Case Information
FILEII'i i JAH 2E; 16::3'3ijSI!C'O~:E IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION
HALCYN OLENEC; JOHN B. JONES III;
JULIE JONES; THOMAS STARK; TERI Civil No. lO-6427-HO
STARK; LARRY WHITE; BANDON WOODLANDS COMMUNITY ASSOCIATION,
and OREGON COAST ALLIANCE
ORDER Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE,
an agency of the National Oceanic
and Atmospheric Administration;
BARRY' A. THOM, in his official
capacity as Acting Regional
Administrator; UNITED STATES ARMY
CORPS OF ENGINEERS, an agency of
the Department of the Aimy; and
ROBERT L. VAN ANTWERP JR.,
Lt. General in his official
capacity as the Chief of Engineers
and Commanding General for the
Corps;
Defendants.
Plaintiffs move for an order enjoining the defendants and Oregon Resources Corporation (ORC) from miniDg chromite bearing black sands in Coos County, Oregon. [#34] .
1 - ORDER
Introduction
Plaintiffs Halcyn Olenec, John B. Jones III, Julie Jones, Thomas Stark, Teri Stark, Larry White, Bandon Woodlands Community Assoc (BWCA) and Oregon Coast Alliance (OCA)l bring this action under the Administrative Procedures Act (APA) against defendants National Marine Fisheries Service, Barry Thorn, theNMFS regional administrator (collectively NMFS) ; and the U.S. Army Corps of Engineers and Lt. Gen. Robert Antwerp Jr., Chief of Engineers and Commanding General for the Corps (collectively the Corps), alleging violations of the Endangered Species Act (ESA); the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA). [#1] .
Plaintiffs challenge various agency decisions that resulted in Oregon Resources Corporation (ORC) obtaining a permit to operate chromite mines in southern Coos County. [ # 1] .
Plaintiffs allege that ORC's surface mines will impact 7.7 acres of wetlands and 0.6 acres of tributary streams and will entail removing vegetation, filling wetlands, rerouting waterways, removing material with heavy equipment, transporting for processing, dewatering of mine pits and replacing the mine tailings at four sites within the watersheds of two fish-bearing streams. Id .. Plaintiffs are particularly concerned about the
Plaintiffs are individuals and organizations comprised of members who live, visit and recreate in the area of the proposed mining operations. [#1-p.3,<J[ 5].
presence of hexavalent chromium (Cr6) in the ground water at the mine'sites; and the risk that possible Cr6 and sedimentation generated during the mining process will injure fish [2] and wildlife, pollute the watershed and threaten their health and well-being. [ # 1-p . 3, <]I 5 J •
Plaintiffs allege that defendants acted arbitrarily and capriciously and failed to comply with their statutory obligations under the Administrative Procedures Act (APA) , the Endangered Species Act (ESA) , the Clean water Act (CWA) , and the National Environmental Policy Act (NEPA). [#lJ. Plaintiffs seek: (1) a declaration that the NMFS' and the Corps' actions were arbitrary and capricious; (2) an order enjoining, setting aside and remanding the permit; and (3) awarding reasonable attorney fees and costs. [#1-pp.38-40l
Plaintiffs' current Motion for a Temporary Restraining Order and Preliminary Injunction seeks to enjoin the defendants' permit allowing the ORC's proposed chromite mining operations to begin on ,February I, 201l. [#34 J . Plaintiffs allege that they will suffer irreparable harm from
"formation and mobilization of toxic Cr6, putting OC Coho and local residents and their drinking water wells at risk as well as filling wetlands enjoyed by plaintiffs, discharge of ~edimeht and pollution of the watershed and increased traffic noise and conflicts with the local [2] Plaintiffs are concerned about the possible danger posed to the Or~gon Coast Coho Salmon (OC Coho)j a threatened species. [#34-p.2J
3 - ORDER.
residential community."
[#34-p.1] .
