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SCOTUSwiki Preview: Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, and Alaska v. Southeast Alaska Conservation Council

Below, Max Schwartz previews next term’s Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, and Alaska v. Southeast Alaska Conservation Council. As always, the Coeur SCOTUSwiki page, available here, will continue to be updated throughout the upcoming term.

In these cases, consolidated for argument, the Court wades into the permitting process for discharging mining pollutants under the Clean Water Act. The question before the Court is whether stricter permitting regulations actually control this permitting process, even when the process facially conforms to the definitions of another permitting authority.


The Clean Water Act (33 U.S.C. § 1251 et seq.) regulates the discharge of pollutants into the “navigable waters” of the United States. Under Section 402 of the Act, permits for the discharge of pollutants are primarily handled by the Environmental Protection Agency (EPA), which – pursuant to the National Pollution Discharge Elimination System (NPDES) – is charged with promulgating standards that limit pollution discharge to the greatest extent achievable, “including, where practicable, a standard permitting no discharge of pollutants.” Meanwhile, under Section 404 of the Act, the Army Corps of Engineers retains authority to regulate the “discharge of dredged or fill material” into waterways or wetlands. While the Act does not define “dredged or fill material,” EPA and the Corps, after years of using differing (and somewhat conflicting) definitions, eventually settled on a uniform definition: fill material was any material, excluding garbage, having the effect of “replacing any portion of a water of the United States with dry land; or changing the bottom elevation of any portion of a water of the United States.”

For approximately twenty years, petitioner Coeur Alaska has sought to extract gold from the Kensington Mine in southeast Alaska using a process known as “froth flotation mining,” which removes rock from the mine, grinds it into fine gravel, and pumps it (along with various chemical agents) into large water tanks. The addition of these chemical agents causes bubbles to form around the gold-bearing ore and float to the top of the tank, where the ore is skimmed off. Although some of the remaining material – known as tailings – can be redeposited in the mine itself, a significant amount (as much as 4.5 million tons in this instance) must be discarded elsewhere. Originally, Coeur sought a permit to create dryland storage for the tailings. But after the price of gold dropped, Coeur instead proposed to dam nearby Lower Slate Lake and deposit the tailings (in the form of a semi-liquid “slurry”) in the lake, thereby raising the bottom of the lake by approximately fifty feet and causing the lake’s surface area to triple in size. Coeur applied for, and received, a permit from the Corps under Section 404 of the Act.

Three conservation organizations, Southeast Alaska Conservation Council (SEACC), the Sierra Club and Lynn Canal Conservation, appealed the Corps’ decision. They contended that Coeur’s actions were governed by the NPDES program set up under Section 402 of the Act, and in particular by a 1982 EPA regulation prohibiting the “discharge of process wastewater to navigable waters from mills that use the froth-flotation process.”

Coeur and the state of Alaska intervened on behalf of the Corps and filed a motion for summary judgment, which the district court granted. SEACC appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed in a unanimous decision. Although the panel conceded that Coeur’s operation “facially meets the Corps’ current definition of ‘fill material,'” it examined the plain language of the CWA and deemed the 1982 no-discharge standard controlling. Specifically, the panel relied on passages in Section 301 of the Act, which prohibits any discharge that does not comply with a series of other sections in the Act. In the panel’s view, the wording of that section (and in particular the use of the conjunction “and” rather than “or”) indicated that any discharge of pollutants-even those that facially qualify for permitting under Section 404-must also comply with various limitations and discharge standards created under other sections of the Act. In so holding, the panel rejected Coeur’s argument that because Section 402 specifically provides that discharges governed by that provision are subject to the other standards, while Section 404 does not, Congress had created an implied exemption for permits sought under Section 404. Instead, the panel found a much simpler explanation for the disparity between the two sections: the existence of a discharge standard or limitation completely precludes the use of Section 404 permits, and the only reason why Congress did not explicitly so state in Section 404 is because it intended any such discharge to be automatically regulated under Section 402.

The panel also looked to the historical regulation of froth-flotation mining and the Section 404 permit. As mentioned above, the two permitting agencies-EPA and the Corps-had long held conflicting definitions of “fill material.” Moreover, EPA, under Section 402, had promulgated a series of standards for various pollutants with large concentrations of suspended solids, which could qualify as “fill material” under Section 404, including wastewater discharge from froth-flotation mining (the “no discharge” standard mentioned above). When the two agencies promulgated a joint regulation regarding fill material in 2002, the panel noted, both the regulation and their joint response to public comments consistently emphasized the continuing applicability of previous discharge standards, including to those materials which would now fit the definition of fill material.

Petitions for Certiorari

After the Ninth Circuit denied rehearing en banc, both Coeur and the state of Alaska filed petitions arguing that certiorari was warranted for three reasons. First, the Ninth Circuit’s ruling “contravened the text and structure of the [CWA]” and conflicted with the Supreme Court’s decision in Rapanos v. United States (2006) by conflating the Section 402 and Section 404 permitting programs. Second, by refusing to defer to the Corps of Engineers’ own definition of fill material, the Ninth Circuit had disregarded the Supreme Court’s historical interpretation of the Administrative Procedure Act, as well as rulings by the Fourth Circuit in another mining case, Kentuckians v. Rivenbaugh (2003). Finally, petitioners asserted that their claims were of “exceptional national importance” because the Ninth Circuit’s decision had so “radically alter[ed] the longstanding structure of the Clean Water Act’s discharge permit programs,” that it would cause significant harm to the economies of western states and the nation itself.

Opposing certiorari, SEACC disputed petitioners’ argument that the Ninth Circuit’s decision conflicts with Rapanos and Kentuckians. Kentuckians is distinguishable, they contended, because the pollutant at issue in that case-overburden, the uprocessed rock which covers a seam of more valuable rock-had not previously been regulated under the NPDES program, unlike the tailings in the current case. Rapanos is similarly distinguishable because the legal questions in that case dealt with the exclusion of certain water bodies from the “waters of the United States.” In this case, by contrast, there is no dispute that the water in question is part of the “waters of the United States”; the mere fact that Rapanos also involved the dumping of fill material did not, by itself create a conflict.

Interestingly, the Solicitor General, on behalf of the Corps of Engineers, also argued against granting cert., even though the Corps was on the losing side of the lower court’s decision. While the government “agree[d] that the court of appeals erred[,]” it saw no reason for the Supreme Court to review the issue at the current time: no circuit split exists on this question, and – at least in the government’s view – although the decision will have “a significant impact on a number of mines, it is unclear how important the court’s decision will prove to be.” After recommending that cert. be denied, however, the government turned to the merits of the case and agreed with the petitioners that the Ninth Circuit’s decision incorrectly interpreted the CWA and collapsed the distinction between the Sections 402 and 404 permitting programs.

The Supreme Court granted cert. in both cases on June 27 and consolidated them for one hour of oral argument.


Merits briefs are due on September 17 for petitioners and November 7 for respondents.