in the supreme court of the state of oregon “previously nonexistent entrained clouds of fine...
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IN THE SUPREME COURT OF
THE STATE OF OREGON
EASTERN OREGON MINING ASSOCIATION; GUY MICHAEL;
and CHARLES CHASE,
Petitioners-Appellants, Petitioners on Review,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY; DICK PEDERSON, in
his capacity as Director of the Department of Environmental Quality and NEIL
MULLANE, in his capacity as Administrator of the Water Quality Division of
the Department of Environmental Quality,
Respondents-Respondents, Respondents on Review.
__________________________________________________________
WALDO MINING DISTRICT, an unincorporated association; THOMAS A.
KITCHAR; and DONALD R. YOUNG,
Petitioners-Appellants, Petitioners on Review, v.
DEPARTMENT OF ENVIRONMENTAL QUALITY; DICK PEDERSON, in
his capacity as Director of the Department of Environmental Quality and NEIL
MULLANE, in his capacity as Administrator of the Water Quality Division of
the Department of Environmental Quality,
Respondents-Respondents, Respondents on Review.
Court of Appeals A156161
S065097
___________________________________________________________
REPLY BRIEF ON THE MERITS
OF PETITIONERS ON REVIEW
___________________________________________________________
Continued…
___________________________________________________________
On review of the decision of the Court of Appeals
on appeal from a judgment of the Circuit Court for Marion County
Honorable COURTLAND GEYER, Judge
Opinion filed June 1, 2017 (Per Curiam)
Before Judges REX ARMSTRONG (presiding), JAMES EGAN
and SCOTT SHORR
___________________________________________________________
ELLEN F. ROSENBLUM, #753239
Attorney General
BENJAMIN GUTMAN, #160599
Solicitor General
MICHAEL CASPER, #062000
Senior Assistant Attorney General
1162 Court Street NE
Salem, OR 97301-4096
(503) 378-4402
Attorneys for Respondents on Review
JAMES L. BUCHAL, #921618
Murphy & Buchal LLP
3425 SE Yamhill St., Ste. 100
Portland, OR 97214
(503) 227-1011
Attorney for Petitioners on Review
April 5, 2018
iii
TABLE OF CONTENTS
Summary of Argument ....................................................................................1
Response to the Statement of Facts .................................................................1
Argument .........................................................................................................3
I. RESPONDENTS MAY NOT REGULATE SUCTION DREDGE
MINING UNDER § 402 OF THE CWA ..............................................3
A. The Statute and Rules Unambiguously Confirm that Suction
Dredges Discharge “Dredged Material” and “Fill Material” ......3
B. Respondents Cite Obsolete Regulatory Material ........................6
C. The Permits Support Petitioners, Not Respondents ....................8
1. The Corps permits show the repeated exercise of
Corps jurisdiction ..............................................................8
2. The existing EPA § 402 permits represent error this
Court should not follow ................................................. 11
D. Congress and the U.S. Supreme Court Foreclose any “Two
Discharge” Theory ................................................................... 12
E. Respondents Appeal to the Act’s Purposes in Vain ................ 15
F. Even If Suction Dredges “Add a Pollutant,” They Are
Still To Be Regulated Under § 404 .......................................... 15
Conclusion .................................................................................................... 17
CERTIFICATE OF COMPLIANCE ............................................................ 18
CERTIFICATE OF FILING AND SERVICE ............................................. 19
iv
TABLE OF AUTHORITIES
Cases
Bohmker v. State of Oregon,
No. 16-35262 (9th Cir., argued March 8, 2018) ...................................9
Bordon Ranch Partnership v. U.S. Army Corps of Engineers,
261 F.3d 810 (9th Cir. 2001) .............................................................. 17
Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York,
273 F.3d 481 (2d Cir. 2001) ......................................................... 13, 16
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council,
557 U.S. 261 (2009) ........................................................... 1, 11, 14, 15
L.A. County Flood Control Dist. v. NRDC,
568 U.S. 78 (2013) ............................................................................. 16
NEDC v. EQC,
232 Or App 619 (2009),
rev allowed, 349 Or 56,
rev dismissed, 349 Or 246 (2010) .................................................... 7, 9
Rybachek v. United States,
904 F.2d 1276 (9th Cir. 1990) ........................................................ 7, 17
United States v. Mead Corp.,
533 U.S. 218 (2001) ........................................................................... 12
Federal Statutes
33 U.S.C. § 1311(a) ...................................................................................... 16
33 U.S.C. § 1344(e) .........................................................................................8
