No. 18-260
================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------COUNTY OF MAUI,
Petitioner,
v.
HAWAI‘I WILDLIFE FUND, et al.,
Respondents.
-----------------------------------------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
-----------------------------------------------------------------BRIEF OF AMICUS CURIAE
FOND DU LAC BAND OF LAKE SUPERIOR
CHIPPEWA IN SUPPORT OF RESPONDENTS
-----------------------------------------------------------------ELISE L. LARSON
Counsel of Record
KEVIN S. REUTHER
MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY
1919 University Avenue West, Ste. 515
St. Paul, MN 55104-3435
651-223-5969
elarson@mncenter.org
Counsel for Amicus Curiae
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
TABLE OF CONTENTS
Page
INTEREST OF THE AMICUS CURIAE ...............

1

SUMMARY OF ARGUMENT ................................

3

ARGUMENT ...........................................................

5

I. THE BAND RELIES ON THE CLEAN
WATER ACT TO PROTECT CRITICAL
NATURAL RESOURCES FROM LARGE
INDUSTRIAL POLLUTERS .......................

5

A. Production And Consumption Of Traditional Foods, Including Manoomin And
Freshwater Fish, Are Important To The
Ojibwe ....................................................

5

1. Manoomin .........................................

6

2. Freshwater Fish ...............................

8

B. The Band’s Freshwater Resources Are
Sensitive To Water Pollutants, Particularly Sulfate And Mercury ....................

9

1. Sulfate...............................................

10

2. Methylmercury .................................

11

C. Large Industrial Point Sources Are Decimating Manoomin With Discharges To
Surface Waters That Migrate Through
Groundwater .......................................... 13
1. Minntac .............................................

13

2. PolyMet .............................................

20

 ii
TABLE OF CONTENTS – Continued
Page
II.

THIS COURT SHOULD ADOPT RESPONDENTS’ CLEAN WATER ACT INTERPRETATION BECAUSE IT IS CONSISTENT
WITH THE PLAIN LANGUAGE AND
PROTECTS IMPORTANT TRIBAL RESOURCES .................................................... 22
A. The Clean Water Act’s Plain Language
Includes Discharges Fairly Traceable
To A Point Source .................................. 23
B. The County’s Interpretation Would Not
Protect The Band’s Important Natural
Resources ............................................... 27
1. Dischargers could easily evade the
Clean Water Act permit requirement ................................................ 27
2. Petitioner’s assertion that other regulatory requirements sufficiently
control groundwater-mediated discharges to surface waters is inaccurate .................................................... 30

CONCLUSION .......................................................

36

 iii
TABLE OF AUTHORITIES
Page
CASE LAW
Burlington N. & Santa Fe Ry. Co. v. United
States, 556 U.S. 599 (2009)......................................35
Friends of Santa Fe Cty. v. LAC Minerals, Inc.,
892 F. Supp. 1333 (D.N.M. 1995) ............................14
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
(2009) .......................................................................23
Hardt v. Reliance Standard Life Ins. Co., 560
U.S. 242 (2010) .................................................. 23, 27
In re Determination of the Need for an Envtl. Impact Statement for the Minntac Mine Extension Project in Mountain Iron, St. Louis Cty.,
Minn., No. A13–0837, 2014 WL 274077 (Minn.
Ct. App. 2014) ..........................................................14
Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) .............34
Minn. Chamber of Commerce v. Minn. Pollution
Control Agency, No. A12-0950, 2012 WL 6554544
(Minn. Ct. App. Dec. 17, 2012) ................................32
Nat. Res. Def. Council, Inc. v. Envtl. Protection
Agency, 824 F.2d 1258 (1st Cir. 1987) .....................34
Ohio Valley Envtl. Coal., Inc. v. Hernshaw Ptnrs.,
LLC, 984 F. Supp. 2d 589 (S.D. W. Va. 2013) ..........14
Rhodes v. Cty. of Darlington, S.C., 833 F. Supp.
1163 (D.S.C. 1992) ...................................................36
Trs. for Alaska v. Envtl. Protection Agency, 749
F.2d 549 (9th Cir. 1984) ..................................... 13, 14
United States v. Great N. Ry., 287 U.S. 144 (1932) ......23

 iv
TABLE OF AUTHORITIES – Continued
Page
United States v. Gonzales, 520 U.S. 1 (1997)..............26
Wash. Wilderness Coal. v. Hecla Min. Co., 870
F. Supp. 983 (E.D. Wash. 1994) ...............................14
STATUTES, REGULATIONS, AND TREATIES
Treaty of LaPointe, 10 Stat. 1109 (Sept. 30
1854) .................................................................. 1, 2
Treaty with the Chippewa, 7 Stat. 536 (July 29,
1837) ...................................................................... 1, 2
Treaty with the Chippewa, 7 Stat. 591 (Oct. 4,
1842) ...................................................................... 1, 2
84 Fed. Reg. 1200 (Feb. 1, 2019) ...................................1
16 U.S.C. § 1455 ..........................................................33
33 U.S.C. § 1251 .............................................. 30, 31, 36
33 U.S.C. § 1341 ............................................................1
33 U.S.C. § 1362 .................................................... 23, 25
42 U.S.C. § 9601 ..........................................................36
42 U.S.C. § 6902 ..........................................................34
40 C.F.R. § 143.3 .........................................................32
40 C.F.R. § 146.3 .........................................................35
40 C.F.R. § 261.4 .........................................................34
40 C.F.R. § 302.4 .........................................................36
Minn. R. 7045.0120 .....................................................34
Minn. R. 7050.0140 .....................................................31

 v
TABLE OF AUTHORITIES – Continued
Page
Minn. R. 7050.0220 .....................................................32
Minn. R. 7050.0221 ............................................... 31, 32
Minn. R. 7050.0224 ............................................... 18, 32
Minn. R. 7060.0200 .....................................................31
Minn. Stat. §§ 115B.01-115B.53 .................................36
H.R. Rep. No. 1185 (1974) ..........................................35
AGENCY DECISIONS
In re Determination of Adequacy of the Envtl.
Impact Statement for the U.S. Steel – Minntac
Water Inventory Reduction Project Mountain
Iron, Minn. (Minn. Pollution Control Agency
Nov. 22, 2005) ..........................................................15
In re Reissuance of an NPDES/SDS Permit to
U.S. Steel Corp. for Its Minntac Facility (Minn.
Pollution Control Agency Nov. 30, 2018) .......... 14, 15
ADDITIONAL AUTHORITIES
Lawrence A. Baker, Evaluation of Minntac Tailings Basin on Little Sandy and Sandy Lakes
(2016) .......................................................................17
Barr Eng’g, Groundwater Modeling of the NorthMet Flotation Tailings Basin Containment
System (2015) ..........................................................21
Barr Eng’g, NorthMet Project Water Modeling
Data Package Volume 2 (2015) ...............................20

 vi
TABLE OF AUTHORITIES – Continued
Page
Barr Eng’g, NPDES/SDS Permit Application,
Vol. II (2017) ...................................................... 20, 21
Earth Economics, The Food That Grows Out of
the Water: The Economic Benefits of Wild Rice
in Minnesota (2018) ..................................................8
Fond du Lac Band of Lake Superior Chippewa,
Expanding the Narrative of Tribal Health: The
Effects of Wild Rice Water Quality Rules Changes
on Tribal Health (2018)........................... 5, 6, 7, 8, 10
Fond du Lac Band of Lake Superior Chippewa,
2008 Integrated Resource Management Plan
(2008) .......................................................................12
Fond du Lac Reservation Office of Water Protection, Tribal Report Under Section 305(b),
Clean Water Act (2004) ..............................................9
J. A. Foran et al., Evaluation of Mercury Exposure Reduction through a Fish Consumption
Advisory Program for Anishinaabe Tribal Members in Northern Wisconsin, Michigan, and
Minnesota, 2010 J. Envtl. & Pub. Health 1
(2010) .........................................................................6
Kim Lapakko & Ann Jagunich, Sulfate Release
from the USX Tailings Basin and Quantification of Sulfate Sources (1991) .................................17
April E. Lindala, Anishinaabe Migration and
History on the Marquette Iron Range, https://
lib.nmu.edu/voices/anishinaabe.php ........................7
Patricia McCann, Mercury Levels in Blood from
Newborns in the Lake Superior Basin (2011) ........12

