John Jones, III v. National Marine Fisheries Serv
741 F.3d 989
9th Cir.2013Background
- ORC sought four Section 404 permits near Coos Bay, Oregon, for mining chromite, garnet, and zircon sands; the Corps prepared an EA and issued a FONSI under NEPA instead of an EIS.
- Woodlands challenged the EA and FONSI, arguing the Cr+6 generation risk was inadequately analyzed and that the FONSI was arbitrary due to uncertainty; they also challenged the Corps’ alternatives analysis.
- The Corps relied on the BA, Mason Memorandum, and state permits (DEQ 401 and DOGAMI) to assess Cr+6 risk, concluding no significant impact and mandating monitoring.
- A mitigation framework was provided through state permits, including potential suspension of mining if Cr+6 levels rose.
- The Corps also considered cumulative impacts and alternative designs/sites, ultimately focusing on four sites and rejecting some as nonviable.
- District court granted summary judgment for the Corps; on appeal, the Ninth Circuit upheld, affirming NEPA and CWA analyses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA compliance for Cr+6 risk analysis | Woodlands contends the EA relied on expert opinion without data and undervalued Cr+6 uncertainty. | ORC argues the EA incorporated underlying data (Mason Memorandum) and monitored data; uncertainty did not require an EIS. | NEPA satisfied; incorporation of data and monitoring supported a valid FONSI. |
| Need for an EIS due to Cr+6 uncertainty | Woodlands claims substantial uncertainty required an EIS before permitting. | Court should defer to agency findings where risks are unlikely and site conditions favor attenuation. | FONSI proper; uncertainty did not mandate an EIS. |
| Cumulative impacts of future mining | Woodlands asserts the Corps failed to analyze cumulative impacts of expanded mining along the coast. | There is no reliable projection of future mining; analysis of speculative sites was premature. | No required cumulative impacts analysis for speculative future mining. |
| Reasonableness of the Corps' alternatives analysis under CWA | Woodlands argues SMaller designs were mischaracterized and financing considerations improperly shaped alternatives. | Alternative sites were evaluated for practicability including cost and logistics; financing considerations are permissible. | Alternatives analysis was proper and not in violation of the CWA. |
Key Cases Cited
- Nat. Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (deference for NEPA decisions; data reliance)
- Klamath-Siskiyou Wildlands v. BLM, 387 F.3d 989 (9th Cir. 2004) (NEPA documents cannot rely solely on expert opinions)
- Idaho Sporting Cong. v. Thomas, 137 F.3d 1146 (9th Cir. 1998) (data underlying EAs must be provided)
- Northern Plains Res. Council v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) (monitoring as appropriate, not dismissal of risk)
- Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 938 (9th Cir. 2008) (consideration of available alternatives; 404(b)(1) guidelines)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (cumulative impacts analysis timing; reasonably foreseeable actions)
- EPIC v. Forest Serv., 452 F.3d 1005 (9th Cir. 2006) (cumulative effects and data considerations in NEPA)
- City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004) (incorporation by reference of underlying data allowed)
- Waterworth v. U.S. Army Corps of Eng’rs, 420 F.3d 440 (5th Cir. 2005) (mitigation as part of permitting decisions)