33 U.S.C. § 1362(12) .................................................................................... 16
33 U.S.C. § 1362(12)(A) .............................................................................. 13
33 U.S.C. § 1362(14) .................................................................................... 13
v
Federal Regulations
33 C.F.R. § 323.2(d) ..................................................................................... 10
33 C.F.R. § 323.2(d)(2)(i) ................................................................................5
33 C.F.R. § 323.2(e)(1) ....................................................................................6
33 C.F.R.§ 323.2(e)(2) .....................................................................................7
33 C.F.R.§ 323.2(f) ..........................................................................................7
40 C.F.R. § 232.2 .............................................................................................4
Oregon Statutes
ORS 183.484 ....................................................................................................2
Other Authorities
ORAP 5.45 .......................................................................................................4
40 Fed. Reg. 31,319 (July 25, 1975) ................................................................5
51 Fed. Reg. 8,871 (Mar. 14, 1986) ............................................................ 6, 7
53 Fed. Reg. 18,764 (May 24, 1988) ...............................................................7
64 Fed. Reg. 25,120 (May 10, 1999) ...............................................................8
66 Fed. Reg. 4,550 (Jan. 17, 2001) ..................................................................5
67 Fed. Reg. 31,135 (May 9, 2002) .................................................................4
73 Fed. Reg. 79,641 (Dec. 30, 2008) ...............................................................6
82 Fed. Reg. 1,860 (Jan. 6, 2017) ............................................................. 9, 10
1
Summary of Argument
This case does not turn on the “addition of a pollutant” argument. It
turns on the plain language of the Clean Water Act (CWA), current federal
regulations and recent court decisions. These authorities confirm that small,
floating suction dredges discharge “dredged” and “fill” materials regulated
exclusively under § 404 of the Clean Water Act. The outdated Federal Register
materials cited by Respondent represent superseded constructions of the CWA.
The Corps § 404 permits confirm that the Corps has jurisdiction, and
because “the Corps has authority to issue a permit for the discharge under
§ 404, then EPA lacks authority to do so under § 402”. Coeur Alaska, Inc. v.
Southeast Alaska Conservation Council, 557 U.S. 261 (2009). As for EPA,
courts do not defer to agency action inconsistent with controlling legal
authority. Nor is there any consistent pattern of administrative interpretation,
and no other agency attempts, contrary to Coeur Alaska and the design of the
Act, to require duplicative § 402 and § 404 permitting. CWA policies can be
fully achieved through application of § 404, as supplemented by EPA review
and § 401 certification by the State of Oregon.
Response to the Statement of Facts
This case generated an extensive factual record documenting the utter
absence of any appreciable adverse impact on the environment, with
Respondents’ most knowledgeable witnesses unable to articulate any actual
2
harm. Respondents ignore the record in favor of law student opinions. (Resp.
Br. at 3-4.) This violates the record-based review required by ORS 183.484,
and Petitioners ask this Court to ignore the outlandish claims presented. While
“dredged spoil” is a “pollutant” within the meaning of the Act, it borders on
delusional to suggest that small disturbances of materials at the bottom of
Oregon wilderness streams from suction dredging “impact human health”.
(Resp. Br. 4.)
Respondents’ brief is also riddled with factual assertions about suction
dredge mining in an attempt to create the impression that they “create turbidity
plumes . . . that are functionally different than mere dredge material . . .”.
(Resp. Br. 49.) Respondents’ own authority confirms that the dredging
authorized by the Corps
“. . . will temporarily increase water turbidity. Particulates will be
resuspended in the water column during dredging activities. The
turbidity plume will normally be limited to the immediate vicinity of the
disturbance and should dissipate shortly after each phase of the dredging
activity.” (Decision Document, NWP 19, at 51 (RJN71).1)
These facts are true of suction dredging and all dredging. Any dredging
“changes the composition of the material” in the sense Respondents claim and
creates “previously nonexistent entrained clouds of fine sediment”. (Resp.
1 Because Respondents riddled their briefs with misleading references to federal
regulatory materials cited with defective hyperlinks, Petitioners file herewith a
separate Request for Judicial Notice with an index of such materials,
consecutively paginated (and cited) as RJN1-71.
