Opposition Brief — Carlota Copper Co. v. Friends of Pinto Creek (No. 07-1524)

FILED

V7 NOY 2.5, 2008

(\) OFFICE OF THE CLERK

No. 07-1524

IN THE

Supreme Court of the Anited States

CARLOTA COPPER COMPANY,

Petitioner,

Vv.

FRIENDS OF PINTO CREEK, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE NON-FEDERAL RESPONDENTS

IN OPPOSITION

ROGER FLYNN* DEEPAK GUPTA

WESTERN MINING BRIAN WOLFMAN

ACTION PROJECT PUBLIC CITIZEN

P.O. Box 349 LITIGATION GROUP

440 Main Street, #2 1600 20th Street NW

Lyons, CO 80540 Washington, DC 20009

(303) 823-5738 (202) 588-1000

Counsel for Respondents

November 21, 2008 *Counsel of Record

-

QUESTION PRESENTED

Whether the issuance of a permit for an open-pit

mine that would discharge copper into Pinto Creek—a

river already severely impaired from excessive copper

pollution—was inconsistent with 40 C.F.R. § 122.4(i), an

EPA regulation under the Clean Water Act.

-ii-

DISCLOSURE STATEMENT

The non-federal respondents—Friends of Pinto

Creek, Grand Canyon Chapter of the Sierra Club, Mari-

copa Audobon Society, and Citizens for the Preservation

of Powers Gulch and Pinto Creek—have no parent cor-

porations and no publicly held company owns 10% or

more of their stock.

-iii-

TABLE OF CONTENTS

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C. Proceedings and Decision Below......................0+ 5

REASONS FOR DENYING THE WRIT ...................4 7

I. This Case Does Not Implicate a Conflict Over

Interpretation of the Applicable EPA

Regulation or Any Other Question of Law. .............. 7

II. The Decision Below Did Not Depart From Settled

Principles of Agency Deference. ....................+4. 10

III. Carlota’s Predictions About the Implications of the

Decision Below Are Overblown and, In Any Event,

Are Best Assessed By the Agency In the First

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TABLE OF AUTHORITIES

CASES

Arkansas v. Oklahoma,

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Auer v. Robbins,

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Bowles v. Seminole Rock & Sand Co.,

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Braxton v. United States,

ick csciinccsinigeneceneseonnsupinationsccsnncninmmention 13

In re Cities of Annandale & Maple Lake NPDES/

SDS Permit Issuance for the Discharge of Treated

Wastewater,

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Crutchfield v. State Water Control Board,

612 S.E.2d 249 (Va. Ct. App. 2005) ...............ssccsesoresesees 8

Edelman v. Lynchburg College,

EN ee ae 11

Motor Vehicle Manufacturers Ass'n v. State Farm

Mutual Automobile Insurance Co.,

I sssrenttontiion 13

STATUTES, REGULATIONS, AND RULES

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MISCELLANEOUS

Mehmet K. Konar-Steenberg, Jn re Annandale

and the Disconnections Between Minnesota

and Federal Agency Deference Doctrine,

34 Wm. Mitchell L. Rev. 1375 (2008) .......0...00000 cece. 8

INTRODUCTION

Carlota Copper asks this Court to grant review of the

court of appeals’ interpretation of a particular EPA

regulation. That regulation, 40 C.F.R. § 122.4(i), con-

cerns whether, and under what circumstances, EPA may

issue permits allowing the discharge of pollutants into

already impaired waters, in the absence of schedules for

bringing the waters into compliance with water-quality

standards.

According to Carlota, the most significant reason to

grant certiorari is that the court of appeals’ interpreta-

tion of the relevant regulation conflicts with a single rul-

ing from Minnesota’s highest court. But the Minnesota

case focused on a different part of the relevant regula-

tion, under materially different facts, and so there is no

conflict over the question presented among the state or

federal courts. Carlota also attempts to create a conflict

with one of this Court’s cases, but that case did not even

mention the regulation or the issue at hand.

If there is any lingering doubt about the petition’s

‘lack of certworthiness, it should be dispelled by this fact:

Even EPA, the agency whose decision was overturned

by the court of appeals, does not believe further review is

warranted. EPA continues to agree with Carlota on the

underlying dispute—concerning Carlota’s proposal to

construct a large open-pit mine that would discharge

copper into a river already seriously impaired by copper

pollution, without a schedule to bring the river into com-

pliance with water-quality standards. Even so, EPA re-

jects the key premises of Carlota’s petition, recognizing

that Carlota’s characterization of both the decision below

and its practical consequences is greatly exaggerated.

