Record and brief — Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

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MUCAS IUE Vi 70" rave i OF

No 07-984

Vide 07-990

Title Coeur Alaska, Inc.. Petitioner

Southeast Alaska Conservation Council, et al

Docketed January 29, 2008

Lower Ct United States Court of Appeals for the Ninth Circuit

Case Nos. (06-35679)

Decision Date: May 22, 2007

Rehearing Denied: October 29, 2007

Questions Presented

-~~Date~~~ ~~~~~ ~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~

Jan 28 2008 Petition for a writ of certiorari filed. (Response due February 28, 2008)

Feb || 2008 Brief of respondent Goldbelt, Inc. in support filed. VIDED.

Feb 21 2008 Letter of February 19, 2008, from counsel for respondent Alaska received.

Feb 25 2008 Order extending time to file response to petition to and including March 31, 2008, for all

respondents.

Feb 28 2008 Brief amici curiae of National Mining Association, et al. filed.

Feb 28 2008 Brief amicus curiae of Mountain States Legal Foundation filed.

Mar 26 2008 Order further extending time to file response to petition to and including April 30, 2008,

for all respondents.

Apr 25 2008 Order further extending time to file response to petition to and including May 14, 2008,

for all respondents.

May 14 2008 Brief of Federal Respondents in opposition filed. VIDED.

May 1|4 2008 Brief of respondent Southeast Alaska Conservation Council, et al. in opposition filed

VIDED

May 27 2008 DISTRIBUTED for Conference of June 12, 2008

May 27 2008 Reply of petitioner Coeur Alaska, Inc. filed. (Distributed)

May 28 2008 Letter and attachment dated May 27, 2008, proposing a lodging, received from counsel

for the petitioner. (Distributed)

Jun 16 2008 DISTRIBUTED for Conference of June 19, 2008.

Jun 23 2008 DISTRIBUTED for Conference of June 26, 2008.

Jun 27 2008 Petition GRANTED The case is consolidated with No. 07-990, and a total of one hour is

allotted for ora! argument

Jul 15 2008 The time within which to file the joint appendix and petitioners’ briefs on the merits is

extended to and including September 2, 2008. VIDED

Jul 15 2008 The time within which to file respondents’ briefs on the merits is extended to and

including October 23, 2008. VIDED

Aug 13 2008 Consent to the filing of amicus briefs, in support of either party or neither party, received

from counsel for the petitioner Alaska. VIDED

Aug 13 2008 Consent to the filing of amicus briefs, in support of either party or neither party, received

from counsel for the respondent Goldbelt, Inc VIDED

Aug 13 2008 Consent to the filing of amicus briefs, in support of either party or neither party, received

trom counsel for the respondents Southeast Alaska Conservation, Sierra Club, and Lynn

Vocket tor U/-Y34

Aug 14 2008

Aug 19 2008

Sep 17 2008

Sep 24 2008

Oct 7 2008

Nov 4 2008

Nov 7 2008

Nov 14 2008

Nov

i4 2008

14 2008

28 2008

Dec | 2008

Dec 8 2008

Dec § 2008

Dec 8 2008

Jan 12 2009

Page 2 of 5

Canal Conservation. VIDED

The time within which to file the joint appendix and petitioners’ briefs on the merits is

further extended to and including September 17, 2008. VIDED

The time within which to file respondents’ briefs on the merits is further extended to and

including November 7. 2008. VIDED

Consent to the filing of amicus briefs, in support of either party or neither party, received

from counsel for the petitioner Coeur Alaska. VIDED

Brief of petitioner Alaska filed. VIDED. "

Brief of respondents United States Army Corps of Engineers, et al. in support of

petitioners filed. VIDED

Brief of petitioner Coeur Alaska, Inc. filed. VIDED.

Brief of respondent Goldbelt, Inc. in support of petitioners filed. VIDED

Joint appendix filed (2 volumes). Statement of costs received. VIDED

Brief amici curiae of National Mining Association, et al. filed. VIDED.

Brief amicus curiae of National Association of Home Builders filed. VIDED

Brief amicus curiae of Council of Alaska Producers filed. VIDED

Brief amici curiae of Pacific Legal Foundation, et al. filed. VIDED.

Brief amicus curiae of Mountain States Legal Foundation filed. VIDED.

Brief amicus curiae of Resource Development Council for Alaska, Inc. filed. VIDED

SET FOR ARGUMENT ON Monday, January 12, 2009

CIRC LATED.

Brief or respondents Southeast Alaska Conservation Council, Sierra Club, and Lynn

Canal Conservation filed. VIDED. (Distributed)

Brief amici curiae of David M. Chambers, Catherine Coumans, and Carol Ann Woody

filed. VIDED. (Distributed).

Brief amici curiae of American Rivers, et al. filed. VIDED. (Circulated)

Brief amicus curiae of Honorable G. Tracy Mehan, II filed. VIDED (Circulated)

Brief amici curiae of Members of Congress filed VIDED. (Circulated)

Brief amici curiae of Nondalton Tribal Council, et al. filed VIDED. (Distributed)

Motion of the Solicitor General for divided argument VIDED

Record received from the U.S.C_A. for the 9th Circuit. (1 box)

Record received from the Chambers of Honorable Judge Procter Hug, Jr. (U.S.C_A. for

9th Circuit) for the U.S D.C. for the District of Alaska (1 « lope)

Motion for divided argument filed by the Solicitor General GRANTED. VIDED

Reply of Federal Respondents supporting petitioners filed. VIDED (Distributed)

Reply of petitioner Coeur Alaska, Inc. filed. VIDED. (Distributed)

Reply of respondent Goldbelt, Inc. supporting petitioners filed VIDED. (Distributed)

Reply of petitioner Alaska filed VIDED. (Distributed)

Argued. For federal respondents in support of petitioners: Gregory G_ Garre, Solicitor

General, Department of Justice, Washington, D.C. For petitioners: Theodore B_ Olson,

Washington, D.C. For respondents’ Thomas S. Waldo. Juneau, Alaska

Docket for 07-984

Name-- -~ Address ~ -

Attorneys for Petitioner:

Jonathan S. Franklin Fulbright & Jaworski L.L.P

Counsel of Record 801 Pennsylvania Avenue, N W

Washington, DC 20004

jfranklin@fulbright.com

Party name: Alaska

Theodore B. Olson Gibson Dunn & Crutcher LLP

Counsel of Record 1050 Connecticut Avenue, N.W

Washington, DC 20036

TOlson@gibsondunn.com

Party name: Coeur Alaska, Inc

Attorneys for Respondents:

David C. Crosby $280 Thane Road

Counsel of Record Juneau, AK 99801-7717

Party name: Goldbelt, Inc.

Edwin S. Kneedler Acting Solicitor General

Counsel of Record United States Department of Justice

950 Pennsylvania Avenue, N.W

Washington, DC 20530-0001

Party name: United States Army Corps of Engineers, et al.

Thomas S. Waldo Earthjustice

Counsel of Record 325 Fourth Street

Juneau, AK 99801

twaldo@earthjustice org

Party name: Southeast Alaska Conservation Council, et al.

Other:

James S. Burling Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, CA 95834

Party name: Pacific Legal Foundation, et al.

Duane J. Desiderio National Association of Home Builders

1201 1Sth Street, NW

Washington, DC 20005

Party name. National Association of Home Builders

Christopher T. Handman Hogan & Hartson, LLP

Pave 3 of 5

Phone

(202) 662-0466

(202) 955-8500

(907) 586-6262

(202) 514-2217

(907) 586-275 |

(916) 419-7111

(202) 866-8200

(202) 637-5719

Docket for 07-984 Pave 4 of 5

Columbia Square

$55 Thirteenth Street, N. W.

Washington, DC 20004

Party name: National Mining Association, et al

Michael Jungreis Hartig Rhodes Hoge & Lekisch (907)-276-1592

717K Street

Anchorage, AK 9950]

Party name: Resource Development Council for Alaska, Inc.

Paul J. Lawrence K&L Gates LLP (907) 276-1969

420 L Street, Suite 400

Anchorage, AK 99501-1971

Party name: Council of Alaska Producers

Jeffrey C. Parsons Western Mining Action Project (303 )-823-5738

440 Main Street, Suite 102

P.O. Box 349

Lyons, CO 80540

WMAP @igce.org

Party name: David M. Chambers, Catherine Coumans, and Carol Ann Woody

William Perry Pendley Mountain States Legal Foundation (303) 292-2021

2596 South Lewis Way

Lakewood, CO 80227

Party name: Mountain States Legal Foundation

Ethan G. Shenkman Wilmer Cutler Pickering Hale and Dorr, LLP (202) 663-6000

1875 Pennsylvania Ave., NW

Washington, DC 20006

Party name: Nondalton Tribal Council, et al

Deborah A. Sivas Environmental Law School (650)-723-0325

Mills Legal Clinic of Stanford Law School

$59 Nathan Abbott Way

Stanford, CA 94305-8610

Party name American Rivers, et al

David C. Vladeck Georgetown University Law Center (202) 662-9540

600 New Jersey Ave, NW

Docket for 07-984

Washington, DC 20001

Party name’ Members of Congress

Amy J. Wildermuth University of Utah

S.J. Quinney College of Law

332 South 1400 East, Rm. 10!

Room 101

Salt Lake City, UT 84112

Party name: Honorable G. Tracy Mehan.I1), et al

Pave 5 of 5

(801) 581-6833

PETITION

FOR

WRIT OF

CERTIORARI

Supreme :

preme Court, U.S

07-984 JAN 2 8 2008

OFFICE OF THE CLERK

No.

is IN THE iy

Supreme Court of the United States

COEUR ALASKA, INC.,

Petitioner,

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

ROBERT A. MAYNARD THEODORE B. OLSON

PERKINS COLE LLP Counsel of Record

251 Kast Front St. Ste. 400 MATTHEW D. MCGILL

Boise, 1D 83702 AARON D. LINDSTROM

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, DC 20036

(202) 955-8500

Counsel for Petitioner

QUESTION PRESENTED

The Clean Water Act provides two separate pro-

grams for the permitting of discharges into navigable

waters of the United States. Under Section 404 of

the Act, the Army Corps of Engineers may issue

permits for discharges of “fill material,” subject to

the water-quality restrictions imposed by Section

404(b)(1). Under Section 402 of the Act, the Envi-

ronmental Protection Agency may issue permits for

the discharge of all other pollutar’s, subject to the

effluent limitations prescribed under Sections 301

and 306 of the Act.

In 2002, after notice and comment, the EPA and

the Corps jointly promulgated a regulation defining

the statutory term “discharge of fill material” to in-

clude “tailings or similar mining-related materials.”

Pursuant to its authority under Section 404 to grant

permits for the discharge of “fill material,” the Corps

granted petitioner a permit to deposit certain mine

tailings in a lake.

In the decision below, the Ninth Circuit invali-

dated that permit even though it acknowledged that

the proposed discharge “facially meets the current

regulatory definition of ‘fill material.” Upsetting 35

years of established agency practice, the court of ap-

peals held that the Corps may not issue a Section

404 permit for the discharge of fill material if the fill

material in question otherwise would be subject to a

Section 301 or 306 effluent limitation.

The question presented is whether the Ninth

Circuit erred in reallocating the Corps’ and EPA’s

permitting authority under the Act.

PARTIES TO THE PROCEEDING

In addition to Southeast Alaska Conservation

Council, the Sierra Club and Lynn Canal Conserva-

tion were appellants in the court of appeals. In addi-

tion to Coeur Alaska, Inc., the following parties (or

their predecessors in office, see this Court’s Rule

35.3) were appellees in the court of appeals and are

respondents in this Court pursuant to this Court’s

Rule 12.6: the United States Army Corps of Engi-

neers; Kevin J. Wilson, in his official capacity as Dis-

trict Engineer; Michael Rabbe, in his official capacity

as Chief of the Regulatory Branch; George S. Dunlop,

in his official capacity as Principal Deputy Assistant

Secretary of the Army (Civil Works); the United

States Forest Service; the State of Alaska; and

Goldbelt, Inc.1

Pursuant to this Court’s Rule 29.6, undersigned

counsel state that Coeur d’Alene Mines Corporation

is the parent company of Coeur Alaska, Inc. and that

no other publicly held company owns 10% or more of

its stock. Coeur d'Alene Mines Corporation has no

parent company and no publicly neld company owns

10% or more of its stock.

| Kevin J. Wilson replaced Timothy J. Gallagher as District

Engineer, Mi-hael Rabbe replaced Larry L. Reeder as Chief of

the Regulatory Branch, and George S. Dunlop replaced Dominic

Izzo as Principal Deputy Assistant Secretary of the Army (Civil

Works).

‘

Il.

ITT.

ill

TABLE OF CONTENTS

THE BROAD RAMIFICATIONS OF THE

NINTH CIRCUITS DECISION MARK THIS

CASE AS ONE OF _ EXCEPTIONAL

SIT Soinisnddscspimuastanibnamiapumiiabioiactine ines

A. The Ninth Circuit’s Decision

Radically Alters The Longstanding

Structure Of The Clean Water

Act’s Discharge Permit Programs ......

B. The Ninth Circuit’s Decision Will

Severely Harm the Nation’s

I icine hccsnitiiiaciisiaiiibiginsinnignans

C. The Ninth Circuit’s Decision

Threatens To Disrupt The

Economies Of Alaska And Other

, ESR CLEA ae

THE NINTH CIRCUIT'S CONSTRUCTION

OF THE CLEAN WATER’ ACT

CONTRAVENES THE ACTS TEXT AND

STRUCTURE, DECISIONS OF THIS COURT,

AND DECISIONS OF OTHER COURTS OF

EERE Pe ate CI a

THE NINTH CIRCUITS REFUSAL To

DEFER TO CORPS’ INTERPRETATION OF

ITS OWN REGULATION CONFLICTS WITH

THIS COURT'S PRECEDENTS ..................e0000.

CONCLUSION

IPP POP eee eee eee eee eee ee eee eee ee ee eee eee eee eee eee eee

re ee ee ee ee ee ee ee ee ee ee

—

weed

TABLE OF CONTENTS—Continued

APPENDIX A: Opinion of the United States

Court of Appeals for the Ninth Circuit ................

APPENDIX B: Order of the United States

Court of Appeals for the Ninth Circuit

Denying Rehearing En Banc ...................ceseeeeeeeeee

APPENDIX C: Opinion of the United States

District Court for the District of Alaska...............

APPENDIX D: Order of the United States

Court of Appeals for the Ninth Circuit

Granting Injunction Pending Appeal...................

APPENDIX E: Order of the United States

Court of Appeals for the Ninth Circuit

Denying Motion to Vacate the Injunction

I tins haiiindtensiantidmeeimemenbiedenakein

APPENDIX F: Order of the United States

Court of Appeals for the Ninth Circuit Staying

Et ERE ee einer as me Pe Pe ae

APPENDIX G: Order of the United States

Court of Appeals for the Ninth Circuit

Directing Preparation of Reclamation Plan.........

APPENDIX H: Relevant Provisions of the

I aisubeuillelie

TABLE OF AUTHORITIES

Page(s)

Cases

Auer v. Robbins, 519 U.S. 452 (1997) .............2.cceceees 28

Bates v. United States, 522 U.S. 23 (1997)............... 25

Bragg v. W. Va. Coal Ass’n,

248 F.3d 275 (4th Cir. 2O0Z).......cccccccccscccscsssccseees 16

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

ES, ee Oe ee RR 2 29

Chevron U.S.A. Inc. v. Natural Res. Def.

Council,

a I icici iceiseretensnsciesiedsscepsiassiesadecinl tall 31

Friends of Crystal River v. U.S. E.P.A.,

35 F.3d 10738 (6th Cir. 1904)........ccccccccccoccscsccceeses 23

Greenfield Mills, Inc. v. Macklin,

361 F.3d 934 (7th Cir. 2004)................ccccccccresseees 22

HCSC-Laundry v. United States,

I Na ta a 26

Kentuckians for the Commonwealth, Inc.

v. Rivenburgh,

317 F.3d 425 (4th Cir. 2003)................ 2, 23, 29, 30

Morales v. Trans World Airlines, Inc.,

ee a Se ictiininicssdeciscinsencncdenciiiatadtnagasianl 26

Nat'l Ass’n of Home Builders v. Defenders

of Wildlife,

oe Ss En EE 29

TABLE OF AUTHORITIES—Continued

Page(s)

Nat'l Cable & Telecomms. Ass’n v. Gulf

Power Co.,

I ccatneneiel 26

Officemax, Inc. v. United States,

428 F.3d 66S (Gth Cir. 2006)...........cccccccsccccccsccseee. 22

Purcell v. Gonzalez, 127 S. Ct. 5 (2006).................... 10

Rapanos v. United States,

I Rs Is ccensenscressesensacecoeson 21, 22

S.D. Warren Co. v. Me. Bd. of Envtl. Prot.,

Es Gy, FE CP ccccsccoccscececesccccscccscocceses 21, 25

Slodov v. United States,

i cnnoamnuions 22

State of Minn. by Spannaus v. Hoffman,

B43 F.Ba DIGS (Oth Cir. 1976).....000...000ccccecsecescees 23

Townsend v. Little, 109 U.S. 504 (1883)................... 26

United States v. Fisk, 70 U.S. 445 (1866)................. 22

United States v. Locke, 471 U.S. 84 (1985)............... 28

Statutes

a sniiminiednbdeneaiials 8

Lo isin ddbhladmundenedunenilihe 13

ss saandeceiesonadunbens 3, 4, 21

ST Se eee aR 5

a sdineuideceinisenaiiialanigil 19

sp icciliiebiesanendions passim

a canadandicenevsehecedoens passim

vil

TABLE OF AUTHORITIES—Continued

Page(s)

EN ERLE MERTEN OMT CN 19

Regulations

TE is sicocnsinsidsacnoneciinnisaningiunisdandaiaioasidl passim

ET iiccntrnissctinisdinctdabiniundaiimitiiddaniinenel passim

ON a 9

easel 14

Other Authorities

Proposed Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material”

and “Discharge of Fill Material,”

65 Fed. Reg. 21,292 (Apr. 20, 2000)............ 3,4, 14

Final Revisions to the Clean Water Act

Regulatory Definitions of “Fill Material”

and “Discharge of Fill Material,”

67 Fed. Reg. 31,129 (May 9, 2002) ................ 22, 27

Reissuance of Nationwide Permits,

72 Fed. Reg. 11,092 (Mar. 12, 2007).................... 17

U.S. Army Corps of Engineers, Regulatory

Program Mission Statement........................-.....-. 29

U.S. Geological Survey, Mineral Commodity

is 17, 18

U.S.G.S., 2005 Minerals Yearbook,

Statistical Summary (Aug. 2007).....................4:. 19

PETITION FOR A WRIT OF CERTIORARI

Petitioner Coeur Alaska, Inc. respectfully sub-

mits this petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit.

