Opposition Brief — El Paso Properties, Inc. v. Sierra Club (No. 05-933)

5

decision also affirms the longstanding position of the U.S.

Environmental Protection Agency (“EPA”) and the State of

Colorado Water Quality Control Division, the agencies

with regulatory oversight of water quality, that “owners or

operators” of points sources are subject to regulation. This

Court should not upset the settled expectations of the

public, the regulated industries, and these agencies by

granting certiorari in this case and deciding these issues

yet again.

Since the Clean Water Act discharge permitting

requirement is triggered by ownership of a polluting point

source, and not mere ownership of land, as the Tenth

Circuit and district courts recognized, the statistics Peti-

tioner cite about the number of abandoned mining sites

located around the country are not meaningful concerning

the potential effects of the Tenth Circuit’s decision.

+

ARGUMENT

A. There Is No Split In The Circuits With Regard To

The Elements Of Liability Under Section 402 Of

The Clean Water Act, As The Tenth Circuit Cor-

rectly Found.

Petitioner’s principal argument for this Court to grant

certiorari in this case is that “the circuits are divided over

the fundamental scope of the NPDES program.” Petition

at 9. However, Petitioner cannot demonstrate any such

split in the circuits. In arguing that such a split exists,

Petitioner cites to only one case, Froebel v. Meyer, 217 F.3d

928 (7thCir. 2000), cert. denied, 531 U.S. 1075 (2001), and

contends that decision in Froebel is directly in conflict with

6

the Tenth Circuit’s determination in this case. Petition at

11.

Contrary to Petitioner’s claims, the Tenth Circuit’s

decision below and Froebel are not at odds, as the Tenth

Circuit carefully considered this argument and found

Froebel unpersuasive for three reasons and further distin-

guished Froebel on. its facts. (App. at 21).

First, the Court held that Froebel interpreted Section

404 of the Clean Water Act, and not Section 402. (App. at

21). Section 402, the Tenth Circuit held, addresses the

“discharge of any pollutant,” whereas Section 404 ad-

dresses the “discharge of dredged or fill material.” (App. at

21-22).

Second, the Court held Section 402 focuses on the

point source and its ownership, while Section 404 empha-

sizes the “activity” giving rise to the discharge of dredged

material, which further distinguishes the two sections.

(App. at 22).

Finally, the Court held, the term “discharge of any

pollutant” that appears in Section 402 must be understood

as defined elsewhere in the Act, where the term “point

source” is used to define “discharge” and give context to

the term “addition” in the statute. (App. at 22-23). Thus,

the Court concluded correctly that “if the point source is

‘discharging,’ the ‘person’ who owns or operates the point

source is liable under the Act.” (App. at 22).

Additionally, the Court noted that in Froebel the court

held that the removed dam was not a point source. Here,

by contrast, E] Paso has conceded that its shaft is a point

source. (App. at 22-23).

~ 7 a

On these points, the Tenth Circuit ruling was thought-

ful, reasonable and correct. Unlike Section 402, Section

404, applicable to the “discharge of dredged or fill mate-

rial,” 33 U.S.C. § 1344(a), clearly imposes an “activity”

requirement as a condition of permitting. See, 33 U.S.C.

§ 1344(e)(1) (applies to categories of “activities”) and 33

U.S.C. § 1344(f) (listing exempted “activities”). The same

is true of the implementing regulations for Section 404.

See 33 C.FR. § 322.3 (listing “activities” requiring per-

mits); 33 C.F.R. § 322.4 (listing “activities” not requiring

permits); 33 C.F.R. § 323.2(f) (listing the type of “activi-

ties” included within the definition of “discharge of fill

material”). Thus, the plain language of the CWA and its

implementing regulations indicate that Section 402 and

Section 404 permits are based on different triggering

conditions.

The Tenth Circuit recognized that the term “dis-

charge” broadly applies to both Section 402 and 404 of the

Act. (App. at 21). However, an obvious explanation for the

different statutory language in the two sections is that

Section 404 was added to the origina] Clean Water Act bill

as an amendment to preserve a pre-existing permit pro-

gram of the Army Corps of Engineers. See Kentuckians for

the Commonwealth, Inc. v. Rivenburgh, 204 F.Supp.2d 927,

933-35 (S.D.W.Va. 2002), rev'd on other grounds, 317 F.3d

425 (4thCir. 2003). Where an agency interpreting similar

statutory terms differently provides a reasonable explana-

tion for the difference, courts will uphold the construction.

National Organization of Veterans’ Advocates, Inc. v.

Secretary of Veterans Affairs, 260 F.3d 1365, 1379-80

(Fed.Cir. 2001).

Froebel also involves application of the CWA to dam

structures, which raise thé unique question whether

3 8

pollutants from dams were being added from the “outside

world.” See National Wildlife Federation v. Consumers

Power Co., 862 F.2d 580 (6thCir. 1988); National Wildlife

Federation v. Gorsuch, 693 F.2d 156 (D.C.Cir. 1982). This

case, however, is not a “dam” case.’

Thus, in numerous respects, there is no conflict

between the decision in this case and the Seventh Circuit’s

decision in Froebel, as the Tenth Circuit correctly found.

B. There Is No Statutory Or Regulatory Basis For A

“Passive Landowner” Exemption To Clean Water

Act Liability.

