Amicus Curiae Brief — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)

\. 22> ee

O ae) ee

OFFICE OF THE CLERK

jn The SUPREME COURT, U.S.

Supreme Court of the Anite tes

+

COEUR ALASKA, INC.,

Petitioner,

v.

SOUTHEAST ALASKA

CONSERVATION COUNCIL, ET AL.,

Respondents.

+

STATE OF ALASKA,

Petitioner,

V.

SOUTHEAST ALASKA

CONSERVATION COUNCIL, ET AL..,

Respondents.

.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

Sf

BRIEF OF THE COUNCIL OF

ALASKA PRODUCERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

7

JAMES M. LYNCH JOAN TRAVOSTINO

WILSON L. CONDON PAUL LAWRENCE*

K&L Gates LLP

420 L Street, Suite 400

Anchorage, Alaska 99501-1971

Telephone: (907) 276-1969

Counsel for Amicus Curiae

Council of Alaska Producers

*Counsel of Record

COCKLE LAW BRIEF PRINTING ©O (8900) 225-6964

OR CALL COLLECT 402 342-2831

92,\ Px

]

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE...................:0064. 1

STATEMENT OF THE CASE..................:.cceesseeeeees 3

SUMMARY OF ARGUMENT ..................ccceeeeeeee eee 4

iti ciciain cctbiidinianiiciieindinidimiaiiceeiinbsandans 6

I. IMPLEMENTATION OF THE NINTH

CIRCUIT’S RULING IN ALASKA WOULD

HAVE FAR-REACHING, UNINTENDED

IMPACTS ON CURRENT AND FUTURE

EE OI cat inticititindenncncmiinscnindnccins 6

A. The Long History of Wetlands Regula-

tion in Alaska Cannot be Ignored......... 7

B. The Implications of the Ninth Circuit’s

Holding on Alaska are Substantial as

No Legal Difference Exists Between

Lakes and Wetlands under the Clean

a eciie ll

Il. IMPLEMENTATION OF THE NINTH

CIRCUIT: RULING WOULD CURTAIL

MINING OPERATIONS IN ALASKA IM-

PACTING ESSENTIAL COMMUNITY

AND ECONOMIC DEVELOPMENT IN

eR ciistniniscstnninedaneabiacsididbeninnescnse 13

A. Mine Tailings Cannot Meet Clean Wa-

ter Act Section 402’s Effluent Limita-

I kd ole 14

B. Upland Stacking of Mine Tailings on

Converted Wetlands is Not Feasible in

Many Circumstances. ............ccccccccoccssece 15

il

TABLE OF CONTENTS — Continued

Page

C. The Practical Impact of the Ninth Cir-

cuit Rule Would Frustrate the Goals of

the Alaska Statehood Act ....................8. 16

SIE cisladbiicucsinasoianinninineisiiasssiverninscentenisnes 25

ill

TABLE OF AUTHORITIES

Page

CASES

Amoco Prod. Co. v. Village of Gambell, Alaska,

I calle lansiagenas 19

Astoria Fed. Sav. & Loan Assoc. v. Solimino,

I a tietahtiahle 16

Rapanos v. United States, 547 U.S. 715 (2006) ....11, 12

Trustees for Alaska v. State, 736 P.2d 324

ECCS eee en ROMO entre ane 20, 22

Udall v. Kalerak, 396 F.2d 746 (9th Cir. 1968),

cert. denied, 393 U.S. 1118 (1969) .......................... 19

United States v. Atlantic Richfield Co., 435

F. Supp. 1009 (D. Alaska 1977), aff’d, 612

F.2d 1132 (9th Cir.), cert. denied, 449 U.S.

ENR I RRL ET ALOR en Oe De OR 19

STATUTES

Alaska Statehood Act, Pub. L. 85-508, 72 Stat.

