# Amicus Curiae 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%3A26

## Record

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

## Text

i. ie 2 9 fips
No. 07- and 07- SEP 24 2008
2)
aii | SEES OF IHS cuERe

Supreme Court of the Anited States

o

COEUR ALASKA, INC.,

Petitioner,
v.

SOUTHEAST ALASKA CONSERVATION COUNCIL, et ai.,
Respondents.

¢

STATE OF ALASKA,

Petitioner,
v.

SOUTHEAST ALASKA CONSERVATION COUNCIL, et ai.,

Respondents.

¢

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

¢

AMICUS CURIAE BRIEF OF
MOUNTAIN STATES LEGAL FOUNDATION
IN SUPPORT OF PETITIONER, COEUR ALASKA, INC.

°

WILLIAM PERRY PENDLEY*
*Counsel of Record
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021

Attorney for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Section 404 of the Clean Water Act authorizes the
U.S. Army Corps of Engineers to issue permits for
discharges of “fill material” provided that the dis-
charges comply with that section’s water-quality
requirements, which are jointly developed by the
Corps of Engineers and the Environmental Protection
Agency. 33 U.S.C. § 1344(a), (b\(1). By regulation, the
Corps of Engineers and the EPA have jointly defined
“fill material” generally as any material that has the
net effect of raising the bottom elevation of a water of
the United States, including specifically “slurry, or
tailings or similar mining-related materials,” 33
C.F.R. § 323.2(e)-(f); 40 C.F.R. § 232.2.

In this case, the Ninth Circuit held that the
Corps of Engineers lacked authority under Section
404 to issue a permit for the discharge of fill material
whenever the discharge implicates any effluent
restriction promulgated by the EPA as part of its
permit program under Section 402 of the Act. On that
basis, the Ninth Circuit invalidated a Section 404
discharge permit issued to Petitioner Coeur Alaska,
Inc.

The question presented is whether the Ninth
Circuit erred in rejecting the expert agencies’ joint
interpretation of the Act that effluent restrictions
promulgated as part of the EPA’s Section 402 permit
program do not apply to discharges of fill material
permitted by the Corps of Engineers under Section
404.

ii

TABLE OF CONTENTS

| Page
QUESTION PRESENTED......................0.sccecsceeees i
yo | PR Re Pn 6 cy) - ee iv

IDENTITY AND INTEREST OF AMICUS
i aaa icin tdaieecndiiniti 1
STATEMENT OF THE CASEL.............csccccscscssesees 2
SUMMARY OF THE ARGUMENT...................... 6
Fa EET Pee eC ED 7

I. THE NINTH CIRCUIT FAILED TO
ACKNOWLEDGE THAT THE TEXT OF
SECTION 402 AND SECTION 404 OF
THE CWA PROVIDES FOR SEPARATE
AND DISTINCT PERMITTING PROC-

A. The Text Of Section 402 Reveals That
Section 402 And Section 404 Are Mu-
I a ciiiiincintintinntinvistiinniones 10

B. The Text Of Section 404 Reveals That
Section 402 And Section 404 Are Mu-
I I vnciicrtnccctonsniinioseninitiiactens 12

Il. THE NINTH CIRCUIT DECISION
MUST BE REVERSED; IT VIOLATED
TWO WELL-ESTABLISHED TENETS
OF ADMINISTRATIVE LAW .................... 13

il

TABLE OF CONTENTS — Continued
Page

A. By Rejecting The Agencies’ Interpre-
tation Of The CWA And Effectively
Rewriting The Regulation, The Ninth
Circuit Decision Conflicts With Chev-

Ci ciisisesdsicnunisiiisieaiblalndainietiaiiliibinnculiiitiinuidieesie 15

1. Chevron requires deference to ac-
countable agencies..............c.ssseeeeees 15

2. The instant case is on al! fours
with Chevron, requiring deference
from the Ninth Circuit ................... 18

B. By Rejecting The Corps’ Interpreta-
tion Of Its Own Regulation, The
Ninth Circuit Decision Conflicts With
This Court’s Holding In Seminole
EAN SS SaRR ESAS A SPE SEES SE Boe Nee roan 21

ER irctncactsssiteseniccsnesevunsietneeresesnisenetiin 25

iv

TABLE OF AUTHORITIES
Page
CASES
Auer v. Robbins, 519 U.S. 452 (1997)...................ceeee 22
Boise Cascade Corp. v. EPA, 942 F.2d 1427 (9th
SnD I ashicicinhieviscaitadeapieibanasiiaindeabipendichiebenbpinianaiaseeiedinn 12
Bowles v. Seminole Rock & Sand Co., 325 U.S.
SI uiiesicassipictiiuilndicnncisishitipgninnsicnioiansieosneeis passim
Brown v. United States, 113 U.S. 568 (1885)....... 10, 15
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837
SIT iii seirhnteehitenceemiiagienidanmantigauigeliimalananiaind: passim
Christensen v. Harris County, 529 U.S. 576
AAC eee eE mee NO St DS oe ERE EE SS Cem Oe 22
Coeur Alaska, Inc. v. Southeast Alaska Conser-
vation Council, __ U.S. __, 2008 WL
ERECT NE viceae ev rc et > tr enone me 5
Davis v. Michigan Dept. of Treasury, 489 U.S.
I ai ocean ininlapatasidnignadaanitamatstnbuinened 6, 10
De Sylva v. Ballentine, 351 U.S. 570 (1956)................ 9
Entergy Services, Inc. v. FERC, 375 F.3d 1204
ER en ee 24
Food and Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120 (2000)..................ee 6
Greenfield Mills, Inc. v. Macklin, 361 F.3d 934
I is icici cusnicecndiidilaiietiniieabaiioialipheeintitonn 11, 12
Gustafson v. Alloyd Co., 513 U.S. 561 (1995)........ 6, 10

Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 317 F.3d 425 (4th Cir. 2003).............. 20

Vv

TABLE OF AUTHORITIES — Continued

Page
Laguna Gatuna, Inc. v. United States, 50 Fed.
ibs, SU IIIT cneeccotsesccupnieshlieielleianingstibeaiaaaianiin iaiiediaiaedd 2
National Ass’n of Home Builders v. Defenders
of Wildlife, _._ US. __, 127 S.Ct. 2518
I Pcteiithtslekatiidciisitentciciinininitieidnsiuibsadianiabdl 6, 10, 17, 21
National Wildlife Federation v. Gorsuch, 693
ee BE Ga AN Be iicrcccecsccnssramsniniiacisbhiiittiiosanes 1
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680
SII ceintcieesesusiitbiindininiaictctisiin-csctisinsianititindientaiaibiiideiiddl 22
Rapanos v. United States, 547 U.S. 715 (2006).....2, 11
Ratzlaf v. U.S., 510 U.S. 135 (1994) ...............0006 12, 24
Riverside Irrigation District v. Andrews, 758
ee ee GI I TD vcricitsstcccitnceninntpicctimatuinteaties 2

Sierra Club v. El Paso Gold Mines, Inc.,
421 F.3d 1133 (10th Cir. 2005), cert. denied,
Be ay ie 2

Southeast Alaska Conservation Council v. U.S.
Army Corps of Engineers, 486 F.3d 638 (9th
GUI, SEI lniiestninnsitectoniimtanienaiitiminnisipunpindlinaasbatunet passim

Southeast Alaska Conservation Council v. U.S.
Army Corps of Engineers, No. 05-cv-00012-J-

JKS, slip op. (D.Alaska Aug. 4, 2006) ..........0........00. 4
Thomas Jefferson University v. Shalala, 512

Pn ai i a fa al 22
United States v. Fisk, 70 U.S. 445 (1865) .............000.... 9

United States v. Hagberg, 207 F.3d 569 (9th
SEE SIETID soscsonsssnnidincspictunenenssapnimiinniaiaadadlaienaaaaal 24

vi

TABLE OF AUTHORITIES — Continued

United States v. Larionoff, 431 U.S. 864 (1977)........ 22
United States v. Shimmer, 367 U.S. 374 (1961) ...15, 16

Wards Cove Packing Corp. v. National Marine
Fisheries Service, 307 F.3d 1214 (9th Cir.

Watt v. Alaska, 451 U.S. 259 (1981)................00.........12

STATUTES
ns icin cn iccecescntannnsasapenenincedsensenieiiil 14
i cn srmssmmenlsmmlbialiinill 7,9
a rie idccenctnduiconsonnevontenenl 8,9, 10
ada nantnniniccssnsncisnsnuintis 8,9, 10
TD ocencccenccvesnscovenssceevsescsnscouse 8, 10, 11
asc ntntamnndntmiictisiasaenibiiia 18
a ctseecenassantinnananl 8
33 U.S.C. § 1344(b)................2.... , Sinasiihiidaleineciidieaitpeiliaidh 18
A 8
Nai aaa instmeiptnnscnseneee 12, 13
Clean Water Act, 33 U.S.C. §§ 1251-1387 ................... 1
Clean Water Act, Section 301 (33 U.S.C.
EE a 5, 6, 8, 12, 20

Clean Water Act, Section 306 (33 U.S.C.
a seencamibtieneitiondd 5,8

Vil

TABLE OF AUTHORITIES — Continued

Page

Clean Water Act, Section 402 (33 U.S.C.

LTT ninthsiesnonenianiduinnniniiinbnacniiisnanpgetrenuennnisiantailidddainl passim
Clean Water Act, Section 404 (33 U.S.C.

SII Diciesidicissennlacsinadapiioiiousaniniandipadentinbeniabaidel passim
REGULATIONS
ELEN TET eT 13, 23
TEE a ree SRE Fm TSN 13
nse cn tpt iiniecsgineendsletsibndhiinenstneneaeiciant 14
arin nace catlemirlinnialanincamunlitial 13
OTHER AUTHORITIES
67 Fed. Reg. 31,129 (May 9, 2002)................0...... 13, 14

Scott H. Angstreich, Shoring up Chevron: A
Defense of Seminole Rock Deference to Agency
Regulatory Interpretations, 34 U.C. Davis L.

Se ety a ae SD crcissisitinnscconnccninscemmniaiindins 22, 23, 24

Mountain States Legal Foundation (“MSLF”)
respectfully submits this amicus curiae brief in
support of Petitiomer, Coeur Alaska, Inc., in Case No.
07-984.”

IDENTITY AND INTEREST
OF AMICUS CURIAE

Mountain States Legal Foundation (““MSLF”) is a
non-profit, public interest legal foundation organized
under the laws of the State of Colorado. MSLF is
dedicated to bringing before the courts those issues
vital to the defense and preservation of private prop-
erty rights, individual liberties, limited and ethical
government, and the free enterprise system. Since its
establishment in 1977, MSLF has been active in
litigation to ensure the proper interpretation and
application of the Clean Water Act, 33 U.S.C.
§§ 1251-1387. See, e.g., National Wildlife Federation

"In compliance with Supreme Court Rule 37(6), MSLF
represents that the parties have consented to the filing of this
brief. All petitioners and respondents, except for the United
States, have filed letters with the Clerk of the Court consenting
to the filing of amicus briefs. The United States’ letter of consent
is being filed with this brief. Counsel of record for all parties
received notice at least ten days prior to the due date of the
amicus curiae’s intention to file this brief. No counsel for any
party authored this brief in whole or in part, and no counsel or
party made a monetary contribution intended to fund the
preparation or submission of this brief. No person, other than
amicus curiae, its members, or its counsel made a monetary
contribution to its preparation or submission.

