible
with the separation of powers and due process of
law.16 That is the primary reason why this Court is
now considering whether to overrule or limit Chevron.
See Loper Bright Enterprises v. Raimondo, 143 S. Ct.
2429 (2023) (No. 22-451), cert. granted in part May 1,
2023. If this Court does so, then there will be no basis
in law for the Ninth Circuit’s judgment.17 And in any
event, even under Chevron, courts should begin with
a statute’s text and end there if the meaning is clear.
Brett M. Kavanaugh, Fixing Statutory Interpretation,
129 Harv. L. Rev. 2118, 2153 n.175 (2016) (“Chevron
told us explicitly that we should employ all the
‘traditional tools of statutory construction’ to resolve
any statutory ambiguity before we defer to an
agency. . . . [I]n those cases, we would not have to
defer to the agency at all.”). The Ninth Circuit failed
to follow these instructions below and it is important,
regardless of Chevron’s fate, that the lower courts be
See, e.g., Pereira v. Sessions, 585 U.S. 198, 219–21 (2018)
(Kennedy, J., concurring); Michigan v. EPA, 576 U.S. 743, 760–
64 (2015) (Thomas, J., concurring); Perez v. Mortgage Bankers
Ass’n, 575 U.S. 92, 109–10 (2015) (Scalia, J., concurring in the
judgment); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58
(10th Cir. 2016) (Gorsuch, J., concurring); Kavanaugh, Fixing,
supra, at 2150–54.
16
17 The Court may wish to hold this Petition until Loper Bright is
resolved and, if appropriate, grant, vacate, and remand. If this
Court overrules Chevron—or even if it modifies Chevron
deference without overruling the doctrine—it will directly affect
the Ninth Circuit’s opinion and judgment below. See Lawrence
on Behalf of Lawrence v. Chater, 516 U.S. 163, 166 (1996) (per
curiam) (“[This Court has] GVR’d in light of a wide range of
developments, including our own decisions[.]”).
27
prevented from skirting their duty to interpret
statutes fully and faithfully.
2. Ensuring that lower courts employ the
traditional tools of statutory construction is also vital
when the Clean Water Act is at issue. Indeed, because
the Act’s reach is often unclear, it is unfortunately all
too easy for citizens acting in good faith to violate the
Act’s “regime of strict liability.” Cnty. of Maui v.
Hawaii Wildlife Fund, 140 S. Ct. 1462, 1489 (2020)
(Alito, J., dissenting). And the decision below aids this
regime by significantly expanding the Act’s nonlegislative scope, a trend over which this Court has
repeatedly expressed concern. See, e.g., Sackett, 598
U.S. at 660–61 (noting how the Act’s “expansive
interpretations” combined with its civil and criminal
penalties can be “crushing” and citing as an example
Borden Ranch’s adoption of EPA’s argument that each
of 348 passes of a plow by a farmer was a separate
offense).
This Court found the “addition” issue cert-worthy
in Borden Ranch, but the Ninth Circuit’s judgment
was affirmed by an equally divided Court because of
Justice Kennedy’s recusal. Yet the reasons for this
Court’s review now are just as, if not more, strong
than they were then. Indeed, commentators have
continuously underscored the need for this Court’s
intervention to narrow how the lower courts have
interpreted “addition.” See, e.g., Miller, “Addition,”
supra, at 10773, 10803 (advocating for construing
“addition” to mean “the act of a person adding a
pollutant to navigable waters from a point source,
when that pollutant would not otherwise be in those
navigable waters” and observing that the contrary
28
“redeposit” decisions “push ‘addition’ to its outer
limit”).18
3. The question presented is also important
because ordinary citizens ought to have the benefit of
clarity in the law because they are often subject to
private enforcement of extra-textual interpretations
of the Act. And the Ninth Circuit’s decision below
further entrenches the ability of private groups to sue
in federal court for often innocent violations, collect
money for the United States Treasury, and obtain
attorneys’ fees for doing so. See Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167,
209–10 (2000) (Scalia, J., dissenting) (observing how
citizen plaintiffs’ “massive bargaining power . . . is
often used to achieve settlements requiring the
defendant to support environmental projects of the
plaintiffs’ choosing”). See also Marc Robertson,
Environmental Ambulance Chasing: DOJ Urges Court
18 See also, 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 rule
in cases like Borden Ranch “could impose severe regulatory
burdens”); Arthur F. Coon, Is Plowing a Point Source Discharge?
The Aftermath of Borden Ranch, 18-SUM Nat. Resources & Env’t
6, 7 (Summer 2003) (arguing that “the Ninth Circuit’s holding in
Borden Ranch is wrong on the law, and should ultimately be
overruled by the U.S. Supreme Court if the same issues arise
again in another case”). Cf. Timothy S. Bishop et al., Counting
the Hands on Borden Ranch, 34 Envtl. L. Rep. (Envtl. L. Inst.)
10,040 (2004) (noting the parallel between the argument that
“moving water around within a single water body cannot amount
to an ‘addition’ of a pollutant” and the Borden Ranch petitioners’
position that “moving soil around within a wetland cannot be the
‘addition’ of a pollutant because it adds nothing new to the
wetland”).
29
To Scrutinize Clean Water Citizen-Suit Settlements,
Forbes (June 26, 2018) (describing a Department of
Justice court filing raising concerns about a law firm’s
abusive use of Clean Water Act citizen suits).19
Mr. Poe’s plight is a fitting example. He did not
seek an NPDES permit because, on advice from his
attorney, he believed that he need only obtain a
permit from the State of Idaho. App. 52a. That
reasonable position, see Miccosukee Tribe and L.A.
County, has him now facing financially ruinous civil
penalties and attorneys’ fees under the Act’s private
enforcement provision.
4. This case is a good vehicle to resolve the
conflicts over the Clean Water Act’s meaning and
scope. The pertinent conflicts are squarely presented,
and the Ninth Circuit issued a published decision
expressly holding: (1) “addition” is ambiguous and
merits Chevron deference, and (2) the mere movement
or resuspension of materials or pollutants within a
waterbody can be considered the “discharge of a
pollutant” under the Act, 33 U.S.C. § 1362(12). App
7a–13a. Now is also the right time for the Court to
resolve the conflict. This Court decided Miccosukee
Tribe in 2004 and L.A. County in 2013, yet the conflict
among the circuits has persisted. There is no need for
awaiting further percolation.
At bottom, whether the activity is small-scale
mining, normal farming practices, or shrimp trawling,
the legal issue raised here concerns thousands of
citizens across the nation and merits this Court’s
review.
19 Available at https://bit.ly/3R0xFIW.
30
CONCLUSION
The Clean Water Act is among the most
complicated statutes in the federal code. But as this
Court’s precedents show, its terms and scope can be
discerned by applying the traditional tools of statutory
construction. Yet lower courts continue to reflexively
and broadly defer to the executive branch’s view of the
statute—which can lead to severe civil penalties and
other life altering consequences. This enforcement
action and the Ninth Circuit’s decision below are
prime examples of this backwards regime. But this
case gives the Court a chance to remedy these ills by
clarifying (once again) the meaning of “addition” and
properly limiting EPA’s authority over everyday
productive activity—and the private enforcement of
that authority. The Petition for Writ of Certiorari
should be granted.
DATED: March 2024.
Respectfully submitted,
DAMIEN M. SCHIFF
Pacific Legal Foundation
555 Capitol Mall,
Suite 1290
Sacramento, CA 95814
DANIELLE R. BETTENCOURT
Fairfield and Woods P.C.
1801 California St.,
Suite 2600
Denver, CO 80202-2645
FRANK D. GARRISON
Counsel of Record
Pacific Legal Foundation
3100 Clarendon Blvd.,
Suite 1000
Arlington, VA 22201
Telephone: (202) 888-6881
FGarrison@pacificlegal.org
Counsel for Petitioner Shannon Poe
APPENDIX
i
Appendix
Table of Contents
Opinion, U.S. Court of Appeals for the Ninth
Circuit, filed November 20, 2023 ........................ 1a
Memorandum Decision and Order Re:
Plaintiff Idaho Conservation League’s
Motion for Remedies, U.S. District Court,
District of Idaho, filed September 28, 2022 ...... 21a
Memorandum Decision and Order Re:
Idaho Conservation League’s Motion for
Summary Judgment on Liability and
Shannon Poe’s Motion for Summary
Judgment, U.S. District Court,
District of Idaho, filed June 4, 2021 ................. 61a
Order (denying petition for rehearing en banc),
U.S. Court of Appeals for the Ninth
Circuit, filed January 11, 2024 ......................... 97a
1a
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IDAHO CONSERVATION
LEAGUE,
Plaintiff-Appellee,
No. 22-35978
D.C. No. 1:18-cv00353-REP
v.
SHANNON POE,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Raymond Edward Patricco, Jr.,
Magistrate Judge, Presiding
Argued and Submitted October 5, 2023
Seattle, Washington
Filed November 20, 2023
Before: KIM McLANE WARDLAW and MILAN D.
SMITH, JR., Circuit Judges, and ROBERT L.
HINKLE,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
_________________________________________________
* The Honorable Robert L. Hinkle, United States District Judge
for the Northern District of Florida, sitting by designation.
2a
SUMMARY**
_________________________________________________
Environmental Law
The panel affirmed the district court’s grant of
summary judgment in favor of the Idaho Conservation
League in the League’s action under the Clean Water
Act against Shannon Poe, who engaged in instream
suction dredge mining, a method of placer mining, in
Idaho’s South Fork Clearwater River without a
National Pollutant Discharge Eliminating System
permit.
The panel held that to establish a violation of the
Clean Water Act’s NPDES requirements, also referred
to as Section 402 permitting, a plaintiff must prove
that the defendant (1) discharged, i.e., added (2) a
pollutant (3) to navigable waters (4) from (5) a point
source. As to the first element, the panel held that
Poe’s suction dredge mining “added” a pollutant to the
South Fork. The panel followed Rybachek v. EPA, 904
F.2d 1276 (9th Cir. 1990), which upheld
Environmental Protection Agency regulations
interpreting the Clean Water Act as prohibiting
discharges from placer mining sluice boxes unless
done in compliance with a Section 402 permit. In two
subsequent cases, S. Fla Water Mgmt. Dist. v.
Miccosukee Tribe of Indians, 541 U.S. 95 (2004), and
L.A. Cnty. Flood Control Dist. V. Nat. Res. Def.
Council, Inc., 568 U.S. 78 (2013), the Supreme Court
held that the transfer of polluted water from one
location to another within the same waterbody did not
** This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the
reader.
3a
constitute an “addition” of pollutants. Here, by
contrast, Poe excavated from the riverbed materials
that were not already suspended in the water. The
panel concluded that Rybachek was not “clearly
irreconcilable” with L.A. County or Miccosukee Tribe’s
holdings, and it therefore was still good law.
The panel further held that the processed material
discharged from Poe’s suction dredge mining was a
pollutant, not dredged or fill material, and therefore
required an NPDES permit under Section 402 of the
Clean Water Act, rather than a permit from the Army
Corps of Engineers under Section 404. Because the
meaning of the Act and its implementing regulations
was ambiguous, the panel deferred to the official joint
conclusion of the EPA and the Corps.
_________________________________________________
COUNSEL
Frank D. Garrison IV (argued), Pacific Legal
Foundation, Arlington, Virginia; Damien M. Schiff,
Pacific Legal Foundation, Sacramento, California;
Danielle Bettencourt, Fairfield and Woods PC,
Denver, Colorado; for Defendant-Appellant.
Bryan Hurlbutt (argued) and Laurence J. Lucas,
Advocates for the West, Boise, Idaho, for PlaintiffAppellee.
_________________________________________________
OPINION
M. SMITH, Circuit Judge:
This appeal raises questions of statutory
interpretation concerning the Clean Water Act
(CWA), 33 U.S.C. § 1311(a). For several years,
Shannon Poe engaged in instream suction dredge
4a
mining in Idaho’s South Fork Clearwater River (the
South Fork) without a National Pollutant Discharge
Eliminating System (NPDES) permit. Plaintiff Idaho
Conservation League (ICL) sued Poe, arguing that he
violated the CWA each time he operated a suction
dredge on the South Fork without an NPDES permit.
Poe countered that (1) his suction dredge mining did
not add pollutants to the South Fork and therefore did
not require an NPDES permit, and (2) even if his
suction dredge mining did add pollutants, those
pollutants are “dredged” or “fill” material regulated
exclusively pursuant to Section 404, not Section 402,
of the CWA. The district court granted summary
judgment to ICL. Poe appeals the judgment as to
liability. We affirm.