OPINIONS BELOW

The court of appeals’ opinion is reported at 486

F.3d 638. App., infra, la. The order denying the pe-

tition for rehearing en banc is unreported. Id. 36a.

The opinion of the United States District Court for

the District of Alaska is also unreported. /d. 38a.

JURISDICTION

The district court had jurisdiction over respon-

dent’s claims pursuant to 28 U.S.C. § 1331. The

court of appeals had jurisdiction to review the dis-

trict court’s final judgment pursuant to 28 U.S.C.

§ 1291. The court of appeals filed its opinion on

May 22, 2007, and it denied, on October 29, 2007, pe-

titioner’s timely filed petition for rehearing en banc.

This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the Clean Water Act,

33 U.S.C. §§ 1257-1387, are set forth in the Appen-

dix, infra, at 68a.

STATEMENT

This case presents a question of exceptional im-

portance to the administration of the Clean Water

Act. Since the Clean Water Act’s enactment in i972,

both the Environmental! Protection Agency and the

Army Corps of Engineers have consistently recog-

nized that the Clean Water Act treats discharges of

“fill material” differently from discharges of other

pollutants: Discharges of “fill material” are subject

to regulation under Section 404 of the Clean Water

Act (33 U.S.C. § 1344) and to effluent guidelines

promulgated under Section 404(b)(1), while dis-

charges of other poilutants are subject to regulation

under Section 402 (33 U.S.C. § 1342) and the differ-

ent effluent limitations (including standards of per-

formance) that Section 402 specifies. Rejecting this

well-settled statutory dichotomy and enforcement

protocol developed by the specialized agencies re-

sponsible for administering the Act, by numerous

courts, by state governments, and by the mining in-

dustry, the Ninth Circuit imposed a novel and con-

flicting requirement. In the Ninth Circuit, dis-

charges of “fill material” must now comply with ef-

fluent limitations not only under Section 404, but

also those specified for “other pollutants” by Section

402. This decision overturns the settled understand-

ing of the Act and the enforcement regime developed

over the course of 35 years by EPA and the Corps

through their joint administration of the Clean Wa-

ter Act, disregards the twu-part statutory scheme

Congress enacted, significantly impacts the mining

industry by prohibiting a common practice often nec-

essary for hard rock and other mining (including

mining for gold, silver, copper, lead, zinc, phosphate,

and molybdenum ores), and jeopardizes the econo-

mies (and therefore the people) of States dependent

on mining.

1. Prior to the decision below, the Clean Water

Act’s bifurcated permitting scheme was well estab-

lished. See, e.g., Kentuckians for the Commonwealth,

Inc. v. Rivenburgh, 317 F.3d 425, 447 (4th Cir. 2003)

(explaining how the Act’s structure “reinforc[es] the

fill-effluent distinction that has been followed by the

agencies”). Section 301 of the Act broadly prohibits

the discharge of pollutants into navigable waters of

the United States “[e]xcept as in compliance” with

permit programs established by the Act. 33 U.S.C.

§ 1311(a). The Clean Water Act makes clear that the

Section 404 and Section 402 permitting schemes are

mutually exclusive: It entrusts to the Corps of Engi-

neers the authority to issue permits “for the dis-

charge of... fill material into the navigable waters,”

33 U.S.C. § 1344, while the authority to issue per-

mits for all pollutants other than “fill material” rests

with EPA, id. § 1342 (“Except as provided in section|{]

... 1344 ..., the [EPA] Administrator may .. . issue

a permit for the discharge of any pollutant ... .”)

(emphasis added). Indeed, below, even the appel-

lants agreed that “[t]he Act provides that a single

discharge will be governed by either section 402 or

section 404, but not both.” Appellants’ C.A. Br. 24.

This bifurcation makes sense, as the appellants

below also acknowledged: “The dual permitting

structure of sections 402 and 404 reflects Congress’s

view that discharges of ... fill material did not pose

the same threats to water quality as discharges of

industrial and municipal wastes.” Appellants’

Emergency Mot. under Cir. R. 27-3, at 6. As EPA

and the Corps have explained, “[iJn keeping with the

fundamental difference in the nature and effect of

the discharge that each program was intended by

Congress to address, sections 404 and 402 employ

different approaches to regulating the discharges to

which they apply.” Proposed Revisions to the Clean

Water Act Regulatory Definitions of “Fill Material”

and “Discharge of Fill Material,” 65 Fed. Reg. 21,292,

21,293 (Apr. 20, 2000). “The section 402 program is

focused on ... discharges such as wastewater dis-

charges from industrial operations and sewage

treatment plants, stormwater and the like.” Jd. “Fill

material,” on the other hand, “differs fundamentally

from the types of pollutants covered by section 402

because the principal concern is the loss of a portion

of the water body itself.” Jd.; see also id. (noting that

Section 404(b)(1) guidelines “provide for considera-

tion of the effects of chemical contaminants on water

quality in a number of ways” but also “go beyond

such a water quality based approach to require nu-

merous additional considerations” including “effects

of the discharge on the aquatic ecosystem as a

whole,” such as loss of wetlands); 33 U.S.C. § 1343(c)

(setting out criteria, cross-referenced by Section

404(b)(1), that consider, among other things, effects

on “economic values” and “mineral exploitation”).

Discharges of “fill material” governed by Section

404 must satisfy guidelines (known as Section

404(b)(1) guidelines) jointly developed by EPA and

the Corps. Section 404 does not require compliance

with effluent limitations promulgated by EPA; in

fact, Section 404(p) provides that “[c]lompliance with

a permit issued pursuant to [Section 404] .. . shall be

deemed compliance ... with [Section 301].” 33

U.S.C. § 1344(p). Section 404(c), moreover, provides

an additional protection for water quality by stating

that EPA may veto any permit the Corps proposes to

grant.

In contrast, discharges that fall under Section

402—also known as the National Pollution Discharge

Elimination System (“NPDES”) program—must meet

“all applicable requirements” under Sections 301 and

306 of the Clean Water Act. 33 U.S.C. § 1342(a).

Section 301 requires compliance with “[{e]ffluent limi-

tations” applicable to existing point sources, Jd.

§ 1311(e), while Section 306 applies more stringent

effluent limitations, known as “standards of per-

formance,” to new point sources, id. § 1316(e). See

App., infra, 13a n.8 (“A standard of performance is

one type of effluent limitation.”). These effluent limi-

tations are promulgated in the form of regulations

issued by EPA.

Because the term “fill material” is not defined by

the Clean Water Act, these agencies, acting on the

discretion delegated to them by Congress, issued a

joint regulation to delineate which discharges would

be regulated under Section 404 of the Clean Water

Act and which would fall under Section 402. In their

joint regulation, the agencies clearly defined “fill ma-

terial” as “material placed in waters of the United

States where the material has the effect of ...

[c]hanging the bottom elevation of any portion of a

water of the United States.” 33 C.F.R.

§ 323.2(e1\ii); 40 C.F.R. § 232.2. Additionally, the

agencies provided that the term “discharge of fill ma-

terial” “generally includes ... placement of overbur-

den, slurry, or tailings or similar mining-related ma-

terials.” 33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2.

The discharge at issue in this case is the place-

ment of mine tailings, transported in a siurry form,

into Lower Slate Lake in southeastern Alaska,

where, all agree, the tailings would “raise the bottom

elevation of the lake by 50 feet.” App., infra, 3a.

2. Nearly twenty years have passed since peti-

tioner Coeur Alaska first proposed revitalizing the

historic Kensington gold mine, located about 45

miles north of Juneau, Alaska, and initiated the

process of obtaining the requisite permits from the

U.S. Forest Service, EPA, the Corps, and other agen-

cies. C.A. E.R. 6.1 Over the next 15 years, the Ken-

sington project underwent extensive environmental

analysis, encompassing several different proposed

methods of operations. More than 900 studies, cost-

ing over $26 million, examined the project’s envi-

ronmental impact; numerous federal and state agen-

cies, including the Forest Service, the Corps, EPA,

the Alaska Department of Environmental Conserva-

tion (“DEC”), the Alaska Department of Natural Re-

sources, the National Marine Fisheries Service, and

the U.S. Fish and Wildlife Service, reviewed its pro-

posals and their expected effects. See, e.g., C.A. E.R.

397.

Coeur Alaska’s plan of operations provides for

milling ore on-site through a conventional “froth-

flotation” process that separates valuable ore from

the remaining minerals. Over the 10- to 15-year life

of the project, the mill processing operations will

yield a great deal of valuable ore, but also several

million tons of mine tailings. Only forty percent of

the tailings can be stored in the mine. App., infra,

4a. Because depositing the excess tailings on land in

this rainy, steep area of Alaska would require de-

structive conversion of more than 100 acres of wet-

lands to uplands (C.A. J.S.E.R. 401-02) and would

raise other environmental, energy, safety, economic,

and technical issues, Coeur Alaska sought a permit

to dispose of the remainder—up to 4.5 million tons—

by placing them into a carefully designed impound-

ment in Lower Slate Lake. The Corps carefully con-

1 “C.A. E.R.” refers to the Excerpts of Record filed in the court

of appeals. “C.A. J.S.E.R.” refers to the Joint Supplemental Ex-

cerpts of Record also filed in the court of appeals.

sidered these alternatives in its Record of Decision,

id. 555-71, and ultimately concluded that upland

disposal would be “more damaging” than deposition

in Lower Slate Lake because upland disposal would

cause a “permanent loss of wetland|{s]” that would

“outweigh[] the temporary losses to the lake.” C.A.

J.S.E.R. 872.2

Because Coeur’s largely solid mine tailings con-

stitute “fill material” (the tailings indisputably would

“[c]Jhang[e] the bottom elevation” of the lake, 33

C.F.R. § 323.2(e)1)(ii)), Coeur sought a discharge

permit from the Corps under Section 404. After re-

viewing the final proposal and the input of several

other agencies (including a Record of Decision by the

Forest Service), the Corps approved the proposal in

June 2005 and granted Coeur Alaska a Section 404

permit, which incorporated numerous protective re-

quirements under Section 404(b)(1) guidelines, to

discharge tailings into Lower Slate Lake. C.A. E.R..

522-33.

2 The tailings discharge is likely to result in the loss of some

small fish and other aquatic life in the lake. App., infra, 44a—

45a; see alsu C.A. J.S.E.R. 745, 755, 943-52, 959-62. This loss,

however, is expected to result from the physical impact of the

tailings, not from toxicity or poor water quality. App., infra,

43a (anticipating that aquatic life would be lost “primarily due

to being covered with the discharged materia!”). By the time

operations conclude, however, the settled tailings fill will have

reduced the lake's depth from 51 feet to approximately 33 feet,

and increased its surface area trom 23 acres to more than 60

acres, thereby substantially improving the available fish habi-

tat by providing more shallow, productive areas. C.A. E.R. 349.

Coeur’s plan of operation calls for it to reintroduce fish into the

lake at the close of operations.

Originating from the mine ore processing mill,

the tailings slurry unavoidably contains some proc-

ess water potentially subject to Section 301 effluent

limitations and Section 306 performance standards

under the Section 402 program. Recognizing, how-

ever, the clear fill effect of the tailings discharge into

the Lower Slate Lake impoundment, EPA concurred

that Section 404 was the applicable permitting re-

gime and that Section 301 and Section 306 limits did

not apply. After reviewing multiple analyses and

working with the Corps to resolve environmental

concerns, EPA affirmed the permit by declining to

exercise its ultimate veto authority under Section

402(c). EPA also issued a Section 402 permit, incor-

porating effluent limitations, to govern the subse-

quent discharge of water from the lake impoundment

into the small adjacent creek leading to more sub-

stantial downstream waters. C.A. E.R. 412-14, 534—

36, 542-43; C.A. J.S.E.R. 656, 662-664. Similarly,

the Alaska DEC certified that the proposal would

comply with Section 401 of the Clean Water Act and

with Alaska’s water-qudlity standards. C.A. J.S.E.R.

827-832.

3. Southeast Alaska Conservation Council, the

Sierra Club, and Lynn Canal Conservation (collec-

tively “SEACC”) sued the Corps of Engineers and the

Forest Service, arguing that the issuance of the per-

mit violated the Administrative Procedure Act, 5

U.S.C. § 706(2\Ka), and Sections 301l(a), 301(e), and

306(e) of the Clean Water Act. SEACC relied on an

EPA regulation that stated “there shall be no dis-

charge of process wastewaler to navigable waters

from mills that use the froth-flotativn process ... for

the beneficiation of copper, lead, zinc, gold, silver, or

molybdenum ores,” 40 C.F.R. § 440.104(b)(1), argu-

ing that this “no discharge” performance standard

(promulgated under Section 306) precluded the grant

of a Section 404 permit.

SEACC also challenged, in the alternative, the

agencies’ interpretation of their own joint regulation,

arguing that it was arbitrary and capricious to inter-

pret the term “discharge of fill &.aterial”—a term

which the joint regulation provides “includes ...

placement of ... tailings or similar mining-related

materials,” 33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2—to

include mine tailings. C.A. E.R. 15 J 72. SEACC did

not challenge the regulation itself or contest the Sec-

tion 404 permit’s compliance with the Section

404(b)(1) guidelines.

After Coeur Alaska, the State of Alaska, and

Goldbelt, Inc. intervened, the district court decided,

on summary judgment, that “|t]he Corps properly

issued the permit to Coeur Alaska, Inc. under § 404.”

App., infra, 55a. The district court recognized that

the Clean Water Act “divides the permitting process

into two segments” and that different standards ap-

plied under Sections 402-and 404, id. 51a; accord-

ingly, the district court concluded that “[i]f the per-

mit was properly issued under § 404, (Sections 301(e)

and 306(e)] are inapplicable,” id. 48a n.35. The dis-

trict court also rejected SEACC’s argument that

statements in the regulatory history compelled the

conclusion that the agencies’ interpretation of their

own rule—an interpretation that “facially falls

within the definition of ‘fill material’ contained in the

regulations,” id. 53a—was unreasonable.

4. SEACC filed an emergency motion for an in-

junction pending appeal. A two-judge panel of the

Ninth Circuit (Reinhardt, J., and Goodwin, J.)

granted the injunction without providing any reason-

ing for its order. App., infra, 57a—58a. After Coeur

Alaska asked the Ninth Circuit to vacate the injunc-

tion pending appeal in light of this Court’s decision

in Purcell v. Gonzalez, 127 S. Ct. 5, 6—7 (2006) (va-

cating an injunction where “(t]he Court of Appeals

offered no explanation or justification for its order”

and “fail{ed] to provide any factual findings or indeed

any reasoning of its own”), the merits panel denied

the motion to vacate, while providing little additional

explanation of the grounds for its decision. App.,

infra, 59a.

The Ninth Circuit eventually reversed the judg-

ment of the district court and invalidated Coeur’s

Section 404 discharge permit. The court of appeals

concluded that the Corps, by issuing a permit for a

discharge that “facially meets the Corps’ current

regulatory definition of ‘fill material,” App., infra,

10a, and “facially qualiflies) for permitting under

§ 404,” id. 15a, had nevertheless “violated the Clean

Water Act,” id. 34a.3

The panel purported to base its conclusion on

“the plain language of the Clean Water Act.” App.,

infra, 10a. The panel reasoned that Section 301(a)

“prohibits all discharges of any pollutant ... except

when the discharge complies with the requirements

of, inter alia, § 301, § 306, § 402, and § 404.” Td.

lla—12a. Relying on Section’s 301’s “use of ‘and’ as a

connector,” the panel concluded that “§ 301(a) pro-

hibits any discharge that does not comply with ...

3 The Ninth Circuit also invalidated a separate Section 404

permit issued to Goldbelt Alaska Native Corporation for rock

fill for a dock for the southern marine terminal for the Kensing-

ton mine project, solely because the dock was permitted for

mine operations. App., infra, 35a.

both § 301 and § 306, as well as § 402 and § 404.” Z/d.

15a. Thus, the panel concluded that “[iJf EPA has

adopted an effluent limitation or performance stan-

dard applicable to a relevant source of pollution,

§ 301 and § 306 preclude the use of a § 404 permit

scheme for that discharge.” Jd. 17a. “[T]he NPDES

program administered by EPA under § 402 is the

only appropriate permitting mechanism for [such]

discharges.” Jd. 18a.

The panel also reached the alternative holding

that, even though Coeur’s proposed discharge “fa-

cially meet[s] the definition of the term ‘fill mate-

rial,” App., infra, 22a, the “regulatory history” none-

theless demonstrated that the Corps had unreasona-

bly interpreted its own regulation as encompassing

Coeur’s discharge. Jd. 19a. The regulation’s plain

language notwithstanding, the panel concluded that

the regulation must be interpreted to include only

“those tailings and other mining-related materials

that are not subject to effluent limitations or stan-

dards of performance.” Id. 30a—3 1a.

5. The court of appeals denied rehearing, App.,

infra, 37a, but, on Coeur’s motion, stayed its man-

date pending review by this Court. Jd. 65a. After

granting the stay, however, the court of appeals is-

sued an order, on SEACC’s motion, to require Coeur

Alaska, the Corps, and the Forest Service to prepare

and approve a reclamation plan by April 1, 2008. Jd.

66a.

REASONS FOR GRANTING THE PETITION

The decision of the Ninth Circuit effectively re-

writes the structure of the Clean Water Act: It

changes the Section 404 permit program from a dis-

tinct permitting scheme that carves out an important

exception to Section 402, see 33 U.S.C. § 1342(a\(1)

(“Except as provided in section|] ... 1344”), into a

secondary permitting scheme that has only residual

application.

Left undisturbed, the consequences of this deci-

sion will be extensive. It has the immediate impact

of upsetting national uniformity in the administra-

tion of the Clean Water Act by reallocating (in the

Ninth Circuit) the division of labor and expertise fol-

lowed by EPA and the Corps for the past three dec-

ades. It imposes new requirements on mining in this

country—much of which occurs under the jurisdic-

tion of the Ninth Circuit—by threatening to restrict

the industry’s ability to conduct common types of ore

processing. And it correspondingly weakens the

economies of western States that rely significantly on

mining.

