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

FILED

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v7)

Nos. A) and (9 SEP 2% 2008

re,

| iE CLERK

SUPREME COURT, U.S.

In the

Supreme Court of the United States

+

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

-+—

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, ALASKA MINERS

ASSOCIATION, AND ALASKA FOREST

ASSOCIATION IN SUPPORT OF

PETITIONERS

e—

JAMES S. BURLING

Counsel of Record

BRANDON M. MIDDLETON

Pacific Legal Foundation

3900 Lennane Drive. Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicr Curiae Pacific Legal

Foundation, Alaska Miners Association.

and Alaska Forest Association

(n49AD hb

1

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

discharges comply with that section’s water-quality

requirements 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 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 an effluent

restriction promulgated by EPA as part of its permit

program under Section 402 of the Act. On that basis,

Ninth Circuit invalidated a Section 404 discharge

permit issued by the Corps of Engineers to Petitioner

Coeur Alaska, Inc.

The question presented is whether the Ninth

Circuit erred in rejecting the expert agencies’

conclusion, based on their joint interpretation of the

Act, that effluent restrictions promulgated as part of

the Section 402 permit program do not apply to

discharges of fill material permitted under Section 404.

ll

TABLE OF CONTENTS

Page

QUESTION PRESENTED .. 1... ccc ccccceccess 1

TABLAS OF AUTTIROMEEEIED 2c ccc ccc cece cece li

INTEREST OF AMICI CURIAE ............... 1

INTRODUCTION AND

SUMMARY OF ARGUMENT ............. 2

a a one lis We bn oe de 'd aes HORS OD 4

J. THE SECTION 404 AND

SECTION 402 PERMIT PROGRAMS

ARE DISTINCT AND OFFER A

BIFURCATED STATUTORY SCHEME ..... 4

Il. THE TAILINGS RESULTING FROM

PETITIONER COEUR ALASKA’S

MINING OPERATIONS SHOULD BE

REGULATED UNDER SECTION 404

OF THE CLEAN WATER ACT ............ 9

A. Petitioner Coeur Alaska’s Kensington

Mining Operations Will Result in a

Stationary Tailings Impoundment ...... ce)

B. Congress Intended Stationary

Discharges to Be Regulated

Under Section 404, Not Section 402 .... 11

UI. THIS COURTS DECISION

WILL HAVE A SIGNIFICANT

IMPACT ON THE VIABILITY OF

THE MINING INDUSTRY IN ALASKA

AND THE WESTERN UNITED STATES ... 15

| PPPOE T OTT TeeCTTTTTTE Tee ee 19

ili

TABLE OF AUTHORITIES

Page

Cases

Avoyelles Sportsmen’s League v. Alexander,

473 F. Supp. 525 (W.D. La. June 9, 1979)

aff'd, 715 F.2d 897 (5th Cir. 1983) ............ 9

City of Baton Rouge v. United States Envtl.

Prot. Agency, 620 F.2d 478 (5th Cir. 1980) ..... 6

City of Monterey v. Del Monte Dunes

at Monterey, Ltd., 526 U.S. 687 (1999) ......... 1

Kentuckians for Commonwealth, Inc. v.

Rivenburgh, 317 F.3d 425

EP a 5, 8,11

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

ald dee be wow eee 1

Mountain States Tel. & Tel. Co. v. Pueblo

of Santa Ana, 472 U.S. 237 (1985) ............ 6

Nollan v. California Coastal Comm'n,

eT a aes betwee 1

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ...1

Rapanos v. United States,

vetk See! t. S 1, 4, 7-8, 11-12

Southeast Alaska Conservation Council v.

