Southeast Alaska

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SOUTHEAST ALASKA CONSERVATION 
COUNCIL; et al.,
Plaintiffs-Appellants, No. 06-35679
v. D.C. No.
UNITED STATES ARMY CORPS OF  CV-05-00012-J-JKS
District of Alaska,
ENGINEERS; et al., Juneau
Defendants-Appellees,
ORDER
COEUR ALASKA, INC.; et al.,
Defendants-Intervenors-Appellees.

Filed March 16, 2007

Before: Procter Hug, Jr., A. Wallace Tashima, and
Susan P. Graber, Circuit Judges.

ORDER

Appellee U.S. Army Corps of Engineers’ (“Corps”) Emer-
gency Motion Under Circuit Rule 27-3 for Authorization
Under the Injunction Pending Appeal to Permit Construction
of a Western Interceptor Ditch is denied.1

This motion comes to us in a case in which Appellant
Southeast Alaska Conservation Council (“SEACC”) has
appealed a grant of summary judgment in favor of the Corps
and the U.S. Forest Service. SEACC challenges the Corps’
issuance of a permit, pursuant to § 404 of the Clean Water
1
The parties’ motions to exceed the page limits of their respective briefs
are hereby granted.

3375
3376 SOUTHEAST ALASKA CONSERVATION v. USACE
Act of 1972, to Coeur Alaska, Inc. for the discharge of
approximately 210,000 gallons of slurry (including 1,444 tons
of mine tailings) per day from its froth-flotation mill opera-
tion at the Kensington Gold Mine into Lower Slate Lake, a
23-acre lake in the Tongass National Forest in Southeast
Alaska. The discharge ultimately will raise the bottom of the
lake 50 feet to its current high water mark and nearly triple
its surface area. Coeur Alaska and the Corps admit that the
discharge and settling of tailings into the lake will kill all of
the fish and nearly all other aquatic life, primarily due to their
being covered by the discharged material. In addition, the tox-
icity of the tailings may have lasting effects on the lake and
may have a negative effect on its ability to sustain aquatic life
in the future. As a result, the extent to which aquatic life could
eventually be restored is unclear.

To prepare the lake for the disposal of tailings and the con-
sequent expansion of the lake’s surface area, Coeur Alaska
intends to construct a 90-foot high, 500-foot long dam at the
lake’s outfall point. Construction of the dam has already
begun. After SEACC filed its appeal in this case, Coeur
Alaska built a temporary “coffer dam,” approximately 20 feet
high, which it admits was always intended to be temporary
and was not designed to withstand long-term use. Coeur
Alaska had begun construction of a sturdier 38-foot high
earthen dam behind the coffer dam when this court halted fur-
ther construction at the site pending the outcome of this
appeal. Coeur Alaska’s long-term plan to use the lake as a dis-
posal site also includes the construction of a diversion ditch
nearly identical to that proposed in the Corps’ emergency
motion.

Work ceased on the dam, and at the rest of the site, when
this court granted the injunction pending appeal in favor of
SEACC. See SEACC v. U.S. Army Corps of Eng’rs, 472 F.3d
1097, 1099 (9th Cir. 2006). That order enjoined Coeur
Alaska, the Corps, and the Forest Service from activities relat-
ing to the construction of a disposal facility at Lower Slate
 SOUTHEAST ALASKA CONSERVATION v. USACE 3377
Lake. Id. On August 4, 2006, the district court entered a judg-
ment denying SEACC’s requested injunction to prevent the
implementation of the Coeur Alaska plan to dump the tailings
into Lower Slate Lake. Three days later, SEACC filed a
notice of appeal. Coeur Alaska apparently commenced build-
ing the temporary coffer dam after the district court entered
judgment. This act obviously was undertaken knowing an
appeal was pending. On August 24, this court entered its
injunction pending appeal, prohibiting Coeur Alaska, the
Corps, and the Forest Service from proceeding further with
construction of facilities to implement the proposed plan to
dispose of tailings into the lake. The temporary coffer dam
was thus constructed between the time of the district court’s
judgment on August 4, 2006, and the time of the injunction
on August 24, 2006. It appears there was a rush to construct
the temporary dam during this 20-day period even though an
appeal was pending.