3
Br. 32.). The notion that small-scale suction dredging for gold poses “unique
environmental hazards” is utterly unsupported by the record. (Id.) The only
unique thing about suction dredging is its presence in remote areas, which
presence inflames opposition without regard for the rule of law.
Argument
I. RESPONDENTS MAY NOT REGULATE SUCTION DREDGE
MINING UNDER § 402 OF THE CWA.
A. The Statute and Rules Unambiguously Confirm that Suction
Dredges Discharge “Dredged Material” and “Fill Material”.
Respondents admit that permitting for “dredged or fill material” is
“within the purview of the Army Corps of Engineers under § 404”. (Resp. Br.
25.) They admit that under federal regulations (which they previously ignored),
“the ‘discharge of dredge[d] material’ refers to any ‘addition’ or ‘redeposit’ of
‘material . . . dredged’ from waters of the United States. (Resp. Br. 27.) They
admit that “much, and perhaps even all, of the discharge from suction dredge
mining could reasonably be construed to constitute dredge material within the
meaning of th[e federal] regulations”. (Resp. Br. 32; emphasis deleted.) And
they admit that “the two permitting schemes are mutually exclusive”. (Id.)
These concessions ought to end the case, for no one can reasonably
dispute that what comes off the end of a suction dredge is all “dredged” and
“fill” material. “Fill” means “material placed in the waters of the United States
where the material has the effect of . . . [c]hanging the bottom elevation of any
4
portion of a water of the United States”. 40 C.F.R. § 232.2. In raising the
baseless specter of “smother[ing] breeding areas” (Resp. Br. 33), Respondents
are conceding that these are fill materials, under Corps jurisdiction.
Significantly, “discharge of fill material” includes “placement of
overburden, slurry or tailings or similar mining-related materials”. 40 C.F.R.
§ 232.2; see also 67 Fed. Reg. 31,135 (May 9, 2002) (“any mining-related
material that has the effect of fill when discharged will be regulated as ‘fill
material’”) (RJN40). “Slurry” and “tailings” have typically undergone
“processing” far in excess of what suction dredges do. 2
Respondents nonetheless argue that § 402 jurisdiction covers “a
discharge involving something other than the mere addition or redeposit of
dredged material”. (Resp. Br. 27.) This “something other” is simply the fact
that dredged materials are run immediately through a sluice with riffles in the
bottom to collect the gold before the material falls back into the water. That
materials flow over a sluice, rather than in and out of a bucket dredge, or off a
suction dredge without a sluice, is of no regulatory significance.
More importantly, the federal regulations expressly considered and
covered dredging processes involving “something more”. The regulations
2 ORAP 5.45 does not require Petitioners to raise a different point of error for
each bit of regulatory material they invoke concerning which CWA section
applies. (Cf. Resp. Br. 43 n.17.)
5
specifically exclude from “dredged or fill” material “[d]ischarges of pollutants
into waters of the United States resulting from the onshore subsequent
processing of dredged material,” which are subject to § 402. 33 C.F.R.
§ 323.2(d)(2)(i) (emphasis added). But suction dredging does not involve the
“onshore subsequent processing of dredged material”—they are floating on and
discharging into the water, not sitting on land. As the agencies explained when
adopting this provision, it was intended to cover large sand plants and similar
activities: “Discharges of materials from land based commercial washing
operations are regulated under § 402 of the FWPCA”. 40 Fed. Reg. 31,319, at
31,321 (July 25, 1975) (emphasis added) (RJN2).
In-stream mining is regarded differently, particularly suction dredging.
In its 2001 revisions of the definitions, the agencies repeatedly stated that:
“The Corps and EPA regard the use of mechanized earth-moving
equipment to conduct landclearing, ditching, channelization, in-stream
mining or other earth-moving activity in waters of the United States as
resulting in a discharge of dredged material unless project-specific
evidence shows that the activity results in only incidental fallback.”
66 Fed. Reg. 4,550, passim (January 17, 2001) (RJN13-38). The Corps and
EPA specifically and repeatedly discussed suction dredge mining, explaining
that such mining would ordinarily be regarded as “a discharge of dredged
material,” but that
“. . . some suction dredging operations can be conducted in such a
manner that if the excavating material is pumped to an upland location or
other container outside waters of U.S. and the mechanized removal
6
activity takes place without re-suspending and relocating sediment
downstream, then such operations generally would not be regulated.”