United States Army Corps of Engineers,

486 F.3d 638 (9th Cir. 2007) ..... 5, 8-9, 12-13, 18

United States v. Riverside Bayview Homes, Inc.,

729 F.2d 391 (6th Cir. 1984), reud on other

grounds, 474 U.S. 121 (1985) ................ 7

iV

TABLE OF AUTHORITIES—Continued

Page

Federal Statutes

eT a a ee 4

ole a i aa erm Ere 4

Shean ah ee kb ees ee eek oe ae ee 5-6, 8

ee 64 Pas hee kek ons kes BO ee RES 4

REE Cs Va bk bes Cede ENS eee eh end 18

eS ase bn ee ks DEN SSS ok ON bed OO 4,8

Ee ae ep eee a ree ee 6-7, 11

RE nee a es 4, 6-7

ee ee, Say eee een owe ee eee 11

a ao ad ka dy nate eas arses eee i

Ent Sl oe a 8

RR ES a a Pare 18

Federal Regulations

es ED nov ccc rect sccceccncss i

ee ee eee i

Se ¢ eee eer Ee Su ee oe We does oe 66 oe 11

Rules of Court

Supreme Court Civ. B. 37.3 2.2... cc cece ees 1

EME Awana 2 oar eet a ae er ea 1

Vv

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

Alaska Minerals Commission, Report of the

Alaska Minerals Commission (2006),

available at www.dced.state.ak.us/oed/

minerals/pub/web06.pdf (last visited

Seek. 1 SE. 5 ss sivas eee ee 17

Alaska Miners Association, The Economic

Impacts of Alaska’s Mining

Industry, (2007), available at

www.alaskaminers.org/mcd07sum.pdf

(last visited Sept. 19, 2008) .......... 15-17, 19

McDowell Group, Alaska Miners Association,

The Economic Impacts of Alaska’s Mining

Industry, (Feb. 2006), available at

www.alaskaminers.org/mcdO06rpt.pdf

(last visited Sept. 19, 2008) ............. 16, 18

Pierce, Robert J., Technical Principles Related

to Establishing the Limits of Jurisdiction for

Section 404 of the Clean Water Act

(Apr. 2003), available at http://www.wetland

training.com/pdfs/tpreljscwa.pdf

(last visited Sept. 19, 2008) .............. 7,12

Squillace, Mark, From “Navigable Waters”

to “Constitutional Waters”: The Future

of Federal Wetlands Regulation,

40 U. Mich. J.L. Reform 799 (2007) .......... 17

vl

TABLE OF AUTHORITIES—Continued

Page

Szumigala, D. J. & Hughes, R. A.,

Alaska’s Mineral Industry 2006:

EEE 15

United States Dep’t of Commerce,

Bureau of Economic Analysis,

Gross Domestic Product by State (2007) ...... 15

United States Dep't of Labor,

Bureau of Labor Statistics,

Alaska Economy at a Glance (2007) .......... 15

1

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.3, Pacific

Legal Foundation (PLF), the Alaska Miners

Association, and the Alaska Forest Association submit

this amicus curiae brief in support of Petitioners State

of Alaska and Coeur Alaska, Inc.' The parties have

consented to the filing of this amicus curiae brief.’

Founded thirty-five years ago, PLF is the largest

and most experienced public interest legal] foundation

of its kind. PLF is a nonprofit, tax-exempt corporation

organized under the laws of the State of California for

the purpose of engaging in litigation in matters

affecting the public interest. PLF participated as lead

counsel in previous cases, including Rapanos v. United

States, 547 U.S. 715 (2006), involving the

administration of the Clean Water Act. And PLF also

participated as amicus or lead counsel in several cases

concerning the Takings Clause of the Constitution. See

e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005);

Palazzolo v. Rhode Island, 533 U.S. 606 (2001); City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687 (1999); and Nollan v. California Coastal

Comm'n, 483 U.S. 825 (1987).

' Pursuant to Rule 37.6, amici curiae affirm that no counse) for

any party authored this brief in whole or in part and that no

person or entity made a monctary contribution specifically for the

preparation or submission of this brief.

