Huron Mountain Club v. United States Army Corps of Engineers et al
Filing
48
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
HURON MOUNTAIN CLUB,
Plaintiff,
File No. 2:12-CV-197
v.
HON. ROBERT HOLMES BELL
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,
Defendants.
/
OPINION
This action to enjoin Defendant Kennecott Eagle Minerals Company from
constructing and operating a nickel and copper mine in Marquette County, Michigan is
before the Court on Plaintiff Huron Mountain Club’s motion for preliminary injunction.
(Dkt. No. 3.) For the reasons that follow, the motion will be denied.
I.
Plaintiff Huron Mountain Club (the “Club”) is a Michigan non-profit corporation
founded in 1889 as a family retreat and wildlife preserve. (Compl. ¶¶ 1, 2.) The Club owns
approximately 19,000 acres of property in Marquette County, Michigan, including an
eleven-mile stretch of the Salmon Trout River which empties into Lake Superior at the
northeast corner of the Club’s property. (Compl. ¶ 47.)
The Club’s property is approximately 3.3 miles downstream of a nickel and copper
mine (the “Eagle Mine”) that is being constructed by Defendant Kennecott Eagle Minerals
Company (“Kennecott”). Kennecott will use a “longhold stope” method of extraction which
involves the removal of ore in vertical sections from the bottom of the ore body upward
(from 1000 feet to 350 feet below the surface). Kennecott will support the mine with a thick
crown pillar to prevent collapse of the tunnel, and backfill the mine areas with cemented rock
and waste rock. The Eagle Mine is expected to produce approximately 230 million pounds
of nickel, and 230 million pounds of copper. (Burley Decl. ¶ 3.) Portions of the Eagle Mine
will be located beneath the Salmon Trout River and its corresponding wetlands.
In February 2006 Kennecott submitted applications to the Michigan Department of
Environmental Quality (“MDEQ”) for nonferrous metallic mining, groundwater discharge,
and air use permits. (Fed. Def. Ex. 1 & Ken. Ex. 18, Op. Aff’g Part 632 Permit 3.) The Part
632 mine permit application was more than 10,000 pages in length, and included a
comprehensive Environmental Impact Assessment (“EIA”) pursuant to Mich. Comp. Laws
§ 324.63205. (Ken. Ex. 1, Tabs 123-54, Bates pp. 7424-17569.) On December 14, 2007,
after almost two years of review and opportunities for public participation, the MDEQ
granted Kennecott a Part 632 permit to engage in the mining of nonferrous metallic minerals.
(Ken. Ex. 3, Mining Permit). The permit includes special conditions requiring Kennecott to
monitor water elevations and water quality. (Ken. Ex. 3.)
Plaintiff, together with the National Wildlife Federation, the Keweenaw Bay Indian
Community, and the Yellow Dog Watershed Preserve (the “Petitioners”), petitioned for a
2
contested case hearing to challenge the mining permit and groundwater discharge permits.
(Ken. Ex. 10, Pet. for Contested Case Hr’g.) On August 18, 2009, following 42 days of
testimony over a two-year period, an Administrative Law Judge issued a Proposal for
Decision in favor of Kennecott, based on his conclusion that the mine would not adversely
affect the wetlands or the river, and that the mine was well-protected against collapse. (Ken.
Ex. 1, Tab 96.) On January 14, 2010, the MDEQ issued its Final Determination and Order
ordering the Part 632 permit to be issued. (Ken. Ex. 1, Tab 118.) The Petitioners appealed
the MDEQ’s Final Determination and Order to the Ingham County Circuit Court.
On
November 21, 2011, the Ingham County Circuit Court affirmed the MDEQ’s decision to
grant Kennecott’s Part 632 permit. (Ken. Ex. 18, Op. Aff’g Part 632 Permit 9.)
Kennecott has completed substantial surface operations at the Eagle Mine, including
construction of an administrative office building, a water basin, a waste water treatment
plant, a treated water infiltration system, a development rock storage area, a portal to the
mine, roads, and a parking lot. The surface operations are 3/4 miles to the east of the ore
body. On September 18, 2011, Kennecott began underground construction of the mine portal
and a decline from the mine portal diagonally west to the ore body. (Burley Decl. ¶ 5.) To
date, Kennecott has drilled approximately 1,000 linear meters of the decline. Kennecott will
not reach and begin mining the ore body until 2014. (Id.) The project currently employs
approximately 300 people. (Id. at ¶ 6.)
In August 2011, the Petitioners filed a motion in the state court action to enjoin the
3
underground construction based on their contention that the mine “will likely leak, fail, and
collapse, spewing toxic sulfuric acid throughout the Yellow Dog Plains, the Salmon Trout
River, and into Lake Superior.” (Ken. Ex. 15, Br. re Mot. for Stay 2.) On September 14,
2011, the state court denied the Petitioners’ motion for stay because there was no showing
of imminent irreparable injury to Petitioners based on the crown pillar strength, drilling
below the Eagle Rock outcrop, or the discharge of acid rock drainage into the aquifers, and
because there would be a significant harm to the public if the stay were granted. (Ken. Ex.
16, Tr. re Mot. for Stay 94-97.)
Plaintiff filed this federal action on May 6, 2012, against the United States Army
Corps of Engineers (the “Corps”), the United States Department of the Interior, and the
United State Fish and Wildlife Service (the “Federal Defendants”) and against Kennecott.
Plaintiff alleges that construction and operation of the Eagle Mine will affect the navigable
waters of the Salmon Trout River by drawing down water from the River and wetlands,
decreasing the River’s flow, changing its temperature, and decreasing the reach of the River
and its adjacent wetlands. Plaintiff contends that Kennecott’s subsurface construction
implicates permitting requirements under federal law, specifically, the Rivers and Harbors
Appropriations Act (“RHA”), 33 U.S.C. § 403, and the Federal Water Pollution Control Act,
commonly known as the “Clean Water Act” (“CWA”), 33 U.S.C. § 1344. Plaintiff also
contends that any putative permit under the RHA and the CWA constitutes “major federal
action” mandating detailed environmental and cultural investigations, consultations, and
4
assessments under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332; the
Endangered Species Act (“ESA”), 16 U.S.C. § 1531; and the National Historic Preservation
Act (“NHPA”), 16 U.S.C. § 470a, which must be completed by federal agencies before an
RHA or CWA permit can be issued.
