Sierra Club v. El Paso Gold Mines, Inc.

• Decision Date: 24 August 2005
• Docket Number: No. 03-1105.,03-1105.
• Citation: 421 F.3d 1133
• Parties: SIERRA CLUB and Mineral Policy Center, Plaintiffs-Appellees, v. EL PASO GOLD MINES, INC., Defendant-Appellant, and Mountain States Legal Foundation, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

421 F.3d 1133

SIERRA CLUB and Mineral Policy Center, Plaintiffs-Appellees, v. EL PASO GOLD MINES, INC., Defendant-Appellant, and Mountain States Legal Foundation, Amicus Curiae.

No. 03-1105.

United States Court of Appeals, Tenth Circuit.

August 24, 2005.

COPYRIGHT MATERIAL OMITTED

Stephen D. Harris (with Connie H. King and James L. Merrill with him on the briefs) Merrill, Anderson, King & Harris, LLC, Colorado Springs, CO, for Defendant-Appellant El Paso Gold Mines, Inc.

John M. Barth, Hygiene, CO (with Paul Zogg, Law Office of Paul Zogg, Boulder, CO, and Roger Flynn and Jeff Parsons, Western Mining Action Project, Boulder, CO, with him on the brief), for Plaintiffs-Appellees Sierra Club and Mineral Policy Center.

Steven J. Lechner and William Perry Pendley, Mountain States Legal Foundation, Lakewood, CO, filed an Amicus Curiae brief on behalf of Defendant-Appellant El Paso Gold Mines, Inc.

Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

The Clean Water Act ("CWA" or "Act") prohibits the discharge of any pollutant from a point source unless authorized by a permit issued under the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. §§ 1311(a), 1342. Under the Act, a "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). The Act also confers jurisdiction on the federal courts to hear citizen suits brought against any person "alleged to be in violation of" the Act. 33 U.S.C. § 1365(a).

The Sierra Club and the Mineral Policy Center ("Plaintiffs") filed a citizen suit in federal district court against a land owner, El Paso Gold Mines, Inc., whose abandoned mine shaft is allegedly discharging pollutants into Cripple Creek, a navigable water under the Act. A magistrate judge, hearing the case by consent, granted the Plaintiffs' motion for summary judgment, and this appeal followed.

On appeal we must decide three questions regarding the application of the CWA to the facts of this case: First, whether the alleged conduct in this case amounts to a "wholly past violation," Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), thus stripping the district court of subject matter jurisdiction under § 1365(a); second, whether Congress intended to require owners of inactive mines such as El Paso to obtain discharge permits under §§ 1311(a) and 1342; and third, whether the Plaintiffs have met their burden of showing that pollutants actually were discharged into Cripple Creek.

We agree with the magistrate judge on the first two issues, but hold that genuine issues of material fact exist, and, therefore, summary judgment was improperly granted. Accordingly, we reverse and remand the case for further proceedings.

I. BACKGROUND

A. Relevant Facts

El Paso owns approximately 100 acres of land west of Colorado Springs, between the towns of Cripple Creek and Victor, in Teller County, Colorado. Founded in 1968, El Paso has never conducted any mining operations on its property, although it may in the future. Located on this property is an inactive gold mine, the El Paso mine, as well as a partially collapsed mine shaft known as the El Paso shaft. The El Paso shaft is a vertical shaft—formerly an elevator shaft used by miners to access various levels of the El Paso mine—that connects the mine to the Roosevelt Tunnel. The Roosevelt Tunnel is a mine drainage tunnel, six miles in length, that was constructed around 1910 to drain groundwater from the mines in the Cripple Creek Mining District. The Roosevelt Tunnel underlies and connects to numerous properties, including El Paso's.

Snow melt and groundwater make their way to the Roosevelt Tunnel through a series of drainage tunnels and underground shafts, including the El Paso mine shaft. Water also apparently enters and exits the tunnel through cracks and fractures in the rock along the tunnel's six-mile length. The tunnel ends at the Roosevelt Tunnel portal, and here the tunnel discharges water into Cripple Creek, which eventually empties into the Arkansas River. The El Paso shaft connects to the Roosevelt Tunnel approximately two and half miles from the tunnel portal.

B. Proceedings in the District Court

In November 2001, the Sierra Club and the Mineral Policy Center filed a citizen suit against El Paso in federal district court under the Clean Water Act, codified at 33 U.S.C. § 1251 et seq. According to the Plaintiffs, El Paso violated Section 402 of the Act, 33 U.S.C. § 1342, by discharging pollutants (namely, zinc and manganese) from a point source into Cripple Creek without a valid permit.¹ The district court referred the case to a magistrate judge under 28 U.S.C. § 636(c).

In September 2002, following discovery, the parties filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). El Paso argued, first, that the court lacked subject matter jurisdiction over this citizen suit because the Plaintiffs had failed to allege an ongoing violation of the Act. Because it had never engaged in active mining, El Paso argued that it was not "alleged to be in violation of" the Act, a required prerequisite for a citizen suit under Section 505(a)(1), 33 U.S.C. § 1365(a)(1). The magistrate judge disagreed, however, holding instead that this was not a case of "wholly past violations," Gwaltney, 484 U.S. at 64, 108 S.Ct. 376, but rather "the continuing migration of pollutants into navigable water was occurring because of a past discharge from a point source." Sierra Club, et al v. El Paso Gold Mines, Inc., Civ. No. 01-PC-2163 (OES), slip op. at 13 (D.Colo. Nov. 15, 2002) ("Order"). In addition, the magistrate judge noted that "there is no evidence that El Paso's intermittent or sporadic violations of the CWA are not likely to recur." Id. at 14. Thus, the magistrate judge held that the court had subject matter jurisdiction under Section 505(a)(1) notwithstanding the fact that El Paso had not contributed to the alleged pollution through any of its own mining.

El Paso argued next that purely passive land owners cannot be liable for discharges under Section 301(a), 33 U.S.C. § 1311(a), and therefore they were not required to obtain a discharge permit pursuant to Section 402, 33 U.S.C. § 1342. This argument was based on the definition of "discharge," which is "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12) (emphasis added). Because the word "addition" implies affirmative conduct by the land owner, El Paso argued it could not, as a matter of law, be liable under the Act. The magistrate judge again disagreed, favoring instead the Plaintiffs' interpretation of the statutory language. According to the magistrate judge, "[t]he key to liability under the CWA is the ownership or operation of a point source which `adds' pollutants to navigable waters," and liability therefore attaches "not on the activity which results in the point source discharge, but rather on the point source discharge itself." Order at 23-24.

Finally, El Paso argued the Plaintiffs had failed to put forth any evidence establishing a hydrological connection between the El Paso shaft and the Roosevelt Tunnel portal nearly two and half miles away. It was undisputed that water samples taken at the shaft and the portal both contained zinc and manganese.² But according to El Paso, there was no evidence linking the water from the shaft to water discharged at the portal, and therefore the Plaintiffs had failed to prove El Paso added pollutants to navigable waters.³ In reviewing this claim, the magistrate judge considered the expert testimonies proffered by the parties. Although the experts disagreed in many respects, the magistrate judge found the experts agreed that "some of the water flowing into the Tunnel from the El Paso shaft reaches the Tunnel portal intermittently and flows into Cripple Creek." Id. at 29. Thus, the magistrate judge held that the Plaintiffs had established the necessary hydrological link.

Having rejected each of El Paso's arguments, the magistrate judge granted summary judgment for the Plaintiffs. In a subsequent order, the magistrate judge ordered El Paso to pay $94,900 in civil penalties, as well as attorneys' fees and costs. The magistrate judge also ordered El Paso to apply for an NPDES permit.

C. Parallel State Administrative Proceedings

Concurrent with the federal proceedings described above, the Colorado Water Quality Control Division ("CWQCD") was pursuing an administrative action against El Paso based on the same facts giving rise to the citizen suit. On July 25, 2002, the CWQCD issued a Notice of Violation/Cease and Desist Order, alleging that El Paso's "ongoing discharge of pollutants into the Roosevelt Tunnel, and from the Roosevelt Tunnel into Cripple Creek constitutes an unauthorized discharge of pollutants from a point source(s) into state waters." Aplt.App. I, at 242. The CWQCD's case was referred to a state administrative law judge for adjudication. Following discovery, cross-motions for summary judgment, and oral argument, the ALJ issued an initial decision in December 2002, approximately one month after the magistrate judge had granted the Plaintiffs' motion for summary judgment in the federal case.

In the initial decision, the ALJ considered arguments similar to those addressed by the magistrate judge. The ALJ concluded that the Colorado Water Quality Control Act was applicable to point source owners such as El Paso. Thus, as with the federal case, El Paso could be liable for pollutants running out of its mine workings even though it was not currently mining the property. However, contrary to the magistrate judge's conclusion, the ALJ saw no evidence establishing a hydrological connection between the El Paso shaft and the Roosevelt Tunnel portal. The ALJ stated:

[CWQCD] has failed to prove that the zinc and...