I cc tia asiinlicinaiie 2, 17,19

Clean Water Act, 33 U.S.C. $ 1S11................00c0...00..-.5. 2

Clean Water Act, 33 U.S.C. § 1316 ......................00...... 2

Clean Water Act, 33 U.S.C. § 1342 ......000000..... passim

Chean Water Act, 33 U.S.C. § 1344 ..............00006..000.. 4,8

REGULATIONS

ee eee OF I PED CIPO D vcccecsscocenssscssesesssnsensconserens 6

lv

TABLE OF AUTHORITIES — Continued

Page

RULES

BES GE, BOG. BG CID cccccecccccscccvesessvevesescosesses 21

104 Cong. Rec. 9,360 (1958) ..................cccccccssereseeere 19

104 Cong. Rec. 9,361 (1958) .................ceccscsceseesees 18, 19

104 Cong. Rec. 9,498 (1958) ...............ccccseccscrssesecceee 17

104 Comm. S66. EBOI8 CIBGS) .....0....cccosccrccesscccesseocenes 19

104 Come. Bec. 19,089 (1GGB) ........0cccccsecrccccccesseceeees 21

104 Cong. Rec. 12,055 (19G6) ....................000s..00-ceees

BG GOR, BE. BI CD onccccccececcccccccccsscccsecsecs

BE GE, BE, Re CID ciccccececcnsccncccssecnccteences

H.R. Rep. No. 624, 85th Cong., lst Sess. (1957),

reprinted in Vol. 1, Alaska Statutes, “History

of Alaska Statehood,” (2006).............................66-

Statehood for Alaska: Hearings Before the

Subcomm. on Territorial and Insular Affairs

of the House Comm. on Interior and Insular

Affairs, 85th Cong., 1st Sess. 201-02 (1957).......

TREATISES

Alaska Department of Natural Resources,

Division of Mining, Land & Water, Large

Mine Permitting, http://www.dnr.state.ak.us/

mlw/mining/largemine/index.htm.....................+-

Alaska Department of Revenue Tax Division,

Revenue Sources Book (Fall 2007).......................

1.20

Vv

TABLE OF AUTHORITIES ~ Continued

Alaska Miners Association, The Economic

Impacts of Alaska’s Mining Industry (January

BRIS cccusesesrscccnsscsvseoonsattosmsetsinnaiaiiiaiadeiaaiind

Mining Foundation of the Southwest, “New

Environmental Management: Dry Tailings —

An Alternative to Conventional Tailings

Management,” 2 Natural Resources Impact,

BUR, Ge? ccovecocseasenteccesesngppenniisanimonniiiapeninniag

Report of the 2008 Alaska Minerals Commission,

https://(www.commerce.state.ak.us/oed/minerals/

pub/mineralsreports2008_web.pdf....................

U.S. Army Corps of Engineers, Regional

Supplement to the Corps of Engineers

Wetlands Delineation Manual: Alaska

Region (Version 2.0) (September 2007).............

U.S. Environmental Protection Agency, et al.,

Alaska Wetlands Initiative Summary Report

COD -crevecenisncvceccnpenteteesnesensenepeasnnasnnieniaanniialian

1

INTEREST OF AMICUS CURIAE'

The Council of Alaska Producers (“CAP”) is an

association representing major companies involved in

the exploration, development, and active operation of

hard rock mines in Alaska. The mining industry in

Alaska produces not only vital resources for the

Alaskan economy, but also serves as an important

source of jobs and economic opportunities in rural and

remote areas of Alaska. In 2007, the Alaska mining

industry provided over 5,500 direct and indirect jobs,

constituting a payroll of $340 million. Alaska Native

corporations benefit significantly from mining indus-

try activity on their land, both in terms of jobs for

shareholders and through direct payments for leases

of land. See Alaska Miners Association, The Economic

Impacts of Alaska’s Mining Industry, at 1 (January

2008).”

' This amicus brief is filed with the consent of the parties.

All petitioners and respondents aside from the United States

have filed letters with the Clerk of the Court consenting to the

filing of amicus briefs in accordance with the Court’s Rule

37.3(a). Respondent United States’ letter of consent is filed with

the Clerk of the Court herewith. Pursuant to Rule 37.6, the

amicus submitting this brief and its counsel hereby represent

that neither party to this case nor their counsel authored this

brief in whole or in part, and that no person other than amicus

paid for or made a monetary contribution toward the prepara-

tion and submission of this brief.

* Available at http//www.alaskaminers.org/mcd07sum.pdf.

2

The CAP is committed to sound operating prac-

tices, protection of the environment, and growth of an

industry that has the potential to provide much-

needed private sector economic. diversification

throughout Alaska. Its members work closely with

the State of Alaska and the Federal Government to

promote practices that foster the environmentally-

sound development and use of mineral materials. It is

also engaged regularly in the progression of social

causes, such as through litigation that raises envi-

ronmental issues of concern to the Alaska mining

community.

The CAP has a substantial interest in this case.

The Ninth Circuit’s decision substantially impacts

mining activity in Alaska. If permitted to stand,

many mines in Alaska would be forced to cease stor-

age of mine tailings in vast areas near mining pro-

jects because mine tailings by their very nature

cannot meet Clean Water Act Section 301 effluent

limitations (33 U.S.C. § 1311) and Clean Water Act

Section 306 new source performance standards (33

U.S.C. § 1316) promulgated by Environmental Pro-

tection Agency under Section 402 of the Clean Water

Act, 33 U.S.C. § 1342. The Ninth Circuit’s holding, if

left standing, could result in the closure of mines in

remote areas of Alaska, resulting in the loss of jobs

and economic opportunities in this otherwise barren

region. This result ts not dictated by the Clean Water

Act and indeed contradicts the requirements of the

Alaska Statehood Act, Pub. L. 85-508, 72 Stat. 343,

July 7, 1959. Both the U.S. Army Corps of Engineers

3

(“Corps”) and the Environmental Protection Agency

(“EPA”) recognized the realities facing the mining

industry in promulgating the regulations and issuing

the permits at issue. Unfortunately, the Ninth Circuit

ignored the practical reality that mines in Alaska face

when constructing and operating facilities in this

area of the country and failed to harmonize the Clean

Water Act with the Alaska Statehood Act. This Court

should reverse the Ninth Circuit’s rwling, and defer to

the expertise of the Corps and EPA, which have

developed a regulatory regime that addresses the

relevant environmental concerns raised in this case.