Plaintiff contends that the Corps has abdicated its statutory responsibilities under the
RHA, the CWA, and their implementing regulations by failing to require Kennecott to submit
to RHA and CWA permitting proceedings.
(Compl. ¶¶
199, 206).
Plaintiff seeks
preliminary injunctive relief directing the Corps to fulfill its permitting responsibilities under
the RHA and the CWA, and prohibiting Kennecott’s continued construction of the Eagle
Mine without first submitting to permitting procedures mandated by the RHA and the CWA.
II.
“A preliminary injunction is an extraordinary remedy which should be granted only
if the movant carries [its] burden of proving that the circumstances clearly demand it.”
Overstreet v. Lexington–Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002)
(citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000)). In deciding whether to grant
a preliminary injunction, this Court considers:
(1) whether the plaintiff has established a substantial likelihood or probability
of success on the merits; (2) whether there is a threat of irreparable harm to the
plaintiff; (3) whether issuance of the injunction would cause substantial harm
to others; and (4) whether the public interest would be served by granting
injunctive relief.
Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 635 (6th Cir. 2010) (quoting Nightclubs, Inc.
5
v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000)). “The four considerations applicable
to preliminary injunction decisions are factors to be balanced, not prerequisites that must be
met.” Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001). Although no one
factor is controlling, a finding of no likelihood of success on the merits “is usually fatal.”
Abney v. Amgen, Inc, 443 F.3d 540, 547 (6th Cir. 2006) (quoting Gonzales v. Nat’l Bd. of
Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000)).
A. LIKELIHOOD OF SUCCESS ON MERITS – FEDERAL DEFENDANTS
Plaintiff seeks preliminary injunctive relief against the Federal Defendants pursuant
to the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, or, in the alternative, the
Mandamus and Venue Act (“Mandamus Act”), 28 U.S.C. § 1361.1 “When a petitioner seeks
both mandamus relief and relief under the APA, courts apply the same principles and
standards both to determine jurisdiction and to assess the merits.” Nelson v. United States,
107 F. App’x 469, 471 (6th Cir. 2004).
The APA authorizes judicial review of agency action, “except to the extent that . . .
agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).2 In addition,
1
Although Plaintiff also asserts jurisdiction pursuant to the Declaratory Judgment Act,
28 U.S.C. § 2201, (Compl. ¶ 41), the Declaratory Judgment Act does not create an
independent cause of action and cannot serve as an independent basis for federal subject
matter jurisdiction. Davis v. United States, 499 F.3d 590, 594 (6th Cir. 2007) (citing Skelly
Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)); Mich. S’ern R.R. Co. v. Branch
& St. Joseph Cntys. Rail Users Ass’n., Inc., 287 F.3d 568, 575 (6th Cir. 2002).
2
The Mandamus Act, like the APA, is available only when a government defendant
has failed to perform a nondiscretionary duty. See Heckler v. Ringer, 466 U.S. 602, 616
(continued...)
6
to be reviewable, the agency action complained of must be a final agency action. 5 U.S.C.
§ 704. Plaintiff’s claims against the Federal Defendants are based not on their actions, but
on their failure to act. See 5 U.S.C. § 706 (giving the reviewing court authority to compel
agency action unlawfully withheld or unreasonably delayed). Where a claim is based on an
agency’s failure to act, the suit “can proceed only where a plaintiff asserts that an agency
failed to take a discrete agency action that it is required to take.” Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis in original) (discussing claims under
5 U.S.C. § 706(1)). “The limitation to required agency action rules out judicial direction of
even discrete agency action that is not demanded by law . . . .” Id. at 65.
1. Permitting Requirement
The Federal Defendants contend that Plaintiff’s claims against them cannot proceed
because the actions Plaintiff seeks to compel – that the Federal Defendants demand that
Kennecott seek permits under the RHA and the CWA, and that they otherwise enforce the
requirements of the federal statutes against Kennecott – are discretionary actions, and neither
the APA nor mandamus provide a remedy against a federal agency for failure to perform a
discretionary act. 3
2
(...continued)
(1984) (“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended
to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and
only if the defendant owes him a clear nondiscretionary duty.”).
3
Defendants have framed their argument in terms of the Court’s lack of subject matter
jurisdiction. See Madison-Hughes v. Shalala, 80 F.3d 1121, 1127 (6th Cir. 1996) (“[C]ourts
(continued...)
7
Plaintiff contends that because Kennecott’s activities will result in the alteration of
navigable waters and the discharge of materials into navigable waters, the federal Defendants
have a duty to require Department of the Army permits under section 10 of the RHA and
section 404 of the CWA. Plaintiff contends that § 10 of the RHA and § 404 of the CWA
require the Corps to assert permitting authority and to make a permit decision even when a
party has not applied for a permit. (Pl.’s Reply Br. 2-4.)
a. Permitting Authority under RHA § 10 and CWA § 404 4
Plaintiff alleges in its complaint that the RHA and the CWA impose “mandatory
duties to initiate preconstruction permitting proceedings” before Kennecott is allowed to
engage in regulated work at the Eagle Mine. (Compl. ¶ 73.) According to Plaintiff, the
Federal Defendants had a duty to either authorize or prohibit Kennecott’s activities, but did
neither.
Plaintiff requests the Court to instruct the Corps that it cannot ignore its
congressionally mandated responsibilities to administer the RHA and CWA permitting
programs when the facts prove the Corps’ jurisdiction has been triggered. (Dkt. No. 34,
3
(...continued)
do not have subject matter jurisdiction to review agency actions that are ‘committed to
agency discretion by law. ”). In light of Supreme Court cases subsequent to MadisonHughes, it is not clear that the APA’s prohibition on judicial review is a matter of
subject-matter jurisdiction. See McCarthy v. Middle Tenn.Elec. Membership Corp., 466 F.3d
399, 406 n.9 (6th Cir. 2006).
