Bering Strait Citizens v. U.S. Army Corps, Engin., 07-35506.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Gould
• Citation: 511 F.3d 1011
• Parties: BERING STRAIT CITIZENS FOR RESPONSIBLE RESOURCE DEVELOPMENT; Susan Steinacher; Jana Varrati, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; Kevin J. Wilson, District Engineer, U.S. Army Corps of Engineers; Alaska Gold Company, Defendants-Appellees.
• Docket Number: No. 07-35506.,07-35506.
• Decision Date: 03 January 2008

511 F.3d 1011 BERING STRAIT CITIZENS FOR RESPONSIBLE RESOURCE DEVELOPMENT; Susan Steinacher; Jana Varrati, Plaintiffs-Appellants,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; Kevin J. Wilson, District Engineer, U.S. Army Corps of Engineers; Alaska Gold Company, Defendants-Appellees. No. 07-35506. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 26, 2007. Filed January 3, 2008.

[511 F.3d 1015]

Victoria Clark, Brian Litmans, Trustees for Alaska, Anchorage, AK; Roger Flynn, Jeffrey C. Parsons, Western Mining Action Project, Lyons, CO, for plaintiffs-appellants Bering Strait Citizens for Responsible

[511 F.3d 1016]

Resource Development, Susan Steinacher and Jana Varrati.

Ronald J. Tenpas, Acting Assistant Attorney General, Ryan D. Nelson, Deputy Assistant Attorney General, Dean K. Dunsmore, Luther L. Hajek, Daniel Pinkston, Jennifer L. Scheller, Lisa E. Jones, Attorneys, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for defendant-appellees United States Army Corps of Engineers and Colonel Kevin J. Wilson.

Michael A. Grisham, Dorsey & Whitney LLP, Anchorage, AK, for defendant-intervenor Alaska Gold Company.

Appeal from the United States District Court for the District of Alaska; Ralph R. Beistline, District Judge, Presiding. D.C. No. CV-07-00057-RRB.

Before: B. FLETCHER, ANDREW J. KLEINFELD, and RONALD M. GOULD, Circuit Judges.

GOULD, Circuit Judge:

This appeal concerns a permit issued to Defendant-Appellee Alaska Gold Company ("AGC"), by Defendant-Appellee Army Corps of Engineers ("the Corps") for a major gold-mining project near Nome, Alaska. The permit was issued pursuant to Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, which authorizes the Corps to issue permits for the discharge of dredged or fill material into the navigable waters of the United States.

The project, known as the "Rock Creek Mine Project," would consist of two open-pit gold mines at separate locations outside of Nome, plus facilities built for recovering and processing gold ore. Once the project is commenced, about 15,592,411 cubic yards of fill from the mine will be placed in wetlands totaling 346.5 acres.

Plaintiffs-Appellants Bering Strait Citizens for Responsible Resource Development, Susan Steinacher, and Jana Varrati (collectively, "BSC"), allege that the Corps violated the CWA and the National Environmental Policy Act ("NEPA") by granting a permit for the Rock Creek Mine Project. BSC appeals the district court's denial of its motion for a temporary restraining order and a preliminary injunction, and the district court's dismissal of the suit on summary judgment. We conclude that the Corps complied with the requirements of the CWA and NEPA, and affirm the judgment of the district court.

I A

The Rock Creek Mine Project is a project of Defendant-Appellee AGC. It has a projected life of four to five years and is expected to process 7,000 tons of gold ore per day when operable. The complete project consists of two sites. The first, the "Rock Creek Mine/Mill," lies six miles north of Nome, Alaska in the Snake River watershed. When completed, the Rock Creek Mine/Mill site would consist of a fifty-acre open pit gold mine, a gold recovery plant, a paste tailings storage facility, two non-acid generating development rock stockpiles, a facility for crushing and processing the gold ore, and buildings used for storage and maintenance purposes.

The second facility, the "Big Hurrah Mine," lies 42 miles east of Nome, Alaska. When completed, the Big Hurrah Mine would consist of a 22-acre open pit gold mine, ore stockpiles, and additional buildings for storage and maintenance purposes. Ore from the Big Hurrah Mine would be trucked to the Rock Creek Mine/Mill site for processing, so the Big Hurrah Mine would not include processing or tailings storage facilities. Both sites are controlled

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by AGC, through outright ownership or through leases from local Native corporations.

