Bristol Bay Econ. Dev. Corp. v. Hladick
| Decision Date | 17 April 2020 |
| Docket Number | Case No. 3:19-cv-00265-SLG (Consolidated), Case No. 3:19-cv-00268-SLG, Case No. 3:19-cv-00267-SLG |
| Citation | 454 F.Supp.3d 892 |
| Parties | BRISTOL BAY ECONOMIC DEVELOPMENT CORPORATION, et al., Plaintiffs, v. Chris HLADICK, U.S. Environmental Protection Agency, et al., Defendants, v. State of Alaska, Defendant-intervenor. SalmonState, et al., Plaintiffs, v. Chris Hladick, U.S. Environmental Protection Agency, et al., Defendants. Trout Unlimited, Plaintiff, v. U.S. Environmental Protection Agency, et al., Defendants. |
| Court | U.S. District Court — District of Alaska |
Jeffrey M. Feldman, Summit Law Group PLLC, Lynn M. Engel, Pro Hac Vice, Ralph H. Palumbo, Pro Hac Vice, Yarmuth LLP, Seattle, WA, for Plaintiffs Bristol Bay Economic Development Corporation, Bristol Bay Native Association, Inc., Bristol Bay Reserve Association.
Matthew Neil Newman, Megan Rachel Condon, Native American Rights Fund, Anchorge, AK, for Plaintiff United Tribes of Bristol Bay.
Scott M. Kendall, Holmes Weddle & Barcott, PC, Anchorage, AK, for Plaintiff Bristol Bay Regional Seafood Development Association, Inc.
Abraham J. Shanedling, Pro Hac Vice, Paul Werner, Pro Hac Vice, Rachelle Bishop, Pro Hac Vice, Steven P. Hollman, Pro Hac Vice, Sheppard, Mullin, Richter, & Hampton LLP, Washington, DC, Austin E. Williams, Trout Unlimited, Anchorage, AK, for Plaintiff Trout Unlimited.
Brian Litmans, Katherine G. Strong, Trustees for Alaska, Anchorage, AK, for Plaintiffs SalmonState, Alaska Center, Alaska Community Action On Toxics, Alaska Wilderness League, Cook Inletkeeper, Defenders of Wildlife, Friends of McNeil River, National Parks Conservation Association, National Wildlife Federation, Sierra Club, Wild Salmon Center, McNeil River Alliance.
Erin Whalen, Thomas S. Waldo, Earthjustice, Juneau, AK, for Plaintiff Earthworks.
Jacqueline Miya Iwata, Pro Hac Vice, Thomas David Zimpleman, Pro Hac Vice, Natural Resources Defense Council, Inc., Washington, DC, Joel Robert Reynolds, Pro Hac Vice, Natural Resources Defense Council, Santa Monica, CA, for Plaintiff Natural Resources Defense Council.
Mark A. Nitczynski, U.S. Department of Justice, Denver, CO, Richard L. Pomeroy, U.S. Attorney's Office, Anchorage, AK, for Defendants.
Sharon L. Gleason, UNITED STATES DISTRICT JUDGE In 2014, the Environmental Protection Agency ("EPA") proposed action under the Clean Water Act ("CWA") that would prohibit the U.S. Army Corps of Engineers ("Corps") from issuing a permit to allow development of the Pebble Mine. As a result of litigation, EPA in 2017 sought public input on whether to suspend the process it had begun. In 2018, the agency decided to leave its proposed action in place. But EPA later reversed itself, withdrawing its proposed action on August 30, 2019. These lawsuits followed, challenging EPA's August 2019 decision.1
Before the Court at Docket 36 is Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b). Plaintiffs' Joint Opposition is at Docket 38. Oral argument on the motion was held on March 2, 2020.2 For the reasons set forth below, the motion to dismiss is granted.3
The Clean Water Act ("CWA") provides that "the discharge of any pollutant by any person shall be unlawful" unless it is in compliance with the Act's provisions.4 One such provision is CWA § 404, which authorizes the Corps to issue permits for "dredged or fill material into the navigable waters [of the United States] at specified disposal sites."5 The CWA gives EPA the ability to exercise an oversight authority over this process; the Corps' permitting authority is made subject to § 404(c), which provides, in full:
The Administrator [of EPA] is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.6
In short, while the CWA vests the Corps with permitting authority for the discharge of dredged and fill material, § 404(c) gives EPA the power to veto individual permits.7
EPA regulations govern the agency's implementation of § 404(c). Under these regulations, "[i]f the Regional Administrator has reason to believe after evaluating the information available to him ... that an ‘unacceptable adverse effect’ could result from the specification or use for specification of a defined area for the disposal of dredged or fill material, he may initiate" the § 404(c) process.8 If the Regional Administrator elects to initiate the process, the regulations set out the procedural steps to be followed. First, the Regional Administrator must notify the Corps, the owner of the disposal site, and the permit applicant of his intent "to issue a public notice of a proposed determination to prohibit or withdraw" the dredged or fill material permit.9 If within 15 days of this notice, "it has not been demonstrated to the satisfaction of the Regional Administrator that no unacceptable adverse effect(s) will occur" or the Corps does not give notice that it will take "corrective action" to address the Regional Administrator's concerns, "the Regional Administrator shall publish a notice of a proposed determination."10 Once this process is initiated, "the [Corps] ... shall not issue [a] permit" until EPA takes final action under § 404(c).11
