# Reply Brief — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2009

## Text

Ww

B) ey
Nos-@7-984 and 07-990

IN THE
Supreme Court of the United States

COEUR ALASKA, INC.,

Petitioner,
Vv.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,
Respondents.

STATE OF ALASKA
Petitioner,
Vv.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,
Respondents.

On Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

REPLY BRIEF FOR PETITIONER
COEUR ALASKA, INC.

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 Coeur Alaska, Inc.

rte tteeil

hyTy UUZKREH
D oT ~2272R

By

RULE 29.6 STATEMENT

The corporate disclosure statement included in
Coeur Alaska’s petition for a writ of certiorari re-
mains accurate.

il

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF
TTT siciinicibcnnstsitidigsianintiitianintiiiniiiniammeseisinseanes 1

I. COEUR’S TAILINGS SLURRY INDISPUTABLY
Is “FILL MATERIAL” WITHIN THE

MEANING OF THE FILL RULE........................... 6
Il. THE CLEAN WATER ACT AUTHORIZES THE
CORPS TO PERMIT THIS DISCHARGE .............. 12

A. The Text, Structure, And History Of
The Clean Water Act Demonstrate
That EPA Performance Standards
Do Not Apply To Discharges Of Fill
RASTER Se REA a ee ee 13

B. EPA’s Interpretation Of Its
Performance Standard Resolves Any
Question Whether The Corps’
Section 404 Permit Would Violate
te a a 20

Ill. THE CORPS’ RIGOROUS SECTION 404
PERMITTING PROCESS ENSURED THAT
THE KENSINGTON’ TAILINGS PLAN
RESPECTS ENVIRONMENTAL VALUEBS............. 23

I inntenipiinncsethipbiidinlalmediiedtdeninianibinisiawenitids 28

ili

TABLE OF AUTHORITIES
Page(s)
Cases
Auer v. Robbins, 519 U.S. 452 (1997) ......00.00.0e. 22
Bowles v. Seminole Rock & Sand Co.,

I as ssmecennsnn 4,6
Chem. Mfrs. Ass’n v. Natural Res. Def.

RE Ba | ees 5
Chevron, U.S.A. v. Natural Res. Def.

Council, 467 U.S. 837 (1984) ..................... 4, 14,19
Ford Motor Credit Co. v. Milhollin,

I csetinnsielonlibn 14
Hazardous Waste Treatment Council v.

Reilly, 938 F.2d 1390 (D.C. Cir. 1991) .................. 3
HCSC-Laundry v. United States,

I lll 20
Kalur v. Resor, 335 F. Supp. 1 (D.D.C. 1971)........... 18
LaRouche v. FEC,

eg | 3
Long Island Care at Home, Ltd. v. Coke,

gg oe RL. 5 Ren ee: 9, 22
Reserve Mining Co. v. EPA,

ee ee I Ee BP vccenttnnsctscccsccdcesacscccces 17
S.D. Warren Co. v. Me. Bd. of Envtl. Prot.,

a cali 16

U.S. Postal Serv. v. Gregory,
al 22

iv

TABLE OF AUTHORITIES—CONTINUED

Page(s)

United States v. Locke,

I iicciescieiichiientaianiesiiptiiihiniidonibeniaaiieel 6
United States v. Riverside Bayview Homes,

I acetals 10
Statutes
ii cnleceasciicaineecbiitiisa 2, 13, 21
a aia asa cteaiisatrianstuniiiniibitusitiddadisinl 17
a I es siihcliiobiphigibilaigieaeeiniicaiibeciialaaaaila 14
ike sls cednieeianiiniiennapihaianeels 6,15
ee Pes TF BEEP scccicssoscsecsseses ydiiibitilieainenaedinaieiiasanbialile 16
i oaiatinceniinincdiompinihinnisaniainconbiiinia 15, 17
I i iiainctanssrdnicschicidiniptaibciimeninnpnlimiliaiit 15
dina insaidesdein dieciiniccchedibuinabapiabendadialll 18
te eee eS 15
I I i ciicifasiieisiciitciemindaiastisidies inbensseaiil 28
EI a ae Ee Ta 16
EE 15
Regulations
SE eee eae a= 19
I on tnsss sa nduseanneneentiintnnnnddsepenniies 3, 6, 10
EN eee ae i 23
te cancers anlilel 8,9

I I hoa da nccceiliciomiientnnendibsuaneoniiiouten 16

Vv

TABLE OF AUTHORITIES—CONTINUED

Page(s)
SGA ee 0 ED cevisccesccnsctacsinsnisicicictinmaaaeae 18
re Oe I sccccissesncvasinxesorcsenetniiaiinnmaniaae 18
ee I erctcesecuniccenssexioressnticiinsiiiianciinunaile 3
A ID sven criccnnceteseestsciniitninmeamainmaian 1
a 5, 25
Other Authorities
118 Comm, Bec. BB, 765 CIDTS) .ccccscsccccscessccscccccseee 17, 18

Central Park Conservancy, Reservoir, at
http://www.centralpark.com/pages/
SECTACTIOMATORST VON THOME occccccccccccsccsseccscccscesscnces 24

Final Revisions to the Clean Water Act
Regulatory Definitions of “Fill Material”
and “Discharge of Fill Material,” 67 Fed.
Be Bec Ce icecsiniiiainsessehcttassindineendapenaciaivd passim

Hearing on Clean Water Act Definition of
Fill Before the Subcomm. on Clean Air,
Wetlands, and Climate Change of the S.
Committee on the Environment and
IS CLE RENE toe LAS ROT MRS SE 7

NATIONAL PARKS SERVICE, HISTORIC
AMERICAN BUILDING SURVEY,
PHOTOGRAPHS: WRITTEN HISTORICAL
DESCRIPTIVE DATA, WEST POTOMAC PARK

Press Release, Sierra Club, Bush
Administration Allows Waste Dumping

in America’s Rivers and Streams (May 3,
ITED <cudcitsonisseascnsinddnnnsihcnsaniadaaiammnn aaa ran 7

vl

TABLE OF AUTHORITIES—CONTINUED
Page(s)
The Pentagon - Facts & Figures......................cceeeeees 27
Water Pollution Control; Memorandum of

Agreement on Solid Waste 51 Fed. Reg.
i enedesnocenonnciia 9

REPLY BRIEF FOR PETITIONER
COEUR ALASKA, INC.

INTRODUCTION AND
SUMMARY OF ARGUMENT

SEACC’s defense of the Ninth Circuit’s decision
is, for the most part, an exercise in misdirection. It
fails to provide any persuasive rationale for the
Ninth Circuit’s invalidation of the Section 404 permit
issued to Coeur Alaska by the Corps of Engineers in
accordance with the directives of Section 404 and its
implementing “Fill Rule.”

