Two lawsuits accused a gold mine’s owner of violating its water pollution permit. A private group settled and the owner argued that ended the state’s case too. A federal appeals court said no.
Appeals court rulingTL;DR
- The State of Washington and a nonprofit, the Okanogan Highlands Alliance (OHA), separately sued Crown Resources Corporation and its parent, Kinross Gold U.S.A., in 2020. Both alleged “extensive violations” of the water pollution permit for the Buckhorn Mountain Mine, an underground gold mine in Okanogan County.
- OHA settled in 2024. Washington’s lawyer was told the day before the deal was filed in court.
- The settlement has Crown study the site and build a cleanup plan with OHA. According to the Ninth Circuit, it doesn’t require Crown to carry out any actual remedial action.
- Crown argued the deal also barred Washington’s suit, and the trial court agreed. On September 28, 2026, the Ninth Circuit reversed.
- No court has found that the mine violated its permit, and the opinion doesn’t describe what was released or what it did to the environment.
The allegation is pollution. The ruling is about who gets to keep fighting over it.
What’s Alleged
Crown runs the Buckhorn Mountain Mine under a discharge permit. Think of it as a set of rules for what a facility may release into rivers and streams, issued under the Clean Water Act through a system called the National Pollutant Discharge Elimination System. Washington’s Department of Ecology issued the mine’s permit in 2007 and reissued it in 2014 and 2015. Under the Act, breaking a permit’s limits counts as breaking federal law, and ordinary citizens and groups can sue over it.
That’s what happened in spring 2020. OHA sued in April and the state sued in May, each alleging “extensive violations” of the same permit, and the cases were combined. Beyond that, the opinion keeps the details of the alleged pollution at arm’s length. It doesn’t say what substances were involved, how much, where they ended up, or how long it went on.
There are two small windows into the dispute. Washington told the court it could show that more remedial measures are required, “such as capturing and treating contaminated discharges at two locations already identified by Washington’s experts.” That’s the state’s position, not a finding. And the court describes the settlement’s cleanup terms as addressing “pollution caused by the mine,” wording the opinion uses while making no ruling that any pollution occurred.
The Impact Question
This is the part a reader most wants, and the source can’t deliver it. The opinion doesn’t document harm to a river, a fish population, a drinking water supply or a person. It never reached the merits of the case, so no one has yet had to prove what the alleged violations did.
What the opinion does offer is a statement of what the law is for. Quoting an earlier Ninth Circuit case, it says a permit’s monitoring and reporting rules “serve the public’s substantive interest in clean water and the environment.” That describes the purpose of the Clean Water Act. It isn’t evidence that any harm happened at Buckhorn.
One concrete consequence is documented, and it’s about process. A state agency that sued to enforce a pollution permit was kept out of a settlement of a parallel case, then had its own case dismissed because of that settlement, until the appeals court undid it.
A Settlement With Money, but No Required Cleanup
The settlement is large on paper. Crown agreed to pay OHA $150,000 for compliance monitoring and $2,250,000 for its attorneys’ fees, plus $3,000,000 to three environmental organizations for conservation in the upper Columbia Basin. The court notes that the conservation work is unrelated to the mine.
For the mine itself, the settlement requires a “Site Investigation Plan,” meaning data gathering and regular consultation with OHA, followed by a good-faith effort to develop a corrective action plan. A plan about a cleanup is not a cleanup.
From the opinion
“[N]othing in the consent decree requires Crown to take any actual remedial action.”
Judge W. Fletcher, describing the OHA settlement
| Issue | Washington’s stated goal | The OHA settlement |
|---|---|---|
| Contaminated discharges | Capture and treat them at two locations the state’s experts identified | Investigate the site and develop a plan; no required remedial action |
| Who pays long-term | Hold parent company Kinross accountable for long-term remedy costs | No such provision, per the court |
| Penalties | Additional penalties for the full duration and extent of the violations | Payments go to OHA and conservation groups; none to Washington |
Washington’s column is a wish list, and whether the Clean Water Act requires any of it is undecided. The court’s point is narrower: the two sides wanted different things, so OHA’s deal can’t be treated as the state’s.
What the Court Decided
Crown argued that OHA’s settlement ended Washington’s suit under a rule called claim preclusion, where a final judgment can block later suits over the same dispute. For that to bind a party that never signed, the party has to have been “in privity” with the one who did, meaning so closely aligned that one effectively stood in for the other.
The Ninth Circuit found they weren’t. Washington’s and OHA’s interests differed, as the money and cleanup terms show. OHA never acted for the state, the trial court did nothing to protect it, and the Clean Water Act doesn’t say one citizen suit shuts down others. Crown’s further argument, that Washington lost by not objecting during a 45-day waiting period before the decree was entered, got the sharpest reply: “Crown’s argument has no basis in law.” The panel found that period exists to protect the federal government, not citizen plaintiffs.
The case goes back to the trial court. The opinion says plainly: “We express no view on the merits of Washington’s claims.”
What to Watch
- Whether the State of Washington gets to present its case that the permit was violated, the thing no court has yet examined.
- Whether treatment of discharges at the two locations the state identified, long-term cost responsibility for Kinross Gold U.S.A., and extra penalties become live issues on remand.
- Any record on what the alleged violations actually released and affected. Right now, that’s the missing piece of this story.
The source document for this investigation is attached below.