2

v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982) (amicus
curiae); Riverside Irrigation District v. Andrews, 758
F.2d 508 (10th Cir. 1985) (represented intervenor);
Laguna Gatuna, Inc. v. United States, 50 Fed. Cl. 336
(2001) (represented plaintiff); Sierra Club v. El Paso
Gold Mines, Inc., 421 F.3d 1133 (10th Cir. 2005), cert.
denied, 547 U.S. 1065 (2006) (amicus curiae); Ra-
panos v. United States, 547 U.S. 715 (2006) (amicus
curiae); Southeast Alaska Conservation Council uv.
U.S. Army Corps of Engineers, 486 F.3d 638 (9th Cir.
2006) (amicus curiae).

In addition, MSLF has over 5,000 members
throughout the United States, hundreds of whom own
businesses and/or property in Alaska, California,
Oregon, Washington, Idaho, Montana, Amzona,
Nevada, and Hawaii, the States affected by the Ninth
Circuit’s erroneous decision that interprets the Clean
Water Act as prohibiting any discharge of pollutants.
Because Congress expressly provided for the regu-
lated discharge of pollutants under the permit re-
gimes established in the Clean Water Act, MSLF
respectfully submits this Amicus Curiae Brief in
support of Petitioner Coeur Alaska.

°

STATEMENT OF THE CASE

The “Kensington Project” of Coeur Alaska, Inc., is
a proposed underground gold mine that would be

3

located approximately 40 miles north of Juneau,
Alaska.” J.A. 317a; 249a. The mine is at the location
of the historic Kensington mine, which operated from
1897 to 1928. Pet’r Coeur Alaska Br. 5. On June 17,
2005, the U.S. Army Corps of Engineers (“Corps”)
issued a permit, under Section 404 of the Clean
Water Act (““CWA” or “Act”), 33 U.S.C. § 1344, that
allows Coeur Alaska to discharge 1,440 tons of mine
tailings per day, in slurry form, into an impoundment
im Lower Slate Lake. J.A. 266a. The Southeast Alaska
Conservation Council, Sierra Club, and Lynn Canal
Conservation (hereinafter collectively “SEACC”) filed
a \awewit in the U.S. District Court for the District of
Alaska seeking, inter alia, to hold unlawful and set
aside the Section 404 permit. Pet’r Coeur Alaska Br.
8. SEACC claimed that the permitting process should
have been conducted under the more stringent re-
quirements contained in Section 402 of the CWA, 33
U.S.C. § 1342. Id.

Shortly after this suit was filed, because the
Corps had decided to suspend the permit and recon-
sider its decision, the Corps moved for a voluntary
remand, which was granted by the District Court on
November 14, 2005. J.A. 524a. On March 29, 2006,
the Corps issued a revised Record of Decision, which
further explained its rationale for issuing the permit,
and reinstated the permit. Jd.

* Coeur Alaska, Inc., is a wholly owned subsidiary of Coeur
d’Alene Mines Corporation.

4

On August 4, 2006, after the case had been
reopened in light of the Corps’ revised Record of
Decision, the District Court granted judgment in
favor of the Corps and Coeur Alaska. Southeast
Alaska Conservation Council v. U.S. Army Corps of
Engineers, No. 05-cv-00012-J-JKS, slip op. (D.Alaska
Aug. 4, 2006). J.A. 524a. The District Court held that
it had to defer to the Corps’ definition of “fill mate-
rial” under Chevron U.S.A., Inc. v. NRDC, 467 U.S.
837, 842-43 (1984). J.A. 524a. Subsequently, SEACC
moved the Ninth Circuit for an injunction pending
appeal, which was granted on August 24, 2006. Id.

After the parties briefed the merits of the appeal,
the Ninth Circuit reversed the District Court’s deci-
sion and remanded with instructions to vacate the
Corps’ permit. Southeast Alaska Conservation Council
v. U.S. Army Corps of Engineers, 486 F.3d 638, 651,
n.12 (9th Cir. 2007). In so doing, the Ninth Circuit
acknowledged that SEACC was not challenging the
validity of the Corps’ and the Environmental Protec-
tion Agency’s (“EPA”) joint regulations, which defined
“fill material” and “discharge of fill material.” Jd. at
651, n.12 (“[Wle do not reach the validity of the
regulations.”). The Ninth Circuit also repeatedly
acknowledged that the proposed discharge “facially”
satisfied the plain language of the Corps’ regulatory
definition of the term “fill material.” Jd. at 644 (The
discharge “facially meets the Corps’ current regula-
tory definition of ‘fill material’ because it would have
the effect of raising the bottom elevation of the
lake.”); id. at 655 (“(T]Jhe discharge in this case

5

facially qualifies for the permitting scheme under
§ 404 of the [CWA]. ... ”).

Despite these acknowledgements, the Ninth
Circuit rejected the Corps’ interpretation and applica-
tion of the regulations promulgated to implement
Section 404. Instead, it determined that Section 404
was “a limited permit program” that was not meant
to apply to the “discharge of pollutants from indus-
tria] or municipal sources.” Jd. at 646. This was
especially true, the Ninth Circuit explained, “when
the EPA has adopted an effluent limitation or per-
formance standard applicable to the relevant source
of pollution.” Jd. at 647. Because the EPA previously
had promulgated a performance standard, pursuant
to Sections 301 and 306 of the CWA, that prohibits
discharges from froth-flotation mills, such as Coeur
Alaska’s, the Ninth Circuit ruled that the Corps
violated the CWA when it issued a Section 404 permit
to Coeur Alaska. Jd. at 655.