SEACC begins with a blatantly misleading de-
scription of Coeur Alaska’s proposed tailings dis-
charge, suggesting that Coeur’s proposed tailings
slurry might pollute the impounded aquatic envi-
ronment with metals or even cyanide. SEACC Br. 3-
4. Yet, the Corps’ record of decision reveals that
“(tlhere will be no cyanide ... added to the milling
circuit,” that “the tailings will not be a generator of
acid or heavy metals,” and, indeed, that “the alumi-
num concentrates in the tailings [are] less than that
in the lake sediment.” J.A. 360a—6la (emphasis
added).

It then resorts to word games. Even though it
was happy enough to refer to Coeur’s proposed dis-
charge as “mine tailings” in its complaint, e.g., J.A.
460a J 2, SEACC now foists on this tailings slurry
the unwieldy label, “process wastewater contain|ing]
significant quantities of suspended solids,” SEACC
Br. 2. But it is absurd to speak of a discharge that is
55% solid by weight in terms of “suspended solids.”
EPA measures “suspended solids” in milligrams per
liter. 40 C.F.R. § 440.104(a) (limiting total sus-
pended solids in drainage from gold mines to 20

2

mg/L). According to the Ninth Circuit (J.A. 519),
Coeur’s mostly solid tailings slurry contains 1.64
kilograms of “suspended solids” per liter, a substance
several orders of magnitude more “solid” than envi-
sioned by EPA’s performance standards. Whatever
label SEACC might place upon it, no one disputes
that Coeur’s tailings slurry will raise the bottom ele-
vation of Lower Slate Lake by 50 feet.

Finally, SEACC suggests that Coeur’s diligent
pursuit of a Section 404 permit masks an attempt “to
escape EPA effluent limitations.” SEACC Br. 44.
But far from “escap[ing] EPA effluent limitations,”
Coeur sought and received from EPA a Section 402
permit limiting discharges of effluent from its tailing
impoundment into downstream waters. J.A. 317a.
SEACC simply refuses to come to grips with the fact
that EPA has never regulated discharges of mine
tailings into impounded waters of the United States.

When the subterfuge is stripped away, there is
left just one legal question: Whether, by issuing a
Section 404 permit in accordance with the plain lan-
guage of the Fill Rule’s definitions of “fill material”
and “discharge of fill material,” the Corps acted in a
manner that is “arbitrary, capricious, [or] not in ac-
cordance with law.” 5 U.S.C. § 706(2). Though the
Ninth Circuit perceived no challenge to the “validity
of these regulations,” J.A. 54la n.12, SEACC does. It
maintains that it has challenged the Fill Rule, as “in-
terpreted” by the Corps, all along. SEACC Br. 17;
see also SEACC’s C.A. Resp. to Pets. for Reh’g En
Banc 12 (“SEACC does not challenge this regulation
(unless it is misinterpreted to conflict with the Clean
Water Act)”).

It is not immediately clear that administrative
law embraces an “as interpreted” challenge to a regu-

3

lation where, as here, that regulation is conceded to
be a facially valid interpretation of the underlying
statute. See LaRouche v. FEC, 28 F.3d 137, 141
(D.C. Cir. 1994) (“There is a one-word response to
these arguments: ‘Chevron.”). Nor is it clear that
such a challenge differs in any meaningful respect
from a challenge to the agency’s interpretation of its
regulation simpliciter. See Hazardous Waste Treat-
ment Council v. Reilly, 938 F.2d 1390, 1395 (D.C.
Cir. 1991) (suggesting that an agency’s interpreta-
tion of its own regulation “must also meet the test of
consistency with the underlying statute”). Regard-
less, SEACC’s challenge plainly fails on its own
terms.

In analyzing SEACC’s “as interpreted” challenge
to the Fill Rule, the first question, logically, is
whether the Corps, in issuing a permit for Coeur’s
proposed discharge, has reasonably interpreted its
own Fill Rule. The Fill Rule defines “discharge of fill
material” to include specifically “overburden, slurry,
or tailings or similar mining-related materials.” 33
C.F.R. § 323.2(; 40 C.F.R. § 232.2. Though SEACC
concedes that regulation is “not ambiguous,” and, in-
deed, even that Coeur’s discharge “meet(s] [its] defi-
nition of ‘fill material,” SEACC Br. 20, 46, it never-
theless contends that the history of the Fill Rule
demonstrates that the Corps and EPA did not intend
the Fill Rule to encompass mine tailings produced by
an industrial source subject to EPA effluent restric-
tions. See id. 55-57.

SEACC’s reading of that regulatory history is
dubious, and its contention that EPA and the Corps
did not intend their Fill Rule to permit the discharge
of Coeur’s type of mine tailings is flatly contradicted

4

by numerous pre-litigation complaints that the Fill
Rule would do just that.

But even if the regulatory history were exactly as
SEACC now describes, its concession that the Fill
Rule is “not ambiguous” would be fatal to its argu-
ment. The law is clear that if an agency’s interpreta-
tion is consistent with “the plain words of the regula-
tion,” that is the end of the matter. Bowles v. Semi-
nole Rock & Sand Co., 325 U.S. 410, 414 (1945).
Here, the Corps’ interpretation of the regulation is
not merely consistent with the “plain words” of the
Fill Rule, but commanded by it. The Corps’ interpre-
tation of the regulation therefore must be given “con-
trolling weight.” Id.

SEACC’s next and principal contention—that the
Corps’ interpretation of the Fill Rule violates the
Clean Water Act by permitting a discharge that Sec-
tion 306(e) prohibits—also lacks merit. SEACC ac-
knowledges that the analysis of its statutory claim
must be guided by the framework of Chevron, U.S.A.
v. Natural Resources Defense Council, 467 U.S. 837,
842-43 (1984). SEACC Br. 20. Because it advances
no argument that the Corps’ interpretation fails un-
der Chevron’s second step, SEACC can prevail only if
“Congress has directly spoken to the precise question
at issue” and resolved it in SEACC’s favor. Chevron,
467 U.S. at 842.

Ilere, the “precise question at issue” is whether
Congress intended discharges of “fill material” de-
scribed in Section 404 to be regulated by the Section
404(b\(1) guidelines, or rather, at EPA’s option, by
effluent restrictions promulgated by EPA as part of
the National Pollution Discharge Elimination Sys-
tem (“NPDES”) set out in Section 402. The “tradi-
tional tools of statutory construction” (Chevron, 467

5

U.S. at 843 n.9), point overwhelmingly to the conclu-
sion that Congress intended “fill material” to be
regulated by the Corps under Section 404, subject to
the water-quality requirements developed by EPA
under Section 404(b)(1) and to EPA’s permit veto
power under Section 404(c).