Pursuant to Rule 37.3(a), amici curiae state that letters

indicating their intent to file this brief were sent to all counsel of

record on August 25, 2008. The consent of the Solicitor General

is filed herewith. Al! other parties have issued blanket consents

to the filing of amicus briefs tn support of either party or neither

party

2

The Alaska Miners Association (AMA) is a

nonprofit membership organization established in 1939

to represent the mining industry. The AMA is

composed of more than 1100 individual prospectors,

geologists and engineers, vendors, suction dredge

miners, small family mines, junior mining companies,

and major mining companies. The AMA’s members

explore for and produce gold, silver, platinum,

diamonds, lead, zinc, copper, coal, limestone, sand and

gravel, crushed stone, armor rock, etc. AMA members

live and work throughout the State of Alaska, and if

the decision of the Ninth Circuit Court of Appeals in

Southeast Alaska Conservation Council v. United

States Corps of Engineers is allowed to stand, it will

have extreme adverse impacts on AMA members and

their ability to operate.

The Alaska Forest Association (AFA) is a

nonprofit industry trade association established in

1957. The AFA’s membership includes businesses and

individuals in the Alaskan timber industry. The AFA’s

mission is to advance the restoration, promotion, and

maintenance of a healthy, viable forest products

industry which contributes to the economic and

ecological health of Alaska’s forests and communities.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Ninth Circuit’s decision invalidated the

United States Army Corps of Engineers’ (Corps) and

the United States Environmental Protection Agency's

(EPA) interpretation of the Clean Water Act (CWA)

that the discharge of fill material into an impoundment

falls within the Corps’ exclusive permitting authority

under Section 404. In place of this longstanding

interpretation, the Ninth Circuit crroneously held the

3

CWA to require that the discharge of fill material must

also satisfy effluent limitations and performance

standards separately promulgated by the EPA

pursuant to Section 402 of the Act. In so holding, the

Ninth Circuit not only misinterpreted the distinct

statutory programs of Section 404 and Section 402, but

it also effectively prohibited one of the most common

and environmentally sound methods for the disposal of

mining waste. Reversing the Ninth Circuit is

necessary toconfirm the proper permitting authority

for the discharge of fill material and to allow the

mining industry to continue operations, to the benefit

of the state and national economy.

This case is of vital importance to Alaska’s mining

industry. Historically, mining has been a cornerstone

of the Alaskan economy, and today the industry is

delivering a broad range of economic benefits to

Alaskans and their local communities. Mining is a

significant source of revenue and infrastructure

development for state and local governments and

Nativecorporations. The livelihoods of many Alaskans

and their families depend on mining. Amici urge the

Court to reverse the Ninth Circuit's decision and set

forth guidelines that will permit mining operations to

continue to impound tailings subject to Section 404

permitting.

4

ARGUMENT

I

THE SECTION 404

AND SECTION 402

PERMIT PROGRAMS

ARE DISTINCT AND OFFER A

BIFURCATED STATUTORY SCHEME

The CWA, 33 U.S.C. §§ 1251-1387, establishes two

regulatory permitting programs for discharges into

navigable waters of the United States. Section 404 of

the Act requires a permit for the discharge of dredged

or fill material into navigable waters and is

administered by the Corps, with cooperation and

regulatory assistance from the EPA. 33 U.S.C. § 1344.

Section 402, also known as the National Pollutant

Discharge Elimination System (NPDES) program, is

administered by the EPA and requires a permit for the

discharge of all pollutants other than dredged or fill

material. 33 U.S.C. § 1342. Under Section 402, the

discharge of pollutants is subject to the effluent

limitations and performance standards (collectively

effluent limitations) prescribed pursuant to

Sections 301 and 306 of the Act. 33 U.S.C. § 1311

(Section 301 effluent limitations); 33 U.S.C. § 1316

(Section 306 new source performance standards).

The Section 404 and Section 402 schemes are

separate permitting programs, Rapanos v. United

States, 547 U.S. at 744-45 (plurality opinion), such that

discharges into the navigable waters of the United

States are to be regulated under either Section 404 or

Section 402, but not both. As the Fourth Circuit noted,

the 404/402 “fill-effluent distinction” demonstrates that

“the Clean Water Act clearly intended to divide

5

functions between the Corps and the EPA based on the

type of discharge involved.” Kentuckians for

Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 447

(4th Cir. 2003).