4
It is undisputed that Plaintiff’s claims under NEPA, ESA and NHPA are derivative
of its claims under the RHA and the CWA. Accordingly, the Court begins by analyzing
Plaintiff’s claims under the RHA and the CWA.
8
Resp. Br. 4.)
The Court looks to the statutory language to determine the nature of the Corps’
permitting authority. Section 10 of the RHA provides:
[I]t shall not be lawful to excavate or fill, or in any manner to alter or modify
the course, location, condition, or capacity of, any port, roadstead, haven,
harbor, canal, lake, harbor or refuge, or inclosure within the limits of any
breakwater, or of the channel of any navigable water of the United States,
unless the work has been recommended by the Chief of Engineers and
authorized by the Secretary of the Army prior to beginning the same.
33 U.S.C. § 403. The authorization required in Section 10 is a permit issued by the Corps.
See 33 C.F.R. § 320.2(b) (“The instrument of authorization is designated a permit.”); 33
C.F.R. § 322.3(a) (“[P]ermits are required under section 10 for structures and/or work in or
affecting navigable waters.”); 33 C.F.R. § 322.5 (“The Secretary of the Army has delegated
to the Chief of Engineers the authority to issue or deny section 10 permits.”)
If a permit is not obtained before work subject to § 10 is initiated, the Corps is
authorized to bring an enforcement action. See 33 U.S.C. § 406 (providing that violation of
§ 403 of the RHA is a misdemeanor, punishable by a fine or imprisonment, and that removal
of the violating structure may be enforced by an action for injunctive relief).
Section 404 of the Clean Water Act provides:
The Secretary may issue permits, after notice and opportunity for public
hearings for the discharge of dredged or fill material into the navigable waters
at specified disposal sites. Not later than the fifteenth day after the date an
applicant submits all the information required to complete an application for
a permit under this subsection, the Secretary shall publish the notice required
by this subsection.
9
33 U.S.C. § 1344(a). CWA § 404 permits are also issued by the Corps. See 33 C.F.R.
§ 323.3(a) (“DA [Department of the Army] permits will be required for the discharge of
dredged or fill material into waters of the United States.”); 33 C.F.R. § 323.6(a) (“The
Secretary of the Army has delegated to the Chief of Engineers the authority to issue or deny
section 404 permits.”).
An individual who discharges without a § 404 permit is subject to the total prohibition
expressed in CWA § 301, 33 U.S.C. § 1311. If the discharge is found to be in violation of
CWA § 301, the discharger may be subject to administrative, civil, and criminal enforcement
proceedings.5 33 U.S.C. § 1319; see also Bravos v. E.P.A., 324 F.3d 1166, 1174 (10th Cir.
2003); Natural Res. Defense Council, Inc. v. Costle, 568 F.2d 1369, 1375 (D.C. Cir. 1977).
The RHA and CWA’s implementing regulations require that the Corps be “available
to advise potential applicants,” 33 C.F.R. § 325.1(b), that it process applications received,
33 C.F.R. § 325.2, that it give public notice of permit applications, 33 C.F.R. § 325.3, and
that it add any necessary conditions to the permit, 33 C.F.R. § 325.4. However, the
regulations contain no language authorizing or requiring the Corps to order the filing of a
permit application when a private party engages in work subject to RHA § 10 or CWQ § 404.
Under both RHA § 10 and CWA § 404, Congress placed the burden of applying for
a permit on the project proponent, who proceeds without a permit at his own risk. Congress
has not placed any obligation on the agency to initiate the permit process. Although the
5
The Environmental Protection Agency (“EPA”) is the agency primarily tasked with
enforcement of CWA violations. See 33 U.S.C. §§ 1251(d), 1319.
10
Corps is required to process permit applications, this duty arises only when a permit
application is filed.
Kennecott did not file a permit application under either the RHA or the CWA.
Accordingly, the Corps’ duty to process a permit application was not triggered. For this
reason, Plaintiff’s reliance on Marathon Oil Co. v. Lujan, 937 F.2d 498(10th Cir. 1991), in
support of the preposition that mandamus relief is an appropriate remedy to compel an
administrative agency to act where it has failed to perform a nondiscretionary, ministerial
duty is misplaced. See id. at 500. Marathon had filed an application for an oil shale mining
patent, and the court simply ordered the Bureau of Land Management to complete its
statutory duty to process that application. Id. at 501. Plaintiff’s reliance on Norton Const.
Co. v. U.S. Army Corps of Engineers, 1:03-CV-02257, 2006 WL 3526789 (N.D. Ohio Dec.
6, 2006) , is similarly misplaced because Norton had submitted a completed application for
a CWA permit to the Corps, and was merely requesting the Corps to perform its “mandatory
duty” to issue or deny the permit in accordance the Corps duties under the CWA. Id. at *1-2.
In the absence of an obligation to act, the agency’s failure to act does not constitute
final agency action subject to judicial review. Because Kennecott has not submitted an RHA
section 10 or a CWA section 404 permit application, the Corps has no mandatory permitting
obligation that is subject to review under the APA.
Plaintiff contends that “[w]hether or not a person applies for a permit is not relevant
to the fundamental principle that an agency has no discretion to choose whether to administer
11
a congressionally mandated program.” (Dkt. No. 34, Pl. Resp. 3, n.4.) Plaintiff contends
that the only statutory mandate is for the Federal Defendants to “fulfill their permitting and
regulatory duties” before Kennecott can engage in any regulated construction activities.
(Resp. Br. 15.) Plaintiff does not suggest how the Federal Defendants are to fulfill their
permitting and regulatory duties. Plaintiff does not contend that they have a statutory duty
to actively seek out persons who might need permits, and then to demand that they apply for
permits. (Dkt 34, Resp. Br. 15, 17.)
If Plaintiff is not suggesting that the Corps has a mandatory duty to investigate and
to demand permits, it is unclear how Plaintiff contends the Corps should administer the
programs, unless Plaintiff is requesting the Court to order the Corps to enforce what Plaintiff
believes are the requirements of RHA § 10 and CWA § 404. The Corps’ determination as
to whether to enforce these provisions against Kennecott, however, falls squarely within the
discretionary and enforcement actions of the Agency that this Court has no power to order
under the express terms of the APA.