Petitioner argues further that “passive property

owners” (i.e. those that own discharging point sources, but

did not construct those sources) should be exempt from

Clean Water Act liability. Petition at 10. However, there is

" “In several policy statements made in opinion letters and reports

to Congress in the 1970s and 1980s, the EPA took the position

that dam releases should not be considered “discharges” under

the CWA and thus NPDES permits would not be required for

those releases. See Gorsuch, 693 F.2d at 167-69. This position

was never formalized in a notice-and-comment rulemaking or

formal adjudication under the Administrative Procedure Act, 5

U.S.C. §§ 553, 554, although the EPA subsequently reiterated its

position in the Gorsuch and Consumers Power cases, as a defen-

dant and amicus curiae, respectively. See Consumers Power, 862

F.2d at 583; Gorsuch, 693 F.2d at 165. Both courts rested their

decisions on the conclusion that the EPA position deserved sub-

stantial deference and was reasonable. Given subsequent Su-

preme Court decisions governing judicial deference to federal

agencies’ constructions of the sta utes that they implement, we

hold that the EPA position is dve less deference than that ac-

corded it by the Gorsuch and Consimers Power courts.”

Catskill Mountains Chapter of Trout Untimited, Inc. v. City of New

York, 273 F.3d 481, 489-490 (2dCir. 2001) (footnote omitted).

9

no basis for any such exemption in the Clean Water Act.

Section 301 of the CWA states, “le)xcept as in compliance

with this section and sections 302, 306, 307, 318, 402, and

404 of this Act, the discharge of any pollutant by any

person shall be unlawful.” 33 U.S.C. § 1311(a). Section 402

of the CWA, which establishes the NPDES permit system,

provides that any discharge of any pollutants must be

authorized by an NPDES permit. 33 U.S.C. § 1342. The

term “discharge of pollutants” is defined as “any addition

of any pollutant to navigable waters from any point

source.” 33 U.S.C. § 1362(12) (emphasis added).

The requirement that all discharges covered by the

CWA have an NPDES permit “is unconditional and abso-

lute.” United States v. Tom-Kat Development, Inc., 614

F.Supp. 613, 614 (D.Alaska 1985). Importantly, the courts

are consistent in their recognition that the CWA is a strict

liability statute. See United States v. Earth Sciences, Inc.,

599 F.2d 368, 374 (10thCir. 1979).

Lacking support in the statute itself, Petitioner

contends that “|e]very reported case imposing CWA permit

liability has found that the discharge resulted from some

affirmative conduct by the defendant.” Petition at 11.

However, Petitioner ignores the fact it has not found a

single case in which an “active conduct” or “mere land-

owner” defense has been sustained in a case under Section

402 of the CWA. The Tenth Circuit correctly stated that:

“[Ploint source owners such as E] Paso can be liable for the

discharge of pollutants occurring on their land, whether or

not they acted in some way to cause the discharge.” (App.

at 23).

10

Furthermore, holding “owners or operators” liable

under the Clean Water Act, rather than the person or

persons who constructed a point source, is a very reason-

able, common-sense approach. The person or persons who

construct a point source but then sell the property gener-

ally no longer have access to the property in order to

prevent further disciiarges or do the monitoring and

control associated with the permitting process. Owners

and operators, however, generally do have the necessary

access and control. This would be especially true of any

gravity-flow point source that requires no affirmative

“operation,” such as mine drainage tunnels which are

commonplace in mining districts in the western United

States. It is important to note that the term “point source”

specifically includes the terms “tunnel” and “pipe” which

are often gravity-flow conveyance systems requiring little

or no operation after initial construction. 33 U.S.C.

§ 1362(14).

Additionally, it would not carry out the intent of the

Clean Water Act to set up administrative agencies to

undertake the difficult task of judging what is sufficient

“activity” to require a person to obtain a permit, or having

to defend lawsuits from polluters who say their “activity”

was insufficient in this or that instance. It is well estab-

lished that the CWA is not interpreted in such a way as to

impose difficult administrative burdens on the regulatory

agencies. Costle v. Pacific Legal Foundation, 445 U.S. 198,

215 (1980).

In contrast to Petitioner’s claim, there is well-settled

case law concluding that point source discharges of pollut-

ants from mines must be authorized by an NPDES permit,

even where the mining is inactive and the pollution is

discharged from historic mining features. In American

11

Mining Congress v. U.S. EPA, 965 F.2d 759, 764 (9thCir.

1992) (“AMC”), the mining industry presented the same

arguments currently being advanced by Petitioner against

an EPA regulation requiring inactive mines to cbtain

NPDES permits for stormwater discharges — namely that

the CWA does not impose NPDES permitting require-

ments on owners of inactive mines. The Ninth Circuit

rejected these arguments and ruled that, “[aJll point

sources that discharge pollutants, including point sources

that discharge pollutants from inactive mines, require a

permit.” AMC, 965 F.2d at 767.

Ja the Clean Water Act, Congress provided that

effiuent limitations “shall be applied to all point sources of

discharges of pollutants in accordance with the provisions

of this Act.” 33 U.S.C. § 1311(e) (emphasis added). The

statutory language used consistently throughout the CWA,

as both the district court and Tenth Circuit recognized,

demonstrates the intent of Congress that the point source

permitting provisions apply to “owners or operators” of

facilities and point sources. See 33 U.S.C. §§ 1311(c)

(“owner or operator” of point sources employing best

available technology); 1311(g)(2) and (3) (“owner or opera-

tor” of point sources with nonconventional pollutant

control); 1311(i)(2)(A) (“owner or operator” of point sources

where construction of publicly owned treatment works

delayed); 1311(m)(1)(I) (dischargers to deep water territo-

rial seas eligible for modification if “owner or operator” of

comparable facility not put at competitive disadvantage);

1311(n) (alternative effluent limitations available to

“owner or operator” of facility); 1312(b)(2)(B), (modifica-

tions of toxic pollutant limitations available within eco-

nomic capability of “owner and operator of the source”);

12

1317(e) (owner or operator of public treatment works may

obtain extension for pretreatment standards); 1318(a)

(record keeping requirements of “owner or operator of any

point source”) (App. at 19, 57-58). Thus, liability attaches

to any “owner” of a point source from which discharges of

pollution are ongoing.

