Hells Canyon Preservation Council, Earthworks v. Haines, 080406 ORDC, CV 05-1057-PK

Docket NºCV 05-1057-PK
Opinion JudgePAUL PAPAK, Magistrate Judge.
Party NameHELLS CANYON PRESERVATION COUNCIL, EARTHWORKS, and NORTHWEST ENVIRONMENTAL DEFENSE CENTER, Plaintiffs, v. RICHARD J. HAINES, STEVE ELLIS, and UNITED STATES FOREST SERVICE, Defendants.
Case DateAugust 04, 2006
CourtUnited States District Courts, 9th Circuit, United States District Court (Oregon)

HELLS CANYON PRESERVATION COUNCIL, EARTHWORKS, and NORTHWEST ENVIRONMENTAL DEFENSE CENTER, Plaintiffs,

v.

RICHARD J. HAINES, STEVE ELLIS, and UNITED STATES FOREST SERVICE, Defendants.

No. CV 05-1057-PK

United States District Court, D. Oregon.

August 4, 2006

OPINION AND ORDER

PAUL PAPAK, Magistrate Judge.

Plaintiffs challenge the Record of Decision (ROD) for the North Fork Burnt River Mining Project (Project) in the Wallowa-Whitman National Forest (WWNF) in Eastern Oregon. Plaintiffs allege the U.S. Forest Service (Forest Service) violated the National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., the Forest Service Organic Administration Act of 1897 (Organic Act), 16 U.S.C. § 478, 551, and the Administrative Procedures Act (APA), 5 U.S.C. §§ 501-701.1 This court has jurisdiction under 28 U.S.C. § 1331.

On April 7, 2004, the Forest Service issued the Record of Decision selecting Alternative 4 from the Final Environmental Impact Statement (FEIS) for this Project. Plaintiffs filed an administrative appeal with the Forest Service, and notified the Forest Service of their intent to sue in a 60-day notice letter as required under the CWA. Plaintiffs filed their complaint with this court on July 7, 2005, and moved for summary judgment on January 27, 2006. Defendants filed a cross-motion for summary judgment. Oral argument was held on May 1, 2006. For the reasons set forth below, plaintiffs' motion for summary judgment is granted as to claims under the Clean Water Act, the Organic Act and the National Forest Management Act. Defendants' motion for summary judgment is granted as to claims under the National Environmental Policy Act.

LEGAL STANDARD

A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bahn v. NME Hosp's, Inc. , 929 F.2d 1404, 1409 (9th Cir. 1991).

Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the APA, 5 U.S.C. § 706. Native Ecosystems Council v. U.S. Forest Service , 428 F.3d 1233, 1238 (9th Cir. 2005) (citing Neighbors of Cuddy Mountain v. Alexander , 303 F.3d 1059, 1065-1067 (9th Cir. 2002)). Plaintiffs' claims under the Organic Act and § 313 of the CWA are also governed by the APA. Under the APA, a court may set aside an agency decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency's action is arbitrary and capricious "if the agency fails to consider an important aspect of the problem, if the agency offers an explanation that is contrary to the evidence, ... or if the agency's decision is contrary to the governing law." Lands Council v. Powell , 395 F.3d 1019, 1026 (9th Cir. 2005).

Review under this standard is to be searching and careful, but remains narrow, and a court should not substitute its judgment for that of the agency. Mt. Graham Red Squirrel v. Espy , 986 F.2d 1568, 1571 (9th Cir. 1993) (citing Marsh v. Oregon Natural Resources Council , 490 U.S. 360, 378 (1989)). Deference to an agency's technical expertise and experience is particularly warranted with respect to questions involving scientific matters. United States v. Alpine Land and Reservoir Co. , 887 F.2d 207, 213 (9th Cir. 1989), cert. denied, 498 U.S. 817 (1990).

Plaintiffs' claim under CWA § 401 arises under the citizen suit provision of the CWA, and not the APA. 33 U.S.C. § 1365(a)(1). Under CWA § 401, an agency that issues a permit without proper certification is in violation of the certification requirement and therefore in violation of the CWA. 33 U.S.C. § 1341; Oregon Natural Desert Ass'n v. Dombeck , 172 F.3d 1092, 1095 (9th Cir. 1998).