Courts do not have authority to review agency actions that are “committed to agency
discretion by law.” 5 U.S.C. § 701(a)(2). An agency action is committed to agency discretion
by law if the statute does not provide a “meaningful standard against which to judge the
agency's exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985). “[A]n
agency’s decision not to prosecute or enforce, whether through civil or criminal process, is
a decision generally committed to an agency’s absolute discretion.” Id. at 831. The
12
enforcement decision is generally unsuitable for judicial review because it involves a
complicated balancing of factors including “whether a violation has occurred, . . . whether
agency resources are best spent on this violation or another, whether the agency is likely to
succeed if it acts, whether the particular enforcement action requested best fits the agency’s
overall policies, and, . . . whether the agency has enough resources to undertake the action
at all.” Id. “[W]hen Congress commits to an agency discretionary authority to perform an
act without prescribing meaningful governing standards, that exercise of discretion is placed
beyond judicial review by section 701(a)(2) of the Administrative Procedures Act (APA).”
Gor v. Holder, 607 F.3d 180, 188 (6th Cir. 2010) (citing Heckler, 470 U.S. at 830). Judicial
review is only available where there are “standards, definitions, or other grants of power
[that] deny or require action in given situations. . . .” Madison-Hughes v. Shalala, 80 F.3d
1121, 1127 (6th Cir. 1996) (quoting Diebold v. United States, 947 F.2d 787, 795 (6th Cir.
1991)).
The language of the RHA clearly leaves enforcement actions to the discretion of the
Corps and the Attorney General: “[T]he removal of any structures or parts of structures
erected in violation of the provisions of the said sections may be enforced by the injunction
of any district court exercising jurisdiction in any district in which such structures may exist,
and proper proceedings to this end may be instituted under the direction of the Attorney
General of the United States.” 33 U.S.C. § 406 (emphasis added). The regulations contain
enforcement policies applicable to the Corps in addressing unauthorized activities. 33 C.F.R.
13
§ 326.3. Those regulations are phrased in terms of what the Corps “should” do, rather than
what the Corps “shall” do. 33 C.F.R. § 326.3. They also expressly state that “[n]othing
contained in this Part [326 Enforcement] shall establish a non-discretionary duty on the part
of district engineers nor shall deviation from these procedures give rise to a private right of
action against a district engineer.” 33 C.F.R. § 326.1.
Plaintiff, however, has not requested an enforcement action.
Indeed, Plaintiff
recognizes that enforcement actions are discretionary, and has repeatedly insisted that this
is not an enforcement action. (See Pl. Resp. Br. 6 (“The structure of the Corps’ own
regulations therefore belie any suggestion HMC seeks to compel the exercise of
‘enforcement’ powers. HMC instead seeks to hold the corps accountable for compliance
with its own permitting regulations and statutory mandates.”); Pl. Resp. Br. 2 (stating that
Defendants’ enforcement cases are inapposite).). Plaintiff has simultaneously asserted,
however, that if Defendants’ permitting and regulatory functions are within their enforcement
discretion, there is only a rebuttable presumption against judicial review, and that
presumption must yield where the substantive statute has provided guidelines for the agency
to follow in exercising its enforcement powers. (Resp. Br. 6, citing Heckler, 470 U.S. at 83233). Plaintiff contends that there are standards providing precise guidance on when an
enforcement action must be brought. The standards Plaintiff points to are standards that
outline the nature of work that requires a permit. The standards define whether a violation
has occurred, but they do not address agency’s discretionary determination as to whether such
violation is worth pursuing.
14
Courts have concluded that a party cannot maintain an action under the APA or
mandamus to require a federal agency to enforce the permitting requirement of the RHA or
the CWA. See, e.g., Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001) (holding that
the CWA leaves it to the discretion of the EPA Administrator whether to find violations and
to take enforcement action, and that these discretionary decisions are not subject to judicial
review under § 1365(a)(2)); Harmon Cove Condo. Ass’n, Inc. v. Marsh, 815 F.2d 949, 95253 (3rd Cir. 1987) (“Section 10 of the RHA does not impose a duty on the Secretary to
enforce compliance with the provisions of the permit . . . [and] imposes no duty on the
Secretary to make a finding of violation, because it contains no guidelines for the Secretary
to follow in choosing to initiate enforcement activity.”)
Plaintiff does not have a likelihood of success on its RHA and CWA claims against
the Federal Defendants because it has not identified a basis for finding a mandatory duty to
exercise permitting authority in the absence of a permit application, and because the
enforcement decision is committed to agency discretion.
b. Transfer of CWA Permitting Authority
There is an additional barrier to Plaintiff’s APA challenge to the Federal Defendants’
failure to require a CWA § 404 permit. Congress has authorized the transfer of authority to
issue CWA § 404 permits to the states. 33 U.S.C. § 1344(h). Pursuant to this authority, in
1983 the State of Michigan assumed responsibility for administering the CWA with respect
to all waters in the state except those presently used or susceptible for use in their natural
condition for commerce. See 40 C.F.R. § 233.70 (codifying Michigan’s assumption of the
15
§ 404 regulatory program);6 (Dkt. No. 13, Konik Decl. ¶ 7, App’x 1, MDNR-USEPA
Agrmt., App’x 2, Michigan/Corps Agrmt.). The Corps has made a determination that only
the last two miles of the Salmon Trout River are navigable, from Lake Superior to the
confluence with Sullivan Creek at T52N, R27W, Sec. 31. (Konik Decl. App’x 3, Corps’
2012 List of Navigable Waters.)
When the Corps learned about the Eagle Mine project in 2005, it determined that
because the project was located approximately 21 miles upstream from the navigable portion
of the Salmon Trout River, it was within the State of Michigan’s assumed authority with
regard to CWA Section 404 permitting. (Dkt. No. 13, Konik Decl. ¶ 14.)7 Accordingly, the
6
Michigan’s assumption of authority to issue CWA § 404 permits is codified at 40
C.F.R. § 233.70, which provides in pertinent part:
The applicable regulatory program for discharges of dredged or fill material
into waters of the United States in Michigan that are not presently used, or
susceptible for use in their natural condition or by reasonable improvement as
a means to transport interstate or foreign commerce shoreward to the ordinary
high water mark, including wetlands adjacent thereto, except those on Indian
lands, is the program administered by the Michigan Department of Natural
Resources, approved by EPA, pursuant to Section 404 of the CWA.