The federal defendants and the proposed intervenor defendant ORC, argue that plaintiffs have not demonstrated either a lik~lihood of success or that they (or the OC Coho), will suffer irreparable harm. [#51; #49]. The defendants contend that: (1) there is extensive, sound information upon which NMFS based its finding that_neither the geological conditions at the sites nor the removal of chromite sands favor the formation of increased concentrations of Cr6, [#51-pp.11-18; #49-pp.1,. 13-19]; (2) the cumulative impacts of potential, future ORC mining was both too uncertain and too indefinite to evaluate, [#49-pp.19-20, #51-pp. 27-29]; (3) the potential harms of sedimentation were addressed through the permit's requirements for project modifications, on-going water quality monitoring and mitigation measures, [#49-pp.2, 17-19, #51-pp.31 33]; and (4) the balance of the hardships do not favor plaintiffs' untimely challenge of an agency decision made in February and March of 2010, upon which ORC has, relied in entering into multi-million dollar contracts including construction of a processing plant ih Coos Bay Oregon. [#49 pp.36-41; #50; #51-pp.34-38].
Historical and Factual Background [3] : Paleocene and Eocene 63 to 36.million
" years a rn Oregon was covered by a s low sea where thousa of sediments and volcanic rock accumulated." Committee United States 1 Survey (1969), p.26, U.S. Govn't nting Office, Washi "During the Eocene on. gorous erosion time, uplift of the Klamath Mountains cau tremendous quantities of sands silts to be deposited in s ine (Diller 1902)." at p. 27. 'Coal swamps Id. deve in Coos Bay area. Ilion to 13 million
" ng the Miocene Epoch, from 25 rs , general uplift of most western Oregon continued, parti y in the present Coast which resulted in an almost complete withdrawal of the sea." United States Geol cal Survey, at p.29. "By t inning of the Pleistocene, only 1 million years ago, the ocean had receded and
notable terraces containing b k sand along the southern coast. The black sand is a concentration of rals (magnetite, chromite, zircon, garnet~gold and inurn) ," United States cal Survey, at p.31. The noted trapper Jed was the first outs r The facts included ( r than outside sources),are those appear to be undi and are gleaned from the parties collective briefing on aintiffs' Motion Prel ry Injunction [#34J. ORDER
5 with a sizable company to ma a land trip from California along the Oregon coast inst of through the Umpqua and Willamette valleys. 1 R. Peterson and fred Powers, A Century of Coos and Curry, p.11, Bin s & Mort (1952). The party had 300 horses and 18 men. last entry in Jedidiah Smith's journal was on July 3, 1828, after crossing the Coquil River. 11, 15. After traveling along the ocean shore, camp that ght at Whiskey Run, a small creek empt ocean. Id. at 15.
Gold was scovered at the mouth of Whiskey Run in t winter of 1852 1853. Id. at p.133. The camp established
known as Rando Id. Historian Stephen Dow Beckham placed t site of Randolph one-quarter mile south of Whis y Run Creek. Douthit, A Guide to Oregon South Coast History, p.133. In a report on historic sites, Beckham noted.
saw ts, broken glass, pieces of clay and ot s indicate that Randolph's site was on t uff about seventy above the beach. Id.
The ch concentrates [4] were mined with ous acer sluices and rocker boxes. Peterson and Powers, A Century 4 Mapping of offshore mineral deposits i c a t e t presence of black sand concentrates wi example, mile long and two mile wide pat of ack sand y one mile northwest of Cape Blanco, containing rich concentrations of heavy minerals - more t 30%.
6 ORDER
Coos and Curry, at p.133. "A terrific storm that las the coast in the spring of 1854 iterated most of the ring 1 black sands, burying sl ce boxes and shafts under s of prosaic gray grit." town quickly faded its name for the Rando Trail which ran south from re, near the entrance of t Coos River, through to country now known as Seven Devils.