The decision below also warrants review because

it contravenes basic, firmly established principles of

statutory interpretation consistently recognized in

the decisions of this Court and of the courts of ap-

peals. Moreover, by refusing to defer to the Corps’

interpretation (in which EPA concurred) of the joint

EPA-Corps regulation defining “fill material”—even

as it acknowledged that the agencies’ interpretation

was consistent with the joint regulation’s plain

text—the Ninth Circuit set itself against a long line

of this Court’s decisions concerning the extraordi-

nary deference due to an agency's interpretation of

its own regulation. This Court should grant the peti-

tion to resolve the questions arising out of the Ninth

Circuit’s transformative construction of the Clean

Water Act and to restore to EPA and the Corps their

rightful roles in administering this important federal

statute.

I. THE BROAD RAMIFICATIONS OF THE NINTH

CIRCUIT’S DECISION MARK THIS CASE AS

ONE OF EXCEPTIONAL IMPORTANCE

The Ninth Circuit’s decision immediately im-

pacts the administration of the Clean Water Act. It

also has serious, direct economic implications for

both the mining industry and western States, such

as Alaska, Arizona, California, and Nevada, that

produce, as a group, nearly a third of the nation’s

nonfuel minerals and that rely significantly on min-

ing for their economic well-being. Moreover, should

this decisiun stand, environmental groups that dis-

agree with how Congress, EPA, and the Corps have

exercised their discretion by balancing environ-

mental interests with wise use of natural resources

are likely to use this decision as a springboard to

challenge hard rock and other mining throughout the

country.

A. The Ninth Circuit’s Decision

Radically Alters The Longstanding

Structure Of The Clean Water Act’s

Discharge Permit Programs

For over three decades, EPA and the Corps have

specialized in different, important aspects of manag-

ing our Nation’s waters. In the Clean Water Act,

Congress tasked EPA with protecting water quality

by restricting the addition of toxic chemicals into ju-

risdictional waters. 33 U.S.C. § 1251(a), (d). Efflu-

ent limitations promulgated by EPA typically ad-

dress issues such as toxicity by restricting concentra-

tions of contaminants and total suspended solids

(“TSS”) to small amounts that are measured in milli-

grams per liter. See, e.g., 40 C.F.R. § 440.12(a) (lim-

iting “(t]he concentration of pollutants discharged in

mine drainage from mines operated to obtain iron

ore” to a daily average of 1.0 mg/L of iron and of 20.0

mg/L of TSS); id. § 440.24 (for aluminum ore mining,

limiting daily averages to 0.5 mg/L of iron, 1.0 mg/L

of aluminum, and 20 mg/L of TSS). As EPA and the

Corps have explained, however, “[t]here are no statu-

tory or regulatory provisions under the section 402

program designed to address discharges that convert

waters of the U.S. to dry land.” Proposed Revisions

to Regulatory Definitions, 65 Fed. Reg. at 21,292.

Discharges of fill material, in contrast, are not

measured in milligrams per liter; instead, such dis-

charges may exceed a thousand tons of relatively

solid material per day. C.A. E.R. 295. The Corps has

long experience with special considerations arising

from filling jurisdictional waters. Under the Section

404(b)(1) program, the Corps evaluates whether to

permit a discharge of fill material into a body of wa-

ter through a “careful consideration of the effects of

the discharge on the aquatic ecosystem as a whole,

as well as evaluation of alternatives to the discharge

and measures to minimize and compensate for un-

avoidable adverse effects,” and it also considers “ef-

fects on human health, recreation, aesthetic, and

economic values.” Proposed Revisions to Regulatory

Definitions, 65 Fed. Reg. at 21,293.

In spite of Congress’s clear intent to create Sec-

tion 404 as a separate program to permit discharges

of fill material and to address the special considera-

tions such discharges present, future requests for

permission to discharge fill material will, at least in

the Ninth Circuit, have to comply with the require-

ments of Section 402 when EPA has promulgated ef-

fluent limitations. See App., infra, 15a (rejecting ar

gument that “§ 301 and § 306 do not apply to § 404

permits”). The Ninth Circuit's decision significantly

narrows the application of the Section 404 pro-

gram—previously an important permitting mecha-

nism that covered all discharges of fill material—to

only that subset of fill material discharges for which

EPA has not yet imposed an effluent limitation. No

longer, in the Ninth Circuit, does the Section 404

permit program operate as an exception to the Sec-

tion 402 program. There, the Section 404 program is

allowed only residual application.

Left undisturbed, this interpretation will require

EPA and the Corps to restructure how they adminis-

ter the Act and will narrow the role that Congress

set out for the Corps in the Act. For example, the

Corps’ ability to efficiently address common fill ac-

tivities by issuing a Nationwide Permit (“NWP”) for

such activities will be hampered whenever an efflu-

ent limitation might apply, as each instance of the

activity would then need to be evaluated under the

Section 402 program. At the same time, the Corps’

personnel will need to become familiar with all po-

tentially relevant effluent limitations in order to en-

sure that they do not issue Section 404 permits con-

flicting with those numerous now-applicable _re-

quirements; correspondingly, EPA personnel will

have to increase their oversight under Section 404(c)

to ensure compliance. The joint development of Sec-

tion 404(b)(1) guidelines to meet specific criteria set

out by Congress, see 33 U.S.C. §§ 1344(b)(1), 1343(c),

will be largely supplanted by the technology-based

criteria of Sections 301 and 306. Topping things off,

the agencies will need to decide whether to imple-

ment these changes nationwide or to develop a spe-

cial process within the Ninth Circuit.

B. The Ninth Circuit’s Decision Will

Severely Harm the Nation’s Mining

Industry

The Ninth Circuit’s decision severely restricts

the mining industry’s ability to use the Section 404

permit program within the Ninth Circuit. Indeed,

requiring discharges of mine tailings to comply with

effluent limitations significantly “impair[s] ... envi-

ronmentally sound mine operations of all kinds

throughout the country.” Nat’l Mining Ass’n C.A.

Amicus Br. 2 (hereinafter “NMA C.A. Br.”).

Section 404 permits are often necessary because

“[mJining activities must occur where the mineral

resources are found, and the terrain in those areas is

often such that the only feasible site for disposal is in

a water body.” NMA C.A. Br. 7. Mining inherently

produces excess materials, including rock, dirt, and

other tailings. These materials, particularly crushed

rock, swell in volume and so cannot all be disposed of

by backfilling. See Bragg v. W. Va. Coal Ass’n, 248

F.3d 275, 286 (4th Cir. 2001); C.A. J.S.E.R. 835-36.

At the same time, minerals are often located in

mountainous regions, such as in Alaska and “in the

Appalachian Mountains, in a broad area stretching

from Pennsylvania to Alabama|] and including Ken-

tucky, Virginial,]) and West Virginia,” where the

available “stable locations for the placement of excess

rock are mostly the bottom of hollows which, as a

simple matter of topology, form streams.” NMA C.A.

Br. 8.

Applying effluent limitations to mine tailings

will affect mumerous types of mines because “EPA

has promulgated effluent limitations for a vast num-

ber of substances commonly present in the excess

rock and dirt from mines.” Nat’l Mining Ass'n C.A.

Amicus Br. In Support of Pet. for Reh’g En Banc 17;

see generally 40 C.F.R. Pts. 434, 440 (listing effluent

limitations for numerous types of mining operations).

By eliminating the ability of mines to use a body of

water to settle out excess dirt and rock, mining op-

erations will have to seek out alternative means of

disposal that may, as the Corps found in rejecting

such alternatives for the Kensington mine, lead to a

greater loss of wetlands, to aesthetic harms (such as

the creation of unsightly tailings stacks), and other

environmental costs. See, eg., C.A. J.S.E.R. 872.

These additional costs inevitably will stifle both re-

source exploration and mine development.

As Coeur’s situation illustrates, if Section 402 ef-

fluent limitations replace Section 404 as the regime

governing discharges of mine tailings, mines previ-

ously eligible for Section 404 permits will be unable

to operate as planned, years of planning and signifi-

cant financial investments (here, approximately $200

million, C.A. J.S.E.R. 1064) made in reliance on dec-

ades of agency practice notwithstanding. For exam-

ple, NWP 44, issued to authorize “aggregate mining

and hard rock/mineral mining activities” where the

discharge would “not cause the loss of greater than

Y-acre of non-tidal waters of the United States,” Re-

issuance of Nationwide Permits, 72 Fed. Reg. 11,092,

11,139, 11,189 (Mar. 12, 2007), is now vulnerable to

challenge; despite the fact that it “authorizes mining

activities that [in the judgment of the agencies] have

no more than minimal individual and cumulative

adverse effects on the aquatic environment,” id. at

11,140, any “no discharge” effluent limitation would

prohibit even these “minimal” discharges.

The effects of Ninth Circuit’s decision will be felt

throughout the Nation. The mining industry is a

significant contributor to the national economy. “The

total value of U.S. raw nonfuel mineral production

alone was about $64.4 billion.” Mineral Commodity

Summaries 2007, at 7. Six metals, five of which are

governed by the same froth-flotation performance

standard relevant to this case (and the sixth of which

is governed by other effluent limits), contribute a

combined total of $22.7 billion dollars towards that

total. Id. at 52 (copper: $8.6 billion), 70 (gold: $5.1

billion), 116 (molybdenum: $3.2 billion), 82 (iron ore:

$2.8 billion), 186 (zinc: $2.3 billion), and 92 (lead:

$702 million).

Most of those metals are mined in the Ninth Cir-

cuit. See U.S. Dep’t of the Interior, U.S. Geological

Survey, Mineral Commodity Summaries 2007, at 13,

available at http://minerals.usgs.gov/minerals/pubs/

mces/2007/mcs2007.pdf. Gold is produced primarily

in Alaska and other western States; Alaska and Ne-

vada are the leading producers of silver; Arizona,

Nevada, and Montana are three of the top five cop-

per-producing States; Idaho, Arizona, Montana, and

Nevada are leading producers of molybdenum;

Alaska, Idaho, Montana, and Washington are four of

the top five lead-producing States; and three of the

four states that produce 99% of the Nation’s domestic

zine are Alaska, Montana, and Washington. IZd. at

70, 148, 52, 110, 92, & 186.

Effluent limitations currently in place apply to

each of these types of ores and to numerous types of

mining operations, including open-pit operations,

underground operations, placer depusits, froth-

flotation processes, dump processes, heap processes,

in-situ leach processes, vat-leach processes, and

gravity separation methods. See generally 40 C.F.R.

Part 440, Subparts J & M. Should the Ninth Cir-

cuit’s decision stand, discharges of mining-related

materials that previously qualified as fill material in

the Ninth Circuit must now comply with these regu-

lations, including zero-discharge standards of per-

formance, formerly applicable only under Section

402.

C. The Ninth Circuit’s Decision

Threatens To Disrupt The

Economies Of Alaska And Other

Western States

“Mining is a critical part of [Alaska’s] economy,”

Alaska’s C.A. Br. Re Reh’g En Banc 15; for example,

it contributed $1.8 billion dollars to Alaska’s econ-

omy in 2005. C.A. J.S.E.R. 644. As explained above,

mining inherently produces excess rock, dirt, and

other tailings that swell in volume and so cannot all

be disposed of by backfilling. Approximately half of

Alaska’s land mass consists of wetlands. Taken to-

gether, these facts demonstrate the importance of

fill-material permits to the State of Alaska and to the

citizens of Alaska who rely on mining for their liveli-

hood.

If discharges of these excess mining materials

into wetlands in Alaska must comply with a zero-

discharge Section 306 standard of performance, then

other important mining projects in Alaska, including

pending and future projects for which “(t]he agencies’

[Section 404] permitting plan is expected to be a

critical component,” Alaska’s C.A. Pet. Reh’g En

Banc 16, will have to cease or delay operations (or

pay penalties, 33 U.S.C. §§ 1319, 1365) until such

time as their operations can be brought into compli-

ance with the zero-discharge standard of perform-

ance—which is to say, never. In many locations

placement of tailings on dry land is not practicable,

and compliance with the Ninth Circuit’s construction

of the Act otherwise is not possible. The decision be-

low thus threatens serious harm to the Alaskan

economy.

Alaska, moreover, is not alone. Other States

within the jurisdiction of the Ninth Circuit also rely

on mining (and its creation of jobs and income for

their residents) as a significant part of their econo-

mies. Indeed, the top three States in the Nation in

terms of nonfuel mineral production are Arizona

($4.35 billion in 2005), California ($4.25 billion in

2005), and Nevada ($3.88 billion in 2005), and the

nine states combine to contribute 31% of total U.S.

nonfuel mineral production. U.S. Dep’t of the Inte-

rior, U.S. Geological Survey., 2005 Minerals Year-

book, Statistical Summary at 2.5-2.6 (Aug. 2007),

available at http://minerals.usgs.gov/minerals/pubs/

commodity/statistical_summary/myb1-2005-stati.pdf.

Mining in these States often takes place in moun-

tainous areas where it is often impracticable to dis-

pose of mine tailings except by placing them as fill

material in drainage channels, wetlands, or other

waters. The Section 404 permit program thus is im-

portant in these States just as it is in Alaska. In the

absence of a permit program that permits deposition

of tailings in jurisdictional waters, these mines, too,

will have to develop new plans of operations—plans

that promise to be more expensive and that may well

be more environmentally damaging (as the Corps

found to be the case for the alternatives to issuing a

Section 404 permit for the tailings placement at is-

sue here).

II. THE NINTH CIRCUIT’S CONSTRUCTION OF

THE CLEAN WATER ACT CONTRAVENES THE

AcT’s TEXT AND STRUCTURE, DECISIONS OF

THIS COURT, AND DECISIONS OF OTHER

COURTS OF APPEALS

In restructuring EPA’s and the Corps’ permitting

authority under the Act to invalidate Coeur’s Section

404 permit, the Ninth Circuit ignored well-

established rules of interpretation, basic principles of

logic, the structure of the Clean Water Act, and even

a provision expressly exempting Section 404 permits

from effluent limitations. Unsurprisingly, the result

achieved cannot be reconciled with this Court’s deci-

sions, including Rapanos v. United States, 126 S. Ct.

2208 (2006), and S.D. Warren Co. v. Me. Bd. of Envitl.

Prot., 126 S. Ct. 1843 (2006), or with the decisions of

other courts of appeals.

1. The Ninth Circuit grounded its novel recon-

struction of the Act’s permitting programs—“[i]f EPA

has adopted an effluent limitation or performance

standard applicable to a relevant source of pollution,

§ 301 and § 306 preclude the use of .a § 404 permit

scheme for that discharge”—on the use, in Section

301(a), of the conjunction “and.” App., infra, 12a,

15a; see 33 U.S.C. §1311(a) (“Except as in compli-

ance with this section and sections [302], [306], [307],

(318], [402] and [404] of this title, the discharge of

any pollutant by any person shall be unlawful.” (em-

phasis added)). “The use of ‘and’ as a connector, in-

stead of ‘or,” the panel reasoned, meant that “any

discharge” had to comply with “both § 301 and § 306,

as well as § 402 and § 404,” and “indicates that Con-

gress intended for [Section 301) effluent limitations

and |Section 306) standards of performance to apply

to all applicable discharges, even those that facially

qualify for permitting under § 404.” App., infra, lida.

But context clearly demonstrates that the conjunc-

tion “and” cannot be read to impose the statutory ob-

ligations that the Ninth Circuit ascribed to it.

As this Court explained long ago, “courts are of-

ten compelled to construe ‘or’ as meaning ‘and,’ and

again ‘and’ as meaning ‘or.’ United States v. Fisk, 70

U.S. 445, 447 (1866); see also Slodov v. United States,

436 U.S. 238, 246-48 (1978) (interpreting “and” as

“or” to avoid result “obviously at odds with the stat-

ute’s purpose”). When the word “and” “conjoins a list

of mutually exclusive alternatives,” “context requires

the term to be construed disjunctively.” Officemax,

Inc. v. United States, 428 F.3d 583, 591 (6th Cir.

2005) (Sutton, J.) (emphasis added).

This, clearly, is such a case. Section 391 does

not, as the panel states, require one to obtain per-

mits under both Section 402 and 404 for the same

discharge. This Court recently recognized that Sec-

tion 402 and Section 404 are mutually exclusive

permitting schemes. See Rapanos, 126 S. Ct. at 2228

(plurality opinion) (contrasting “pollutants normally

covered by the permitting requirement of [Section

402(a)]” » th “dredged or fill material” and explain-

ing that “(t}he Act recognizes this distinction by pro-

viding a separate permitting program for such dis-

charges in [Section 404(a)]”); id. at 2237 (Kennedy,

J., concurring) (“Apart from dredged or fill material,

pollutant discharges require a permit from [EPA\,

which also oversees the Corps’ ... permitting deci-

sions.”) (emphasis added). Numerous courts of ap-

peals have similarly acknowledged this mutual ex-

clusivity. See, e.g., Greenfield Mills, Inc. v. Macklin,

361 F.3d 934, 946 (7th Cir. 2004) (“[A] defendant who

wishes to discharge a pollutant must first obtain a

permit either under [Section 404] fo: the discharge of

dredged or fill material or under [Section 402] for

other pollutants.”) (emphases added).4 Both agen-

cies charged with administering the two permitting

schemes agree that Section 301 only requires com-

pliance with “one of the two permitting programs.”

Final Revisions to the Clean Water Act Regulatory

Definitions of “Fill Material” and “Discharge of Fill

Material,” 67 Fed. Reg. 31,129, 31,130 (May 9, 2002).

Even SEACC acknowledged that “(t]he Act provides

that a single discharge will be governed by either

section 402 or section 404, but not both.” Appellants’

C.A. Br. 24.

2. Nor is it true, as the panel stated, that the use

of “and” in Section 301 compels the conclusion that

“(Section 301] effluent limitations and [Section 306]

standards of performance [| apply to... discharges”

that “qualify for permitting under § 404.” The text of

the Clean Water Act, in addition to its two-part

structure, in fact compels the opposite conclusion.

Whereas Section 402(a) explicitly requires that per-

mitted discharges comply with both Section 301 ef-

fluent limitations and Section 306 performance stan-

4 See also Kentuckians, 317 F.3d at 447 (4th Cir. 2003) (rec-

ognizing that “cross-references, exclusions, and vetoes” inter-

locking Sections 404 and 402 “reinforcled) the fill-effluent dis-

tinction that has been followed by the agencies”); Friends of

Crystal River v. U.S. E.P.A., 35 F.3d 1073, 1075 (6th Cir. 1994)

(“The Act establishes two discrete permitting systems by which

individuals might obtain permits from the appropriate federal

agency.”); State of Minn. by Spannaus v. Hoffman, 542 F.2d

1198, 1208 (8th Cir. 1976) (“Unlike all other pollutants, dredged

spoil [and fill material) [are] not regulated under the NPDES,

since [§] 402(a)1) establishing the NPDES begins, as we have

seen, with the words, ‘(e)xcept as provided in sections 318 and

404.’”) (citation and footnote omitted).

dards, Section 404 does not, instead expressly requir-

ing compliance with different water-quality stan-

dards (and additional requirements) developed under

Section 404(b)(1). Compare 33 U.S.C. § 1342(a), with

id. § 1344. The panel dismissed this fact—that

“$ 402 explicitly requires compliance with [Sections

301 and 306] whereas § 404 does not”—as a mere

“negative inference” of an “implied exception.” App.,

infra, 15a.