Although the Corps granted Petitioner a permit to

discharge wastewater containing tailings into a small

lake under Section 404, see Southeast Alaska

Conservation Council v. United States Army Corps of

Engineers, 486 F.3d 638, 640-41 (9th Cir. 2007)

(SEACC), and the Ninth Circuit admitted that

Petitioner Coeur Alaska’s froth-flotation mill operation

“facially meets the Corps’ current regulatory definition

of ‘fill material’ because it would have the effect of

raising the bottom elevation of the lake,” id. at 644, the

Ninth Circuit nevertheless invalidated the permit

based on effluent limitations promulgated under

Sections 301 and 306 of the CWA, holding that

“[njeither § 301 nor § 306 contains an exception for

discharges that would otherwise qualify for regulation

under § 404.” Id. at 646.

This holding, however, ignores the critical

distinction between Sections 404 and 402. While

purporting to “maintain [the] existing approach to

regulating pollutants under either section 402 or 404

of the CWA.” id. at 651, the Ninth Circuit instead

misread the general prohibition of 33 U.S.C. § 1311(a)

(Section 301) to eviscerate the function of Section 404:

“The use of ‘and’ as a connector [in 33 U.S.C.

§ 1311(a)], 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. However, this Court has held that the use

of “and” between statutory requirements does not

6

automatically make such requirements conjunctive

See, e.g., Mountain States Tel. & Tel. Co. v. Pueblo of

Santa Ana, 472 U.S. 237, 248-49 (1985) (reversing

Court of Appeals’ conclusion that the two clauses of

Section 17 of the Pueblo Lands Act were both required

because they were “joined by the conjunctive ‘and’”).

Instead of an all-inclusive prohibition, Section 301

contemplates a system whereby pollutant discharges

would be generally prohibited “fe]xcept as in

compliance” with various provisions of the CWA,

including Section 404. 33 U.S.C. § 1211(a). In other

words, Section 301 instructs potential dischargers to

look to other provisions in order to determine whether

the general prohibition of Section 301 is applicable.

See City of Baton Rouge v. United States Envti. Prot.

Agency, 620 F.2d 478, 479 & n.1 (5th Cir. 1980) (noting

that Section 301 “proscribes the discharge of pollutants

except in compliance with NPDES permits issued

under section [402]” and that Section 301 “has several

other exceptions,” including Section 404) (emphasis

added).

The distinct nature of Section 404—in that

permits under Section 404 absolve the need for

compliance under Sections 301, 402, and the other

provisions listed in 301(a)—is confirmed by Section

402’s requirement that 402 permits “meet... all

applicable requirements under sections 1311, 1312,

1316, 1317, 1318, and 1343,” 33 U.S.C. § 1342(a), a list

that is not present in Section 404. Since Section 404

gives the Corps authority to permit “discharge[s] of

dredged or fill material into the navigable waters,”

33 U.S.C. § 1344, and does not require compliance with

the provisions listed in Section 402, discharges

permitted under the former provision are exempt from

7

the general prohibition of Section 301. See United

States v. Riverside Bayview Homes, Inc., 729 F.2d 391,

393 (6th Cir. 1984) (noting that Section 301 of the

Clean Water Act states that “except as permitted

under certain exceptions, ‘the discharge of any

pollutant by any person shall be unlawful.’... One of

the express exceptions to this rule is contained in

section 404 .. . which authorizes the Corps to issue

permits for the disposal of dredged or fill materials into

‘navigable waters’” (citations omitted)). rev'd on other

grounds, 474 U.S. 121 (1985), and Riverside Bayview

Homes, Inc., 474 U.S. at 123 (noting that under the

Clean Water Act “any discharge of dredged or fill

materials into ‘navigable waters’... is forbidden

unless authorized by a permit issued by the Corps of

Engineers pursuant to § 404, 33 U.S.C. § 1344”). See

also Robert J. Pierce, Technical Principles Related to

Establishing the Limits of Jurisdiction for Section 404

of the Clean Water Act 34 (Apr. 2003), available at http://www.

wetlandtraining.com/pdfs/tpreljscwa.pdf (last visited

Sept. 19, 2008) (“Congress recognized the difference in

the nature of discharges of dredged and fil] material

when it specifically carved-out Section 404 and named

the Secretary of the Army to administer it.”), cited in

Rapanos, 547 U.S. at 745 n.11 (plurality opinion).

