San Carlos Apache Tribe v. Arizona, et al.

Queen Creek is sacred to members of the San Carlos Apache Tribe. For over a century, nearby mines have discharged copper into Queen Creek, causing it to fail water quality standards, harming Apache Holy Beings (Ga’an), and interfering with traditional Apache religious beliefs. The policy of the United States is that the chemical, physical, and biological integrity of Queen Creek be restored and maintained. See 33 U.S.C. § 1251(a). Accordingly, federal regulations impose strict requirements on new sources of pollution before they discharge into impaired waterways. See, e.g., 40 C.F.R. § 122.4(i), Part 440. In 2007, Resolution Copper Mining, LLC (“Resolution”) began constructing one of the largest copper mines in modern history near an old mine that had been exhausted in 1996. In 2017, Resolution applied to the Arizona Department of Environmental Quality (“ADEQ”) to renew the old mine’s discharge permit and included the new mine with it. Rather than conduct a “new source analysis” as required by governing regulations, ADEQ capitulated and renewed the permit, treating the new mine as part of the existing source. The Arizona Supreme Court affirmed, also departing from the regulation’s plain text, thereby committing an error of law. Rather than consider whether the new mine is operationally independent, as 40 C.F.R. § 122.29(b) requires, the court invented a “material connection” test out of whole cloth and determined that the gargantuan new mine is merely an extension of the exhausted mine. By departing from the regulation’s plain text, the Arizona Supreme Court failed to apply the method of interpretation this Court requires. See Cty. of Maui v.