Petitioner’s argument is based solely on what it

characterizes as the plain and ordinary meaning of the

terms “discharge,” “permit” and “addition.” Petition at 16.

However, this argument fails to account for other terms in

the statute, including Congress’ use of the term “any” to

describe “addition” and the use of the terms “owners or

operators” in various locations throughout the statute to

refer to parties responsible for point source discharges.

It is a “cardinal rule” of statutory construction that “a

statute is to be read as a whole.” Washington State Dep't of

Social and Health Services v. Guardianship Estate of

Keffeler, 537 U.S. 371, 384, n.7 (2003). Petitioner’s argu-

ment is based solely on its dubious characterization of

three statutory terms taken out of context from other

relevant terms in the same statute and its sensational but

unfounded claims of harm to “passive landowners.”

* The terms “discharge” and “any addition” do not by their plain

meaning connote activity is Petitioner contends but more broadly apply

regardless of any activity in creating the discharge. For example, as

recognized in Broderick Investment Co. v. Hartford Accident & Indem-

nity Co., 954 F.2d 601, 607, n.4 (10thCir. 1992), the term “discharge” is

flexible enough in the context of pollution that it could have “many

possible definitions.” The dictionary defines “addition” to include not

only the “act” of adding, but also the “process” of adding, and the term

“process” has passive as well as active meanings. Webster’s Third New

International Dictionary, p.1808 (1961) (e.g., definition b: “continued

onward flow”).

13

Petitioner also ignores EPA’s statutory role of enacting

regulations necessary to carry out the Act, 33 U.S.C.

§ 1361(a), and statutory control over NPDES permitting.

33 U.S.C. § 1342. In carrying out these functions, EPA

more than two decades ago adopted regulations defining

“discharge of pollutant” to include “additions of pollutants

into waters of the United States from: ... discharges

through pipes, sewers, or other conveyances owned by a

. ++ person which do not lead to a treatment works.” 40

C.F.R. § 122.2 (emphasis added); 44 Fed.Reg. 32854, 32901

(June 7, 1979). Moreover, the terms “facility or activity”

mean “any NPDES ‘point source’ or any other facility or

activity (including land or appurtenances thereto)

that is subject to regulation under the NPDES program.”

40 C.FR. § 122.2 (emphasis added); 48 Fed.Reg. 14146,

14156 (April 1, 1983). The term “owner or ope ator” is also

defined as “the owner or operator of any ‘facility or

activity’ subject to regulation under the NPDES program.”

40 C.F.R. § 122.2 (emphasis added); 48 Fed.Reg. at 14156.

See also, Beartooth Alliance v. Crown Butte Mines, 904

F.Supp. 1168, 1175 (D.Mont. 1995) (“Beartcoth”).

In interpreting the CWA, it is well established that

EPA's interpretation of this “very complex statute” is

entitled to “considerable deference.” Chemical Manufac-

turers Ass’n v. Natural Resources Defense Council, Inc.,

470 U.S. 116, 125 (1985). EPA’s regulations — adopt«l after

public notice and comment — are “given controlling weight

* Since EPA’s regulations apply in the Seventh Circuit as well as

the Tenth, there is no basis for Petitioner’s statement that: “If E] Paso’s

property were located in the Seventh Circuit, it would not be required

to obtain a NPDES permit under the circumstances of this case.”

Petition at 22.

14

anless they are arbitrary, capricious, or manifestly con-

trary to the statute.” Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 844 (1984).

Petitioner also ignores the fact that the Clean Water

Act is a strict liability statute. As such, equitable defenses

are not relevant to a liability determination. See State of

Georgia v. City of East Ridge, 949 F.Supp. 1571, 1579, n.7

(N.D.Ga. 1996) (“minimal adverse impact to the affected

waters” is irrelevant); Student Public Interest Research

Group of New Jersey, Inc. v. P-D. Oil & Chemical Storage,

Inc., 627 F.Supp. 1074, 1085 and 1090 (D.N.J. 1986)

(“laches,” “good faith” and “intent” of polluter are also

irrelevant to the issue of liability); United States v. Amoco

Oil Co., 580 F.Supp. 1042, 1050 (W.D.Mo. 1984) (“good-

faith” defense not available). Thus, Petitioner’s attempted

equitable arguments are not relevant to a judgment on

liability, and instead are pertinent only to the issue of

remedy (civil penalty and injunctive relief). E.g., Amoco,

580 F.Supp. at 1050.

The so-called “innocent landowner” exemptions that

Petitioner cites in other statutes involve exemptions from

liability for pollution spills, not exemptions from a permit-

ting process. Petition at 18.

Furthermore, exempting parties such as the Peti-

tioner from any liability under the Act or even the re-

quirement to obtain a permit would undermine the Act’s

ability to achieve its goal of eliminating the “discharge of

pollutants into the navigable waters” of the United States.

33 U.S.C. § 1251. Petitioner itself admits that there are a

multitude of inactive mine sites discharging pollution from

15

point sources into waters of the U.S. Should all these mine

sites be exempt from the Act, it would all but guarantee

that those affected water bodies would never meet water

quality standards, as there would be no mechanism for

ensuring their cleanup.‘

Petitioner also mounts the unsupported argument

that because it owned the point source prior to the enact-

ment of the Clean Water Act, the Act should not apply to

its property. Petition at 19. There is no support for the

contention that the Clean Water Act was not intended to

affect pre-existing polluting point sources. Congress

clearly intended that point source discharges existing at

the time the Act was passed be permitted. Under 33 U S.C.