Contrary to what Carlota says, the decision below erects

no per se barrier to new permits, and Carlota’s specula-

2.

tion about the decision’s ramifications is premature at

best.

EPA points out that this Court’s interven‘ion is un-

necessary for another significant reason: If and when the

agency believes it is necessary, EPA itself can amend the

regulation to clarify its intentions. Indeed, court inter-

vention at this point might well be counterproductive and

could hamper agency deliberation. Absent a conflict

among the lower courts, or some broader or more com-

pelling legal issue, such matters are best left in the

hands of the expert agency, which is in a better position

to assess predictions as to the practical effects of its own

regulations.

STATEMENT

A. Facts

This case concerns Carlota Copper’s proposal to con-

struct a new open-pit copper mine that would discharge

dissolved copper, extracted using sulfuric acid, into Pinto

Creek—a free-flowing desert river in Arizona that is al-

ready seriously polluted. As a result of historic mining

activities, Pinto Creek suffers from excessive copper

contamination and has been listed as “one of the nation’s

most endangered rivers due to threats from proposed

mining operations.” Pet. App. 3. Carlota’s proposed mine

would be located in the middle of Pinto Creek and would

cover more than 3,000 acres, nearly half of which would

be within the boundaries of the Tonto National Forest.

Id. That area, including Pinto Creek and its riparian en-

vironments, is home to a wide variety of fish, migratory

birds, and other wildlife, some of which are specifically

protected. /d.

Carlota’s proposed mine would involve constructing

groundwater cut-off walls to attempt to block the flow of

groundwater into the mine, as well as diversion channels

-3.

to route the stream around the mine, id.—a step that

would itself create “significant” levels of additional pollu-

tion that have not yet been fully taken into account. /d.

at 18-19. Carlota further proposes to “offset” the copper

pollution that it concedes will result from its mining op-

erations by reducing copper discharges from the aban-

doned Gibson Mine, located five miles upstream on a

tributary of Pinto Creek. Jd. at 10. However, as ex-

plained below, it is highly doubtful that such pollution

reductions, even if successful, would affect water quality

at the Carlota site, and there is no plan to reduce pollu-

tion sources immediately upstream from the site. Jd. at

11 n.1, 18-20.

B. Regulatory Background

Designed to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters,”

33 U.S.C. § 1251(a), the Clean Water Act establishes dis-

tinct roles for the state and federal governments to reach

those objectives. EPA must establish effluent limitations

on individual discharges from point sources into naviga-

ble waters of the United States. 33 U.S.C. §§ 1311, 1314.

Each state, subject to federal approval, must institute

water-quality standards establishing water-quality goals

for all intrastate waters. 33 U.S.C. §§ 1311(b)(1)(C), 1313.

Through the National Pollutant Discharge Elimination

System (NPDES), both EPA and the states may issue

permits allowing point sources to discharge pollutants

into water bodies, but they are prohibited from issuing

an NPDES permit “when the conditions of the permit do

not provide for compliance with the applicable require-

ments of CWA, or regulations promulgated under

CWA,” or “when the imposition of conditions cannot en-

sure compliance with the applicable water quality re-

quirements of all affected states.” 40 C.F.R. §§ 122.4(a),

122.4(d).

i.

The Act further requires states to identify polluted

water bodies within their borders for which effluent limi-

tations are not sufficiently stringent and to establish a

systematic process to restore those water bodies. States

must periodically submit to the EPA for approval a list

of water bodies that do not meet water quality stan-

dards. 33 U.S.C. § 1313(d). The designated water bodies

are known as “impaired” or “water quality limited,” 40

C.F.R. § 130.10(b)(2), which means that they fail to meet

water quality criteria for one or more parameters, in-

cluding particular pollutants (such as copper).

Pinto Creek is on Arizona’s list of impaired water

bodies for copper. For impai:ed water bodies like Pinto

Creek, the state or EPA must develop and implement a

“total maximum daily load” (TMDL) to restore water

quality. See 33 U.S.C. § 1313(d)(1(C) (explaining

TMDLs). The TMDL sets forth the total amount of a

pollutant that an impaired water body can tolerate from

all combined sources without violating water quality

standards. 40 C.F.R. § 130.2(i).

