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Kivalina Opening Brief Case: 11-70776 06/04/2011 Page: 1 of 124 ID: 7774252 DktEntry: 20 CASE NO. 11-70776 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATIVE VILLAGE OF KIVALINA IRA COUNCIL, NATIVE VILLAGE OF POINT HOPE IRA COUNCIL, ALASKA COMMUNITY ACTION ON TOXICS, and NORTHERN ALASKA ENVIRONMENTAL CENTER Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, and TECK ALASKA, INCORPORATED and NANA REGIONAL CORPORATION, Intervenors. PETITIONERS’ OPENING BRIEF VICTORIA CLARK BROOK BRISSON BRENT NEWELL TRUSTEES FOR ALASKA SOFIA PARINO 1026 W. 4th Ave., Suite 201 CENTER ON RACE, POVERTY & THE Anchorage, Alaska 99501 ENVIRONMENT (907) 276-4244 47 Kearny Street, Suite 804 San Francisco, CA 94108 (415) 346-4179 Attorneys for Petitioners Native Village of Point Hope IRA Council, Attorneys for Petitioner Native Alaska Community Action on Toxics, Village of Kivalina IRA Council and Northern Alaska Environmental Center Case: 11-70776 06/04/2011 Page: 2 of 124 ID: 7774252 DktEntry: 20 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, Petitioner Native Village of Kivalina IRA Council states as follows: 1) Native Village of Kivalina IRA Council has no parent companies, and 2) there are no publicly-owned companies that have a 10% or greater ownership in the Native Village of Kivalina IRA Council. Native Village of Kivalina IRA Council is the governing body of the Native Village of Kivalina, a federally recognized Tribe established pursuant to the provisions of the Indian Reorganization Act of 1934 and amended in 1936. Petitioner Native Village of Point Hope IRA Council states as follows: 1) Native Village of Point Hope IRA Council has no parent companies, and 2) there are no publicly-owned companies that have a 10% or greater ownership in the Native Village of Point Hope IRA Council. Native Village of Point Hope IRA Council is the governing body of the Native Village of Point Hope, a federally recognized Tribe established pursuant to the provisions of the Indian Reorganization Act of 1934 and amended in 1936. Petitioner Alaska Community Action on Toxics states as follows: 1) Alaska Community Action on Toxics has no parent companies, and 2) there are no publicly-owned companies that have a 10% or greater ownership in Alaska Community Action on Toxics. i Case: 11-70776 06/04/2011 Page: 3 of 124 ID: 7774252 DktEntry: 20 Alaska Community Action on Toxics is a non-profit corporation whose organizational purpose is to assure justice by advocating for environmental and community health and works to protect Alaskans‘ and Alaska Natives‘ rights to clean water. Petitioner Northern Alaska Environmental Center states as follows: 1) Northern Alaska Environmental Center has no parent companies, and 2) there are no publicly-owned companies that have a 10% or greater ownership in the Northern Alaska Environmental Center. Northern Alaska Environmental Center is a non-profit corporation whose organizational purpose is to promote conservation of the environment and sustainable resource stewardship in Interior and Arctic Alaska through education and advocacy. ii Case: 11-70776 06/04/2011 Page: 4 of 124 ID: 7774252 DktEntry: 20 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT..........................................................i TABLE OF AUTHORITIES……………………………………………………….v CHRONOLOGY OF RELEVANT DATES……………………………………….1 INTRODUCTION………………………………………………………………….4 STATEMENT OF JURISDICTION……………………………………………….5 STATEMENT OF THE ISSUES…………………………………………………..5 STATEMENT OF THE CASE…………………………………………………….6 STATUTORY BACKGROUND…………………………………………………..9 STATEMENT OF FACTS………………………………………………………..11 A. The Red Dog Mine and the Aqqaluk Expansion……………………11 B. NPDES Permits for the Red Dog Mine…………..…………………12 C. History of Violations at the Red Dog Mine…………………………14 D. Relevant 1998 Permit Monitoring Conditions………………………17 E. Relevant 2010 Permit Monitoring Conditions………………………18 SUMMARY OF THE ARGUMENT……………………………………………..20 STANDARD OF REVIEW……………………………………………………….20 STANDING……………………………………………………………………….23 A. The Native Villages Suffer Injury to their Interest in Clean Water and Subsistence Fishing………………………….…24 iii Case: 11-70776 06/04/2011 Page: 5 of 124 ID: 7774252 DktEntry: 20 B. The Conservation Groups Suffer Injury to their Organizational Interests………………………………………..…………………….26 C. Reduced Monitoring and Reporting in the 2010 Permit Inflicts Informational Injury…………………………………………28 D. The Native Villages and Conservation Groups Suffer Procedural Injury…………………………………………………….30 E. The Injuries to the Native Villages and Conservation Groups are Caused by the 2010 Permit and the EAB Order Denying Review…………………………………………...