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

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## Record

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

## Text

FILED

\o"
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A31. Public record. Not legal advice.