On October 29, 2007, the Ninth Circuit denied -

Coeur Alaska’s Petition for Rehearing En Banc. J.A.
552a. On November 14, 2007, however, the Ninth
Circuit did stay issuance of the mandate pending the
filing and disposition of a petition for writ of certio-
rari. J.A. 554a. On January 28, 2008, Coeur Alaska
filed a Petition for a Writ of Certiorari with this
Court, which was granted on June 27, 2008, and
consolidated with a related petition filed by the State
of Alaska. Coeur Alaska, Inc. v. Southeast Alaska

6

Conservation Council, ___ U.S. __., 2008 WL 243678
(2008).

¢

SUMMARY OF THE ARGUMENT

The Ninth Circuit decision cannot be allowed to
stand because it blatantly violates two fundamental,
well-settled principles of statutory and regulatory
construction. First, it is beyond refute that statutes
must be interpreted by analyzing the statutory text
as a whole. National Ass’n of Home Builders v. De-
fenders of Wildlife, __. U.S. ___, 127 S.Ct. 2518, 2534
(2007); Food and Drug Admin. v. Brown & William-
son Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a
‘fundamental canon of statutory construction that the
words of a statute must be read in their context and
with a view to their place in the overall statutory
scheme.’” (quoting Davis v. Michigan Dept. of Treas-
ury, 489 U.S. 803, 809 (1989))). As such, a court must
“interpret the statute ‘as a symmetrical and coherent
regulatory scheme,” id. (citing Gustafson v. Alloyd
Co., 513 U.S. 561, 569 (1995)).

In its analysis, however, the Ninth Circuit fo-
cused its attention on Congress’ use of the word “and”
instead of the word “or” in Section 301 of the CWA. In
so doing, it ignored other, more definitive and less
ambiguous language that appears in both Section 402
and Section 404 of the CWA. When this language is
considered as a “coherent regulatory scheme,” it is

7

clear that the District Court decision should have
been upheld.

Second, it is a well-settled tenet of administrative
law that a court must defer to an agency’s interpreta-
tion of a statute unless the agency’s action constitutes
an unreasonable interpretation of an ambiguous
statute. Chevron, 467 U.S. at 842-844. Similarly, a
court must defer to an agency’s interpretation of its
own regulation unless it is “plainly erroneous or
inconsistent with the regulation.” Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 413-14 (1945). The
Ninth Circuit, by neglecting to apply these tests,
failed to provide the proper level of deference to the
agency's interpretations.

As a result of this blatant disregard for the
precedent of this Court, the holding of the Ninth
Circuit should be reversed.

o

ARGUMENT

I. THE NINTH CIRCUIT FAILED TO AC-
KNOWLEDGE THAT THE TEXT OF SEC-
TION 402 AND SECTION 404 OF THE CWA
PROVIDES FOR SEPARATE AND DIS-
TINCT PERMITTING PROCESSES.

The CWA expressly allows for the discharge of
pollutants into the waters of the United States as
long as the discharger holds a permit issued under
one of the two permitting schemes established by the
Act. 33 U.S.C. § 131ll(a). The permitting schemes at

8

issue here are in Section 402 and Section 404 of the
CWA. 33 U.S.C. §§ 1342, 1344.

Section 404 deals specifically with “discharge[s]
of dredged or fill material” and requires that the
Corps receive tacit approval from the EPA before
it issues permits for such discharges. 33 U.S.C.
§ 1344(a). Under this scheme, Congress provided for
the protection of water quality and the environment
by requiring that all Section 404 permits comply with
guidelines developed by the EPA in conjunction with
the Corps (“Section 404(b)(1) Guidelines”). 33 U.S.C.
§ 1344(b)(1).

The other major permitting scheme, the Section
402 program, is administered by the EPA and allows
the EPA to issue permits for the discharge of pollut-
ants as long as the discharge complies with other
expressly enumerated provisions of the CWA, such as
Sections 301 and 306. 33 U.S.C. § 1842(a\(1). Section
301 requires that discharges from existing point
sources comply with effluent limitations promulgated
by the EPA. 33 U.S.C. § 1311(e). Section 306 requires
that discharges from new sources comply with the
EPA’s technology-based “standards of performance”
for that category of source. 33 U.S.C. § 1316(e).

After analyzing the statutory language, the
Ninth Circuit held that fill material discharges,
which fall under the Section 404 rubric, must comply,
not only with the requirements of Section 404(b\1),
but also with the regulations in Sections 301 and 306,
before a permit can be issued by the Corps under

9

Section 404. Southeast Alaska Conservation Council,
486 F.3d at 646-48. This conclusion was based pri-
marily on the Ninth Circuit’s analysis of Section
301(a), which provides that, “Except as in compliance
with this section and sections 1312, 1316, 1317, 1328,
1342 [section 402], and 1344 [section 404] of this title,
the discharge of any pollutant by any person shall be
unlawful.” 33 U.S.C. § 1311(a) (emphasis added). The
Ninth Circuit decided that “[t]he use of ‘and’ as a
connector, instead of ‘or,’ indicates that Congress
intended for effluent limitations and standards of
performance to apply to all applicable discharges,
even those that facially qualify for permitting under
§ 404.” Id. at 646. In addition, the Ninth Circuit noted
that Section 301(e) (33 U.S.C. § 1311(e)) applies to
“all” discharges and Section 306(e) (33 U.S.C.
§ 1316(e)) applies to “any” discharge. /d.