STATUTORY AND
REGULATORY BACKGROUND
Congress enacted the CWA “to restore and
maintain the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
The CWA “categorically prohibits any discharge of a
pollutant from a point source without a permit.”
Comm. to Save Mokelumne River v. E. Bay Mun. Util.
Dist., 13 F.3d 305, 309 (9th Cir. 1993). “[D]ischarge of
a pollutant” is defined as the “addition of any
pollutant to navigable waters from any point source
. . . .” 33 U.S.C. § 1362(12). The CWA defines
“pollutant” broadly to include “dredged spoil,” “solid
waste,” “rock,” “sand,” and “industrial . . . waste
discharged into water.” 33 U.S.C. § 1362(6). A point
source is “any discernible, confined and discrete
conveyance . . . .” 33 U.S.C. § 1362(14). Navigable
waters are defined as “the waters of the United States
. . . .” 33 U.S.C. § 1362(7). The CWA does not define
5a
what constitutes the “addition” of a pollutant. See 33
U.S.C. § 1362.
Before discharging any pollutant, one must obtain
a permit from either the Environmental Protection
Agency (the EPA) or the Army Corps of Engineers (the
Corps). See 33 U.S.C. §§ 1311(a), 1342, 1344. The
NPDES permitting program (also referred to as
Section 402 permitting) authorizes the EPA to issue
permits “for the discharge of any pollutant, or
combination of pollutants,” on the condition that the
discharge will otherwise comply with the CWA. 33
U.S.C. § 1342(a)(1). Section 404 of the CWA
authorizes the Corps to issue permits “for the
discharge of dredged or fill material . . . .” 33 U.S.C.
§ 1344(a). When a discharge requires a Section 404
permit, it does not require a Section 402 permit. See
33 U.S.C. § 1342(a)(1); 40 C.F.R. § 122.3(b). The CWA
does not define “discharge of dredged material” or
“dredged material.” See 33 U.S.C. §§ 1342, 1362.
FACTUAL AND PROCEDURAL BACKGROUND
Suction dredge mining is a method of placer
mining that uses a floating watercraft device with a
pump to suck water, riverbed sands, and minerals
through a nozzle. The water and riverbed material are
run through a “sluice box,” where gold and other
heavy metals are separated out. Water, sand, and
minerals are then discharged back into the river,
along with sediments and other pollutants. Dredging
creates tailing piles behind the dredge, where larger
and heavier processed riverbed materials are
discarded and settle to the river bottom nearby.
Tailing piles can rise to the surface level of the river
and can span most of the river’s width.
6a
Dredging overburden and bedrock involves
dismantling the riverbed by dislodging and moving
rocks and boulders, and breaking up tightly bound
sediments using the miner’s hands, the dredge nozzle,
and other tools, like crowbars. The resulting holes can
be several feet deep under the riverbed.
During the 2014, 2015, and 2018 dredge seasons,
Poe suction dredge mined forty-two days on the South
Fork, a navigable water located in north-central
Idaho. Poe never obtained an NPDES permit
pursuant to Section 402 of the CWA.
On August 10, 2018, ICL sued Poe, alleging that
Poe was violating the CWA by failing to obtain an
NPDES permit while dredging and discharging
sediment and other pollutants in the South Fork. On
December 21, 2018, Poe filed a motion to dismiss
arguing that (1) the district court lacked subject
matter jurisdiction because, in part, ICL’s 2017 and
2018 notice letters were not sent via certified mail as
required by the CWA and its implementing
regulations; and (2) ICL lacked standing to the bring
the suit in the first instance. The district court denied
the motion.
ICL then moved for summary judgment on
liability. Poe cross-moved for summary judgment. On
June 4, 2021, the district court granted summary
judgment to ICL, concluding that (1) Poe’s suction
dredge mining added pollutants to the South Fork,
thereby requiring an NPDES permit under Section
402 of the CWA; and (2) the processed material
discharged from Poe’s suction dredge mining was a
pollutant, not dredged or fill material, requiring an
NPDES permit under Section 402 of the CWA rather
than a permit under Section 404. The court thereafter
7a
enjoined Poe from suction dredge mining in the South
Fork without a valid CWA Section 402 permit and
imposed a $150,000 civil penalty. Poe appeals the
judgment as to liability.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review de novo a district court’s decision to grant
summary judgment. Lopez v. Smith, 203 F.3d 1122,
1131 (9th Cir. 2000) (en banc). We “must determine
whether, viewing the evidence in the light most
favorable to the nonmoving party, there are any
genuine issues of material fact and whether the
district court correctly applied the relevant
substantive law.” Id. Summary judgment is
appropriate where “there is no genuine dispute as to
any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
ANALYSIS
I. Dumping Suction Dredge Mining Waste into
the South Fork Is an “Addition” of Pollutants
Pursuant to the CWA.
To establish a violation of the CWA’s NPDES
requirements, “a plaintiff must prove that defendant[]
(1) discharged, i.e., added (2) a pollutant (3) to
navigable waters (4) from (5) a point source.” Comm.
to Save Mokelumne River, 13 F.3d at 308. The parties
dispute the first element—whether Poe’s suction
dredge mining “added” a pollutant to the South Fork.
What amounts to the “addition” of a pollutant is
not defined under the CWA. “It is well settled that the
starting point for interpreting a statute is the
language of the statute itself.” Olympic Forest Coal. v.
Coast Seafoods Co., 884 F.3d 901, 905 (9th Cir. 2018)
8a
(quoting Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Found., Inc., 484 U.S. 49, 56 (1987)). “When
interpreting a statute, we first use the ‘traditional
tools of statutory construction,’ to determine whether
Congress directly addressed the ‘precise question at
issue.’” Id. (quoting Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)). “If the
precise question at issue is addressed, then the
‘unambiguously expressed intent of Congress
controls.’” Id. (quoting Chevron, 467 U.S. at 843).
Where a statute is ambiguous, courts defer to the
reasonable interpretation of the agency charged with
administering that statute. See Chevron, 467 U.S. at
844.
Since the 1970s, the EPA has interpreted the CWA
as prohibiting discharges from placer mining sluice
boxes unless done in compliance with a Section 402
permit. See Trustees for Alaska v. EPA, 749 F.2d 549,
552–53 (9th Cir. 1984) (reviewing the EPA’s issuance
of Section 402 permits to gold placer miners in 1976
and 1977). In 1988, the EPA adopted industry-wide
regulations setting effluent limitations for Section 402
permits for gold placer miners, including gold mining
from floating dredges. See 40 C.F.R. § 440.140.
In Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990),
miners challenged these regulations, arguing that
placer mining does not cause the “addition” of a
pollutant. We rejected that argument. We noted that
“resuspension” of streambed materials “may be
interpreted to be an addition of a pollutant under the
Act,” and we deferred to the EPA’s reasonable
interpretation that such activity constitutes the
“addition” of a pollutant under the CWA. Id. at 1285–
86 (first citing Avoyelles Sportsmen’s League, Inc. v.
9a
Marsh, 715 F.2d 897, 923 (5th Cir. 1983) (stating that
“[t]he word ‘addition,’ as used in the definition of the
term ‘discharge,’ may reasonably be understood to
include ‘redeposit’”); and then citing United States v.
M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir.
1985) (action of digging up sediment and redepositing
it on sea bottom by boat propellers constitutes an
addition of pollutants), vacated and remanded on
other grounds, 481 U.S. 1034 (1987)). We further
explained: “Because the EPA has been charged with
administering the [CWA], we must show great
deference to the Agency’s interpretation of the Act. We
especially defer where the Agency’s decision on the
meaning or reach of the [CWA] involves reconciling
conflicting policies committed to the Agency’s care and
expertise under the Act.” Id. at 1284 (citation
omitted).
Poe’s mining activities fall squarely within the
scope of Rybachek. Undisputed evidence in the record,
including photos and descriptions of Poe’s dredge
operating on the South Fork, shows that he
“excavate[d] the dirt and gravel” in the river using a
high-pressure blaster nozzle, “extract[ed] any gold”
and other heavy metals, and “discharge[d] the dirt
and other non-[heavy metal] materials into the
water.” See id. at 1285. That is, Poe engaged in placer
mining “subject to regulation under the [CWA].” Id.
Poe, therefore, “added” pollutants to the South Fork.
See id. (“[W]e will not strike down the EPA’s finding
that placer mining discharges pollutants within the
meaning of the Act.”); see also Borden Ranch P’ship v.
U.S. Army Corps of Engineers, 261 F.3d 810, 814 (9th
Cir. 2001) (reaffirming Rybachek, which “held that
removing material from a stream bed, sifting out the
gold, and returning the material to the stream bed
10a
was an ‘addition’ of a pollutant’”), aff’d, 537 U.S. 99
(2002).
In response, Poe argues that (1) Rybachek is no
longer good law in light of subsequent Supreme Court
decisions or, in the alternative, (2) the court should
not apply Chevron deference and overrule Rybachek.
Neither argument is persuasive.
Poe suggests that the Supreme Court has, since
Rybachek, twice confirmed the “commonsense
interpretation” of the CWA—i.e., that a person does
not illegally discharge a pollutant unless he or she
adds new material from the outside world. See S. Fla.
Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541
U.S. 95 (2004); L.A. Cnty. Flood Control Dist. v. Nat.
Res. Def. Council, Inc., 568 U.S. 78 (2013). That is,
according to Poe, Miccosukee Tribe and L.A. County
eviscerate the logic of Rybachek. But these cases are
both distinguishable from Rybachek and inapposite
here. In Miccosukee Tribe, polluted water was
removed from a canal, transported through a pump
station, and deposited into a reservoir a short distance
away. See 541 U.S. at 98–99. The Court held that
pumping polluted water from, and back into, the same
body of water, without more, “cannot constitute an
‘addition’ of pollutants.” Id. at 109–10 (“As the Second
Circuit put it in Trout Unlimited, 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.” (citing Catskill Mountains Chapter of
Trout Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 492
(2d Cir. 2001) (cleaned up)). In L.A. County, the Court
held that “the flow of water from an improved portion
of a navigable waterway into an unimproved portion
of the very same waterway does not qualify as a
11a
discharge of pollutants under the CWA.” 568 U.S. at
83. In both cases, polluted water was transferred from
one location to another within the same waterbody.
Here, by contrast, Poe excavated rocks, gravel,
sand, sediment, and silt from the riverbed. Poe
punched holes in the riverbed by excavating through
layers of riverbed down to the bedrock. Poe then
processed the materials by running them through the
sluice on his dredge, and then discarded the waste
material into the water. This added a plume of turbid
wastewater to the South Fork. These materials were
not already suspended in the water; they were
previously deposited in the riverbed. Poe’s dredging
was therefore not simple water transfer.
As the district court correctly observed,
Poe’s reliance on [L.A. County and
Miccosukee Tribe] misses the point. Suction
dredge mining does not simply transfer
water (what the above cases address); to the
contrary, it excavates rock, gravel, sand,
and sediment from the riverbed and then
adds those materials back to the river—this
time, in suspended form.
See also EPA, 2018 Response to Comments Idaho
Small Suction Dredge General Permit (GP) (“If,
during suction dredging, only water was picked up
and placed back within the same waterbody . . . , 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
12a
CWA § 502(6)] to be discharged to waters of the
United States. As a result . . . an NPDES permit is
required for the discharge from this activity.”
(alteration in original) (citation omitted)). Thus,
Miccosukee Tribe and L.A. County do not disturb our
holding in Rybachek, which remains good law.
In addition, or in the alternative, Poe asks us not
to apply Chevron deference and to overrule Rybachek.
Specifically, Poe argues that (1) the ordinary meaning
of “addition” under the CWA is clear, making Chevron
deference inappropriate, (2) Chevron should not be
applied where a statute may subject individuals to
criminal penalties, and (3) Chevron should not be
applied where the EPA has taken inconsistent
positions on the meaning of “addition” under the
CWA. Adopting any of these theories would require us
to depart from our ruling in Rybachek. A three-judge
panel may depart from controlling circuit precedent
only if “our prior circuit authority is clearly
irreconcilable with the reasoning or theory of
intervening higher authority.” Miller v. Gammie, 335
F.3d 889, 893 (9th Cir. 2003) (en banc). “[T]he ‘clearly
irreconcilable’ requirement ‘is a high standard.’” Fed.