¢

STATEMENT OF THE CASE

The facts of this case demonstrate the need for

deference to a reasonabie interpretation of statutory

terms — such as that provided by the Corps and EPA

in this case.” The Corps and EPA, unlike the Ninth

Circuit, focused on the practical implications of Clean

Water Act regulations carefully balancing the envi-

ronmental and economic implications of the Clean

Water Act and the Alaska Statehood Act.

For over 30 years, the Corps and EPA have

permitted the discharge of mine tailings into waters

of the United States, including Arctic tundra and

* The facts summarized here are those set forth in, inter

alia, the opinions of the District Court and the Ninth Circuit on

de novo review.

4

other wetlands, pursuant to Clean Water Act Section

404 (33 U.S.C. § 1344). As described by the District

Court, the novel question presented in this case is

whether the Corps and EPA erred in permitting a

mining company to discharge about 4.5 million tons

of solid mine tailings into a remote Alaska lake,

where the lake would be used as a storage facility

impounding the tailings. Reclamation of the lake,

including capping of tailings, is required as part of

the project. Permitting requirements would insure

that the lake would recover over time, providing at

least equivalent aquatic habitat and productivity to

that which currently exists. Ultimately, water re-

leased from the tailings impoundment into down-

stream receiving waters would be treated in a

manner that would meet Clean Water Act Section 402

requirements. Thus, the lake in question would serve

to isolate deposited tailings from the environment

and would be subject to strict monitoring and recla-

mation requirements that meet congressional stan-

dards.

SUMMARY OF ARGUMENT

The Court should reject the appellate ruling

below because the Ninth Circuit failed to consider the

practical implications of its ruling on mines in

Alaska, and the impending result, which Congress

did not intend when enacting the Clean Water Act

and the Alaska Statehood Act. The Corps and EPA

have, in the light of many years of experience and

5

practical knowledge, fashioned a regulatory frame-

work that both protects the environment and permits

responsible development of Alaska lands and the

extraction of important mineral resources. The Ninth

Circuit’s ruling imperils this legislative balance.

The Ninth Circuit failed to consider how the

hardrock mining process is conducted in remote,

inaccessible locations such as Alaska. As described by

the Ninth Circuit, mine tailings are nothing more

than ground up rock and earth. During the process of

separating ore from this ground up rock, mined rock

and earth are combined with water and chemicals to

separate out ore-bearing materials. This paste-like

material is sometimes placed in upland areas where

it is dried out in a process called “dry stacking”;

however, in many locations in Alaska, placement of

tailings in upland areas is simply not feasible given

the location of mining facilities, the prevalence of

wetland areas in the State, and economic considera-

tions associated with management of large quantities

of tailings materials in remote locations.

By their very nature, mine tailings consist of

ground up rock and particles of smaller sizes. Con-

stituent elements of mine tailings, such as sediment

materials, often exceed the Section 402 standards

with which the Ninth Circuit’s interpretation would

require compliance. Practically speaking, it would not

be possible to place most typical mine tailings on vast

wetland areas in Alaska under the Ninth Circuit’s

rule as they would at a minimum exceed limits placed

6

on total suspended solids. See 40 C.F-R. § 440.104(a)

(2007).

The Ninth Circuit failed to consider that both the

Corps and EPA have developed a program to manage

mine tailings in places such as Alaska in a manner

that balances environmental protection with the need

to foster economic development in rural areas. Under

the Corps’ regulations, the Corps grants permits for

tailings placements only under stringent environ-

mental and practicability criteria, and only when they

will be deposited into secure impoundments that have

been engineered and strictly designed for storage.

Reclamation, remediation and monitoring require-

ments associated with these Corps permits ensure

the long-term protection of the environment.

¢

ARGUMENT

I. IMPLEMENTATION OF THE NINTH

CIRCUIT’S RULING IN ALASKA WOULD

HAVE FAR-REACHING, HARMFUL IM-

PACTS ON CURRENT AND FUTURE MIN-

ING PROJECTS

The Corps and EPA have worked for years to

develop a balanced approach to dealing with wetlands

issues in Alaska. The Federal Government has long

recognized the fact that Alaska is different when it

comes to regulating wetlands in this region of the

country. The Ninth Circuit failed to carefully consider

the agencies’ considerable expertise in this area, or

7

the practical implications of its ruling, in overturning

the agencies’ Clean Water Act regulations concerning

placement of mine tailings.