The particular NPDES permitting regulation at issue

in this case is 40 C.F.R. § 122.4(i). The first sentence of

that regulation provides that “[n]o permit may be issued

... to a new source or a new discharger if the discharge

... Will cause or contribute to the violation of water qual-

ity standards.” 40 C.F.R. § 122.4(i). The second sentence

permits discharges into impaired waters that are already

in violation of water quality standards only if two condi-

tions are met: (1) the stream can handle the new dis-

charge and still satisfy the TMDL (2.e., there are suffi-

cient remaining pollutant load allocations) and (2) spe-

cific plans or schedules are in place to ensure that the

a

5-

stream will be brought back to health by achieving the

applicable water-quality standard.

OF Proceedings and Decision Below

After EPA issued an NPDES permit to Carlota, al-

lowing discharges of copper into Pinto Creek, several

environmental organizations, including the non-federal

respondents here (Friends of Pinto Creek, Grand Can-

yon Chapter of the Sierra Club, Maricopa Audobon Soci-

ety, and Citizens for the Preservation of Powers Gulch

and Pinto Creek) filed a petition for review in the court

of appeals, challenging the permit.

The court of appeals unanimously vacated Carlota’s

permit (Pet. App. 2) and concluded that it was invalid be-

cause there are no plans or schedules designed to bring

Pinto Creek “into compliance with applicable water qual-

ity standards,” as required by 40 C.F.R. § 122.4(i)(2).

Pet. App. 12-16.

The court’s analysis focused on the text of 40 C.F.R.

§ 122.4(i). Although the court devoted comparatively lit-

tle attention to the first sentence of the regulation, it ob-

served that the first sentence’s “plain language” states

“very clearly” that no permit may be issued to a new dis-

' The second sentence of the regulation provides:

The owner or operator of a new source or new discharger pro-

posing to discharge into a water segment that does not meet ap-

plicable water quality standards ... and for which the State ...

has performed a pollutants load allocation [or TMDL] for the

pollutant to be discharged, must demonstrate, before the close

of the public comment period, that:

(1) There are sufficient remaining pollutant load allocations

to allow for the discharge; and

(2) The existing dischargers into that segment are subject

to compliance schedules designed to bring the segment into

compliance with applicable water quality standards.

40 C.F.R. § 122.4(i).

4-

charger if the discharge will contribute to the violation of

water-quality standards. Pet. App. 10.

As to the argument that Carlota could “offset” its

discharges by cleaning up the abandoned Gibson Mine,

the court stated that “there is nothing in the Clean Wa-

ter Act or the regulation that provides an exception for

an offset when the waters remain impaired and the new

source is discharging pollution into that water.” Jd. at 10.

Moreover, the court found it “questionable whether

there really is an offset” as an empirical matter (id. 11

n.1) because EPA had failed entirely to take into account

the “significant” amounts of dissolved copper that would

enter Pinto Creek from the diversion channels and cutoff

walls—facts that “would be important in determining the

extent of the pollutants contributed by Carlota that

would be offset by the Gibson Mine remediation.” Jd. at

20-21.

Turning to the second sentence of section 122.4(i), the

court observed that the regulation allows new-source dis-

charges into impaired waters where a TMDL has been

established and the proposed new discharger demon-

strates that the requirements of both section 122.4(i)(1)

and section 122.4(i)(2) are met. Pet. App. 11. Clause (2) of

the regulation requires a permit applicant to demon-

strate that existing discharges are subject to “compli-

ance schedules” designed to bring the segment of the

water body “into compliance with applicable water qual-

ity standards.” /d. at 12-13. Rejecting contrary argu-

ments by EPA and Carlota, the court held that “under

the plain language of the regulation, compliance sched-

ules are not confined only to ‘permitted’ point source dis-

chargers, but are applicable to ‘any’ point source.” /d. at

12.

-7-

Because the point-source dischargers into Pinto

Creek were not subject to schedules to bring Pinto

Creek into compliance with water-quality standards, the

court held that the plain requirements of section

122.4(i)(2) had been violated and that the permit was in-

valid. Jd. at 13. The court concluded that the regulation

required a showing as to “how the water quality stan-

dard will be met if Carlota is allowed to discharge pollut-

ants into the impaired waters,” and that the showing had

not been made. /d. at 16.