The most successful beach mining occur re there were concentrated deposits of black sand contai ng gold, platinum, and chromite. Douthit, A Guide to South Coast to a 1977 DOGAMI report: II [t]he better History, p. 46, ( concentrates occur near sea cliffs on beaches wave action during high t storms washes away the 1 minerals s and leaves a res 1 rough concentrate of minerals, pebbles and driftwood. II) •
Late in t n teenth century, the sea r gold in black sand inland from the beach ,to the beach terraces. Id. The Pioneer Mine on Cut Creek (between t Coquille River and Whiskey Run), eventually had three tunnels, one of which reached 1,340 Id. at pp.46-47. ors of this mine followed a y streak of black sand three feet thick that conta traces of gold which, were recovered by sluicing. Id. Terrace acer mines like the r and nearby Eagle Mine, continued to be worked into the twentieth century.5 Id.
The heavy mineral sands along the southern Oregon coast have accumulated as sediment containing various minerals washed out bf the Klamath Mountains through coastal rivers. [#49 p.11] . Over time, the beaches were uplifted as the tectonic plate underlying the Pacific Ocean pushed under the Oregon coast as part of the same process that created the Coast Range Mountains. Id. These elevated beach terraces range in elevations from 60 feet up to 1,500 feet above sea level. United States Geological Survey, at pp. 29-30.
Chromium was extracted from the beach terrace Bands in the 1940's for use during World War II. The "Chrome Plant" at the entrance to Beaver Hill Road near Highway 42, north of Coquille, was said to contain a large centrifuge that separated sand from chrome. Patti and Hal Strain, The Coquille Valley: Vol. 1, Memories - Moccasins to the Moon, p.662, Myrtle Point Printing, (2009) .
ORC was formed in 1990, to explore these squthern Oregon beach terraces for areas to profitably mine. [#49-p.11] . In 1991, ORC obtained exploration rights and permits to drill test holes throughout the Cape Arago district of the southern Oregon
.5 J.S. Diller in 1903, wrote that "nearly all of the gold which has thus far been obtained in the Port Orford quadrangle, has come from placer mines, some of which are along beaches in . marine deposits and the rest in river gravels", especially along
the South Fork of the Sixes as well as Salmon and Johnson creeks. Guide to S.Oregon Coast History at 47.
coast. Id. Through this exploration, ORC identified several potential mine sites, including the four mine sites [6] th~t are the subject of this litigation. Id.
These proposed mine sites are on elevated beach terraces [#49 found on Weyerhaeuser Company commercial timberlands. pp .10-13 J . The four proposed mine sites total approximately 160 acres and lie within the Three-mile and Five-mile Creeks watersheds on a 1,818-acre mineral leasehold that ORC acquired from Weyerhaeuser. Id. The intersecting nearby roads are Beaver Hill and Seven Devils. The timber on the mine sites has been harvested by WeyeFhaeuser at least once ~nd will be harvested again regardless of whether the mining commences as scheduled. [#49-p.12J.
The Three-mile and Five-mile Creeks are not included in the over 6,500 miles of streams that the NMFS has designated as OC Coho critical habitat, both because of their limited salmon habitat and because fish surveys have not detected OC Coho. [#34-p.3; #49-pp.11-12; #51-pp. 4-5J . NMFSdetermined that the potential upper limits of salmon distribution is about 0.25 miles downstream of proposed temporary stream crossings built for the temporary access roads. [#51-pp.4-5, Ex.1; AR CE00008J.
[6] The four mine sites that are the subject of this lawsuit are: South Seven Devils; North Seven Devils; West Bohemia and West Section 10; all of which are located about 10 miles southwest of Coos Bay. [AR -CE00008J
ORC proposes to extract ch te, garnet and zircon from the "mineral sands in this area. [#49-11]. As noted, these mineral sands were was out of the Klamath Mountains. Id. They have e over t into smooth rounded grains: Id. The Oregon" mineral s are smoother and therefore superior to other commerc lly avail Ie foundry sands which are blasted from rock faces ically crushed. Id. ORC plans to sell the te zircon sands to foundries in the Unit States use in creating molds to cast metal products. [#49 .10]. The garnet sands will be mar the water-jet cutti industry, Id.
