Case Summary
Issue:
Whether the Corps and the EPA reasonably concluded that the Section 404 program should govern material placed in waters of the United States where the material has the effect of either replacing any portion of a water of the United States with dry land or changing the bottom elevation of any portion of water?
Plaintiff:
Coeur Alaska, Inc.; State of Alaska
Defendant:
Southeast Alaska Conservation Council; Sierra Club; Lynn Canal Conservation; United States Army Corps of Engineers; Colonel Timothy J. Gallagher, District Engineer; Larry J. Reeder, Chief of the Regulatory Branch; Dominic Izzo, Director, Principal Deputy Assistant Secretary of the Army (Civil Works); U.S. Forest Service
Amicus Curiae:
Mountain States Legal Foundation
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Case History
Coeur Alaska, Inc.’s “Kensington Project” is a proposed underground gold mine located 45 miles north of Juneau, at the location of the historic Kensington mine, which operated from 1897 to 1938. The mill is on the eastern side of Lion’s Head Mountain, called the “Jualin” side for the historic Juneau/Alaska/Indiana mine and mill that commenced operations in 1896. The mill and other facilities are on privately owned land patented under the Mining Law. Other parts of the project are on a part of the Tongass National Forest designated for mining “[t]o encourage the prospecting, exploration, development, mining, and processing of locatable minerals….”
On June 17, 2005, the U.S. Army Corps of Engineers issued a permit, under Section 404 of the Clean Water Act (CWA), which allows Coeur Alaska to discharge its mine tailings into Lower Slate Lake. On September 15, 2005, several environmental groups filed a lawsuit in Alaska federal district court claiming that the permitting process should have been conducted under Section 402 of the CWA. The Corps suspended the permit and reconsidered its decision. On March 29, 2006, the Corps issued a revised decision explaining its reasons for issuing the 404 permit and reinstated the permit. On April 4, 2006, the environmental groups reopened the case. On August 4, 2006, the federal district court ruled for the Corps. The groups appealed to the Ninth Circuit, which granted an injunction on August 24, 2006. Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, No. 06-35679. Coeur Alaska, Inc., Goldbelt, Inc., and the State of Alaska were defendant-intervenors in the case.
On October 11, 2006, MSLF filed its amicus brief. Oral arguments took place on December 13, 2006. On May 22, 2007, the Ninth Circuit ruled for the environmental groups.
On August 20, 2007, Coeur Alaska, Goldbelt, and the State of Alaska each filed petitions for rehearing en banc and the federal government filed a petition for a limited panel rehearing. On October 12, 2007, the environmental groups filed responses to the petitions. On October 19, 2007, Coeur Alaska filed a reply in support of its petition for rehearing en banc. On October 29, 2007, the Ninth Circuit denied the petitions for rehearing en banc of Coeur Alaska, Goldbelt, and the State of Alaska and the petition for a limited panel rehearing of the federal government.
Petitions for writ of certiorari with the U.S. Supreme Court on January 25, 2008 by the State of Alaska (No. 07-990) and on January 29, 2008, by Coeur Alaska (No. 07-984). On February 28, 2008, MSLF filed its friend of the court brief in support of Coeur Alaska.
On June 27, 2008, the Court granted the petitions for certiorari of Coeur Alaska and the State of Alaska. On September 17, 2008, petitioners filed their opening briefs and respondents, the Army Corps of Engineers, et al., filed their brief in support of petitioners. On September 24, 2008, MSLF filed a friend of the court brief in support of Coeur Alaska, Inc.
Oral arguments were held on January 12, 2009. On May 15, 2009, at the request of the Court, supplemental briefs were filed by petitioners Coeur Alaska, Inc., and the State of Alaska, Federal Respondents supporting petitioners, amicus National Association of Home Builders, and respondents Goldbelt, Inc., and SEACC. On May 22, 2009, supplemental replies were filed by Coeur Alaska, Inc., the State of Alaska, Federal Respondents, SEACC, and Goldbelt, Inc.