A. The Long History of Wetlands Regula-

tion in Alaska Cannot be Ignored

Alaska is replete with many small, remote lakes

and wetland areas that could be subject to regulation

under the Clean Water Act. Alaska possesses about

175 million acres of wetlands, comprising about 43

percent of the surface area of the State — more wet-

lands acreage than the rest of the United States

combined. See U.S. Environmental Protection Agency,

et al., Alaska Wetlands Initiative Summary Report, at

2 (1994).* About 66 percent of the wetlands in Alaska

are found within Federally-managed land, about 23

percent within State lands, about 11 percent under

Native ownership, and less than 1 percent of these

wetlands under private ownership. /d.

* Available at www.epa.gov/owow/wetlands/pdf/alask.pdf (last

visited September 21, 2008).

* The Federal government has long recognized the signifi-

cance of wetlands regulation in Alaska. As discussed infra, the

Alaska Statehood Act is intended to provide a mechanism for

selecting certain Federally-owned lands for economic develop-

ment and community expansion, as well as rural Alaska’s needs

for basic services and facilities, subsistence rights, and Capital

Improvement Projects. The Ninth Circuit's ruling effectively

ignores years of dialogue and agreements made between various

stakeholder groups concerning the implementation of Clean

(Continued on following page)

8

A review of the percentage of wetland by geo-

graphic region shows the concentration of wetlands in

different parts of the State. The areas with the high-

est percentage of wetlands are also the areas most

likely to have active mines or mineral projects. The

Corp issued wetlands delineation guidelines specific

to Alaska in September 2007, which explain the

distribution of wetlands in the State:

Wetlands occupy an average of 61 percent of

the Northern and Western Alaska. They are

least abundant in the Brooks Range... and

most abundant ... (up to 83 percent of the

land area) in the arctic foothills and coastal

plain, and in the Yukon-Kuskokwim and Se-

lawick-Kobuk deltas. More than half of all

Alaska’s wetlands are located in the North-

ern & Western subregions. . .. Approximately

44 percent of Interior Alaska is wetlands....

U.S. Army Corps of Engineers, Regional Supplement

to the Corps of Engineers Wetlands Delineation

Manual: Alaska Region (Version 2.0), at 4-6 (Septem-

ber 2007) (“Delineation Guidelines”).° A map illustrat-

ing the Corps’ delineation appears at page 5 of the

Delineation Guidelines (“Corps Map”).

Water Act Sections 402 and 404 in Alaska. See, e.g., Alaska

Wetlands Initiative Summary Report, at 27-28.

* Available at http://handle.dtic.mil/100.2/ADA473823 (last

visited September 21, 2008).

9

Because 43 percent of Alaska’s land mass is

classified as wetlands, all mining projects encounter

wetlands. What makes the Ninth Circuit’s decision

particularly harmful to Alaska is that the majority of

non-coal mines in Alaska are located in the subre-

gions of Alaska with the highest concentration of

wetlands. The majority of non-coal mines in Alaska

are located in the Northern, Western, and Interior

subregions. See Alaska Department of Natural Re-

sources, Division of Mining, Land & Water, Large

Mine Permitting, http://www.dnr.state.ak.us/mlw/mining/

largemine/index.htm (last visited September 21,

2008). There are eleven non-coal mines in Alaska

listed on the Division of Mining, Land & Water’s

index. Eight of the locations are in the Northern,

Western, or Interior subregions. See Corps Map. The

remaining three mines are located in the Southeast

subregion. Eight out of eleven mines or large projects

are located in the subregions of Alaska with the

highest concentration of wetlands. As the Corps Map

illustrates, the Northern, Western, and _ Interior

subregions contain the majority of the land mass in

Alaska. The Northern and Western subregions con-

tain over half of Alaska’s wetlands, but have less than

half of Alaska’s land mass. Any mine or project in the

Northern or Western subregion is likely to encounter

a very high percentage of the affected land being

classified as wetlands. The two mineral projects

mentioned by Petitioner State of Alaska in their Brief

for the Petition for Certiorari, are in the Western

subregion. Reply Br. for Pet. State of Alaska for Pet.

for Cert. at 7 & n.2. These are projects that the State

10

anticipates may face Clean Water Act tailings dis-

posal issues similar to those faced by the Kensington

project. The Western subregion has a higher percent-

age of wetlands compared to the Southeast subregion,

the location of the Kensington project. See Delinea-

tion Guidelines at 6. Thus, the next two likely large

mining projects in Alaska will have even less land

available for alternatives that avoid wetlands.

