On Monday, January 12, the Supreme Court heard oral argument in Coeur Alaska v. Southeast Alaska Conservation Council. The Supreme Court here considers the regulation of leftover material created during the process of extracting gold known as tailings. The case involves a dispute over a permit issued to petitioner Coeur Alaska by the Army Corps of Engineers, allowing petitioner to dam Lower Slate Lake and deposit the tailings from a nearby mine in the lake. The Corps issued this permit under Section 404 of the Clean Water Act, which grants it the authority to regulate the discharge of fill material. Southeast Alaska Conservation Council and two other groups appealed the Corps’ decision arguing that Coeur Alaska’s tailings were instead prohibited by a 1982 EPA regulation under Section 402 of the Clean Water Act, which concerns the discharge of pollutants. Coeur Alaska and the State of Alaska filed a motion for summary judgment, which the District Court granted, but the Ninth Circuit reversed and invalidated the permit, relying on Sections 301 and 306 of the Act to hold that the discharge was prohibited despite a 2002 joint regulation that classified the tailings as fill material. The Supreme Court now considers whether the Ninth Circuit erred in holding that the Corps does not exercise exclusive permitting authority over fill material under Section 404. James Burling and Brandon Middleton, both of the Pacific Legal Foundation, discuss the case.
Oral Argument - January 12, 2009: