817 F. Supp. 2d 1290
D. Or.2011Background
- NEDC challenged the Corps and NMFS over a five-year Regional General Permit for in-stream gravel mining on the Chetco River, alleging violations of FACA, APA, CWA, NEPA, and ESA through the BiOp and ITS.
- The RGP aims to extract gravel at three locations within an eight-mile segment; the RGP relies on an EA/NEPA document and a CWA 404(b)(1) evaluation.
- NMFS issued a BiOp finding no jeopardy to SONCC coho salmon but anticipated some take due to habitat modification and 12 annual crossings, and issued an ITS with a non-numerical surrogate (0.2 acres disturbed per 1,000 cubic yards harvested).
- Tidewater Contractors submitted the only extraction plan for the remainder of the year, proposing 5,938 cubic yards removal entirely in the dry portion of the river with no in-water equipment, triggering limited impacts.
- Defendants moved to strike Carl Page’s declaration as extra-record and opinión-based; the court granted the motion to strike and denied NEDC’s preliminary injunction request.
- NEDC sought emergency relief to halt in-stream gravel mining pending merits briefing; the court denied the injunction but addressed the ITS and NEPA/APA/CWA issues on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Page declaration was admissible evidence. | NEDC contends Page shows irreparable harm and NMFS misanalysis. | Defendants argue Page is improper extra-record opinion. | Page declaration stricken; not admissible (extra-record). |
| Whether NMFS's ITS surrogate for take is adequate. | Surrogate fails to reflect all stressors and lacks clarity. | Surrogate linked to take and supported by data; adequate. | Surrogate adequately connected to take; not arbitrary or capricious. |
| Whether the NEPA analysis (EA/FONSI) was sufficient. | EA failed to show hard look or significant effects requiring EIS. | EA reasonably analyzed impacts; no significant effects; EIS not required. | EA/FONSI adequate; no need for EIS under NEPA. |
| Whether the Corps reasonably analyzed practicable alternatives under CWA. | Corps failed to consider alternatives beyond no action. | RGP analysis considered reasonable alternatives; not required to exhaust all possibilities. | Analysis adequate; no reversible error under CWA guidelines. |
| Whether NEDC showed likelihood of irreparable harm to grant preliminary injunction. | Mining harms coho and habitat; imminent harm. | Specific Tidewater plan causes only minor, non-imminent harm; no irreparable harm shown. | No likelihood of irreparable harm; injunction denied. |
Key Cases Cited
- Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (highly deferential to agency science; arbitrary-and-capricious standard applied)
- Winter v. NRDC, 555 U.S. 7 (U.S. 2008) (preliminary injunction standard in ESA cases; injunctive relief often warranted for ESA violations)
- Arizona Cattle Growers' Ass'n v. United States Fish & Wildlife, 273 F.3d 1229 (9th Cir. 2001) (necessity of a rational link between activity and taking; surrogate allowed)
- ALCOA v. BPA, 175 F.3d 1156 (9th Cir. 1999) (deference to agency expertise; do not substitute court’s judgment)
- Lands Council v. Forest Serv.", 100 F.3d 1443 (9th Cir. 1996) (agency discretion in scientific matters; review for implausibility)