When the geographic analysis is expanded to

include producing mines, developing projects and

significant exploration projects, the relationship

between areas of wetlands concentration and signifi-

cant mineral deposits is closer. The Alaska Minerals

Commission identified 27 such projects. See Report of

the 2008 Alaska Minerals Commission.’ The Alaska

Minerals Commission developed a map showing the

geographic location of each project in its 2008 report

(“AMC Map”). Of the seven developing mineral pro-

jects and producing mineral projects for non-coal

resources, five are located in one of the Western,

Northern or Interior subregions. Of the twenty-six

significant exploration projects for non-coal minerals,

twenty four are in the Western, Northern and Inte-

rior subregions. The AMC Map shows that significant

mines are widely disbursed in Alaska. Active large-

scale mining occurs as far north and west as the Red

http//www.commerce.state.ak.us/oed/minerals/pub/minerals

report2008_web.pdf (last visited September 21, 2008).

11

Dog Mine, as far east as the Pogo Mine, and as far

south as the Greens Creek Mine.

B. The Implications of the Ninth Circuit’s

Holding on Alaska are Substantial as

No Legal Difference Exists Between

Lakes and Wetlands under the Clean

Water Act.

While the facts in this case are somewhat un-

usual, its implications in Alaska are far-reaching. The

Clean Water Act extends to not just traditional navi-

gable waters (such as lakes) but also to all wetlands

or streams with a “sufficient nexus” to navigable

waters to affect their “integrity.” Rapanos v. United

States, 547 U.S. 715, 781-82 (2006) (Kennedy, J.,

concurring in the judgment). Thus, most Alaska

wetlands become subject to the Ninth Circuit’s inter-

pretation of the Clean Water Act, making such areas

off limits to the deposition of mine tailings because

such tailings could never meet Clean Water Act

Section 402 requirements. The implications for the

mining industry in Alaska and the resource and

economic benefits that flow from the industry are

staggering.

As the Court in Rapanos observed, to determine

whether wetland areas fall under the jurisdiction of

the Clean Water Act, a party must determine, in the

first instance, whether the areas in question are

“waters” in the ordinary sense of containing a rela-

tively permanent flow; and (if they are) whether the

12

wetlands in question are “adjacent” to these “waters”

in the sense of possessing a continuous surface con-

nection. Rapanos, 547 U.S. at 742. In this sense,

whether or not an area contains open water or wet-

land bears little on whether an area constitutes

Federally-regulated wetland under the Clean Water

Act.”

The Ninth Circuit’s rule effectively swallows vast

areas of Alaska and renders it technically impossible

to place mine tailings in a broad range of areas, even

if such areas are highly remote, and do not contain

open water or a lake environment. Such a result is

particularly problematic in view of the over 30 years

of placement of tailings in such wetland areas, and

ongoing monitoring and restoration activities associ-

ated with these areas under the regulatory schemes

developed by the Corps and EPA. The Ninth Circuit’s

ruling would also likely significantly impact Alaska’s

mining industry, making various large mining pro-

jects infeasible or highly problematic without justifi-:

cation or root in congressional intent.

* Justice Scalia’s opinion in Rapanos recognized the com-

plexity and ambiguity involved in making such determinations.

547 U.S. at 727-29 (describing Corps’ variable enforcement

practices based on vague definitions). This burden is borne

heavily by the applicant or party. Jd. at 721 (reciting burden

imposed for permitting and enforcement actions under Clean

Water Act).

13

Il. IMPLEMENTATION OF THE NINTH

CIRCUIT’S RULING WOULD CURTAIL

MINING OPERATIONS IN ALASKA IM-

PACTING ESSENTIAL COMMUNITY AND

ECONOMIC DEVELOPMENT IN RURAL

AREAS

Most large mine projects in Alaska are located in

highly remote, rural areas with limited access. The

remoteness of these locations adds to project costs

and makes mining processes technically difficult to

conduct. Of the five developing mineral projects and

producing mineral projects on the AMC Map in the

Western, Northern, or Interior subregions, four

projects are not located on the road system in Alaska.

The producing mines required construction of lengthy

trajectories to the road system or to port facilities and

the developing projects will require the same effort.

Of the 26 significant exploration projects, 21 are not

located near the road system in Alaska. Lack of road

access is one factor that makes mining projects in

Alaska more expensive than other parts of the United

States. Regulations requiring significant additional

costs have a negative impact on the feasibility of a

mine in Alaska.

The location of large mines in and around wet-

land areas presents significant chalienges for mining

companies attempting to avoid placement of tailings

on tundra or other areas that typically constitute

jurisdictional wetlands. Application of Clean Water

Act Section 402 to tailings placement in Alaska would

have far-reaching economic and practical impacts

14

which Congress did not intend and the Ninth Circuit

failed to consider in overturning the agencies’ Clean

Water Act regulations.

