Huron Mountain Club v. U.S. Army Corps of Eng'rs.
| Decision Date | 30 October 2013 |
| Docket Number | No. 12-2217,12-2217 |
| Parties | HURON MOUNTAIN CLUB, Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS; MICHAEL C. DEROSIER; UNITED STATES DEPARTMENT OF THE INTERIOR; KEN SALAZAR; UNITED STATES FISH AND WILDLIFE SERVICE; DANIEL M. ASHE; KENNECOTT EAGLE MINERALS COMPANY, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0929n.06
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Huron Mountain Club ("HMC") appeals the district court's denial of its motion for injunctive relief, which sought to enjoin Kennecott Eagle Minerals Company ("Kennecott") from constructing and operating the Eagle Mine ("Eagle Mine" or "the Mine"), a nickel and copper mine in Marquette, Michigan, and compel the United States Army Corps of Engineers1 (the "Corps") to "administer" the federal permittingprograms under the Rivers and Harbors Act ("RHA"), 33 U.S.C. § 403, and the Clean Water Act ("CWA"), 33 U.S.C. § 1344. We AFFIRM.
Huron Mountain Club is a Michigan not-for-profit corporation formed as a retreat and wildlife preserve. HMC owns approximately 19,000 acres in an area known as the Yellow Dog Plains of Marquette County. This land includes an eleven-mile stretch of the Salmon Trout River ("STR"), which empties into Lake Superior on the northwest corner of HMC's property.
Eagle Mine, a nickel and copper mine development, is located approximately 3.38 miles upstream from HMC. The Eagle Mine site is owned by Kennecott, which is in the process of constructing both surface and underground facilities over approximately 92 acres. Eagle Mine is expected to produce approximately 230 million pounds of nickel, 230 million pounds of copper, and minor amounts of other minerals. Part of the mining will take place beneath the STR and its corresponding wetlands.
In February 2006, Kennecott took the first steps towards its proposed mining development by submitting a "Part 632" permit application for non-ferrous metallic mining to the Michigan Department of Environment Quality ("MDEQ"), the state agency charged with issuing environmentally related permits under state law. The permit application included an Environmental Impact Assessment (EIA) and a detailed plan for mining and reclamation. Kennecott also submitted applications for groundwater-discharge and air-use permits. In December 2007, after a series of public hearings that included HMC's objections to the project and agency review, the MDEQ granted Kennecott Part 632 mining, groundwater-discharge, and air-use permits. HMC, along withother parties, petitioned for a contested case hearing regarding the Part 632 mining and groundwater-discharge permits. After 42 days of testimony over a two-year period, the ALJ ruled in favor of Kennecott, finding that Eagle Mine would not affect the STR or corresponding wetlands and was not at risk for collapse. In January 2010, the MDEQ issued its Final Determination and Order directing that Kennecott's Part 632 permit be issued. In re Permits Issued to Kennecott Eagle Minerals Co., Nos. GW1810162 & MP 01 2007, 2010 WL 276664 (Mich. Dept. Nat. Res. Jan. 14, 2010). HMC and its co-petitioners appealed the order to the Ingham County Circuit Court, which affirmed the MDEQ's decision to grant Kennecott the Part 632 permit. On November 21, 2011, the Ingham County Circuit Court affirmed MDEQ's decision to grant Kennecott's Part 632 permit. Nat'l Wildlife Fed'n v. Mich. Dep't of Envtl. Quality, No. 11-123-AA (Mich. Cir. Ct., Ingham Cnty. Nov. 21, 2011). HMC and the other Petitioners filed applications for leave to appeal with the Michigan Court of Appeals. The court granted those applications and, at the time of briefing in this action, the Petitioners were awaiting argument.