§ 1342(k), Congress provided a limited 180-day period

after enactment of the CWA in which existing point source

discharges would not be in violation if a permit application

were filed. That opportunity for E] Paso to avoid prosecu-

tion expired approximately three decades ago.

Lastly, Petitioner asserts that the Tenth Circuit’s

holding in this case will undermine Congressional efforts

to enact “Good Samaritan” legislation aimed at encourag-

ing clean up of abandoned mine sites. Petition at 21. This

* Petitioner cites to federal government data portraying a large

number of inactive mine sites with contaminated material that may

“pose potential risks to human health ...” Petition at 20. However,

none of this data indicates the extent to which any of these mine sites

are discharging pollution from point sources into navigable waters, the

trigger for liability under the Clean Water Act. Without this specific

information, there is no way to determine the relevance of the numbers

of inactive mine sites cited by Petitioner. As such, these data fail to

demonstrate any major impact associated with Petitioner being liable

for discharges from a polluting point source located on its property.

16

argument is not only wholly speculative, but also repre-

sents a failure to understand the purpose of any such

legislation. Indeed, the entire premise for such legislation

is to give third parties who do not have an interest in the

property containing a polluting mine site protection from

liability for efforts to remedy ongoing discharges. In this

way, these types of bills expressly recognize that Clean

Water Act liability applies exactly as set forth by the Tenth

Circuit.

Moreover, the specific legislation cited by Petitioner

makes it clear that current owners of discharging point

sources are not eligible for “Good Samaritan” status. This

is because the purpose of this bill is not to provide an

escape from liability for those who are already subject to

this liability, but for those who would be willing to clean

up the site but for that liability.

For Petitioner’s role, it has taken no steps whatsoever

to clean up the polluting discharge, despite having been

found expressly liable by the district court in this case and

by the State of Colorado in administrative proceedings. It

strains credibility that Petitioner would somehow act to

clean up the existing pollution if the “Good Samaritan” bill

even passes, even though it would not do so under court

order.

C. There Is No Exception To Clean Water Act Li-

ability For Point Sources With Multiple Con-

tributors, An Issue Which Was Not Raised Or

Decided Below And Therefore Is Not Before This

Court.

Petitioner argues that “the citizen suit is an inappro-

priate mechanism for adjudicating liability for alleged

17

point source discharges that have multiple sources.”

Petition at 8. Petitioner also argues that Sierra Club and

Mineral Policy Center “have abused the citizen suit

process” and exceeded the useful rule of “supplementing”

government enforcement efforts under the Clean Water

Act. Petition at 29-30.

First, these charges are incorrect. Sierra Club and

Mineral Policy Center gave sixty day notice to E] Paso and

\ the government prior to commencing their action in U.S.

District Court. Neither E] Paso nor the government took

any action to address the sixty day notice letter during the

notice period. Thus, Sierra Club and Mineral Policy Center

complied with all prerequisites for filing a citizen enforce-

ment action. Neither government agency took any action

against E] Paso until years after this citizen enforcement

action was commenced. Second, whatever their merits,

these arguments were not raised and ruled upon by either

the district court or the Tenth Circuit Court of Appeals, so

they are not properly before this Court.

The only support for Petitioner’s claim is that “the use

of citizen suits may lead to inconsistent rulings in multiple

administrative and judicial forums.” Petition at 8. How-

ever, the current status of this case itself demonstrates the

speculative nature of this assertion, as the very state

administrative action to which Petitioner points to in

support has been stayed, by agreement of all the parties

including Petitioner, pending the resolution of this appeal.

Since neither this case nor the state administrative case is

final, it is quite a stretch to assert that the cases will reach

inconsistent results.

18

Petitioner’s position also fails to recognize the impor-

tance of citizen suits in the Clean Water Act’s statutory

scheme. In enacting the Clean Water Act, Congress

granted jurisdiction to the United States district courts to

hear citizen suits enforcing the requirements of the Act. 33

U.S.C. § 1365(a). Congress intended that citizen suits

would serve “an integral part of [the Clean Water Act’s]

overall enforcement scheme.” Molokai Chamber of Com-

merce v. Kukui (Molokai), Inc., 891 F.Supp. 1389, 1402

(D.Haw. 1995). Congress also intended that Clean Water

Act suits be “handled liberally, because they perform an

important public function.” Sierra Club v. Chevron U.S.A.,

Inc., 834 F.2d 1517, 1525 (9thCir. 1987). Here, Petitioner’s

arguments were not properly raised and decided and

presented now for review; even if they were, its argument

that citizen suits are “inappropriate” flies in the face of

Congress’ intent in expressly providing for such suits in

the Clean Water Act. Notably, Petitioner fails to cite any

authority, be it case law or otherwise, that supports an

exemption from citizen suits in this context.

D. The Tenth Circuit Properly Applied This Court’s

Ruling In Gwaltney v. Chesapeake Bay Founda-

tion.