At most, the assertedly categorical nature of Sec-
tion 306(e)’s prohibition creates an ambiguity in “this
very ‘complex statute.” Chem. Mfrs. Ass’n v. Natural
Res. Def. Council, 470 U.S. 116, 125 (1985). For
more than thirty years, EPA and the Corps have in-
terpreted the Act to grant the Corps jurisdiction over
any discharge that satisfies the prevailing regulatory
definition of “fill material,” and to grant EPA juris-
diction over discharges of all other pollutants.
SEACC’s absence of contrary argument effectively
concedes that, if the Act is ambiguous, the longstand-
ing regulatory division of labor reflected in the Fill
Rule is a permissible means of resolving that ambi-
guity.

But even if the Act rejected that regulatory divi-
sion of labor and unambiguously required the Corps
to cede its Section 404 authority to regulate dis-
charges of “fill material” whenever EPA sought to
regulate such a discharge through an effluent re-
striction, SEACC still could not prevail in this case.
SEACC’s argument that the Corps’ “fill material”
permit violates Section 306(e) is predicated on its as-
sertion that the “discharge from the Kensington
mine’s beneficiation mill is prohibited by a new
source performance standard adopted by EPA”’—
specifically, EPA’s performance standard for process
wastewater from gold froth-flotation mills, 40 C.F.R.
§ 440.104(b)(1). SEACC Br. 20. But EPA, the
agency charged with promulgating, administering,

6

and enforcing that performance standard, plainly
disagrees, concluding that “effluent limitations
guidelines and standards, such as those applicable to
gold ore mining .. . do not apply to the placement of
tailings into the proposed impoundment.” J.A. 144a—
45a (emphasis added).

There accordingly was no basis for the Ninth
Circuit’s conclusion that Coeur’s proposed discharge
would be “in violation of [EPA’s] standard of per-
formance,” 33 U.S.C. § 1316(e), much less its conclu-
sion that the Corps acted “not in accordance with
law” when it abided by EPA’s interpretation of the
scope of its own effluent restriction.

I. COEUR’S TAILINGS SLURRY INDISPUTABLY Is
“FILL MATERIAL” WITHIN THE MEANING OF
THE FILL RULE

The Ninth Circuit held that the Corps unrea-
sonably interpreted the Fill Rule’s definition of “dis-
charge of fill material” —defined by EPA and the
Corps to include specifically placement of “slurry, or
tailings or similar mining-related materials,”
33 C.F.R. § 323.2()—to encompass Coeur’s proposed
placement of a tailings slurry. J.A. 546a—47a. With
no answer to the “the plain words of the regulation,”
Seminole Rock, 325 U.S. at 414, or the axiom that
where language “is plain and the agency’s construc-
tion completely consistent with that language, the
agency’s construction simply cannot be found ‘suffi-
ciently unreasonable’ as to be unacceptable,” United
States v. Locke, 471 U.S. 84, 96 (1985)—indeed,
SEACC concedes that Coeur’s tailing slurry “meet|s]
the agencies’ definition of fill material,” SEACC Br.
20—SEACC defends the Ninth Circuit’s conclusion
with a subtle twist on that court’s reasoning.

7

Where the Ninth Circuit held that the Corps’ is-
suance of a permit to Coeur contravened “dispositive”
“regulatory history,” J.A. 547a, SEACC now contends
that the preamble to the Fill Rule essentially applied
a narrowing construction to the regulation’s textual
definitions of “fill material” and “discharge of fill ma-
terial” that excludes any discharge from sources
regulated by EPA effluent restrictions, and that the
Corps’ unreasonably deviated from that narrowing
construction by permitting Coeur’s discharge.

This supposed narrowing construction must have
been quite obscure because SEACC did not assert its
existence until several years after the regulation was
promulgated. Quite the contrary, when the Fill Rule
was first promulgated, respondent Sierra Club de-
cried the fact that the new Fill Rule allowed Section
404 permits for the discharge of “hardrock mining
waste.”! And one month later, SEACC’s counsel of
record, Earthjustice, testified before a Senate sub-
commitee and complained that the new Fill Rule
would allow mining companies “to apply for a § 404
‘fill’ permit from the Corps .. . even if the waste to be
discharged has an effluent limitation and would oth-
erwise be regulated under § 402 of ihe law.”

In fact, as the pre-litigation statements of the Si-
erra Club and their counsel suggest, the preamble to

1 See Press Release, Sierra Club, Bush Administration Allows
Waste Dumping in America’s Rivers and Streams (May 3,
2002), http://www.commondreams.org/news2002/0503-11.htm.

2 Hearing on Clean Water Act Definition of Fill Before the
Subcomm. on Clean Air, Wetlands, and Climate Change of the
S. Committee on the Environment and Public Works,
http://epw.senate.gov/107th/Mulhern_060602.htm (2002)
(statement of Joan Mulhern, Senior Legislative Counsel, Farth-
justice Legal Defense Fund) (emphasis added).

8

the Fill Rule does not include the narrowing con-
struction on which SEACC now relies. SEACC ze-
roes in on statements that the rule “is generally con-
sistent with current agency practice” and “generally
is intended to maintain our existing approach,”
SEACC Br. 12, 13 (quoting Final Revisions to the
Clean Water Act Xegulatory Definitions of “Fill Ma-
terial” and “Discharge of Fill Material,” 67 Fed. Reg.
31,129, 31,129, 31,133, 31,135 (2002)), and claims
that they demonstrate that EPA and the Corps did
not intend (plain language of their regulation not-
withstanding) to allow the Corps to permit this dis-
charge. See SEACC Br. 56. They argue that because
Coeur’s tailings slurry likely would not have been
deemed by the Corps to be Section 404 fill material
under its previous purpose-based test, the agencies’
disclaimer of “any intention to change their existing
practice,” must mean that they did not intend to
change their characterization of—and the regulatory
regime applicable to—Coeur’s discharge. /d.