40 C.F.R. § 233.70.
7
Plaintiff claims that the 2005 decision not to exercise jurisdiction over the Eagle
Mine project is a final decision that is subject to review under the APA. During a 2005
telephone call, a Corps official stated that the project site was not on a navigable portion of
the Salmon Trout River. This opinion merely reflected the Corps’ 1984 jurisdictional
determination, and was not a final agency action subject to judicial review. Moreover, even
if it was a final decision, Plaintiff’s action is outside the six year statute of limitations for
APA claims. 28 U.S.C. § 2401(a); Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d
923, 930 (9th Cir.2010) (“APA claims are subject to a six-year statute of limitations.”).
16
Federal Defendants contend that the federal government does not administer § 404 of the
Clean Water Act for the waters at issue in this case.
Plaintiff contends that the Corps cannot delegate its CWA § 404 permitting authority
over the waters at issue to Michigan because the portion of the Salmon Trout River and the
wetlands above the Eagle Mine are navigable and beyond the scope of waters that are subject
to state delegation.
Section 404(g) of the Clean Water Act allows delegation only as to waters that are not
“presently used, or are susceptible to use in their natural condition or by reasonable
improvement as a means to transport interstate . . . commerce.” 33 U.S.C. § 1344(g). Even
if Plaintiff could show that the Salmon Trout River can be used for interstate commerce
above Sullivan Creek, Plaintiff has not presented any persuasive evidence that the waters of
the Salmon Trout River in the vicinity of the Eagle Mine are presently used, or are
susceptible to use, in their natural condition or by reasonable improvement as a means to
transport interstate commerce.
Accordingly, because the Federal Defendants’ permitting authority has been
transferred to the State of Michigan, Plaintiff does not have a likelihood of success on the
merits of her claim that the Federal Defendants failed to take mandatory action under the
CWA.
c. Applicability of the RHA and CWA to Kennecott’s Actions
Even if the review is proper under the APA, Plaintiff has nevertheless failed to show
a likelihood of success on the merits of its claims that RHA § 10 and CWA § 404 have any
applicability to the Eagle Mine.
17
1. Navigable Waters
RHA § 10 prohibits “any obstruction not affirmatively authorized by Congress, to the
navigable capacity of any of the waters of the United States.” 33 U.S.C. § 403. The term
“navigability” has different definitions depending on the purpose for which the concept is
invoked under each particular statute.8 The term has a more limited meaning under the RHA
than it does under the CWA. 1902 Atlantic Ltd. v. Hudson, 574 F. Supp. 1381, 1392 (D. C.
Va. 1983).9 As noted in the regulations:
The terms “navigable waters of the United States” and “waters of the United
States” are used frequently throughout these regulations, and it is important
from the outset that the reader understand the difference between the two.
“Navigable waters of the United States” are defined in 33 CFR part 329.
These are waters that are navigable in the traditional sense where permits are
required for certain work or structures pursuant to Sections 9 and 10 of the
Rivers and Harbors Act of 1899. “Waters of the United States” are defined in
8
See Finneseth v. Carter, 712 F.2d 1041, 1043 (6th Cir. 1983) (noting that
“navigability” is used to delineate boundaries to navigational servitude, to define Congress’
authority under the Interstate Commerce Clause, to determine the extent of the Corps’
authority under the RHA, and to establish federal court jurisdiction over admiralty and
maritime cases).
9
The 1902 Atlantic court quoted the following distinction from 33 C.F.R. § 320.1(c):
“Navigable waters of the United States” are defined in 33 CFR Part 329.
These are the traditional waters where permits are required for work or
structures pursuant to sections 9 and 10 of the River and Harbor Act of 1899.
“Waters of the United States” are defined in 33 CFR 323.2(a). These waters
include more than navigable waters of the United States and are the waters
where permits are required for the discharge of dredged or fill material
pursuant to section 404 of the Federal Water Pollution Control Act
Amendments of 1972.
574 F. Supp. at 1392.
18
33 CFR part 328. These waters include more than navigable waters of the
United States and are the waters where permits are required for the discharge
of dredged or fill material pursuant to section 404 of the Clean Water Act.
33 C.F.R. § 320.1.
Because the Corps has determined that only two miles of the Salmon Trout River are
navigable, it has also determined that the river is not navigable 20 miles upstream in the
vicinity of the Eagle Mine. The Corps’ determination of navigability is not binding on the
court. Miami Valley Conservancy Dist., 692 F.2d at 451 (finding that the Corps failed to
prove that a stretch of the river was navigable as a matter of law); see also 33 C.F.R. § 329.3
(“Precise definitions of ‘navigable waters of the United States’ or ‘navigability’ are
ultimately dependent on judicial interpretation and cannot be made conclusively by
administrative agencies.”).
Nevertheless, the Corps’ determination on navigability is
generally accorded substantial weight. See, e.g., Wash. Water Power Co. v. FERC, 775 F.2d
305, 328, 332 (D.D.C. 1985) (holding that Corps’ navigability reports carried “particular
weight”, and that the Commission failed to give them adequate deference); Loving v.
Alexander, 548 F. Supp. 1079, 1087 (D.C. Va. 1982) (“[T]he Corps’ determination of
navigability is entitled to substantial weight.”); see also 33 CFR § 329.14(a) (“Although
conclusive determinations of navigability can be made only by federal Courts, those made
by federal agencies are nevertheless accorded substantial weight by the courts.”).
Under the RHA, “[t]he question of navigability turns on whether the river has ever
been or is now used as a water highway for interstate commerce.”
19
Miami Valley
Conservancy Dist. v. Alexander, 692 F.2d 447, 449 (6th Cir. 1982). “A navigable waterway
of the United States must (1) be or have been (2) used or susceptible of use (3) in the
customary modes of trade and travel on water (4) as a highway for interstate commerce.” Id.
at 450.