Petitioner argues that jurisdiction in this case is

improper because, as a matter of law, there can be no

allegation of “a state of continuous or intermittent viola-

tion” of the Clean Water Act. Petition at 23. The sole fact

cited in support of this argument is that the point sources

in this case, the El Paso Shaft and Roosevelt Tunnel, were

constructed wiiolly in the past. Jd. at 28. However, this

19

position ignores the undisputed fact that the E] Paso Shaft

and Roosevelt Tunnel continue to collect and convey

pollutants into navigable waters on an ongoing basis. It is

this ongoing discharge from a point source that is the focus

of the Clean Water Act liability in this case, not the fact

that the conveyance structures were constructed in the

past. The Tenth Circuit correctly focused on the key issue:

“Thus, since plaintiffs have alleged the contemporane-

ous discharge from a point source — the El] Paso shaft —

which flows through other conveyances to navigable waters,

CWA jurisdiction is established.” (App. at 14) (emphasis

added).

In proving an “ongoing” violation of the CWA, it is

sufficient to show that there is a “reasonable likelihood

that a past polluter will continue to pollute in the future.”

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Founda-

tion, Inc., 484 U.S. 49, 57 (1987). “Intermittent or sporadic

violations do not cease to be ongoing until the date when

there is no real liketihood of repetition.” Chesapeake Bay

Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690,

693 (4thCir. 1989); see also Committee to Save the Moke-

lumne River v. East Bay Mun. Util. Dist., 35 ERC 1537,

1551 (E.D.Cal. 1992). “[A] discharge of pollutants is

ongoing if the pollutants continue to reach navigable

waters, even if the discharger is no longer adding pollut-

ants to the point source itself.” Umatilla Waterquality

Protective Ass’n, Inc. v. Smith Frozen Foods, Inc., 962

F.Supp. 1312, 1322 (D.Ore. 1997); see also Werlein uv.

United States, 746 F.Supp. 887, 896-897 (D.Minn. 1990)

(violations are “ongoing” when there is “toxic waste that

has not yet reached a waterway, but is being introduced

20

into the waterway over time”). In Beartooth, also involving

an inactive mine, the court “found evidence that violations

were occurring at New World after the complaint was

filed” and thus rejected the defendant’s claim that the

unpermitted discharges were “wholly past” violations.

Beartooth, 904 F.Supp. at 1176. In support of its legal

argument, Petitioner cites to several cases it had argued

below where an “ongoing violation” was not found to have

been alleged because the actual discharge had occurred

wholly in the past, and all that remained to occur was the

migration of that pollution to a navigable water. Petition

at 25-27. The Tenth Circuit correctly distinguished these

cases and rejected Petitioner’s arguments, saying:

“In contrast, this case does not involve the mere

migration, decomposition, or diffusion of pollut-

ants from an identifiable discharge that occurred

sometime in the past. That the mine shaft itself

is a point source is not reasonably contestable.

Here, the discharge from the point source is oc-

curring now, and is not the result of some past

discharge that occurred on the surface of El

Paso’s property.”

(App. at 13).

Petitioner cites “confusion” in the law on this point as

a reason for this Court to grant certiorari, (Petition at 24),

and the Tenth Circuit itself did recognize some potential

disagreement in the cases. (App. at 10-12). However,

regardless of which test used in the federal courts is

applied, as the Tenth Circuit correctly held, there is still

subject matter jurisdiction here under the Gwaltney test.

Thus, this case is not a useful and appropriate one for this

21

Court to interpret any confusion that may allegedly exist

in published cases.

CONCLUSION

This case is not the type of case this busy and impor-

tant Court should select for review. Despite Petitioner’s

attempt to manufacture one, there is no split in the Circuit

Courts. The Tenth Circuit’s decision is squarely in line

with precedent from numerous federal] district and appel-

late courts across the country. Further, the decision com-

ports with long-standing legal interpretations, and

practical implementation, of the Clean Water Act by the

U.S. EPA and state agencies.

When the Tenth Circuit’s basis for its decision is fully

and fairly considered, there is no “new and expansive”

interpretation of the Act at issue. Petitioner’s arguments

have been considered by five separate decision-makers

including nine separate judges and have been rejected

each time. The case arrives here on only a limited sum-

mary judgment record. The alleged effect on large num-

bers of property owners is speculative at best because it

ignores the basis of the Court’s decision which limits its

effects. Lastly, the decision fully and faithfully implements

the intent of Congress in passing the Clean Water Act.

Moreover, granting certiorari would only lead to further

delays — beyond the four years of delay already —- in

properly permitting ongoing discharges at the site in

contravention of the purpose of the Act.

22

Therefore, the Sierra Club and Mineral Policy Center

respectfully request that Petitioner’s Petition for Certio-

rari be denied in all respects.

Respectfully submitted,

PAUL ZOGG

LAW OFFICE OF PAUL ZOGG

1221 Pear! Street

Boulder, CO 80302

(303) 546-9970

JOHN BARTH

Attorney at Law

P.O. Box 409

Hygiene, CO 80533

(303) 774-8868

ROGER FLYNN

JEFF C. PARSONS

WESTERN MINING ACTION PROJECT

P.O. Box 349

Lyons, CO 80540

(303) 823-5738

Dated this 27th day of February, 2006

In The

Supreme Court of the United States

¢

EL PASO PROPERTIES, INC.,

Petitioner,

v.

“SIERRA CLUB AND

MINERAL POLICY CENTER,

Respondents.