Trade Comm’n v. Consumer Def., LLC, 926 F.3d 1208,
1213 (9th Cir. 2019) (quoting Rodriguez v. AT&T
Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir.
2013)). “[I]f we can apply our precedent consistently
with that of the higher authority, we must do so.” Id.
As explained above, Rybachek’s holding regarding
placer mining is not irreconcilable, let alone “clearly
irreconcilable,” with L.A. County or Miccosukee Tribe’s
holdings regarding the transfer of water within a
single waterbody. We therefore follow Rybachek on
the issues raised by Poe and hold that Poe’s instream
13a
suction dredge mining constitutes the “addition” of a
pollutant under the CWA.
II. The Processed Material Discharged from
Instream Suction Dredge Mining is a
Pollutant that Requires a Section 402 Permit.
Poe also argues that, even if his suction dredge
mining adds pollutants to the South Fork, the waste
discharged from his operation constitutes “dredged” or
“fill material” over which the Corps has exclusive
permitting authority.1 Poe makes this argument
pursuant to (1) the ordinary meaning of “dredged
material” under the CWA and (2) the ordinary
meaning of the Corps’ own regulatory definition of
“dredged material.” Neither argument is persuasive.
Under the CWA, pollution discharges require a
Section 402 permit from the EPA, unless the
discharge is “dredged or fill material” requiring a
Section 404 permit from the Corps. See 33 U.S.C.
§§ 1342, 1344; 40 C.F.R. § 122.3; Coeur Alaska, Inc. v.
Se. Alaska Conservation Council, 557 U.S. 261, 274
(2009). The terms “dredged material” and “discharge
of dredged material” are not defined under the CWA.
See 33 U.S.C. § 1362; Olympic Forest Coal., 884 F.3d
at 905 (“It is well settled that the starting point for
interpreting a statute is the language of the statute
itself.”). Nor does the statute define whether material
1 The Oregon Supreme Court recently addressed this issue. See
E. Or. Mining Ass’n v. Dep’t of Env’t Quality, 445 P.3d 251, 274
(2019) (EOMA) (deferring 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”). We find
EOMA well-reasoned and persuasive and substantially follow its
analysis, as did the district court.
14a
that is dredged from navigable water remains
“dredged material” after it has been processed. That
is, nothing in the CWA says that once a material has
been dredged, it remains a dredged material forever.
If, as the district court explained (citing EOMA, 445
P.3d 251, 257 (2019)), processing dredged material
can change its character, the text of the statute 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. The CWA therefore does not, in
plain terms, address the question presented here.
We next look to the regulations promulgated to
implement the Act. See Coeur Alaska, 557 U.S. at
277–78 (explaining that, if the text of the CWA 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 CWA means)). The
CWA regulations define “dredged material” as
“material that is excavated and dredged from waters
of the United States,” but offer no further explanation
of the term. See 33 C.F.R. § 323.2(c). Like the CWA,
the regulations do not specifically address the
question of which agency has the authority to permit
the discharge of dredged material that has been
processed, such as the leftover waste material that is
discharged during suction dredge mining.
Absent clear direction from either the CWA or the
regulations promulgated thereunder, we look to the
agencies’ interpretation and application of those
regulations. See Coeur Alaska, 557 U.S. at 277–78;
Kisor v. Wilkie, 139 S. Ct. 2400, 2415–18 (2019). The
EPA and Corps have long agreed that when materials
15a
are dredged from a waterbody and are subsequently
processed, they are no longer dredged materials and
have become industrial waste, rock, sand, or other
CWA pollutants regulated under Section 402.2 For
example, in their 1986 memorandum of agreement,
the EPA and the Corps agreed that “placer mining
wastes” were the type of “pollutant” discharged in
“liquid, semi-liquid, or suspended form” subject to
Section 402, not Section 404. Memorandum of
Agreement Concerning Regulation of Discharge of
Solid Waste Under the Clean Water Act, 51 Fed. Reg.
8871, 8872 (March 14, 1986). A 1990 Regulatory
Guidance Letter from the Corps states that once
“dredged material” is “subsequently processed to
remove desired elements, its nature has been
changed” and “it is no longer dredged material”
regulated under Section 404. U.S. Army Corps of
Engineers, Regulation of Waste Disposal from InStream Place Mining, Regulatory Guidance Letter 8810 (July 28, 1990), https://usace.contentdm.oclc.org/u
tils/getfile/collection/p16021coll9/id/1386; see also
U.S. Army Corps of Engineers, Regulatory Guidance
Letters, https://www.usace.army.mil/Missions/CivilWorks/Regulatory-Program-and-Permits/GuidanceLetters (noting that, “unless superseded by specific
provisions of subsequently issued regulations or
guidance, the content provided in [Regulatory
Guidance Letters] generally remains valid after the
expiration date”). The Corps explained: “The raw
materials associated with placer mining operations
are not being excavated simply to change their
locations as in a normal dredging operation, but
The district court included a more detailed account of the
regulatory history, which Poe does not contest on appeal.
2
16a
rather to obtain materials for processing, and the
residue of this processing should be considered waste.”
As the district court noted, “whatever patchwork of
permitting authority has existed over time, from at
least 2013 (via the general permitting process,
initiated in 2010 and after notice and comment), it is
the EPA that has required a Section 402 permit for
suction dredge mining.” “This fact, coupled with the
overall approach to and assignment and acceptance of
responsibilities under the EPA’s and the Corps’
interpretation of the applicable regulations to suction
dredge mining . . . , confirms that the agencies have
taken an official position and made a fair and
considered judgment, based on its substantive
expertise, that the operation of a suction dredge
results in the discharge of processed wastes, thus
requiring Section 402 permits.” We therefore defer to
the agencies’ reasonable interpretation of the CWA
and implementing regulations that the processed
material discharged from Poe’s suction dredge mining
is a pollutant, not a dredged or fill material, and
requires an NPDES permit under Section 402 of the
CWA. See Kisor, 139 S. Ct. 2400.
Poe’s arguments to the contrary are unavailing.
Principally, citing the dissent in EOMA, Poe argues
that (1) the text of Section 404 itself is enough to settle
the case: suction dredge mining does “dredge”
material, and, in a literal sense, that material is then
“discharged” into the water, and (2) the Corps’
regulation defining “dredged material” is not
genuinely ambiguous as to the question over whether
instream suction dredge mining is regulated under
Section 404 once ordinary interpretive methods have
been applied. However, as explained above, even if the
17a
material starts as dredged material, that fact does not
settle the issue of whether material that was dredged
remains “dredged material” after it has been
processed. Poe processed the materials dredged from
the riverbed when he ran them through the sluice on
his dredge, extracted heavy metals and other
materials, and discharged the remaining waste and
sediments into the South Fork.
In any event, the meaning of the CWA and
implementing regulations remains sufficiently
ambiguous that deference to the agencies’ official joint
conclusion is appropriate. See Coeur Alaska, 557 U.S.
at 277–78. As the Oregon Supreme Court noted,
“[b]oth the statutes and the regulations are genuinely
ambiguous on [this] question.” EOMA, 445 P.3d at
270. The concern here “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 th[e]se types of water quality
decisions.” Id. at 272.
CONCLUSION
For the foregoing reasons, the district court’s grant
of summary judgment to ICL is AFFIRMED.
18a
[cited in Idaho Conservation League v. Shannon Poe
No. 22-35978 archived on November 16, 2023]
INFORMATIONAL COPY ONLY
Regulatory Guidance Letter 88-10
SUBJECT: Regulation of Waste Disposal from
In-Stream Placer Mining
DATE: July 28, 1990
EXPIRES: December 31, 1990
Paragraph B.5. in the Army’s 23 Jan 86
Memorandum of Agreement (MDA) 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 and not under
Section 404.
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.
This guidance expires 31 Dec 90 unless sooner
revised or rescinded.
19a
[cited in Idaho Conservation League v. Shannon Poe
No. 22-35978 archived on November 16, 2023]
US Army Corps of Engineers Headquarters Website
Regulatory Guidance Letters
Regulatory Guidance Letters (RGLs) were
developed by the Corps as a system to organize and
track written guidance issued to its field agencies.
RGL’s are normally issued as a result of evolving
policy; judicial decisions and changes to the Corps
regulations or another agency’s regulations which
affect the permit program. RGL’s are used only to
interpret or clarify Regulatory Program policy, but do
not provide mandatory guidance to the Corps district
offices. RGL’s are sequentially numbered and expire
on a specific date. However, unless superseded by
specific provisions of subsequently issued regulations
or guidance, the content provided in RGL’s generally
remains valid after the expiration date. The Corps
incorporates most of the guidance provided by RGL’s
whenever it revises its permit regulations.
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20a
[cited in Idaho Conservation League v. Shannon Poe
No. 22-35978 archived on November 16, 2023]
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21a
Filed September 28, 2022
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
IDAHO
CONSERVATION
LEAGUE,
Plaintiff,
vs.
SHANNON POE,
Defendant.
Case No.: 1:18-cv-353-REP
MEMORANDUM
DECISION AND
ORDER RE:
PLAINTIFF IDAHO
CONSERVATION
LEAGUE’S MOTION
FOR REMEDIES
(Dkt. 59)
Pending before the Court is Plaintiff Idaho
Conservation League’s Motion for Remedies (Dkt. 59).
Having carefully reviewed the record and the parties’
briefs, the Court finds that the facts and legal
arguments are adequately presented. Accordingly, in
the interest of avoiding further delay, and because the
Court finds that the decisional process would not be
significantly aided by oral argument, the Court will
decide the Motion without oral argument. Dist. Idaho
Loc. Civ. R. 7.1(d)(1)(B).1 For the reasons that follow,
the Motion is granted insofar as the Court will issue
injunctive relief and assess civil penalties against
Defendant Shannon Poe in the amount of $150,000.
1 Through correspondence with the Court, the parties confirmed
that their briefing did not request oral argument and neither
party was otherwise requesting one.
22a
I. RELEVANT BACKGROUND
The circumstances giving rise to this citizen-suit
enforcement action are largely undisputed:2 Mr. Poe
suction dredge mined 42 days on the SFCR during the
2014, 2015, and 2018 dredge seasons (running from
July 15 to August 15 each year) without ever
obtaining an NPDES permit under Section 402 of the
CWA.
Through this action, ICL argued that Mr. Poe
violated the CWA each of the 42 times he operated a
suction dredge on the SFCR without an NPDES
permit. Mr. Poe countered that (i) his suction dredge
mining did not actually add pollutants to the SFCR
and therefore did not require an NPDES permit (or
any other CWA permit) in the first place; and even if
his suction dredge mining did add pollutants,
(ii) those pollutants are “dredged” or “fill” material
regulated exclusively under Section 404 (not Section
402) of the CWA and therefore did not require an
NPDES permit, and (iii) any discharges of dredged or
In denying Defendant Shannon Poe’s Motion to Dismiss on
September 30, 2019, the Court generally discussed the
characteristics of the South Fork Clearwater River (“SFCR”);
recreational suction dredge mining and National Pollutant
Discharge Elimination System (“NPDES”) permit requirements
under the Clean Water Act (“CWA”); Idaho’s permitting
requirements for suction dredge mining; Mr. Poe’s suction dredge
mining activities on the SFCR without an NPDES permit in
2014, 2015, and 2018; and Plaintiff Idaho Conservation League’s
(“ICL”) correspondence to Mr. Poe in 2016, 2017, and 2018,
advising him of its intention to initiate a CWA citizen suit
against him if he continued to suction dredge mine in Idaho
without an NPDES permit. Idaho Conservation League v. Poe,
421 F. Supp. 3d 983, 986–90 (D. Idaho 2019). This backdrop,
while important for perspective, will not be repeated in depth
here.
2
23a
fill material from his suction dredge mining are only
“incidental fallback,” making them exempt under
Section 404 of the CWA anyway. The parties agreed
to bifurcate the case into two separate phases: a
liability phase decided on the parties’ cross-motions
for summary judgment, followed by a remedial phase
as necessary.