Carlota filed a petition for rehearing en banc. No

judge requested a vote on whether to rehear the case en

banc, and Carlota’s petition was denied. /d. at 221.

REASONS FOR DENYING THE WRIT

I. This Case Does Not Implicate A Conflict Over

Interpretation of the Applicable EPA Regula-

tion or Any Other Question of Law.

1. Carlota does not argue that this case implicates a

conflict among any of the lower federal courts concern-

ing the EPA regulation at hand, much less a circuit split

on any broader issue of national significence. Rather, on

Carlota’s own account, the “[mJost significant[]” reason

for review (Pet. 14) is an alleged conflict over the inter-

pretation of the applicable EPA regulation between the

decision below and a single ruling from Minnesota, Jn re

Cities of Annandale & Maple Lake NPDES/SDS Permit

Issuance for the Discharge of Treated Wastewater, 731

N.W.2d 502 (Minn. 2007).

As EPA has already explained at length, there is no

such conflict: Annandale “involved a different factual

scenario and focused on a different part of the applicable

regulation.” EPA Br. 13. In Annandale, unlike here, the

water body did not have a TMDL—a critical distinction.

As a result, the court had no occasion to apply the second

-8-

sentence of section 122.4(i), the part of the regulation

that was key to the decision below. Instead, Annandale

focused extensively on interpretation of the phrase

“cause or contribute to the violation of water quality

standards” in the first sentence of the regulation, and

never reached the second sentence. Although Carlota

spends several pages of its reply brief parsing a para-

graph of the decision below to divine whether it consti-

tutes a holding or dictum concerning the first sentence of

the regulation (Reply to EPA 1-6), it does not deny these

fundamental differences between Annandale and the

decision below.”

Nor does Annandale reveal any broader conflict over

principles of agency deference. As EPA has pointed out,

Annandale involved a state court’s review of action by a

state agency; in deferring to the Minnesota Pollution

Control Agency, the Minnesota court relied on state case

law and an applicable state statute. See Mehmet K. Ko-

nar-Steenberg, /n re Annandale and the Disconnections

Between Minnesota and Federal Agency Deference Doc-

trine, 34 Wm. Mitchell L. Rev. 1375, 1376 (2008) (ex-

plaining that “Annandale’s analysis differs from federal

agency deference doctrine in at least three significant

ways,” each of which were potentially outcome-

determinative). Carlota offers no response to this point,

except to assert, without explanation, that Minnesota law

on deference is “largely” the same as federal law. Reply

to EPA 5. In any event, as explained below (at 10-12),

* Carlota also relies on an intermediate state-court decision

from Virginia, Crutchfield v. State Water Control Bd., 612 S.E.2d

249 (Va. Ct. App. 2005). That case, like Annandale and unlike the

decision below, addressed only the first sentence of section 122.4(i)

and held that the second sentence of the regulation was inapplicable

to the facts because there was no TMDL. Crutchfield, 612 S.E.2d at

255.

-9-

this case presents no significant legal issues concerning

agency deference.

2. Faced with the absence of any genuine conflict

among the lower courts, Carlota conjures up a conflict

between the decision below and this Court’s decision in

Arkansas v. Oklahoniu, 503 U.S. 91 (1992). But, as Car-

lota admits, Arkansas did not consider the issue of offset

conditions and did not even mention, much less interpret,

the EPA regulation applicable here, 40 C.F.R. § 122.4(i).

Pet. 13, 20-22. That fact alone is sufficient to dispose of

Carlota’s claim of conflict.

Arkansas, moreover, required this Court to construe

not particular agency regulations, but the Clean Water

Act itself, under circumstances that implicated important

issues of cooperative federalism: a dispute between two

states over EPA’s finding that discharges from a new

source in one state would not violate the downstream

state’s water-quality standards. The discharges at issue

were de minimis and “would not lead to a detectable

change in water quality.” Arkansas, 503 U.S. at 112. In

that context, the Court rejected the view that the Act es-

tablished a “categorical ban” on any discharge that

would reach waters already in violation of water-quality

standards. /d. at 108. Rather than erect such a ban,

“which might frustrate the construction of new plants

that would improve existing conditions,” the Court held,

“the Clean Water Act vests in the EPA and the States

broad authority to develop long-range, area-wide pro-

grams to alleviate and eliminate existing pollution.” /d.

Carlota argues that the decision below conflicts with

Arkansas’s recognition of EPA’s “broad authority” un-

der the Clean Water Act to alleviate existing pollution.