Id. at 4,554 (RJN17); see also id. at 4,562 (RJN25). Conversely, if the
materials are discharged off the back of the dredge and re-suspend and relocate
sediment downstream, they were to be regulated under § 404.3
B. Respondents Cite Obsolete Regulatory Material.
To avoid the plain and controlling language of the regulations and their
history, Respondents reach back to earlier rule-development materials, but these
do not have the force of law, and were later superseded.
The first item cited is a 1986 MOU, premised on a superseded definition
of “fill material” which sought to regulate as fill only “materials discharged for
the primary purpose of replacing an aquatic area or of changing the bottom
elevation of a waterbody”. 51 Fed. Reg. 8,871, 8,871 (Mar. 14, 1986) (RJN4;
emphasis added). That regulation has now been amended to focus on the
“effect of” the material, not the purpose of putting it in the water. 33 C.F.R.
§ 323.2(e)(1). It now specifically includes “overburden from mining,”
including the stream sediments that overlay underwater gold deposits excavated
by suction dredge miners. Id. § 323.2(e)(2); see also id. § 323.2(f) (“placement
3 The “instream mining” language was also included in a now-superseded
“Tulloch II” rule, withdrawn not because of any dispute concerning in-stream
mining, but because of its treatment of “incidental fallback”. See 73 Fed. Reg.
79641, 79643 (Dec. 30, 2008) (RJN43). Petitioners do regard their discharges
as “incidental” in the sense of being too small to merit CWA regulation.
7
of overburden, slurry, or tailings or similar mining-related materials”).
The MOU was expressly intended as an “interim arrangement” pending
further regulation that later superseded it. See 51 Fed. Reg. at 8,871 (RJN4).
The language quoted in NEDC v. EQC, 232 Or. App. 619, 637 (2009), rev.
dismissed, 349 Or. 246 (2010) (see Resp. Br. 28), severely cropped the quote
and mangled the meaning. The entire context of the MOU is regulating added
wastes from onshore plants, not floating in-stream mining operations.
The “processing” theory of Corps Regulatory Guidance Letter No. 88-10
(Resp. Br. 28 (citing NEDC, 232 Or. App. at 637); RJN51)) is also obsolete. It
expired December 31, 1990 (RJN51), and a subsequent Letter warned that
Letter No. 88-10 was “considered inappropriate for program execution”
(RJN53).4
Respondents also cite a 1999 modification of the definition of “discharge
of dredged material” referencing Rybachek v. United States, 904 F.2d 1276 (9th
Cir. 1990), theorizing that the miners may cause an “addition of a pollutant”.
As discussed infra Point I(F), this position is outdated, but need not be resolved
to rule in favor of Petitioners. The case is cited in the context of determining
4 Respondents also claim that EPA’s Final Effluent Limitation Guidelines for
Gold Placer Mining express an intent to regulate under § 402 (Resp. Br. 28
n.11), but the dredge mining involved does not consist of suction dredging at
all, but much larger scale dredging (25,000 to 50,000 cubic yards/year) with
onshore processing generating wastewater. See 53 Fed. Reg. 18,764, 18,777
(May 24, 1988) (RJN8).
8
whether CWA jurisdiction is present at all, not in trying to distinguish between
§ 402 and § 404 jurisdiction. 64 Fed. Reg. 25,120, 25,121 (May 10, 1999)
(RJN10).
C. The Permits Support Petitioners, Not Respondents.
Lacking statute and rule support, Respondents invoke the whims of
permit writers. These materials confirm that the Corps has jurisdiction, making
the challenged permit (and all the non-Corps CWA permits) unlawful.
1. The Corps permits show the repeated exercise of Corps
jurisdiction.
The Corps has repeatedly exercised its CWA § 404(e) authority over
suction dredging to “issue general permits on a State, regional or nationwide
basis for any category of activities involving discharges of dredged or fill
material” because it “determine[d] that the activities in such category are
similar in nature, will cause only minimal adverse environmental effect when
performed separately, and will have only minimal cumulative adverse effect on
the environment”. 33 U.S.C. § 1344(e).
While Respondents note that “California has historically required suction
dredge miners to meet [state law] permitting requirements” (Resp. Br. 6 n.3),
they omit to disclose that until recently, suction dredge mining in California
was expressly covered by a § 404 regional permit issued by the Corps of
9
Engineers, not a § 402 permit. (RJN56-61.)5 More frequently, the Corps
recognized that suction dredging’s effects are too small to be of regulatory
significance. (Resp. Br. 45 (citing NEDC, 232 Or. App. at 641-42).) Again,
Respondents’ staff knew that the Corps had jurisdiction over suction dredging
in Oregon. (See TCF, 8/26/13, Buchal Decl. Ex. 10, at 69-71.)