But the “approach” and “practice” that the agen-
cies sought to maintain was not the then-uncertain
boundaries of the Corps’ Section 404 permit program;
it was the agencies’ longstanding use of the regula-
tory definition of “fill material” as the line of demar-
cation between the Corps’ permit program and
EPA’s. For decades, EPA had recognized that
“(djischarges of dredged or fill material . . . which are
regulated under section 404” “do not require NPDES
permits.” See 40 C.F.R. § 122.3(b). Accordingly,
even under the 1986 MOA, discharges of fill material
that met the Corps’ definition of fill material “re-
mainled] subject to section 404 even if they oc-
cur{red] in association with discharges of waste
meeting the criteria in the agreement for section 402
discharges.” See Water Pollution Control; Memoran-

9

dum of Agreement on Solid Waste, 51 Fed. Reg.
8,871, 8,871 (1986).3

The preambular statements on which SEACC
places most reliance are located within the agencies’
explanation of their decision to “delete[] the exclusion
contained in the proposal for discharges covered by
effluent limitation guidelines or standards or
NPDES permits.” Final Revisions, 67 Fed. Reg. at
31,135 (emphasis added). It was in that context that
the agencies explained that eliminating the exclusion
would not “alter the manner in which water quality
standards currently apply under the section 402 or
the section 404 programs” because “EPA has never
sought to regulate fili material under effluent limita-
tion guidelines.” Jd. (emphasis added). Retaining
the proposed exclusion, on the other hand, “would
result in uncertainty with respect to the regulation of
certain discharges.” Jd. Indeed, the agencies’ re-
sponse to comments suggests that the exclusion was
deleted specifically because it “could inadvertently
result in attempts by regulators ... to have dis-
charges excluded from section 404 coverage simply
due to the presence of constituents in the material

3 SEACC argues that the absence of a comma in 40 C.F.R.
§ 122.3(b) implies that “some ‘fill material’ discharges are not
regulated under Section 404” and remain subject to regulation
under Section 402. SEACC Br. 47. Whatever one’s assessment
of SEACC’s view of “proper grammar,” id. 48, it is clear that
EPA has never subscribed to it. See Fed. Resp'ts Br. 27; see also
J.A. 74a (“under the existing EPA definition, material that has
the effect of fill, regardless of the purpose of the discharge, is
deemed fill material, and as such is not regulated under the
Section 402 program”). EPA’s interpretation of its regulation is
not remotely “plainly erroneous,” and, therefore, is controlling
See Long Island Care at Home, Ltd. v. Coke, 127 8. Ct. 2339,
2349 (2007).

10

for which effluent guidelines exist” such as “mine
drainage or process waste water.” J.A. 45a—46a.

Rather than introduce confusion into a regula-
tion designed to produce clarity, the agencies decided
to delete the exclusion and “maintain [the] existing
approach” with EPA “never” regulating discharges
that satisfy the Corps’ definition of fill material. Fi-
nal Revisions, 67 Fed. Reg. at 31,135. SEACC can-
not through this litigation “reintroduce[] into the
regulation precisely what the Corps had excised,”
United States v. Riverside Bayview Homes, 474 U.S.
121, 130 (1985), particularly when to do so would up-
end the regulatory paradigm the Corps and EPA
have jointly followed since 1973.

Although the Fill Rule did not alter the agencies’
use of the regulatory definition of “fill material” as
the dividing line between the Corps’ and EPA’s regu-
latory programs, it did quite clearly change the defi-
nition of “fill material.” In order to “ensure a clear,
effective, and consistent regulatory approach with
regard to materials that have the effect of fill,” the
agencies reconciled their conflicting definitions of
“fill material” by adopting EPA’s effects-based test,
and “providied] a single consistent definition of the
terms ‘fill material’ and ‘discharge of fill material.”
J.A. 73a. In the final rulemaking, the agencies
amended the definition of “discharge of fill material”
to include explicitly “slurry, or tailings or similar
mining-related materials,” 33 C.F.R. § 323.2(f), to
“clarify that any mining-related material that has
the effect of fill when discharged will be regulated as
‘fill material,” Final Revisions, 67 Fed. Reg. at
31,135 (emphasis added).

But even this change in the definition of “fill ma-
terial” did not materially “expand the types of dis-

11

charges that will be covered under section 404,” Fi-
nal Revisions, 67 Fed. Reg. at 31,133 (emphasis
added), because, as the agencies explained when re-
sponding to comments on the proposed rule, “mining
by-products such as those resulting from mining
beneficiation or ... processing ... may have a
slightly different physical form from the traditional
rock and soil used as fill material, but ... can have
the same effect on the aquatic environment.” J.A.
92a—93a. Moreover, under the Section 404(b) guide-
lines, the applicant is required to “demonstrat[e] that
there are no less damaging alternatives to the dis-
charge, and that all appropriate and practicable
steps have been taken to avoid, minimize and com-
pensate for any effects on the waters.” Final Revi-
sions, 67 Fed. Reg. at 31,133.4

Thus, while the Fill Rule clarified and shifted
slightly the line of demarcation between the Corps’
and EPA’s permitting programs (and explained that
policy shift at length), it did not change in any way
the method by which that line is drawn. Now, as
since 1973, it is drawn solely by reference to the
regulatory definition of fill material. If the Corps de-
termines that a discharge satisfies its definition of
fill material, the discharge is regulated by the Corps

4 SEACC claims that the agencies “notled] that mine tailing
discharges subject to effluent limitations would remain so and
that section 402 permits would still be needed for ‘process wa-
ter’ discharges.” SEACC Br. 56. SEACC must be referring to
the agencies’ statement that “if FPA has previously determined
that certain materials are subject to an ELG under specific cir-
cumstances, then that determination remains valid.” J.A. 48a.
But, under the “specific circumstances” of this case, EPA has
determined that its effluent restrictions “do not apply to the
placement of tailings into the proposed impoundment.” /d.
145a (emphasis added).

12

under Section 404, in accordance with the water-
quality requirements set forth in the Section
404(b)(1) guidelines and subject to EPA’s permit veto
under Section 404(c). “EPA has never sought to regu-
late fill material under effluent guidelines.” Final
Revisions, 67 Fed. Reg. at 31,135 (emphasis added).

SEACC’s suggested preambular narrowing con-
struction of the Fill Rule is entirely a figment of its
zealous advocacy—a reflection of what the Fill Rule
might have looked like if the agencies had adopted
rather than rejected the suggestions made by
SEACC and the Sierra Club in their comments on
the proposed rule. The plain language of the Fill
Rule stands on its own, and there is no serious dis-
pute that Coeur’s tailings slurry satisfies its defini-
tions of “fill material” and “discharge of fill material.”
The Corps and EPA reasonably interpreted its Fill
Rule in making that determination.