 vii
TABLE OF AUTHORITIES – Continued
Page
Minn. Dep’t of Nat. Res., Final Environmental
Impact Statement (2015)................................... 20, 21
Minn. Dep’t of Nat. Res., Natural Wild Rice in
Minnesota (2008) .......................................................6
Minn. Envtl. Quality Bd., Governor’s Task Force
on Wild Rice (2019) .................................................10
Minn. Pollution Control Agency, Draft Minntac
Water Inventory Reduction Environmental Impact Statement (2004)........................................ 13, 14
Minn. Pollution Control Agency, National Pollutant Elimination System (NPDES)/State Disposal System (SDS) Permit Program Fact Sheet
Permit Reissuance (2016) .................................. 15, 16
Minn. Pollution Control Agency et al., A Roadmap to Delisting: St. Louis River Area of Concern Remedial Action Plan Update (2013) .............28
Minn. Tribal Wild Rice Task Force, 2018 Tribal
Wild Rice Task Force Report (2018) ........................11
Catherine A. O’Neill, Environmental Justice in
the Tribal Context: A Madness to EPA’s Method,
38 Envtl. L. 495 (2008) .............................. 8, 9, 11, 12
PolyMet Mining, NorthMet Project Adaptive Water Management Plan (2017) ..................................20
Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts
(2012) ................................................................. 24, 25

 viii
TABLE OF AUTHORITIES – Continued
Page
H. James St. Arnold & Sue Erickson, Ojibwe
Treaty Rights Understanding and Impact
(2006) ..................................................................... 2, 5
U.S. Dep’t of Agric., Basic Report 20089, Wild
Rice, Cooked (2019) ...................................................7
Thomas Vennum, Wild Rice and the Ojibway
People (1988)..............................................................7
Darren J. Vogt, Sandy Lake and Little Sandy
Lake Monitoring (2010-2017) (2018) ......................17
Letter from Melissa Thompson, Wildlife Lake
Specialist, Minn. Dep’t of Nat. Res, to Erik
Smith, Industrial Division, Minn. Pollution
Control Agency (Jan. 24, 2018) ...............................18
Letter from Margaret Watkins, Grand Portage
Water Quality Specialist, and Nancy Schuldt,
Fond du Lac Water Projects Coordinator, to
Erik Smith, Minnesota Pollution Control Agency
(Dec. 22, 2016) .........................................................18
Addition, Merriam-Webster.com, https://www.
merriam-webster.com/dictionary/addition .............25
Fish Contaminant Study, Fond du Lac Band of
Lake Superior Chippewa, http://www.fdlrez.
com/RM/waterfish.htm............................................12
Mercury, Minn. Pollution Control Agency, https://
www.pca.state.mn.us/water/mercury .....................11

 ix
TABLE OF AUTHORITIES – Continued
Page
MPCA Wild Rice Database, https://www.pca.state.
mn.us/document/wq-s6-43xxlsx ..............................17
Sediment Studies: St. Louis River Area of Concern, Minn. Pollution Control Agency, https://
www.pca.state.mn.us/water/sediment-studiesst-louis-river-area-concern ......................................28
Sulfate in Well Water, Minn. Dep’t of Health,
https://www.health.state.mn.us/communities/
environment/water/wells/waterquality/sulfate.
html ............................................................. 31, 32, 35
Water Quality Standards Regulations: Fond du
Lac Band of the Minnesota Chippewa, Envtl.
Protection Agency, https://www.epa.gov/wqstech/water-quality-standards-regulations-fonddu-lac-band-minnesota-chippewa.............................2
Watershed Health Assessment Framework, Minn.
Dep’t Nat. Resources, http://bit.ly/2Yhq2Sm ...........27

 1
INTERESTS OF AMICUS CURIAE1
Amicus curiae Fond du Lac Band of Lake Superior
Chippewa (the “Band”) is a federally-recognized tribe
and a member of the Minnesota Chippewa Tribe (“MCT”),
whose members have resided in northern Minnesota
for centuries. See 84 Fed. Reg. 1200, 1202 (Feb. 1, 2019).
The Band has the inherent sovereign authority and
duty to protect the natural resources and retained
treaty rights upon which its members depend both on
and off the Fond du Lac Reservation (the “Reservation”). See Treaty of LaPointe, 10 Stat. 1109 (Sept. 30
1854) [hereinafter, “1854 Treaty”]; Treaty with the
Chippewa, 7 Stat. 591 (Oct. 4, 1842) [hereinafter, “1842
Treaty”]; Treaty with the Chippewa, 7 Stat. 536 (July
29, 1837) [hereinafter, “1837 Treaty”]. In this capacity,
the Band has Treatment-As-A-State (“TAS”) status
under the Clean Water Act and administers and enforces water-quality standards on the Reservation. See
33 U.S.C. § 1341; Water Certification Standards, FDL

1

Pursuant to Supreme Court Rule 37.2(a), all parties have
consented to this brief ’s filing. Counsel of record for all parties
received the requisite notice of the intent of amicus curiae to file
this brief. Pursuant to Supreme Court Rule 37.6, amicus curiae
states that no counsel for any party authored this brief in whole
or in part and that no entity or person, aside from amicus curiae
and its counsel, made any monetary contribution toward this
brief ’s preparation or submission.

 2
Ordinance No. 01/06;2 Water Quality Standards, FDL
Ordinance No. 12/98.3
The Band also holds off-Reservation usufructuary
rights in lands ceded to the United States, which extend throughout the entire northeast portion of Minnesota and parts of Wisconsin and upper Michigan
(“Ceded Territories”).4 10 Stat. 1109; 7 Stat. 536; 7 Stat.
591. The Band retains and exercises these usufructuary rights, including the right to hunt, fish, and harvest manoomin (Zizania palustris) – known as wild
rice in English – guaranteed under the 1837, 1842, and
1854 Treaties. H. James St. Arnold & Sue Erickson,
Ojibwe Treaty Rights Understanding and Impact 13-17
(2006).5 The Band co-manages the Ceded Territories
with Minnesota and the other MCT Bands who share
usufructuary rights in the Ceded Territories. Id. at 1920.
The Band submits this brief based on its interest
as a regulator ensuring the Clean Water Act’s National
2

A copy of FDL Ordinance No. 01/06 is available at http://
www.fdlrez.com/government/ords/01-06ord.pdf.
3
A copy of FDL Ordinance No. 12/98 is available at https://
www.epa.gov/sites/production/files/2014-12/documents/chippewatribe.pdf. The Band was granted TAS status on May 16, 1996.
Water Quality Standards Regulations: Fond du Lac Band of the
Minnesota Chippewa, Envtl. Protection Agency, https://www.epa.
gov/wqs-tech/water-quality-standards-regulations-fond-du-lac-bandminnesota-chippewa (last visited June 18, 2019).
4
A map of the 1837, 1842, and 1854 Ceded Territories are
available at http://www.fdlrez.com/RM/fdlmaps.htm.
5
The Great Lakes Indian Fish & Wildlife Commission published this report and a copy is available at https://www.glifwc.
org/publications/pdf/OTRUI2006.pdf.