A. Mine Tailings Cannot Meet Clean Wa-

ter Act Section 402’s Effluent Limita-

tion Guidelines.

The Ninth Circuit’s statutory construction of the

Clean Water Act renders tailings ponds not permit-

table under the Clean Water Act in a wide range of

situations. That is because EPA has promulgated

effluent limitation guidelines for a vast number of

substances commonly present in the excess rock and

dirt from mines located throughout the country. As

discussed above, mine tailings by their very nature

contain high levels of total suspended solids and

other process materials. It is for this very reason that

mining operators seek to find practicable locations to

store these materials, where such storage areas can

be capped and isolated from the local environment.

Under the Ninth Circuit's reading of the Clean Water

Act, the tailings produced by all such mines in Alaska

would be subject to effluent limitations, even though

mine tailings cannot possibly meet those limitations

and despite the ability of mining companies to effec-

tively cap, contain, and restore tailings ponds.

15

B. Upland Stacking of Mine Tailings on

Converted Wetlands is Not Feasible in

Many Circumstances.

One potential solution posited to avoid placement

of mine tailings in low lying wetland areas is to “dry

stack” tailings in upland areas. Dry stacking is a

process whereby tailings are unsaturated, moved by a

conveyor or truck, and stacked in a designated area,

for example, a converted wetland. See Mining Founda-

tion of the Southwest, “New Environmental Manage-

ment: Dry Tailings — An Alternative to Conventional

Tailings Management,” 2 Natura] Resources Impact,

No. 3 (2006).”

The remoteness, topography, climate, and pres-

ence of wetlands in Alaska makes it extremely diffi-

cult, if not impossible, to implement the dry stacking

technique in most areas of Alaska. The Alaskan

landscape, where large mining operations occur, is so

heavily dotted with wetlands and streams that it is

virtually impossible to avoid these areas. Further-

more, given extreme precipitation, including high

snowfall and related runoff during spring breakup,

placing tailings in upland areas presents potentially

significant economic’ and technical challenges for

many large mines. Conversely, a tailings impoundment

* Available at http//www.mge.arizona.edu/pdf/MFSW_vol2_no3_

ver1.pdf ?PHPSESSIDD=bec59fef13c9 1 fd3c649166b0c6f4aa6.

*° Coeur Alaska, Inc.’s Pet. for Writ of Cert. Reply Br. at 9

(comparing cost of storage on converted wetlands to cost of

storage as allowed by the Corp permit for Kensington Mine)

16

constructed in low-lying areas such as those contain-

ing wetlands is technically and economically efficient

to implement. Such an impoundment is_ securely

walled off — and it ensures that the solids and miner-

als in the tailings will not flow into a nearby water

supply.

It makes no sense to uphold a ruling of the Court

of Appeals which overturns a disposal practice per-

mitted and approved by the Corps and EPA for many

years for an alternative method of disposal that is

less technically and economically efficient without

significant gain for the goals of the Clean Water Act.

C. The Practical Impact of the Ninth Cir-

cuit Rule Would Frustrate the Goals of

the Alaska Statehood Act.

Upholding the Ninth Circuit’s view of the Clean

Water Act is inconsistent with Congressional intent

that Alaska be permitted to develop its mineral

resources in order to support state government. See

Astoria Fed. Sav. & Loan Assoc. v. Solimino, 501 U.S.

104, 109 (1991) (recognizing harmonization of differ-

ent statutes is core principle of statutory interpreta-

tion). Faced with congressional opposition to

statehood because of concerns about Alaska’s econ-

omy and the potential need for subsidization, Con-

gress specifically provided support for development of

Alaska natural resources in approving Statehood.

The Ninth Circuit’s holding undermines Congress’

intent to support Alaska resource development.

17

During the debates leading to the enactment of

the Alaska Statehood Act, Pub. L. 85-508, 72 Stat.

343, July 7, 1959, one of the principal objections to

Alaska’s admittance into the Union was the fear that

the territory was economically immature and would

be unable to support a state government. For exam-

ple, opponents of statehood claimed that “Alaska is

not capable of sustaining statehood unless it is heav-

ily subsidized by the other 48 States of the Union.”

104 Cong. Rec. 9,498 (1958) (statement of Rep.

Smith). Similarly, another opponent of statehood

argued that “(t]he prevailing doubt of Alaska’s ability

to support itself is evidenced by the generous special

considerations which are made for it in this statehood

act.” 104 Cong. Rec. 12,297 (1958) (statement of Sen.

Talmadge).