6

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

MOTION FOR LEAVE TO FILE AN

AMICI CURIAE BRIEF AND AMICI CURIAE

BRIEF OF NORTHWEST MINING AS: OCIATION,

COLORADO MINING ASSOCIATION, AND

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

¢

WILLIAM PERRY PENDLEY*

*Counsel of Record

JOSHUA D. MCMAHON

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225.6964

OR CALL COLLECT (402) 342-2831

MOTION FOR LEAVE TO FILE AN

AMICI CURIAE BRIEF IN SUPPORT OF PETITIONER

COME NOW, Northwest Mining Association (“NWMA”),

Colorado Mining Association (“CMA”), and Mountain

States Legal Foundation (“MSLF”) and hereby respectfully

move, pursuant to Supreme Court Rule 37, for leave to file

the accompanying amici curiae brief in support of Peti-

tioner. Petitioner has granted consent to amici for the

filing of the amici brief. However, Respondents denied

consent because MSLF would not agree to allow Respon-

dents to review the attached amici curiae brief prior to the

filing thereof.

NWMA is a non-profit, non-partisan, trade association

organized under the laws of the State of Washington, with

its principal place of business in Spokane, Washington.

NWMaA was founded in 1895 by miners from the States

of Idaho, Montana, and Washington, as well as several

Canadian provinces. NWMA currently has 1,300 members

residing in 31 States and 6 Canadian provinces. NWMA’s

purposes are: (1) to support and advance mineral resource

and related industries; (2) to represent and inform mem-

bers on technical, legislative, and regulatory issues; (3) to

provide for the dissemination of educational material

related to mining; and (4) to foster and promote economic

opportunity and environmentally responsible mining.

CMA is the oldest mining trade association in the

United States. Founded in 1876 ana incorporated in 1897,

CMA promotes the mining industry’s interests before

governmental agencies and the general public. Its mem-

bership includes more than 600 persons and organizations

engaged in mineral exploration and development, as well

as those who provide services to the mining industry,

including equipment manufacturers, bankers, law, con-

sulting, engineering, and accounting firms. CMA’s interest

in this case is in defining the appropriate limits of Clean

Water Act (“CWA”), 33 U.S.C. §§ 1251-1387, liability for

mineral producers by ensuring that CWA liability is

defined appropriately and consistently in §§ 402 and 404

of the CWA for the purpose of developing future mining

projects.

MSLF is a non-profit, public intérest legal foundation

organized under the laws of the State of Colorado, with its

principal place of business in Lakewood, Colorado. MSLF

is dedicated to the defense and preservation of individual

liberties, the right to own and use property, limited and

ethical government, and the free enterprise system. The

issue in this case is whether the CWA imposes liability on

the owner of property for the unpermitted “discharge of a

pollutant” when the owner did nothing more than simply

own the property. Since its establishment in 1977, MSLF

has been active in litigation aimed at ensuring the proper

interpretation and application of the CWA. E.g., National

Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir.

1982) (amicus curiae); Riverside Irrigation District v.

Andrews, 758 F.2d 508 (10th Cir. 1985) (represented

intervenor); Laguna Gatuna, Inc. v. United States, 50 Fed.

Cl. 336 (2001) (represented plaintiff); Rapanos v. United

States, Nos. 04-1034 and 04-1384 (2006) (amicus curiae).

In addition, MSLF has over 5,000 members throughout

the United States. Hundreds of these members own

property in Colorado, Wyoming, Utah, New Mexico,

Oklahoma, and Kansas.

The outcome of this case may have serious conse-

quences for these members. Indeed, if the decision below is

allowed to stand, all persons owning property within the

jurisdiction of the Tenth Circuit, including members of

amici, may be subject to liability under the CWA for doing

nothing more than owning a piece of property. Amici

believe that the accompanying Amici Curiae Brief will

assist this Court.

WHEREFORE, NWMA, CMA, and MSLF respectfully

move for leave to participate in this case as amici curiae

and to fiie the accompanying Amici Curiae Brief.

DATED this 27th day of February, 2006.

Respectfully submitted by:

WILLIAM PERRY PENDLEY, ESQ.

JOSHUA D. MCMAHON, Esq.

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE AN AMICI CURIAE

BRIEF IN SUPPORT OF PETITIONER.................. 1

Te Oe FA BAe I on svc dedecededvdscsascecsecdacncncdedeasss ii

IDENTITY AND INTEREST OF AMICI CURIAE ...... 1

SUMMARY OF ARGUMENT ...................::ccsseceeeeeeceeeees 3

REASONS FOR GRANTING THE PETITION. ............ 3

I. THE TENTH CIRCUIT FAILED TO FOLLOW

ESTABLISHED SUPREME COURT PRECE-

DENT GOVERNING STATUTORY INTER-

BRIAN osicceceah gh cas tstnscs toa asa mee dvencabesssorviet 3

A. The Tenth Circuit Failed To Interpret The

Clean Water Act According To The Legisla-

tive Purpose As Expressed By The Ordi-

nary Meaning Of The Words Used.............. 3

B. The Tenth Circuit Failed To Follow The

Presumption That Identical Words Used In

Different Parts Of The Same Statute Are

Intended To Have The Same Meaning........ 6

0. THE TENTH CIRCUIT DECISION CREATES

NEW LIABILITY FOR THE FEDERAL GOV-

ERNMENT UNDER THE CLEAN WATERACT.. 9

A. The Federal Government Owns Property

Containing Thousands Of Abandoned ~

Mines Now In Violation Of Section 402 Of

ONE Pe FE ich os bcadnvnkseasseshanson aes 9

B. The Federal Government Is Now Subject

To Massive Financial Liability Through

Clean Water Act Citizen Suits ................. 13

GPa RR IIIS cols hich od sind Btn ssgiybivetelastibieambiectinnte 14

, ‘

TABLE OF AUTHORITIES

Page

CASES

Atlantic Cleaners & Dyers, Inc. v. United States,

» ne Ee yok: RA Re cence etryprn Che 7,9

Brown v. Gardner, 513 U.S. 115 (1994) .. Caer eee eabadiassanead 7

Catskill Mts. Chapter of Trout Unlimited v. City of

New York, 273 F.3d 481 (2nd Cir. 2001)................c.eeeceeee 8

City of Jacksonville v. U.S. Dept. of Navy, 348 F.3d

RE CEs CHEE ahs dakcdctbrceckissd: sectecksksunsccemsadihacheioinn 10

Cohen v. de la Cruz, 523 U.S. 213 (1998).................cccceeeeees 7

Froebel v. Myer, 217 F.3d 928 (7th Cir.), cert. de-

ME, GOL Ales BOP Te CED sec saciscercseptchctatckcarenrictegetaads 6, 7

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564

PR aisha isin aces sdehcbaitha Gackaioaein gcciaiadedinla sebaasheicane ten ctus: 4