 3
Pollutant Discharge Elimination System (“NPDES”)
permitting scheme prevents all point source discharges that impact Reservation surface waters and
interfere with the Band’s usufructuary rights in the
Ceded Territories.
------------------------------------------------------------------

SUMMARY OF ARGUMENT
The Band depends on the Clean Water Act to protect its natural resources, including manoomin and
freshwater fish. Manoomin and fish are central elements of the Ojibwe diet, and also play an important
cultural, spiritual, and economic role in the life of Band
members. Pollutants regulated under the Clean Water
Act, for example, sulfate and mercury, directly threaten
the manoomin and freshwater fish Band members consume; Petitioner’s proposed limitation on the Clean
Water Act’s reach would have devastating consequences
for the Band’s resources.
Upstream from the Fond du Lac Reservation and
in the Ceded Territories lie large iron ore and precious
metal reserves. Mining companies mine, or propose to
mine, those mineral reserves, posing real threats to
water quality in Minnesota’s water-rich environment.
The Clean Water Act’s plain language requires, as
the Ninth Circuit concluded, permitting for pollutants
discharged from a point source through groundwater
to navigable waters. The canons of construction instruct
that this Court must derive a statute’s meaning from
the words used in the statute without supplementation.

 4
Yet, Petitioner asks this Court to do the opposite, seeking to supplement the statutory text to limit its reach
to “any direct addition of any pollutant to a navigable
water from any point source.” Congress, however, prohibited any person from making “any addition” – direct
or indirect, continuous or intermittent, permanent or
temporary – of any pollutant to navigable waters from
any point source without a permit.
Petitioner’s proposed loophole in the Clean Water
Act would allow dischargers to avoid the Clean Water
Act’s reach by simply moving an outfall underground
or onto a beach, leaving surface waters unprotected
and contravening the Clean Water Act’s purpose. Contrary to Petitioner’s assertions, other regulatory requirements do not provide sufficient protections. For
example, Minnesota’s surface water quality standard
to protect manoomin requires no higher sulfate concentration than 10 mg/L; the groundwater standard allows for a sulfate concentration of 250 mg/L. Petitioner
simply errs when it asserts that other regulatory regimes can plug the gaping hole Petitioner’s interpretation leaves in the bedrock law intended to restore and
maintain the integrity of the Nation’s waters.
------------------------------------------------------------------

 5
ARGUMENT
I.

THE BAND RELIES ON THE CLEAN WATER
ACT TO PROTECT CRITICAL NATURAL
RESOURCES FROM LARGE INDUSTRIAL
POLLUTERS

The Band relies on the Clean Water Act to protect
critical natural resources. Traditionally, Ojibwe people,
also known as Anishinaabeg or Chippewa, were hunters, fishers, and gatherers, living on both sides of the
Great Lakes in what is now United States and Canada.
Arnold & Erickson, supra, at 6-7. Ojibwe people continue to consume diets rich in traditional foods, including manoomin and fish. For decades, large industrial
point sources in the Ceded Territories have discharged,
or plan to discharge, through groundwater into surface
waters. These discharges contain contaminants that
decimate manoomin stands and expose Band members
to toxins in the food they eat.
A. Production And Consumption Of Traditional Foods, Including Manoomin And
Freshwater Fish, Are Important To The
Ojibwe.
Ojibwe culture is rooted in caring for the earth.
See Fond du Lac Band of Lake Superior Chippewa, Expanding the Narrative of Tribal Health: The Effects of
Wild Rice Water Quality Rules Changes on Tribal Health,
15 (2018) [hereinafter, “Wild Rice Tribal Health Study”].6
6

A copy of Wild Rice Trial Health Study is available at https://
www.health.state.mn.us/communities/environment/hia/hiainmn.html.

 6
As such, Ojibwe people, living in an environment dominated by lakes and streams, produce and consume
greater quantities of foods cultivated in freshwater.
See id. at 33; J. A. Foran et al., Evaluation of Mercury
Exposure Reduction through a Fish Consumption Advisory Program for Anishinaabe Tribal Members in
Northern Wisconsin, Michigan, and Minnesota, 2010 J.
Envtl. & Pub. Health 1, 1 (2010).7
Two resources of particular importance to the
Ojibwe are manoomin and freshwater fish; large industrial point sources in the Ceded Territories threaten
both resources.
1. Manoomin
Manoomin is an aquatic grass native to North
America. Minn. Dep’t of Nat. Res., Natural Wild Rice
in Minnesota 7 (2008) [hereinafter, “Natural Wild
Rice”].8 Manoomin is a spiritual, cultural, social, nutritional, and medicinal staple of the Ojibwe. Manoomin’s
importance is rooted in Ojibwe history and spirituality.
According to Ojibwe oral tradition, the Ojibwe originally resided along the Atlantic Coast. See Wild Rice
Tribal Health Study, supra, at 8. Seven prophets came
to the Ojibwe during a time of prosperity and left the
Ojibwe with seven predictions about the future, known
7

A copy of this article is available at https://www.hindawi.
com/journals/jeph/2010/802584/ (select “Full-Text PDF”).
8
A copy of this article is available at https://files.dnr.state.mn.
us/fish_wildlife/wildlife/shallowlakes/natural-wild-rice-in-minnesota.
pdf.

 7
as the Seven Fires Prophesy. See April E. Lindala,
Anishinaabe Migration and History on the Marquette
Iron Range, https://lib.nmu.edu/voices/anishinaabe.php
(last visited July 16, 2019). The prophets instructed
the Ojibwe to travel west until they reached a place
where food grew upon the water. Wild Rice Tribal
Health Study, supra, at 8. For over five centuries, the
Ojibwe migrated west to the Great Lakes region,
stretching across the upper Midwestern United States
and central Canadian provinces. Thomas Vennum,
Wild Rice and the Ojibway People 1 (1988).
Since arrival, the Ojibwe relied on manoomin – the
food that grows on water – to sustain them physically,
socially, and spiritually. See Wild Rice Tribal Health
Study, supra, at 8, 15-16. The migration and fulfillment of the prophesies are essential elements of the
teachings of the Seven Fires Prophesy, which forms the
spiritual backbone of Ojibwe people. See id.; see also
Lindala, supra.
Ojibwe people use manoomin in their cultural
practices, social traditions, nutrition, and medicinal
customs. See Wild Rice Tribal Health Study, supra, at
8, 15-16. Manoomin plays a central role in ceremonies
and celebrations, which perpetuate and protect its connection to the survival of the Ojibwe. Vennum, supra,
at 58-59. Manoomin is also a healthy, traditional food.
Wild Rice Tribal Health Study, supra, at 3. Manoomin
has been referred to as a “super food” because it offers
a healthy composition of protein, minerals, vitamins,
dietary fiber, healthy carbohydrates, and low fat content. Id. at 33-37; see also U.S. Dep’t of Agric., Basic

 8
Report 20089, Wild Rice, Cooked (2019) (describing manoomin’s nutritional properties).9
Finally, the seasonal manoomin harvest offers important economic opportunity for Ojibwe harvesters,
their tribes, and their business communities. This economic benefit, while separate from the cultural importance of manoomin, is important to tribal economic
development, providing hundreds of jobs, millions of
dollars in labor income, and millions more in direct and
indirect economic effect, all largely in regions where
economic growth is needed. See Wild Rice Tribal Health
Study, supra, at 46-47; see also Earth Economics, The
Food That Grows Out of the Water: The Economic Benefits of Wild Rice in Minnesota 4 (2018).10
In sum, manoomin is a social, cultural, spiritual,
nutritional, medicinal, and economic resource for the
Band.
2. Freshwater Fish
Ojibwe people also have a deep connection to freshwater fish and harvesting. Catherine A. O’Neill, Environmental Justice in the Tribal Context: A Madness to
EPA’s Method, 38 Envtl. L. 495, 510 (2008). Not only do
fish act as an important means of subsistence, fish are
also culturally, spiritually, and politically important.
9

A copy of this report is available at https://ndb.nal.usda.
gov/ndb/foods/show/20089.
10
A copy of this report is available at http://www.fdlrez.com/
RM/downloads/WQSWildRiceBenefits.pdf.