II. THE CLEAN WATER ACT AUTHORIZES THE
CorPs To PERMIT THIS DISCHARGE

Abandoning any reliance on Section 301 of the
Act, (what once was featured argument, see SEACC
C.A. Br. 34, is now, belatedly, a “sideshow,” see
SEACC Br. 38), SEACC rests its statutory argument
on a single contention: that the Corps’ issuance of a
Section 404 permit for Coeur’s tailing slurry violates
the Clean Water Act by permitting a discharge that
Section 306(e) allegedly prohibits. That argument
fails for at least two independent reasons. First, as
the Corps and EPA have recognized for decades, the
text, structure, and history of the Act demonstrate
that even “zero discharge” Section 306 performance
standards do not apply to discharges of fill material.
But even if SEACC were correct that, as a general
matter, Section 306 performance standards can ap-

13

ply to discharges of fill material and thereby displace
the Corps’ regulatory authority over such discharges,
the Corps’ issuance of its permit here to Coeur still
would be “in accordance with law,” 5 U.S.C. § 706(2),
because EPA itself has determined that Coeur’s
placement of a tailings slurry into an impoundment
does not violate its froth-flotation performance stan-
dard, J.A. 145a—46a. The Corps could not, “in accor-
dance with law,” reject EPA’s interpretation of its
own performance standard to deny Coeur the permit
to which SEACC concedes it is otherwise entitled.

A. The Text, Structure, And History Of
The Clean Water Act Demonstrate
That EPA Performance Standards
Do Not Apply To Discharges Of Fill
Material

On SEACC’s and the Ninth Circuit’s view, if EPA
promulgated Section 306 performance standards for
all discharges of “fill material” from every manner of
industrial and municipal source, those regulations
would strip the Corps of its statutory authority over
discharges of fill material and would require that all
such discharges “be permitted, if at all, under section
402, not section 404.” SEACC Br. 37-38. This view
of the statutory scheme cannot be reconciled with its
text, structure, or history and, therefore, must be re-
jected.

SEACC places great weight on its view of the
purposes of the Clean Water Act, arguing that the
agencies’ conclusion that EPA effluent restrictions do
not apply to discharges of fill material is “highly
unlikely given the Act’s purpose[]” of meeting a non-
binding “goal that the discharge of pollutants into
the navigable waters be eliminated by 1985.”
SEACC Br. 30; 33 U.S.C. §1251l(a\1). Achieving

14

that one of the Act’s numerous legislative objectives,
however, was manifestly not the purpose of Section
404 and its grant of authority to the Corps to issue
permits for discharges of fill material. In any event,
this Court has made clear that it is the agencies
charged with a_ statute’s administration—not
courts—that are best positioned to ascertain the “full
understanding of the force of the statutory policy in
the given situation.” Chevron, 467 U.S. at 844.
Here, as in the Truth in Lending Act, “a court that
tries to chart a true course to the Act’s purpose em-
barks upon a voyage without a compass when it dis-
regards the agency’s views.” See also Ford Motor
Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980).

The “traditional tools of statutory construction”—
text, structure, and history—all support the expert
agencies’ considered and longstanding interpretation
of the statutory scheme as granting the Corps’ juris-
diction over all discharges it reasonably determines
to be “fill material.” Conversely, none of the tradi-
tional tools remotely supports (much less unambigu-
ously requires) the Ninth Circuit’s construction of
the Act, under which fill material is subject to the
Corps’ jurisdiction only to the extent that EPA
chooses not to regulate it.

1. SEACC’s principal argument is that Section
306(e) amounts to an “absolute prohibition[],” allow-
ing no discharge in excess of EPA’s performance
standards. SEACC Br. 24. This is true as far as it
goes—SEACC is right that Section 306(e) itself “con-
tains no exceptions.” Jd. But as SEACC elsewhere
concedes, if “section{] [806] has no application to a
particular discharge, then the discharge cannot be in
violation of it.” Jd. 39. Because Section 306(e) does
not of its own force “prohibit||” any particular dis-

15

charge—rather, it works in conjunction with “appli-
cable” EPA performance standards and bans dis-
charges “in violation of” those effluent restrictions,
33 U.S.C. § 1316(e)—Section 306 itself cannot answer
the question whether Congress intended for Section
306 to apply to discharges of fill material. Sections
402 and 404, however, make clear that it did not.

SEACC acknowledges that the Act sets up two
separate regimes for regulating discharges into wa-
ters of the United States, with discharges of “one
type of pollutant, dredged or fill material,” regulated
by the Corps under Section 404, and discharges of all
other pollutants regulated by EPA under Section
402’s NPDES program. SEACC Br. 7. And SEACC
readily admits that Congress “wrl[ote] the two provi-
sions differently”: Under the NPDES program, dis-
charges must comply with EPA “effluent limitations
under sections 301 [and] 306,” and, under Section
402(k), compliance with an NPDES permit is deemed
compliance with those statutes. Id. 37; see also 33
U.S.C. § 1342(a), (k). “In contrast,” under the Sec-
tion 404 program, discharges of fill material are ex-
plicitly regulated according to a different set of EPA
water-quality requirements, “the 404(b) guidelines,”
and, under Section 404(p), compliance with a Section
404 permit is deemed compliance with those water-
quality requirements. SEACC Br. 37; see also 33
U.S.C. § 1344(b), (p).

This is no “implied exception[]” to Section 306’s
general prohibition on discharges that violate EPA
performance standards. SEACC Br. 31. It is a clear
and specific directive from Congress that discharges
of fill material be regulated, not under ill-fitting per-
formance standards, but under an entirely different
set of substantive standards—the Section 404(b)(1)

16

guidelines, developed by EPA in consultation with
the Corps—subject to EPA’s authority under Section
404(c) to veto permits as it deems appropriate.®

SEACC refuses to accord any significance what-
soever to Congress’s disparate treatment of fill mate-
rial and other pollutants. But just two terms ago,
this Court made clear that, in interpreting the Clean
Water Act, courts must presume that “Congress acts
intentionally and purposely” when it “includes par-
ticular language in one section of a statute but omits
it in another section.” S.D. Warren Co. v. Me. Bd. of
Envtl. Prot., 547 U.S. 370, 384 (2006). SEACC sug-
gests no persuasive textual or structural rationale
for declining to give effect to Congress’s “intentional |[]
and purpose(ful]” decision to regulate discharges of
fill material under the Section 404(b)(1) guidelines.6

2. The legislative history of Section 404 strongly
supports the conclusion that Congress intended for
discharges of fill material to be regulated by the
Corps, under standards specifically tailored to the
environmental concerns unique to discharges of fill

— —

5 It is true, as SEACC says (at 27), that, under the regula-
tions establishing the Section 404(b)(1) guidelines, “the Corps
must comply with other applicable laws in issuing or denying
section 404 permits,” see 40 C.F.R. § 230.10(b) (requiring com-
pliance with, inter alia, Endangered Species Act), but SEACC
fails to mention that Section 306 is not one of those “applicable
laws.”