Helvering v. Stockholms Enskilda Bank, 293 USS.

a. |) URE RNa Reps Wr eee tne SLND, Mie eA 7

Laguna Gatuna, Inc. v. United States, 50 Fed. Cl.

NE TEE sissseseti atlas Srsicvas A andes cas a daveg iekadiaaenois in lca abinds 2

Lewis v. United States, 445 U.S. 55 (1980)... eee 4

National Wildlife Federation v. Gorsuch, 693 F.2d,

Sr ety A PE si Sentcnccosxcctchincicg aaksusice snibseapateoaniance 2,8

Perrin v. United States, 444 U.S. 37 (1979).............cccceeeeeee 4

Rapanos v. United States, Nos. 04-1034 and 04-

RANG TIE as.» aiuso hcg dcecctianobncsabuasoiiinntbe\adsodstalacaniacpminets whine 2

Richards v. United States, 369 U.S. 1 (1962)............00000..... 4

Riverside Irrigation District v. Andrews, 758 F.2d

Se Cee Ce, Loaves nei tes ccdsescicesphiancconncle ass cantare 2

ill

TABLE OF AUTHORITIES ~— Continued

Page

Sierra Club v. El Paso Gold Mines, 421 F.3d 1133

Ce A ee rir cvinivecocccessbinstisindnradatepemGailismestnac es 5, 12

United States v. Curtis, 988 F.2d 946 (9th Cir. 1993)....... 10

United States Dep't of Energy v. Ohio, 503 U.S. 607

IPOD ~avdueesce clasts donb dbubahbhicadess andiaacss codeautplaniscaao siete 10

STATUTES AND REGULATIONS

33_U.S.C. §§ 1251-1387, Clean Water Act (“CWA”).....passim

oe tee. © Rae Ce I cei ee ee aa passim

Re A ee D+. alee ewe ay ame Te kee ee PPM 9

Se Ri Aaa: RED vcssecetessnudnicsnieitaticiiicweniiccsieoeiuck 3, 8

ee Roeder Le I i coi iiccthavccainesaeidecks Sides trncatecieaa passim

AO Ri Se Re icstsipiccnithesctikicnticoransasicaoa: 10

ae AFR as As digtinrecssndecccilacioosn, tint Depp proat Eni aati eS 8

SO Rats WPL petectcccoe cede vicesccinbautndgsiciaiantincalenmnvenaiies 8

ARs SD ROR crass sg crhntcisncdets sciacuisepsicisein gn tee

Se aha BRIO bs dae plctcbeceodehccs di haessincacioaaied aaah 13

Se Seas RAI BF oie senses densa, AEE ARE 9 Pot 14

FOE MA CR Bch. cca scciayaceccksuccbiccassosanwoakseiudesbceominee: 14

RULE

premarin Cart: TE ns asics discerns ociocse ee 1

OTHER AUTHORITIES

The Merriam-Webster Dictionary (1977).............c00ccc00000. 4,5

Webster’s New Collegiate Dictionary (1981)............. Re 4

—

iv

TABLE OF AUTHORITIES — Continued

U.S. General Accounting Office, Federal Land

Management: Information on Efforts to Inventory

Abandoned Hard Rock Mines, Rep. No. GAO/

Page

PARP OE GEO O esecesakivsee stecucnadecssiabanpatcsansnviys 11, 12, 13

U.S. General Accounting Office, Federal Land

Management: An Assessment of Hardrock Mining

Damage, Rep. No. GAO/RCED-88-123-BR (1988)...

U.S. General Accounting Office, Superfund: Pro-

gress Made by EPA and Other Federal Agencies to

Resolve Program Management Issues, Rep. No.

CEALVIRCED- SP EEE (BOG) ooo ciiecccconsoscarscnsensiooianss tines

National Research Council, Commission on Geo-

sciences, Environment and Resources, Hardrock

Mining on Federal Lands 1 (1999)...........cceeeeeeeee

sipde 10

1

IDENTITY AND INTEREST OF AMICI CURIAE!

Northwest Mining Association (“NWMA”) is a non-

profit, non-partisan, trade association organized under the

laws of the State of Washington, with its principal place of

business in Spokane, Washington. NWMA was founded in

1895 by miners from the States of Idaho, Montana, and

Washington, as well as several Canadian provinces.

NWMaA currently has 1,300 members residing in 31 States

and 6 Canadian provinces. NWMA’s purposes are: (1) to

support and advance mineral resource and related indus-

tries; (2) to represent and inform members on technical,

legislative, and regulatory issues; (3) to provide for the

dissemination of educational material related to mining;

and (4) to foster and promote economic opportunity and

environmentally responsible mining.