Pet. 20-28. The simple answer to that charge is that the

decision below never addressed or questioned the scope

-10-

of EPA’s broad authority under the statute; it merely

applied EPA’s regulation to the facts of this case. The

court held that, under EPA’s own regulation, the agency

may allow permits for new discharges into impaired wa-

ter bodies, so long as the discharges are “subject to com-

pliance schedules designed to bring the [water body] into

compliance with applicable water quality standards.” 40

C.F.R. § 122.4; see Pet. App. 12-13. Quoting Arkansas,

the court of appeals expressly disclaimed a “complete

ban” or “absolute ban” on new discharges. Pet. App. 13,

17.

Under the decision below, if schedules are developed,

discharges may occur. The ruling contemplates that

EPA will review proposed discharges, on a case-by-case

basis, focusing on existing water quality, the pollution

levels in the proposed discharge, and whether there is a

plan to achieve the water-quality standard in light of

other pollution sources. Carlota’s claim that the court of

appeals erected a virtual or categorical ban on dis-

charges into impaired waters is a fiction. See EPA Br.

18 (“[T]Jhe decision below does not virtually or categori-

cally prohibit the permitting of new sources or new dis-

charges to impaired water bodies under the CWA, and

there is no conflict with Arkansas.”).

Il. The Decision Below Did Not Depart From Set-

tled Principles of Agency Deference.

Attempting to dress up its dissatisfaction with the

outcome below as a clash over broader questions of iaw,

Carlota next asks this Court to grant review on the

ground that the court of appeals failed to apply well-

settled principles of deference to EPA's interpretation of

its own regulation. Pet. 29-35. The petition recites the

familiar standard: A court should defer to an agency’s

interpretation of its regulation unless the “plain lan-

-11-

guage” dictates otherwise. Auer v. Robbins, 519 U.S.

452, 461 (1997); see also Bowles v. Seminole Rock &

Sand Co., 325 U.S. 410, 413-414 (1945).

Under this Court’s Rule 10, however, a petition is

“rarely granted” when the asserted error consists of an

alleged “misapplication” of a settled rule of law. The pe-

tition here fits that bill. Nothing in the decision below

even remotely called into question longstanding rules of

deference. Rather, the court of appeals applied precisely

the standard urged by Carlota. The court repeatedly

made clear that its interpretation was based on the

“plain language” of the applicable EPA regulation (Pet.

App. 11) and rejected EPA’s position only to the extent

that it was inconsistent with that plain meaning. Jd. 9-17.

To be sure, the court did not discuss the issue of defer-

ence or cite the cases discussed in Carlota’s petition. Had

the panel added a citation to Auer or Bowles to its dis-

cussion of the regulation, Carlota would have had no pos-

sible basis for complaint other than its disagreement on

the merits. Surely this Court has more pressing business

than to take a court to task for lack of a citation.

Even if there were some need to clarify aspects of the

law on deference—and Carlota has identified none—the

fact that the court of appeals relied on the “plain lan-

guage” of the regulatory text makes this case a particu-

larly inapt vehicle for fixing the precise level of defer-

ence owed to an agency’s interpretation of its own regu-

lation. Cf Edelman v. Lynchburg College, 535 U.S. 106,

114 & n.8 (2002) (declining to address the precise level of

deference owed to an agency interpretation of a statute

that reflected the best view of the statute’s plain mean-

ing).

At bottom, Carlota’s deference argument is nothing

more than a repackaging of its disagreement with the

-12-

court’s plain-meaning interpretation of the EPA regula-

tion. That disagreement, however, does not bespeak a

fundamental divergence in the legal rules governing

agencies’ authority to interpret their own regulations. It

is instead the byproduct of a case-specific application of a

particular regulation to a particular permitting decision.

See EPA Br. 19-20 (conchi.ding that deference issue here

is “case-specific” and presents no “important federal

question” worthy of review).

III. Carlota’s Predictions About the Implications

of the Decision Below Are Overblown and, In

Any Event, Are Best Assessed By the Agency In

the First Instance.

Lacking a conflict or a significant legal issue, Carlota

and its amici resort to sweeping and unsupported pre-

dictions about the practical effects of the decision below.