The Corps did not find that “dredge spoils (apart from the turbid
wastewater) have a de minimis impact and do not require authorization under
§ 404”. (Resp. Br. 46.) The Corps found, under § 404(e), that the “activities
involving discharges of dredged or fill material” (including suction dredging)
have only “minimal adverse environmental effect”.
There is no dispute that even now, Nationwide Permit No. 44 authorizes
“discharges of dredged or fill material into non-tidal waters of the United States
for mining activities” provided, inter alia, that the discharge “must not cause
the loss of more than 300 lineal feet of stream bed . . .”. 82 Fed. Reg. 1,860,
1,994-95 (Jan. 6, 2017) (RJN49-50). That notice to the Corps is now required
merely confirms Corps jurisdiction.
Respondents point out that this permit is now interpreted only to
authorize the discharge of the dredged and fill materials into the waters, not the
5 While California upheld its own ban, a constitutional challenge to Oregon’s
partial ban on suction dredging remains sub judice before the Ninth Circuit.
Bohmker v. State of Oregon, No. 16-35262 (9th Cir., argued March 8, 2018).
10
removal of the material itself (or instream mining). Again, the question raised
by this appeal is who has jurisdiction, and NWP 44 represents an express Corps
exercise of jurisdiction, consistent with all the regulatory authority cited above,
authorizing the discharge of even “transformed” materials left over after
mining.
As for NWP 19, it continues to generally authorize minor dredging of
“no more than 25 cubic yards,” but since this litigation began now states that
“dredged material must be deposited and retained in an area that has no waters
of the United States unless otherwise specifically approved by the district
engineer”. 82 Fed. Reg. at 1988 (RJN48). Nothing in this permit forbids its use
by suction dredgers; the Decision Document Respondents cite says that
“[a]ctivities authorized by this NWP will provide a variety of services that are
valued by society” (RJN70).
The Portland District material Respondents cite again confirms that
discharges into the waters of the United States associated with dredging are
under Corps jurisdiction; it reports that “return water” from dredged materials is
“defined as a discharge of dredged material by 33 CFR Part 323.2(d) and
requires separate authorization from the District Engineer (e.g., by NWP 16)”.
(RJN65.) Under Respondents’ theory, this “return water” would be subject to
EPA jurisdiction.
In short, suction dredging can be conducted within the parameters of
11
NWP 19, with disposal authority provided by NWP 44, upon notice to the
Corps. Even if suction dredging fell between the cracks of current Corps
permits, because “the Corps has authority to issue a permit for a discharge
under § 404 of the CWA, then the EPA lacks authority to do so under § 402 of
the CWA” (Coeur Alaska, 557 U.S. at 274).
2. The existing EPA § 402 permits represent error this
Court should not follow.
Quoting a litigation brief, Respondents explain that EPA determined that
“the nature of small-scale suction dredging lends itself to setting effluent
limitations via the NPDES permit process based on the permit writer’s best
professional judgment” (Resp. Br. 30 n.12). The brief contains no recognition
of the question of § 404 jurisdiction, or that effluent limitations can be imposed
by § 401 certification where appropriate. The policy goal of imposing effluent
limitations thus need not involve § 402 at all and certainly provides no basis for
invading § 404 jurisdiction.
Respondents also cite an EPA “Fact Sheet” that states “the primary
pollutant of concern in the discharges from a suction dredge is suspended
solids” (Resp. Br. 16-17). The Fact Sheet also does not report any agency
consideration of the §§ 402/404 issue. To claim that the plural term
“discharges” in this Fact Sheet vindicates Respondents’ “two discharge” theory
(Resp. Br. 47) is far-fetched; “discharges from suction dredges” means multiple
12
discharges from multiple dredges.
None of the regulatory materials provided by Respondents show that “the
permit writer’s best professional judgment” ever even considered the issue
presented by this Petition: whether the CWA authorizes EPA (or a State) to
seize jurisdiction over some portion of the discharge of dredged or fill
materials. The permits are “beyond the Chevron pale”. United States v. Mead
Corp., 533 U.S. 218, 234 (2001).