Plaintiff contends that the Salmon Trout River and its associated wetlands in the
vicinity of the Eagle Mine ore body are “navigable” within the meaning of RHA § 10
because they fall within the Corps’ own definitions of “navigable waters of the United
States,” and that Kennecott’s work “under” those navigable waters triggers the Corps’ RHA
permitting jurisdiction. See 33 C.F.R. § 329.6 (“[T]ransportation of logs has been a
substantial and well-recognized commercial use of many navigable waters of the United
States . . . . Similarly, the presence of recreational craft may indicate that a waterbody is
capable of bearing some forms of commerce, either presently, in the future, or at a past point
in time.” ); 33 C.F.R. § 329.7 (providing that a waterbody entirely within a state may still be
capable of carrying interstate commerce, especially if it connects with the ocean or one of
the Great Lakes); 33 C.F.R. § 322.3(a) (“a tunnel or other structure or work under . . . a
navigable water . . . . is considered to have an impact on the navigable capacity . . . .”).
In support of its contention that the waters above the ore body are navigable, Plaintiff
has presented evidence that there was logging upstream of the mine, and that logs were
transported on the River. (Dkt. No. 5, Pl.’s Ex. B. Boyle Aff. ¶ 17 ) (“[N]ear the site of
Kennecott’s mine there was once a logging operation. . . . . As a part of the historical
20
operations, logs were transported by the Salmon Trout River to Lake Superior for
commercial sale.”). Plaintiff has also presented evidence of a commercial rafting operation
boating, canoeing, kayaking, and fishing on the Salmon Trout River. (Dkt. No. 5, Pl.’s Ex.
B, O’Boyle Aff. Ex. 4; Dkt. No. 35, Ex. 2, O’Boyle Aff. ¶ 3; Dkt. No. 5, Pl. Ex. A, Dykema
Aff. ¶ 7, 10; Dkt. No. 6, Pl.’s Ex. C, Powers Aff. ¶ 7, 10.)
In response, Kennecott has presented evidence that the Salmon Trout Main branch
near the area overlying the ore body is the smallest headwater tributary of the Salmon Trout
River System, and that transport of goods by vessels on the stream is impossible in this area
due to the shallow characteristics, narrow channel widths, and barriers to flow. (Ken. Ex.
2, Wiitala Decl. ¶¶ 2-4, & Ex. 1.)
Contrary to Plaintiff’s contentions, the fact that the Salmon Trout River is a tributary
of Lake Superior, is not sufficient, in itself to make the entire stretch of the river navigable.
Section § 329.7 does not stand for the proposition that navigable status is automatically
assigned to the entire reach of all rivers that are tributaries of a Great Lake. “The character
of a river will, at some point along its length, change from navigable to non-navigable.” 33
CFR § 329.11(b). Plaintiff has not presented any persuasive evidence of recreational use of
the waters above the ore body. The commercial rafting Plaintiff has described begins one
mile downstream of the Eagle Mine ore body, and the affidavits pertaining to other
recreational activities describe activities downstream of the Eagle Mine, or do not specify
where on the river the activities take place. Although Plaintiff has presented some hearsay
21
evidence of historic commercial use of the waters in the vicinity of the ore body, the historic
evidence is ambiguous at best with respect to whether logs were transported in the Salmon
Trout River in the vicinity of the Eagle Mine. The Court is not persuaded that this evidence
is sufficient to give Plaintiff a likelihood of success on its claim that the waters are navigable.
Even if the Salmon Trout River is determined not to be navigable above the mine,
Plaintiff contends that Kennecott’s activities nevertheless are governed by the RHA because
the activities, regardless where located, will affect the capacity of a navigable water. See 33
C.F.R. § 322.3 (“DA permits are required under section 10 for structures and/or work in or
affecting navigable waters of the United States.”)
Plaintiff contends that as a result of
excavation and mining operations, Kennecott will drawdown water in a manner that will
lower the water table of the Salmon Trout River and its wetlands, that this action could affect
the capacity of the Salmon Trout River further downstream. Plaintiff has presented the
testimony of several witnesses from the administrative hearing. Dr. Adamus testified that
the mine would lower the water table in the wetlands and would alter and degrade them, and
there is a chance of water quality degradation to the wetlands. (Dkt. No. 9, Pl. Ex. R, pp.
1041-1068.) Gregory Council testified that although there would be some drawdown, the
impacts are small, about 2 to 4 percent of stream flow, and those impacts would be reduced
as one goes down stream because water is put back into the system through the treated water
infiltration system. (Pl. Ex. P, Council Test. Tr. 5254.) Dr. Blake testified that he was
concerned with the safety of the crown pillar, and that if there was a subsidence or collapse
22
of the crown pillar, it would cause a drawdown of water and effects far down stream. (Dkt.
No. 9, Pl. Ex. Q, Blake Test. 866.)
The implementing regulations provide that structures or work outside of navigable
waters are subject to the RHA “if these structures or work affect the course, location, or
condition of the waterbody in such a manner as to impact on its navigable capacity.” 33
C.F.R. § 322.3(a). Although Plaintiff has presented some evidence to suggest that the
Salmon Trout River will be impacted downstream of the mine, Plaintiff has not presented any
evidence to show that the mine will affect the Salmon Trout River “in such a manner as to
impact on its navigable capacity.” Id.
2. Discharge
Defendants contend that Plaintiff does not have a likelihood of success on its CWA
claim because Plaintiff has not alleged a CWA violation.
CWA § 404 prohibits discharges of dredged or fill material into navigable waters
without a permit. 33 U.S.C. §§ 1311, 1344. The CWA defines navigable waters as “the
waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). The
regulations generally define the term “waters of the United States” to include waters
susceptible to use in interstate commerce, wetlands, waters which can be used for commerce,
(including recreation, industrial uses, and extraction of fish and shellfish), tributaries, and
wetlands. See 33 C.F.R. § 328.3(a). Wetlands are defined as areas inundated with water that
support vegetation. 33 C.F.R. § 328.3(b).