ral s located beneath topsoil and 1 r sand sits,7 will be evacuated by ORC earth loaded dump trucks and transported to the ssi at Bun Hill, near Coos Bay, where the approximately 25% t material containing the chromite, zircon and rnet s will from the remaining 75% material or tailings. s [#49 .12]. tailings [8] will be returned to t mine site for use reclamat.ion. [#49-pp.8-9]. The sites will on a
[7] The topsoil and overburden will be stockpil ely a the margin of the mine area. [#49 .12].
[8] ORC conducted synthe~ic precipitation 1 toxicity eristic leaching procedure tests on actual taili removed from the mine site. These tests
cing the tailingsbac~ in t sites would formation of CrG or adversely t ground or surface water quality. [#49-pp.8-9; AR - C096].
10 ORDER progressive basis in which mining will at one end of a site and progress toward t ot r , with no more than 10 .5J. acres exposed for removal at a t [#49
Reclamation will occur simultaneously as the mineral sand is removed, and the mined area is filled with tailings, overburden, and topsoil. Once mining is completed on a Id. site, it will be graded, s planted with ·trees. The smaller mine sites will ly mined and reclaimed within a year whi will take approximately four years to be mined imed. [ # 4 9 - pp . 5 - 6, 11-12 J •
The Corps rece ORC's icationfor a wetlands fill. permit (under section 440 of CWA) , on May 8, 2008, and initiated review, whi suant to NEPA, included sending notice to and soli ting comments from state and federal agencies, property owners, Native American tribes, environmental organizations and interest groups. [#49-p.13; #51-p.5J. The Corps received responses from many sources including defendant NMFS and pIa iff Woodlands Community Organization Id. (BWCO).
On Ju 16, 2008, the Corps requested an ESA consu at with NMFS and over lowing year, NMFS' Roseburg staff gathered information rding potential impacts of s Id. BWCO submitt project, those from Cr6. rts prepa by Dr. Daniel Bain, a geologist, and Gregory 1 s, a st, supporting their comments, which were considered by NMFS. [#34-pp.8-9; #49-pp.13-14; #51-p.5, n.1J.
On March 3, 2009, ORC provided the Corps and NMFS an 85 page Biological Assessment and related documents prepared by environmental consultants which concluded that the project would not adversely affect OC coho and advised that the risks associated with Cr6 were minimal and could be managed through monitoring. [#49-pp. 14-15J. On April 20, 2009, ORC provided additional information including a technical memorandum directly ~ responding to the concerns enunciated by the BWCO submissions
including perceived Cr6 and water quality risks as they might be impacted by the proposed mining projects. [9] [#49-pp.15-16J
NMFS requested independent technical assistance from Bill Mason, a geologist with the Department of Environmental Quality (DEQ). Mr. Mason's summarized findings in ,a memorandum dated June 18, 2009, and confirmed that: (1) geological conditions at the mining sites did not favor the formation of Cr6; and (2) any Cr6 generated by the mining would be insignificant given the aquifer's ability to reduce Cr6 to trivalent chromium (Cr3) and recommended(as did Dr. Bain·and ORC's expert), that these
[9] The additional information included findings that other ground-disturbing activities such as excavation of cranberry bogs had not increased concentrations of Cr6; that tests on actual tailing samples had sho0n the tailings placement at mine sites would not increase the formation of Cr6 or adversely affect the ground or surface water quality and that there was no realistic likelihood that the proposed mining would affect the flow of groundwater to residential wells in the general area. [#49 p. 16J .
conclusions be confirmed through long-term monitoring. [#49 pp.16-17; AR-Ex.C106J.
On June 29, 2009, NMFS advised the Corps that based on the information then available, it could not concur in the Corps determination that the project would not adversely impact the listed species and identified additional information it needed to resolve it's remaining questions. [#51-p.5J.