D. Congress and the U.S. Supreme Court Foreclose any “Two
Discharge” Theory.
In framing the issue as “whether turbid wastewater from suction dredge
mining is subject to regulation under § 402 of the Clean Water Act” (Resp.
Br. 13), Respondents leap over the question whether it is permissible to take a
single discharge of dredged and fill material and split it into different
components for regulatory purposes.
Respondents ask this Court to uphold the “two discharge” interpretation
(Resp. Br. 36), because only “one ineluctable conclusion” can be drawn from
inconsistent regulatory treatment: either (1) “the EPA and the Corps view the
emissions from suction dredge mining as involving multiple discharges” or (2)
there is “a single discharge none of which is dredge[d] material and all of which
is regulated by 402”. (Resp. Br. 36; but see id. at 45 (“neither agency has ever
said that § 404 is not also implicated by the practice”).)
13
It is certainly not the case that (1) or (2) “must be true”. (Resp. Br. 37.)
The obvious conclusion is that there is a single discharge to be regulated under
§ 404, and the EPA (and thus Respondents) erred by issuing unlawful permits.
Perhaps recognizing that the Court of Appeal’s “two discharge” theory is
unsupportable, Respondents say this Court need not “reach that issue to decide
this case”. (Resp. Br. 37.) But if this Court allows Respondents to insist on
§ 402 permitting, it is adopting the “two discharge” theory, because there is
unquestionably also § 404 jurisdiction which the Corps has exercised.
Respondents invite this Court to defy the Supreme Court on the ground
that nothing in the statutory language forecloses a “two discharge theory”. To
the contrary, Congress focused regulation on a “point source,” a statutorily-
defined term6 inconsistent with multiple discharges. “Discharge of a pollutant”
means “any addition of any pollutant to navigable waters from any point
source”. 33 U.S.C. § 1362(12)(A). Under the CWA, responsibility for the
discharge from a point source is assigned to one agency or the other, but not
both.
Respondents claim that whether a single point source could result in two
different discharges “was simply not at issue” in Coeur Alaska, ignoring its
6 “The term ‘point source’ means any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, . . . or vessel or other
floating craft, from which pollutants are or may be discharged.” 33 U.S.C.
§ 1362(14).
14
holdings about the mutually exclusive nature of the permitting regimes. (Resp.
Br. 42.) There, the discharge of the turbid wastewater slurry into the lake was
alleged to require both § 404 and § 402 permitting, and the Supreme Court
expressly rejected the environmentalists’ attempt to layer the § 402 permitting
onto the same single discharge. While EPA did not dispute that the discharge
was fill material, neither can Respondents seriously dispute that the suction
dredged material meets the definition of dredged and fill material here. That
Coeur Alaska had to get a § 402 permit for a different, subsequent discharge has
no bearing on this case.
Allowing agencies to divide each and every discharge of dredged or fill
materials completely defeats the careful structure established by Congress.
Congress intended to draw a simple and practical distinction between the permit
system for toxic industrial pollutants (§ 402) and dredging or filling operations
(§ 404). Respondents’ position is unreasonable, impractical and contrary to the
statute, rules, and Coeur Alaska.
No federal agency has ever issued a single piece of paper articulating the
idea that one can parse a single discharge from a single point source into
multiple discharges—even since the Court of Appeal’s innovation in this regard
nearly nine years ago. It is a proposition utterly incompatible with the CWA
and sound regulatory policy to avoid any “confusing division of permit
authority” (Coeur Alaska, 557 U.S at 277).
15
E. Respondents Appeal to the Act’s Purposes in Vain.
Respondents argue that the invocation of § 402 jurisdiction is
“reasonable” in light of the “Act’s core purpose of protecting the chemical,
physical and biological integrity of the Nation’s waterways”. (Resp. Br. 11).
But all of the environmental protection goals of the CWA can be vindicated
through § 404 permitting, with EPA vetoes, and Oregon State certification
pursuant to § 401. Oregon can and does exercise authority to certify § 404
permits—frequently certifying turbidity impacts orders of magnitude higher
than all suction dredging in Oregon put together.
Appeals to policy cannot create legal ambiguity in the statute or
regulations. They cannot support the notion that two “mutually exclusive”
CWA permitting regimes must be applied to a single discharge from a single
point source, contrary to the plain language of the statute and Coeur Alaska.