On June 4, 2021, the Court granted summary
judgment in ICL’s favor. Idaho Conservation League
v. Poe, 2021 WL 2316158 (D. Idaho 2021). At that
time, U.S. Magistrate Judge Ronald E. Bush
concluded that (i) Mr. Poe’s suction dredge mining
added pollutants to the SFCR, thus requiring an
NPDES permit under Section 402 of the CWA; and
(ii) the processed material discharged from Mr. Poe’s
at-issue suction dredge mining is a pollutant, not
dredged or fill material, and required an NPDES
permit under Section 402 of the CWA. Id. at *2–12.3
With the liability phase now complete, the action
shifts to the remedial phase, framed by ICL’s pending
Motion for Remedies. ICL requests that, owing to
Mr. Poe’s CWA violations, the Court order (i) an
injunction barring Mr. Poe from suction dredge
mining in Idaho unless he obtains and complies with
an NPDES permit under the CWA, and (ii) civil
penalties against Mr. Poe of at least $564,924. Mem.
ISO Mot. for Remedies at 3, 7–22 (Dkt. 59-1). Mr. Poe
responds that an injunction is unnecessary and moot
because there are no longer any illegal discharges to
enjoin and that, regardless, a $60,924 civil penalty is
The undersigned inherited this case from Judge Bush on
June 11, 2021. Before then, Judge Bush presided over the action
and issued rulings on multiple aspects of the case, including the
liability phase.
3
24a
more in line with the environmental impacts of such
dredge mining and will sufficiently deter him from
ever suction dredge mining on the SFCR without an
NPDES permit again. Resp. to Mot. for Remedies at 5,
9–24 (Dkt. 63). These arguments are taken up below.
II. DISCUSSION
A. Legal Standards
The CWA authorizes courts “to order that relief it
considers necessary to secure prompt compliance with
the Act,” including an “order of immediate cessation.”
Weinberger v. Romero-Barcelo, 456 U.S. 305, 320
(1982); see also 33 U.S.C. §§ 1319(b),(d) & 1365(a).
Discretion is vested in the court to either grant or deny
a request for injunctive relief depending upon its view
of the range of public interests at issue. Weinberger,
456 U.S. at 320. If a court chooses to grant an
injunction, however, it must meet the requirements of
Federal Rule of Civil Procedure 65(d), which requires
that every injunction (i) state the reasons why it was
issued, (ii) state its terms specifically, and
(iii) describe in reasonable detail—without reference
to the complaint or other document—the act or acts
restrained or required. Fed. R. Civ. P. 65(d); see also
Reno Air Racing Ass’n. Inc. v. McCord, 452 F.3d 1126,
1132 (9th Cir. 2006).
The CWA additionally permits courts “to apply any
appropriate civil penalties.” 33 U.S.C. § 1365(a). Civil
penalties are mandated for CWA violations. 33 U.S.C.
§ 1319(d) (any person who violates the CWA “shall be
subject to a civil penalty not to exceed $25,000 per day
for each violation.”) (emphasis added); see also
Natural Res. Def. Council. v. Sw. Marine, Inc., 236
F.3d 985, 1001 (9th Cir. 2000) (holding that penalties
25a
are mandatory if violation of CWA is found). The
maximum daily penalty has increased periodically to
account for inflation. Relevant here, for violations that
occurred between December 6, 2013 and November 2,
2015, the maximum penalty is $37,500 per violation;
for violations that occurred after November 2, 2015
(where penalties are assessed after January 12, 2022),
the maximum penalty is $59,973. 40 C.F.R. § 19.4 at
Tables 1 & 2. Unlike damages in other civil cases,
these penalties do not inure to the citizen plaintiffs,
but are payable to the United States Treasury. See
Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 173 (2000).
As between injunctive relief and civil penalties,
“the district court has discretion to determine which
form of relief is best suited, in the particular case, to
abate current violations and deter future ones.” Id. at
192.
B. Injunctive Relief Is Appropriate to Ensure
Compliance With the CWA
ICL requests a permanent injunction barring
Mr. Poe from suction dredge mining in Idaho unless
he obtains and complies with an NPDES permit under
Section 402 of the CWA. Mem. ISO Mot. for Remedies
at 7 (Dkt. 59-1).
The standard for a permanent injunction is
essentially the same as for a preliminary injunction
with the exception that the plaintiff need not show a
likelihood of success on the merits because actual
success has already been achieved. Amoco Prod. Co. v.
Gambell, 480 U.S. 531, 546 n.12 (1987). Therefore, to
demonstrate that a permanent injunction should
issue, the plaintiff must establish the following:
26a
“(i) that it has suffered an irreparable injury; (ii) that
remedies available at law, such as monetary damages,
are inadequate to compensate for that injury;
(iii) that, considering the balance of hardships
between the plaintiff and defendant, a remedy in
equity is warranted; and (iv) that the public interest
would not be disserved by a permanent injunction.”
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
156-57 (2010).
This traditional balancing of harms applies in the
environmental context. The Lands Council v. McNair,
537 F.3d 981, 1005 (9th Cir. 2008) (“Our law does not
. . . allow us to abandon a balance of harms analysis
just because a potential environmental injury is at
issue.”). However, injunctive relief “is not
mechanically obligated . . . for every violation of law.”
Weinberger, 456 U.S. at 313. Courts have broad
latitude when determining the scope of an injunction
and must balance the equities between the parties
and give due regard to the public interest. Geertson
Seed Farms v. Johanns, 570 F.3d 1130, 1136 (9th Cir.
2009). If proper, any injunctive relief should be framed
“no broader than required by the precise facts.”
Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208, 222 (1974); see also Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009)
(“‘Injunctive relief . . . must be tailored to remedy the
specific harm alleged.’ ‘An overbroad injunction is an
abuse of discretion.’”) (quoting Lamb-Weston v.
McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir.
1991)).
ICL argues that the elements comprising a
permanent injunction are met and thereby justify the
requested injunctive relief. Mem. ISO Mot. for
27a
Remedies at 3, 8–12 (Dkt. 59-1). Mr. Poe disagrees—
not because any of the elemental prerequisites for a
permanent injunction do not exist per se, but because
a permanent injunction is unnecessary and moot since
he is no longer suction dredge mining in Idaho and
civil penalties are available to deter future CWA
violations. Resp. to Mot. for Remedies at 13–16 (Dkt.
63). Though sensible on their face, Mr. Poe’s
arguments are ultimately unpersuasive here. An
injunction is warranted.
1. An Injunction Prevents Irreparable Injury
“Environmental injury, by its nature . . . is often
permanent or at least of long duration, i.e.,
irreparable. If such injury is sufficiently likely,
therefore, the balance of harms will usually favor the
issuance of an injunction to protect the environment.”
Amoco Prod., 480 U.S. at 545 (emphasis added).
During the earlier liability phase, the Court concluded
as a matter of law that Mr. Poe’s suction dredge
mining added pollutants to the SFCR, stating in
relevant part:
A Section 402/NPDES permit is required if
a person (i) discharged, i.e., added (ii) a
pollutant (iii) to navigable waters (iv) from
(v) a point source. There is no dispute that
rock and sand passing through a suction
dredge is a pollutant; that the [SFCR] is a
navigable water; and that a suction dredge
is a point source. In turn, this reveals a
lynchpin issue of the case: whether
Mr. Poe’s suction dredge mining involves
the “discharge” or “addition” of a pollutant
to the [SFCR]. ICL says it does. Mr. Poe says
it does not.
28a
....
Suction dredge mining does not simply
transfer water . . . ; to the contrary, it
excavates rock, gravel, sand, and sediment
from the riverbed and then adds those
materials back to the river—this time, in
suspended form. If Mr. Poe’s suction dredge
just sucked up river water from—and back
into—the [SFCR] (along with any pollutants
already in the water), he would be
transferring water and not adding any
pollutants . . . . but that is neither suction
dredge mining nor what Mr. Poe did on the
[SFCR] during the 2014, 2015, and 2018
dredging seasons.
In sum, the very nature of Mr. Poe’s suction
dredge mining added pollutants to the
[SFCR] [and] require[s] an NPDES permit
under Section 402 of the CWA.
Poe, 2021 WL 2316158, at *3, 6–7 (emphasis in
original, internal quotation marks and citations
omitted). But ICL cannot obtain injunctive relief
merely because the Court has made a finding of
liability under the CWA; it still must connect the legal
dots between Mr. Poe’s suction dredge mining and
corresponding irreparable injury.
ICL does this by juxtaposing the SFCR’s pristine
ecosystem with suction dredge mining activity
generally. It points out how, on the one hand, the
SFCR is a “State Protected River”; is eligible as a
federal wild and scenic river; and is a vital fishery,
inhabited by many native fish species, including those
listed as “threatened” under the Endangered Species
29a
Act (“ESA”) (steelhead trout, fall Chinook salmon, and
bull trout). Mem. ISO Mot. for Remedies at 5–6, 9
(Dkt. 59-1) (citing Ex. 7 to Poe MTD at 45 (Dkt. 17-3);4
Ex. 8 to Poe MTD at 3–83 (Dkt. 17-4); Ex. V to 2nd
Hurlbutt Decl. at 1 (Dkt. 38-13)). Yet, on the other
hand, it emphasizes how the SFCR is still listed as an
“impaired” water body because it fails to meet CWA
standards for sediment and temperature pollution;
how the rock, sand, sediment, and silt discharged from
suction dredge mining degrades water quality and
impedes river habitat restoration; and how the
sediment and fine silt discharged by a suction dredge
reduces oxygen levels, aquatic cover, forage, and
invertebrate production, which impact the survival of
fish eggs and alevins, the growth in older and juvenile
fish, and ultimately fish migrations and spawning
seasons. Mem. ISO Mot. for Remedies at 6, 9 (Dkt. 591) (citing ICL SOF at ¶¶ 3, 10 (Dkt. 38-1); Ex. U to 2nd
Hurlbutt Decl. at 1–2 (Dkt. 38-12)).
More specific to Mr. Poe’s suction dredge mining on
the SFCR, ICL highlights the opinions of its expert,
Dan Kenney.5 Mr. Kenney discusses basic stream
Though listed as a “State Protected River,” the SFCR has
exemptions for recreational suction dredge mining. Ex. 7 to Poe
MTD at 45 (Dkt. 17-3). Even so, this acknowledgment exists
within the “Fact Sheet” to an EPA proposal to reissue an NPDES
General Permit to small suction dredgers operating in Idaho. Id.
at 1.
4
5 Mr. Kenney is a former Forest Service fisheries biologist with
extensive experience monitoring and assessing suction dredge
mining and its impacts in the Clearwater River watershed,
including the SFCR. Kenney Rpt., attached as Ex. G to 4th
Hurlbutt Decl. at 1–3 (Dkt. 59-9). In addition to scientific papers
and state and federal agency studies and reports on suction
30a
morphology and biology, suction dredge mining in
relation to the SFCR stream morphology in particular,
and Mr. Poe’s site-specific suction dredge mining in
2014, 2015, and 2018, before summarizing the
physical and biological effects of those same dredging
activities on the SFCR. Kenney Rpt. attached as Ex.
G to 4th Hurlbutt Decl. at 3–24 (Dkt. 59-9). On that
last point, Mr. Kenney notes the following:
• There is ample evidence that Mr. Poe’s 2014,
2015, and 2018 activities on the SFCR affected
algae, invertebrates, and fish. As described
above, a total of up to about 3,400 square feet of
surface substrate, predominately algae-covered
rocks (gravel and larger), was removed from the
SFCR during the 3 dredging seasons and some
were either overturned or dropped into the
dredge holes, while a separate but at least
equal-sized area of the SFCR surface substrate
was covered with tailings piles or fine sediment
by Mr. Poe’s activities.
• Given that the SFCR is already considered
“impaired” due to too much fine sediment, some
of the dredged and otherwise modified areas
likely had too-thick of a layer of fine sediment
pre-dredging to allow algae to grow, and so the
total amount of attached algae harmed by
Mr. Poe may be somewhat less than 3,400
square feet. Attached algae is a food source for
many aquatic invertebrates, so, at least locally
dredge mining and its impacts, Mr. Kenney’s opinions are based
on photos, videos, and reports of Mr. Poe’s suction dredge mining
on the SFCR in 2014, 2015, and 2018. Mr. Poe challenges aspects
of Mr. Kenney’s opinions but not his qualifications.
31a
and temporarily, the primary production of the
SFCR was reduced.
• The same surface substrate modified by 2014,
2015, and 2018 dredging by Mr. Poe was
habitat for aquatic invertebrates, as was at
least a portion of the hyporheic zone, and so the
manipulation of the substrate in the dredging
process caused an unknown number of
individuals to be loosed into the water column,
and another unknown number of individuals to
be covered by or have their interstitial habitat
infiltrated by sand and smaller fines. . . . [I]t
seems likely that hundreds of thousands of
aquatic insects were displaced, harmed, or
killed by Mr. Poe’s dredging activities.