 9
Id. at 509-10. Fishing fosters economic independence
among tribal members and provides an important nutritional resource. Id. at 510. Traditional ceremonies
also include fish as a central element. Id. And Ojibwe
people transfer important cultural knowledge when
they fish together. Id.
Fishing and consuming fish also plays an important
role in the Band’s ability to exercise its treaty rights
and “engage in cultural self-determination.” Id. Because fish are important to the Ojibwe, Ojibwe people
consume fish at a higher rate than the general public.
Id. at 504, 509-11; see also Fond du Lac Reservation
Office of Water Protection, Tribal Report Under Section
305(b), Clean Water Act 1, 4-5 (2004).11
B. The Band’s Freshwater Resources Are
Sensitive To Water Pollutants, Particularly Sulfate And Mercury.
As a community rooted in caring for the earth and
people focused on consuming resources that come from
freshwater ecosystems, the Band is particularly concerned with point sources discharging pollutants that
damage its resources. In particular, manoomin is highly
sensitive to sulfate discharges and fish consumption
becomes dangerous to human health when fish tissue
becomes contaminated with high levels of methylmercury.

11

This report is available at http://www.fdlrez.com/RM/downloads/
2003%20tribal%20305(b)%20water%20report.pdf.

 10
1. Sulfate
As an aquatic species, manoomin grows exclusively in water. Wild Rice Tribal Health Study, supra,
at 47. Ideal habitat for manoomin include water bodies
with some movement, such as rivers, streams, flowages, and lakes with inlets and outlets. Id. at 47-48.
Water depth must either remain stable or decline gradually over the growing season. Id. at 51. Manoomin is
most consistently productive when growing in lake
bottoms with soft, organic sediment. Id. at 47-48.
Historically, manoomin ranged throughout the upper Midwest. Today, however, manoomin’s range has
dramatically diminished due cumulatively to land use
changes, altered hydrology, climate change, invasive
species, and pollution. Id. at 49. Given manoomin’s historical, economic, cultural, spiritual, and ecological importance, the Band has an understandable concern for
the future of manoomin. Id. at 3. One major concern:
sulfate’s effect on manoomin when it converts to sulfide.
Sulfide is a toxic compound known to adversely affect manoomin. Minn. Envtl. Quality Bd., Governor’s
Task Force on Wild Rice 6, 32, 34 (2019).12 Sulfate
interacting with bacteria in water creates sulfide. Id.
at 6. Because manoomin grows exclusively in water,
and sulfate in water becomes toxic sulfide, hydrologic
12

A copy of this report is available at https://www.eqb.
state.mn.us/sites/default/files/documents/FINAL%20Governor%27s
%20Task%20Force%20on%20Wild%20Rice%20Report%20January
%203%202019%20v2.pdf.

 11
sulfate discharges can significantly harm manoomin.
Id. at 32. When sulfate becomes sulfide it reduces
manoomin seedling growth and development. Minn.
Tribal Wild Rice Task Force, 2018 Tribal Wild Rice
Task Force Report 23 (2018).13 Seedling emergence,
survival, biomass growth, viable production, and seed
mass all decrease as sulfide levels increase. Id. While
several factors can impact manoomin’s growth and
health, sulfide in sediment porewater has been determined to be a primary controlling feature of manoomin
occurrence. Id. at 23-25.
2. Methylmercury
Methylmercury in fish tissue constitutes another
contaminant with major implications for Band-member
health. Methylmercury occurs when mercury enters
water bodies and is methylated by microorganisms
present in the water. O’Neill, supra, at 500. In this
form, methylmercury is highly bioavailable and easily
absorbed by fish in affected waters. Id. Over time,
methylmercury bioaccumulates in fish, which in turn
acts as a source of methylmercury contamination for
organisms (including humans) consuming those fish.
Id. at 500-01.
Methylmercury is a neurological toxin that is harmful to humans. Mercury, Minn. Pollution Control Agency,
https://www.pca.state.mn.us/water/mercury (last visited
July 16, 2019). In 2011, a Minnesota Department of
13

A copy of this report is available at http://mnchippewatribe.
org/pdf/TWRTF.Report.2018.pdf.

 12
Health study found that eight percent of Minnesota
babies born in the Lake Superior basin had unhealthy
levels of mercury, which can affect brain and nervous
system development. Patricia McCann, Mercury Levels
in Blood from Newborns in the Lake Superior Basin 11
(2011).14 Fishing peoples, such as the Ojibwe, face
greater harm from mercury pollution because certain
seasonal or cultural constraints can result in acute
doses of methylmercury when tribal consumption is especially high. O’Neill, supra, at 511.
Methylmercury is especially concerning in the St.
Louis River watershed, the river forming the northern
and eastern border of the Reservation. Fond du Lac
Band of Lake Superior Chippewa, 2008 Integrated Resource Management Plan 19-20 (2008).15 The St. Louis
River watershed’s unique hydrology, geology, and topology more easily converts mercury into methylmercury – the form capable of accumulating in fish. Fish
Contaminant Study, Fond du Lac Band of Lake Superior Chippewa, http://www.fdlrez.com/RM/waterfish.htm.
Consequently, mercury discharges into the St. Louis
River and its watershed create human health concerns
for those consuming fish from tribal waters both on the
Reservation and in the Ceded Territories.

14

A copy of the Minnesota Department of Health’s study is
available at https://www.health.state.mn.us/communities/environment/
fish/docs/glnpo.pdf.
15
A copy of the Integrated Resource Management Plan is
available at http://www.fdlrez.com/RM/downloads/IRMP.pdf.

 13
C. Large Industrial Point Sources Are Decimating Manoomin With Discharges To
Surface Waters That Migrate Through
Groundwater.
The Ceded Territories intersect two large mineral
deposits: the Mesabi Iron Range and Duluth Complex.
As a result, numerous industrial mining operations
have been proposed or constructed in and around the
Ceded Territories. These large industrial point sources
threaten, or have damaged, manoomin and human
health by adding elevated levels of sulfate to surface
waters by discharging additional mercury in the St.
Louis River and its watershed.
1. Minntac
One example in the Mesabi Iron Range is the Minntac mine. In the 1960s, prior to the Clean Water Act’s
enactment, U.S. Steel Corporation (“U.S. Steel”) constructed Minntac to mine taconite – a low grade iron
ore. Minn. Pollution Control Agency, Draft Minntac
Water Inventory Reduction Environmental Impact
Statement S-1 (2004) [hereinafter, “Minntac EIS”].16
The Minntac facility includes an 8,000-acre tailings
basin,17 used to dispose waste from ore processing. In
16

A copy of the Minntac EIS is available at https://www.
pca.state.mn.us/sites/default/files/minntac-deis.pdf.
17
Federal courts have held that “when mining activities release pollutants from a discernible conveyance, they are subject
to NPDES regulation, as are all point sources.” Trs. for Alaska v.
Envtl. Protection Agency, 749 F.2d 549, 558 (9th Cir. 1984) (discussing consistent findings in 10th and 5th Circuits). This includes