It was not until November 7, 2006, in its motion to vacate
the injunction, that Coeur Alaska raised its concerns about the
possible effect of weather on the integrity of the dam. Id. The
motion was denied. We held that SEACC had argued persua-
sively that the Corps’ permit to Coeur Alaska violates the
Clean Water Act and that the construction would adversely
affect the environment by destroying trees and other vegeta-
tion, and by killing aquatic life. At the time, we directed the
parties to meet and consider how best to address the threat
posed by weather conditions to the integrity of the temporary
coffer dam.2 Id. The parties met, but disagreed regarding how
to address the perceived threat to the integrity of the tempo-
rary coffer dam. Now, the Corps seeks this court’s authoriza-
tion of a plan involving the construction of a diversion ditch
known as the Western Interceptor Ditch (“WID”). Coeur
Alaska is actually advocating the plan, but the Corps has con-
ditionally approved the plan and now asks for this court’s
2
SEACC disputes whether the spring freshet actually poses a threat to
the integrity of the site or to downstream water quality.
3378 SOUTHEAST ALASKA CONSERVATION v. USACE
authorization. For the reasons discussed below, we do not
authorize such a plan.

Coeur Alaska’s ditch plan violates both the letter and the
spirit of the injunction. That injunction prohibits the Corps,
the Forest Service, and Coeur Alaska “from authorizing,
allowing, or conducting any further construction activities
relating to the use of Lower Slate Lake as a disposal site for
mine tailings, including, but not limited to, cutting trees,
building roads, clearing vegetation, excavating or filling wet-
lands, building dams or other structures, diverting streams, or
altering the natural water level of Lower Slate Lake or the
natural flow of East Fork Slate Creek, until further notice of
this court.” Yet Coeur Alaska’s plan would require cutting
trees on 7.6 acres of forested land, building a 30-foot wide
road, excavating and digging a 3,000-foot ditch, filling in 4.5
acres of nearby wetlands with 28,800 cubic yards of fill mate-
rial, diverting natural surface water and groundwater flow,
altering the natural level of the lake (which would normally
rise during the freshet), bypassing a portion of the creek, and
altering the natural flow of the creek (which would increase
greatly during the freshet). This plan clearly does not comply
with the injunction.

In approving Coeur Alaska’s ditch plan, the Corps has dis-
regarded the purpose of the original injunction, which was to
prevent further environmental degradation of the site pending
the outcome of this appeal. Id. at 1100. In its motion to vacate
the injunction, Coeur Alaska sought permission to bolster the
coffer dam situated at the outfall point of the lake so that it
would not breach during the spring freshet. Id. at 1101. That
plan is less environmentally harmful than the current plan of
clearing a swath of trees around the lake, digging a large
ditch, installing a liner, constructing a service road, and filling
in wetlands. It is also important to reiterate that the ditch plan
is part of Coeur Alaska’s long-term plan to use the lake as a
disposal facility. Granting the Corps’ motion would allow
Coeur Alaska to begin preparing the site for disposal prior to
 SOUTHEAST ALASKA CONSERVATION v. USACE 3379
this court’s resolution of the appeal. For that reason, the plan
would not maintain the status quo, which is the whole point
of the injunction, but rather would allow Coeur Alaska to
begin working to a significant extent on its overall plan. This
proposal is not consistent with the injunction.

It is the integrity of the temporary coffer dam that Coeur
Alaska rushed to construct in the twenty days between the dis-
trict court judgment on August 4, 2006, and the entry of the
injunction on August 24, 2006, that is at issue. Rather than
address the dangers it perceived to the integrity of the dam by
removing the hastily constructed temporary dam, or construct-
ing spillways, or utilizing other means to resolve the problem
created by the construction of the dam, Coeur Alaska seeks to
fashion a remedy that furthers its intention of disposing of
tailings in Lower Slate Lake. The remedy for any perceived
weather problems should be addressed to the integrity of the
dam itself, as our prior order provided.

In order to guide compliance with this order, we believe it
is appropriate to announce at this time that we intend to
reverse the district court, vacate the permits and the Record
of Decision (“ROD”) authorizing the use of Lower Slate Lake
as a disposal facility, and remand to the district court with
instructions to enter summary judgment in favor of SEACC.
We have already stated that “SEACC has shown a likelihood
of success on the merits because it has argued persuasively
that the Corps’ permit to Coeur Alaska violates the Clean
Water Act.” 472 F.3d at 1100.