6 Section 404(n) is not a sufficient justification. Contra
SEACC Br. 27-28. Section 404(n) simply saves EPA’s broad
authority, under Section 309 of the Act, to enforce effluent re-
strictions and permit conditions. See 33 U.S.C. § 1344(n).
Nothing in Section 309 makes Section 306 performance stan
dards applicable—or not—to particular discharges. See id.
§ 1319.

17

material, rather than by EPA under performance
standards fundamentally incompatible with dredge
and fill activities.

SEACC has no response whatsoever to the legis-
lative history of Section 404. See Coeur Br. 29-31.
It has nothing to say concerning the debate in Con-
gress over whether dredge and fill activities histori-
cally regulated by the Corps should be regulated by
EPA, and no alternative explanation for the com-
promise that emerged under which the Corps would
retain primary jurisdiction over discharges of dredge
and fill material, but EPA would play a significant
oversight role through its development of the Section
404(b)(1) guidelines and its veto authority. Indeed,
even the letter from Administrator Ruckelhaus that
SEACC points to as authority (at 41—42), recognized
that under the enrolled bill, “[t}he Corps shall con-
tinue to issue dredge and fill permits in accordance
with criteria comparable to the EPA ocean discharge
criteria”—which is to say, the Section 404(b)(1)
guidelines. 118 Cong. Rec. 36,777 (1972).

SEACC instead relies on three Senators’ fleeting
references to litigation surrounding the Reserve Min-
ing Company’s discharge of a mostly liquid (98.5 per-
cent) tailings slurry into Lake Superior. See Reserve
Mining Co. v. EPA, 514 F.2d 492 (8th Cir. 1975). At
_ the time Congress was considering the Act, Reserve
had pending before the Corps an application for a
discharge permit under the Refuse Act. See 33
U.S.C. § 407. SEACC argues that Congress’s deci-
sion to convert over 20,000 pending Refuse Act per-
mit applications into NPDES applications, see
33 U.S.C. § 1342(a)(5), reflects an intention that all
discharges of mine tailings similar to Reserve’s be

18

regulated by EPA under its NPDES program. See
SEACC Br. 42-44.

As a initial matter, other than the fact that it
was produced by a beneficiation mill, Reserve’s dis-
charge bears no resemblance whatsoever to Coeur’s.
If proposed today, Reserve’s discharge could not be
permitted under Section 404 for at least three rea-
sons: (1) the unimpounded waters of Lake Superior
would not qualify as a “specified disposal site,”
33 U.S.C. § 1344(a); (2) the discharge of a 98.5-
percent-liquid slurry likely would not raise Lake Su-
perior’s bottom elevation; and (3) the Section
404(b)(1) guidelines do not permit discharges that
jeopardize drinking-water resources, see 40 C.F.R.
§§ 230.10(c)(1), 230.50.

But even if Reserve’s discharge were similar to
Coeur’s, SEACC’s argument still would fail because
Section 402(a)(5) and its scant legislative history
cannot bear the weight SEACC places upon it. If the
legislative record says anything at all about Section
402(a)(5), it suggests only that Section 402(a)(5) was
intended to resolve, with minimal administrative
burden, “the unbelievable mess” resulting from the
backlog of over 20,000 discharge permit applications
that had accumulated since the Corps’ Refuse Act
regime had been judicially invalidated. 118 Cong.
Rec. 33,765 (statement of Rep. Clark); see also Kalur
v. Resor, 335 F. Supp. 1 (D.D.C. 1971) (invalidating
Corps’ Refuse Act regulations). Nothing in the con-
gressional debates even remotely suggests Congress
intended Section 402(a)(5) to fix for all time the regu-
latory regime to be applied to Reserve’s discharge or
any other discharge previously permissible under the
Refuse Act. And, indeed, nothing in Section
402(a)(5) precluded Refuse Act applicants from seek-

19

ing permits for their discharge under other provi-
sions of law, including Section 404. Section 402(a)(5)
thus hardly can be considered evidence that Con-
gress considered the question precisely at issue here,
much less resolved it in SEACC’s favor.”

3. In short, all the traditional tools of statutory
construction point in one direction: toward the con-
clusion that Congress intended that discharges of fill
material be regulated by the Corps according to the
Section 404(b)(1) guidelines rather than by EPA, ac-
cording to its Section 306 performance standards.
SEACC makes much of the absence of explicit statu-
tory language making clear that EPA performance
standards do not apply to discharges of fill material.
See SEACC Br. 33. But the absence of such explicit
language would mean, at most, that Congress was
silent on the specific issue of how Section 404’s au-
thorization and Section 306(e)’s prohibition interre-
late. Where a statute is silent, a reviewing court
“may not substitute its own construction of a statu-
tory provision for a reasonable interpretation made
by administrator of an agency.” Chevron, 467 U.S. at
843-44.

There can be no doubt that the Corps’ and EPA’s
longstanding joint interpretation of the statutory
scheme—that discharges satisfying the Corps’ defini-
tion of “fill materia!” are regulated by the Corps un-

7 Nor did Section 402(a)(5) implicitly limit “fill material” to
the “work’ or ‘structures’ in navigable waters” permitted “under
section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403.”
SEACC Br. 41. That would have made the Corps’ Section 10
permit program obsolete, yet it remains active today. See 33
C.F.R. § 320.2(b). It also would have authorized fill material
permits without reference to the applicability of EPA perform-
ance standards and thus defeated SEACC’s argument here.

20

der Section 404, and “never” by EPA under effluent
guidelines—is reasonable. SEACC essentially con-
cedes the point when it urges the Court to “defer to
the reasonable interpretation of the Act adopted by
EPA and the Corps when they adopted the [Fill
Rule].”. SEACC Br. 46. And rightly so, for an
agency’s interpretation of an ambiguous statute
surely falls within the wide range of permissible con-
structions when it is consistent with (if not required
by) the “basic principle of statutory construction that
a specific statute ... controls over a general provi-
sion”—a principle that applies with particular force
when two statutory provisions are “interrelated and
closely positioned, both in fact being parts of” a sin-
gic statutory scheme. HCSC-Laundry v. United
States, 450 U.S. 1, 6 (1981). Here, it cannot be seri-
ously disputed that Section 404 is more specific to
the regulation of discharges of fill material than the
“blanket prohibition[]” of Section 306(e) that assert-
edly applies to “any” and “all” discharges. J.A. 532a,
530a. Any ambiguity lurking within the Act on the
question whether particular discharges of fill mate-
rial are to be regulated under the Section 404(b)(1)
guidelines or EPA performance standards has been
jointly, reasonably, and continuously resolved by the
Corps and EPA by reference to the regulatory defini-
tion of fill material.