23
Defendants contend that, as evidenced by these definitions, CWA § 404 is concerned
with discharges of dredge and fill material into surface waters. Plaintiff has not alleged that
Kennecott will discharge dredged or fill material into the Salmon Trout River,its related
wetlands, or any other surface waters. Rather, Plaintiff’s CWA § 404 claim is based on
Kennecott’s expected drawdown of the water table of the Salmon Trout River and related
wetlands as a result of its subsurface activities of excavating rock and ore from an
underground mine. (Compl. ¶ 29 (“Kennecott’s excavation and re-deposit of subsurface
materials underneath the Salmon Trout River and connected wetlands during construction
and operation of the Eagle Mine, constitutes ‘dredge or fill’ activity within the meaning of
the CWA.”).)
Defendants contend that because Kennecott’s mining operations and
subsequent backfill will take place well below the water table in the deep bedrock, it does
not involve discharges into surface waters and is accordingly beyond the reach of CWA
§ 404.
This Court has previously held that “Congress did not intend the Clean Water Act to
extend federal regulatory and enforcement authority over groundwater contamination.”
Kelley ex rel. Mich. v. United States, 618 F. Supp. 1103, 1107 (W.D. Mich. 1985) (Enslen,
J.) Other courts have held that CWA jurisdiction applies to groundwater, but only if the
groundwater has a direct hydrologic connection to surface waters that are waters of the
United States.
See Ass’n Concerned Over Res. & Nature, Inc. v. Tenn. Aluminum
Processors, Inc., 2011 WL 1357690, at *17 (M.D. Tenn. April 11, 2011) (citing cases).
24
Even if Plaintiff had an APA claim against the Federal Defendants based on CWA
§ 404, the Court does not find that Plaintiff has shown a likelihood of success on the merits
of its claim that the nature of Kennecott’s underground extraction and subsequent backfill
will involve the kind of discharges that are subject to the CWA, even under the broader
reading of the statute.
2. NEPA, NHPA and ESA Claims
Plaintiff alleges that the permits required under the RHA and the CWA are federal
actions that trigger obligations on the Federal Defendants to conduct evaluations and
assessments under NEPA, the NHPA and the ESA.
Absent an order from this court requiring the Corps to take affirmative permitting and
enforcement actions, there is no federal action associated with the Eagle Mine project, and
accordingly no basis to require the Federal Defendants to conduct environmental reviews
under these statutes. Because Plaintiff does not have a strong likelihood of success on its
RHA and CWA claims, and because Plaintiff’s claims under NEPA, NHPA and ESA are
derivative of its claims under the RHA and the CWA, Plaintiff does not have a strong
likelihood of success on its claims under these other acts.
3. Likelihood of Success re Claims against Kennecott
Finally, the Court turns to Plaintiff’s claims against Kennecott. Although Plaintiff
claims that Kennecott is violating the RHA and the CWA, Plaintiff does not purport to be
bringing a private action against Kennecott under the RHA or the CWA. Instead, Plaintiff
25
seeks injunctive relief against Kennecott pursuant to the All Writs Act, 28 U.S.C. § 1651,
or the Court’s inherent powers.
The All Writs Act does not provide federal courts with an independent source of
jurisdiction to issue writs, but only with the authority to issue writs “in aid of their respective
jurisdictions.” Baze v. Parker, 632 F.3d 338, 345 (6th Cir. 2011) (quoting 28 U.S.C. § 1651).
[W]hile a party must “state a claim” to obtain a “traditional” injunction, there
is no such requirement to obtain an All Writs Act injunction—it must simply
point to some ongoing proceeding, or some past order or judgment, the
integrity of which is being threatened by someone else's action or behavior.
The requirements for a traditional injunction do not apply to injunctions under
the All Writs Act because a court's traditional power to protect its jurisdiction,
codified by the Act, is grounded in entirely separate concerns.
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100-01 (11th Cir. 2004). “[T]he All Writs
Act generally should only be used sparingly and only in the most critical and exigent
circumstances.” In re Life Investors Ins. Co. of Am., 589 F.3d 319, 330 (6th Cir. 2009).
“Unless otherwise provided by statute, all the inherent equitable powers of the District
Court are available for the proper and complete exercise of that jurisdiction.” United States
v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 761 (6th Cir. 1999) (quoting Porter v. Warner
Holding Co., 328 U.S. 395, 398 (1946)).
Because Plaintiff does not have a likelihood of success on its claims against the
Federal Defendants under the APA, and because Plaintiff has not shown a likelihood of
success on the merits of its claims that Kennecott is violating the RHA or the CWA, the
Court is not inclined to grant Plaintiff relief under the All Writs Act or the Court’s inherent
powers.
26
The Court concludes that Plaintiff does not have a likelihood of success on any of its
claims against either the Federal Defendants or Defendant Kennecott.
B. IRREPARABLE HARM TO THE PLAINTIFF
The second factor under the preliminary injunction test is whether the movant will
suffer irreparable injury without a preliminary injunction. To demonstrate irreparable harm,
Plaintiff must show that unless a preliminary injunction is entered and the construction of the
Eagle Mine is immediately enjoined, Plaintiff will suffer “actual and imminent” harm rather
than harm that is “speculative or unsubstantiated.” Abney v. Amgen, Inc. 443 F.3d 540, 552
(6th Cir. 2006). A plaintiff seeking preliminary injunctive relief is required to demonstrate
that irreparable injury is not only possible, but that it is “likely” in the absence of an
injunction. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). In
order to be irreparable, the harm must be of sufficient immediacy that it cannot await trial on
the merits.
Plaintiff contends that the Federal Defendants’ failure to conduct required
environmental and cultural evaluations before allowing Kennecott to engage in regulated
conduct infringes on Plaintiff’s procedural rights, and that infringement is, in itself,
“irreparable harm.” See Winter, 555 U.S. at 7, 23 (“Part of the harm NEPA attempts to
prevent in requiring an EIS is that, without one, there may be little if any information about
prospective environmental harms and potential mitigating measures.”); Sierra Club v. Army
Corps of Eng’rs, 645 F.3d 978, 995 (8th Cir. 2011) (“[T]he failure to comply with NEPA’s
27
requirements causes harm itself, specifically the risk that ‘real environmental harm will occur
through inadequate foresight and deliberation.’”).