 14
re Determination of the Need for an Envtl. Impact
Statement for the Minntac Mine Extension Project in
Mountain Iron, St. Louis Cty., Minn. (“In re Minntac
Extension”), No. A13–0837, 2014 WL 274077, *1 (Minn.
Ct. App. 2014). During the ore-extraction process, U.S.
Steel mixes the waste – known as fine tailings – with
water to create a slurry. Minntac EIS at S-5. U.S. Steel
discharges the slurry into the tailings basin. Findings
of Fact, Conclusions of Law, and Order ¶ 3, In re Reissuance of an NPDES/SDS Permit to U.S. Steel Corp. for
Its Minntac Facility (Minn. Pollution Control Agency
Nov. 30, 2018) [hereinafter, “Minntac Reissuance Order”].18 The slurry fills the tailings basin with pollutants, including sulfate. See In re Minntac Extension,
2014 WL 274077, at *1.
U.S. Steel installed environmental controls, but
designed the tailings basin to release contaminated
water into the environment. Minntac Reissuance Order ¶¶ 5-7. U.S. Steel surrounded the tailings basin
with dikes, but declined to install a liner or other
barrier to prevent contaminated water from seeping
through the dikes or the bottom of the tailings basin.
Id. ¶¶ 6-7. As a result, the tailings basin discharges

tailings basins. Wash. Wilderness Coal. v. Hecla Min. Co., 870
F. Supp. 983, 988 (E.D. Wash. 1994); see also Trs. for Alaska, 749
F.2d at 558 (sluice boxes); Ohio Valley Envtl. Coal., Inc. v. Hernshaw Ptnrs., LLC, 984 F. Supp. 2d 589, 599, (S.D. W. Va. 2013)
(mining valley fill); Friends of Santa Fe Cty. v. LAC Minerals, Inc.,
892 F. Supp. 1333, 1355 (D.N.M. 1995) (overburden piles).
18
A copy of the Minntac Reissuance Order is available at https://
www.pca.state.mn.us/sites/default/files/wq-wwprm1-28f.pdf.

 15
pollution through groundwater into adjacent surface
waters. Id.
In 2005, the Minnesota Pollution Control Agency
estimated seepage discharges were approximately
3,000 gallons per minute, equaling 1.5 billion gallons
of wastewater per year. See Findings of Fact, Conclusions of Law, and Order ¶ 8, In re Determination of Adequacy of the Envtl. Impact Statement for the U.S. Steel
– Minntac Water Inventory Reduction Project Mountain Iron, Minn. (Minn. Pollution Control Agency Nov.
22, 2005) [hereinafter, “Minntac Adequacy Order”].19
Since then, U.S. Steel installed a seepage collection and
return system, but approximately 1,000 gallons per
minute continue to escape. Minn. Pollution Control
Agency, National Pollutant Elimination System (NPDES)/
State Disposal System (SDS) Permit Program Fact Sheet
Permit Reissuance 11-12 (2016) [hereinafter, “NPDES
Fact Sheet”].20

19

A copy of the Minntac Adequacy Order is available at https://
www.pca.state.mn.us/sites/default/files/minntac-sd.pdf.
20
A copy of the NPDES Fact Sheet is available at https://
www.pca.state.mn.us/sites/default/files/Fact%20Sheet%20-%20MN
0057207%20-%202016_2.pdf

 16

Figure 1. Minntac Tailings Basin.21
A copy of this map is available in NPDES Fact Sheet,
supra, at 14, fig. 2.
21

 17
The tailings basin’s contaminated water discharges
into two watersheds: the Sand River and Dark River.
The Twin Lakes – also known as Sandy Lake and Little Sandy Lake – lie immediately to the east. Darren J.
Vogt, Sandy Lake and Little Sandy Lake Monitoring
(2010-2017) 2 (2018).22 The Twin Lakes outlet to the
Sand River which merges into the Pike River and, ultimately, Lake Vermillion; all are manoomin-producing
lakes and rivers. Kim Lapakko & Ann Jagunich, Sulfate Release from the USX Tailings Basin and Quantification of Sulfate Sources 1-2 (1991); see also MPCA
Wild Rice Database, https://www.pca.state.mn.us/document/wq-s6-43xxlsx (last visited July 16, 2019).
The Twin Lakes once hosted vibrant manoomin
stands. Lapakko & Jagunich, supra, at 1-2. Historically, the Twin Lakes could seasonally produce 200
acres of manoomin. Id. at 1. Since the 1980s, however,
manoomin production has steadily declined. See id.
(noting “fair” crops in 1980 and 1981 and “poor” corps
in 1982 and 1984-1987); see also Vogt, supra, at 16.
(“Rice production generally declined through the 1970s
and 1980s, with little or no rice found in the lakes during a 1987 survey. Rice production has since remained
poor.”). Scientists and Minnesota agencies attribute
the decimation of the Twin Lakes’ manoomin stands
to the extremely high sulfate levels in the contaminated water seeping from Minntac’s tailings basin. See
Lawrence A. Baker, Evaluation of Minntac Tailings
22

A copy of this report is available at http://www.1854treaty
authority.org/management/biological-resources/fisheries/reports.
html?id=122&task=document.viewdoc.

 18
Basin on Little Sandy and Sandy Lakes 12 (2016); Letter from Melissa Thompson, Wildlife Lake Specialist,
Minn. Dep’t of Nat. Res, to Erik Smith, Industrial Division, Minn. Pollution Control Agency (Jan. 24, 2018)
(“When the Twin Lakes sulfate amounts range from
66.4 mg/L to 589 mg/L in 2017, and other lakes in the
area have natural sulfate amounts around 1-3 mg/L, it
is difficult to not acknowledge the impact the seepage
is having on downstream habitats.”) (on file with Counsel of Record). As of 2017, sulfate levels ranged up to
589 mg/L, more than fifty-eight times higher than the
state water quality standard with an overall upward
trend. Letter from Thompson to Smith, supra, at 2; see
also Minn. R. 7050.0224 (setting a 10mg/L water quality standard for sulfates); Letter from Margaret Watkins, Grand Portage Water Quality Specialist, and
Nancy Schuldt, Fond du Lac Water Projects Coordinator, to Erik Smith, Minnesota Pollution Control Agency
3 (Dec. 22, 2016) (illustrating the trend in sulfate levels
over time) (on file with Counsel of Record).
Minntac is only one example of the threat manoomin faces from large industrial polluters in the
Ceded Territories. Large mining companies own mineral leases, have explored those mineral resources, and
proposed future mining projects within the Ceded Territories. Those projects, like Minntac, risk discharging
sulfate into manoomin-growing waters in the Ceded
Territories with high levels of sulfate. The Reservation,
the 1854 Ceded Territory, current mining projects, and
the St. Louis River watershed are illustrated in the
map below:

 19

Figure 2. 1854 Ceded Territory with Mine Locations.23

23

Heather Fox, a GIS Specialist for the Grand Portage Reservation, created this map for the Band’s use.