B. EPA’s Interpretation Of Its
Performance Standard Resolves Any
Question Whether The Corps’
Section 404 Permit Would Violate
Section 306(e)

Even if SEACC’s interpretation of the Act were
correct, it would not follow that the Corps’ issuance

of a discharge permit to Coeur was “not in accor-
dance with law.” 5 U.S.C. § 706(2)(A). SEACC’s con-

21

tention that Coeur’s discharge of fill material vio-
lates Section 306(e) hinges on its assertion that
Coeur’s proposed discharge would violate EPA’s
froth-flotation performance standard. EPA, however,
expressly determined otherwise.

In response to inquiries concerning “Clean Water
Act ... regulation of ... discharges of mine tailings
from the proposed Kensington Mine,” but before
SEACC initiated this litigation, EPA’s Office of Wa-
ter published an authoritative memorandum that
concluded that “effluent limitations guidelines and
standards, such as those applicable to gold ore min-
ing (see 40 C.F.R. Part 440, Subpart J) do not apply
to the placement of tailings into the proposed im-
poundment.” J.A. 144a-45a (emphasis added).? And
in its brief to this Court (which was signed by EPA,
in addition to the respondent agencies), the govern-
ment has reaffirmed that position. See Fed. Resp’ts
Br. 28, 41. In the absence of any challenge to EPA’s
agency action—-SEACC did not name EPA as a de-
fendant—EPA’s determination is presumed valid and
must be regarded as controlling of the question
whether Coeur’s discharge of fill material would vio-
late EPA’s performance standard. See U.S. Postal
Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“a presump

8 Instead, consistent with the statute, its own regulations,
and long-standing practice, EPA determined that such per-
formance standards would apply to any effluent discharged
from the impoundment into downstream waters, and be regu-
lated at that point under Section 402. J.A. 144a—45a. Contrary
to SEACC’s suggestion, upholding Coeur’s Section 404 permit
will not nullify froth-flotation and other performance standards;
EPA will continue to apply such standards to discharges from
tailings impoundments.

22

tion of regularity attaches to the actions of Govern-
ment agencies”).

Even if SEACC had challenged EPA’s determina-
tion, this Court still would have to defer to EPA’s in-
terpretation of its own performance standard unless
it was “plainly erroneous or inconsistent with the
regulation.” See Long Island Care, 127 S. Ct. at 2349
(according deference to internal department memo-
randum); Auer v. Robbins, 519 U.S. 452, 461 (1997)
(according deference to interpretation stated in legal
brief). SEACC cannot possibly sustain that burden;
EPA’s conclusion that its performance standard for
process wastewater does not apply to discharges of
fill material is unassailable.

Indeed, SEACC implicitly concedes the point. In
attempting to distinguish the Red Dog and Fort
Knox mines, SEACC acknowledges that, in both in-
stances, mine tailings were placed in jurisdictional
waters and wetlands to build impoundment struc-
tures. SEACC Br. 53. SEACC offers that
“(djewatered tailings are sometimes used as a con-
struction material in dams at mines,” id. at 53 n.16,
but what SEACC fails to explain is that—
particularly in southeast and other wet areas of
Alaska—mine tailings can never be completely “de-
watered.” See Pacific Legal Foundation, ef a/.,
Amicus Curiae Br. 17. Even after energy-intensive
drying processes, measurable amounts of “process
wastewater” will remain entrained in the largely
solid tailings. See J.A. 192a (“tailings would be de-
watered ... to a moisture content of 5 to 18 per-
cent”). If, as SEACC has asserted, the presence of
any amount of water in contact with mine tailings
allows SEACC to label the mixture “process waste-
water with significant quantities of suspended sol

23

ids” and subjects that discharge to EPA effluent re-
strictions, then the Corps could not have permitted
the discharge of the “{djewatered tailings” at Red
Dog or Fort Knox.9

The applicability of EPA effluent restrictions to
mine tailings cannot turn on the extent to which they
are “dewatered.” It instead turns, as it always has,
on whether the discharge satisfies the regulatory
definition of fill material—whether the Corps’ previ-
ous purpose-based definition applicable when the
Red Dog impoundment was constructed, or the Fill
Rule’s effects-based definition applicable to Coeur’s
tailings slurry today.

Ill. THE Corps’ RIGOROUS SECTION 404
PERMITTING PROCESS ENSURED THAT THE
KENSINGTON TAILINGS PLAN RESPECTS
ENVIRONMENTAL VALUES

SEACC tars Coeur’s tailings slurry as toxic and
chemically harmful to the environment, but Coeur’s
mine tailings will change Lower Slate Lake in ex-
actly the same manner as a discharge of “clean” dirt:
they will cover the bottom of the lake. This dis-
charge of fill material will have real impacts—it will
raise the »ottom elevation of the lake by 50 feet and

9 SEACC suggests that the placement of mine tailings for the
Red Dog and Fort Knox mines was permitted only because
those impoundments were deemed non-jurisdictional “waste
treatment systems.” SEACC Br. 53-54; see also 40 C.F.R.
§ 122.2 (providing that “waste treatment systems” are “not wa-
ters of the United States”). But the tailings used to build the
impoundment structures indisputably were placed in jurisdic-
tional waters, which is why their placement required a Section
404 permit. And as explained by EPA, the Fill Rule regulates
tailings discharges into impoundments more effectively than
the waste-treatment-system provision does. J.A. 145a—46a

24

nearly triple its surface area—but these are exactly
the type of impacts that the Corps has long been
charged with evaluating. Using this expertise, the
Corps—acting in consultation with numerous other
federal and state agencies—evaluated Coeur’s tail-
ings alternatives under the Section 404(b)(1) guide-
lines and correctly determined that the placement of
the Kensington tailings in Lower Slate Lake was the
“least environmentally damaging practicable alter-
native.” J.A. 354a. This process, and the EPA’s au-
thority to veto the permits it produces, demonstrates
that the Ninth Circuit’s strained reading of the Act
and its rewriting of the Fill Rule is, aside from being
incorrect, unnecessary.

Lower Slate Lake is one of an abundance of simi-
larly-sized, isolated ponds in Southeast Alaska. Cov-
ering only 23 acres, it is approximately one-fifth the
size of the Potomac Tidal Basin or the Reservoir in
New York City’s Central Park.!9 Though relatively
small in surface area, Lower Slate Lake is unusually
deep—so deep that only the top half of the lake can
sustain aquatic life. J.A. 134a, 137a. The unproduc-
tive depths of the lake are a site where the large
quantity of tailings inevitably produced by a
hardrock mining operation like Kensington can be
stored with minimal environmental impact.

