Jones v. Nat'l Marine Fisheries Serv.

• Decision Date: 20 December 2013
• Docket Number: No. 11–35954.,11–35954.
• Citation: 741 F.3d 989
• Parties: John B. JONES, III; Julie Jones; Larry White; Bandon Woodlands Community Association; Oregon Coast Alliance, Plaintiffs–Appellants, v. NATIONAL MARINE FISHERIES SERVICE; William W. Stelle, Jr., in his official capacity as Acting Regional Administrator; United States Army Corps of Engineers; Robert L. Van Antwerp, Jr., Chief of Engineers and Commanding General, Defendants–Appellees, Oregon Resources Corporation, Intervenor–Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

741 F.3d 989

John B. JONES, III; Julie Jones; Larry White; Bandon Woodlands Community Association; Oregon Coast Alliance, Plaintiffs–Appellants,

v.NATIONAL MARINE FISHERIES SERVICE; William W. Stelle, Jr., in his official capacity as Acting Regional Administrator; United States Army Corps of Engineers; Robert L. Van Antwerp, Jr., Chief of Engineers and Commanding General, Defendants–Appellees,Oregon Resources Corporation, Intervenor–Defendant–Appellee.

No. 11–35954.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 6, 2013.

Filed Dec. 20, 2013.

Courtney Johnson (argued), and Christopher Winter, Crag Law Center, Portland, OR, for Plaintiffs–Appellants.

Maggie B. Smith (argued), Amanda Shafer Berman, Barbara M.R. Marvin, and Lane N. McFadden, Attorneys, Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C., for Federal Defendants–Appellees.

Per Arnold Ramfjord (argued), Stoel Rives LLP, Portland, OR; Leonard J. Feldman and Jason T. Morgan, Stoel Rives LLP, Seattle, Washington; and Peter Davis Sax, Office of the United States Attorney, Tucson, AZ, for Intervenor–Defendant–Appellee Oregon Resources Corporation.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. 6: 10–cv–06427–HO.

Before: ARTHUR L. ALARCÓN, MILAN D. SMITH, JR., and ANDREW D. HURWITZ, Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

In 2008, Oregon Resources Corporation (ORC) applied for various state permits to mine valuable mineral sands from an area near Coos Bay, Oregon. ORC also applied for a permit from the Army Corps of Engineers (Corps) under Section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344, because the project required filling in several acres of wetland. The Corps was required to comply with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., as part of the permitting process. The Corps therefore prepared an Environmental Assessment (EA), and issued a “Finding of No Significant Impact” (FONSI) in lieu of preparing a full Environmental Impact Statement (EIS), before ultimately issuing the requested Section 404 permit (ORC Section 404 Permit).

The Bandon Woodlands Community Association and other plaintiffs (collectively Woodlands) challenge several aspects of the EA and FONSI. Specifically, Woodlands claim that (1) the EA was deficient because it did not adequately examine the risks associated with the potential generation of toxic hexavalent chromium (Cr ⁺6) as a result of the proposed mining; (2) the FONSI was arbitrary and capricious because of “significant uncertainty” surrounding the likelihood and impact of Cr ⁺6 generation; and (3) the grant of the ORC Section 404 Permit was arbitrary and capricious because the Corps did not conduct an adequate “alternatives analysis.” We find Woodlands' arguments without merit and affirm the district court's grant of summary judgement to the Corps.

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

A. ORC's Mining Project

ORC's project involves mining naturally-occurring chromite, garnet, and zircon sands from four sites near Coos Bay, Oregon. The chromite and zircon sands are marketed to foundries for use in casting metal parts, while the garnet sands are sold for use in the water jet cutting industry. The ORC Section 404 Permit covers four sites, called the South Seven Devils, North Seven Devils, West Bohemia, and West Section 101 sites. These sites cover approximately 160 acres and are located on privately-owned timberlands. ¹

ORC uses standard excavation equipment to remove topsoil covering the mineral sands. Topsoil is then stockpiled along the margins of the mining area, while mineral sands are loaded into trucks and transported to ORC's refining plant in Coos Bay. The refining plant uses a gravimetric process to separate out the marketable sand, which makes up roughly twenty-five percent of the sand transported from the mining sites. The remaining seventy-five percent of the sand is returned to the mine site.

As part of ORC's reclamation plan, each area is backfilled with the non-mineral sands returned from the processing plant, in addition to other material removed in the mining process. Each excavated area is then graded and replanted with trees. The reclamation process also involves the creation of new wetland areas pursuant to a mitigation plan. Mining has already been in process for several years, and the project will be completed in roughly three to six years.