But the exception is hardly inferential: Section

404(p), apparently overlooked by the panel, explicitly

provides that “|clompliance with a permit issued

pursuant to this section ... shall be deemed compli-

ance ... with [Section 301].” 33 U.S.C. § 1344(p).

Compare id., with App., infra, 18a (“§ 404 does not

contain an explicit exception to effluent limita-

tions”).> But even setting aside Section 404(p)’s af-

firmative, express exception for effluent limitations,

this Court recently reiterated, in another Clean Wa-

ter Act case, that “if ‘Congress includes particular

language in one section of a statute”—as Congress

did in Section 402, stating that Sections 301 and 306

apply under that section—“but omits [that language]

in another section of the same Act””—as Congress did

in Section 404—“‘it is generally presumed that Con-

° SEACC has suggested that Section 404(p) does not apply

here because it refers only to Section 301, and not to Section

306. Given, however, that “[a] standard of performance is one

type of effluent limitation” and that all effluent limitations

“have the same practical effect” of restricting the discharge of

pollutants, App., infra, 13a n.8, it would be quite strange if

compliance with Section 404 did not also similarly constitute

compliance with the particular type of effluent limitation (ie.,

performance standards) mandated by Section 306.

gress acts intentionally and purposefully in the dis-

parate inclusion or exclusion.” S.D. Warren Co., 126

S. Ct. at 1852 (quoting Bates v. United States, 522

U.S. 23, 29-30 (1997)). Congress clearly expressed

its intent to impose different requirements under the

different programs—compliance under Section 402

with effluent limitations, including performance

standards, and compliance under Section 404 with

Section 404(b)(1) guidelines—and even expressly ex-

empted discharges of fill material from compliance

with effluent limitations. Yet the Ninth Circuit con-

cluded that Congress intended that Section 404 per-

mits comply with effluent limitations.

3. Attempting to bolster its conclusion that Sec-

tion 306(e) applies under Section 404, the Ninth Cir-

cuit also relies on the fact that Congress phrased

Sections 301(e) and 306(e) broadly to establish (in

the panel’s words) “blanket prohibitions” that apply

to “all” and “any” discharges. App., infra, 15a—16a.

This conclusion, however, is at odds with a number

of more specific requirements set out in the Act:

first, the requirement that permits issued under Sec-

tion 404 comply with Section 404(b)(1) guidelines, 33

U.S.C. § 1344(b)(1); second, Section 404’s exemption

from compliance with Section 301, id. § 1344(p); and

third, Congress’s conspicuous failure to specify that

Sections 301 and 306 apply under Section 404, cf.

§ 1342(a).

In the face of these more specific provisions, the

Ninth Circuit’s reliance on Section 301’s and Section

306’s more general language violates the well-settled

canon of statutory interpretation that “specific statu-

tory language should control more general language

when there is a conflict between the two.” Nat'l Ca-

ble & Telecomms. Ass’n v. Gulf Power Co., 534 U.S.

327, 335 (2002); see also Morales v. Trans World Air-

lines, Inc., 504 U.S. 374, 384 (1992) (“it is a common-

place of statutory construction that the specific gov-

erns the general”). This is particularly disturbing in

light of the Ninth Circuit’s acknowledgement of this

canon, see App., infra, 32a, and its recognition of Sec-

tion 404 as “a limited permit program that applies

only to dredged or fill material,” id. 15a. Thus, to the

extent that the general prohibitions on discharges in

Sections 301 and 306 appear to conflict with Section

404’s specific exception permitting discharges of fill

material as long as they comply with Section

404(b)(1) guidelines, Section 404 ought to control.

See HCSC-Laundry v. United States, 450 U.S. 1, 6

(1981) (“[I]t is a basic principle of statutory construc-

tion that a specific statute . . . controls over a general

provision ..., particularly when the two are interre-

lated and closely positioned, both in fact parts of” the

same statutory scheme.); Townsend v. Little, 109

U.S. 504, 512 (1883) (explaining the “well-settled

rule” that “general and specific provisions, in appar-

ent contradiction ..., may subsist together, the spe-

cific qualifying and supplying exceptions to the gen-

eral”).

4. The Ninth Circuit's flawed construction of the

Clean Water Act is @ rect result of its cart-before-

the-horse approach to statutory interpretation: The

Ninth Circuit started with the proposition that the

two regulations potentially implicated by the dis-

charge—that is, the froth-flotation effluent limitation

and the regulation defining “fill material”—conflicted

intractably, and then interpreted the Act in light of

those regulations. See, e.g., App., infra, 9a-10a

(“Two different regulations contain plain language

interpreting the Clean Water Act that would appear

to govern ..., but they result in different interpreta-

tions of the Act.”). Under this approach, the exis-

tence of an EPA regulation setting out effluent limi-

tations on rock, sand, and dirt (quintessential exam-

ples of fill material) could nullify a statutory provi-

sion (Section 404) and could negate Congress’s clear

intent to create a Corps-administered program for

permitting discharges of fill material. As the Clean

Water Act itself makes clear, however, one must first

determine which permitting scheme applies before

one can know whether effluent limitations would ap-

ply to the discharge. And, according to the two agen-

cies charged with administering the Act, the line of

demarcation between the two permit programs is the

definition of “fill material,” which is supplied by a

joint EPA-Corps regulation not challenged in this

litigation.

Ill. THE NINTH CIRCUIT’S REFUSAL TO DEFER

To CORPS’ INTERPRETATION OF ITS OWN

REGULATION CONFLICTS WITH THIS

COURT’S PRrCEDENTS

As an alternative holding, the Ninth Circuit pos-

ited that the Corps (and EPA) unreasonably :nter-

preted the joint EPA-Corps fill rule—which provides

that a “discharge of fill material” “includes

placement of... slurry, or tailings or similar mining-

related materials.” 33 C.F.R. § 323.2(f/—to include

Coeur’s proposed mine tailings. See App., infra, 19a—

3la. The Ninth Circuit refused to defer to the Corps’

interpretation of its regulation defining fill material,

concluding that statements in the “regulatory his-

tory’—not the regulation itself—were “dispositive

and compel the conclusion that the Corps over-

stepped its authority in issuing a permit to Coeur

Alaska under § 404.” Id. 3la. But see Final Revi-

sions to Regulatory Definitions, 67 Fed. Reg. at

31,135 (“mining-related material that has the effect.

of fill when discharged will be regulated as ‘fill mate-

rial”); see also id. (“EPA has never sought to regulate

fill material under effluent guidelines”). The Ninth

Circuit’s approach cannot be reconciled with this

Court’s decisions.

1. It is axiomatic that a court must defer to an

agency’s construction of its own regulation unless

that interpretation is “plainly erroneous or inconsis-

tent with the regulation.” Auer v. Robbins, 519 U.S.

452, 461 (1997). The joint EPA-Corps regulation de-

fining “discharge of fill material” explicitly states

that the term “includes, without limitation,

placement of overburden, slurry, or tailings or simi-

lar mining-related materials.” 33 C.F.R. § 323.2(f);

40 C.F.R. § 232.2.

It is, of course, difficult to envision how an

agency's interpretation can “facially meet)” a regula-

tion, App., infra, 10a, yet nevertheless be “inconsis-

tent with the regulation.” Auer, 519 U.S. at 461.

The Ninth Circuit’s position seems to be that, even

where agency’s interpretation is consistent with the

text of its regulation, that interpretation may never-

theless be rejected as unreasonable if an examina-

tion of regulatory history demonstrates that the text

does not accurately reflect the agency’s regulatory

intent. See App., infra, 19a-20a. That is clearly

wrong. In United States v. Locke, 471 U.S. 84 (1985),

this Court explained that where statutory language

“is plain and the agency’s construction completely

consistent with that language, the agency’s construc-

tion simply cannot be found ‘sufficiently unreason-

able’ as to be unacceptable.” Jd. at 96. If courts may

not find an agency's interpretation of a statute un-

reasonable when the interpretation is consistent

with the statute’s text, it is even more apparent that

they may not, under an even more deferential test,

find an agency’s interpretation of its own regulation

unreasonable when that interpretation is completely

consistent with the regulation’s plain text.

The court of appeals’ refusal to defer to the agen-

cies’ interpretation of their own joint regulation

wrested from the agencies the authority Congress

delegated to them to determine where to draw the

line separating discharges of fill material from dis-

charges of ali other pollutants. This contravenes this

Court’s guidance that Congress expects agencies to

make “substantive choices” when it “leaves the inter-

section of competing objectives ... imprecisely

marked.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S.

73, 85 (2002); see also Nat'l Ass’n of Home Builders v.

Defenders of Wildlife, 127 S. Ct. 2518, 2534 (2007)

(agency interpretations that resolve “fundamental

ambiguit[ies]” resulting from “differing mandates” in

statutory texts by developing a “reasonable interpre-

tation’ of the statutory scheme” are “entitled to def-

erence”).

As the Fourth Circuit has explained, Sections

402 and 404 “might overlap on certain types of ‘fill

material’ that adversely affect the quality of water,”

but any such overlap can be resolved by regulations

defining “fill material.” Kentuckians, 317 F.3d at

447-48. In other words, the Fourth Circuit recog-

nized that a regulation defining “fill material” does.

not conflict with a regulation establishing an effluent

limitation, as the Ninth Circuit would have it. Quite

the opposite, it resolves any “overlap” between Sec-

tions 404 and 402 by determining the appropriate

permitting regime for a particular discharge. Thus,

the plain language in the 2002 regulation—which

defined “discharge of fill material” to include “slurry,

or tailings or similar mining-related materials,” 40

C.F.R. § 232.2—is entirely consistent with the agen-

cies’ settled understanding that tailings, including

tailings left over after time-honored practices such as

the froth-flotation process regulated under an efflu-

ent limitation since 1982, are governed by Section

404, not Section 402.

There is no reason to think the Ninth Circuit is

better equipped than Congress, EPA, or the Corps—

let alone all three—to decide how to balance inter-

ests in protecting the environment against interests

in “reasonable development,” “infrastructure devel-

opment,” and “growth of the economy.” U.S. Army

Corps of Eng’rs, Regulatory Program Mission State-

ment, http://www.usace.army.mil/cw/cecwo/reg/ mis-

sion. htm (last visited Jan. 7, 2008).

2. As the Ninth Circuit acknowledged, SEACC

did not challenge the validity of the joint EPA-Corps

regulation defining “fill material.” App., infra, 25a—

26a n.12. Accordingly, the court of appeals stated

that it did “not reach the issue of the validity of these

regulations.” Jd. In addition to this disclaimer, the

Ninth Circuit affirmatively recognized that “(t]he

Clean Water Act does not define the term ‘fill mate-

rial” and that, instead, “Congress implicitly left that

term to the Corps and EPA to define.” Jd. 22a; see

also Kentuckians, 317 F.3d at 444 (“[W]e conclude

that Congress has not clearly spoken on the meaning

of ‘fill material{.]”). This admission demonstrates

that the Ninth Circuit had no authority under Chev-

ron step one to invalidate the regulation. Under step

one of Chevron, a court may strike down an agency

interpretation of a statute only when “Congress has

spoken directly to the precise question at issue” and

the agency interpretation deties “the unambiguously

expressed intent of Congress.” App., infra, lla

(quoting Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-43 (1984)).

Under these circumstances (where SEACC had

not raised the issue and where the Ninth Circuit ac-

knowledged that Congress did not unambiguously

express its intent, but rather “left that term to the

Corps and EPA to define,” App., infra, 22a), the

Ninth Circuit, by its own admission, had no author-

ity to invalidate the agencies’ reasonable joint inter-

pretation of ambiguous statutory language. Thus,

the decision’s references to the Act’s “plain” and “un-

ambiguous” language, see App., infra, 10a, 15a, 19a,

35a. can only be understood either as relating to

statutory language other than “discharge of fill ma-

terial” or as a backdoor attempt to challenge the va-

lidity of the joint regulation itself—a regulation

SEACC has not challenged and would have had no

basis to challenge under Chevron.

CONCLUSION

Further percolation in the courts of appeals is

unnecessary—the issue raised by this petition is al-

ready crystallized. Moreover, additional decisions by

other courts of appeals are unlikely to lead the Ninth

Circuit to change its view, given that it has already

denied rehearing en banc. In light of the exceptional

national importance of this case and for all of the

foregoing reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted.

ROBERT A. MAYNARD THEODORE B. OLSON

PERKINS COIE LLP Counsel of Record

251 East Front St. Ste. 400 MATTHEW D. MCGILL

Boise, ID 83702 AARON D. LINDSTROM

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, DC 20036

(202) 955-8500

Counsel for Petitioner

January 28, 2008

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT.

No. 06-35679.

SOU'THEAST ALASKA CONSERVATION

COUNCIL; Sierra Club;

Lynn Canal Conservation,

Plaintiffs-Appellants,

UNITED STATES ARMY CORPS OF

ENGINEERS; Timothy J. Gallagher, Colonel, in his

official capacity as District

Engineer; Larry L. Reeder, in his official

capacity as Chief of the Regulatory Branch; Dominic

1zzo, in is official capacity as Principal Deputy Assis-

tant Secretary of the Army (Civil Works); United

States Forest Service,

Defendants-Appellees,

Coeur Alaska, Inc.; Goldbelt, Inc.;

State of Alaska,

Defendants-Intervenors-Appellees.

Argued and Submitted Dec. 4, 2006.

Filed May 22, 2007.

* * * +

Thomas S. Waldo and Demian A. Schane, Earthjus-

tice, Juneau, AK, for plaintiffs-appellants. John T.

Stahr and Mark A. Nitcezynski, U.S. Department of

Justice, Environment & Natural Resources Division,

Washington, D.C., for defendants-appellees.

David J. Burman and Robert A. Maynard, Perkins

Coie LLP, Boise, Idaho; John C. Berghoff, Jr., and

Michael P. Rissman, Mayer Brown Rowe & Maw

LLP, Chicago, IL; Cameron M. Leonard, State of

Alaska, Department of Law, Fairbanks, AK; and

David C. Crosby, David C. Crosby PC, Juneau, AK,

for defendants-intervenors-appellees.

Melissa Powers and Allison LaPlante, Pacific Envi-

ronmental Advocacy Center, Portland, OR; Joseph

M. Lovett, Appalachian Center for the Economy &

the Environment, Lewisburg, WV; and Peter Van

Tuyn, Bessenyey & Van Tuyn, Anchorage, AK, for

amici curiae in support of plaintiffs-appellants.

John W. Hartle, City and Borough of Juneau, Jun-

eau, AK; Amy Gurton Mead, Robertson, Monagle &

Eastaugh, Juneau, Alaska; Steven J. Lechner, Moun-

tain States Legal Foundation, Lakewood, CO;

Michael R. Shebelskie, Hunton & Williams LLP,

Richmond, Virginia; Harold P. Quinn, Jr., National

Mining Association, Washington, D.C.; and Stephen

F. Sorensen, Simpson, Tillinghast & Sorensen PC,

Juneau, AK, for amici curiae in support of defen-

dants-appellees.

Appeal from the United States District Court for the

District of Alaska; James K. Singleton, Senior Dis-

trict Judge, Presiding. D.C. No. CV-05-00012-J-JKS.

Before PROCTER HUG, JR, A. WALLACE

TASHIMA, and SUSAN P. GRABER, Circuit Judges.

HUG, Circuit Judge.

This case presents the question of whether the issu-

ance of a permit by the U.S. Army Corps of

Engineers violates the Clean Water Act.! The permit

issued in this case authorizes Coeur Alaska, Inc., to

discharge process wastewater containing tailings

from its gold mine into a lake that is a navigable wa-

ter of the United States. Coeur Alaska proposes to

discharge daily 210,000 gallons of process wastewa-

ter containing 1,440 tons of tailings from its mine

into Lower Slate Lake. The tailings in the discharge

will raise the bottom elevation of the lake by 50 feet.

A 90-foot high, 500-foot long dam will be built to con-

tain the discharge and the area of the lake will be

increased about three-fold. The U.S. Army Corps of

Engineers contends that the permit was properly

granted under § 404 of the Clean Water Act, which

relates to the disposal of “fill material,” and that it is

not subject to the effluent restrictions of § 301 or

§ 306 of the Clean Water Act. The plaintiffs contend

that this mine disposal discharge must comply with

the effluent restrictions of § 301 and § 306, and that

any permit allowing discharge must be issued by the

Environmental Protection Agency. The district court

held that the issuance of the permit was proper. We

reverse and remand with instructions to vacate the

permit.2

1 33 U.S.C. §§ 1251-1387.

2 We also vacate the permit granted to Goldbelt, Inc., to

construct the Cascade Point Marine Facility in Berners

Bay and the U.S. Forest Service’s Record of Decision ap-

proving the general plan because they are dependent on

[Footnote continued on next page}

Coeur Alaska intends to open the Kensington Gold

Mine on the site of a prior mine in southeast Alaska

that operated from 1897 to 1928. Although the min-

ing operation will include several above-ground

facilities, the mine itself will be entirely subterra-

nean.

To process the gold ore retrieved from the mine,

Coeur Alaska will construct a froth-flotation mill fa-

cility. In the froth-flotation process, ore-bearing rock

from the mine will be transported to a mill and

moved through a series of mechanical crushing and

grinding procedures. After the rock is finely ground,

it will be fed into a tank where water and chemicals

referred to as conditioners, frothers, surfactants, and

scale inhibitors will be added. Air is then pumped

into the tank, producing bubbles that attach to the

gold deposits. The bubbles rise, bringing the gold

with them and forming a froth that is skimmed off

the top.

After the gold has bubbled up to the surface and the

froth is removed, the tailings-residual ground rock-

remain as a waste product. Of the 2,000 tons of ore

that the Kensington mine will process each day, only

about 100 tons (5 percent) contain economicaily vi-

able gold minerals. About 40 percent of the tailinys

will be used as backfill in the mine. %'he remaining

volume is, according to Coeur Alaska, too large to

transport off site and presents a waste disposal prob-

[Footnote continued from previous page]

the validity of the permit issued by the U.S. Army Corps

of Engineers to Coeur Alaska.

lem. This dispute arises from Coeur Alaska’s current

plan for addressing that disposal problem.