The Corps-approved plan to impound and fill in
the unproductive portion of the lake is equivalent to

10 See, e.g., NATIONAL PARKS SERVICE, HISTORIC AMERICAN
BUILDINGS SURVEY, PHOTOGRAPHS: WRITTEN HISTORICAL
DESCRIPTIVE DATA, WEST POTOMAC PARK 14, available at
http://lcweb2.loc.gov/pnp/habshaer/dc/dc0800/dc0802/data/dc080
2.pdf (107 acres); Central Park Conservancy, Reservoir, at
http://www .centralpark com/pages/attractions/reservoir.htm!
(106 acres).

25

those it previously approved as “specified disposal
sites” under Section 404 for the Red Dog and Fort
Knox mines. Compare J.A. 360a—6la, with C.A.
J.S.E.R. 1097, 991. The plan authorizes an im-
poundment in jurisdictional waters for the storage of
mine tailings, with the naturally flowing waters di-
verted around the impoundment. Tailings are placed
into the impoundment in a slurry form, and water is
recycled back to the mill via a return pipeline. 7d.
293a—94a. See Pacific Legal Foundation Amici Cu-
riae Br. 14 (diagram). Discharges from the im-
poundment are strictly regulated under EPA’s Sec-
tion 402 NPDES permit program. As provided under
the “zero discharge” performance standard, Coeur’s
Section 402 permit limits the discharges from the
tailings impoundment to an amount equivalent to
naturally occurring “net precipitation,” see 40 C.F.R.
§ 440.104(b), and requires even that limited amount
of water to be treated prior to discharge, J.A. 294a,
373a.

Contrary to SEACC’s suggestions, the tailings
slurry placed into the impoundment is fundamen-
tally inert. The Corps found that “the aluminum
concentrates in the tailings [are] less than that in
the lake sediment” and there is “a low potential for
chromium to be a risk to aquatic life.” J.A. 36la.
While elevated pH levels in the immediate vicinity
“around the discharge pipe” likely would be harmful
to aquatic life in that vicinity, fish will naturally
avoid the area of higher pH, C.A. E.R. 370, and the
elevated pH levels will “dissipate very rapidly,” J.A.
360a (Corps Revised ROD). As for the other chemi-
cals and minerals added to the tailings slurry, the
district court found (correctly) that they “are not
toxic and are expected to have no effect on water
quality other than the benefit of enhancing the set-

26

tling of the fine material.” Jd. 482a. If aquatic plant
or fish life is lost, it will be because the tailings cov-
ered the plant life—a natural and necessary conse-
quence of the filling of wetlands or most bodies of
water—which, in turn is the food source for the resi-
dent fish. Jd. 129a, 36la. After remediation, the
lake is expected to “provide at least equivalent
aquatic habitat and productivity as it does cur-
rently.” Id. 484a.11

While disposing of the tailings in Lower Slate
Lake will increase the size of the lake and cause only
temporary aquatic losses, any upland storage of the
tailings in a dry stack configuration would result in a
permanent loss of substantial acres of wetlands. J.A.
365a—66a. The first step in creating a dry stack
would be to fill in anywhere from 34 to 113 acres of
wetlands with “clean” rock and dirt (fill that al-
though purchased from a local quarry likely would be
substantially similar in composition to Coeur’s mine
tailings)—a permanent wetlands loss that is up to
five times the size of Lower Slate Lake. C.A.
J.S.E.R. 859-61. The tailings would then be dried to
the extent possible and stacked on top of the non-
jurisdictional filled wetlands. J.A. 192a—93a.

The resulting dry stack would be “highly visible
from Lynn Canal, the only Visual Priority Travel
Route (VPTR) impacted by project components.” J.A.

11 “(4) non-diverse, sparsely populated, assemblage of small
fish,” specifically approximately 1,000 fresh-water Dolly Varden
char and an undetermined number of threc-spine stickleback,
may be lost as a result of the filling of the lakebed. J.A. 129a,
197a—-98a. These fish are not threatened species, nor, according
to the Corps’ Section 404(b)(1) Guidelines Evaluation, are there
any endangered or threatened species in Lower Slate Lake. See
Id. 381a, 392a.

27

220a. It would reach from 150 to 200 feet high, C.A.
E.R. 327, and would extend, depending on which op-
tion were used, from 1200 to 2000 feet in both width
and length, C.A. J.S.E.R. 669-70. The dry stack fa-
cility would dwarf the Pentagon, standing twice as
high and potentially covering almost three times as
many acres. See The Pentagon - Facts & Figures, at
http://pentagon.afis.osd.mil/facts-area.html (77 feet
tall and 34 acres in area). 12

As part of the Section 404(b)(1) review of these
competing alternatives, the Corps concluded that
Coeur’s proposed aquatic tailings impoundment was
environmenta!!y preferable to any dry stack alterna-
tive. J.A. 366a. Specifically, the Corps concluded
that, after reclamation, the lake will become a “func-
tioning emergent wetland/vegetated shallows lake
complex, including 15 acres of emergent wet-
land/vegetated shallows as part of a 62 acre lake,
[that] is more valuable to the aquatic ecosystem than
a permanently filled wetland ... that has lost all
aquatic functions and values.” Jd. 36la. As detailed
by amicus curiae, this evaluation process, in which
EPA retains a significant oversight role, is thorough,
site-specific, and fully addresses environmental con-
siderations. See Nat'l Ass’n of Homebuilders Amicus
Curiae Br. 17-32. And «n top of that, Congress has

12 The “paste” tailings alternative referenced by SEACC (at
19) is not described in the record because it was first considered
only after the decision of the court of appeals. It shared many
of the same environmental! flaws as the dry stack alternative;
the principal difference was the consistency of the tailings.
SEACC Opp’n to Pets. for Writ of Cert. 10. Coeur terminated
the permitting process for a paste tailings facility when it be-
came apparent that that process inevitably would involve fur-
ther lengthy and costly permitting delays or lengthy and costly
litigation to defend permits, or both.

28

reserved to EPA the authority to veto any Section
404 permit. 33 U.S.C. § 1344(c). Here, after care-
fully examining the proposed discharge and com-
menting on the concerns it initially had, see, e.g., J.A.
37la—74a, EPA declined to veto the permit. This is a
robust review process, and SEACC’s attempt to por-
tray Section 404 permits as an escape valve for pol-
luters is implausible.

CONCLUSION

The judgment of the court of appeals should be
reversed and the case should be remanded to the
court of appeals with instructions to vacate immedi-
ately the injunction pending appeal and to affirm the
judgment of the district court.

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 Coeur Alaska, Inc.
December 8, 2008

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A20. Public record. Not legal advice.