,On July 15, 2009, NMFS, the Corps and ORC held a telephone conference which lead to NMFS requesting that ORC provide additional information on the monitoring that ORC intended and what it would do in the event of evidence of contamination. [#49~p.17J. On October 16, 2009, ORC provided the responsive report. [Id.; AR Ex.Cl17J
On-December 14, 2009, the Oregon Department of Geology and Mineral Industries (DOGAMI) issued a Note to Reviewing Agencies clarifying that not only would it require monitoring as part of ORC'S mine permit but it would also require suspension of mining if monitoring results indicated increases in parameters harmful to either biota or humans. [#49-p.18; AR-Ex.C132 at 9J. NMFS staff toured the proposed mining sites on December 15, 2009, to gather additional information and evaluate potential impacts to ESA-listed species. [#51-p. 6 J .
On February 12, 2010, NMFS lssueda detailed letter of concurrence finding the proposed mining and processing operations would not likely adversely affect OC coho and other ESA-listed species. Id. Subsequently, the Corps, on March 2, 2010, issued a section 404 permit authorizing the ORC project. [Id.; AR-CE00008-00167J
The permit authorizes the ORC to "discharge fill or dredged materials in up to 7.7 acres of wetlands and 0.6 acres of tributary stream to surface mine four sites" as well as to temporarily install road crossings in three streams to access one of the mining sites. [#51-p.6; AR-CE00008J The permit requires ORC to implement the extensive mitigation plan (attached to the permit), creating 12.4 acres of wetlands in addition to removing temporary fills and restoring tributaries impatted by the mining within three years of its first discharge of dredged or fill materials. [#51-p.6; AR-CE00010-12J
The Corps also issued an Environmental Assessment (EA) and Statement of Findings describing the project,lO the comments received and concluded that an issuance of Finding of No Significant Impact (FONSI) was appropriate. [ # 3 4 -pp. 8 - 9; # 49 p.19; #51-pp. 6-7J.
The EA identified and addressed the alternatives considered by the Corps and its conclusion that the alternatives were either not practicable or no less environmentally damaging than the proposed project and so there were no practicable
[10] Both the authorized project and required mitigation were described in plans and drawings attathed to the permit. [#51-p.6; AR-CE00003-203J.
alternatives to the four propos sites. [#34-pp.19-20; #51-p.7, AR-CE0016 203]
.Since the permit was is on 4, 2010, ORC has closed financing.for the ect, in construction of a multi-million dollar processing in Coos entered into contracts with suppliers to ling, t ation, and other services connected with the ect red administrative personnel to the project. [#49-pp.20 21; #51-pp.34-38]. Thus, ORC has Il-t 75 j at its processing facility and over 185 indirect j with a $3.5 million payroll: [#49-pp.20-21] .
Discussion
A. Standards of Review:
The Administrative Procedure Act (APA) rns judi al review of agency actions under the ESA, CWA NEPA. 5 U.S.C. §706. Under the APA, a reviewing court must ld an agency decision unless that decision is "arbitrary, ous, an abuse of discretion, or otherwise not in law." 5 U.S.C. §706(2)(A).
The Ninth Circuit en bane explained that: "[r]eview under the arbitrary and capricious s is narrow and [we do] not substitute [our] j of the agency. Rather, we will reverse a arbitrary and capricious only if the agency re on factors Congress did not intend it to cons r,entirely failed to consider an important aspect of the problem, or 15 - ORDER
Case 6:10-cv-06427-HO Document 59 Filed 01/28/11 Page 16 of 26 offered an explanation that runs counter to the evidence before the or is so implausible that it could not be ascribed to a rence of view or the product of agency expertise." (9 th
Lands Coun 1 v. McNair, 537 F.3d 981, 987 Cir 2008) (internal quotations citations omitted).
