Idaho Conservation League & Nw. Envtl. Def. Ctr. v. Atlanta Gold Corp.

• Decision Date: 09 January 2012
• Docket Number: Case No. 1:11–cv–161–MHW.
• Citation: 844 F.Supp.2d 1116
• Parties: IDAHO CONSERVATION LEAGUE and Northwest Environmental Defense Center, Plaintiffs, v. ATLANTA GOLD CORPORATION, Defendant.
• Court: U.S. District Court — District of Idaho

844 F.Supp.2d 1116

IDAHO CONSERVATION LEAGUE and Northwest Environmental Defense Center, Plaintiffs,

v.ATLANTA GOLD CORPORATION, Defendant.

Case No. 1:11–cv–161–MHW.

United States District Court,

D. Idaho.

Jan. 9, 2012.

Andrew McAleer Hawley, Portland, OR, Laurence J. Lucas, Law Office of Laurence J. Lucas, Kristin F. Ruether, Advocates For The West, Boise, ID, for Plaintiffs.

Michelle R. Points, Gary D. Babbitt, Hawley Troxell Ennis & Hawley L.L.P., Boise, ID, for Defendant.

MEMORANDUM DECISION AND ORDER

MIKEL H. WILLIAMS, United States Magistrate Judge.

Idaho Conservation League and Northwest Environmental Defense Center (“Plaintiffs”) filed this action against Atlanta Gold Corporation (“AGC”) seeking an injunction, declaratory relief, and civil penalties pursuant to the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. Jurisdiction is proper pursuant to 28 U.S.C. § 1331 and 33 U.S.C. § 1365(a). All parties have consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636(c).

Idaho Conservation League (“ICL”) is an Idaho non-profit corporation with a principal place of business in Boise. (Compl., ¶ 7, Dkt. 1). ICL and its members are interested in and work to protect Idaho's water, air, wilderness and public lands. Id. Northwest Environmental Defense Center (“NEDC”) is an Oregon non-profit corporation with its principal place of business in Portland. ( Id. at ¶ 8). NEDC and its members are interested in protecting the environment of the Pacific Northwest, including the waters of the Columbia River Basin and its tributaries within the Boise River watershed. Id. Both ICL and NEDC have staff and members who live, recreate and work throughout the Boise River watershed. ( Id. at ¶ 9).

Atlanta Gold Corporation is an Idaho corporation in the business of mineral exploration and development. (Answer, ¶ 9, Dkt. 8). AGC holds an EPA issued National Pollutant Discharge Elimination System (“NPDES”) permit which regulates the discharge of water from the mine adit ¹ which is the subject of this litigation. (Hawley Decl., Ex. 1, Dkt. 22–1).

Currently pending before the Court are Plaintiffs' Motion to Strike (Dkt. 47), filed October 12, 2011, and Motion for Partial Summary Judgment (Dkt. 21), filed on August 12, 2011, and Defendant AGC's Motion for Summary Judgment (Dkt. 20), filed August 12, 2011. At a July 5, 2011 Scheduling Conference the Court and the parties determined that this matter should be bifurcated: beginning with a liability phase and followed by a remedial phase, should it be necessary. On November 1, 2010, the Court heard oral argument on the pending motions for summary judgment.

In brief, Plaintiffs contend that AGC's discharge of water from a mine adit near the town of Atlanta, Idaho and located within Elmore County is not in compliance with the CWA. Plaintiffs assert standing via the CWA's citizen suit provision. AGC asserts that the Plaintiffs lack standing and, even if they do have standing, their claim is moot.

I. Background

Gold was first discovered near Atlanta in 1863 and since then the area has undergone sporadic times of metal production. (Simmons Aff., ¶ 2, Dkt. 20–5). AGC's project site is located on top of Atlanta Hill (the “Project Site”) and encompasses approximately 2,159 acres. ( Id. at ¶¶ 3, 4). Prior to AGC's presence, the Project Site was previously known as Talache Mine, which is within the Boise National Forest. ( Id. at ¶¶ 3, 6). This litigation involves discharges of water from a mine adit known as the 900 Level Adit (“the Adit”) into Montezuma Creek, a tributary of the Boise River. The Boise River flows through the City of Boise and eventually reaches the Snake and Columbia River systems.

AGC commenced its modern day exploration of the site in 1985. ( Id. at ¶ 2). Since that time, AGC has submitted numerous plans of operations to the U.S. Forest Service (“USFS”) to conduct exploration, exploratory drilling and excavation at the Project Site. (Compl., ¶ 32.) AGC has only conducted exploratory activities at the site and has not produced or processedore at the site. (Simmons Aff., ¶ 5). AGC submitted an initial Plan of Operations in 1988 under which the Adit was reopened. (Hawley Decl., Ex. 5, Dkt. 22–1). Before initiating any action at the Adit, AGC contacted the Idaho Department of Health & Welfare (“IDDHW”) expressing its concern about any liability it might assume related to the Adit discharges. (Glaspey Aff., Ex. A, Dkt. 20–13). IDDHW informed AGC that “as long as you do not adversely affect the existing water quality, you will not assume any liability.” ( Id., Ex. B).