The congressmen who favored statehood con-

ceded that it would impose an additional financial

burden on the territory, but they maintained that the

Statehood Act sufficiently provided for Alaska’s

financial wellbeing. A healthy minerals industry was

seen as a necessity to meet the economic challenge of

statehood. Two provisions of the Statehood Act were

designed specifically to assist the Alaska minerals

industry: Sections 6(a) and 6(i) of the Act. Together

these sections of the Act provided a very generous

land grant to the State (the right to select

103,350,000 acres of land) and the requirement of a

leasing system for minerals disposition from this

18

land. The land grant of 103,350,000 acres was per-

ceived by these congressmen as an endowment which

would yield the income that Alaska needed to meet

the costs of statehood. Representative Dawson said

that:

All grants include the mineral rights, but

these rights must be retained by the State if

the lands pass into private ownership. In

other words, the mineral rights will always

belong to the people of Alaska, and never to

private individuals. .. .

These provisions are the foundation upon

which Alaska can and will build to the enor-

mous benefit of the national economy shared

by her sister States. We cannot make Alaska

a “full and equal” State in name and then

deny her the wherewithal to realize that

status in fact.

104 Cong. Rec. 9,361 (1958).

The importance of mineral revenue to the new

state is also highlighted by the following colloquy

between Representative Miller and Alaska Territorial

Senator William Egan:

Miller: Do you see where you would get

much income out of this 103 million acres

you might select around, bearing in mind

most of the forests and good land has been

set aside by the Government now, or by the

military? How much income would you de-

rive from that to begin with?

19

Egan: As to how much income would be de-

rived, that would be entirely problematical,

depending on the values that would be found

there.... There are known deposits of al-

most every type of mineral.

I feel there would be development. ...

Statehood for Alaska: Hearings Before the Subcomm.

on Territorial and Insular Affairs of the House Comm.

on Interior and Insular Affairs, 85th Cong., 1st Sess.

201-02 (1957) (remarks of Rep. Miller and William

Egan, Alaska Territorial Senator and President of the

Alaska Constitutional Convention); see also 104 Cong.

Rec. 9,360-61 (1958) (further remarks of Rep. Daw-

son; remarks of Rep. O’Brien); 104 Cong. Rec. 12,012

(1958) (remarks of Sen. Jackson).

Congress passed the Alaska Statehood Act, Pub.

L. 85-508, 72 Stat. 343, on July 7, 1959. Following a

Declaration from President Eisenhower in early

January 1959, Alaska joined the Union.

The primary purpose of the statehood land

grants contained in section 6(a) and (b) of the State-

hood Act was to ensure the economic and social well-

being of the new state. Udall v. Kalerak, 396 F.2d

746, 749 (9th Cir. 1968), cert. denied, 393 U.S. 1118

(1969); United States v. Atlantic Richfield Co., 435

F. Supp. 1009, 1016, 1021 n.47 (D. Alaska 1977), aff’d,

612 F.2d 1132 (9th Cir.), cert. denied, 449 U.S. 888

(1980); see also Amoco Prod. Co. v. Village of Gambell,

Alaska, 480 U.S. 531, 549 & n.17 (1987) (public land

h

20

allocation began with the Alaska Statehood Act).

There is little case law exploring the purpose of

sections 6(a), 6(b) and 6(i) of the Alaska Statehood

Act. In addition to the broad statements about Con-

gressional purpose in these two cases, there is a

decision of the Alaska Supreme Court, Trustees for

Alaska v. State, 736 P.2d 324 (Alaska 1987), that

focuses specifically on the reasons for sections 6(a),

6(b) and 6(i) in the Statehood Act. The House Report

summarizes the purpose of the selection rights in

section 6(i) of the Statehood Act:

If the resources of value are withheld from

the State’s right of selection, such selection

rights would be of limited value to the new

State. The committee members have, there-

fore, broadened the right of selection so as to

give the State at least an opportunity to se-

lect lands containing real values instead of

millions of acres of barren tundra. To attain

this result, the State is given the right to se-

lect lands known or believed to be mineral in

character (sec. 6(i)).

H.R. Rep. No. 624, 85th Cong., lst Sess. (1957),

reprinted in Vol. 1, Alaska Statutes, “History of

Alaska Statehood,” at 7 (2006).

The grant ultimately provided in sections 6(a)

and (b) of the Statehood Act was one of unprece-

dented size whether considered either absolutely or

as a percentage of the total land area of the State. Jd.

As the colloquy between Representative Miller and

William Egan suggests, another rationale for the

21

unprecedented size was that the federal government

had already reserved the most valuable land and the

new state would, in effect, have second choice. In the

House, Representative Saylor said that “the choice

areas, more than 95 million acres, have been reserved

for Federal agencies.” 104 Cong. Rec. 9,340 (1958). In

Senate discussion of the federal reservations, Senator

Robertson read a portion of the House report on the

Act: “(T]his tremendous acreage of {federal} with-

drawals might well embrace a preponderance of the

more valuable resources needed by the new State to

develop flourishing industries with which to support

itself and its people.” 104 Cong. Rec. 12,019 (1958).

