Southeast Alaska Conse. v. U.S. Army Corps of Eng.

• Decision Date: 16 March 2007
• Docket Number: No. 06-35679.,06-35679.
• Citation: 479 F.3d 1148
• Parties: SOUTHEAST ALASKA CONSERVATION COUNCIL; et al., Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; et al., Defendants-Appellees, Coeur Alaska, Inc.; et al., Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.3d 1148

SOUTHEAST ALASKA CONSERVATION COUNCIL; et al., Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; et al., Defendants-Appellees, Coeur Alaska, Inc.; et al., Defendants-Intervenors-Appellees.

No. 06-35679.

United States Court of Appeals, Ninth Circuit.

March 16, 2007.

Thomas S. Waldo, Esq., Earthjustice Legal Defense Fund, Inc., Juneau, AK, Plaintiffs-Appellants.

John T. Stahr, Esq., Aaron P. Avila, Esq., U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, Richard L. Pomeroy, Esq., Office of the U.S. Attorney, Anchorage, AK, Mark A. Nitczynski, Esq., U.S. Department of Justice Environment & Natural Resources Division, Denver, CO, for Defendants-Appellees.

John C. Berghoff, Jr., Esq., Mayer Brown Rowe & Maw, LLP, Chicago, IL, Robert A. Maynard, Esq., Perkins Coie, LLP, Boise, ID, David C. Crosby, Esq., David C. Crosby, P.C., Juneau, AK, Cameron M. Leonard, Office of the Alaska Attorney General, Fairbanks, AK, Ruth Hamilton Heese, Esq., Office of the Alaska Attorney General, Juneau, AK, for Defendants-Intervenors-Appellees.

Before PROCTER HUG, JR., A. WALLACE TASHIMA, and SUSAN P. GRABER, Circuit Judges.

ORDER

Appellee U.S. Army Corps of Engineers' ("Corps") Emergency Motion Under Circuit Rule 27-3 for Authorization Under the Injunction Pending Appeal to Permit Construction of a Western Interceptor Ditch is denied.¹

This motion comes to us in a case in which Appellant Southeast Alaska Conservation Council ("SEACC") has appealed a grant of summary judgment in favor of the Corps and the U.S. Forest Service. SEACC challenges the Corps' issuance of a permit, pursuant to § 404 of the Clean Water Act of 1972, to Coeur Alaska, Inc. for the discharge of approximately 210,000 gallons of slurry (including 1,444 tons of mine tailings) per day from its froth-flotation mill operation at the Kensington Gold Mine into Lower Slate Lake, a 23-acre lake in the Tongass National Forest in Southeast Alaska. The discharge ultimately will raise the bottom of the lake 50 feet to its current high water mark and nearly triple its surface area. Coeur Alaska and the Corps admit that the discharge and settling of tailings into the lake will kill all of the fish and nearly all other aquatic life, primarily due to their being covered by the discharged material. In addition, the toxicity of the tailings may have lasting effects on the lake and may have a negative effect on its ability to sustain aquatic life in the future. As a result, the extent to which aquatic life could eventually be restored is unclear.

To prepare the lake for the disposal of tailings and the consequent expansion of the lake's surface area, Coeur Alaska intends to construct a 90-foot high, 500-foot long dam at the lake's outfall point. Construction of the dam has already begun. After SEACC filed its appeal in this case, Coeur Alaska built a temporary "coffer dam," approximately 20 feet high, which it admits was always intended to be temporary and was not designed to withstand long-term use. Coeur Alaska had begun construction of a sturdier 38-foot high earthen dam behind the coffer dam when this court halted further construction at the site pending the outcome of this appeal. Coeur Alaska's long-term plan to use the lake as a disposal site also includes the construction of a diversion ditch nearly identical to that proposed in the Corps' emergency motion.

Work ceased on the dam, and at the rest of the site, when this court granted the injunction pending appeal in favor of SEACC. See SEACC v. U.S. Army Corps of Eng'rs, 472 F.3d 1097, 1099 (9th Cir. 2006). That order enjoined Coeur Alaska, the Corps, and the Forest Service from activities relating to the construction of a disposal facility at Lower Slate Lake. Id. On August 4, 2006, the district court entered a judgment denying SEACC's requested injunction to prevent the implementation of the Coeur Alaska plan to dump the tailings into Lower Slate Lake. Three days later, SEACC filed a notice of appeal. Coeur Alaska apparently commenced building the temporary coffer dam after the district court entered judgment. This act obviously was undertaken knowing an appeal was pending. On August 24, this court entered its injunction pending appeal, prohibiting Coeur Alaska, the Corps, and the Forest Service from proceeding further with construction of facilities to implement the proposed plan to dispose of tailings into the lake. The temporary coffer dam was thus constructed between the time of the district court's judgment on August 4, 2006, and the time of the injunction on August 24, 2006. It appears there was a rush to construct the temporary dam during this 20-day period even though an appeal was pending.

It was not until November 7, 2006, in its motion to vacate the injunction, that Coeur Alaska raised its concerns about the possible effect of weather on the integrity of the dam. Id. The motion was denied. We held that SEACC had argued persuasively that the Corps' permit to Coeur Alaska violates the Clean Water Act and that the construction would adversely affect the environment by destroying trees and other vegetation, and by killing aquatic life. At the time, we directed the parties to meet and consider how best to address the threat posed by weather conditions to the integrity of the temporary coffer dam.² Id. The parties met, but disagreed regarding how to address the perceived threat to the integrity of the temporary coffer dam. Now, the Corps seeks this court's authorization of a plan involving the construction of a diversion ditch known as the Western Interceptor Ditch ("WID"). Coeur Alaska is actually advocating the plan, but the Corps has conditionally approved the plan and now asks for this court's authorization. For the reasons discussed below, we do not authorize such a plan.

Coeur Alaska's ditch plan violates both the letter and the spirit of the injunction. That injunction prohibits the Corps, the Forest Service, and Coeur Alaska "from authorizing, allowing, or conducting any further construction activities relating to the use of Lower Slate Lake as a disposal site for mine tailings, including, but not limited to, cutting trees, building roads, clearing vegetation, excavating or filling wetlands, building dams or other structures, diverting streams, or altering the natural water level of Lower Slate Lake or the natural flow of East Fork Slate Creek, until further notice of this court." Yet Coeur Alaska's plan would require cutting trees on 7.6 acres of forested land, building a 30-foot wide road, excavating and digging a 3,000-foot ditch, filling in 4.5 acres of nearby wetlands with 28,800 cubic yards of fill material, diverting natural surface water and groundwater flow, altering the natural level of the lake (which would normally rise during the freshet), bypassing a portion of the creek, and altering the natural flow of the creek (which would increase greatly during the freshet). This plan clearly does not comply with the injunction.

In approving Coeur Alaska's ditch plan, the Corps has disregarded the purpose of the original injunction, which was to prevent further environmental degradation of the site pending the outcome of this appeal. Id. at 1100. In its motion to vacate the injunction, Coeur Alaska sought permission to bolster the coffer dam situated at the outfall point of the lake so that it would not breach during the spring freshet. Id. at 1101. That plan is less environmentally harmful than the current plan of clearing a swath of trees around the lake, digging a large ditch, installing a liner, constructing a service road, and filling in wetlands. It is also important to reiterate that the ditch plan is part of Coeur Alaska's long-term plan to use the lake as a disposal facility. Granting the Corps' motion would allow Coeur Alaska to begin preparing the site for disposal prior to this court's resolution of the appeal....