Idaho Conservaton League v. Poe

IDAHO CONSERVATON LEAGUE, Plaintiff, v. SHANNON POE, Defendant.

Case No.: 1:18-cv-353-REB

UNITED STATES DISTRICT COURT DISTRICT OF IDAHO

June 4, 2021

MEMORANDUM DECISION AND ORDER RE:

IDAHO CONSERVATION LEAGUE'S MOTION FOR SUMMARY JUDGMENT ON LIABILITY

(Dkt. 38)

SHANNON POE'S MOTION FOR SUMMARY JUDGMENT

(Dkt. 39)

Pending before the Court is Plaintiff Idaho Conservation League's Motion for Summary Judgment on Liability (Dkt. 38) and Defendant Shannon Poe's Motion for Summary Judgment (Dkt. 39). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. RELEVANT BACKGROUND

The pertinent facts that now frame the legal issues involved in this case (and as presented in the parties' cross-motions for summary judgment) are largely undisputed¹ - namely, that Mr. Poe suction dredge mined 42 days on the South Fork Clearwater River during the 2014, 2015,and 2018 dredge seasons (running from July 15 to August 15 each year), without ever obtaining an NPDES permit under Section 402 of the CWA. ICL argues that Mr. Poe violated the CWA each time he operated a suction dredge on the South Fork Clearwater River without an NPDES permit. Mr. Poe disagrees, countering that (1) his suction dredge mining did not add pollutants to the South Fork Clearwater River and therefore did not require an NPDES permit (or any other CWA permit) in the first instance; and (2) even if his suction dredge mining did add pollutants, those pollutants are "dredged" or "fill" material regulated exclusively under Section 404 (not Section 402) of the CWA and therefore did not require an NPDES permit.² This Memorandum Decision and Order confronts these positions, resolving the question of whether Mr. Poe's suction dredge mining is governed under Section 402 or Section 404 of the CWA.

II. LEGAL STANDARD

Summary judgment requires a showing that, as to any claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A principal purpose of summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is "not a disfavored procedural shortcut"; rather, it is the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact "that may affect the outcome of the case." Id. at 248.

The evidence must be viewed in the light most favorable to the non-moving party, and the court must not make credibility findings. See id. at 255. Direct testimony of the non-movant, however implausible, must be believed. See Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). However, the court is not required to adopt unreasonable inferences from circumstantial evidence. See McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

In deciding cross-motions for summary judgment, the court considers each party's evidence. See Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011); see also Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001) ("[W]hen simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified, and submitted in support of both motions, and in opposition to both motions, before ruling on each of them."). The court must independently search the record for factual disputes. See Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001). Even though the filing of cross-motions for summary judgment means that both parties essentially assert that there are no material factual disputes, the Court nonetheless must decide whether disputes as to material fact are present. See id.

The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). Affirmative evidence (such as affidavits or deposition excerpts) is not required to meet this burden, as the movant may simply point out the absence of evidence supporting the non-moving party's case. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). Doing so shifts the burden to the non-movant to produce evidence sufficient to support a favorable jury verdict. See Devereaux, 263 F.3d at 1076. The non-movant must go beyond the pleadings and show "by [his] own affidavits, or by the depositions, answers to interrogatories, oradmissions on file" that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324. Where reasonable minds could differ on the material facts at issue, summary judgment should not be granted. See Anderson, 477 U.S. at 251.

III. DISCUSSION

The CWA prohibits the discharge of any pollutant into the waters of the United States unless the Environmental Protection Agency ("EPA") or the Army Corps of Engineers (the "Corps") has issued a permit authorizing the discharge. See 33 U.S.C. §§ 1311(a), 1342 (EPA and "[NPDES]" permits),³ 1344 (Corps and "Permits for dredged and fill material"). Neither ICL nor Mr. Poe disputes that the material passing through Mr. Poe's suction dredge and into the South Fork Clearwater River falls within the definition of a "pollutant"⁴ under the CWA; instead, the parties dispute which agency - the EPA via Section 402 of the CWA or the Corps via Section 404 of the CWA - has authority under the CWA to permit the discharge, if any, of such pollutants into the South Fork Clearwater River. For the reasons that follow, the Court concludes that the EPA and Section 402 of the CWA control the circumstances giving rise to the instant action.

A. Mr. Poe's Suction Dredge Mining Added Pollutants to the South Fork Clearwater River, Thus Requiring an NPDES Permit Under Section 402 of the CWA

A Section 402/NPDES permit is required if a person "(1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source." Comm. to Save Mokelumne Riverv. East Bay Mun. Utility Dist., 13 F.3d 305, 308 (9^th Cir. 1993) (citing Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982)); see also 33 U.S.C. §§ 1311(a), 1342(a)(1), 1362(12) (CWA defining "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source"). There is no dispute that rock and sand passing through a suction dredge is a pollutant; that the South Fork Clearwater River is a navigable water; and that a suction dredge is a point source. Compare ICL's Mem. ISO MSJ, pp. 13-16 (Dkt. 38-2), with Poe's Opp. to ICL's MSJ, p. 8 (Dkt. 43). In turn, this reveals a lynchpin issue of the case: whether Mr. Poe's suction dredge mining involves the "discharge" or "addition" of a pollutant to the South Fork Clearwater River. ICL says it does. Mr. Poe says it does not.

According to Mr. Poe, "suction dredge mining adds nothing to the dredged streambed material that is returned to the river or stream," essentially arguing that, because suction dredge mining does not add anything to the water not already there to begin with, there can be no addition of any pollutant and thus no discharge of a pollutant for the EPA to permit. Poe's Opp. to ICL's MSJ, p. 10 (Dkt. 43); see also Poe's Mem. ISO MSJ, pp. 9-12 (Dkt. 39-2). The CWA does not resolve the issue by clearly defining (or defining at all) what the term "addition" means in this setting. But the EPA has, interpreting it to include the "resuspension" of rocks and sands from a placer mining sluice box to a stream, even when those materials came from the bed of the stream itself - an interpretation the Ninth Circuit adopted in Rybachek v. EPA, 904 F.2d 1276 (9^th Cir. 1990).

In Rybachek, miners challenged the EPA's CWA regulations that required treating sluice box discharge water from placer mining, arguing that placer mining does not cause the "addition" of a pollutant. The Ninth Circuit rejected that argument, explaining:

In the sluicing process, a miner places the ore in an on-site washing plant (usually a sluice box) which has small submerged dams (riffles) attached to its bottom. He causes water to be run over the paydirt in the sluice box;when the heavier materials (including gold) fall, they are caught by the riffles. The lighter sand, dirt, and clay particles are left suspended in the wastewater released from the sluice box.

Placer mining typically is conducted directly in streambeds or on adjacent property. The water usually enters the sluice box through gravity, but may sometimes also enter through the use of pumping equipment. At some point after the process described above, the water in the sluice box is discharged. The discharges from placer mining can have aesthetic and water-quality impacts on waters both in the immediate vicinity and downstream. Toxic metals, including arsenic, cadmium, lead, zinc, and copper, have been found at a higher concentration in streams where mining occurs than in non-mining streams.

. . . .

[W]e will not strike down the EPA's finding that placer mining discharges pollutants within the meaning of the [CWA]. Placer miners excavate the dirt and gravel in and around waterways, extract any gold, and discharge the dirt and other non-gold material into the water.

On the one hand, if the material discharged is not from the streambed itself, but from the bank alongside, this is clearly the discharge into navigable waters of a pollutant under the [CWA]. Congress defined "pollutant" as meaning, among other

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