Huron Mountain Club v. United States Army Corps of Eng'rs, File No. 2:12-CV-197

Decision Date25 July 2012
Docket NumberFile No. 2:12-CV-197
CourtU.S. District Court — Western District of Michigan



This action to enjoin Defendant Kennecott Eagle Minerals Company from constructing and operating a nickel and copper mine in Marquette County, Michigan is before the Court on Plaintiff Huron Mountain Club's motion for preliminary injunction. (Dkt. No. 3.) For the reasons that follow, the motion will be denied.


Plaintiff Huron Mountain Club (the "Club") is a Michigan non-profit corporation founded in 1889 as a family retreat and wildlife preserve. (Compl. ¶¶ 1, 2.) The Club owns approximately 19,000 acres of property in Marquette County, Michigan, including an eleven-mile stretch of the Salmon Trout River which empties into Lake Superior at the northeast corner of the Club's property. (Compl. ¶ 47.)

The Club's property is approximately 3.3 miles downstream of a nickel and coppermine (the "Eagle Mine") that is being constructed by Defendant Kennecott Eagle Minerals Company ("Kennecott"). Kennecott will use a "longhold stope" method of extraction which involves the removal of ore in vertical sections from the bottom of the ore body upward (from 1000 feet to 350 feet below the surface). Kennecott will support the mine with a thick crown pillar to prevent collapse of the tunnel, and backfill the mine areas with cemented rock and waste rock. The Eagle Mine is expected to produce approximately 230 million pounds of nickel, and 230 million pounds of copper. (Burley Decl. ¶ 3.) Portions of the Eagle Mine will be located beneath the Salmon Trout River and its corresponding wetlands.

In February 2006 Kennecott submitted applications to the Michigan Department of Environmental Quality ("MDEQ") for nonferrous metallic mining, groundwater discharge, and air use permits. (Fed. Def. Ex. 1 & Ken. Ex. 18, Op. Aff'g Part 632 Permit 3.) The Part 632 mine permit application was more than 10,000 pages in length, and included a comprehensive Environmental Impact Assessment ("EIA") pursuant to Mich. Comp. Laws § 324.63205. (Ken. Ex. 1, Tabs 123-54, Bates pp. 7424-17569.) On December 14, 2007, after almost two years of review and opportunities for public participation, the MDEQ granted Kennecott a Part 632 permit to engage in the mining of nonferrous metallic minerals. (Ken. Ex. 3, Mining Permit). The permit includes special conditions requiring Kennecott to monitor water elevations and water quality. (Ken. Ex. 3.)

Plaintiff, together with the National Wildlife Federation, the Keweenaw Bay Indian Community, and the Yellow Dog Watershed Preserve (the "Petitioners"), petitioned for acontested case hearing to challenge the mining permit and groundwater discharge permits. (Ken. Ex. 10, Pet. for Contested Case Hr'g.) On August 18, 2009, following 42 days of testimony over a two-year period, an Administrative Law Judge issued a Proposal for Decision in favor of Kennecott, based on his conclusion that the mine would not adversely affect the wetlands or the river, and that the mine was well-protected against collapse. (Ken. Ex. 1, Tab 96.) On January 14, 2010, the MDEQ issued its Final Determination and Order ordering the Part 632 permit to be issued. (Ken. Ex. 1, Tab 118.) The Petitioners appealed the MDEQ's Final Determination and Order to the Ingham County Circuit Court. On November 21, 2011, the Ingham County Circuit Court affirmed the MDEQ's decision to grant Kennecott's Part 632 permit. (Ken. Ex. 18, Op. Aff'g Part 632 Permit 9.)

Kennecott has completed substantial surface operations at the Eagle Mine, including construction of an administrative office building, a water basin, a waste water treatment plant, a treated water infiltration system, a development rock storage area, a portal to the mine, roads, and a parking lot. The surface operations are 3/4 miles to the east of the ore body. On September 18, 2011, Kennecott began underground construction of the mine portal and a decline from the mine portal diagonally west to the ore body. (Burley Decl. ¶ 5.) To date, Kennecott has drilled approximately 1,000 linear meters of the decline. Kennecott will not reach and begin mining the ore body until 2014. (Id.) The project currently employs approximately 300 people. (Id. at ¶ 6.)