 20
2. PolyMet
An example from the Duluth Complex provides
an illustration for how industrial point sources discharging to surface water through groundwater could
increase mercury concentrations if Petitioner’s Clean
Water Act interpretation prevails. Poly Met Mining,
Inc. (“PolyMet”) proposed a copper-nickel mine in the
St. Louis River watershed. Minn. Dep’t of Nat. Res., Final Environmental Impact Statement 1-5 (2015) [hereinafter, “PolyMet FEIS”].24 PolyMet intends to release
water contaminated with mercury into the groundwater from two sources.
For a waste rock stockpile, PolyMet proposes to release contaminated water into the groundwater, capture the contaminated groundwater, and subsequently
treat the contaminated water prior to discharge at
an outfall.25 Barr Eng’g, NPDES/SDS Permit Application, Vol. II at 42 (2017) [hereinafter, “NPDES Application”].26 PolyMet knows some water will escape
the capture system and reach surface waters. PolyMet

24

A copy of the PolyMet FEIS is available at https://files.dnr.
state.mn.us/input/environmentalreview/polymet/feis/NMet_FEIS_
Complete.pdf.
25
The waste rock stockpile is known to be “a major source of
sulfate.” Don E. Richard, Summary of Non-Mechanical Treatment
Plans for PolyMet 4 (2016).
26
A copy of the NPDES Application is available at https://www.
pca.state.mn.us/regulations/water-quality-permit-northmet (select
“NPDES/SDS Permit Application – Vol. II: Mine Site”).

 21
Mining, NorthMet Project Adaptive Water Management
Plan 20 (2017).27
PolyMet also plans to use an existing, Minntac-like
tailings basin – known to discharge water contaminated
with mercury through groundwater to surface waters
– and add more waste to the basin. NPDES Application, supra, Vol. V, at 13-14; PolyMet FEIS, supra, at
4-41. PolyMet’s proposed method to protect the environment is to allow contaminated water to seep into
the groundwater, capture the contaminated groundwater, and either send the water back to the tailings basin
or treat the water prior to discharge. NPDES Application, supra, at 20-22. But again, PolyMet knows the
containment system will not collect all pollutants and
those that escape will discharge through groundwater
to surface waters. Barr Eng’g, Groundwater Modeling
of the NorthMet Flotation Tailings Basin Containment
System 2 (2015); Barr Eng’g, NorthMet Project Water
Modeling Data Package Volume 2 160-68 (2015).28
PolyMet illustrates that industrial polluters will
continue production and propose new projects that discharge, or have the potential to discharge, mercury into
the St. Louis River watershed. PolyMet also illustrates
how designed projects like PolyMet could be easily
modified to remove containment systems and allow
27

A copy of the NorthMet Project Adaptive Water Management Plan is available at https://files.dnr.state.mn.us/lands_
minerals/northmet/permit_to_mine/appendix_11_4_dec17.pdf.
28
A copy of this report is available at https://files.dnr.state.
mn.us/lands_minerals/northmet/water-approp/references/plant-sitewater-model-data-package-vol2-v11.pdf.

 22
discharges into surface waters through groundwater
with no treatment at all. Without the Clean Water Act,
protecting the Band from these discharges will be
much more difficult.
For the foregoing reasons, the Band asserts the
Minntac and PolyMet examples strongly support the
Ninth Circuit’s and Respondents’ Clean Water Act interpretation.
II.

THIS COURT SHOULD ADOPT RESPONDENTS’ CLEAN WATER ACT INTERPRETATION BECAUSE IT IS CONSISTENT WITH
THE PLAIN LANGUAGE AND PROTECTS
IMPORTANT TRIBAL RESOURCES

Under existing federal environmental laws, the
Clean Water Act’s plain language represents the only
statutory path to protect the Band’s natural resources
from point source discharges. Petitioner’s and the U.S.
Environmental Protection Agency’s (“EPA”) proffered
interpretations undermine these protections and allow
large industrial discharges to destroy the Band’s natural resources in the Ceded Territories. Therefore, consistent with the Clean Water Act’s plain language and
purpose, the Band respectfully requests this Court
adopt Respondents’ Clean Water Act interpretation.

 23
A. The Clean Water Act’s Plain Language
Includes Discharges Fairly Traceable
To A Point Source.
The Clean Water Act’s clear prohibition that it is
illegal to discharge a pollutant from a point source to a
navigable water without a NPDES permit includes circumstances, such as those at issue in this case, where
a discharger injects treated sewage through groundwater to a navigable water. Similarly, applying the
facts related to the Band’s protection of manoomin and
freshwater fish, the Clean Water Act’s prohibitions include circumstances where pollutants are discharged
from a tailings basin through groundwater to navigable waters and damage the Band’s natural resources.
To conclude otherwise would require this Court to disregard the Clean Water Act’s plain language and purpose.
The Clean Water Act defines the discharge of a pollutant as “any addition of any pollutant to navigable
waters from any point source.” 33 U.S.C. § 1362(12).
Further, a “point source” is a “conveyance” (for example
a “pipe” or “container”) “from which pollutants are or
may be discharged.” 33 U.S.C. § 1362(14). To interpret
this language, the Court must first analyze “the statutory language, ‘assum[ing] that the ordinary meaning
of that language accurately expresses the legislative
purpose.’ ” Hardt v. Reliance Standard Life Ins. Co., 560
U.S. 242, 251 (2010) (quoting Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 175 (2009)). This Court enforces
“plain and unambiguous statutory language according
to its terms.” Id. The Court need not travel “beyond the
borders of the statute” to find the meaning of these

 24
definitions. United States v. Great N. Ry., 287 U.S. 144,
154 (1932).
As Justice Scalia described in his treatise on the
canons of statutory construction, courts are guided
by a “supremacy-of-text principle.” Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 56 (2012). A statute’s purpose “must be derived from the text” and that purpose must be “defined
precisely” and “described as concretely as possible.” Id.
at 56-57. Importantly, what is not included in the text
of a statute is equally as significant in divining its
meaning and purpose. See id. at 57-58 (“[T]he limitations of a text – what a text chooses not to do – are as
much a part of its ‘purpose’ as its affirmative dispositions. These exceptions or limitations must be respected, and the only way to accord them their due is
to reject the replacement or supplementation of text
with purpose.”)
Here, the statute means what it says – when
pollutants are added to a navigable water from any
discrete source, such as a pipe, container, or other “conveyance . . . from which pollutants . . . may be discharged,” the discharge requires a permit under the
Clean Water Act. In Petitioner’s case, no one disputes
that the County adds pollutants (treated effluent) to a
navigable water (Pacific Ocean) from a point source
(injection well). (Pet. Br. 6-7).
Petitioner and its supporting amici curiae ignore
the definition of a pollutant discharge in the Clean Water Act, and instead impose their own purpose on the
Clean Water Act based on a limitation not found in the

 25
text. Petitioner argues that the Clean Water Act’s purpose is only to regulate pollutants added directly to
navigable waters from a point source. (Id. at 27-31). In
fact, the text prohibits “any addition,” not just “any direct addition” of pollutants from a point source to navigable waters. Petitioner engages in the exact practice
Justice Scalia condemns and its interpretation should
be rejected.
There are three concepts at issue in the relevant
definition: (1) addition of pollutants, (2) to a navigable
water, (3) from a point source. The Clean Water Act further defines the terms “navigable waters” and “point
sources.” 33 U.S.C. §§ 1362(7), (14). Applying those definitions, no one disputes that the Pacific Ocean constitutes a navigable water, and the injection well, a point
source. The term most relevant to the Court’s certified
question is the word “addition.” What kind of “addition”
is intended? Must the “addition” be direct, or can it be
indirect? Is it still an “addition” if the pollutant moves
through groundwater to reach a navigable water?
The text answers these questions.
The undefined term “addition” is a general word.
“Without some indication to the contrary, general words
(like all words, general or not) must be accorded their
full and fair scope. They should not be arbitrarily limited.” Scalia & Garner, supra, at 101. The word “addition”
means “the act or process of adding; a recipe enhanced
by the addition of freshly ground pepper.” Addition,
Merriam-Webster.com, https://www.merriam-webster.com/
dictionary/addition (last visited July 16, 2019).

