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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005

## Text

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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

~

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0747%3A2. Public record. Not legal advice.