Thus, if the "considered the relevant factors and \ articul 1 connection between the facts found and a rat
the court must uphcild the agency's action. " Balt. Gas & Elec Co. v. Natural Res. Def. Council Inc., 4 u.s. 87,105 (1983). , the court must be "at its most deferential" ewing scientific judgments and techni analyses within the agency's expertise. Balt. Gas & Elec Co., 462 U.S; at 103. court must not act as a scientist Itt instructs the ., chooses among scientific
., and 0 s the agency the explain every scientific uncertainty." Council v. McNair, 537 F.3d 981, 988 Cir 2008) (en nc).
The court should also "conduct a particularly renti ew of an agency's predictive judgments about areas that are with agency's field of discretion and ise ... as
as they are reasonable." Lands Coun 1, 537 F.3d at 993 quotations and citations omi "[w]hen ialists express conflicting views, an must have cretion to rely on the reasonable of its own Ii experts even if, as an original matter, a court might 16 - ORDER
find contrary vlews more persuasive. Lands Council, 537 F.3d at 1000 (internal quotations and citations omitted).
L Preliminary Inj unct'ion:·
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 u.s. 7,31 (2008). To obtain a preliminary injunction, plaintiffs "must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction lS in the public interest." Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir 2009) (citing Winter, 555 u.s. at 24-25)).
These factors may be evaluated on a sliding scale, so- that a preliminary injunction may be issued when plaintiff demonstrates "serious questions going to the merits" and a "hardship balance of hardships that tips sharply toward the plaintiff .assuming the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell, 622 F.3d 1045, 1049-50 (9th Cir 2010).
B. Preliminary Injunction:
1. Likelihood of Success on the Merits: a. ESA claim:
The ESA provides that each federal agency shall, in consultation with a consulting agency, insure that any proposed agency action "is not likely to jeopardize the continued
- I existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat [11] of such species . " 16 U.S.C. §1536(a) (2). To comply with this requirement, an agency proposing to take an action must first determine whether its action may affect a listed species. 50 C.F.R. § 402.14(a) ~ In this matter, the Corps determined its action might affect a threatened species (the OC Coho), and so, as required, consulted with NMFS. The two agencies were then tasked with determining whether the proposed agency action is "likely to adversely affect" the species. 50 C.F.R. §402.13(a); see also 50 C.F.R. §402.14(b).
If NMF~ concurs that the action is not likely to adversely affect the threatened species then the consultation is concluded, however, if NMFS doesn't concur, a more 'formal' consultation must occur. 50 C.F.R. §402.13(h) (3). NMFS must use the "best scientific and commercial data available" in making it's determination. 16 U.S.C. §1533(b) (1) (A).~
In this instance, plaintiffs argue that NMFS'sdecision ran counter to the evidence demonstrating the presence of Cr6and
II Three-mile and Five-mile Creeks are not included in the OC Coho's designated habitat.
18 - ORDER
was therefore not based on the best available science. [#34 pp.12-17J However, this assertion overlooks the extensive evidence in the administrative record underpinning NMFS' determination that existing Cr6 levels were not harmful to the OC C6ho, and that increases to unsafe levels as a result of the proposed mining were unlikely given site conditions. It also overlooks the agencies' decision to include in the permit .requirements for long-term monitoring and immediate responses should harmful increases be detected
Plaintiffs' assertion that the NMFS ignored or failed to consider contrary evidence regarding the capacity of the aquifer to reduce the Cr6 that might develop and failed to do the testing suggested by the DEQ, is similarly unsupported by the administrative record. [#34-p.16J. As a result of negotiations between the agencies, the DEQ recommendations plaintiffs claim were ignored, are expressly incorporated into the ORC permit. [AR-CE00009; AR- Ecl 2, CE0040-50J.
The substantial evidence in the administrative record supports NMFS's determination that the Cr6 levels were not harmful to the OC Coho and that site conditions were likely to prevent harmful Cr6 levels from developing. The agencies' actions are thus entitled to deference as they are reasonable, consistent with the scientific evidence and therefore neither arbitrary nor capricious,
b) NEPA claims: Plaintiffs assert that the Corps failed to take the requisite "hard look" (via an Environmental Impact . Study . (EIS) ) at the "[h] ighly [u] ncertain and [h] ighly [c] ontrover,sial effects of Chromite mining on the [e]nvironment." [#34-pp.18 24] .