These statutory clues, when viewed in a vacuum,
would lend credence to the conclusion that fill mate-
rial discharge must comply with Sections 301(e) and
306(e); however, the Ninth Circuit’s rigid interpreta-
tion of the word “and” runs counter to the precedent
of this Court, that holds that Congress often uses
“and” and “or” interchangeably and that the meaning
of the word in a particular case should be derived
from the context. See De Sylva v. Ballentine, 351 U.S.
570 (1956) (holding that in the context of an inheri-
tance statute “or” should be read as “and”); United
States v. Fisk, 70 U.S. 445 (1865) (In the construction
of statutes, it is the duty of the court to ascertain the
clear intention of the legislature. In order to do this,

10

courts are often compelled to construe “or” as mean-
ing “and,” and again “and” as meaning “or.”).

Moreover, “(i]t is a ‘fundamental canon of statu-
tory construction that the words of a statute must be
read in their context and with a view to their place in
the overall statutory scheme.’” Brown & Williamson
Tobacco, 529 U.S. at 133 (quoting Davis, 489 U.S. at
809). As such, a court must “interpret the statute ‘as
a symmetrical and coherent regulatory scheme,” Jd.
(citing Gustafson, 513 U.S. at 569). This is particu-
larly true when, as here, a court is reviewing an
agency’s interpretation of a statute, because “‘(t]he
meaning — or ambiguity — of certain words or phrases
may only become evident when placed in context ...’”
National Ass’n of Home Builders, 127 S.Ct. at 2534
(quoting Williamson Tobacco Corp., 529 U.S. at 132-
33). When Section 404 is viewed in the context of
other statutory clues, it becomes clear that the statu-
tory text overwhelmingly supports the conclusion
that Section 404 permits for fill material discharges
are issued independently from the regulations of
Section 301(e) and Section 306(e).

A. The Text Of Section 402 Reveals That
Section 402 And Section 404 Are Mutu-
ally Exclusive.

As the text of Section 402(a)(1) reveals, the two
permitting schemes, Section 402 and Section 404, are
mutually exclusive. Indeed, Section 402 expressly
provides that the EPA may issue permits “[e]xcept as

11

provided in” Section 404. 33 U.S.C. § 1342(a)(1); see
also Greenfield Mills, Inc. v. Macklin, 361 F.3d 934,
946 n.14 (7th Cir. 2004) (a party whose activity is
governed by the section 404 program “is not ...
subject to the [section 402] permitting require-
ments”).

The determinative factor as to which of the two
permitting schemes applies is whether the discharge
will be “dredged or fill material” or some other pollut-
ant. If the discharge is “dredged or fill material,” then
Section 404 is the exclusive permitting scheme.
Indeed, this Court has explicitly stated that “(t]he Act

. providi[es] a separate permitting program” for
discharges of dredged or fill material, with Section
404 providing the regulatory scheme for such mate-
rial. Rapanos v. United States, 547 U.S. 715, 745
(2006) (plurality opinion); see also id. at 760 (Ken-
nedy, J., concurring) (“Apart from dre2ged or fill
material, pollutant discharges require a permit from
the Environmental Protection Agency ... ”).

In holding that a permit issued under Section
404 must also satisfy the requirements in Section
402, the Ninth Circuit effectively failed to give effect
to this important provision of Section 402 itself.
Astonishingly, the Ninth Circuit neglected to quote,
cite, or even acknowledge the existence of Section
402(a\1), which succinctly evinces the distinction
between the two permitting schemes. This is particu-
larly ironic, given that the Ninth Circuit admitted
that courts “strive to avoid interpreting a statute ‘in a
manner that renders other provisions of the same

12

statute inconsistent, meaningless, or superfluous.’”
Southeast Alaska Conservation Council, 486 F.3d at
647 (citing Boise Cascade Corp. v. EPA, 942 F.2d
1427, 1432 (9th Cir. 1991)); Ratzlaf v. U.S., 510 U.S.
135, 140-41 (1994); Watt v. Alaska, 451 U.S. 259, 267
(1981).

B. The Text Of Section 404 Reveals That
Section 402 And Section 404 Are Mutu-
ally Exclusive.

The text of Section 404(p) expressly provides that
“(clompliance with a permit issued pursuant to this
section, including any activity carried out pursuant to
a general permit issued under this section, shall be
deemed compliance” with the primary permitting
requirements of Section 301. 33 U.S.C. § 1344(p).
Indeed, the EPA and the Corps, in a joint amicus brief
at the Seventh Circuit, explained that the “discharge
of pollutants other than dredged or fill material are
generally regulated under section 402 ... [whereas]
|djischarges of dredged or fill material are generally
regulated under section 404.” Greenfield Mills, 361
F.3d at 946 n.14 (citing Brief of United States Envi-
ronmental Protection Agency and United States Army
Corps of Engineers as Amici Curiae, Greenfield Mills,
361 F.3d at 946 n.14 (brief located at 2003 WL
22733948)).

Nonetheless, in holding that a permit issued
under Section 404 must also satisfy the requirements
in Section 402, the Ninth Circuit effectively failed to

13

give effect to Section 404(p). As a result, the holding
of the Ninth Circuit should be reversed.

Il. THE NINTH CIRCUIT DECISION MUST BE
REVERSED; IT VIOLATED TWO WELL-
ESTABLISHED TENETS OF ADMINIS-
TRATIVE LAW.

Section 404 of the CWA specifically provides for
the issuance of permits “for the discharge of dredged
or fill material into ... navigable waters ...” Thus,
the applicability of Section 404 depends on the defini-
tion of “fill material.”