Thus, the large grant of 103 million acres was

deemed necessary because the lands available for

state selection were perceived to be only marginally

productive.

Furthermore, Congress recognized that the

agricultural potential of the statehood grant land was

limited. In debate, Senator Byrd commented: “In all

of the more than 365 million acres of land in Alaska,

only 2 million, or about one-half of 1 percent, are

arable.” 104 Cong. Rec. 12,336 (1958). Because Con-

gress realized that agricultural development would

not yield the revenue that Alaska would need to

support statehood, the Act contained the provision

granting the new state title to the mineral estate

underlying the land grants. Senator Kuchel said in

debate:

22

I believe, however, on the basis of the values

of property in Alaska as they have been es-

timated, the tremendous wealth in the ground

in minerals, .. . the State of Alaska will be able

to make maximum use of the property which it

will obtain under the bill from the Federal

Government. This provision constitutes one

additional assurance. I feel sure that economi-

cally the new government will succeed.

104 Cong. Rec. 12,035 (1958).

Thus, Congress recognized that the large state-

hood land grant and the grant of the underlying

mineral estate were important means by which the

new state could meet the financial burdens of State-

hood. Congress granted Alaska the mineral estate

with the intention that the revenue generated there-

from would help fund the new state’s government. See

id. The leasing restriction in section 6(i) was intended

to further the goal of state revenue production. See

Trustees for Alaska v. State, 736 P.2d at 335-337.

Congressional assumptions regarding the value

of mining to Alaska have borne out to be true. The

mining industry contributed $4 billion to Alaska’s

economy in 2007, consisting of $275 million in explo-

ration, $274 million in development, and $3.4 billion

in gross mineral production value. Mot. for Leave to

File Br. Amicus Curiae and Br. Amicus Curiae of

Pacific Legal Foundation, et al. at 7-11 (citing to

Alaska Miners Association, The Economic Impacts of

23

Alaska’s Mining Industry (2008)).'’ The mining indus-

try paid corporate income taxes and mining license

taxes of $150 million to the State of Alaska in fiscal

year 2007. See Alaska Department of Revenue Tax

Division, Revenue Sources Book (Fall 2007) at 19, Fig.

3.3." Upholding the Ninth Circuit would have the

effect of substantially curtailing the availability and

use of lands in Alaska for mining because, as dis-

cussed above, it would be impossible in many cases

for large mines in remote areas to dispose of mine

tailings in an economic fashion. This would signifi-

cantly restrict industrial development on these lands

contrary to congressional intent as set out in the

Alaska Statehood Act.

Achieving the goals, as expressed by the congres-

sional intent, of the Clean Water Act and the Alaska

Statehood Act, is the task of the agencies that regu-

late water quality in this country. The Corps and the

EPA have achieved a program for regulation of mine

tailings that balances the goals of the Alaska State-

hood Act and the Clean Water Act. In this matter, the

Corps issued a permit for tailings storage at

the Kensington Mine in Alaska that is consistent with

the agencies’ program. The agencies developed the

'' See also Coeur Alaska, Inc.’s Pet. for a Writ of Cert. at 19-

20 (mineral industry production in Alaska and other states);

State of Alaska Pet. for a Writ of Cert. at 29-30, n.& (employment

growth in mining industry in Alaska).

* Avatlable at https://www.tax alaska gov/programs/document

viewer/viewer.aspx’?255.

24

program and worked though the application of the

program for many years.” In absence of specific

Congressional intent disallowing the longstanding

program, this Court should recognize the expertise of

the agencies by reversing the decision of the Court of

Appeals for the Ninth Circuit.

+

“ State of Alaska Pet. for a Writ of Cert. at 6-10 (explana-

tion of the history of the adoption of the Army Corp regulations

allowing the permit issued for the Kensington Mine); Coeur

Alaska, Inc.'s Pet. for a Writ of Cert. at 29-30.

25

CONCLUSION

Given the unique geographical and economic

landscape of Alaska, the Ninth Circuit’s decision

thwarts the purpose of the Alaska Statehood Act,

Congress’ intent in enacting the Clean Water Act, and

the EPA and Corps’ practical and experience-laden

interpretations of the Clean Water Act. For these

reasons, Amicus CAP asks the Court to overturn the

Ninth Circuit’s ruling and affirm the District Court

below.

September 24, 2008

Respectfully submitted,

PAUL LAWRENCE

Counsel of Record

JAMES M. LYNCH

JOAN TRAVOSTINO

WILSON L. CONDON

K&L GATES LLP

420 L Street, Suite 400

Anchorage, Alaska 99501-1971

(907) 276-1969

Counsel for Amicus Curiae

Council of Alaska Producers