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Jones v. National Marine Fisheries Service

United States Court of Appeals, Ninth Circuit

December 20, 2013

John B. JONES, III; Julie Jones; Larry White; Bandon Woodlands Community Association; Oregon Coast Alliance, Plaintiffs-Appellants,
v.
NATIONAL MARINE FISHERIES SERVICE; William W. Stelle, Jr., in his official capacity as Acting Regional Administrator; United States Army Corps of Engineers; Robert L. Van Antwerp, Jr., Chief of Engineers and Commanding General, Defendants-Appellees, Oregon Resources Corporation, Intervenor-Defendant-Appellee.

Argued and Submitted Nov. 6, 2013.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Courtney Johnson (argued), and Christopher Winter, Crag Law Center, Portland, OR, for Plaintiffs-Appellants.

Maggie B. Smith (argued), Amanda Shafer Berman, Barbara M.R. Marvin, and Lane N. McFadden, Attorneys, Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C., for Federal Defendants-Appellees.

Per Arnold Ramfjord (argued), Stoel Rives LLP, Portland, OR; Leonard J. Feldman and Jason T. Morgan, Stoel Rives LLP, Seattle, Washington; and Peter Davis Sax, Office of the United States Attorney, Tucson, AZ, for Intervenor-Defendant-Appellee Oregon Resources Corporation.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. 6: 10-cv-06427-HO.

Before: ARTHUR L. ALARCÓ N, MILAN D SMITH, JR., and ANDREW D. HURWITZ, Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

In 2008, Oregon Resources Corporation (ORC) applied for various state permits to mine valuable mineral sands from an area near Coos Bay, Oregon. ORC also applied for a permit from the Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344, because the project required filling in several acres of wetland. The Corps was required to comply with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., as part of the permitting process. The Corps therefore prepared an Environmental Assessment (EA), and issued a " Finding of No Significant Impact" (FONSI) in lieu of preparing a full Environmental Impact Statement (EIS), before ultimately issuing the requested Section 404 permit (ORC Section 404 Permit).

The Bandon Woodlands Community Association and other plaintiffs (collectively Woodlands) challenge several aspects of the EA and FONSI. Specifically, Woodlands claim that (1) the EA was deficient because it did not adequately examine the risks associated with the potential generation of toxic hexavalent chromium (Cr ) as a result of the proposed mining; (2) the FONSI was arbitrary and capricious because of " significant uncertainty" surrounding the likelihood and impact of Cr generation; and (3) the grant of the ORC Section 404 Permit was arbitrary and capricious because the Corps did not conduct an adequate " alternatives analysis." We find Woodlands' arguments without merit and affirm the district court's grant of summary judgement to the Corps.

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

A. ORC's Mining Project

ORC's project involves mining naturally-occurring chromite, garnet, and zircon

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sands from four sites near Coos Bay, Oregon. The chromite and zircon sands are marketed to foundries for use in casting metal parts, while the garnet sands are sold for use in the water jet cutting industry. The ORC Section 404 Permit covers four sites, called the South Seven Devils, North Seven Devils, West Bohemia, and West Section 101 sites. These sites cover approximately 160 acres and are located on privately-owned timberlands. [1]

ORC uses standard excavation equipment to remove topsoil covering the mineral sands. Topsoil is then stockpiled along the margins of the mining area, while mineral sands are loaded into trucks and transported to ORC's refining plant in Coos Bay. The refining plant uses a gravimetric process to separate out the marketable sand, which makes up roughly twenty-five percent of the sand transported from the mining sites. The remaining seventy-five percent of the sand is returned to the mine site.

As part of ORC's reclamation plan, each area is backfilled with the non-mineral sands returned from the processing plant, in addition to other material removed in the mining process. Each excavated area is then graded and replanted with trees. The reclamation process also involves the creation of new wetland areas pursuant to a mitigation plan. Mining has already been in process for several years, and the project will be completed in roughly three to six years.

B. The Permitting Process

ORC submitted a Section 404 permit application to the Corps on May 8, 2008. The Corps' decision to grant a Section 404 permit is subject to the requirements of both the NEPA and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., the latter of which requires the Corps to consult with the National Marine Fisheries Service (NMFS). Additionally, ORC was required to obtain approvals from a number of state agencies, including the Oregon Department of Geology and Minerals Industry (DOGAMI), the Oregon Department of State Lands, and the Oregon Department of Environmental Quality (DEQ). DEQ has jurisdiction over state water quality standards pursuant to Section 401 of the CWA. The state and federal agencies coordinated the permitting process in this case and provided technical support to one another.

Shortly after ORC filed its permit application, the Corps contacted NMFS to begin informal consultation under the CWA. Over the next two years, the Corps and NMFS gathered information about the project and its potential impacts. The Corps and NMFS conducted site visits, held public and private meetings, evaluated information provided by stakeholders, including Woodlands, and coordinated with state agencies.

Eventually, the Corps issued an EA discussing the potential environmental impacts of ORC's mining project. The EA concluded that the project would not have a significant effect on the human environment, and, accordingly, the Corps issued a FONSI. Because it issued a FONSI, the Corps did not prepare an EIS. The NMFS issued a letter of concurrence with the EA, and ORC received all necessary state permits, including a Section 401 water quality certification from the DEQ.

1. Hexavalent Chromium Generation

In its NEPA analysis, the Corps considered the potential for increased Cr

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generation from the proposed mining. Woodlands' public comments on the permit application noted that the chromite sands ORC planned to mine contained benign trivalent chromium (Cr ), which can oxidize into toxic Cr in the presence of manganese oxide, which is also present at the sites. Woodlands was concerned that ORC's mining project could lead to increased Cr generation, which could, in turn, contaminate ground and surface water. Woodlands submitted expert reports that recommended, among other things, ongoing monitoring during the mining process to ensure that the amount of Cr did not increase.

ORC responded to Woodlands' comments and expert reports in a Biological Assessment (BA). The BA suggested that the risk of Cr generation was minimal, because

• The geology of the mining area did not indicate that chromite sands would react with manganese oxide to form Cr . Groundwater sampling demonstrated that the existing levels of Cr in groundwater at the ...

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