On May 9, 2002, the Corps and the EPA pub-
lished joint regulations to “clarify the Section 404
regulatory framework” and to adopt uniform defini-
tions of “fill material” and “discharge of fill material.”
67 Fed. Reg. 31,129, 31,130 (May 9, 2002). Under
these regulations, “fill material” is defined as “mate-
rial placed in the waters of the United States where
the material has the effect of ... [cJhanging the
bottom elevation of any portion of a water of the
United States.” 33 C.F.R. § 323.2(e) (Corps definition);
40 C.F.R. § 232.2 (EPA definition). The two agencies
also defined “discharge of fill material” to include the
discharge of “overburden, slurry, or tailings or similar
mining-related materials[.)” 33 C.FR. § 323.2(f)
(Corps definition); 40 C.F.R. § 232.2 (EPA definition).

Importantly, the agencies explained that
“[plersons or entities that discharge material to
waters of the U.S. that has the effect of replacing any

14

portion of a water of the U.S. with dry land or chang-
ing the bottom elevation of any portion of a water of
the U.S. could be regulated by [section 404].” 67 Fed.
Reg. 31,129, 31,135 (May 9, 2002). Indeed, the “EPA
has never sought to regulate fill material under
effluent guidelines [under section 402].” Jd. More
specifically, the agencies explained that “any mining-
related material that has the effect of fill when dis-
charged will be regulated as ‘fill material’” under
section 404 of the CWA. Id.

This is consistent with the agencies’ historical
application of the CWA. In 1983, for example, the
EPA explained that “[djischarges of dredged or fill
material into waters of the United States which are
regulated under section 404 of CWA” specifically “do
not require [section 402] permits.” 40 C.F.R. § 122.3.

Interpreting its own regulations, the Corps
determined that Coeur Alaska’s placement of mine
tailings at the bottom of a Lower Slate Lake would be
a discharge of “fill material.” This determination was
based on the fact that the placement of mine tailings
at the bottom of the lake would “chang[e] the bottom
elevation” of the lake. Accordingly, the Corps, with
the concurrence of the EPA, issued a Section 404
permit to Cocur Alaska.

SEACC sought judicial review of the Corps’
issuance of the permit under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701 et seg. The
District Court rejected SEACC’s challenge to the
Corps’ permitting decision, upholding the Corps’ and

15

the EPA’s regulations that define the terms “fill
material” and “discharge of fill material” under the
principles announced in Chevron, 467 U.S. at 842-43.
Memorandum Decision, J.A. 53a. The District Court
upheld the Corps’ interpretation that these valid
regulations authorized the issuance of the permit
holding that substantial deference must be accorded

to an agency’s interpretation of its own regulations.
Id. at 8-11.

The Ninth Circuit, however, reversed the District
Court and remanded with instructions to vacate the
Section 404 permit. Southeast Alaska Conservation
Council, 486 F.3d at 655. In so doing, either the Ninth
Circuit was rejecting the agencies’ interpretation of
the CWA by effectively rewriting the regulation itself
or else the Ninth Circuit was rejecting the Corps’
interpretation of its own regulation. Both actions are
contrary to the well-established jurisprudence of this
Court.

A. By Rejecting The Agencies’ Interpreta-
tion Of The CWA And Effectively Rewrit-
ing The Regulation, The Ninth Circuit
Decision Conflicts With Chevron.

1. Chevron requires deference to ac-
countable agencies.

This Court has long required that deference he
accorded to an agency’s interpretation of a statutory
scheme it is entrusted to administer. See, e.g., Brown
v. United States, 113 U.S. 568, 570-71 (1885); United

16

States v. Shimmer, 367 U.S. 374, 381-83 (1961). In
Chevron, supra, this Court established the now
universally recognized two-step analysis that a
reviewing court must perform in order to implement
this principle of deference:

First, always, is the question whether Con-
gress has directly spoken to the precise ques-
tion at issue. If the intent of Congress is
clear, that is the end of the matter; for the
court, as well as the agency, must give effect
to the unambiguously expressed intent of
Congress. If, however, the court determines
Congress has not directly addressed the pre-
cise question at issue, the court does not
simply impose its own construction on the
statute, as would be necessary in the absence
of an administrative interpretation. Rather,
if the statute is silent or ambiguous with re-
spect to the specific issue, the question for
the court is whether the agency’s answer is
based on a permissible construction of the
statute.

467 U.S. at 842-44 (footnotes omitted). Thus, if Con-
gress’ “silence” or “ambiguity” has “left a gap for the
agency to fill,” a court must defer to the agency’s
interpretation so long as it is “a permissible construc-
tion of the statute.” Jd. at 842-43.

The deference required by Chevron is based on
the principle that courts are not in a position to
second guess an agency's interpretation of a congres-
sional mandate where there is an ambiguity as to the
legislative intent or where Congress intentionally left

17

an issue to the discretion of the agency. As Justice
Stevens wisely explained:

Judges are not experts in the field, and are
not part of either political branch of the Gov-
ernment. ... While agencies are not directly
accountable to the people, the Chief Execu-
tive is, and it is entirely appropriate for this
political branch of the Government to make
... policy choices — resolving the competing
interests which Congress itself either inad-
vertently did not resolve, or intentionally left
to be resolved by the agency charged with
the administration of the statute in light of
everyday realities.

When a challenge to an agency construction
of a statutory provision, fairly conceptual-
ized, really centers on the wisdom of the
agency’s policy, rather than whether it is a
reasonable choice within the gap left open by
Congress, the challenge must fail. In such a
case, federal judges — who have no constitu-
ency — have a duty to respect the legitimate
policy choices made by those who do.