• The fine sediment brought to the substrate
surface or suspended in the water column by
Mr. Poe’s dredges would have been mostly
scoured away from the substrate surface in
direct vicinity of the dredging sites within a few
months—these fines did not disappear from the
river,
however,
but
did
contribute
incrementally to degraded aquatic habitat
locally for miles downstream on the SFCR and
eventually to the mainstem Clearwater River.
• I cannot say with certainty that Mr. Poe’s
activities would have directly injure or killed
any individuals of special status species,
however, stream margins are often important
habitat for juvenile steelhead and other
salmonids and my October 7, 2015 notes for the
upper unauthorized dredging site state that the
“(b)ank undercut by dredger for length of hole.”
The downstream Poe dredge hole at the 2018 #1
32a
site was at the stream edge, as were Sites #2
and #3 that year. The Poe primary dredging
area in 2014 was in mid-channel, however, and
I don’t know where Mr. Poe dredged at the
downstream (Moose Creek) site.
• I think it likely that direct and indirect adverse
effects to aquatic insect growth, survival, and
abundance (even if incremental, localized, or
temporary) were caused by Mr. Poe’s suction
dredging in each year he dredged on the SFCR.
In regard to 2018 SFCR suction dredging, a
report commissioned by IDWR [(Idaho
Department of Water Resources)] concluded
that “(a)ll disturbed areas will experience a
reduction in invertebrate production from fine
sediment, leading to a reduction in foraging
opportunities for anadromous and resident fish
species.”
• While some small fish are apparently not
repelled by suction dredging operations, it is
possible that some SFCR fish were physically
or behaviorally excluded from rearing, holding,
and migratory habitat by the Poe operations.
. . . . [W]hile noise, activity, and turbidity
definitely can modify adult fish behavior, the
degree to which the Poe operations did so is
unknown, but likely minor compared with
effects on habitat.
• When Mr. Poe and his assistants suctioned
substrate at depth, they were also bringing
gravel and finer rock particles to the surface to
cover the existing substrate surface in the
SFCR channel. These particles, as noted above
regarding aquatic invertebrates, infiltrated
33a
interstitial spaces in some portions of the
dredging reach. Juvenile and subadult
salmonids, including bull trout, often seek out
interstitial habitat (especially that among
cobbles and boulders) during diel feeding
periods (or winter in general). The
rearrangement and addition of fine sediment to
the stream channel during Mr. Poe’s suction
dredging activities is likely to have reduced the
local quantity or quality of such habitat, even
considering that some of these fines would have
been scoured from the dredging sites by
subsequent high flow events and deposited
downstream. The effects of the addition of
previously-unmobilized fine sediment from the
Poe dredging likely incrementally reduced
interstitial hiding cover for fish in the SFCR
channel for miles downstream.
• Based on my experience in delineating NPCNF
[(Nez Perce-Clearwater National Forest)]approved dredging reaches, the areas that
Mr. Poe dredged and covered with tailings and
fines in each relevant year do not appear to be
spawning habitat for any special status fish
species, and so there was a low likelihood that
his activities directly affected salmonid redds,
eggs, or pre-emergent fry. On the other hand,
there are areas with suitable spawning habitat
for steelhead (and to a lesser extent, spring and
fall Chinook salmon) within a few hundred feet
downstream of at least the Sasquatch 2 sites for
each year, and I think that is reasonable to
assume that this habitat was incrementally
degraded by the excavation of previously
immobile fine sediment.
34a
• Excavation and dispersion of previouslysequestered fines by dredging operations can
contribute to the pollution in the SFCR that the
EPA is attempting to control through the
TMDL [(Total Maximum Daily Load)] and the
NPDES permitting process which Mr. Poe has
defied and encouraged others to defy.
• The effects of suction dredging on water
quality, stream channel conditions, and stream
biota are real and some of these effects are
similar to the effects of natural phenomena
such as flooding and erosion.
• Even if the adverse effects of Mr. Poe’s dredging
were entirely erased each year by high
streamflows (and many are not), these effect
would still be manifest for days, weeks, or
months. These periods constitute a substantial
part of a lifetime to many or most aquatic
organisms. Similarly, and particularly in 2015
and 2018, even if the adverse effects of each of
Mr. Poe’s dredging operations are considered as
insignificant in isolation (and many are not),
Mr. Poe set up his operations nearby other
dredgers in a relatively short river reach, such
that the cumulative effects of these activities
were most likely to be exacerbated.
• The goal of a suction dredge miner is to find
gold through the dismantling of a portion of the
physical structure of a stream. Because most
placer gold will find its way to or near the
bedrock surface, typically at least several feet
below the substrate surface, this dismantling is
essentially an overturning and redistribution of
the existing structure of the stream at the
35a
dredging site. Because flowing water, both
concurrently with and subsequent to dredging,
transmits these physical effects downstream,
the effects of the dredging are not confined to
the immediate dredge mining area.
• Mr. Poe’s dredging operations on the SFCR in
2014, 2015, and 2018 had demonstrable
immediate and enduring effects on SFCR water
quality and stream channel morphology. Based
on my training, experience, and my review of
the scientific literature, I believe that these
physical effects were harmful to individual
aquatic organisms in the SFCR. The degree and
duration of Mr. Poe’s dredging operations’ harm
to populations of these organisms or the SFCR
biological community cannot be known with
certainty but I believe that incremental and
cumulate adverse effects should be considered
plausible and likely.
Id. at 24–29, 30–31 (internal citations omitted).
Mr. Poe takes issue with certain of Mr. Kenney’s
opinions, offering up an expert of his own: Andréa
Rabe.6 Ms. Rabe contends that, while suction dredge
Ms. Rabe has a bachelors in genetics and anthropology, a
masters in botany, and is a certified professional wetlands
scientist. Rabe Rpt., attached as Ex. 1 to Resp. to Mot. for
Remedies at 15 (Dkt. 63-2). Ms. Rabe has over 23 years’
experience conducting water quality monitoring, stream surveys,
habitat assessments, and wetlands delineations; preparing
water quality monitoring plans; and preparing and
implementing restoration plans. Id. Ms. Rabe reviewed
Mr. Kenney’s report and the documents he relied on, as well as
additional photos and videos of Mr. Poe’s dredging operations,
state and federal permit requirements, and the Forest Service
6
36a
mining may impact water quality, stream channel
conditions, and stream biota due to the movement and
release of fine sediments, small-scale suction dredge
mining (like Mr. Poe’s) does not (or at least can be
conducted in a manner to reduce and eliminate such
impacts). Rabe Rpt., attached as Ex. 1 to Resp. to Mot.
for Remedies at 3, 11–12 (Dkt. 63-2). She more
directly opines that Mr. Poe’s suction dredge mining
on the dates in question mostly7 followed permitting
authorities’
operating
procedures
and
how
Mr. Kenney’s claims do not unequivocally establish
injury to the SFCR. Id. at 3–11, 15. Importantly, she
does not ultimately disagree that there are likely
impacts from Mr. Poe’s dredging operations, just that
any such impacts are not occurring to the extent
expressed by Mr. Kenney given Mr. Poe’s adherence
to these operating procedures—even without having
ever obtained an NPDES permit. Id. at 12, 15 (“This
reduction and elimination of impacts will occur
whether the operating procedures are implemented as
permit conditions or as best management practices by
a suction dredge operator. . . . Mr. Poe employed most
of these best management practices in his operations
during the dredging seasons in 2014, 2015, and 2018,
thereby reducing the impacts from his small-scale
and Bureau of Land Management’s Decision Record for SmallScale Dredging in Orogrande and French Creeks and South Fork
Clearwater River.
7 Suction dredge operations should not discharge within 800 feet
of another suction dredge operation discharge that is occurring
at the same time. Rabe Rpt., attached as Ex. 1 to Resp. to Mot.
for Remedies at 5 (Dkt. 63-2). Ms. Rabe acknowledges that
Mr. Poe was not always at least 800 feet from the next dredge
operation, but he did add spacing to maintain lower levels of
turbidity. Id.
37a
suction dredging operation on water quality, stream
channel conditions, and stream biota.”) (emphasis
added).8
From this, it is clear that suction dredge mining
(even small-scale, recreational suction dredge mining)
disturbs a riverbed’s substrate and discharges
sediment into the water column, causing aesthetic
and environmental harm. This is especially the case
in a sensitive environment like the SFCR—a critical
habitat for ESA-listed species and an alreadyimpaired river due to the failure to meet state water
quality standards for sediment and temperature.
Fortunately, steps can be taken to mitigate these
harms, including a permitting process that outlines a
specific suction dredge mining season and strict
operational protocols.
Here, however, Mr. Poe never secured an NPDES
permit before suction dredge mining 42 days on the
SFCR. These repeated failures constitute CWA
violations because his dredging activities added
pollutants to the waterway and caused environmental
harm. Environmental harm in this sense amounts to
irreparable injury. Amoco, 480 U.S. at 545
(environmental injury, “by its nature,” is irreparable).
That Mr. Poe may have obtained other permits with
overlapping protections does not upend this
conclusion. Otherwise, there would be no purpose to
the CWA’s application in this setting. The CWA
regime exists alongside state permitting requirements
8 To be clear, Mr. Poe does not offer Ms. Rabe’s opinions to contest
ICL’s argument that his suction dredge mining on the SFCR
caused irreparable injury. Rather, these opinions support his
argument that any harm was de minimis and that any civil
penalties should reflect that reality. See infra.
38a
and applies across all users as a whole, not just
Mr. Poe. A contrary position is not supported in the
law and the Court will not stake that ground now.
This is particularly the case given CWA’s
straightforward objective: “to restore and maintain
the integrity of the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. § 1251(a);
see also Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597,
602 (2013) (“A central provision of the [CWA] is its
requirement that individuals, corporations, and
governments secure [NPDES] permits before
discharging pollution from any point source into the
navigable waters of the United States.”).
With irreparable injury established, case law hints
that the remaining factors favor injunctive relief to
protect the environment. Amoco, 480 U.S. at 545 (“If
such [irreparable] injury is sufficiently likely,
therefore, the balance of harms will usually favor the
issuance of an injunction to protect the environment.”)
(emphasis added); but see Earth Island Inst. v.
Carlton, 626 F.3d 462, 474 (9th Cir. 2010) (declining
“to adopt a rule that any potential environmental
injury automatically merits an injunction.”)
(emphasis in original, internal quotation marks and
citation omitted). The Court briefly addresses these
factors below for completeness’ sake.
2. Legal Remedies Are Inadequate
The Supreme Court has recognized that, in most
instances, environmental harms are not readily
compensable by money damages. Amoco, 480 U.S. at
545 (“Environmental injury, by its nature, can seldom
be adequately remedied by money damages and is
often permanent or at least of long duration, i.e.
irreparable.”) (emphasis added). Moreover, money
39a
damages are not even available to ICL. The only relief
available in a CWA citizen-suit enforcement action is
the enforcement of standards, limitations, and orders,
or the application of civil penalties paid to the United
States Treasury. 33 U.S.C. § 1365(a). As a result, legal
remedies are plainly inadequate.
3. The Balance of Hardships Favors an
Injunction
Even where environmental injury is established,
courts must still engage in the traditional balancing
of harms test before entering an injunction. This
includes a consideration of all of the competing
interests at stake including potential economic harm.
Carlton, 626 F.3d at 475. Here, there is no
counterweight to the irreparable injury caused by
Mr. Poe’s permitless suction dredge mining on the
SFCR. That is, any burden in complying with the
CWA by securing the legallynecessary NPDES
permit—what the requested injunctive relief
requires—is not a hardship, let alone one that would
eclipse the above-stated environmental harms. See
Idaho Conservation League v. Atlanta Gold Corp., 879
F. Supp. 2d 1148, 1161 (D. Idaho 2012) (“Harm to
environment outweighs a defendant’s financial
interests, particularly where violations are of a
longstanding and continual nature.”).
4. An Injunction Is in the Public Interest
Courts have recognized that ensuring protection of
the environment serves an important public interest.
McNair, 537 F.3d at 1005 (“[P]reserving environmental resources is certainly in the public’s interest.”);
Earth Island Inst., 442 F.3d at 1177 (“The
preservation of our environment . . . is clearly in the
40a
public interest.”). Recognizing the public interest in
protecting the environment, it is likewise very much
in the public interest to expect compliance with the
CWA. See U.S. v. Akers, 785 F.2d 814, 823 (9th Cir.