Coeur Alaska’s earlier plan of operations for the

Kensington Gold Mine called for the construction of a

“dry tailings facility,” in which the mine would dis-

pose of waste from its froth-flotation mill on dry

“uplands.” This disposal process involved the con-

struction of berm and drainage structures around

the designated disposal area, dewatering the process

wastewater, and placement of the tailings within an

enclosure. After the closure of the mine in about 10

to 15 years, Coeur Alaska would have been required

to cover the disposal area with native material to

support revegetation. The U.S. Forest Service (“For-

est Service”) approved the plan of operations for the

dry tailings facility, and the U.S. Army Corps of En-

gineers (“Corps”) and the Environmental Protection

Agency (“EPA”) issued permits to the company au-

thorizing the construction of this facility in 1997. The

price of gold subsequently dropped to $400 an ounce,

however, prompting Coeur Alaska to investigate less

expensive ways to develop the mine project.3 In 2004,

Coeur Alaska proposed a new plan of operations with

significant amendments. The most important change

for our purposes was that, instead of the dry tailings

facility, Coeur Alaska proposed to discharge its proc-

ess wastewater containing the tailings directly into

nearby Lower Slate Lake.

3 The price of gold has since been rising steadily and is

currently over $680 an ounce, thus the original motiva-

tion for the change in waste disposal from the mine no

longer exists.

Lower Slate Lake, a 23-acre subalpine lake in the

Tongass National Forest, is one of several small

lakes in the vicinity of the mine. The lake is a fish

and wildlife habitat and supports about 1,000 Dolly

Varden Char (a freshwater fish) and other native

fish and aquatic life. The lake is also a tributary of

Slate Creek and drains into Berners Bay.

Coeur Alaska’s current disposal plan involves piping

approximately 210,000 gallons of process wastewa-

ter, including 1,440 tons of tailings, each day to the

bottom of Lower Slate Lake in the form of a slurry.

This slurry would consist of about 45 percent water

and 55 percent tailings. A polymer and flocculent

would be added to the slurry to enhance settling of

the tailings. Over the 10- to 15-year life of the mine,

approximately 4.5 million tons of tailings would be

deposited into the lake. The discharge ultimately

would raise the bottom of the lake 50 feet, to its cur-

rent high water mark, and nearly triple its surface

area. Coeur Alaska and the Corps admit that the

discharge and settling of the tailings into the lake

would kill all the fish and nearly all the aquatic life.

The effluent would have a pH factor of over 10,

which is considerably higher than the lake’s current

pH factor, and would contain concentrations of sev-

eral potentially hazardous materials, including

aluminum, copper, lead, and mercury. The toxicity of

the discharge may have lasting effects on the lake

and may negatively affect its ability to sustain

aquatic life in the future. The Corps intends that

aquatic life would be reintroduced into the lake, but

the extent to which aquatic life could be restored

eventually is unclear.

To prepare the lake for use as a wastewater disposal

facility and the consequent expansion of the lake’s

surface, Coeur Alaska would construct a 90-foot high,

500-foot long dam at the lake’s outfall point. Coeur

Alaska’s long-term plan to use the lake as a disposal

facility also includes the construction of a diversion

ditch. Constructing the ditch would require cutting

trees on 7.6 acres of forested land, building a 30-foot

wide road, excavating and digging a 3,000-foot ditch,

and filling in 4.3 acres of nearby wetlands with

28,800 cubic yards of fill material. In addition, dur-

ing the 10- to 15-year period of the lake’s use as a

disposal facility, Slate Creek would be diverted

around the lake through a pipeline.

The Forest Service approved Coeur Alaska’s current

plan of operations at the Kensington Gold Mine, in-

cluding the revised disposal plan, in a Record of

Decision (“ROD”) on December 9, 2004. Because the

proposed discharge would have the effect of raising

the bottom elevation of Lower Slate Lake, the Corps

reasoned that the permit program under § 404 of the

Clean Water Act, rather than § 402, applies to Coeur

Alaska’s planned discharges. Accordingly, the Corps

issued a permit for the discharge into Lower Slate

Lake on June 17, 2005.

Under the permit, when operations at the mine even-

tually cease, the Corps would require Coeur Alaska

to mitigate the environmental impacts at the lake by

installing a cap of native material over the tailings at

the bottom of the lake. The Corps would also require

Coeur Alaska to reintroduce native fish species into

the lake and monitor the health of the ecosystem.

If.

Southeast Alaska Conservation Council, the Sierra

Club, and Lynn Canal Conservation (collectively

“SEACC”) filed this lawsuit challenging the Corps’

permit and the Forest Service’s ROD approving the

general plan on the grounds that they violate

§ 301(a), § 301(e), and § 306(e) of the Clean Water

Act. The crux of SEACC’s argument is that the Corps

violated the Clean Water Act by issuing a permit for

the discharge of process wastewater from a froth-

flotation mill into a body of water protected by the

Clean Water Act.

After the complaint was filed, the Corps decided to

suspend the permit and reconsidered its decision to

issue the permit. For that purpose, the Corps moved

for voluntary remand of the case before briefing on

the merits began, which the district court granted on

November 14, 2005. The Corps reinstated the origi-

nal permit, without changes, on March 29, 2006. At

the same time, the Corps issued a revised ROD in

which it explained its rationale. SEACC then filed an

amended complaint, in which it reiterated its allega-

tions and reasserted its causes of action. Coeur

Alaska, Goldbelt, Inc., and the State of Alaska inter-

vened as defendants. The parties filed cross-motions

for summary judgment.

The district court granted summary judgment to the

defendants on August 4, 2006. In its opinion, the dis-

trict court focused on whether the Corps misapplied

§ 404 of the Clean Water Act. The district court

noted that SEACC challenged the granting of the

permit on the grounds that it did not comply with

§ 301(e) and § 306(e). It held that if the permit was

issued under § 404 for the disposal of “fill material,”

then § 301(e) and § 306(e) were inapplicable.

SEACC appealed on August 7, 2006, three days after

the district court’s decision, and this court, on

SEACC’s motion, granted an injunction pending ap-

peal on August 24, 2006, which prohibited Coeur

Alaska, the Corps, and the Forest Service from pro-

ceeding with further construction activities related to

preparing the lake for use as a waste disposal site.

See SEACC v. U.S. Army Corps of Eng’rs, 472 F.3d

1097, 1099 (9th Cir. 2006). Since granting the injunc-

tion, we have addressed two emergency motions

related to stabilizing a temporary coffer dam that

was hastily constructed by Coeur Alaska prior to the

injunction. Id.; SEACC v. U.S. Army Corps of Eng’rs,

479 F.3d 1148, 1151—52 (9th Cir. 2007).

III.

We review the district court’s grant of summary

judgment de novo and must determine whether the

district court correctly applied the relevant substan-

tive law. Turtle Island Restoration Network v. Nat'l

Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir.

2003); United States v. City of Tacoma, 332 F.3d 574,

578 (9th Cir. 2003). “De novo review of a district

court judgment concerning a decision of an adminis-

trative agency means the court views the case from

the same position as the district court.” Turtle Is-

land, 340 F.3d at 973 (citing Nev. Land Action Ass’n

v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993)).

Judicial review of administrative decisions under the

Clean Water Act is governed by § 706 of the Admin-

istrative Procedure Act (“APA”). Natl Wildlife Fed’n

v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1170

(9th Cir. 2004). Under the APA, a court may set

aside an agency action if the court determines that

the action was “arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2\(A); Turtle Island, 340 F.3d at 973.

IV.

Two different regulations contain plain language in-

terpreting the Clean Water Act that would appear to

govern Coeur Alaska’s proposed plan of operations at

10a

the Kensington Gold Mine, but they result in differ-

ent interpretations of the Act. The discharge of

wastewater containing tailings from Coeur Alaska’s

froth-flotation mill operation facially meets the

Corps’ current regulatory definition of “fill material”

because it would have the effect of raising the bottom

elevation of the lake. See 33 C.F.R. § 323.2(e). Ac-

cordingly, under this interpretation, the discharge

would be subject to the permit process governed by

§ 404 of the Clean Water Act. However, EPA previ-

ously promulgated a _ performance _ standard,

pursuant to § 301 and § 306 of the Clean Water Act,

that prohibits discharges from froth-flotation mills

into waters of the United States. See 40 C.F.R.

§ 440.104(b)(1).

Both of the reguiations appear to apply in this case,

yet they are at odds. As explained below, the plain

language of the Clean Water Act resolves this con-

flict and requires that the performance standard

controls. The statute is unambiguous on this point,

and the performance standard applies to discharges

from the froth-flotation mill at Coeur Alaska’s Ken-

sington Gold Mine into Lower Slate Lake.

Furthermore, the federal agencies’ clear statements

at the time they adopted the current regulatory defi-

nition of the term “fill material” demonstrate that

they did not intend for waste products subject to ef-

fluent limitations and performance standards to be

regulated as “fill material.” For these reasons the

Corps should not have issued a permit to Coeur

Alaska under § 404. The district court’s grant of

summary judgment in favor of the Corps is reversed,

and we remand for summary judgment to be entered

in favor of the plaintiffs with directions to vacate the

permit granted by the Corps.

lla

We begin, as we must, with the text of the Clean Wa-

ter Act itself to determine “whether Congress has

directly spoken to the precise question at issue. If the

intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778,

81 L.Ed.2d 694 (1984). “If a court, employing tradi-

tional tools of statutory construction, ascertains that

Congress had an intention on the precise question at

issue, that intention is the law and must be given ef-

fect.” Id. at 843 n.9, 104 S. Ct. 2778.

Congress passed the Clean Water Act in 1972 “to re-

store and maintain the chemical, physical, and

biological integrity” of the waters of the United

States. 33 U.S.C. § 1251(a). To achieve this objective,

the Clean Water Act sought to eliminate completely

the discharge of all pollutants into the nation’s navi-

gable waters by 1985. 33 U.S.C. § 1251(a)(1). It also

sought to make those waters suitable for fish, shell-

fish, wildlife, and recreation. 33 U.S.C. § 1251(a)(2).

One of Congress’s principal concerns in passing the

Clean Water Act was the use of water for waste dis-

posal, which Congress deemed “unacceptable.” See

S. Rep. No. 92-414, at 7 (1971), reprinted in 1971

U.S.C.C.A.N. 3668, 3674 (“The use of any river, lake,

stream or ocean as a waste treatment system is un-

acceptable.”), quoted in Weyerhaeuser Co. v. Costle,

590 F.2d 1011, 1043 (9th Cir. 1978).

The “cornerstone” and “fundamental premise” of the

Clean Water Act is § 301, which prohibits all dis-

charges of any pollutant except in compliance with

12a

specified provisions of the statute. Ass’n to Protect

Hammersley, Eld, & Totten Inlets v. Taylor Res., Inc.,

299 F.3d 1007, 1009 (9th Cir. 2002); Natural Res.

Def. Council, Inc. v. EPA, 822 F.2d 104, 109 (D.C.

Cir. 1987). Specifically, § 301(a) provides that “the

discharge of any pollutant by any person shall be

unlawful” except when the discharge complies with

the requirements of, inter alia, § 301, § 306, § 402,

and § 404.4 33 U.S.C. § 1311(a). In furtherance of

this mandate, § 301(b) requires EPA to adopt in-

creasingly stringent, technology-based _ effluent

limitations® for point sources.§ Once an effluent limi-

tation is promulgated, § 301(e) requires that it “shall

be applied to ad/ point sources of discharge of pollut-

4 The full text of § 301 states: “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).

5 “The term ‘effluent limitation’ means any restriction

established by a State or the [EPA] on quantities, rates,

and concentrations of chemical, physical, biological, and

other constituents which are discharged from point

sources into navigable waters, ... including schedules of

compliance.” 33 U.S.C. § 1362(11).

6 “The term ‘point source’ means any discernible, con-

fined and discrete conveyance, including but not limited

to any pipe, ditch, changel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated animal feed-

ing operation, or vessel or other floating craft, from which

poliutants are or may be discharged.” 33 U.S.C.

§ 1362(14).

l3a

ants in accordance with the provisions of” the stat-

ute. 33 U.S.C. § 1311(e) (emphasis added).

Similarly, § 306 requires EPA to implement even

more stringent “standards of performance” for new

sources such as the new Coeur Alaska mine project.’

33 U.S.C. § 1316(b). To carry out § 306’s directive,

EPA must promulgate a list of categories of sources

and, for new sources within each category, establish

a national standard of performance (also referred to

as a New Source Performance Standard). Jd. A stan-

dard of performance is defined as “a standard for the

control of the discharge of pollutants which reflects

the greatest degree of effluent reduction which [EPA]

determines to be achievable through application of

the best available demonstrated control technology,

processes, operating methods, or other alternatives,

including, where practicable, a standard permitting

no discharge of pollutants.” 33 U.S.C. § 1316(a)(1)

(emphasis added). As with the effluent reductions

promulgated under § 301,8 § 306 states that, once a

7 “The term ‘new source’ means any source, the con-

struction of which is commenced after the publication of

proposed regulations prescribing a standard of perform-

ance under this section which will be applicable to such

source, if such standard is thereafter promulgated in ac-

cordance with this section.” 33 U.S.C. § 1316(a)(2).

“The term ‘source’ means any building, structure, facility,

or installation from which there is or may be the dis-

charge of pollutants.” 33 U.S.C. § 1316(a)3).

8 A standard of performance is one type of effluent limi-

tation. See 33 U.S.C. § 1362(11). Therefore, § 301(e) and

$ 306(e) have the same practical effect in this case.

l4a

standard of performance takes effect, “it shall be

unlawful for any owner or operator of any new source

to operate such source in violation of any standard of

performance applicable to such source.” 33 U.S.C.

§ 1316(e). Congress thus “intended these regulations

to be absolute prohibitions.” E.J. du Pont de Nemours

& Co. v. Train (“Du Pont”’, 430 U.S. 112, 138, 97

S. Ct. 965, 51 L.Ed.2d 204 (1977) (citing S. Rep. No.

92-414, at 58 (1971)). The legislative history of § 306

indicates that Congress made a “deliberate choice

not to allow variances for new sources.” Riverkeeper,

Inc. v. EPA, 358 F.3d 174, 192 (2d Cir. 2004). As

such, no exceptions to a standard of performance are

allowed. See id.; Du Pont, 430 U.S. at 138, 97 S. Ct.

965.

To ensure compliance with effluent limitations and

performance standards established pursuant to § 301

and § 306, Congress created the National Pollutant

Discharge Elimination System (“NPDES”) permit

program under § 402 of the Act. Through the NPDES

program, EPA may permit a discharge, but only if it

complies with § 301 and § 306. Additionally, NPDES

permits are supposed to limit the release of pollut-

ants into waterways as much as possible by imposing

numerical discharge restrictions. Rybachek v. EPA,

904 F.2d 1276, 1283 (9th Cir. 1990). For this reason,

the NPDES permit program is considered “central to

the enforcement” of the Clean Water Act. Natural

Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1374

(D.C. Cir. 1977).

In addition to the NPDES permit program, the Clean

Water Act established a secondary permit program

for the discharge of “dredged or fill material” under

§ 404. According to § 404, the Corps “may issue per-

mits ... for the discharge of dredged or fill material

15a

into the navigable waters at specified disposal sites.”

33 U.S.C. § 1844(a). We conclude that the permit

scheme under § 404 is a limited permit program that

applies only to dredged or fill material, not to the

discharge of pollutants from industrial or municipal

sources.

The language of the Clean Water Act is clear on the

issue at the center of this dispute. First, § 301(a)

prohibits any discharge that does not comply with

several enumerated sections, including both § 301

and § 306, as well as § 402 and § 404. 33 U.S.C.

§ 1311(a). The use of “and” as a connector, instead of

“or,” indicates that Congress intended for effluent

limitations and standards of performance to apply to

all applicable discharges, even those that facially

qualify for permitting under § 404. Second, § 301(e)

applies effluent limitations established by EPA to all

discharges. 33 U.S.C. § 1311(e). Third, § 306(e) pro-

hibits any discharge that does not comply with

performance standards promulgated by EPA. 33

U.S.C. § 1316(e). In clear and precise terms, § 301

and § 306 require that discharges comply with appli-

cable effluent limitations and = standards’ of

performance. Neither § 301 nor § 306 contains an ex-

ception for discharges that would otherwise qualify

for regulation under § 404. Rather, § 301 and § 306

are “absolute prohibitions” with no _ exceptions.

Du Pont, 430 U.S. at 138, 97 S. Ct. 965.

Nevertheless, the defendants argue that § 301 and

§ 306 do not apply to § 404 permits because § 402 ex-

plicitly requires compliance with those sections

whereas § 404 does not. The defendants then reason,

by way of negative inference, that § 404 contains an

implied exception to the requirements of § 301 and

16a

§ 306 whenever a proposed discharge would meet the

agencies’ regulatory definition of “fill material.” We

disagree. Negative inferences and implied exceptions

are generally disfavored. As the Supreme Court

stated in United States v. Rutherford, 442 U.S. 544,

99 S. Ct. 2470, 61 L.Ed.2d 68 (1979): “Exceptions to

clearly delineated statutes will be implied only where

essential to prevent ‘absurd results’ or consequences

obviously at variance with the policy of the enact-

ment as a whole.” Id. at 552, 99 S. Ct. 2470 (citing

Helvering v. Hammel, 311 U.S. 504, 510-11, 61 S. Ct.

368, 85 L.Ed. 303 (1941)). That is because courts

have “generally presumed that Congress acts inten-

tionally and purposely in the disparate inclusion or

exclusion” of particular language. S.D. Warren Co. v.

Me. Bd. of Envtl. Prot., --- U.S. ----, 126 S. Ct. 1843,

1852, 164 L.Ed.2d 625 (2006) (quoting Bates v.

United States, 522 U.S. 23, 29-30, 118 S. Ct. 285,

139 L.Ed.2d 215 (1997)). The defendants have pro-

duced no compelling reason to believe that Congress

intended an exception within § 404 that it did not

explicitly create. If the defendants’ interpretation

were correct, Congress would have written § 301 and

§ 306 within § 402, not as separate sections. More-

over, the implied exception urged by the defendants,

if adopted, would turn § 404 into an exception that

swallows the rule created by § 301, § 306, and § 402

by allowing the Corps to use a negative inference

from an exception clause within § 402. Thus, § 404’s

silence regarding the explicit and detailed require-

ments in § 301 and § 306 cannot create an exception

to those sections’ strongly-worded blanket prohibi-

tions.