The discharges here are discharges of “dredged and fill material” which are to
be regulated exclusively by the Corps.
F. Even If Suction Dredges “Add a Pollutant,” They Are Still To
Be Regulated Under § 404.
Respondents focus upon whether suction dredges are involved in the
“addition of a pollutant,” presumably because the federal cases were until
recently in conflict. This Court should hold that suction dredges are not
creating “any addition of any pollutant” within the meaning of the CWA
16
(33 U.S.C. § 1362(12)) and therefore do not involve “the discharge of any
pollutant” within the meaning of 33 U.S.C. § 1311(a). But the Court need not
reach this question to rule in favor of Petitioners and set aside the permit,
because whether or not suction dredges “add pollutants” within the meaning of
the Act, they are clearly to be regulated under § 404, not § 402.
Respondents acknowledge that other cases involving the release of water
from dams and flood control channels support Petitioners’ position. They claim
that these cases involved “simply moving a pollutant from one part of the
stream to another”. (Resp. Br. 22.) This is untrue: the whole fight here is
about tiny effects arising as streambed materials move downstream, and
opening the sluiceway on a dam or channel can and obviously does cause
tremendous turbidity as materials are flushed downstream (they may even add
dead fish pollutants, in the case of certain hydroelectric dams).
There is simply no cause here to defy the Supreme Court’s simple
formulation: “If one takes a ladle of soup from a pot, lifts it above the pot, and
pours it back into the pot, one has not ‘added’ soup or anything else to the pot”.
L.A. County Flood Control Dist. v. NRDC, 568 U.S. 78, 82-83 (2013) (quoting
Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F.3d 481,
492 (2d Cir. 2001)). Whether the soup is in a pot or a flowing river is
irrelevant. The material comes up, runs over a riffle, and falls back into the
water body like falling off a spoon. It falls through the water at various speeds,
17
depending upon the size of the particles of matter, but nothing is added. The
tiny particles causing turbidity were already there.
Respondents rely primarily on a single-sentence dictum in Rybachek
which they misrepresent as the holding of the case. There were no suction
dredges in Rybachek, and ill-considered dictum concerning the discharge of
materials “originally com[ing] from the streambed itself” (904 F.2d at 1285) is
neither persuasive nor controlling. Nor did Bordon Ranch Partnership v. U.S.
Army Corps of Engineers, 261 F.3d 810, 815 (9th Cir. 2001), really consider
“the specific question of a redeposit of material that causes entrained solids”
(Resp. Br. 22). It is a wetlands case that sheds little light on the issues here.
Conclusion
This Court should set aside General Permit 700PM and remand the cause
to Respondents for further proceedings in compliance with law.
Dated: April 5, 2018.
MURPHY & BUCHAL LLP
/s/ James L Buchal
James L. Buchal, OSB #921618
3425 SE Yamhill Street, Suite 100
Portland, OR 97214
E-mail: [email protected]
Phone: 503-227-1011
Fax: 503-573-1939
Attorney for Petitioners on Review
18
CERTIFICATE OF COMPLIANCE
WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS
Brief length
I certify that this brief complies with the word-count limitation in ORAP
5.05 and the word count of this brief is 3,998 words.
Type size
I certify that the size of the type in this brief is not smaller than 14 point
for both the text of the brief and footnotes as required by ORAP 5.05.
Dated: April 5, 2018.
MURPHY & BUCHAL LLP
/s/ James L Buchal
JAMES L. BUCHAL, #921618
3425 SE Yamhill St., Ste. 100
Portland, OR 97214
(503) 227-1011
19
CERTIFICATE OF FILING AND SERVICE
I hereby certify that I electronically filed the foregoing REPLY BRIEF
ON THE MERITS OF PETITIONERS ON REVIEW with the State Court
Administrator, Appellate Courts Records Section, 1163 State Street, Salem, OR
97301, on April 5, 2018.
I further certify that the foregoing REPLY BRIEF ON THE MERITS OF
PETITIONERS ON REVIEW will be served electronically on April 5, 2018, on
the following:
Michael Casper, #062000
Assistant Attorney-in-Charge
Civil/Administrative Appeals
Oregon Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 378-4402
Attorneys for Respondents on Review
MURPHY & BUCHAL LLP
/s/ James L Buchal
JAMES L. BUCHAL, #921618
3425 SE Yamhill St., Ste. 100
Portland, OR 97214
(503) 227-1011
Attorney for Petitioners on Review