In issuing its permit to Coeur Alaska for the use of Lower
Slate Lake as a disposal site, the Corps violated the Clean
Water Act. The discharge from Coeur Alaska’s froth-flotation
mill operation facially meets the Corps’ current regulatory
definition of “fill material” because it would have the effect
of raising the bottom elevation of the lake. Accordingly, the
discharge would be subject to the permit process governed by
§ 404 of the Clean Water Act. See 33 C.F.R. § 323.2(e); 40
3380 SOUTHEAST ALASKA CONSERVATION v. USACE
C.F.R. § 232.2. Previously, however, EPA promulgated an
effluent limitation and standard of performance (“perfor-
mance standard”), pursuant to §§ 301 and 306 of the Clean
Water Act, that prohibits discharges from froth-flotation mills
into waters of the United States. See 40 C.F.R.
§ 440.104(b)(1). This very specific regulation applies to
Coeur Alaska’s mill. Although it would appear that EPA’s
performance standard conflicts with the Corps’ regulatory
definition of “fill material,” §§ 301 and 306 clearly state that
EPA’s effluent limitations and standards of performance shall
apply to all discharges. See 33 U.S.C. §§ 1311(e), 1316(e);
E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 138
(1977). Neither § 301 nor § 306 makes an exception for dis-
charges that would otherwise qualify for a permit under
§ 404. See 33 U.S.C. §§ 1311, 1316. And the regulation
clearly states that the zero-discharge performance standard for
froth-flotation mills will apply to all new sources. See 40
C.F.R. § 440.104. Section 404 itself provides for no excep-
tions to effluent limitations or standards of performance, even
though it does provide for exceptions to other portions of the
Clean Water Act. See 33 U.S.C. § 1344(f).

The performance standard governs because it is more spe-
cific. See California v. United States, 215 F.3d 1005, 1013
(9th Cir. 2000) (citing Radzanower v. Touche Ross & Co.,
426 U.S. 148, 153, 158 (1976)). Unlike the fill rule, which
pertains to fill generally, the performance standard covers
froth-flotation mills precisely. See 40 C.F.R. § 440.104.
Moreover, the performance standard took into account the
fact that discharges from froth-flotation mills contain both
solids and liquids because froth-flotation mills always pro-
duce such a mixture. See 47 Fed. Reg. 25,682, 25,685 (June
4, 1982) (“Mill process wastewater is characterized by very
high suspended solids levels (often in the percent range rather
than milligrams per liter) . . . .”).

Furthermore, statements made by the Corps and EPA at the
time they promulgated the current regulatory definition of
 SOUTHEAST ALASKA CONSERVATION v. USACE 3381
“fill material” in 2002 indicate that effluent limitations and
standards of performance should govern where applicable. In
fact, the preamble to the fill rule makes clear that the same
practices already in place would continue to apply to effluents
regulated under §§ 306 and 402. See 67 Fed. Reg. 31,129,
31,135 (May 9, 2002). If the agencies had intended for the
current regulatory definition of “fill material” to trump EPA’s
performance standard, the agencies failed to comply with the
requirements of the Administrative Procedure Act because
they did not specifically state such an intent. See 5 U.S.C.
§ 706(2)(A); Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 41-42 (1983). Additionally, state-
ments made by the agencies during the course of evaluating
Coeur Alaska’s permits for the Kensington Gold Mine dem-
onstrate that EPA’s performance standard for froth-flotation
mills was meant to apply in this case. Therefore, the Corps’
permit to Coeur Alaska should be vacated, as should the ROD
approving Coeur Alaska’s plan of operations.3

Because we intend to reverse and vacate the ROD and per-
mits, all construction-related activities furthering the imple-
mentation of Coeur Alaska’s plan of disposing tailings into
Lower Slate Lake should cease and not be undertaken. Coeur
Alaska and the Corps have the responsibility to address the
integrity and/or removal of the temporary coffer dam itself.

3
We plan to publish an opinion in this case that will explain the reasons
for our holding in greater detail.
 PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.