The defendants’ interpretation would render § 301(e)

and § 306(e) effectively meaningless. Courts strive to

avoid interpreting a statute “in a manner that ren-

17a

ders other provisions of the same statute inconsis-

tent, meaningless, or superfluous.” Boise Cascade

Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991),

quoted in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,

1024 (9th Cir. 2005); see also Ratzlaf v. United

States, 510 U.S. 135, 140-41, 114 S.Ct. 655, 126

L.Ed.2d 615 (1994); Watt v. Alaska, 451 U.S. 259,

267, 101 S. Ct. 1673, 68 L.Ed.2d 80 (1981) (“We must

read the statutes to give effect to each if we can do so

while preserving their sense and purpose.”). If the

defendants were correct, the words “all” in § 301(e)

and “any” in § 306(e)? would lose their meaning en-

tirely.

There is a much simpler explanation for the differ-

ence in language between § 402 and § 404 than the

defendants’ proposed negative inference. If EPA has

adopted an effluent limitation or performance stan-

dard applicable to a relevant source of pollution,

§ 301 and § 306 preclude the use of a § 404 permit

scheme for that discharge. See 67 Fed. Reg. 31,129,

9 Section 301(e) provides: “Effluent limitations estab-

lished pursuant to this section or section 1312 of this title

shall be applied to al/ point sources of discharge of pollut-

ants in accordance with the provisions of this chapter.” 33

U.S.C. § 1311(e) (emphasis added).

Section 306(e), which applies to new sources like the

Coeur Alaska mine project, provides: “After the effective

date of standards of performance promulgated under this

section, it shall be unlawful for any owner or operator of

any new source to operate such source in violation of any

standard of performance applicable to such source.” 33

U.S.C. § 1316 (emphasis added).

18a

31,135 (May 9, 2002); EPA/Corps, Joint Response to

Comments 12 (May 3, 2002). Accordingly, the

NPDES program administered by EPA under § 402

is the only appropriate permitting mechanism for

discharges subject to an effluent limitation under

§ 301 or a standard of performance under § 306.

Consequently, there was simply no need for Congress

to enumerate § 301 or § 306 within § 404 because

Congress never intended for § 404 to govern dis-

charges subject to effluent limitations or

performance standards. Rather, when a discharge is

subject to an effluent limitation or performance

standard, that discharge must comply with the

NPDES program as required by § 402. See 67 Fed.

Reg. at 31,135; 47 Fed. Reg. 54,598, 54,606 (Dec. 12,

1982). This construction of the statute preserves the

full meaning of all of its provisions without rendering

any provision superfluous or resorting to negative in-

ferences and implied exceptions.

Additionally, although § 404 does not contain an ex-

plicit exception to effluent limitations or standards of

performance, it does contain exceptions to other pro-

visions of the Clean Water Act. Specifically, § 404(f

exempts discharges of dredged or fill material from

certain activities from regulation under § 301(a),

§ 402, and § 404. 33 U.S.C. § 1344(M(1). Discharges

related to agricultural activities and road construc:

tion, among others, are exempted under § 404(f)(1).

Mining is not listed as an exempt activity. “Where

Congress explicitly enumerates certain exceptions to

a general prohibition, additional exceptions are not

to be implied, in the absence of evidence of a contrary

legislative intent.” Andrus v. Glover Constr. Co., 446

U.S. 608, 616-17, 100 S. Ct. 1905, 64 L.Ed.2d 548

(1980). The defendants have produced no reason to

believe that Congress intended additional exemp-

19a

tions to be created later. Therefore, the lack of any

explicit exception to § 301 and § 306 within § 404,

and the lack of an exception for process wastewater

from mines, is strong evidence that Congress did not

intend one. Jd. Even stronger evidence is Congress’s

insistence in § 404(f) that even the discharges from

the enumerated activities continue to be subject to

effluent standards. 33 U.S.C. § 1344(f).

Thus, the plain language of the Clean Water Act di-

rectly resolves the conflict between the regulatory

definition of “fill material” afd EPA’s performance

standard for froth-flotation mill operations. Pursu-

ant to § 301 and § 306, EPA’s performance standard

for froth-flotation mills governs this situation. The

language of § 404 does not lead to a contrary conclu-

sion.

Although the piain language of the Clean Water Act

resolves the apparent regulatory conflict at the heart

of this case, the regulatory history further demon-

strates that neither the Corps nor EPA intended for

the current regulatory definition of “fill material” to

replace the performance standard for froth-flotation

mills. Courts consider contemporancous explanations

of regulations, such as those published in the Federal

order to determine an agency’s intent. See Hiillsbor-

ough County v. Automated Med. Labs., Inc., 471 US.

707, 714-16, 105 S. Ct. 2371, 85 L.Ed.2d 714 (1985);

Friends of Yosemite Valley v. Norton, 348 F.3d 789,

797 (9th Cir. 2003); League of Wilderness Defend-

ers/Blue Mountains Biodiversity Project v. Forsgren,

309 F.3d 1181, 1189-90 (9th Cir. 2002); Kentuckians

for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d

425, 416-47 (4th Cir. 2003). And courts will not defer

20a

to an agency’s interpretation of a regulation that

contradicts the agency’s intent at the time it promul-

gated the regulation. Gonzales v. Oregon, 546 U.S.

243, 126 S.Ct. 904, 916, 163 L.Ed.2d 748 (2006);

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,

512, 114 S. Ct. 2381, 129 L.Ed.2d 405 (1994); Alaska

Trojan P’ship v. Gutierrez, 425 F.3d 620, 627-28 (9th

Cir. 2005); see also Auer v. Robbins, 519 U.S. 452,

461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (an

agency’s interpretation of a regulation is not entitled

to deference where it is “plainly erroneous” or “incon-

sistent with the regulation”) (quoting Bowles uv.

Seminole Rock & Sand Co., 325 U.S. 410, 414, 65

S. Ct. 1215, 89 L.Ed. 1700 (1945)). When the agen-

cies promulgated the current definition in 2002, they

foresaw and specifically addressed the potential con-

flict between the effects-based definition of “fill

material” and performance standards already in

place. To that end, the agencies explicitly stated that

wastes subject to performance standards and efflu-

ent limitations would not be considered “fill

material.” The Corps’ application of the fill rule in

this case, therefore, contradicts its interpretation at

the time the regulation was promulgated.

Following its statutory obligation under § 301 and

§ 306, in 1982 EPA promulgated effluent limitations

and standards of performance for sources within the

category of ore mining. See 47 Fed. Reg. 25,682

(June 14, 1982) (proposed); 47 Fed. Reg. 54,598

(Dec. 3, 1982) (final). Within this category, FPA es-

tablished a subcategory that applied to gold mining.

See 40 C.F.R. §§ 440.100-440.104. For gold mines us-

ing the froth-flotation mill process, EPA promulgated

a zero-discharge standard:

2la

Except as provided in paragraph (b)[2]

of this section, there shall be no dis-

charge of process waste-water to

navigable waters from mills that use

the froth-flotation process alone, or in

conjunction with other processes, for the

beneficiation of copper, lead, zinc, gold,

silver, or molybdenum ores or any com-

bination of these ores.

40 C.F.R. § 440.104(b)(1) (emphasis added); see also

47 Fed. Reg. at 25,697 (proposing zero discharge).

EPA found that the zero-discharge standard was

practicable because the majority of facilities existing

at the time already achieved zero discharge through

recycling and evaporation processes. 47 Fed. Reg. at

54,602. EPA promulgated this standard knowing

that process wastewater discharges from froth-

flotation mills contain a large amount of suspended

solids that could otherwise qualify for regulation un-

der § 404 pursuant to its effects-based definition of

“fill material.” See 47 Fed. Reg. at 25,685 (“Mill proc-

ess wastewater is characterized by very high

suspended solids levels (often in the percent range

rather than milligrams per liter) ... .”). In determin-

ing that a_ strict zero-discharge limit was

appropriate, EPA determined that the best available

control technology included the complete recycling of

process wastewater. See 47 Fed. Reg. at 54,602.

Given that the regulation facially applies to any dis-

charge from a froth-flotation mill, and that it

provides some limited exceptions that do not include

“fill material,” EPA intended for the prohibition to

apply to discharges that would otherwise qualify as

fill material under § 404. See 67 Fed. Reg. at 31,135.

This conclusion is also supported by the fact that

EPA promulgated the regulation notwithstanding its

22a

definition of “fill material,” which was identical to

the definition used by both agencies today.

The history of the current fill rule also demonstrates

that both agencies intended for effluent limitations

and performance standards to apply even to dis-

charges that facially meet the definition of the term

“fill material.” The Clean Water Act does not define

the term “fill material.” Instead, Congress implicitly

left that term to the Corps and EPA to define. See

Res. Invs., Inc. v. U.S. Army Corps of Eng’rs, 151

F.3d 1162, 1166 (9th Cir. 1998). As with most regula-

tory definitions, the agencies’ definitions of “fill

material” have evolved over time. In fact, prior to the

current regulatory definition of “fill material,” the

Corps and EPA defined “fill material” differently.

The Corps initially used an effects-based test, which

defined “fill material” as “any pollutant used to cre-

ate fill in the traditional sense of replacing an

aquatic area with dry land or of changing the bottom

elevation of a water body for any purpose.” 4C Fed.

Reg. 31,320, 31,325 (July 25, 1975). EPA later

adopted the identical definition. 40 Fed. Reg. 41,292,

41,298 (Sept. 5, 1975). Two years later, the Corps re-

vised its definition and adopted a purpose-based test,

which excluded from its definition “any pollutant dis-

charged into the water primarily to dispose of

waste.” 42 Fed. Reg. 37,122, 37,145 (July 19, 1977).

In adopting its purpose-based definition, the Corps

explained that there were many waste materials

“which technically fit within our definition of ‘fill ma-

terial’ but which were intended to be regulated under

the NPDES program.” Jd. at 37,130. EPA, in 1980,

chose to keep its effects-based test. See 45 Fed. Reg.

33,290, 33,421 (May 19, 1980).

23a

The agencies’ differing definitions of “fill material”

created a potential regulatory overlap. See, e.g., Res.

Invs., 151 F.3d at 1165-66, 1168—69 (acknowledging

overlap); Kentuckians, 317 F.3d at 432 (“the Corps

acknowledged that the differing approaches in defin-

ing ‘fill material’ employed by EPA and the Corps in

their regulations had created some uncertainty about

their interpretation of the Clean Water Act”). Many

industrial wastes contain a high proportion of sus-

pended solids and, therefore, have the effect of

changing the bottom elevation of a body of water. As

such, those wastes could have been considered fill

material under EPA’s definition. However, EPA con-

tinued to regulate many of those industrial wastes

under § 402, and also continued to promulgate new

effluent limitations and standards of performance for

industrial pollutants with high concentrations of sol-

ids, regardless of their potential to raise the bottom

elevation of a body of water. See, e.g., 46 Fed. Reg.

8,260, 8,292 (Jan. 26, 1981) (regulating discharges of

suspended solids from log-washing processes). In-

deed, the new source performance standard for froth-

flotation mills was adopted in 1982, despite the fact

that waste from this process would have the effect of

raising bottom elevation and, therefore, could other-

wise constitute fill material under EPA’s effects-

based test. See 47 Fed. Reg. at 25,685. Thus, not-

withstanding the potential regulatory overlap

created by the agencies’ differing definitions, EPA

regulated many industrial pollutants under § 402.

The agencies formally adopted this practice in a

Memorandum of Agreement on Solid Waste (“MOA”)

24a

in 1986. 51 Fed. Reg. 8,871 (Mar. 14, 1986). After

adoption of the MOA in 1986, the Corps continually

declined to exercise jurisdiction over mine tailings.!9

In 2002, the agencies promulgated their joint regula-

tion defining the terms “fill material” and “discharge

of fill material.” 67 Fed. Reg. at 31,130. The current

regulatory definition of “fill material” provides:

(1) Except as specified in paragraph

(e\(3) of this section, the term “fill mate-

rial” means material placed in waters of

the United States where the material

has the effect of:

(i) Repiacing any portion of a wa-

ter of the United States with dry land;

(ii) Changing the bottom elevation

of any portion of a water cf the United

States.

10 See, e.g., Memorandum from Col. John W. Pierce, U.S.

Army Corps of Eng’rs, “Agency Jurisdiction over Certain

Activities Connected with Mineral Extraction, Specifically

Gold Mining, in Alaska” 1—2 (Apr. 14, 1992) (“The tailings

behind the dam, however, are a waste product of the min-

ing operation and are not under our jurisdiction according

to the 1986 Memorandum of Agrecment....”); Letter from

Glen E. Justis, U.S. Army Corps of Eng’rs 2-3 (June 18,

1991) (“The Corps has neither special expertise [nJor ju-

risdiction by law to evaluate the impacts of the tailings

discharge... The tailings do not meet the Corps’ definition

of fill material.”).

25a

(2) Examples of such fill material in-

clude, but are not limited to: rock, sand,

soil, clay, plastics, construction debris,

wood chips, overburden from mining?!

or other excavation activities, and ma-

terials used to create any structure or

infrastructure in the waters of the

United States.

(3) The term fill material does not in-

clude trash or garbage.

33 C.F.R. § 323.2(e) (Corps’ reguiation); 40 C.F.R.

§ 232.2 (EPA’s regulation) (emphasis added). The

agencies also defined “discharge of fill material” as

follows:

The term “discharge of fill material”

means the addition of fill material into

waters of the United States. The term

generally includes, without limitation,

the following activities: ... placement of

overburden, slurry, or tailings or simi-

lar mining-related materials... .

33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2.12

11 “Overburden” is generally defined as rock or soil

cleared away before mining. See EPA, Terms of Environ-

ment, http://www.epa.gov/OCEPAterms/oterms. html

(May 14, 2007).

12 The amici brief of 14 members of Congress argues

persuasively that the adoption of these regulations by the

Corps and EPA violates the purposes and plain language

of the Clean Water Act by allowing waste material to be

dumped into lakes, rivers, and other waters of the United

Footnote continued on next page|

26a

At the same time, however, the agencies made clear

that they did not intend to change their long-

standing practice, according to which EPA regulates

discharges of pollutants for which it has established

effluent limitations or standards of performance un-

der the NPDES program.1%

[W]e emphasize that today’s rule generally is in-

tended to maintain our existing approach to

regulating pollutants under either section 402 or 404

of the CWA. Effluent limitation guidelines and new

source performance standards (“effluent guidelines”)

[Footnote continued from previous page]

States. SEACC bases its argument on a narrower ground

pertaining to this particular mine. Thus, we do not reach

the issue of the validity of these regulations.

13 In Kentuckians, the Fourth Circuit recognized the

Corps’ prior practice of not regulating discharges subject

to effluent limitations under § 404:

{We conclude that the Corps’ interpretation of “fill

material” as used in § 404 of the Clean Water Act

to mean all material that displaces water or

changes the bottom elevation of a water body ex-

cept for “waste’—meaning garbage, sewage, and

effluent that could be regulated by ongoing effluent

limitations as described in § 402—is a permissible

construction of § 404.

317 F.3d at 448. The court also explained the Corps’ prior

position that it was not authorized to regulate discharges

subject to effluent limitations. /d. at 445.

27a

promulgated under section 304!4 and 306 of the

CWA establish limitations and standards for speci-

fied wastestreams from industrial categories, and

those limitations and standards are incorporated

into permits issued under section 402 of the Act.

EPA has never sought to regulate fill material under

effluent guidelines. Rather, effluent guidelines re-

strict discharges of pollutants from _ identified

wastestreams based upon the pollutant reduction

capabilities of available treatment technologies. Rec-

ognizing that some discharges (such as suspended or

settleable solids) can have the associated effect, over

time, of raising the bottom elevation of a water due

to settling of waterborne pollutants, we do not con-

sider such pollutants to be “fill material,” and

nothing in today’s rule changes that view. Nor does

today’s rule change any determination we have made

regarding discharges that are subject to an effluent

limitation guideline and standards, which will con-

tinue to be regulated under section 402 of the CWA.

Similarly, this rule does not alter the manner in

which water quality standards currently apply under

the section 402 or the section 404 programs.

67 Fed. Reg. at 31,135 (emphasis added). Addition-

ally, in their Joint Response to Comments to the

proposed rule, the agencies restated this position:

14 Sections 304 and 301 are interchangeable in this in-

stance. Section 304 directs EPA in how to determine the

degree of effluent reduction attainable under § 901. Citi-

zens Coal Council v. EPA, 447 F.3d 879, 883 (6th Cir.

2006) (en banc) (citing 33 U.S.C. § 1314).

28a

Under todays rule, we will continue,

consistent with our long-standing prac-

tice, to rely on the existence of effluent

limitation guidelines or standards or a

NPDES permit to inform the determi-

nation of how a particular discharge is

regulated under the Act. If a specific

discharge is regulated under Section

402, it would not also be regulated un-

der Section 404, and vice versa.

EPA/Corps, Joint Response to Comments 30. In the

same document, the agencies clarified that the new

rule would not expand the jurisdiction of the Corps

or permit previously prohibited discharges: “the sug-

gestion that this rulemaking now provides a legal

basis for previously illegal activities is not the case-

no discharges that were previously prohibited are

now authorized as a result of this rulemaking.” /d.

Thus, the agencies clearly intended to exclude dis-

charges subject to _ effluent limitations’ or

performance standards from the new definition of

“fill material.”

In fact, when the Corps and EPA first proposed the

revised, coordinated definition in 2000, they included

an explicit exemption from the definition of “fill ma-

terial” for discharges subject to effluent limitations

or standards of performance. See 65 Fed. Reg.

21,292, 21,299 (Apr. 20, 2000). The stated purpose of

the exemption was to maintain the agencies’ “current

practice,” which was “consistent with paragraph B.5

of the 1986 Solid Waste MOA.” Id. at 21,297. Al-

though the agencies removed the explicit exemption

from the fina! rule, they did so only because com-

menters expressed concern that the exception was

vague and would create uncertainty regarding

29a

whether the reference to effluent guidelines applied

prospectively or only to those guidelines already in

existence at the time. See 67 Fed. Reg. at 31,135. As

such, the agencies still intended to regulate dis-

charges subject to effluent limitations and standards

of performance under § 402.

The defendants attempt to undermine the clear in-

tent of the agencies by focusing on a single sentence

of the preamble in which the agencies stated “min-

ing-related material that has the effect of fill when

discharged will be regulated as ‘fill material.” Jd.

The district court also relied on that one sentence.