1986) (“[C]ourts have noted that the public interest
requires strict enforcement of the [CWA] to effectuate
its purpose of protecting sensitive aquatic environments.”); Atlanta Gold Corp., 879 F. Supp. 2d at 1162
(“Water is the West’s most precious resource. Keeping
Idaho’s waters sufficiently clear of toxic elements so
that they can support all the beneficial uses for which
the State has designated them is a critical public
interest . . . .”). Mr. Poe does not argue otherwise.
5. Other Factors Do Not Undermine the Need for
an Injunction
Beyond the customary factors that inform the
propriety of an injunction, Mr. Poe’s arguments
against one take a more practical, big-picture
approach. He claims that an injunction is simply
(i) unnecessary to secure his compliance with the
CWA because he is not currently suction dredge
mining in Idaho (and has not done so since 2018) and
(ii) moot given the availability of civil penalties. Resp.
to Mot. for Remedies at 13–16 (Dkt. 63). These
arguments are without merit.
First, it is misleading to suggest that Mr. Poe
complied with the CWA once ICL brought this action.
See id. at 14 (Mr. Poe stating: “[I]f a defendant comes
into compliance with the CWA after a complaint is
filed, then the principles of mootness prevent
maintenance of a suit for injunctive relief . . . .”). It
may be true that he has not technically violated the
CWA since then, but that is only because he has not
suction dredge mined in Idaho and therefore never
41a
needed to pull an NPDES permit. This is not because
he has proactively secured an NPDES permit before
again suction dredge mining in the state. The
distinction is important when understanding that the
mere cessation of a challenged practice in response to
pending litigation “does not moot a case unless the
party alleging mootness can show that the ‘allegedly
wrongful behavior could not reasonably be expected to
recur.’” Nat. Res. Def. Council v. Cnty. of Los Angeles,
840 F.3d 1098, 1104 (9th Cir. 2016) (quoting Laidlaw,
528 U.S. at 189) (emphasis added); see also Idaho
Rural Council v. Bosma, 143 F. Supp. 2d 1169, 1177
(D. Idaho 2001) (recognizing “a presumption of future
injury” when a defendant has voluntarily ceased
illegal activity in response to litigation, even if the
cessation occurs before a complaint is filed.”). Without
the exception, “‘courts would be compelled to leave
[t]he defendant . . . free to return to his old ways.’”
Porter v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007)
(quoting U.S. v. Concentrated Phosphate Exp. Ass’n,
393 U.S. 199, 203 (1968)).
The standard for determining whether a case has
been mooted by a defendant’s voluntary conduct is
“stringent.” Laidlaw, 528 U.S. at 189; Concentrated
Phosphate, 393 U.S. at 203 (“A case might become
moot if subsequent events made it absolutely clear
that the allegedly wrongful behavior could not
reasonably be expected to recur.”) (emphasis added).
“The ‘heavy burden of persua[ding]’ the court that the
challenged conduct cannot reasonably be expected to
start up again lies with the party asserting mootness.”
Laidlaw, 528 U.S. at 189 (quoting Concentrated
Phosphate, 393 U.S. at 203). This burden “protects
plaintiffs from defendants who seek to evade sanction
by predictable protestations of repentance and
42a
reform.” Gwaltney of Smithfield v. Chesapeake Bay
Found., 484 U.S. 49, 67 (1987).
The Court previously touched on this issue in
relation to Mr. Poe’s efforts to dismiss the action at its
outset. At that time, Mr. Poe argued that the Court
did not have subject matter jurisdiction because ICL
failed to meet the CWA’s notice requirements.
Specifically, Mr. Poe argued that ICL’s 2016 notice
letter advising him that it intended to initiate a
citizen-suit enforcement action relied on wholly past
violations, not prospective ones. Poe, 421 F. Supp. 3d
at 991. The Court disagreed, stating:
Mr. Poe properly acknowledges that [ICL]
must have a good faith allegation of
continuing or intermittent violations for a
court to have jurisdiction over a suit. . . .
Here, ICL made good faith allegations of
continuing/ intermittent CWA violations
based not only on Mr. Poe’s history of
suction dredging on the [SFCR], but also his
public statements about his past dredging,
about his ongoing dredging, and about his
plans for dredging in future years (including
statements about defying the EPA and the
CWA). Indeed, it could reasonably be said
that Mr. Poe was intentionally advertising
to the world not just the fact of his prior
suction dredging activities but also the fact
of his intended future suction dredging
activities. That Mr. Poe ultimately resumed
suction dredging activities on the [SFCR] in
2018
without
any
NPDES
permit
substantiates
ICL’s
concerns
about
43a
Mr. Poe’s “continuing”
violations back in 2016.
and
“ongoing”
Id. at 993 (citing Sierra Club v. Union Oil Co. of Cal.,
853 F.2d 667, 671 (9th Cir. 1988) (agreeing that risk
of ongoing violations must be “completely eradicated”
for citizen suit to be precluded, holding: “Intermittent
or sporadic violations do not cease to be ongoing until
the date when there is no real likelihood of
repetition.”)).
A similar rationale applies now. Yes, Mr. Poe
properly stresses how he has not suction dredge mined
in Idaho since 2018. And while that fact may suggest
he does not intend to pick back up where he left off, it
does not satisfy his burden to establish compliance
with the CWA in the future. To be sure, in the past,
Mr. Poe has simply indicated that he “do[es] not
intend to dredge in future years without the
appropriate permits.” Ex. C to Oppenheimer Decl.
(Dkt. 20-19) (emphasis added). It is unclear what this
commitment means or ever meant. Critically, Mr. Poe
suction dredge mined on the SFCR in 2018 without an
NPDES permit precisely because he does not believe
an NPDES permit is required to do so. Cf. Resp. to
Mot. for Remedies at 15 (Dkt. 63) (Mr. Poe
acknowledging that “he never stated that he would
not mine without first obtaining an NPDES permit.”).
Alas, that is what this entire case has been about.
At bottom, Mr. Poe must show that there is “no
reasonable expectation that the wrong will be
repeated” and that it is “absolutely clear that the
allegedly wrongful behavior would not reasonably be
expected to recur.” Gwaltney, 484 U.S. at 66. Despite
no known CWA violations since 2018, Mr. Poe has not
met that high burden here. See Atlanta Gold, 879 F.
44a
Supp. 2d at 1162 (fact that violations were “of a
continual, and long-standing nature” and that
defendant “passed up opportunities to fix the problem,
strongly suggests that the added impetus of an
injunction is necessary.”). An injunction is neither
unnecessary nor moot.
Second, civil penalties—even considerable ones—
do not preclude injunctive relief. These remedies are
not mutually exclusive. In fact, the CWA authorizes
courts to impose one, the other, or even both. Supra;
see also Idaho Conservation League v. Magar, 2015
WL 632367, at *9 (D. Idaho 2015) (“[T]he Court finds
both a substantial civil penalty and an injunction are
necessary to remedy Magar’s violations of the CWA.”);
Atlanta Gold, 879 F. Supp. 2d at 1171 (“To
summarize, the longstanding and serious nature of
the violations in this case require injunctive relief. A
substantial civil penalty is also necessary in order to
have a deterrent effect on future pollution . . . .”);
Bosma, 143 F. Supp. 2d at 1177 (“[A]n injunction
against the Bosmas and their dairy operation will
redress, at least in part, the injury of which the IRC
complains. Additionally, the civil penalties sought by
IRC will likely deter the Bosmas and other NPDES
permit violators from polluting the affected waters in
the future.”). Simply put, whether civil penalties are
imposed here (or the amount of such penalties) is
immaterial;
the
factors
discussed
herein
independently support injunctive relief.
6. The Injunction is Limited to the SFCR
As an extraordinary remedy, an injunction’s scope
must be narrowly and specifically tailored to fit the
dispute that gives rise to its issuance, and not more.
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th
45a
Cir. 2009) (“‘Injunctive relief . . . must be tailored to
remedy the specific harm alleged.’ ‘An overbroad
injunction is an abuse of discretion.’”) (quoting LambWeston v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th
Cir. 1991)).
ICL seeks to enjoin Mr. Poe from suction dredge
mining throughout Idaho unless he obtains and
complies with an NPDES permit under the CWA.
Mem. ISO Mot. for Remedies at 3, 5, (Dkt. 59-1). But
this action is tied only to Mr. Poe’s suction dredge
mining on the SFCR. There is no evidence in the
record concerning what Mr. Poe did (or did not do)
elsewhere in the state and ICL makes no claims
relating to any such conduct. So, a state-wide
injunction is not justified.
Mr. Poe counters that no injunction is warranted
at all. He complains that one would amount to a
disfavored “obey the law” injunction and is
“excessively intrusive” because it would require the
Court’s continual supervision. Resp. to Mot. for
Remedies at 13–14 (Dkt. 63). Not so. The injunction is
not vague but rather sufficiently specific. It requires
Mr. Poe to secure and comply with an NPDES permit
before suction dredge mining on the SFCR in the
future. These simple and straightforward terms are
enough. Further, no judicial oversight is warranted
here. Once this action is closed, ICL can move to reopen the case and pursue contempt proceedings as
necessary. See, e.g., Idaho Conservation League v.
Atlanta Gold Corp., 2017 WL 4099815 at *1 (D. Idaho
2017) (“This decision resolves a Motion for Civil
Contempt . . . . This is a re-opened Clean Water Act
case, first filed in 2011.”).
46a
Consequently, an injunction will be issued barring
Mr. Poe from suction dredge mining on the SFCR
unless he obtains and complies in good faith with an
NPDES permit under the CWA.
C. Civil Penalties in the Amount of $150,000
Are Warranted
ICL asks the Court to impose a civil penalty of at
least $564,924 for Mr. Poe’s 42 CWA violations. Mem.
ISO Mot. for Remedies at 14–22 (Dkt. 59-1). Mr. Poe
argues the Court should reject ICL’s request as
excessive and unduly burdensome, proposing that a
$60,924 penalty more accurately addresses his
conduct and the surrounding circumstances. Resp. to
Mot. for Remedies at 16–24 (Dkt. 63).
Congress has vested courts with the authority to
determine an appropriate civil penalty for CWA
violations. Tull v. U.S., 481 U.S. 412, 427 (1987). Like
other penalties, the purpose of a penalty under the
CWA is to provide restitution, punish the violator, and
deter similar conduct by the violator and others. Id. at
422. “A penalty must be high enough so that the
discharger cannot ‘write it off’ as an acceptable
environmental trade-off for doing business.” Hawaii’s
Thousand Friends v. City and Cnty. of Honolulu, 821
F. Supp. 1368, 1394 (D. Haw. 1993).
Civil penalties in CWA cases involve “highly
discretionary calculations that take into account
multiple factors.” Tull, 481 U.S. at 427. The factors
courts must consider are: (i) the seriousness of the
violations; (ii) the economic benefit, if any, resulting
from the violations; (iii) any history of such violations;
(iv) any good faith efforts to comply with the
applicable requirements; (v) the economic impact of
47a
the penalty on the violator; and (vi) any other matters
as justice may require. 33 U.S.C. § 1319(d).
When considering these statutorily-enumerated
factors, courts generally employ either a “top-down” or
“bottom-up” approach. Atlanta Gold, 879 F. Supp. 2d
at 1165 (comparing Sierra Club v. Cedar Point Oil Co.,
73 F.3d 546, 573–74 (5th Cir. 1996) (employing topdown approach), with U.S. v. Smithfield Foods, Inc.,
191 F.3d 516, 528–29 (4th Cir. 1999) (taking bottomup approach)). The top-down approach requires the
court to first calculate the maximum penalty, and
then, if necessary, to adjust the penalty downward in
consideration of the six statutory factors. Cedar Point,
73 F.3d at 573. The bottom-up method begins with
calculating the economic benefit realized by the
defendant as a result of his non-compliance, and then
adjusts that amount upward or downward based on
the court’s evaluation of the remaining factors.
Smithfield Foods, 191 F.3d at 528.
ICL does not insist on either a top-down or bottomup approach to calculating the proper civil penalties
here. It references a $1,957,041 maximum penalty.9 It
settles on a proposed penalty of at least $564,924.