Id. at 865-66. This approach minimizes judicial
interference with the democratic accountability of the
executive branch, and has been applied by this Court
recently in a case interpreting the CWA. See National
Ass’n of Home Builders, ____ U.S. ___, 127 S.Ct. 2518
(2007).

The EPA and Corps are much more knowledge-
able than the courts in the areas of environmental
protection and regulation as well as the area of

18

mining practices, and are charged with considering a
variety of factors in issuing permits, including the
effect of disposal of pollutants on human health or
welfare, marine life, esthetic, recreation, and eco-
nomic values, other possible locations and methods of
disposal, and the effect on alternate uses of the water,
such as mineral exploitation. 33 U.S.C. § 1343(c)
(cross-referenced by 33 U.S.C. § 1344(b) as the type of
criteria upon which Section 404 guidelines should be
based). These factors put these agencies in the best
position to achieve balance between the competing
interests in the discharge of pollutants and fill mate-
rial. Congress left a “gap” in the statute for the exper-
tise of the agency to fill, and the courts must defer to
agency rulemaking that fills that gap and is not con-
trary to any clearly expressed congressional intent.

2. The instant case is on all fours with
Chevron, requiring deference from
the Ninth Circuit.

This case fits neatly within the scope of the
Chevron decision. In Chevron, the statute at issue
was the Clean Air Act, which regulated, but did not
define, “stationary sources” of pollution, rather than
the Clean Water Act. The EPA defined a “stationary
source” as including all pollution emitting activities
belonging to the same industrial grouping, and this
Court held that the lower court should have deferred
to that definition. /d. at 840-41. In the instant case,
Congress similarly passed a statute for the regulation
of “fill material” entering waters of the United States,

19

the EPA promulgated a definition of “fill material,”
and the courts should defer to that definition. Indeed,
SEACC did not challenge the validity of the definition
itself. Southeast Alaska Conservation Council, 486
F.3d at 651, n.12.

Nonetheless, the Ninth Circuit effectively re-
wrote the regulations because they did not conform to
the Ninth Circuit’s novel interpretation of the highly
technical arsd complex provisions of the CWA. Specifi-
cally, the Ninth Circuit held that discharges that
squarely fell within the Corps’ and the EPA’s defini-
tion of “fill material” could not actually be considered
“fill material” if those discharges were also subject to
an EPA effluent limitation or standard of perform-
ance. Id. at 646-48. Thus, after the Ninth Circuit’s
radical decision, the agencies’ joint definition of “fill
material” now essentially reads:

The term “fill material” means material
placed in waters of the United States where
the material has the effect of ... changing
the bottom elevation of any portion of a wa-
ter of the United States, unless the material
may also be subject to an EPA effluent limita-
tion or standard of performance.

For all practicable purposes, the Ninth Circuit
invalidated carefully crafted joint regulations of the
Corps and the EPA and replaced them with its own
rule. This replacement effectively eviscerates the
congressionally authorized role of the Corps in regu-
lating the waters of the United States because the
EPA now will have permitting authority over any

20

discharge that may fall within a performance stan-

dard or effluent limitation applicable under Section
402 of the CWA.

In Chevron, however, this Court held that a
reviewing court may invalidate regulations duly
promulgated by the agency charged with administer-
ing a statute only “if Congress has spoken to the
precise question at issue” and the agency’s regulation
directly conflicts with “the unambiguously expressed
intent of Congress.” 467 U.S. at 842-43. Here, Con-
gress was silent as to meaning of the operative terms
in Section 404, i.e., “fill material” and “discharge of
fill material.” Its silence on the meaning of these
terms indicates that Congress implicitly granted
authority to the Corps and the EPA to fill this “gap.”
See Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 317 F.3d 425, 441-44 (4th Cir. 2003)
(concluding that Congress’s silence on the definition
of “fill material” created an ambiguity for the Corps
and the EPA to resolve).

Although the Ninth Circuit recognized that
Congress had not “spoken to the precise question at
issue” and, thus, left a “gap” for the Corps and the
EPA to fill, see Southeast Alaska Conservation Coun-
cil, 486 F.3d at 649, the Ninth Circuit effectively
invalidated the joint regulations under step one of
Chevron. 467 U.S. at 644-48. Moreover, by holding
that Section 301 requires compliance with Sections
402 and 404, rather than deferring to the agencies’
permissible construction of Section 301 as requiring
compliance with Section 402 or Section 404 (see

21

section I, supra), the Ninth Circuit brazenly ignored
this Court’s well-reasoned rule in Chevron.

B. By Rejecting The Corps’ Interpreta-
tion Of Its Own Regulation, The Ninth
Circuit Decision Conflicts With This
Court’s Holding In Seminole Rock.

Alternatively, in ordering the Section 404 permit
to be vacated, the Ninth Circuit effectively ruled that
the Corps erroneously interpreted its own regulatory
definition of “fill material” in issuing the permit.
Southeast Alaska Conservation Council, 486 F.3d at
648-653. In so doing, the Ninth Circuit violated a
tenet of administrative law older than Chevron.

Over sixty years ago, in Bowles v. Seminole Rock

& Sand Co., 325 U.S. 410, 413-14 (1945) (emphasis
added), this Court articulated the now well-known
rule of deference to an agency’s interpretation of its
own regulations:

Since this [case] involves an interpretation of
an administrative regulation a court must
necessarily look to the administrative con-
struction of the regulation if the meaning of
the words used is in doubt... . /T'/he ultimate
criterion is the administrative interpretation,
which becomes of controlling weight unless it
ts plainly erroneous or inconsistent with the
regulation.