However, the defendants and the district court give

far more weight to that singular statement than it

deserves. It is difficult to understand why the agen-

cies would painstakingly explain in the preamble

that the new definition would not change their

treatment of discharges subject to effluent limita-

tions and standards of performance, only to

completely contradict themselves two paragraphs

later. The agencies themselves cleared up any poten-

tial confusion in their Joint Response to Comments:

Today’s final rule clarifies that any ma-

terial that has the effect of fill is

regulated under section 404 and further

that the placement of “overburden,

slurry, or tailings or similar mining-

related materials” is considered a dis-

charge of fill material. Nevertheless, if

EPA has previously determined that cer-

tain materials are subject to an [effluent

limitation guideline] under specific cir-

cumstances, then that determination

remains valid.

30a

EPA/Corps, Joint Response to Comments 12. Thus,

the current fill rule only applies to those tailings and

other mining-related materials that are not subject

to effluent limitations or standards of performance. 15

The agencies could not have been more clear in ar-

ticulating that this would be their preferred

approach.

In fact, the agencies followed that approach with

Coeur Alaska for quite some time. The Corps consis-

tently informed Cocur Alaska that discharges from

its froth-flotation mill would not be regulated as fill

material under § 404. At least, the agencies took that

approach up until the time that the Corps granted

the permit that led to this dispute. Prior to the

promulgation of the current fill rule in 2002, the

Corps relied on the 1986 MOA in informing Coeur

Alaska that it lacked jurisdiction and expertise to

permit discharges of tailings from the Kensington

15 The Fourth Circuit's holding in Kentuckians is consis-

tent with our conclusion. In Kentuckians, the court

addressed the issue of whether the Corps had authority

under § 404 to permit valley fills from mountain-top coal

mining “when the valley fills serve no purpose other than

to dispose of excess overburden from the mining activity.”

317 F.3d at 439. EPA had not promulgated a performance

standard for mountain-top coal mining, so neither § 301

nor § 306 was implicated in that case. Jd. at 445. More-

over, in that case, the Corps admitted that, under the

2002 definition, “it was authorized to regulate discharges

of fill, even for waste, unless the fill amounted to effluent

that could be subjected to effluent limitations.” Id. (em-

phasis added).

3la

mine as “fill material.” For example, in a 1998 ROD,

the Corps made clear to Coeur Alaska that it “does

not regulate the placement of tailings.” U.S. Army

Corps of Eng’rs, ROD 13 (Jan. 18, 1998). And as late

as 2005, EPA informed Coeur Alaska that “{blecause

this project would be a new source, the New Source

Performance Standards (NSPS) for gold mines and

mills are applicable to the yrsject.” EPA, ROD for

§ 402 NPDES Permit 3 (June 28, 2005) (citing 40

C.F.R. § 440.104). Therefore, in addition to the regu-

latory history, the agencies have an established

record of refusing to regulate tailings discharged

from Coeur Alaska’s planned froth-flotation mill at

the Kensington mine as fill material under § 404.

The agencies’ unequivocal statements regarding

their intent not to override effluent limitations and

standards of performance when they promulgated

the current fill rule are dispositive and compel the

conclusion that the Corps overstepped its authority

in issuing a permit to Coeur Alaska under § 404. If

the agencies actually did intend to repeal or create

an exception to the performance standard for froth-

flotation mills when they promulgated the current

fill rule, they did not acknowledge or provide a satis-

factory explanation for the change in course. When

an agency decides to change course by rescinding or

changing a rule, the agency “is obligated to supply a

reasoned analysis for the change.” Motor Vehicle

Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 42, 103 S. Ct. 2856, 77 L.Ed.2d 443

(1983). lf an agency fails to comply with that obliga-

tion, the new rule is “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with

law” and is invalid under § 706(2)(A) of the APA. Jd.

at 41, 103 S. Ct. 2856 (citing 5 U.S.C. § 706(2)(A));

32a

see also Bush-Quayle 92 Primary Comm., Inc. v. Fed.

Election Comm’n, 104 F.3d 448, 453 (D.C. Cir. 1997).

Not only did the Corps and EPA not acknowledge a

change in course when they promulgated the fill

rule, they actually stated the opposite intent. That is,

the agencies made clear that effluent limitations and

standards of performance would continue to apply.

We could not have interpreted the fill rule as creat-

ing an exception to the performance standard for

froth-flotation mills without the agencies complying

with the APA by explaining their intent in the Fed-

eral Register and offering an opportunity for notice

and comment. See Motor Vehicle Mfrs., 463 U.S. at

42, 103 S. Ct. 2856.

Finally, the performance standard governs because it

is more specific. It is a basic principle of regulatory

interpretation that a regulation dealing with a “nar-

row, precise, and specific subject is not submerged”

by a later enacted regulation “covering a more gen-

eralized spectrum.” Radzanower v. Touche Ross &

Co., 426 U.S. 148, 153, 96 S. Ct. 1989, 48 L.Ed.2d

540 (1976), cited in Cal. ex rel. Sacramento Metro.

Air Quality Mgmt. Dist. v. United States, 215 F.3d

1005, 1013 (9th Cir. 2000). Unlike the fill rule, which

pertains to fill material generally, the performance

standard covers froth-flotation mills precisely. See 40

C.F.R. § 440.104. Consequently, the agencies’ later

promulgation of the more general fill rule cannot su-

persede the narrow, precise, and _— specific

performance standard for froth-flotation mills.

The Corps also issued a permit to Goldbelt, Inc., for

construction of a marine terminal facility at Cascade

Point and issued a ROD approving Goldbelt’s plan of

33a

operations. See U.S. Army Corps of Eng’rs, Permit to

Goldbelt, Inc. (July 15, 2005); U.S. Army Corps of

Engrs, Revised ROD 4 (Mar. 29, 2006). Goldbelt’s

permit and ROD are predicated on a mine design of

which a critical component is Coeur Alaska’s dis-

charge of process wastewater into Lower Slate Lake.

But for that mine design, the Cascade Point facility

would be unnecrssary. In fact, the Corps itself stated

that “without Kensington mine, the Cascade Point

facility would not be constructed in the foreseeable

future.” U.S. Army Corps of Eng’rs, Revised ROD 4.

For that reason, the Corps considered the terminal a

“component” of the Kensington project and analyzed

the terminal proposal in the same Final Supplemen-

tal Environmental Impact Statement and Revised

ROD as the Kensington project. Jd. Indeed, Goldbelt

must have had a “significantly protectable interest”

relating to the subject of this case in order to inter-

vene as a defendant, which it chose to do. United

States v. City of L.A., 288 F.3d 391, 398 (9th Cir.

2002); Fed. R. Civ. P. 24(a)(2). Importantly, in its

motion to intervene, the company admitted that

“Goldbelt’s Cascade Point marine terminal is an in-

tegral part of the approved Plan of Operations, and

may be constructed and used solely to service the

Kensington Mine as contemplated in that Plan of

Operations.” Goldbelt further admitted that “[a]ny

ruling by this Court that delays or disrupts construc-

tion of the mine will leave Goldbelt with a ‘permitted’

facility that either it cannot build or cannot be oper-

ated once built because the condition precedent of

Goldbelt’s permits is construction and operation of

the Kensington Mine as contemplated in the chal-

lenged Pian of Operations.” Consequently, Goldbelt’s

permit and ROD are critically premised on Coeur

Alaska’s § 404 permit. Because that permit is inva-

34a

lid, the Corps’ permit and ROD for the Cascade Point

facility should be vacated.

Under the APA, the normal remedy for an unlawful

agency action is to “set aside” the action. 5 U.S.C.

§ 706(2). In other words, a court should “vacate the

agency’s action and remand to the agency to act in

compliance with its statutory obligations.” Defenders

of Wildlife v. EPA, 420 F.3d 946, 978 (9th Cir. 2005),

cert. granted, --- U.S. ----, 127 S. Ct. 853, 166 L.Ed.2d

681 (2007); see also Am. Biosci., Inc. v. Thompson,

269 F.3d 1077, 1084 (D.C. Cir. 2001). For the reasons

discussed above, the Corps’ permit for the discharge

of process wastewater from the froth-flotation mill at

the Kensington Gold Mine into Lower Slate Lake vio-

lates § 301 and § 306 of the Cleax. Water Act. The

Corps’ permit for construction of a marine terminal

at Cascade Point critically depends on the unlawful

permit to Coeur Alaska. Consequently, we remand to

the district court to vacate beth permits, as well as

the RODs on which they are based.

In conclusion, we reverse the disi».ct court, remand

to the district court to vacate the permits issued to

Coeur Alaska and Goldbelt, and vacate the RODs

that approved Coeur Alaska’s and Goldbelt’s plans of

operations. The Corps violated the Clean Water Act

by issuing a permit to Coeur Alaska for discharges of

slurry from the froth-flotation mill at the Kensington

Gold Mine. EPA’s performance standard for froth-

flotation mills, promulgated pursuant to 3301 and

§ 306 of the Clean Water Act, prohibits discharges

from such operations into the navigable waters of the

United States. No exceptions are provided by either

the regulation or the statute. Even though the dis-

35a

charge in this case facially qualifies for the permit-

ting scheme under § 404 of the Clean Water Act

because it will change the bottom elevation of Lower

Slate Lake, the discharge is nevertheless prohibited

by the clearly applicable and specific performance

standard. The plain language and structure of the

Clean Water Act demonstrate that EPA’s perform-

ance standard governs in this case. Also, the

agencies’ statements made during promulgation of

the regulation defining “fill material,” as well as

their statements made to Coeur Alaska during the

lengthy permitting process, indicate that they in-

tended this result.

Thus, the district court erred in granting summary

judgment in favor of the defendants. The case is re-

manded to the district court for action pursuant to

this opinion.

REVERSED and REMANDED.

36a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOUTHEAST ALASKA No. 06-35679

CONSERVATION COUNCIL;

et al., D.C. \ CV-05-

Paes 0012-J-JKS

Plaintiffs-Appellants, District of Alaska,

Vv. Juneau

UNITED STATES ARMY

CORPS OF ENGINEERS: a

et al.,

Defendants-Appellees,

COEUR ALASKA, INC.; et al.,

Defendants-Intervenors-

Appellees.

Before: HUG, TASH{MA, and GRABER, Circuit

Judges.

The panel has voted to deny the Federal Appel-

lees’ Petition for Limited Panel Rehearing.

Judge Graber has voted to deny the petitions for

rehearing en banc of Intervenor-Appellee Goldbelt,

Inc., Intervenor-Appellee Coeur Alaska, Inc., and

Appellee State of Alaska. Judge Hug and Judge

Tashima have voted to recommend denial of the peti-

tions for rehearing en banc.

38a

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

SOUTHEAST ALASKA

CONSERVATION

a peo ——y No. 1:05-cv-00012-JKS

CANAL CONSER- MEMORANDUM

VATION, DECISION

— [Re: Motions at Dockets

Plaintiffs, 41 and 80]

UNITED STATES ARMY

CORPS OF

ENGINEERS;

COLONEL TIMOTHY J.

GALLAGHER, in his of-

ficial capacity as District

Engineer; LARRY L.

REEDER, in his official

capacity as Chief of the

Regulatory Branch;

JOHN C. LEEDS, I], in

his capacity as manager

of the Juneau Field Of-

fice; GLEN E. JUSTIS, in

his capacity as Chief of

the East Section;

DOMINIC IZZO, in his

official capacity as Prin-

39a

cipal Deputy Assistant

Secretary of the Army

(Civil Works);

and UNITED STATES

FOREST SERVICE,

Defendants,

and

COEUR ALASKA, INC.;

STATE OF ALASKA;

and GOLDBELT, INC.,

Defendant-

Interveners.

I. PROCEEDINGS

Piaintiffs Southeast Alaska Conservation Coun-

cil, Sierra Club, and Lynn Canal Conservation

appeal the decision of the U.S. Army Corps of Engi-

neers (“Corps”) decision to grant permits to Coeur

Alaska, Inc. and Goldbelt, Inc, under § 404 of the

Clean Water Act (“CWA”).! Plaintiffs seek to vacate

the § 404 permits, Record of Decision and plan of op-

erations, and permanently enjoin the Corps and

Forest Service from allowing any activities author-

ized by the vacated permits, ROD, and plan of

operations. At Docket No. 41 Plaintiffs have moved

for summary judgment. At Docket No. 80 the Federal

Defendants have opposed the motion and cross-

1 33 U.S.C. § 1344.

40a

moved for summary judgment in their favor? At

Docket Nos. 61, 67, and 71, respectively, Interveners

Goldbelt, Inc., State of Alaska, and Coeur Alaska,

Inc. have filed oppositions to Plaintiffs’ motion. City

and Borough of Juneau and Berners Bay Consortium

have filed amici briefs in opposition to Plaintiffs’ Mo-

tion at Docket Nos. 88 and 92, respectively. At

Docket No. 97 Southeast Conference has filed an

amicus brief in support of the Plaintiffs’ motion.

Plaintiffs have replied to the opposition.

At Docket Nos. 83 and 86 Intervener Coeur

Alaska and the Federal Defendants have requested

oral argument. The Court having reviewed the mov-

ing papers, oppositions, and amici briefs has

determined that oral argument would not assist the

court in deciding the motions. The requests for oral

argument are DENIED.

Il. BACKGROUND?

The permit granted Coeur Alaska allows it, as

the operator of the Kensington Mine, to discharge

approximately 210,000 gallons per day of tailings

remaining after gold ore is processed using the

“froth-flotation process” as “fill material” directly

2 For convenience, the named defendants are referred to

collectively as “Federal Defendants.”

4 The background and history of this case are well

known to the parties and, in the interests of brevity, will

not be replicated here except as necessary to an under-

standing of the Court’s decisivn.

4la

into Lower Slate Lake. The lake will be utilized as a

storage facility impounding the tailings.4

After the ore is extracted from the ground, it will

be processed through crushing, grinding, flotation,

thickening and filtration.5 After the ore is crushed

and ground, it is fed to the flotation tanks in slurry

form, where air, conditioners and frothing agents

will be added to cause the gold-bearing minerals to

attach to air bubbles at the top of the tank.6 The

gold-bearing froth is then skimmed off and further

concentrated in additional flotation tanks.?7 Most of

the chemicals added to the system will stay in the

flotation tanks or be removed with the flotation con-

centrate, not discharged with the _ tailings.§

Similarly, most of the other metals will be removed

from the system along with the gold concentrate, not

discharged with the tailings. Following the final flo-

tation, the ore concentrate is dewatered and placed

in specialized, sealed marine transport containers for

shipment to a facility outside Southeast Alaska for

further processing.19 No cyanide processing will take

Agency Record (“AR”), Vol. 8, 003328.

AR Vol. 8, 003360-61; see also Vol. 1, 000021.

AR Vol. 8, 003360-61.

Id.

Id.; see also AR Vol. 1, 000005.

10 AR Vol. 1, 000005; Vol. 8, 003360-61.

cn Nn hh OO me

42a

place at the Kensington Mine or elsewhere in South-

east Alaska.!1

“Tailings” are the solid material left in the bot-

tom of the flotation tanks after the gold-bearing

material has been removed.!? Using “high-grade”

mine operations, approximately 40% of the tailings

should be backfilled to the mine, leaving approxi-

mately 4.5 million tons of tailings to be discharged |

into the Lower Slate Lake impoundment.!® The tail-

ings will be combined with liquid in a slurry and

transported through a 3.5 mile, double-walled, high-

density polyethyiene pipeline approximately 6 inches

in diameter to the lake impowndment.!4 The solid

component of the slurry (i.e., the tailings) will com-

prise approximately 55% of the slurry. Before the

tailings slurry leave the mill, a polymer and floccu-

lant will be added to agglomerate the smaller

tailings and enhance settling of the ta*'inzs once

they are deposited into the lake “npound “i the

tailings slurry is to be dischar . from the bottom of

the submerged pipe and through perforations in that

pipe, which will be moved periodically to ensure

11 AR Vol. 1, 000005, 000021.

12 AR Vol. 8, 003362.

13 AR Vol. 1, 000007; Vol. 8, 003358, 003362, 003367.

14 AR Vol. 8, 003364.

15 Id. The added materials are not toxic and are ex-

pected to have no effect on water quality other than the

benefit of enhancing the settling of the fine material.

16 Td.

43a

be placed at a depth that would prevent remobiliza-

tion of the tailings.!? Upon closure of the mine, the

tailings will fill the lake to its current ordinary high

water mark, thus reaching a depth of approximately

50 feet.18 At that time, the lake will have grown to

approximately 62 acres from its current size of 23

acres, and will be approximately 33 feet deep over

the top of the tailings.19 The discharge of tailings to

the lake impoundment is limited to the pre-specified

volume of 4.5 million tons.29 The tailings must also

be tested quarterly to ensure that there are no sig-

nificant deviations from the original tailings analysis

that might affect monitoring, closure requirements,

water quality or any other permit condition.21

It is anticipated that most aquatic life in Lower

Slate Lake will be lost during mining operations,

primarily due to being covered with the discharged

material.2? Tests on the tailings show that they will

not generate an acid discharge or metals leachate.23

17 AR Vol. 1, 000022.

18 AR Vol. 1, 000013; Vol. 8, 003453.

19 AR Vol. 1, 000013. The increased lake area at closure

is expected to consist of approximately 47 acres of deep-

water habitat and 15 acres of shallow-water habitat. The

15 acres of shallow-water habitat is expected to convert

over time to wetlands or vegetated shallows.

20 See AR Vol. 1, 000068; Vol. 13, 006285.

21 AR Vol. 1, 000022, 000067-68.

22 AR Vol. 1, 000021-22; Vol. 8, 003575.

23 AR Vol. 1, 000030.

44a

While the pH around the discharge pipe is expected

to be toxic to the aquatic environment, it is antici-

pated this will dissipate very rapidly.24 Reclamation

of the 62-acre lake, including capping of the tailings,

is required as part of the project.25 As a result, it is

expected that the lake would recover over time, and

would provide at least equivalent aquatic habitat

and productivity as it does currently.26 This includes

habitat for Dolly Varden char and other aquatic or-

ganisms.2?

Mid-Lake East Fork Slate Creek, an upstream

tributary of Lower Slate Lake, will be diverted

around the lake impoundment by a pipeline.2® Fur-

ther, a “reverse osmosis” water treatment system

will be constructed to remove solids and metals from

the lake impoundment water before any of that wa-

ter is allowed to enter downstream waters.29 The

treated water will be transported from the treatment

plant to the diversion pipeline, and then flow via a

spillway to East Fork Slate Creek, downstream of

the lake, eventually joining Slate Creek and entering

24 AR Vol. 1, 000022.

25 AR Vol. 1, 000013, 000015, 000022-23. A reclamation

bond on the operation is being held to ensure that the

lake is reclaimed in accordance with the approved plans.