ICL’s figure is guided in large part by the $6,600
penalty imposed in a similar EPA civil enforcement
action (Erlanson (discussed infra)) relating to a single
day of unpermitted suction dredge mining on the
SFCR in 2015. Here, citing Mr. Poe’s flagrant
violations and need for deterrence, the ICL doubled
the per-violation penalty to $13,200 and added
Mr. Poe’s $10,524 economic gain to the total penalty.
9 This represents a total of 25 violations in 2014 and 2015 at
$37,500 per violation ($937,500) and 17 violations in 2018 at
$59,973 per violation ($1,019,541).
48a
Mem. ISO Mot. for Remedies at 13–16 (Dkt. 59-1).
Mr. Poe favors a bottom-up approach because,
according to him, it better reflects the minimal
environmental harm caused by his suction dredge
mining. Resp. to Mot. for Remedies at 17 (Dkt. 63).
The Court will employ the bottom-up approach as
the most practical to these facts. This case is unique
in that Mr. Poe did not outright ignore the need for an
NPDES permit in the typical sense. His decision not
to secure an NPDES permit was informed, at least in
part, by advice from his attorney, coupled with their
correspondence with the EPA about whether he even
needed an NPDES permit in the first instance. See
infra. Also, it is not exactly clear how Mr. Poe’s suction
dredge mining violated NPDES permit standards
(aside from not securing an NPDES permit in and of
itself). Id. These considerations favor a bottom-up
approach rather than beginning with a nearly
$2 million maximum civil penalty and working down.
See Atlanta Gold, 879 F. Supp. 2d at 1166 (describing
bottom-up approach as “more practical in this
scenario, as arsenic and iron differ greatly in terms of
the degree of the environmental harm they cause.”).
With that, the Court turns to the above-referenced
statutory factors for calculating CWA-related
penalties.
1. The Economic Benefit From Mr. Poe’s CWA
Violations
Mr. Poe’s most obvious economic benefit in suction
dredge mining on the SFCR without an NPDES
permit is the value of mineral resources (gold)
extracted therefrom. Remedial phase discovery
revealed that Mr. Poe mined up to six ounces of gold
across 2014, 2015, and 2018. Mem. ISO Mot. for
49a
Remedies at 18 (Dkt. 59-1). At an estimated value of
$1,754 per ounce, the value of Mr. Poe’s unpermitted
haul amounts to at least $10,524. Id. Mr. Poe does not
disagree; he folds this exact amount into his own civil
penalty proposal. Resp. to Mot. for Remedies at 17, 24
(Dkt. 63). The civil penalty therefore begins at $10,524
and is subject to adjustment in light of the remaining
factors.
2. The Seriousness and History of Mr. Poe’s CWA
Violations
Congress flatly prohibited “the discharge of any
pollutant by any person” except as in compliance with
the CWA. 33 U.S.C. § 1311(a). There is no dispute that
Mr. Poe violated this prohibition time and again when
he suction dredge mined on the SFCR without an
NPDES permit in 2014, 2015, and 2018. These
violations are unquestionably serious. They not only
violated the law, but also caused environmental harm
by lowering water quality. See supra.
But in assessing the “seriousness” of these
violations, it is important to keep in mind that suction
dredge mining is allowed on the SFCR. In other words,
this is not a case of Mr. Poe suction dredge mining at
a time and place where it was not lawfully permitted.
His problem is that he repeatedly suction dredge
mined without an NPDES permit (even if he did have
a state IDWR permit with some—though not
completely—overlapping best management practices).
See, e.g., Poe, 421 F. Supp. 3d at 998, n.6 (in denying
Mr. Poe’s earlier Motion to Dismiss, Judge Bush
explaining that “the IDWR and NPDES permits are
not identical, as there is some overlap but also
numerous differences.”). Still, Mr. Poe argues that
ICL has not claimed that he violated either his IDWR
50a
permit or any actual NPDES permit requirements
(except for the 800-foot separation requirement (see
supra)). Resp. to Mot. for Remedies at 12, 17–20 (Dkt.
63); but see Reply ISO Mot. for Remedies at 11, n.4
(Dkt. 64) (ICL identifying instances where Mr. Poe
violated IDWR permit and reporting requirements
attached to NPDES permits). If so, how do the
environmental impacts of Mr. Poe’s unpermitted
suction dredge mining stack up against another’s
permitted suction dredge mining? If they are
comparable, how “serious” are Mr. Poe’s CWA
violations when evaluating a commensurate civil
penalty? See, e.g., Magar, 2015 WL 632367, at *5
(difficulty in attributing water quality problems to
illegal discharges “neither compel nor preclude a
reduction to the maximum civil penalty”); but cf.
Atlanta Gold, 879 F. Supp. 2d at 1168 (finding
discharges of arsenic and iron in excess of effluent
limitations over three-year period sufficient to justify
significant upward adjustment of total civil penalty).
The record does not neatly confront these
questions except to underscore the spectrum of
possible CWA violations and corresponding levels of
impact (seriousness). What is clear, however, is that
Mr. Poe violated the CWA when he suction dredge
mined 42 days on the SFCR without the required
NPDES permit and that these activities added
pollutants to the river and caused environmental
harm. Supra. Any similarities between properlypermitted mining activities and Mr. Poe’s
unpermitted (but nonetheless allegedly compliant)
mining activities largely miss the point and represent
a false equivalence. Mr. Poe should not have been
suction dredge mining without an NPDES permit at
all. The liability phase confirmed as much. Had he not,
51a
he never would have discharged pollutants into the
waterway, even if his activities otherwise complied
with a hypothetical NPDES permit (that may not have
even been issued). Each of the 42 times he did this
represents a serious CWA violation that, together,
warrant an upward adjustment of the civil penalty
amount.
3. Mr. Poe’s Good Faith Efforts to Comply With
the CWA
Good faith efforts to comply with applicable
requirements may reduce civil penalties. This factor
turns on whether Mr. Poe “took any actions to
decrease the number of violations or made efforts to
mitigate the impact of [his] violations on the
environment.” U.S. v. Smithfield Foods, Inc., 972 F.
Supp. 338, 349–50 (E.D. Va. 1997).
ICL argues that Mr. Poe took no steps to comply
with the CWA or to mitigate the effects of his suction
dredge mining. Mem. ISO Mot. for Remedies at 20
(Dkt. 59-1) (“Poe’s compliance efforts could hardly be
less vigorous. In fact, non-compliance has often been
Poe’s stated intention . . . .”) (emphasis in original). In
response, Mr. Poe does not walk back his belief that
suction dredge mining does not require an NPDES
permit or that he has openly suction dredge mined in
opposition to the EPA. Resp. to Mot. for Remedies at
21 (Dkt. 63). He instead claims that his opinions are
protected by the First Amendment, while noting his
consistent
compliance
with
IDWR
permit
requirements to show that he “still respected the
conditions that are in place to minimize and eliminate
the environmental impacts of his operations.” Id.
52a
Whatever protections exist via the First
Amendment, they do not excuse violations of the law
and certainly do not amount to good faith efforts to
comply with the CWA. Just the opposite. And while
observing state permitting requirements is better
than the alternative, its attendant “no harm no foul”
logic comes up short when assessing Mr. Poe’s good
faith efforts to respect a different, albeit parallel,
permitting standard that may have applied to
preclude his suction dredge mining on the SFCR and
foreclosed its environmental impacts altogether.
Supra. In short, these aspects of Mr. Poe’s
counterarguments are misplaced.
Despite all this, it is noteworthy that Mr. Poe’s
insistence against an NPDES permit did not seem to
be a knee-jerk reaction to an inconvenient legal
requirement getting in the way of his gold mining
pursuits. He was told this by his own attorneys before
he first suction dredge mined in Idaho in 2014. Poe
Dep., attached as Ex. B to 2nd Hurlbutt Decl. at 13:8–
20 (Dkt. 38-5) (“Q: When you went to Idaho, did you
have an NPDES permit for suction dredging in Idaho
in 2014? A: No. Q: Had you applied for one? A: No. Q:
And why didn’t you have one, Mr. Poe? A: At the
advice of my attorney, I didn’t. I was informed that I
did not need one.”); see also Poe Decl. ISO MSJ at ¶12
(Dkt. 39-4) (“I did not obtain an NPDES permit from
the Environmental Protection Agency (EPA) [in 2014]
because I was informed by my attorney that one was
not required.”). What’s more, after receiving notice
from the EPA in October 2014 about violating the
CWA for suction dredge mining on the SFCR without
an NPDES permit, Mr. Poe’s counsel wrote back and
explained why the EPA’s position was wrong. Exs. A
& B to Poe Decl. ISO Mot. to Dismiss (Dkt. 17-2). The
53a
EPA never responded, never contacted Mr. Poe or his
attorney again, and never took any further action. It
was thus no real surprise when Mr. Poe suction
dredge mined in Idaho in 2015 and 2018 without an
NPDES permit, even after receiving ICL’s “intent to
sue” notices in 2016, 2017, and 2018. Poe Decl. ISO
MSJ at ¶ 15 (Dkt. 39-4) (“I did not obtain an NPDES
permit from the EPA [in 2015] because, according to
counsel, the IDWR permit was the only permit I was
legally required to get.”); id. at ¶ 19 (same for 2018).
It is therefore possible to argue that this is not a
situation where Mr. Poe obviously knew better but
acted on his impulses and misguided convictions
anyway. His attorney told him that an NPDES permit
was not required and this advice aligned with his own
subjective view on the matter.10 That said, it does not
establish a good faith effort to comply with the CWA
(even if it may countenance against a finding of
outright bad faith) or render him legally blameless.
Short of actually securing the required NPDES permit
before suction dredge mining, the proper course of
action in this instance was to administratively engage
to resolution or proactively seek relief from the courts.
Mr. Poe purposely chose not to, ignored violation
notices, and proceeded to repeatedly suction dredge
mine on the SFCR without a permit. He ultimately did
so to his own detriment. Accordingly, an upward
adjustment of the civil penalty amount is in order.
10 In this way, ICL’s reliance on Erlanson is undercut. There,
Mr. Erlanson submitted an NPDES permit application to the
EPA but was denied. In re Dale Erlanson, Sr., Docket No. CWA10-2016-0109 (U.S. Environmental Protection Agency) at 7,
attached as Ex. D to 4th Hurlbutt Decl. (Dkt. 59-6). He suction
dredge mined anyway.
54a
4. The Economic Impact on Mr. Poe
Courts may reduce the civil penalty against a party
if the maximum statutory penalty would work an
undue hardship. Atlantic States Legal Found. v.
Universal Tool & Stamping Co., 786 F. Supp. 743,
753–54 (N.D. Ind. 1992). This factor will not reduce
the amount of the penalty unless the violator can show
that the penalty will have a “ruinous effect.” Magar,
2015 WL 632367, at *7 (citing U.S. v. Gulf Park Water
Co., 14 F. Supp. 2d 854, 868 (S.D. Miss. 1998)).
ICL argues that a penalty of at least $564,924
(already reduced from the $1,957,041 maximum
penalty) is warranted and will not impose an undue
burden on Mr. Poe given his personal assets and close
affiliation with AMRA.11 Mem. ISO Mot. for Remedies
at 21–22 (Dkt. 59-1). Mr. Poe insists that ICL
overstates his financial association with AMRA and
that ICL’s proposed penalty “places a significant
burden” on him individually. Resp. to Mot. for
Remedies at 21–23 (Dkt. 63). He submits that a
$60,924 penalty is more appropriate. Id. at 24.
Mr. Poe is an individual professional miner and
claims to have limited annual income and only a
limited number of assets. Id. at 23. To that end, he
states that his main source of income over the last few
years comes from his mining operations, a previouslyowned rental property, and the small consulting fees
received from AMRA. Id. He goes on to identify $3,000
in savings, a 2007 truck worth $5,000–$8,000, a 1985
11 AMRA is a 501(c)(3) non-profit that provides “mining education
and assist[s] small miners and public land users with issues that
arise when mining on state and federal lands.” Poe Decl. ISO
MSJ at ¶ 2 (Dkt. 39-4). “AMRA focuses on regulatory initiatives
that directly affect small miners.” Id.
55a
mobile home worth about $15,000, roughly 16 ounces
of gold valued at $28,064, and $75,000 in proceeds
from a recent sale of a 10-acre parcel of land. Id.12 ICL
does not dispute these figures or argue that Mr. Poe is
capable of paying its proposed civil penalty from these
rather modest income sources and assets; its
argument centers on Mr. Poe’s alleged access to
AMRA’s significant financial resources. Reply ISO
Mot. for Remedies at 111–12 (Dkt. 64). The economic
impact that a penalty will have on Mr. Poe
consequently rises and falls with the contours of this
relationship.