Congress did not impose the requirements that are

explicitly stated in Section 402 because:

In contrast to the pollutants normally

covered by the permitting requirement of

§ 1342(a), “dredged or fill material,” which is

typically deposited for the sole purpose of

staying put, does not normally wash

downstream, and thus does not normally

constitute an “addition .. . to navigable

8

waters” when deposited in upstream isolated

wetlands.

Rapanos, 547 U.S. at 744-45 (plurality opinion).

To suggest that “the lack of any explicit exception

to § 301 and § 306 within § 404, and the lack of an

exception for process wastewater from mines, is strong

evidence that Congress did not intend one,” SEACC,

486 F.3d at 648, is to fail to fully understand the

404/402 “fill-effluent distinction” of the CWA. See

Kentuckians for the Commonwealth, 317 F.3d at 447.

The Fourth Circuit correctly articulated this dichotomy

in Kentuckians for the Commonwealth, noting that

“{f]ill material differs fundamentally from the types of

pollutants covered by section 402 because the principal

environmental concern is the loss of a portion of the

water body itself. For this reason, the section 404

permitting process focuses on different considerations

than the section 402 permitting program.” Jd at 446.

While Section 404 provides for certain instances

where discharges of dredged or fill material do not

require a permit, it does not provide explicit exceptions

to the Section 402 permit program, as that would

render the 404/402 fill-effluent distinction irrelevant.

For example, the list of activities in Section 404(f)(1) is

not a list of those activities that are exempt from

Section 301 and Section 402 regulations, but instead is

only “a short list of exceptions to the broad range of

discharges covered by the term ‘fill material’ in

§ 404(a).” Id. at 442 (analyzing Section 404(f)(1), 33

U.S.C. § 1344(f)(1), which provides that the discharge

of dredged or fill material from or for certain activities

“js not prohibited by or otherwise subject to regulation

under this section or section 1311(a) or 1342 of this

title (except for effluent standards or prohibitions

9

under section 1317)”). See also Avoyelles Sportsmen’s

League v. Alexander, 473 F. Supp. 525, 531 (W.D. La.

June 9, 1979) (“[A] permit is not required for all

discharges of dredged or fill material. [Section]

404(f)(1) exempts certain activities from the [Section

404] permit program..”), aff'd, 715 F.2d 897, 925-26 (5th

Cir. 1983). But see SEACC, 486 F.3d at 648

(suggesting that because Ҥ 404(f) exempts discharges

of dredged or fill material from certain activities from

regulation under § 301(a), § 402, and § 404,” and

because “[m]ining is not listed as an exempt activity [in

§ 404(f)],” tailings discharges from froth-flotation mills

are not exempi from Section 301 and Section 306

effluent limitations).

In short, Sections 404 and 402 offer distinct

permitting programs—regulation of discharges under

one takes the discharge beyond the scope of regulation

under the other.

II

THE TAILINGS

RESULTING FROM

PETITIONER COEUR ALASKA’S

MINING OPERATIONS SHOULD BE

REGULATED UNDER SECTION 404

OF THE CLEAN WATER ACT

A. Petitioner Coeur Alaska’s Kensington

Mining Operations Will Result ina

Stationary Tailings Impoundment

Within any gold mine, rock containing valuable

gold mineral (ore) is excavated from its in situ location

with the use of drills and explosives. The broken ore ts

delivered outside the mine to a mill where it is crushed

and then ground to the consistency of fine sand.