After providing for public notice and comment, the Regional Administrator must either withdraw the proposed determination or make a recommended determination to prohibit the discharge "because [it] ... would be likely to have an unacceptable adverse effect."12 Before a proposed determination may be withdrawn, the Administrator must be given an opportunity to review the decision.13 If the Administrator decides not to exercise review, the Regional Administrator must give public notice of the withdrawal of the proposed determination.14 The regulations state that "[s]uch notice shall constitute final agency action."15
If the Regional Administrator instead makes a recommended determination, he must send it, along with the administrative record, to the EPA Administrator "for review."16 The EPA Administrator must then "make a final determination affirming, modifying, or rescinding the recommended determination."17 The regulations require the final determination to include findings and "stat[ed] reasons," and to be published in the Federal Register.18
Section 404(c) vetoes are rare. According to EPA, the agency "has used its section 404(c) authority judiciously and sparingly, having completed only 13 section 404(c) actions in the 42-year history of the CWA."19
In 2011, Northern Dynasty Minerals, which owns Pebble Limited Partnership ("PLP"), notified the Securities and Exchange Commission of its "intention to develop a large-scale mine at the Pebble Deposit," located in the Bristol Bay watershed in Southwest Alaska.20
That same year, EPA "initiated an assessment to determine the significance of the Bristol Bay watershed's ecological resources and evaluate the potential impacts of large-scale mining on these resources."21
EPA used the information submitted by PLP "to develop its mining scenarios" for the watershed assessment, which it finalized in January 2014.22
On July 21, 2014, EPA Region 1023 published a Notice of Proposed Determination to restrict the use of certain waters in the larger Bristol Bay watershed "as disposal sites for dredged or fill material associated with mining the Pebble deposit" under CWA § 404(c).24 The Proposed Determination explained that the "Bristol Bay watershed is an area of unparalleled ecological value, boasting salmon diversity and productivity unrivaled anywhere in North America."25 It catalogued the wealth of salmon that spawn in Bristol Bay, noting that their abundance and the sustainability of the resulting fishery were in large part due to "the fact that its aquatic habitats are untouched and pristine."26 EPA Region 10 stated that the discharge of dredged and fill material associated with mining the Pebble deposit would "pose significant risks to the unparalleled ecosystem that produces one of the greatest wild salmon fisheries left in the world."27 Region 10 therefore concluded that "[a]fter evaluating available information, [it] has reason to believe that unacceptable adverse effects on fishery areas ... could result from the discharge of dredge or fill material associated with mining the Pebble deposit."28
After the issuance of the Proposed Determination, PLP sued EPA claiming, among other things, that the agency had violated the Federal Advisory Committee Act.29 On November 25, 2014, PLP obtained a preliminary injunction that prohibited EPA from moving forward with the § 404(c) process during the pendency of the litigation.30
On May 11, 2017, EPA and PLP settled several lawsuits related to the Pebble deposit.31 The district court accordingly vacated the injunction and dismissed PLP's cases against EPA.32 As a part of the settlement, EPA agreed not to proceed with the § 404(c) process until May 11, 2021, or until the Corps issued a final environmental impact statement ("EIS") evaluating PLP's permit application, whichever came sooner.33 The agency also agreed to "initiate a process to propose to withdraw the Proposed Determination."34
Pursuant to the settlement agreement, EPA Region 10 issued a Proposal to Withdraw the Proposed Determination on July 19, 2017.35 In the proposal, EPA sought public comment on three rationales for withdrawing of the Proposed Determination: (1) to "[p]rovide PLP with additional time to submit a CWA Section 404 permit application to the Corps"; (2) to...
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