In determining whether a project "significantly" impacts the environment, NEPA regulations require the agency to consider context and intensity. 40 C:F.R. §1508.27. Context refers to the area of "the affected region, the affected interests and the locality." 40 C.F.R. § 1508.27(a). Intensity "refers to the severity of the impact." 40 C.F.R. § 1508.27(b).
NEPA regulations include, inter alia, the following factors when eval~ating intensity: the degree to which the effects on the quality of the human environment are likely to be highly controversial; the degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks and whether the action is related to other actions with individually insignificant but cumulatively significant impacts. 40 C.F.R. §1508.27(b)(4), (5), (7). However, this does not mean that an EIS is required any time "a federal agency discloses adverse impacts on a species or habitat or acknowledges information favorable to a party that would prefer a different outcome." Native Ecosystems Council v. u.s. Forest 20 - ORDER
Serv., 428 F.3d 1233, 1240 (9th Cir. 2005).
Federal agencies are required to prepare an EIS·for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. §4332 (2) (C). However, while an agency's "hard look" involves the discussion of adverse impacts, such information does not automatically make the project controvers~al o~ highly uncertain. Native Ecosystems Council, 428 F3d at 1241. "Simply because a challenger can cherry pick information and data out of the administrative, record to support its position does not mean that a project is highly controversial or highly uncertain." Native Ecosystems Council v. u.s. Forest Serv., 428 F.3d 1233, 1240 (9 th Cir. 2005) .
When specialists express conflicting views an agency's decision to rely on reasonable opinions of its own qualified experts must be accorded deference, so long as the agency decision is reasonable. Bering Strait Citizens for Resp. Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 935, 956-57 (9th Cir. 2008) .
Plaintiffs contentions in this matter ignore the historical fact that one of the mine sites was previously mined and that their own expert's recommendations coincide with the monitoring provisions incorporated into the Corp's issued permit.
Where the record reveals that an agerrcy based a FONSI upon 21 - ORDER
relevant and substantial data, the fact that there is evidence supporting a different scientific opinion in the record does not render the agency decision arbitrary and capricious. Wetlands Action Network v. u.s. Army Corps of Engineers, 222 F.3d 1105, (9 th In this instance, the Corps' reliance on 1120-21 Cir 2000). the mitigation measures proposed by the DEQ (which they explicitly incorporated into their permit), was reasonable.
Similarly plaintiffs' assertion that the Corps' "decision to defer cumulative impacts analysis" is "flatly inconsistent with NEPA" is inaccurate and not supported by the administrative record. [#34-p.23]. The potential mining sites to which plaintiff refers are "proposed actions" for which the ORC has not yet developed any meaningful plan or proposal and all of which are financially independent of the proposed project. Lands Council v. Powell, 395 F.3d 1019, 1023 (9 th Cir. 2005) (for any future projects not yet proposed and remote in time a cumulative effects analysis would be speculative and premature) The time for agency analysis and plaintiffs' comment on those future proposals is therefore when the company seeks permits for exploration or development of future sites located in their Weyerhaeuser leasehold.
Based on the administrative record, I find the Corps' decision not to analyze the cumulative effects of potential future sites as detailed in it's EA, reasonable. The Corps' 22 - ORDER
decision to issue a FONSI relying on the various expert studies done, DOGAMI's geologic findings of the Coaledo formation, and incorporating the DEQ monitoring and mitigation measures into their permit, was within its discretion and was neither arbitrary nor capricious.
c) Clean Water Act (CWA) claims: Plaintiffs allege that the Corps issued a permit in which it "improperly discounted identified alternative mine sites from its analysis" because of it's reliance on factors that are outside the plain language of the regulation, namely ORC's debt amortization. [#34-pp.26-27] .