10

Through the addition of water, this sand combines to

make a slurry which is then pumped to separation

tanks known as flotation cells. Organic reagents

similar to soap are added to the slurry and air is

injected into the flotation cells to create bubbles. The

reagents are designed such that the specks of gold

sulfide are attracted and adhere to the bubbles. The

bubbles are skimmed off the top of the tank, the

majority of the water removed and reclaimed, while

the recovered product of fine sand and gold sulfide

make up the final concentrate. This concentrate is

then dried, bagged and loaded into containers to be

shipped off the mine site for subsequent smelting

elsewhere. All of the crushing, grinding, and flotation

occurs inside the mill building which has no discharge

to the environment.°

Once the gold sulfide is removed, the material

that remains is essentially sand, which makes up the

majority of the material originally processed through

the mill. The sand (now called tailings) is pumped as

a slurry (processed water and sand) to the tailings

impoundment. At the impoundment, the sand is

distributed through a series of pipes to create a

relatively even layer across the bottom of the facility.

Throughout the life of the mine, the impoundment

serves as a treatment facility. Natural runoff from the

undisturbed areas above the impoundment is diverted

around the facility. This ensures that this water does

not intermingle with the tailings water, and that the

tailings settle as rapidly as possible. Any water

' For a further description of the milling process, please see Brief

for Petitioner Coeur Alaska, Inc. at 5-8 and Forest Service,

Kensington Gold Project Final Supplemental Environmental

Impact Statement at 2-21 and 2-22 (Dec 2004) (contained within

the Joint Appendix at 159a, 189a-191a)

11

leaving the impoundment is treated to meet all

applicable water quality standards, and then flows

through a pipe to enter the stream below the tailings

impoundment.

The amount of treated water which can be

discharged from the impoundment is prescribed by the

United States Environmental Protection Agency

regulations. See 40 C.F.R. § 440.144. It is equal to the

net precipitation minus the evaporation which occurs

over the impoundment in a year. This ensures that the

“zero discharge” definition in the regulation is

achieved.

B. Congress Intended

Stationary Discharges

to Be Regulated Under

Section 404, Not Section 402

The critical characteristic that determines

whether a discharge will be subject to Section 404’s or

Section 402’s permit program is whether the materials

that are discharged will remain stationary in a

navigable water or instead will disperse downstream

and elsewhere, resulting in something more than a

localized effect. “In contrast to the pollutants normally

covered by the permitting requirement of § 1342(a),

‘dredged or fill material,’ which is typically deposited

for the sole purpose of staying put, does not normally

wash downstream.” Rapanos, 547 U.S. at 744-45

(plurality opinion) (citing, in part, 33 U.S.C. § 1344(a)).

See also Kentuckians for the Commonwealth, 317 F.3d

at 446 (“Fill material differs fundamentally from the

tvpes of pollutants covered by section 402 because the

principal environmental concern is the loss of a portion

of the water itself.”) Further,

12

[I]n many locations throughout the nation,

land use controls, a responsibility of state,

not federal government, typically have

requirements to minimize erosion and

sediment runoff during and _ after

construction as well as requiring the control

of both quantity and quality of runoff from

constructed facilities. Thus, the likelihood

that a discharge of fill materia! will result in

the addition of a pollutant to navigable

waters located at any appreciable distance

from the discharge is highly unlikely.

Pierce at 35.

Even though “[t]he idea that the discharge of

dredged or fill material into isolated waters... . will

pollute navigable waters located at any appreciable

distance from them lacks credibility,” id. at 34, to the

extent that fill material “could travel downstream

through waterways adjacent to a wetland...this isa

factual possibility that ‘se Corps’ experts can...

assess,” Rapanos, 547 U.S. at 774 (Kennedy, J.,

concurring), as the Corps did in this case when it

determined that Petitioner Coeur Alaska’s discharge

would result in the disposal of “fill material.” See

SEACC, 486 F.3d at 640-41.