See AR Vol. 1, 000005.

26 AR Vol. 1, 000022-23; Vol. 8, 003573-76.

27 AR Vol. 1, 000022-23, 000069; Vol. 8, 003573-76

28 AR Vol. 8, 003367.

29 AR Vol. 1, 000015; Vol. 8, 003367.

45a

Berners Bay.3° Discharges of the treated water from

Lower Slate Lake are subject to a CWA § 402

NPDES permit and must meet state water quality

standards.31

The overall impact of the project permitted by

the Corps and EPA is to convert Lower Slate Lake

into a temporary settling pond for the disposal and

treatment of the tailings generated by the mining

operations at the Kensington Mine. Broadly stated,

the project entails; (1) isolating Lower Slate Lake

from the rest of the drainage system, (2) using the

lake as a tailing storage facility impounding the tail-

ings, and (3) restricting the release of water into the

downstream drainage system to that which meets

the requirements of § 402. The adverse impact, pri-

marily the destruction of aquatic life, is expected to

be limited to Lower Slate Lake. At the termination of

the mining operations, restoration of the lake as an

aquatic resource is expected to occur.

Ill. ISSUES

Plaintiffs contend that the permitting process in-

volved in this case was governed by the more

30 Jd.

31 AR Vol. 1, 000005. The State agreed in its CWA § 401

certification that the water discharged from the tailings

disposal facility (Lower Slate Lake) to East Fork Slate

Creck, which was permitted under a CWA § 402 NPDES

permit, would meet state water quality standards. AR

Vol. 2,001101. Plaintiffs do not challenge the issuance of

this permit.

46a

stringent requirements of § 402 of the CWA,32 not

§ 404. At the heart of the controversy are the regula-

tions defining “fill material.” The Environmental

Protection Agency (“EPA”) and the Corps use the

same definition.33

(e) (1) Except as specified in para-

graph (e)(3) of this section, the term fill

material means material placed in wa-

ters of the United States where the

material has the effect of:

(i) Replacing any portion

of a water of the United States

with dry land; or

(ii) Changing the bottom

elevation of any portion of a wa-

ter of the United States.

(2) Examples of such fill material

include, but are not limited to: rock,

sand, soil, clay, plastics, construction

debris, wood chips, overburden from

mining or other excavation activities,

and materials used to create any struc-

ture or infrastructure in the waters of

the United States.

(3) The term fill material does

not include trash or garbage.

32 33 U.S.C. § 1342.

33° 33 C.F.R. § 323.2(e) (Corps); 40 C.F.R. § 232.2 (EPA).

[Note: The quoted provision is the Corps’ regulation; the

definition in the EPA regulations is identical except that

the definitions are not set forth in separate subdivisions.]|

47a

Also relevant is the definition of “discharge of fill ma-

terial,” defined as:34

(f) The term discharge of fill material

means the addition of fill material into

waters of the United States. The term

generally includes, without limitation,

the following activities: Placement of

fill that is necessary for the construction

of any structure or infrastructure in a

water of the United States; the building

of any structure, infrastructure, or im-

poundment requiring rock, sand, dirt, or

other material for its construction; site-

development fills for recreational, in-

dustrial, commercial, residential, or

other uses; causeways or road fills;

dams and dikes; artificial islands; prop-

erty protection and/or _ reclamation

devices such as riprap, groins, seawalls,

breakwaters, and revetments; beach

nourishment; levees; fill for structures

such as sewage treatment facilities, in-

take and outfall pipes associated with

power plants and subaqueous utility

lines; placement of fill material for con-

struction or maintenance of any liner,

berm, or other infrastructure associated

with solid waste landfills; placement of

overburden, slurry, or tailings or similar

mining-related materials; and artificial

reefs. The term doves not include plow-

31 33 C.F.R. § 323.2(f) (Corps); 40 C.F.R. § 232.2 (EPA)

(emphasis added).

48a

ing, cultivating, seeding and harvesting

for the production of food, fiber, and for-

est products (See §323.4 for the

definition of these terms). See §323.3(c)

concerning the regulation of the place-

ment of pilings in waters of the United

States.

Plaintiffs contends that either: (1) in issuing the

permit, the Corps misapplied the regulations; or

(2) if the regulations were properly applied, the regu-

lations are invalid as contrary to the CWA.%5 The

real crux of the question before this Court is: Under

§ 404, may the Corps authorize the use of waters of

the United States as a settling pond? For the reasons

stated below, the Court holds that it may.

IV. STANDARD OF REVIEW

This Court in reviewing an agency decision may

set it aside if the agency action is “arbitrary, capri-

cious, an abuse of discretion, or otherwise not in

accordance with law.”36 It is self-evident that an

35 The Court notes that Plaintiffs also challenges the

granting of the permit on the grounds that it does not

meet the requirements of the several sections of the CWA,

e.g., §§ 306(e) and 311(e). This argument must be rejected.

If the permit was properly issued under § 404, those pro-

visions of the CWA are inapplicable. The applicable

standard to be applied are the guidelines promulgated by

the EPA based on criteria specified in 33 U.S.C. § 1343(c).

See also 33 C.F.R. 323.6(a). If the permit was not properly

issued under § 404 it is invalid in any event and the ar-

gument of Plaintiffs moot.

36 5 U.S.C. § 706(2)(A).

49a

agency decision based upon an invalid regulation or

the misapplication of a regulation is “otherwise not

in accordance with law.”?7

In determining the validity of agency regula-

tions, this Court must apply the rule established by

the U.S. Supreme Court in Cheuron.38

When a court reviews an agency’s

construction of the statute which it ad-

ministers, it is confronted with two

questions. First, always, is the question

whether Congress has directly spoken

to the precise question at issue. If the

intent of Congress is clear, that is the

end of the matter; for the court, as well

as the agency, must give effect to the

unambiguously expressed intent of

Congress.* * * * [I)f the statute is silent

or ambiguous with respect to the spe-

cific issue, the question for the court is

whether the agency's answer is based

on a permissible construction of the

statute.

37 See, e.g., Regents of the Univ. of California v. Heckler,

771 F.2d 1182, 1187 (9th Cir. 1985) (invalid regulation),

overruled on other grounds by Good Samaritan Hosp. v.

Shalala, 508 U.S. 402 (1993); Alaskan Trojan P’ship v.

Gutierrez, 425 F.3d 620, 627-628 (9th Cir. 2005) (agency

interpretation of its own regulations)

38 Chevron v. NRDC, 467 U.S. 837, 842-843 (1984) (foot-

note omitted)

50a

The Supreme Court has, however, placed a limitation

on the application of Chevron.39

Deference in accordance with Chev-

ron, however, is warranted only when it

appears that Congress delegated au-

thority to the agency generally to make

rules carrying the force of law, and that

the agency interpretation claiming def-

erence was promulgated in the exercise

of that authority. Otherwise, the inter-

pretation is entitled to respect only to

the extent it has the power to persuade.

When reviewing the interpretation of agency

regulations, courts must give substantial deference

to an agency’s interpretation of its own regula-

tions.49 This Court “must defer to the

|[Administrator’s] interpretation unless an alterna-

tive reading is compelled by the regulation’s plain

language or by other indications of the [Administra-

tor’s} intent at the time of the _ regulation’s

promulgation.”41

33 Gonzales v. Oregon, 546 U.S. _,___, 126 S. Ct. 904,

914-915 (2006) (citations and internal quotation marks

omitted).

40 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512

(1994) (citations omitted).

41 Jd. (internal quotation marks and citation omitted);

see also Auer v. Robbins, 519 U.S. 452, 461 (1997) (an

agency's interpretation of its own regulations is “control-

ling unless plainly erroneous or inconsistent with the

regulation”) (citations and internal quotation marks omit-

[Footnote continued on next pagel

5la

IV. DISCUSSION

The CWA divides the permitting process into two

segments. In general, permitting for the discharge of

effluents is vested in the EPA, the granting of which

must meet strict standards.42 Congress has, how-

ever, carved out an exception, vesting primary

permitting authority in the Corps for the disposal of

“dredged or fill material” into navigable waters at

specified disposal sites.443 The standards to be ap-

plied for the issuance of these permits is determined

in accordance with guidelines developed by the EPA

in conjunction with the Corps, and are significantly

less stringent.44

Turning first to the issue of the validity of the

regulation. Congress has clearly and unequivocally

delegated authority to the EPA to issue regulations

necessary to carry out its functions under the

[Footnote continued from previous page]

ted); Wards Cove Packing Co. v. NMFS, 307 F.3d 1214,

1218 (9th Cir. 2002) (“An agency’s interpretation of regu-

lations it is charged with administering is entitled to a

high degree of deference and will be upheld as long as it is

not plainly erroneous or inconsistent with the regula-

tion.”) (citations omitted).

12 33 U.S.C. § 1342(a).

43 33 U.S.C. § 1344(a).

44 33 U.S.C. §§ 1344(b\1), 1343(c). The guidelines are

promulgated in 33 C.F.R. Part 230. Plaintiffs do not con-

tends that the permit issued to Coeur Alaska does not

meet these guidelines.

52a

CWA.*5 As noted above, one of the functions of the

EPA is to develop guidelines, in conjunction with the

Corps, for use in guiding the Corps in processing

permits under § 404.46 In the case at bar, it is undis-

puted that Congress has not defined the term “fill

material,” thereby leaving its definition to the EPA,

which the EPA did using the rule-making process of

the Administrative Procedures Act. Accordingly, this

Court must give Chevron-type deference to the EPA’s

definition of “fill material” and “discharge of fill ma-

terial.”47

Plaintiffs argue that the regulations are invalid

because they do not comply with the “expressed in-

tent of Congress.” Specifically, that because they do

not comply with standards promulgated by the EPA,

they are contrary to § 306(e) of the CWA.4® Plaintiffs’

argument on this point is not persuasive. Plaintiffs

do not specify which standard of performance is vio-

lated by these regulations, which simply define what

constitutes fill material within the scope of § 404.

This Court cannot say that the definition of fill mate-

45 33 U.S.C. § 1361(a) (“the Administrator is authorized

to prescribe such regulations as are necessary to carry out

his functions under this chapter.”).

46 33 U.S.C. § 1344(b)(1).

47 See Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 316

F.3d 916, 921 (9th Cir. 2003).

48 33 U.S.C. § 1316(c) (“After the effective date of stan-

dards of performance promulgated under this section, it

shall be unlawful for any owner or operator of any new

source to operate such source in violation of any standard

of performance applicable to such source.”).

53a

rial contained in the regulations promulgated by the

EPA and Corps is not a permissible construction of

the statute. the Agency could reasonably conclude

that its definition is consistent with the distinction

Congress sought to make between § 402 and § 404.

Turning to the interpretation of the regulation

and its application in this case. First, the Court notes

that it is uncontested that the slurry to be dis-

charged into Lower Slate Lake will “change the

bottom elevation” of the lake. Thus, it at least fa-

cially falls within the definition of “fill material”

contained in the regulations. Plaintiffs do not dispute

this. Plaintiffs argue that the inclusion of mine tail-

ings within the definition of “fill material” is contrary

to the agencies’ intent at the time the regulations

were promulgated. Plaintiffs’ argument is essentially

predicated upon the point that at the time the regu-

lations were amended in 2002, the statement

accompanying the notice of adoption of the final rule

made clear that there was no intent to include mine

tailings as “fill material” or “discharge of fill mate-

rial.”49 The provisions cited by Plaintiffs taken alone

and in isolation would support a finding of a clear

indication by the EPA and Corps that the interpreta-

tion advanced by Plaintiffs is correct. However,

Plaintiffs overlook or ignore other statements in-

cluded in the adoption statement that contradict

Plaintiffs’ position. Specifically:

Today’s final rule also includes several

clarifying changes to the term “dis-

49 Quoting various excerpts from 67 Fed. Reg. 31,129 —

31,143 (May 9, 2002).

and,

54a

charge of fill material.” Speciically, the

term “infrastructure” has been added in

several places following the term “struc-

ture” to further define the situations

where the placement of fill material is

considered a “discharge of fill material.”

In addition, the phrases “placement of

fill] material for construction or mainte-

nance of any liner, berm, or other

infrastructure associated with solid

waste landfills” and “placement of over-

burden, slurry, or tailings or similar

mining-related materials” have been

added to the definition of “discharge of

fill material” to provide further clarifica-

tion of the types of activities regulated

under section 404.59

The language in today’s final rule will

clarify that any mining-related material

that has the effect of fill when dis-

charged will be regulated as “fill

material.” We made this clarification

because it was clear from the comments

that some were reading the examples

we identified as an exclusive list. The

general intent of this rule is to cover

materials that have the effect of fill, not

simply to focus on any one industrial ac-

tivity. We believe that the additional

mining related examples will address

50 Jd. 31,130 (emphasis added).

55a

the confusion reflected in the comments.

Finally, as discussed in section [I.B.1.c

of this preamble, we do not agree that

the CWA contains a blanket prohibition

precluding discharges of “waste” mate-

rials in to waters of the U.S. Instead,

the Act establishes the framework for

regulating discharges into waters and

we believe the section 404 program is

the most appropriate vehicle for regu-

lating overburden and other mining-

related materials.®!

Contrary to the arguments of Plaintiffs, the in-

terpretation of the regulations in this case is not

contrary to the intent of the EPA Administrator at

the time she adopted the regulations in question.

While Plaintiffs may offer another plausible inter-

pretation of the regulations in question, that

interpretation is not the only reasonable interpreta-

tion of the regulation and does not compel this court

to strike down the Corps’ different interpretation.52

Congress has deemed it appropriate to delegate to

the Administrator of Environmental Protection

Agency and the Secretary of the Army to coordinate

their respective jurisdictions under the Clean Water

Act. This they have done by duly adopted regulations

to which this Court must defer. The Corps properly

issued the permit to Coeur Alaska, Inc. under § 404

of the Clean Water Act.

51 Jd., 31,135 (emphasis added).

52 Akootchook v. United States, 271 F.3d 1160, 1167 (9th

Cir. 2001).

56a

Plaintiffs also seek to set aside the permit issued

to Goldbelt, Inc. to construct a marine terminal facil-

ity. As a basis for this action, Plaintiffs rely on the

assumption that Coeur Alaska’s § 404 permit will be

revoked and, therefore, the need for the marine ter-

minal facility becomes moot. As the Court has held

that the permit to Coeur Alaska was properly issued,

there is no basis for granting the relief requested as

to Goldbelt, Inc. The same rationale applies to the

ROD issued by the Forest Service.

VI. CONCLUSION/ORDER

Based upon the foregoing, Plaintiffs’ Motion for

Summary Judgment at Docket No. 41 is DENIED;

and the Cross-Motion for Summary Judgment filed

by the Federal Defendants at Docket No. 80 is

GRANTED.

IT IS HEREBY ORDERED THAT the complaint

be, and it hereby is, DISMISSED, with prejudice.

The Clerk of the Court to enter judgment accord-

ingly.

Dated at Anchoraye, Alaska, this 3rd day of Au-

gust 2006.

s/ James K. Singleton, Jr.

JAMES K. SINGLETON, JR.

United States District Judge

57a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOUTHEAST ALASKA No. 06-35679

CC NSERVATION COUNCIL;

et al., D.C. No. CV-05-

eas 0012-J-JKS

Plaintiffs-Appellants, District of Alaska,

Vv. Juneau

UNITED STATES ARMY ORDER

CORPS OF ENGINEERS; et al.,

Defendants-Appellees,

COEUR ALASKA, INC.; et al.,

Defendant-Intervenors-

Appellees.

Before: GOODWIN and REINHARDT, Circuit

Judges.

Appellants’ motions to file an over-length motion

and over-length reply are granted. The Clerk shall

file the emergency motion for an injunction pending

appeal and the reply in support of that motion re-

ceived herein on August 10, 2006 and August 22,

2006, respectively.

Appellee Coeur Alaska, Inc.’s motion to strike

appellants’ emergency motion for injunctive relief is

denied.

58a

Appellants’ motion for an injunction pending ap-

peal is granted, without bond. The U.S. Army Corps

of Engineers, the U.S. Forest Service, and Coeur

Alaska, Inc. are hereby enjoined from authorizing,

allowing, or conducting any further construction ac-

tivities relating to the use of Lower Slate Lake as a

disposal site for mine tailings, including, but not lim-

ited to, cutting trees, building roads, clearing

vegetation, excavating or filling wetlands, building

dams or other structures, diverting streams, or alter-

ing the natural water level of Lower Slate Lake or

the natural flow of East Fork Slate Creek, until fur-

ther order of this court.

Nothing in this injunction shall prohibit meas-

ures needed to restore stream flows, stabilize soils, or

prevent erosion.

Appellants’ request for expedited briefing and

hearing of this appeal is granted. The opening brief

and excerpts of record are due September 12, 2006;

the answering brief is due October 3, 2006; and the

optional reply brief is due within seven days after

service of the answering brief.

This appeal will be calendared before the first

available panel in the week of November 13, 2006.

Filed: August 24, 2006

59a

APPENDIX E

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOUTHEAST ALASKA No. 06-35679

CONSERVATION COUNCIL;

et al., D.C. No. CV-05-

ee 0012-J-JKS

Plaintiffs-Appellants, District of Alaska,

Vv. | Juneau

UNITED STATES ARMY |

CORPS OF ENGINEERS: | ORDER

et al.,

Defendants-Appellees,

COEUR ALASKA, INC.; et al., |

Defendant-Intervenors-

Appellees.

Before: HUG, TASHIMA, and GRABER, Circuit

Judges.

Appellee Coeur Alaska, Inc.’s Urgent Motion Un

der Circuit Rule 27-3(b) to Vacate the Injunction

Pending Appeal is denied. The court granted Appel-

lant Southeast Alaska Conservation Council’s

(“SEACC”) Emergency Motion Under Circuit Rule

27-3 on August 24, 2006, at which time the court is-

60a

sued an injunction pending appeal. The court’s order

enjoined Coeur Alaska, the U.S. Army Corps of En-

gineers (“Corps”), and the U.S. Forest Service from

activities relating to the construction of a disposal fa-

cility at Lower Slate Lake. On November 7, 2006,

Coeur Alaska filed its motion to vacate the injunction

due to weather conditions and in light of the U.S.

Supreme Court’s recent decision in Purcell v. Gon-

zalez, 1278S. Ct. 5 (2006).

We conclude that Coeur Alaska’s challenge to the

injunction, to the extent that it is based on Purcell, is

untimely. See 9th Cir. R. 27-10(a). Even if the form

of the injunction were subject to challenge now, we

conclude that Purcell does not require the court to

vacate its injunction. Thus, we c

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