In 1992, the EPA notified the Boise Ranger District that the discharges from the Adit were subject to NPDES permitting. (Glaspey Aff., ¶ 13, Dkt. 20–12). No NPDES permit was applied for or issued at that time; however, AGC did assume responsibility at that time for treating water discharged from the Adit in connection with its operations. In 1994, the EPA notified AGC that discharges from the Adit required an NPDES permit. ( Id. at ¶ 17). Also in 1994, AGC submitted a Plan of Operation which included an exploration program at the site which involved opening and excavating the Adit. ( Id. at ¶ 19). AGC submitted an application for an NPDES permit at that time; however, no permit was issued. ( Id. at ¶ 20). In 1998, AGC received permission to conduct underground exploratory drilling. Approval of that plan required maintenance of a water discharge treatment facility and maintenance of water quality in accordance with EPA requirements. (Hawley Decl., Ex. 26, Dkt. 22–5).

This case is not the parties first dispute over Adit discharges. On May 25, 2005, ICL initiated an action in this Court against AGC alleging inappropriate discharges from the Adit in violation of the CWA. See Idaho Conservation League v. Atlanta Gold Corp., Case No. 1:05–cv–212–EJL. On October 6, 2005, the parties memorialized the outcome of that suit by filing a Consent Decree which provided for construction of a Pilot Water Treatment Facility (“PWTF”) near the Adit. (Case No. 1:05–cv–212–EJL, Dkt. 12). The decree also required AGC to secure proper NPDES permitting for discharges made from the Adit. (Simmons Aff., ¶ 6, Dkt. 20–6). On December 9, 2005, the court entered an order approving the decree and dismissing the claims in that case with prejudice. (Case No. 1:05–cv–212–EJL, Dkt. 15). The decree states that so long as its provisions are met, ICL would be forced to bring a new civil action in order to redress any alleged CWA violations occurring after December 1, 2005. ( Id. at ¶ 5).

AGC submitted an NPDES application on February 28, 2005, and amended that application on February 26, 2006. (Hawley Decl., Ex. 1, pp. 2–3, Dkt. 22–1). That permit was ultimately issued on August 6, 2009, reflecting an effective date of July 1, 2007, and an expiration date of June 30, 2012.² ( Id. at 7). Relevant here, the permit lists the proper effluent limit for arsenic as 10 µg/l and for iron as 1,000 µg/l. ( Id. at 4–5). The permit also requires that AGC monitor the Adit discharges weekly and submit monthly discharge monitoring reports (“DMRs”) reflecting its collected data. Id.

Turning back to an earlier time frame, in 1999, AGC entered into a “Mining Lease and Option to Purchase Agreement” with Monarch Greenback, LLC (“Monarch”), the owner of the claims on which the Adit and PWTF are situated. (Points Aff., ¶ 2, Dkt. 20–3). On April 28, 2011, ten days after the present action was filed, AGC exercised its option to purchase certain of the mining property from Monarch, excluding the mining claims on which the Adit and PWTF are located. ( Id. at ¶ 4). On May 5, 2011, Monarch relinquished its interest in the mining claims to which the PWTF and Adit are located. ( Id. at ¶ 5).

AGC has submitted a plan to the USFS to close the Adit portal and also to close the PWTF and reclaim the property. (Points Aff., ¶ 8.) On June 7, 2011, the USFS responded that AGC must provide more information before it can consider the proposed plan. (Hawley Decl., Ex. 5, Dkt. 22–1). On October 27, 2011, AGC submitted a proposed draft Memorandum of Agreement regarding the closure of the Adit to the USFS. (Points Supp. Decl., Ex. A, Dkt. 51).

On May 2, 2011, AGC sent a letter to the EPA stating the letter served “as notice of termination” of AGC's NPDES permit. (Points Aff. ¶ 6, Ex. B, Dkt. 20–4; Hawley Decl., Ex. 24, Dkt. 22–5.) The EPA responded that the NPDES permit “does not automatically terminate upon notification ... and the permit remains in effect.” (Hawley Decl., Ex. 25, Dkt. 22–5.)

In its Complaint, Plaintiffs allege that AGC has violated the terms of the NPDES permit every month since August 2009 by discharging higher levels of arsenic and iron into Montezuma Creek than are allowed by the NPDES permit. (Compl., ¶ 16).

Plaintiffs allege that AGC has committed 1,447 ³ discharge violations since the permit was issued on August 6, 2009. Plaintiffs assert standing to bring this complaint pursuant to the Citizen Suit provision of the CWA, 33 U.S.C. § 1365(a). In its Answer, AGC denies that it is in violation of the permit. (Answer, ¶ 62). In its motion for summary judgment, AGC contends that Plaintiffs lack standing to bring this complaint, primarily because the third element of standing, redressability, cannot be met in this instance. AGC further contends that, should the court find that redressability is met for standing purposes, summary judgment is still proper as the court cannot order any remedy that will redress Plaintiffs' alleged injuries, and the claim is therefore moot.

AGC also argues that ICL is estopped from asserting any claims against AGC because the discharges that are the basis of the complaint were the basis of the earlier litigation between the parties that resulted in the December 2005 Consent Decree. AGC contends that when the parties agreed to the decree, it was known that the PWTF could not be expected to reduce arsenic in the water to...