Permitting the tailings discharges in this case

under Section 404 is consistent with the stationary

nature of fill material. Tailings are the leftover

material from the froth-flotation process that extracts

the actual gold from the ore-bearing rock from the

mine. The 90-foot high, 500-foot long dam to be

constructed by Petitioner Coeur Alaska, see id. at 642,

evidences an intent to ensure that the tailings “will

remain in place in perpetuity.” Pierce at 35 (“Citizens

13

who typically have the need to discharge fill material

do so with the intent that the material will remain in

place in perpetuity.”). Consistent with the definition of

fill material, the tailings will not wash downstream,

but instead will settle at the bottom of Lower Slate

Lake. See SEACC, 486 F.3d at 642. The propriety of

subjecting this stationary material to only a Section

404 permitting process is further demonstrated by the

Corps’ issuance of a Section 402 permit for the water

that will be displaced and dispersed when the tailings

enter the dammed lake, as illustrated by the diagram

below.

14

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15

Indeed, while discharges for which a discharger

will have little or no control are regulated by Section

402, discharges that remain stationary should be

permitted solely under Section 404. Petitioner Coeur

Alaska’s discharge of tailings in this case requires only

a Section 404 permit.

IT!

THIS COURT’S DECISION

WILL HAVE A SIGNIFICANT

IMPACT ON THE VIABILITY OF

THE MINING INDUSTRY IN ALASKA

AND THE WESTERN UNITED STATES

The importance of the mining industry to Alaska

cannot be overstated. Historically, mining has been a

cornerstone of Alaska’s economy, and the mining

industry continues to be one of the most important

growth segments of Alaska’s economy (currently the

only segment of Alaska’s economy that has reported

double-digit growth). The mining industry accounts for

approximately 8% of Alaska’s overall economy. See

State of Alaska Petition for Writ of Certiorari at 29-30

(citing United States Dep’t of Labor, Bureau of Labor

Statistics, Alaska Economy at a Glance (2007); United

States Dep't of Commerce, Bureau of Economic

Analysis, Gross Domestic Product by State (2007):

D. J. Szumigala & R. A. Hughes, Alaska’s Mineral

Industry 2006: A Summary 1-2 (2007)). According to

the most recent study conducted for the AMA, the

mining industry contributed nearly $4 billion to

Alaska’s economy in 2007, including $275 million in

exploration, $274 million in development, and

$3.4 billion in gross mineral production value. Alaska

Miners Association, The Economic Impacts of Alaska’s

16

Mining Industry, (2007).* The mining industry is also

an extremely important source of revenue for state and

local governments. In 2007, the mining industry paid

$14 million to local government, and $175 million to

state government. Id.; see also McDowell Group,

Alaska Miners Association, The Economic Impacts of

Alaska’s Mining Industry, (Feb. 2006).° The Alaskan

mining industry also provides a major source of

revenue for Native Alaskan corporations. In 2007, the

mining industry paid $170 million to Native

corporations, of which $125 million was earmarked for

redistribution among other Alaska Native regional and

village corporations. Alaska Miners Association, The

Economic Impacts of Alaska’s Mining Industry (2007).

In 2007, the mining industry provided 5,500 direct

and indirect mining jobs in Alaska, contributing

$340 million in direct and indirect payroll. Jd. These

are some of the highest paying jobs in Alaska, with an

average annual wage of $80,000—90% higher than the

state average for all sectors of the economy. Jd. And,

where located, mining operations provide some of the

largest private sector employment opportunities. See

id.

A 2006 study of the mining industry reported that

the industry was poised for ongoing growth; however,

affirmance of the Ninth Circuit’s decision would have

a devastating impact on the mining industry and

economy of Alaska—not to mention impacts felt

throughout the nation. See McDowell Group, The

* Available at www alaskaminers.org/mcd07sum.pdf (last visited

Sept. 19, 2008).