Kennecott began construction of its surface facilities in April 2010 and began underground construction in September 2011. As of April 2012, Kennecott had invested $331 million in the Eagle Mine project, and employed 296 people at the mine site, the mill, and the main office facilities. Kennecott estimates that it will invest an additional $1 billion in the Eagle Mine project during construction and operation of the mine. Kennecott has not applied to the Corps or any other federal agency for a federal permit for the project and no federal agency, including the Corps, has brought any type of enforcement action against Kennecott related to the Eagle Mine.
On May 6, 2012, HMC filed this action for preliminary injunctive relief against the Federal Defendants under the Administrative Procedures Act ("APA"), 5 U.S.C. § 702, and the Mandamus and Venue Act ("Mandamus Act"), 28 U.S.C. § 1361. HMC sought an order compelling the Corps to "fulfill its permitting responsibilities" under the RHA and CWA by requiring Kennecott to "submit to permitting procedures and requirements." HMC further sought injunctive relief pursuant to the All Writs Act, 28 U.S.C. § 1651(a), or the court's "inherent powers" prohibiting Kennecott's continued construction or operation of the Eagle Mine without first submitting to the federal permitting procedures of the RHA and CWA. The district court denied HMC's request for a preliminary injunction and HMC timely appealed.
We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1292, which allows parties to appeal interlocutory orders denying a request for an injunction. See § 1292(a)(1). When determining whether to issue a preliminary injunction a court must consider: "(1) whether the movant has a 'strong' likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction." McPherson v. Mich. High Sch. Athletic Ass'n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (citation omitted). We review the district court's decision to deny HMC's request for a preliminary injunction for an abuse of discretion, deferring to the court's findings of fact unless they are clearly erroneous, and reviewing its legal conclusions de novo. Sw. Williamson Cnty. Cmty. Ass'n, Inc. v. Slater, 243 F.3d 270, 277 (6th Cir. 2001) (citation omitted). The court's determinationregarding HMC's likelihood of success on the merits is a question of law that is reviewed de novo. Babler v. Futhey, 618 F.3d 514, 520 (6th Cir. 2010). "However, the district court's ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief is reviewed for abuse of discretion." Id. (quoting Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007)).
Although HMC seeks to compel the Corps to act under the RHA and CWA, HMC did not bring a citizen suit against Kennecott under the CWA. See 33 U.S.C. § 1365(a)(1) ().2 Instead, HMC brought this action under the APA and Mandamus Act, alleging that the Corps' "decision" not to "fulfill its permitting responsibilities" in regard to Kennecott's purported violations of the RHA and CWA is reviewable by the court. "When a petitioner seeks both mandamus relief and relief under the APA, courts apply the same principles and standards both to determine jurisdiction and to assess the merits." Nelson v. United States, 107 F. App'x 469, 471 (6th Cir. 2004).
We first consider HMC's likelihood of success on the merits against the Corps. The APA provides a right of judicial review for "agency action" made reviewable by another statute. See 5 U.S.C. §§ 702, 704, 706. Beyond providing a party the ability to challenge actions that an agency has already taken, the APA also permits a party to compel agency action that is "unlawfully withheldor unreasonably delayed." Id. § 706(1). However, claims against an agency for a failure to act are available only under limited circumstances; specifically, "only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 63 (2004) (emphasis in original); see 5 U.S.C. § 701(a)(2) ().
HMC's request for review of the Corps' purported "inaction" is not likely to succeed because HMC has not shown that the RHA and CWA dictate any "discrete action" the Corps is "required" to take with regard to parties who have not submitted RHA and CWA permit applications and in the absence of a request for a jurisdictional determination. See SUWA, 542 U.S. at 63. Section 10 of the RHA provides:
[I]t shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.
33 U.S.C. § 403. HMC asserts that this text imposes a plainly-stated duty on the Corps to issue permits before any person can engage in regulated activity. Appellant's Br. at 45. However, the language of section 10 reveals no such duty, plainly stated or otherwise. The statute does not require the Corps to order the filing of a permit application when an individual engages in work that could be subject to the RHA. Instead, as the district court found, the burden under section 10 is on the individual or entity doing work...
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