To begin, Mr. Poe is a founder and the President of
AMRA. Resp. to Mot. for Remedies at 5–6 (Dkt. 63).
He submits posts and uploads videos to AMRA’s
webpage about proposed federal and state legislation,
general mining activity, and issues impacting water
rights. He promotes AMRA during his mining trips.
He submits his mining activities as content on
AMRA’s webpage. Id. at 6. Despite this administrative
involvement with AMRA, the record reveals that all of
Mr. Poe’s suction dredge mining on the SFCR in 2014,
2015, and 2018 was done at his own expense, under
his own personal IDWR permits, and for his own
personal economic benefit—not AMRA’s. Id. at 6 & 23.
In this context, there is no basis to conclude that
Mr. Poe and AMRA are effectively one-and-the-same.
This action bears that out, with ICL asserting
12 In comparison, the plaintiff in Magar had $11,914.36 deposited
in various bank accounts, $3 million in unencumbered assets,
and $45,974.58 in monthly income. Magar, 2015 WL 632367, at
*7 (“Given evidence that Magar has substantial income and
unencumbered assets, the Court is not persuaded that a
substantial civil penalty would lead Magar to financial ruin.”).
Mr. Poe does not have these same resources.
56a
claims only against Mr. Poe individually, not AMRA
institutionally.
At the same time, Mr. Poe concedes that AMRA
provides monetary support to miners, including
himself, that are dealing with legal issues. Id. at 6; see
also Ex. C. to Hurlbutt Decl. (Dkt. 20-4) (AMRA
fundraising posting: “We could use some new
members, we have legal bills to pay . . . . You can
support AMRA with a $5 monthly donation.
Remember, this goes to fight for your mining rights
. . . .”); Ex. B to 4th Hurlbutt Decl. (Dkt. 59-4) (“We
will be doing many outings, fundraisers, dinners and
even yes . . . another Walk for Liberty to raise money
for this legal fight. . . . If you’d like to make a donation
or join AMRA, clink the link below.”) (emphasis
added); id. at Ex. C (Dkt. 59-5) (“[W]e need to spend a
large amount of money to get [this case] to appeal. We
are looking to raise $150,000 to get there folks. . . .
Want to make a cash donation, click the link below.”).
The true extent of this support, however, and whether
it would apply to a civil monetary penalty, is
unknown. At the end of the day, the mere possibility
of Mr. Poe’s access to AMRA’s legal defense fund
definitely generates “smoke” but not enough “fire” to
legitimize ICL’s matter-of-fact statement that, owing
to his ties to AMRA, “[Mr.] Poe has significant funds
to pay a penalty” of at least $564,924. Mem. ISO Mot.
for Remedies at 22 (Dkt. 59-1). The record is simply
too underdeveloped for such a broad legal conclusion.
All in all, the Court is satisfied that imposing a
civil penalty of at least $564,924 would have a more
drastic effect on Mr. Poe than is needed to account for
his CWA violations and ensure future compliance.
This does not mean that Mr. Poe’s suggested $60,924
57a
penalty prevails by default either. To the contrary,
Mr. Poe fails to explain the basis for this significantly
lower amount13 or how a higher penalty would be
ruinous to him. Because Mr. Poe failed to meet this
burden, the Court is not limited to the $60,924 penalty
he proposes.
5. Other Considerations
It is not unusual to try and determine whether a
civil penalty is equitable by drawing comparisons to
analogous cases. See U.S. v. Righter, 2010 WL
4977046, at *4 (M.D. Pa. 2010) (performing side-byside comparison of two cases to fashion equitable
penalty). Both ICL and Mr. Poe attempt to do this.
Compare Mem. ISO Mot. for Remedies at 14–16 (Dkt.
59-1), with Resp. to Mot. for Remedies at 23–24 (Dkt.
63). These exercises are helpful in the abstract, but
rarely supply an “apples to apples” comparison that
uncovers an obvious answer. Cases may deal with
different facts, different party statuses (individual vs.
corporate), different legal proceedings (court vs.
administrative), different manners of resolution
(settlement vs. finding of liability), or just different
methods of calculation (high per violation penalties in
low volume cases vs. low per violation penalties in
high volume cases) that frustrate comparison. Id. The
following chart incorporates the parties’ cases and
confirms as much:
13 More specifically, Mr. Poe has not supplied the basis for his
suggested $1,200 per day violation of the CWA. This figure,
multiplied by Mr. Poe’s 42 CWA violations, and then added to his
$10,524 economic benefit, amounts to $60,924.
C
I
I
I
I
I
C
Atlanta Gold
Magar
Erlanson
Rice
Grissom
Rogue
Riverkeeper
Poe
$1,957,041
$99,525,000
$203,256
$16,000
$16,000
$187,500
$75,150,500
Max Penalty
??
$96,150 (~1%)
$24,000 (~12%)
$3,600 (~23%)
$6,600 (~41%)
$100,000 (~53%)
$2 million (~3%)
Imposed Penalty
42
2,654
9
1
1
5
2,000
Violations
??
$37.50/per
$2,667/per
$3,600/per
$6,600/per
$20,000/per
$1,000/per
Per
violation
14 ICL cites to Atlanta Gold, Magar, and Erlanson; Mr. Poe cites to Rice, Grissom, and Rogue Riverkeeper.
Status
Case14
58a
59a
Of note, Erlanson, Rice, and Grissom dealt with
suction dredge mining on the SFCR without an
NPDES permit which the Court considers relevant
when evaluating the seriousness of Mr. Poe’s CWA
violations. However, only Erlanson included a finding
of liability (albeit administratively); the Rice and
Grissom penalties resulted from settlements with the
EPA. In all, the cases are difficult to reconcile and
fact-dependent. Accordingly, they provide only limited
comparative guidance.
Suffice it to say, and mindful of the complexities
inherent in cases like this, the Court exercises its
discretion and assesses a total civil penalty of
$150,000 for Mr. Poe’s 42 CWA violations. This
amount includes (i) the $10,524 direct economic
benefit that Mr. Poe received from his CWA violations
and (ii) $139,476 ($3,320.86 per violation) following
the Court’s evaluation of the remaining § 1319(d)
factors. Supra.
This penalty represents less than 8% of the
maximum possible penalty, yet can still be read
consistently with the penalties imposed in analogous
cases. It recognizes on the one hand the serious nature
of Mr. Poe’s 42 violations over three years; on the
other hand, it does not ignore the fact that suction
dredge mining is allowed on the SFCR (when properly
permitted) and that Mr. Poe is an individual suction
dredge miner, mines for his own personal benefit, and
has limited resources (though receives financial
support—to some degree—from AMRA). With these
overarching considerations in mind, the Court is
satisfied that this penalty accounts for the harm
involved, deters future violations, and represents an
equitable application of the law.
60a
III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED
that ICL’s Motion for Remedies (Dkt. 59) is
GRANTED as follows:
1. An
injunction
consistent
with
this
Memorandum Decision and Order shall issue as part
of a separate judgment.
2. Defendant Shannon Poe shall pay a civil
penalty of $150,000 to the United States Treasury.
3. Within 14 days of this Memorandum Decision
and Order, the parties are instructed to submit a joint
proposal to the Court, addressing (i) the terms of the
injunction and (ii) a deadline for the $150,000
payment
and
any
corresponding
payment
schedule/logistics.
DATED: September 28, 2022
/s/ Raymond F. Patricco
Honorable Raymond E. Patricco
Chief U.S. Magistrate Judge
61a
Filed June 4, 2021
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
IDAHO
CONSERVATION
LEAGUE,
Plaintiff,
vs.
SHANNON POE,
Defendant.
Case No.: 1:18-cv-353-REB
MEMORANDUM
DECISION AND
ORDER RE:
IDAHO
CONSERVATION
LEAGUE’S MOTION
FOR SUMMARY
JUDGMENT ON
LIABILITY
(Dkt. 38)
SHANNON POE’S
MOTION FOR
SUMMARY JUDGMENT
(Dkt. 39)
Pending before the Court is Plaintiff Idaho
Conservation League’s Motion for Summary
Judgment on Liability (Dkt. 38) and Defendant
Shannon Poe’s Motion for Summary Judgment (Dkt.
39). Having carefully considered the record,
participated in oral argument, and otherwise being
fully advised, the Court enters the following
Memorandum Decision and Order:
I. RELEVANT BACKGROUND
The pertinent facts that now frame the legal issues
involved in this case (and as presented in the parties’
cross-motions for summary judgment) are largely
62a
undisputed1—namely, that Mr. Poe suction dredge
mined 42 days on the South Fork Clearwater River
during the 2014, 2015, and 2018 dredge seasons
(running from July 15 to August 15 each year),
without ever obtaining an NPDES permit under
Section 402 of the CWA. ICL argues that Mr. Poe
violated the CWA each time he operated a suction
dredge on the South Fork Clearwater River without
an NPDES permit. Mr. Poe disagrees, countering that
(1) his suction dredge mining did not add pollutants to
the South Fork Clearwater River and therefore did
not require an NPDES permit (or any other CWA
permit) in the first instance; and (2) even if his suction
dredge mining did add pollutants, those pollutants are
“dredged” or “fill” material regulated exclusively
under Section 404 (not Section 402) of the CWA and
therefore did not require an NPDES permit.2 This
Memorandum Decision and Order confronts these
Within its September 30, 2019 Memorandum Decision and
Order denying Defendant Shannon Poe’s Motion to Dismiss, the
Court generally discussed the characteristics of the South Fork
Clearwater River; recreational suction dredge mining and
National Pollutant Discharge Elimination System (“NPDES”)
permit requirements under the Clean Water Act (“CWA”);
Idaho’s permitting requirements for suction dredging; Mr. Poe’s
suction dredge activity on the South Fork Clearwater River
without an NPDES permit in 2014, 2015, and 2018; and Plaintiff
Idaho Conservation League’s (“ICL”) correspondence to Mr. Poe
in 2016, 2017, and 2018 advising him of its intention to initiate
a CWA citizen suit against him if he continued to suction dredge
in Idaho without an NPDES permit. See generally 9/30/19 MDO,
pp. 1–8 (Dkt. 26). This backdrop, while important for context, will
not be repeated here.
1
Mr. Poe further argues that any discharges from his suction
dredge mining are only “incidental fallback,” making them
exempt from Section 404 of the CWA in any event.
2
63a
positions, resolving the question of whether Mr. Poe’s
suction dredge mining is governed under Section 402
or Section 404 of the CWA.
II. LEGAL STANDARD
Summary judgment requires a showing that, as to
any claim or defense, “there is no genuine dispute as
to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
principal purpose of summary judgment “is to isolate
and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is
“not a disfavored procedural shortcut”; rather, it is the
“principal tool[ ] by which factually insufficient claims
or defenses [can] be isolated and prevented from going
to trial with the attendant unwarranted consumption
of public and private resources.” Id. at 327. “[T]he
mere existence of some alleged factual dispute
between the parties will not defeat an otherwise
properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). There must be a genuine dispute as to any
material fact—a fact “that may affect the outcome of
the case.” Id. at 248.
The evidence must be viewed in the light most
favorable to the non-moving party, and the court must
not make credibility findings. See id. at 255. Direct
testimony of the non-movant, however implausible,
must be believed. See Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). However, the court is not
required to adopt unreasonable inferences from
circumstantial evidence. See McLaughlin v. Liu, 849
F.2d 1205, 1208 (9th Cir. 1988).
64a
In deciding cross-motions for summary judgment,
the court considers each party’s evidence. See Las
Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th
Cir. 2011); see also Fair Hous. Council of Riverside
Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th
Cir. 2001) (“[W]hen simultaneous cross-motions for
summary judgment on the same claim are before the
court, the court must consider the appropriate
evidentiary material identified, and submitted in
support of both motions, and in opposition to both
motions, before ruling on each of them.”). The court
must independently search the record for factual
disputes. See Fair Hous. Council of Riverside Cnty.,
Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir.
2001). Even though the filing of cross-motions for
summary judgment means that both parties
essentially assert that there are no material factual
disputes, the Court nonetheless must decide whether
disputes as to material fact are present. See id.
The moving party bears the initial burden of
demonstrating the absence of a genuine dispute as to
material fact
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