B. The Permitting Process

ORC submitted a Section 404 permit application to the Corps on May 8, 2008. The Corps' decision to grant a Section 404 permit is subject to the requirements of both the NEPA and the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., the latter of which requires the Corps to consult with the National Marine Fisheries Service (NMFS). Additionally, ORC was required to obtain approvals from a number of state agencies, including the Oregon Department of Geology and Minerals Industry (DOGAMI), the Oregon Department of State Lands, and the Oregon Department of Environmental Quality (DEQ). DEQ has jurisdiction over state water quality standards pursuant to Section 401 of the CWA. The state and federal agencies coordinated the permitting process in this case and provided technical support to one another.

Shortly after ORC filed its permit application, the Corps contacted NMFS to begin informal consultation under the CWA. Over the next two years, the Corps and NMFS gathered information about the project and its potential impacts. The Corps and NMFS conducted site visits, held public and private meetings, evaluated information provided by stakeholders, including Woodlands, and coordinated with state agencies.

Eventually, the Corps issued an EA discussing the potential environmental impacts of ORC's mining project. The EA concluded that the project would not have a significant effect on the human environment, and, accordingly, the Corps issued a FONSI. Because it issued a FONSI, the Corps did not prepare an EIS. The NMFS issued a letter of concurrence with the EA, and ORC received all necessary state permits, including a Section 401 water quality certification from the DEQ.

1. Hexavalent Chromium Generation

In its NEPA analysis, the Corps considered the potential for increased Cr ⁺6 generation from the proposed mining. Woodlands' public comments on the permit application noted that the chromite sands ORC planned to mine contained benign trivalent chromium (Cr ⁺3), which can oxidize into toxic Cr ⁺6 in the presence of manganese oxide, which is also present at the sites. Woodlands was concerned that ORC's mining project could lead to increased Cr ⁺6 generation, which could, in turn, contaminate ground and surface water. Woodlands submitted expert reports that recommended, among other things, ongoing monitoring during the mining process to ensure that the amount of Cr ⁺6 did not increase.

ORC responded to Woodlands' comments and expert reports in a Biological Assessment (BA). The BA suggested that the risk of Cr ⁺6 generation was minimal, because

• The geology of the mining area did not indicate that chromite sands would react with manganese oxide to form Cr ⁺6. Groundwater sampling demonstrated that the existing levels of Cr ⁺6 in groundwater at the mining sites was significantly below safe drinking limits.

• Eh and pH levels at the sites were not conducive to the oxidization of either chromium or manganese, which is necessary for the formation of Cr ⁺6.

• The mining sites contained naturally occurring substances that would facilitate conversion of Cr ⁺6 back into Cr ⁺3 (Cr ⁺6 attenuation).

• Mining would remove the chromite sands necessary to form Cr ⁺6 and would facilitate reactions with other substances likely to result in Cr ⁺6 attenuation.

• ORC's planned monitoring regime could detect any increased concentration of Cr ⁺6, allowing ORC and the DEQ to respond.

In addition, the Corps and NMFS requested independent technical support from William Mason, a Registered Geologist with the DEQ. Mason examined the information provided by ORC and Woodlands, along with academic literature regarding Cr ⁺6 generation, and summarized his findings in a memorandum (Mason Memorandum). The Mason Memorandum noted that the conditions at the mining sites favored Cr ⁺6 attenuation rather than generation. The Mason Memorandum also noted that conditions at ORC's proposed mining sites were similar to those present in some academic studies that found significant Cr ⁺6 attenuation, but that the findings of such studies are not necessarily applicable to sites not considered by those studies due to the complex nature of subsurface geochemical reactions. The Mason Memorandum concluded that “it is possible that [Cr ⁺6] could be generated in a post-mining environment, but it appears unlikely given the aquifer's apparent potential for [Cr ⁺6 attenuation].” Finally, the Mason Memorandum offered a number of “recommendations” related to ongoing monitoring after mining commenced.

As a result of these recommendations, DOGAMI notified the Corps that it would require ongoing Cr ⁺6 monitoring as part of ORC's permit from that agency, and explained that it would require suspension of mining and/or other measures if the monitoring showed an increase in Cr ⁺6 levels. The ORC Section 404 Permit issued by the Corps required ORC to comply with all conditions of the DEQ and DOGAMI permits. Based on this information from the DEQ and DOGAMI, the Corps concluded that the risks associated with the generation of Cr ⁺6 would not “have a significant impact on the quality of the human environment.”

2. Cumulative Impact Analysis

In addition to examining the potential for Cr ⁺6 generation, the Corps considered the possibility that ORC would engage in future mining beyond the sites included in the Section 404 permit application, noting that ORC had suggested that it intended...