FACTUAL BACKGROUND

The North Fork Burnt River (NFBR) watershed is located in the Blue Mountains of Eastern Oregon in the Wallowa-Whitman National Forest (WWNF). Gold mining in the area began in the 1860s and has continued with some gaps to the present. Miners are required, under the Forest Service's mining regulations, to submit a Plan of Operations (PoO) for agency review and approval prior to conducting certain mining operations on federal lands. At the time the ROD was issued, 34 mining PoOs had been approved. Some were approved in the early 1980s and many have no expiration dates. The parties dispute whether 15 additional mining operations will be approved and begin operations based on provisions in the ROD.

Five streams in the watershed have been listed as water-quality impaired under § 303(d) of the Clean Water Act due to high temperatures and/or sedimentation. Three of these streams are involved in this matter in that nineteen projects detailed in the ROD are or will be located on these three streams. The ROD identifies the following activities as negatively affecting water quality in the watershed: timber harvest, road building, and mining. Redband trout, Columbia spotted frog2 and three plant species that exist in the area are all on the Regional Forester's list of sensitive species. There are 747 miles of road-some open, some closed-in the watershed, mostly built to serve mining operations. The NFBR Roads Analysis identified 241 of these miles as contributors to water quality problems. Road densities throughout the NFBR watershed exceed road density limitations established in the Forest Plan. If all 49 projects in the FEIS are approved, the mining operations will disturb 116 acres in the WWNF, 64 of them in riparian areas.

The mining operations in question include placer mining, suction dredge mining, and lode mining. Typical placer mining operations pass gravel, sand and other substrate over a gravity-separation device called a sluice box and, by running water over the gold-bearing dirt, separate gold and other heavy metals from gravel known as overburden. Suction dredge mining vacuums silt, sand and small gravels from the streambed, passes the gravel and other materials through a dredge machine in order to filter out the gold, and then discharges gravel, sand and silt back into the river. Lode mining extracts minerals from a lode, vein, ledge or other rock in place between walls or boundaries. Some mining operations take place within the streambeds themselves.

On April 7, 2004, the Forest Service issued the ROD. The purpose and need for the Project is to address: 1) the unforseen and changed conditions in the NFBR watershed that did not exist or were not recognized at the time approvals were granted to the currently approved PoOs; 2) the submission of amendments to some these existing PoOs; 3) submission of several new proposed PoOs; 4) the Forest Service's responsibility to approve or require modifications to these existing and proposed PoOs in accordance with federal mining and environmental laws; and 5) the concern that several reaches of the North Fork Burnt River and its tributaries do not meet state water quality standards for temperature and sediment. AR 07936; ROD at 1. Those reaches are listed as impaired under § 303(d) of the CWA, placing responsibility on the Forest Service to address the impaired waterways and develop strategies that will improve water quality. The NFBR Roads Analysis indicates that roads are a primary contributor to water quality degradation. The FEIS was prepared to disclose cumulative environmental impacts and determine possibilities for mitigating those impacts resulting from mining activities.

The Forest Service prepared a single FEIS to establish the requirements for all 49 mining operations at issue. Plaintiffs allege that the Forest Service thereby "authorized" 49 Plans of Operations in a single document, the ROD. The Forest Service states that individual PoOs must be approved under the agency's mining regulations but admits that, so long as the PoOs conform to the requirements established in the FEIS and the ROD, the PoOs will be approved. Since issuing the ROD, the Forest Service has approved at least 29 PoOs. None of the operators of the 29 mining projects applied to the state Department of Environmental Quality (DEQ) for § 401 certification under the Clean Water Act.

ANALYSIS

I. Clean Water Act

The CWA establishes a comprehensive program "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by reducing and eventually eliminating the discharge of pollutants into those waters. 33 U.S.C. § 1251(a). The CWA program includes a complex regulatory scheme of permits, technology controls, and water quality-based pollution controls.

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