This deference principle has been followed consis-
tently by this Court. See, e.g., National Ass’n of Home

22

Builders, 127 S.Ct. at 2537-38; Auer v. Robbins, 519
U.S. 452, 461 (1997); United States.v. Larionoff, 431
U.S. 864, 872 (1977). Adherence to this deference
principle is especially important when, as in the
instant case, an agency is charged with administering
a complex and highly technical regulatory program,’
in which the identification and classification of rele-
vant ‘criteria necessarily require significant expertise
and entail the exercise of judgment grounded in
policy concerns.’” Thomas Jefferson University uv.
Shalala, 512 U.S. 504, 512 (1994) (quoting Pauley v.
BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991)).

“ese

Under Seminole Rock, when a court reviews an
agency's interpretation of its own regulations, its
analysis is similar to that which it performs when
reviewing an agency’s construction of statute under
Chevron. Scott H. Angstreich, Shoring up Chevron: A
Defense of Seminole Rock Deference to Agency Regula-
tory Interpretations, 34 U.C. Davis L. Rev. 49, 70-71
(2000). The first step is to determine whether the
regulation is unambiguous. /d. If the regulation is
unambiguous, a court will uphold an agency interpre-
tation that is consistent with the unambiguous regu-
latory language. See id.; Christensen v. Harris County,
529 U.S. 576, 588 (2000) (according no deference to
an agency’s interpretation that conflicted with its
unambiguous regulation); Wards Cove Packing Corp.
v. National Marine Fisheries Service, 307 F.3d 1214,
1219-20 (9th Cir. 2002) (same); Thomas Jefferson
University, 512 U.S. at 512-18 (upholding an agency’s
interpretation of an unambiguous regulation). If,

23

however, the regulation is ambiguous, then a court
must proceed to the second step and defer to the
agency’s interpretation, unless that interpretation “is
plainly erroneous or inconsistent with the regula-
tion.” Seminole Rock, 325 U.S. at 413-414; Angstreich,
34 U.C. Davis L. Rev. at 70-71.

In the instant case, neither SEACC nor the
Ninth Circuit suggested that the Corps’ definition of
the term “fill material” was ambiguous. This is not
surprising because the language in the regulation
could not be clearer: “fill material” means “material
placed in the waters of the United States where the
material has the effect of ... [cJhanging the bottom
elevation of any portion of a water of the United
States.” 33 C.F._R. § 323.2(e). In fact, the Ninth Circuit
ruled that the proposed discharge in this case “fa-
cially” satisfied the Corps’ definition of “fill material”
“because it would have the effect of raising the bot-
tom elevation of the lake.” Southeast Alaska Conser-
vation Council, 486 F.3d at 644. This ruling, in and of
itself, should have resulted in the Ninth Circuit
affirming the District Court.

The Ninth Circuit, however, failed to follow the
Seminole Rock analysis. Instead, the Ninth Circuit
erroneously looked at snippets of regulatory history
and then concluded that the Corps could not have
meant what it wrote in its regulatory definition of “fill
material.” Southeast Alaska Conservation Council,
486 F.3d at 648-53. Yet, it is axiomatic that, when the
language of a statute is unambiguous, a court may
not look to the legislative history in an effort to create

24

an ambiguity. Ratzlaf, 510 U.S. at 147-49 (“[Wle do
not resort to legislative history to cloud a statutory
text that is clear.”). If a court may not look to the
legislative history in an effort to create an ambiguity
in a statute, a fortiori, a court may not look to the
regulatory history in an effort to turn an unambigu-
ous regulation into an ambiguous one. See United
States v. Hagberg, 207 F.3d 569, 574 (9th Cir. 2000)
(statements in the regulatory history cannot alter the
meaning of an unambiguous regulation); Entergy
Services, Inc. v. FERC, 375 F.3d 1204, 1209 (D.C. Cir.
2004) (“[Ljanguage in the preamble of a regulation is
not controlling ovei the language of the regulation
itself.”) (quotation omitted).

In any event, even if the Ninth Circuit had been
correct in its consultation of the regulatory history in
an attempt to find ambiguity, that ambiguity would
simply require the Ninth Circuit to apply step two of
the Seminole Rock analysis. Angstreich, 34 U.C.
Davis L. Rev. 49, 70-71. Under step two, a reviewing
court must give “controlling weight” to an agency’s
interpretation of an ambiguous regulation unless that
interpretation is “plainly erroneous or inconsistent
with the regulation.” Seminole Rock, 325 U.S. at 413-
14.

Here, the Corps’ interpretation of its own regula-
tions, as demonstrated by its issuance of the Section
404 permit, was neither “plainly erroneous” nor
“inconsistent” with its definition of “fill material.”
This is especially true considering that it is undis-
puted that placement of mine tailings at the bottom

25

of the lake “would have the effect of raising the
bottom elevation of the lake.” Southeast Alaska
Conservation Council, 486 F.3d at 644. However,
instead of giving “controlling weight” to the Corps’
interpretation of its own regulation as mandated by
Seminole Rock, the Ninth Circuit substituted its
judgment for that of the Corps. See Southeast Alaska
Conservation Council, 486 F.3d at 652-53 (“the cur-
rent fill rule only applies to those tailings or other
mining-related materials that are not subject to
effluent limitation or standards of performance.”).

¢

CONCLUSION

This Court should reverse the decision of the
Ninth Circuit.

Respectfully submitted:

WILLIAM PERRY PENDLEY*
*Counsel of Record
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
(303) 292-2021

Attorney for Amicus Curiae
September 24, 2008

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A26. Public record. Not legal advice.