The Corps may properly exclude alternatives that are not economically viable or within the applicant's purpose.
Sylvester v. U.S.Army Corps of Engineers, 882 F.2d 407, 409 (9 th Cir. 1989). Indeed it would be illogical for the Corps to ignore the economic purpose for which the applicant sought the permit.
In rejecting the alternative sites, the Corps noted that ORC had estimated quantities of chromite at various sites and consistent with the project's purpose rejected the alternate sites; only the four proposed sites contain sufficient quantities of proven reserves and would produce a return. [AR CE00186; see also Sylvester v. u.S. Army Corps of Eng'rs, 882 F.2d 407, 409 (9 th Cir 1989) (Corps has a duty to take into 23 - ORDER
account the objecti~es of the applicant's project and may consider such facts as cost to the applicant.].
Because NMFS and the Corps have complied with their statutory obligations under the ESA, NEPA and the CWA, plaintiffs have ndt demonstrated a likelihood of success on the merits of their claims.
2. Irreparable harm:
Plaintiffs claim that they will be irreparably harmed "if ground-disturbing activities associated with the chromite mining can commence on the identified mining sites." [#34-p. 27; #56 pp.23-29]. Specifically plaintiffs allege that the alleged harm will include: (1) noise and light pollution; (2) the filling of wetlands; (3) formation and migration of Cr6 affecting water quality; (4) activities discharging sediment affecting water quality; and (5) the federal agencies' alleged failure to consider environmental impacts that will injure plaintiffs' "organizational" and "aesthetic, educational, and recreational" interests. [# 3 4 -p. 22] .
Plaintiffs' specific Cr6 concerns are that: (1) "without information regarding underlying groundwater flows, installation of monitoring wells does not ensure protection of residential wells" and (2) "the monitoring plan doles] not demonstrate that any actions taken in response to .results indicating increasing [Cr6] levels will be effective in halting generation *25 and migration . . after it has conunenced." [#56-p.23]. The plaintiffs appear to base these concerns on Dr. Bains' report. [#34-pp. 22-23] .
However, where an agency action involves high levels of technical expertise, this court's only task is to determine whether the agency has considered the relevant factors and articulated a rational connection between the facts found and the choices made. Northwest Ecosystem Alliance v. u.s. Fish and Wildlife, 475 F.3d 1136, 1140(9th Cir. 2007). The court may not substitute its judgment for that of the agency. Id.
In this instance, the administrative record reveals that: (1) the Corps considered the light and noise impact on human habitation [see e.g., AR-CE00194]i (2) the plaintiffs' harm from decreased access to the wetlands proposed to be filled is addressed by the agency limiting the mining to 10 acres at a time, requiring ORC to restore the site includingcreatiorr of wetlands in mitigation of any lost and the public currently being excluded from the wetlands by perimeter fencing and signage surrounding the private conunercial timber land [Id.]i (3) Dr. Bain's report on the possibility of Cr6 formation was thoroughly considered by the defendants along with other evidence that the existing levels of Cr6 are unlikely to increase [AR-CE00188-198]i (4) the potential effects of ground disturbing activities, truck traffic and dewatering activities 25 - ORDER
that would discharge sediment and possibly affect plaintiffs' well water quality were recognized and addressed by the agencies [Id.J; and (5) the agencies did not find a likelihood of harm to a threatened species for several articulated and substantiated reasons [#51-pp.32-33, Ex.lJ. On the other hand, defendants have demonstrated significant hardships that permitee ORC and the local Coos County economy would suffer should the injunction issue.
I therefore find that plaintiffs have not demonstrated that issuing their requested inj~nction would be in the public interest or that defendants have not adequately addressed the public's environmental concerns related to the proposed private mining operation on Weyerhaeuser timberlands.
Conclusion
For the foregoing reasons, plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction [#34J is DENIED.
IT IS SO ORDERED.
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DATED this day of January, 2011.
26 - ORDER