* Avatlable at www.alaskaminers.ore/mcd06rpt.paf (last visited

Sept. 19, 2008)

17

Economic Impacts of Alaska’s Mining Industry, supra,

at 1. It is beyond reasonable dispute that mining

operations in Alaska will come into contact with

wetlands, which comprise nearly 50% of the state. See

Mark Squillace, From “Navigable Waters” to

“Constitutional Waters”: The Future of Federal

Wetlands Regulation, 40 U. Mich. J.L. Reform 799, 809

(2007). And even before the Ninth Circuit’s decision,

obtaining a permit for the disposal of tailings was

considered one of the “greatest obstacle[s]” to

developing a mine project in Alaska. See Alaska

Minerals Commission, Report of the Alaska Minerals

Commission (2006), at 1.°

The permitting of the disposal of mine

tailings into waters of the United States

including wetlands is critical to the mining

industry in Alaska. Many mine operations

can only be built in valley areas through

which streams run and wetland are present.

In many instances disposing of tailings in a

“drystack” on uplands is not practicable.

Id. at 13. Subjecting the tailings process to the Section

402 permitting scheme would make this process even

more difficult (if not impossible) by leaving no

practicable solution which would permit the discharge

of slurry into an impoundment.’

* Available at www.dced.state.ak.us/oced/minerals/pub/web06.pdf

(last visited Sept. 19, 2008).

* One of the most significant distinctions between the permitting

programs under Sections 404 and 402 is that the Section 404(b)(1)

guidelines contain “practicability” provisions. This means that,

under Section 404, the Corps has the latitude and flexibility to

evaluate and issue Section 404 wetlands permitsina manner that

(continued...)

18

While mine exploration and development

expenditures have steadily increased over the past

decade, affirming the vacatur of Petitioner Coeur

Alaska’s Section 404 permit could have the effect of

jeopardizing Alaska’s ability to attract investment and

growth of the mining industry. See McDowell Group,

The Economic Impacts of Alaska’s Mining Industry,

supra, at 9-13. In addition, if this Court declares the

Corps’ issuance of the Section 404 permit to Petitioner

to be invalid, producing mines that use tailings

impoundments will have to cease or delay their

operations until they can be brought into compliance

with the new regulatory scheme. See 33 U.S.C.

§§ 1319, 1365. For example, Alaska’s Red Dog mine is

operating under a Section 404 permit that was issued

in 1985 for the placement of lead and zinc mine

tailings into an impoundment located in wetlands.

Brief for the National Mining Association as Amicus

Curiae Supporting Petitions for Rehearing en Banc at

10. Southeast Alaska Conservation Council v. United

States Army Corps of Engineers, 486 F.3d 638 (9th Cir.

2007) (No. 06-35679).° If upheld, the Ninth Circuit’s

decision could be used to frustrate this essential

mining operation. The impact would be devastating,

as the Red Dog minc is the world’s largest zinc

concentrate producer, providing $9 million (of the total

$14 million) in payment to local governments, and

nearly all of the $170 million in revenue to Native

' (...continued)

is based on cost, technological feasibility, sound science, and the

minimization of environmental impact. By contrast, the EPA's

Section 402 “zero discharge” performance standara ts absolute

* Similarly, the Fort Knox gold mine is operating under a Section

404 permit to discharge talings into an impoundment located in

a wetland. /d. at 11

19

Alaska corporations. Alaska Miners Association, The

Economic Impacts of Alaska’s Mining Industry, (2007).

The posemtial impact to Alaska’s mining industry and

its demonstrated ability to bring economic development

to diverse, remote areas of Alessia lends question to the

Ninth Circuit's overturnimg of 35 wears of agency

practice of regulating fill materzal solely under Section

ai)4.

—--

CQNCLUSION

For the reasons staved abowe, the judgment of the

Ninth Circuit smmuid be reversed.

DATED: September, 2008.

Respectfully submitted,

JAMES S. BURLING

Counsel of Record

BRANDON M. MIDDLETON

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amici Curiae

Pacific Legal Foundation,

Alaska Miners Association,

and Alaska Forest Association