Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

557 U.S. 261 (2009)

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Nature of the Case

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Facts

D sought to open a gold mine in Alaska. The mine has been closed since 1928, but D seeks to make it profitable once more by using a technique known as 'froth flotation.' D will churn the mine's crushed rock in tanks of frothing water. Chemicals in the water will cause gold-bearing minerals to float to the surface, where they will be skimmed off. At issue is D's plan to dispose of the mixture of crushed rock and water left behind. This 'slurry' is crushed rock, resembling wet sand, which is called tailings. The rest is water. D proposed using Lower Slate Lake to dump the slurry. The lake is 51 feet deep at its maximum. The lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Dumping will raise the lakebed 50 feet--to what is now the lake's surface--and will increase the lake's area from 23 to about 60 acres. The transformed lake will be isolated from other surface water. Creeks and stormwater runoff will detour around it. Crushed rock is a 'pollutant.' Section 404(a) of the CWA, empowers the Corps to authorize the discharge of 'dredged or fill material.' The Corps issued D a permit to pump the slurry into Lower Slate Lake. The EPA had the statutory authority to veto the Corps permit and prohibit the discharge. By declining to exercise its veto, the EPA in effect deferred to the judgment of the Corps on this point. Council (P) brought suit against the Corps of Engineers and various of its officials. P claimed the permit was issued by the wrong agency; it should have been a §402 permit from the EPA. P also contends that the discharge itself is unlawful because it will violate the EPA new source performance standard for froth-flotation gold mines. D and the State of Alaska intervened as defendants. Both sides moved for summary judgment. The District Court granted summary judgment in favor of Ds. P appealed. The Ninth Circuit reversed in that the EPA's new source performance standard 'prohibits discharges from froth-flotation mills.' Ds appealed.