Colorado Mining Association (“CMA”) is the oldest

mining trade association in the United States. Founded

in 1876 and incorporated in 1897, CMA promotes the

mining industry’s interests before governmental agencies

_ and the general public. CMA membership includes more

than 600 persons and organizations engaged in mineral

exploration and development, as well as those who

provide services to the mining ir dustry, including equip-

ment manufacturers, bankers, law, consulting, engineer-

ing and accounting firms. CMA’s interest in this case is in

’ Petitioner has consented to the filing of this brief. Respondent did

not consent, and a motion for permission to file this amici curiae brief

precedes this brief.

In compliance with Supreme Court Rule 37(6), amici curiae

represent that no counsel for any party authored this brief, in whole or

in part, and that no person or entity, other than amici curiae and their

members, made a monetary contribution for the preparation or

submission of this brief.

2

defining the appropriate limits of Clean Water Act

(“CWA”), 33 U.S.C. §§ 1251-1387, liability for mineral

producers by ensuring that CWA liability is defined appro-

priately and consistently in Sections 402 and 404 of the

CWA for the purpose of developing future mining projects.

Mountain States Legal Foundation (“MSLF”) is a non-

profit, public interest legal foundation organized under the

laws of the State of Colorado. MSLF is dedicated to bring-

ing before the courts those issues vital to the defense and

preservation of private property rights, individual liber-

ties, limited and ethical government, and the free enter-

prise system. Since its establishment in 1977, MSLF has

been active in litigation aimed at ensuring the proper

interpretation and application of the CWA. E.g., National

Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir.

1982) (amicus curiae); Riverside Irrigation District v.

Andrews, 758 F.2d 508 (10th Cir. 1985) (represented

intervenor); Laguna Gatuna, Inc. v. United States, 50 Fed.

Cl. 336 (2001) (represented plaintiff); Rapanos v. United

States, Nos. 04-1034 and 04-1384 (2006) (amicus curiae).

In addition, MSLF has over 5,000 members throughout

the United States. Hundreds of these members own

property in Colorado, Wyoming, Utah, New Mexico,

Oklahoma, and Kansas.

The Tenth Circuit’s decision may have serious conse-

quences for members of these organizations. Indeed, if the

Tenth Circuit’s interpretation of the CWA is allowed to

stand, all persons owning property within its jurisdiction,

including members of NWMA, CMA, and MSLF, may be

subject to liability under the CWA for doing nothing more

than owning a piece of property. Because amici seek to

ensure that the CWA is interpreted and administered in

accordance with Congress’s intent, they respectfully

3

submit this Amici Curiae Brief in support of Petitioner,

El] Paso Properties, Inc., urging the Court to grant the

Petition for Writ of Certiorari.

,

v

SUMMARY OF ARGUMENT

The U.S. Supreme Court should grant the Petition for

Writ of Certiorari for the following reasons. First, the

Tenth Circuit violated this Court’s well-established princi-

ples of statutory construction. Second, the Tenth Circuit’s

decision creates new liability for the federal government

under the Clean Water Act.

¢

REASONS FOR GRANTING THE PETITION

I. THE TENTH CIRCUIT FAILED TO FOLLOW

ESTABLISHED SUPREME COURT PRECE-

DENT GOVERNING STATUTORY INTERPRE-

TATION.

A. The Tenth Circuit Failed To Interpret The

Clean Water Act According To The Legis-

lative Purpose As Expressed By The Ordi-

nary Meaning Of The Words Used.

Section 402 of the Clean Water Act (“CWA”), 33 U.S.C.

_ §§ 1251-1387, establisnes a national pollutant discharge

system (“NPDES”) and directs the Environmental Protec-

tion Agency (“EPA”) to issue NPDES permits for the

“discharge of any pollutant.” 33 U.S.C. § 1342(a)(1).

Section 301 of the CWA makes it unlawful for “any person”

to discharge a pollutant without a Section 402 permit. 33

U.S.C. § 1311(a) (“Except as in compliance with [Section

402], the discharge of any pollutant by any person shall be

unlawful.”) (emphasis added). Congress expressly defined

4

“discharge of a pollutant” as “any addition of any pollutant

to navigable waters from any point source.” 33 U.S.C.

§ 1362(12) (emphasis added). Thus, pursuant to Congress’s

intent, the permit requirement in Section 402 is triggered

only when: (1) a person; (2) adds; (3) a pollutant; (4) to

navigable waters; (5) from a point source.

In interpreting a statute, a court must give effect to

the intent of Congress. Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564, 570 (1982). The first place to look for that

intent is the language of the siatute itself. Lewis v. U.S.,

445 U.S. 55, 60 (1980). When looking at the language of

the statute, a court must assume that the “legislative

purpose is expressed by the ordinary meaning of the words

used.” Richards v. United States, 369 U.S. 1, 9 (1962)

(emphasis added); Perrin v. United States, 444 U.S. 37, 42

(1979) (“unless otherwise defined, words will be inter-

preted as taking their ordinary, contemporary, common

meaning”). Applying these well-established principles of

statutory construction to the statute in this case reveals

that when Congress passed the CWA it intended to regu-

late only “active conduct” by a “person” that results in a

“discharge of a pollutant.”

The “ordinary meaning” of the word “addition” is “the

act or process of adding.” The Merriam-Webster Dictionary

(1977) (emphasis added); Webster’s New Collegiate Dic-

tionary (1981). Thus, the “ordinary meaning” of the word

“addition” indicates that some form of “active conduct” is

required to trigger the permit requirement of Section 402.

It is undisputed that, in this case, Petitioner did not

construct the mine or point source at issue. See Peti-

tioner’s Brief at 3. Petitioner has never conducted mining

operations on this property and has never held a mining or

~