…31 F. A Favorable Decision by this Court will Redress the Injuries………31 ARGUMENT……………………………………………………………………...32 I. THE ORDER DENYING REVIEW OF THE MONITORING ISSUES IN THE ADMINISTRATIVE APPEAL WAS ARBITRARY, CAPRICIOUS, AND AN ABUSE OF DISCRETION……………………………………..32 A. An Administrative Appeal Must Identify the Permit Conditions at Issue and Explain why EPA‘s Responses to Comments were Clearly Erroneous and Warranted Review…32 B. Kivalina Complied with the EAB‘s Procedural Requirements…………………………………………………33 C. The Environmental Appeals Board Ignored Kivalina‘s Compliance with 40 C.F.R. § 124.19(a)……………………...34 D. Kivalina‘s Compliance with 40 C.F.R. § 124.19(a) Contrasts Starkly with Appropriately Dismissed Appeals……………...40 CONCLUSION AND RELIEF REQUESTED……………...................................42 CERTIFICATE OF COMPLIANCE WITH WORD LIMIT……………………..44 iv Case: 11-70776 06/04/2011 Page: 6 of 124 ID: 7774252 DktEntry: 20 STATEMENT OF RELATED CASES…………………………………………...45 CERTIFICATE OF SERVICE……………………………………………………46 EXHIBIT 1: STANDING DECLARATIONS v Case: 11-70776 06/04/2011 Page: 7 of 124 ID: 7774252 DktEntry: 20 TABLE OF AUTHORITIES FEDERAL STATUTES Akhtar v. Burzynski, 384 F.3d 1193 (9th Cir. 2004) ................................................................................ 22 Am. Fed’n of Gov’t Employees Local 1 v. Stone, 502 F.3d 1027 (9th Cir. 2007) ................................................................................ 26 American Mining Congress v. U.S. EPA, 965 F.2d 759 (9th Cir. 1992) .................................................................................... 9 Burlington Truck Lines v. United States, 371 U.S. 156 (1962) ................................................................................................ 21 Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ................................................................................................ 22 City of L.A. v. United States Dep’t of Commerce, 307 F.3d 859, 868 (9th Cir. 2002) .......................................................................... 22 City of Pittsfield v. U.S. Environmental Protection Agency, 614 F.3d 7 (1st Cir. 2010) ....................................................................................... 41 Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999) ................................................................................ 21 Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172 (9th Cir. 2000) ................................................................................ 21 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) ................................................................................................ 23 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ................................................................................................ 27 In re Teck Cominco, 2004 EPA App. LEXIS 12, (June 15, 2004) ......................... 13 vi Case: 11-70776 06/04/2011 Page: 8 of 124 ID: 7774252 DktEntry: 20 In re Teck Cominco, 2007 EPA App. LEXIS 43 (EAB, Oct. 10, 2007) ................ 13 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................................................ 31 Massachusetts v. EPA, 549 U.S. 497 (2007) ................................................................................................ 31 Michigan Department of Environmental Quality v. U.S. Environmental Protection Agency, 318 F.3d 705 (6th Cir. 2003) ................................................... 41 Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983) .................................................................................................. 21 Natural Resources Defense Council, Inc. v. EPA, 966 F.2d 1292 (9th Cir. 1992) ................................................................................ 23 NRDC v. U.S. Environmental Protection Agency, 863 F.2d 1420 (9th Cir. 1988) .................................................................................. 9 Pitt River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006) .................................................................................. 26 Public Util. Dist. No. 1 v. Federal Emergency Mgmt. Agency, 371 F.3d 701 (9th Cir. 2004) .................................................................................. 23 Ranchers Cattleman Action Legal Fund United Stockgrowers of America v. U.S. Dep’t of Agric., 415 F.3d 1078 (9th Cir. 2005) ............................ 22 Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1139 (9th Cir. 1998) ...................................................................... 10 San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700 (9th Cir. 2007) .................................................................................
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