The sites of both the Rock Creek Mine/Mill and the Big Hurrah Mine were historically mined and contain debris and tailing piles from earlier mining activities. At the Rock Creek Mine/Mill site, rock stockpiles from previous mining operations now occupy 62 acres of wetlands. At the Big Hurrah Mine, the area that would become the open pit mine at this time contains tailings from previous gold mining activities, and Big Hurrah Creek (adjacent to the Big Hurrah Mine) contains tailings that have diverted the creek from its natural path.

Both sites figured prominently in Alaska's early "gold rush" history, commencing late in the nineteenth century. Technological advances and current gold prices have rendered the mining claims economic once more, and impelled the evaluation of prospective development combined with rehabilitation of the sites. The Corps and AGC hope for an economic advantage and environmental improvement as a result. AGC observes that Nome has unemployment rates over twice the state average and that the region currently offers limited opportunities for economic development, and the Corps considered the region's economic conditions when assessing the permit.

The construction and operation of the Rock Creek Mine Project will result in the permanent destruction of 346.5 acres of existing wetlands. Most of these wetlands are located at the Rock Creek Mine/Mill site, where two rock stockpiles, the tailings storage facility, and other facilities would be constructed in existing wetlands. Development of the Big Hurrah Mine would destroy five acres of existing wetlands to widen and improve the existing road to the Big Hurrah Mine.

The permit issued by the Corps requires measures to mitigate environmental damage from this project and earlier mining activities at the sites. At the Rock Creek Mine/Mill, these measures include the removal of the rock stockpiles from existing wetlands for placement in newly-constructed storage facilities, the reclamation of wetlands disturbed by previously constructed water-management systems, and the conversion of the mining pit to a pit lake (i.e. the mining pit will be filled with water). At the Big Hurrah Mine, these measures include the use of historic waste rock for improvements to the Big Hurrah access road, the removal of tailings from the Big Hurrah Creek flood plain to restore the natural flow of the creek, and the conversion of the mining pit to a pit lake. The Corps calculates that these mitigation measures will result in the reclamation of 106 acres of previously-disturbed wetlands and the creation of 70 acres of new wetlands. Taking these mitigation measures into account, the Rock Creek Mining Project will result in a net loss of 170.5 acres of wetlands.

B

AGC applied for a permit from the Corps for the Rock Creek Mine Project in May, 2006. The Corps posted a public notice describing the project on its website on June 1, 2006. The notice included information about a public meeting to be held in Nome on June 26, 2006, and the notice was delivered in electronic or hardcopy format to federal, state, and local agencies, the community of Native Alaskans residing in or near Nome, the City of Nome, the neighboring community of Solomon, adjacent property owners, the Nome Postmaster, and any member of the community who requested a copy.

In response to the Corps' request for comment, the Environmental Protection

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Agency ("EPA") requested a thirty-day extension of the comment period. The Corps responded by granting a twenty-day extension. EPA said that it did not have sufficient information to conclude that the project met the requirements of the CWA. Specifically, EPA argued that the project did not appear to be the least damaging practicable alternative, that information regarding mitigation measures and the closure of the site provided by AGC was incomplete, that the Corps had not adequately considered the cumulative effects of all potential mining activities in the area, and that the project did not adequately consider naturally-occurring damage to wetlands in the area. EPA's response also included a list of seven conditions that it wanted included in any permit for the project.

The U.S. Fish and Wildlife Service ("USFWS") joined EPA's request for an extension of the comment period and gave proposed conditions to be added to the permit. Along with a series of highly specific site-design conditions,¹ USFWS proposed a permit condition that requires AGC to "work with the Corps, the [USFWS], the EPA, and the [Alaska Department of Natural Resources] to identify additional mitigation opportunities in the project area that will benefit birds."

Local agencies, organizations, and individuals also responded to the request for comment. The City of Nome² asked for additional study of the project. Business organizations, including the Nome Chamber of Commerce, supported the project, while many scientific and environmental organizations opposed the project or requested additional study.³ In addition to these agencies and organizations, thirty-four companies and forty-five individuals wrote in support of the project, while seven individuals opposed it.

In August, 2006, the Corps issued a permit for the Rock Creek Mine Project. Thereafter, Plaintiff-Appellants BSC filed suit in the United States District Court for the District of Alaska challenging the permit. In December 2006, the Corps withdrew the permit, informing AGC that the Corps needed additional time to confirm that the Permit Evaluation and Decision Document ("PEDD") — the document on which permitting decisions are based — was factually complete, accurate, and consistent with applicable law. The Corps then moved for a voluntary remand, which the district court granted.

C

In February 2007, the Corps issued a revised PEDD for the Rock Creek Mine Project. The revised PEDD reviewed the comments received on the project, the environmental consequences of the...