 26
Far from placing a limitation on the type of addition the Clean Water Act covers, Congress chose to forbid “any addition” of pollutants to navigable waters
from a point source absent a permit. As this Court previously noted “the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever
kind.’ ” United States v. Gonzales, 520 U.S. 1, 5 (1997)
(citing Webster’s Third New International Dictionary
97 (1976)). In Gonzales, the Court construed a mandatory sentencing statute forbidding a sentence that
would run concurrently with “any other term of imprisonment” for certain offenses. Id. The Court rejected an
effort to narrow the statute’s application to only federal offenses because “federal” did not appear in the
statute. Id. “Congress did not add any language limiting the breadth of that word, and so we must read [the
statute] as referring to all ‘term[s] of imprisonment,’
including those imposed by state courts.” Id.
As in Gonzales, here no basis exists to limit the
Clean Water Act which, by its plain text, prohibits “any
addition” – that is, an addition “of whatever kind” – of
pollutants to navigable waters from a point source. By
using the term “any,” Congress expressly included all
kinds of additions – direct or indirect, continuous or
intermittent, permanent or temporary, etc.
Petitioner’s interpretation requires this Court to
re-write the statute, adding a modifier to the statutory
definition so it would read: “any direct addition of any
pollutant to a navigable water from any point source.”
This Court’s canons of construction do not allow such
a re-write. The Court “must enforce plain and

 27
unambiguous statutory language according to its
terms.” Hardt, 560 U.S. at 251. That includes not adding words to a statute. Id. (where “prevailing party”
does not appear in fee shifting statute, it is error to
limit eligibility for fees to prevailing parties). Indeed,
Petitioner’s argument, which asks the Court to add unincluded terms, seeks to “invent” rather than “interpret” the statute. Id.
For these reasons, the Ninth Circuit and Respondents correctly interpret the Clean Water Act, and this
Court should reject Petitioner’s misconstruction.
B. The County’s Interpretation Would Not
Protect The Band’s Important Natural
Resources.
The interpretation Petitioner and supporting amici
offer, if adopted by this Court, would have severe consequences for water quality and natural resource protection. A narrow construction that exempts any point
source pollutant discharge through groundwater to
navigable waters from the Clean Water Act threatens
the Band’s resources both on the Reservation and in
the Ceded Territories.
1. Dischargers could easily evade the
Clean Water Act permit requirement.
Resources on the Reservation and within the
Ceded Territories lie downstream from numerous permitted water pollution discharges regulated under the
Clean Water Act. Watershed Health Assessment

 28
Framework, Minn. Dep’t Nat. Resources, http://bit.
ly/2Yhq2Sm (mapping tool that highlights all upstream feedlots, wastewater treatment facilities, and
open pit mines). Dischargers include both publiclyowned facilities like wastewater treatment works, as
well as private industries like mines, paper mills, and
power plants. Many of these discharges flow into the
St. Louis River watershed and include pollutants ranging from bacteria and nutrients to heavy metals and
other toxics.
As described above, the St. Louis River and its watershed are vitally important to the Band. See Part
I.B.2. Due to historic, pre-Clean Water Act pollution,
the St. Louis River was designated a Great Lakes
Area of Concern in 1987. Sediment Studies: St. Louis
River Area of Concern, Minn. Pollution Control Agency,
https://www.pca.state.mn.us/water/sediment-studies-stlouis-river-area-concern (last visited July 16, 2019).
Overall, more than $420 million has been invested in
the St. Louis River’s clean-up and restoration since its
designation. Minn. Pollution Control Agency et al., A
Roadmap to Delisting: St. Louis River Area of Concern
Remedial Action Plan Update 2 (2013).29 Yet mining
companies continue to propose new projects – like
PolyMet – that without stringent Clean Water Act protections could stymie the progress made to remediate
the St. Louis River watershed.

29

A copy of the Remedial Action Plan Update is available
at https://stlouisriver.org/wp-content/uploads/2015/08/Roadmap
SummaryBrochureSLR2013.pdf.

 29
The rigid pipe-into-water interpretation Petitioner
seeks to force on the statute contravenes the Clean Water Act’s purpose and creates a perverse incentive for
dischargers to simply discharge unregulated, nonpoint
source pollution. In the National Association of Clean
Water Agencies et al.’s Amicus Brief, for example, amici
assert that a “discrete source of pollution cannot be a
point source when groundwater or another intervening
nonpoint source diffuses pollutants and carries them
to navigable waters.” (Amicus Curiae Nat’l Ass’n of
Clean Water Agencies Br., 9). In other words, amici
suggest that if the pollution from a discrete source –
wastewater in a pipe, for instance – is first diffused –
sprayed on the ground, for example – it is beyond the
reach of the Clean Water Act’s permitting program.
Such a rule would eviscerate the Clean Water Act.
What would prevent existing or new dischargers from
simply removing their outfalls from a surface water
and instead placing them into adjacent groundwater,
or allowing them to discharge on beaches or fields, or
even spraying them as mist into the air? In PolyMet’s
case, this would require little more than removing the
containment systems and simply allowing contaminates to flow into the groundwater untreated.
Petitioner’s interpretation threatens decades of
achievement to clean the Nation’s surface waters, creating an incentive for polluters to design their discharges to travel through a “nonpoint” to avoid the
need for a NPDES permit. The giant loophole Petitioner’s interpretation would create contravenes Congress’s intent to “restore and maintain the chemical,

 30
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The plain meaning of the
statutory text compels the result the Ninth Circuit
reached. The Clean Water Act’s prohibition applies to
any addition of pollutants to navigable waters from a
point source, not just direct discharges.
2. Petitioner’s assertion that other regulatory requirements sufficiently control groundwater-mediated discharges
to surface waters is inaccurate.
Maintaining Clean Water Act jurisdiction over
point sources that contaminate surface waters through
groundwater seepage is vital to the protection of manoomin in the Ceded Territories. Petitioner suggests
Clean Water Act jurisdiction is unnecessary because
other existing laws provide the protections the Clean
Water Act affords – particularly state laws governing
groundwater and drinking water, and the federal Safe
Drinking Water Act (“SDWA”), Coastal Zone Act (“CZA”),
Comprehensive Environmental Response, Compensations, and Liability Act (“CERCLA”), and Resource
Conservation and Recovery Act (“RCRA”). (Pet. Br. 43-44).
But Minntac and its damage to manoomin exemplify
why limiting the Clean Water Act would allow unregulated discharges to contaminate surface waters and,
thereby, destroy the Band’s important resource.

 31
a. State Groundwater Protection
Petitioners contend state groundwater protection
laws sufficiently regulate underground discharges
from point sources such that Clean Water Act jurisdiction is superfluous. (Pet. Br. 43). But in Minnesota,
standards governing groundwater are not equivalent
to surface water standards and are often inadequate to
protect the natural environment, including the protection of manoomin. Where the Clean Water Act’s purpose extends to preserving the biological integrity of
the Nation’s waters, see 33 U.S.C. § 1251(a), Minnesota’s groundwater laws focus on groundwater’s importance for human consumption, see Minn. R. 7050.0140
(designating Class 1 waters for “[d]omestic consumption”); 7050.0221 (underground waters designated
Class 1); 7060.0200 (nondegradation policy focused
on maintaining a potable water supply for future generations). Consequently, Minnesota sets groundwater
standards based on impact to human health, rather
than impact on the environment.
Minntac’s sulfate discharges illustrate why Minnesota’s groundwater laws would not sufficiently protect
the biological integrity of surface waters, particularly
those with manoomin. Sulfate occurs naturally in
much of Minnesota’s groundwater. See Sulfate in Well
Water, Minn. Dep’t of Health, https://www.health.state.
mn.us/communities/environment/water/wells/waterquality/
sulfate.html, (last visited July 16, 2019). While humans unaccustomed to drinking water with elevated
sulfate may experience diarrhea, most adjust after a
few days. Id. The Minnesota Department of Health’s