According to Carlota, the decision “imposes a virtual de

facto moratorium on the issuance of NPDES permits for

new source discharges into impaired waters,” which will,

in turn, reduce the incentives on dischargers to clean up

polluted waters and limit the agency’s discretion to offer

such incentives. Pet. 37. The petition goes so far as to

claim that the decision below will “make[] it difficult for

the EPA and the states to approve new development

projects” and thereby impede “the nation’s demographic

and economic growth.” Pet. 39.

As discussed above, the premise underlying these

predictions is itself wrong: The court of appeals imposed

no categorical ban on permits for discharges into im-

paired waters and expressly disclaimed any such ban; it

simply held that the relevant EPA regulation requires

compliance schedules under certain circumstances. In-

deed, the agency whose regulation is at issue does not

agree with Carlota’s “de facto ban” theory or the predic-

-13-

tions based on that theory. See EPA Br. 16 (stating that

Carlota “exaggerates” by claiming that the decision’s

practical effect is a virtual, if not categorical, ban).

In any event, the speculation of Carlota and its amici

is just that: speculation. It has been more than a full year

since the court of appeals’ decision in this case was

handed down and no court, state or federal, has adopted

or rejected the regulatory interpretation of the decision

below, let alone the specter of a “categorical ban” that

Carlota raises. There is no evidence that any of Carlota’s

predictions have come true.

Given that lack of evidence, this Court is not the insti-

tution best equipped to assess such speculation. In the

absence of a conflict among the courts or an issue of .

broader legal significance, predictive judgments about

the practical effect of an agency’s regulations, and deci-

sions about whether it is necessary to modify or clarify

those regulations, are best left to the expertise of those

agencies in the first instance, not to the courts. Cf Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 42 (1983) (“[A]genc[ies] must be given ample

latitude to adapt their rules and policies to the demands

of changing circumstances.”).

As EPA points out, “to the extent that the Ninth Cir-

cuit’s decision creates confusion, EPA may amend the

regulation to clarify its intention.” EPA Br. 20. That, in

itself, is sufficient reason to deny Carlota’s petition, or at

the very least cause this Court to be “restrained and cir-

cumspect in using [its] certiorari power.” Braxton v.

United States, 500 U.S. 344, 348 (1991) (declining to de-

cide issue that could be decided by agency with authority

to “periodically review the work of the courts” and

“make whatever clarifying revisions conflicting judicial

decisions might suggest”).

-14-

Finally, even if the question were otherwise worthy

of review, this case is a particularly bad vehicle to ex-

plore the circumstances under which permits may be

granted with “offset conditions” that purportedly “re-

duce net pollution” and “improve overall water quality.”

Pet. i, 35, 37. As the court of appeals recognized, it is

“questionable whether there really is an offset” in this

case at all. Pet. App. 11 n.1. At best, the Gibson Mine

cleanup would reduce one source of excess copper dis-

charges into Pinto Creek. But the court of appeals found

that EPA had improperly ignored the other sources of

excess copper and never developed any plan or schedule

to reduce that pollution (Pet. App. 18-20)—in direct con-

tradiction of the TMDL, which sets limits for those

sources. In other words, even with the Gibson “offset,”

due to the lack of any plan or schedule to deal with the

other sources, Pinto Creek will still be in violation of wa-

ter-quality standards and the new Carlota mine dis-

charges would make a bad situation worse. See EPA

C.A. Br. 31 (“EPA does not contend that [water-quality

standards} will be achieved before Carlota begins opera-

tions.”). Far from reducing net pollution or improving

water quality at the site, allowing Carlota’s new copper

discharges, without any plan to meet water-quality stan-

dards in Pinto Creek, would condemn the stream to a

perpetually impaired condition. Thus, the factual prem-

ise of Carlota’s question presented—that the “offset”

conditions in this case would “improve overall water

quality”—is demonstrably false.

x* * *

In short, there is no need for this Court to exercise

its certiorari jurisdiction to address an issue of regula-

tory interpretation that implicates no broader legal is-

sues, has created no conflict among the lower courts, and

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that can, if necessary, be addressed directly by the rele-

vant regulatory body itself.

The petition for

November 21, 2008

CONCLUSION

a writ of certiorari should be denied.

Respectfully submitted,

DEEPAK GUPTA

BRIAN WOLFMAN

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

ROGER FLYNN

(Counsel of Record)

WESTERN MINING ACTION PROJECT

P.O. Box 349

440 Main Street, #2

Lyons, CO 80540

(303) 823-5738

Counsel for Respondents