Plaintiff also contends that the
construction of the mine will lead to environmental impacts that will alter the ecology of the
Salmon Trout River watershed by lowering the water table in the River and adjacent
wetlands, reducing the reach of the River and wetlands, reducing the flow of the River,
altering the temperature of the River, and excavating and re-depositing materials in the
subsurface portions of the River’s bed, and potentially causing a catastrophic collapse of the
River.
Because Plaintiff has not shown a likelihood that Kennecott’s work is subject to the
RHA and the CWA, Plaintiff has not shown that irreparable injury from a lack of studies
under the NEPA, ESA, and NHPA is “likely.” Moreover, the Eagle Mine has been the
subject of extensive review for over six years by State environmental authorities, and has
survived multiple state court challenges. Although the state and federal considerations are
not identical, there is no dispute that the findings required under state and federal law are
similar, and that the issues raised in this case parallel the issues raised in the state
administrative and court cases. The Ingham County Circuit Court held that the MDEQ’s
findings that the Eagle Mine is not likely to subside or collapse, and that it would not have
any severe adverse impact on the flora and fauna, the wetlands, or the surface or ground
water in the region, were supported by competent, material and substantial evidence on the
record. (Ken. Ex. 18, Op. Aff’g Part 632 Permit.) It held that any effects outside the
28
boundaries of the mine footprint were de minimus. (Id. at 78.) Plaintiff has not shown any
likelihood that it would succeed here where it did not succeed in state court. Plaintiff has not
shown that the state administrative or judicial processes were flawed, or that it will be able
to present material evidence in this action that was not already considered by the MDEQ or
the state courts.
Plaintiff’s concerns regarding potential harms are also minimized, at least in part, by
the terms of Kennecott’s state permits. Kennecott’s Part 632 permit requires extensive
monitoring of surface water, groundwater, and wetlands to prevent pollution, impairment,
or destruction of these resources, and require Kennecott to stop all work if the monitoring
shows a problem.
Finally, Plaintiff has actively challenged the Eagle Mine since Kennecott submitted
its application to the MDEQ in February 2006. The subsurface work that is the subject of
this action was contemplated from the beginning of the project. Plaintiff has been fully
aware of Kennecott’s plans to construct and operate its underground mine without RHA and
CWA permits. Plaintiff’s failure to pursue these federal claims until 2012, evidences a lack
of immediate irreparable harm. See Quince Orchard Vallely Citizens Ass’n, Inc. v. Hodel,
872 F.2d 75, 80 (4th Cir. 1989) (“Since an application for preliminary injunction is based on
an urgent need for the protection of [a] Plaintiff’s rights, a long delay in seeking relief
indicates that speedy action is not required.”) The timing of this action suggests an
obstructive motive, rather than a sincere belief that Plaintiff is being irreparably harmed by
Kennecott’s failure to comply with federal law.
29
C. HARM TO OTHERS
The third factor for consideration in reviewing a motion for a preliminary injunction
is whether issuance of the injunction would cause substantial harm to others.
Stopping the construction of the Eagle Mine would cause substantial concrete and
immediate harm to Kennecott. Kennecott has already spent over $331 million on the mine,
and anticipates investing an addition $1 billion during construction and operation of the mine.
(Burley Decl. ¶ 7.) If the project is stayed for a significant period, Kennecott will incur
significant costs due to the idling of specialized equipment, the loss of specialty contractors,
and the costs of terminations, lay-offs, and relocation of employees. (Id.at ¶¶ 8-13.) A stay
will also negatively impact Kennecott’s return on its investment and the economies of the
project. (Id. at ¶ 14.)
Plaintiff contends that any harm to Kennecott’s private interest is self-inflicted because
Kennecott failed to obtain a permit. See Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d
978, 997 (8th Cir. 2011) (noting that any injury to SWEPCO was self inflicted because it
invested in plant construction before the § 404 permit was issued and ignored the Corps’
warning letter that construction would proceed at its own risk). However, because Plaintiff
has not shown a likelihood of success on the merits of its claim that Kennecott is required to
obtain a permit, the harm to Kennecott cannot be dismissed as self-inflicted.
Stopping construction of the Eagle Mine would also cause substantial harm to the local
community in terms of lost jobs, lost tax revenue, and lost infusion of capital. (Clickner
30
Decl.; Corkin Decl.; LaSalle Decl.; Mackey Decl.; Stine Decl.) The unemployment rate in
the Upper Peninsula exceeds the national average. (Corkin Decl. ¶ 3.) As of April 2012,
Kennecott and its contractors employed 296 individuals, 221 of whom were from the local
area. (Burley Decl. ¶ 6.) A stay would also cause harm to many businesses in the area that
are dependent on Kennecott’s business. (Allie Decl.; O’Dovero Decl.; Swadley Decl.)
D. PUBLIC INTEREST
The final consideration in reviewing a motion for preliminary injunction is whether the
public interest would be served by granting injunctive relief.
Plaintiff contends that the public has an interest in having federal agencies fulfill their
legitimate governmental functions, see Sierra Club, 645 F.3d at 997, and in avoiding
environmental injury.
The public interest might outweigh economic concerns if Plaintiff was likely to
succeed on the merits of its underlying claim. See The Lands Council v. McNair, 537 F.3d
981, 1005 (9th Cir. 2008). However, the public also has an interest in aiding a struggling
local economy and preventing job loss. Id. Because Plaintiff has little likelihood of success
on the merits of its permitting claims, the public interest in injunctive relief is slim, and is
outweighed by the public’s interest in maintaining jobs, tax revenues, and capital investment
in the local economy.
III.
Upon consideration of all of the relevant factors, the Court concludes that Plaintiff has
31
not met its heavy burden to show that it should be granted preliminary injunctive relief.
Plaintiff’s motion for a preliminary injunction will accordingly be denied.
An order consistent with this opinion will be entered.
Dated: July 25, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
32
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