 32
only precautions for human sulfate consumption are
that water exceeding 250 mg/L may have a “bitter” or
“medical taste” and that water with sulfate levels exceeding 500 mg/L should not be used to prepare infant
formula. Id. Correlated with these human health determinations, Minnesota’s groundwater water quality
standard for sulfate is 250 mg/L. See Minn. R. 7050.0220,
subpts. 3a(30), 4a(30) (Class 1B and 1C waters 250
mg/L); 7050.0221, subpts. 1-2 (Class 1A waters apply
EPA standards); 40 C.F.R. § 143.3 (secondary maximum contaminant level for sulfate 250 mg/L).
In contrast, as set forth above, manoomin is very
susceptible to sulfate levels. See Part I.B.1. In 1973, the
Minnesota Pollution Control Agency adopted Minn. R.
7050.0224, subpt. 2 “to protect and support the growth
of manoomin in Minnesota, and to comply with Clean
Water Act requirements set by the U.S. Environmental
Protection Agency.” Minn. Chamber of Commerce v.
Minn. Pollution Control Agency, No. A12-0950, 2012
WL 6554544, at *1 (Minn. Ct. App. Dec. 17, 2012). Minnesota set the surface water quality standard for sulfate at 10 mg/L, see Minn. R. 7050.0224, subpt. 2,
based, in part, on the Minnesota Department of Natural Resource’s recommendations that “sulfate concentrations above that level are a ‘serious detriment to the
natural and cultivated growth of wild rice.’ ” Minn.
Chamber of Commerce, 2012 WL 6554544, at *1.
Plainly, without the surface water 10 mg/L standard, protecting, for example, the Twin Lakes from contamination via underground seepage from Minntac’s
tailings basin would be almost impossible. Seeps from

 33
under the tailings basin could discharge with sulfate
levels twenty-five times higher than the surface water
standard, in compliance with Minnesota groundwater
law, and continue to deplete the manoomin in the Twin
Lakes. Consequently, eliminating Clean Water Act jurisdiction over discharges from point sources to surface
water through groundwater would undermine the ability of the Band to protect this natural resource now
and into the future.
b. CZA, RCRA, SDWA, CERCLA, and
Related State Laws
Petitioners also assert the CZA, RCRA, SDWA,
CERCLA, and related state laws adequately regulate
groundwater and surface water pollution such that
Clean Water Act jurisdiction is unnecessary. (Pet. Br.
43-44). Minntac, however, exemplifies exactly why these
statutory schemes do not target the point source discharges Congress intended the Clean Water Act to regulate.
First, Petitioners point to the CZA as evidence
that sufficient environmental protection exists outside
the Clean Water Act. (Id. at 44). But the CZA only protects coastal zones, not inland waters like those on the
Mesabi Iron Range. See 16 U.S.C. § 1455b(a)(1). Thus,
for obvious reasons, the CZA would not protect manoomin from the Minntac discharges.
Second, Petitioners assert RCRA and its accompanying regulations allow EPA to “control[ ] and remediate[ ] groundwater contamination.” (Pet. Br. 44).

 34
“RCRA is a comprehensive environmental statute that
governs the treatment, storage, and disposal of solid
and hazardous waste.” Meghrig v. KFC W., Inc., 516
U.S. 479, 483 (1996). Congress intended RCRA “to reduce the generation of hazardous waste and to ensure
the proper treatment, storage, and disposal of that
waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health
and the environment.’ ” Id. (quoting 42 U.S.C. § 6902(b)).
But RCRA does not apply to all solid waste; in fact,
Congress specifically exempted “[s]pent materials . . .
generated within the primary mineral processing industry from which minerals, acids, cyanide, water, or
other values are recovered by mineral processing or by
beneficiation.” 40 C.F.R. § 261.4(a)(17); see also Minn.
R. 7045.0120 (Minnesota’s exemption that mine waste
is not hazardous waste). RCRA, thus, does not apply
to the waste discharged into the environment from
Minntac’s tailings basin.
The SDWA similarly would not protect manoomin
from Minntac’s discharges. In particular, Petitioners
point to the SDWA Part C, governing underground injection control wells, as protective of groundwater. (Pet.
Br. 43). Congress intended Part C “to assure that underground sources of drinking water will not be endangered by any underground injection.” Nat. Res. Def.
Council, Inc. v. Envtl. Protection Agency, 824 F.2d 1258,
1268 (1st Cir. 1987). But Part C specifically applies to
“well[s],” meaning “[a] bored, drilled, or driven shaft
whose depth is greater than the largest surface dimension; or, a dug hole whose depth is greater than the

 35
largest surface dimension; or, an improved sinkhole;
or, a subsurface fluid distribution system.” 40 C.F.R.
§ 146.3. The seeps underneath Minntac’s tailings basin
do not meet this definition; the seepage occurs because
the basin is not lined and designed to leak. Minntac
Reissuance Order ¶¶ 5-7.
More generally, however, Congress intended the
SDWA “to assure that the water supply systems serving the public meet minimum national standards for
protection of public health.” H.R. Rep. No. 1185, at 1
(1974) (emphasis added). As such, while the Minnesota
Department of Health lists sulfate in its “List of Contaminants in Water,” as discussed above, the Minnesota Department of Health has few concerns regarding
sulfate, as it naturally occurs in wells throughout the
state. Sulfate in Well Water, supra. Consequently, the
SDWA and state regulations do not protect manoomin
from sulfate contamination where sulfate levels too
high for manoomin are considered safe for human consumption.
Finally, Petitioner avers that CERCLA protects
groundwater from “hazardous substances” such that
regulating point source discharges under the Clean
Water Act is unnecessary. (Pet. Br. 44). But Congress
fundamentally intended CERCLA to serve a very different purpose than the Clean Water Act: promoting
clean-up efforts for sites already contaminated with
hazardous waste. See Burlington N. & Santa Fe Ry. Co.
v. United States, 556 U.S. 599, 602 (2009). This contrasts with the Clean Water Act’s broader purpose to
not only “restore” the Nation’s waters, but also to

 36
“maintain” the waters by preventing future pollution.
See 33 U.S.C. § 1251(a). Further, sulfate arguably does
not meet the “hazardous substance” definition under
CERCLA. See 42 U.S.C. § 9601(14); Rhodes v. Cty. of
Darlington, S.C., 833 F. Supp. 1163, 1178 (D.S.C. 1992);
40 C.F.R. § 302.4; see also Minn. Stat. §§ 115B.01115B.53. Thus, the sulfate discharges from Minntac
would not qualify the facility for CERCLA remediation.
For these reasons, Petitioner’s interpretation not
only undermines the Clean Water Act, it leaves valuable
environmental resources unprotected by any federal or
state scheme. The Band asks this Court to apply the
Clean Water Act’s plain language, interpret the statute
consistent with the Clean Water Act’s purpose, and apply the Clean Water Act in a way that protects the
Band’s important natural resources.
------------------------------------------------------------------

CONCLUSION
Because the Ninth Circuit’s and Respondents’
Clean Water Act interpretation is consistent with the
Clean Water Act’s plain language and such an interpretation is necessary to protect the Band’s important

 37
resources, amicus curiae urges the Court to affirm the
Ninth Circuit’s decision.
Respectfully submitted,
ELISE L. LARSON
Counsel of Record
KEVIN S. REUTHER
MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY
1919 University Avenue West, Ste. 515
St. Paul, MN 55104-3435
651-223-5969
elarson@mncenter.org
Counsel for Amicus Curiae
JULY 19, 2019