In August 2011, the Petitioners filed a motion in the state court action to enjoin theunderground construction based on their contention that the mine "will likely leak, fail, and collapse, spewing toxic sulfuric acid throughout the Yellow Dog Plains, the Salmon Trout River, and into Lake Superior." (Ken. Ex. 15, Br. re Mot. for Stay 2.) On September 14, 2011, the state court denied the Petitioners' motion for stay because there was no showing of imminent irreparable injury to Petitioners based on the crown pillar strength, drilling below the Eagle Rock outcrop, or the discharge of acid rock drainage into the aquifers, and because there would be a significant harm to the public if the stay were granted. (Ken. Ex. 16, Tr. re Mot. for Stay 94-97.)

Plaintiff filed this federal action on May 6, 2012, against the United States Army Corps of Engineers (the "Corps"), the United States Department of the Interior, and the United State Fish and Wildlife Service (the "Federal Defendants") and against Kennecott. Plaintiff alleges that construction and operation of the Eagle Mine will affect the navigable waters of the Salmon Trout River by drawing down water from the River and wetlands, decreasing the River's flow, changing its temperature, and decreasing the reach of the River and its adjacent wetlands. Plaintiff contends that Kennecott's subsurface construction implicates permitting requirements under federal law, specifically, the Rivers and Harbors Appropriations Act ("RHA"), 33 U.S.C. § 403, and the Federal Water Pollution Control Act, commonly known as the "Clean Water Act" ("CWA"), 33 U.S.C. § 1344. Plaintiff also contends that any putative permit under the RHA and the CWA constitutes "major federal action" mandating detailed environmental and cultural investigations, consultations, andassessments under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332; the Endangered Species Act ("ESA"), 16 U.S.C. § 1531; and the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470a, which must be completed by federal agencies before an RHA or CWA permit can be issued.

Plaintiff contends that the Corps has abdicated its statutory responsibilities under the RHA, the CWA, and their implementing regulations by failing to require Kennecott to submit to RHA and CWA permitting proceedings. (Compl. ¶¶ 199, 206). Plaintiff seeks preliminary injunctive relief directing the Corps to fulfill its permitting responsibilities under the RHA and the CWA, and prohibiting Kennecott's continued construction of the Eagle Mine without first submitting to permitting procedures mandated by the RHA and the CWA.


"A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries [its] burden of proving that the circumstances clearly demand it." Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000)). In deciding whether to grant a preliminary injunction, this Court considers:

(1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief.

Int'l Dairy Foods Ass'n v. Boggs, 622 F.3d 628, 635 (6th Cir. 2010) (quoting Nightclubs, Inc.v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000)). "The four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met." Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001). Although no one factor is controlling, a finding of no likelihood of success on the merits "is usually fatal." Abney v. Amgen, Inc, 443 F.3d 540, 547 (6th Cir. 2006) (quoting Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000)).


Plaintiff seeks preliminary injunctive relief against the Federal Defendants pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 702, or, in the alternative, the Mandamus and Venue Act ("Mandamus Act"), 28 U.S.C. § 1361.1 "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).

The APA authorizes judicial review of agency action, "except to the extent that . . . agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2).2 In addition,to be reviewable, the agency action complained of must be a final agency action. 5 U.S.C. § 704. Plaintiff's claims against the Federal Defendants are based not on their actions, but on their failure to act. See 5 U.S.C. § 706 (giving the reviewing court authority to compel agency action unlawfully withheld or unreasonably delayed). Where a claim is based on an agency's failure to act, the suit "can proceed 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, 542 U.S. 55, 64 (2004) (emphasis in original) (discussing claims under 5 U.S.C. § 706(1)). "The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law . . . ." Id. at 65.

1. Permitting Requirement

The Federal Defendants contend that Plaintiff's claims against them cannot proceed because the actions...

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