Olenec et al v. National Marine Fisheries Service et al

Filing 103

ORDER: Denying Motion for Summary Judgment 85 ; Granting Motion for Summary Judgment 91 ; Granting Motion for Summary Judgment 94 . Signed on 9/27/2011 by U.S. District Judge Michael R. Hogan. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

JOHN B. JONES III; JULIE JONES;
LARRY WHITE; BANDON WOODLANDS
COMMUNITY ASSOCIATION; and OREGON
COAST ALLIANCE

Civil No.

10-6427 HO

ORDER
Plaintiffs,

v.
NATIONAL MARINE FISHERIES SERVICE,
et ali
Defendants,
OREGON RESOURCES CORPORATION
Defendant-Intervenor.
Plaintiffs move for summary judgment vacating the challenged
agency decisions in this matter and enjoining defendants actions.
[#85J.

Defendants and defendant-intervenor oppose plaintiffs'

motion and cross-move for summary judgment. [#91; #94].

ORDER - p.1

Introduction
Plaintiffs' First Amended Complaint (FAC), brings six claims
against defendants under the Administrative Procedures Act (APA),
alleging violations of the Endangered Species Act (ESA); the Clean
Water Act (CWA) and the National Environmental Policy Act (NEPA)
and seeking declaratory and injunctive relief. [#88]

Specifically,

plaintiffs challenge the National Marine Fisheries Service (NMFS)
concurrence with the Army Corps of Engineers'

(the Corps)

conclusion that 160 acres of Oregon Resources Corporation's (ORC)
chromite mining operations ' near Coos Bay, are not likely to
adversely affect the Oregon coast coho salmon (OC coho) which the
NMFS in 2008, listed as threatened under the Endangered Species Act
(ESA) .

[#88-p.l,

<[3;

#86-p. 3]

•

Plaintiffs allege that, in issuing a permit for surface mining
which involves 7.7 acres of wetlands and 0.6 acres of tributary
streams and entails removal of vegetation, filling wetlands,
rerouting waterways, open pit run removal of material with heavy
equipment, transport for processing, dewatering of mine pits and
replacement of mine tailings at four sites within the watersheds of
two fish-bearing streams, the Corps and NMFS have violated their
statutory duties and acted arbitrarily and capriciously.

[#88-

Plaintiffs contend that this is the first open-pit
chromite sands mine operated in the United States.
ORDER - p.2

pp.1-2,~~

3-4].

Of particular concern to plaintiffs is the

presence of hexavalent chromium (Cr6) in the ground water at the
mine site and plaintiffs' perception that Cr6 and sedimentation
which may be generated during the mining process, will injure fish
and wildlife, pollute the watershed and threaten plaintiffs' health
and well-being.

[#88-p.2,~

5].

Plaintiffs' FAC seeks: (1) a declaration that the NMFS has
violated the Endangered Species Act (ESA); (2) a declaration that
the Corps violated the Clean Water Act (CWA) , and National
Environmental Policy Act (NEPA); (3) an injunction ordering NMFS to
conform with the ESA, prepare an Environmental Impact Statement
(EIS), and rescind ORC's Section 404 permit; and (4) an award of
reasonable attorney fees and costs.

[#88-pp.1-2,35-36]

The federal defendants and the intervenor-defendant ORC,
oppose plaintiffs' motion arguing that the record demonstrates that
both the Corps and NMFS reasonably concluded that there are no
practicable alternatives, that the risks posed by Cr6 are
negligible and the proposed mining is not likely to adversely
affect OC coho.

[#92; #95].
FACTUAL BACKGROUND:

The factual background of ORC's mining project was detailed in
this court's previous order.

ORDER - p.3

[#59].

The following summarized

facts are derived from the parties' statements and accompanying
admissible evidence, and are either undisputed or framed in the
light most favorable to the nonmoving party.
The mining is being conducted in four mine sites (South Seven
Devils, North Seven Devils, West Bohemia and West Section 10),
,
located on elevated beach terraces found in Weyerhaeuser Company
commercial timberlands within the Three-mile and Five-mile Creeks'
watersheds in the Cape Arago area of the southern Oregon coast.
[#92-p.3; #86-p.5].

The NMFS has not designated Three-mile and

Five-mile Creeks as OC coho critical habitat, both because of their
limited salmon habitat and because fish surveys have not detected
OC coho in either location.

[#86-p.5; #92-p.3; #95-p.3].

ORC will extract chromite, garnet and zircon sand from these
sites using standard excavation equipment, removing the overburden
and topsoil and then removing the mineral sands.
p.2].

[#92-pp. 3-4; # 95-

The sands will be transported to a processing plant in Coos

Bay, Oregon where the industrial heavy metals are separated from
the other sand using a gravimetric process.

Id.

The remaining

sand (tailings) will be returned to the mine site and used for
reclamation.

[#92-p.4; #95-p.3].

Once mining is completed on a

site, the site will be graded, seeded and planted with trees.
The smaller mine sites will be completely mined and reclaimed

ORDER - p.4

Id.

within a year while the largest site will take approximately four
years to be mined and reclaimed.

[#86-p.4; #92-p.4].

DISCUSSION
1.

Review under the Administrative Procedure Act:

The Administrative Procedure Act (APA) governs judicial review
of agency actions under the ESA, CWA and NEPA.

5 U.S.C. §706.

In

an APA case, summary judgment is awarded if after reviewing the
administrative record, it is determined that the agency's action
was arbitrary and capricious, an abuse of discretion, not in
accordance with law, or unsupported by substantial evidence in the
record taken as a whole.

Morongo Band of Mission Indians v. FAA,

161 F.3d 569, 573 (9th Cir. 1988); 5 U.S.C. §706 (2) (A).
A decision is arbitrary and capricious i f the agency: (1) has
relied on factors which Congress has not intended it to consider;
(2) entirely failed to consider an important aspect of the problem;
(3) offered an explanation for its decision that runs counter to
the evidence before the agency; or (4) is so implausible that it
could not be ascribed to a difference in view or product of agency
expertise.

Calif. State Grange v, NFMS, 620 F.SUPP.2d 1111, 1142

(E.D. Cal. 2008); United States v. Snoring Relief Labs, Inc., 210
F.3d 1081, 1085 (9th Cir. 2000).

ORDER - p.5

Review under this standard is narrow, and the reviewing court
may not substitute its judgment for that of the agency.
Band, 161 F.3d at 573.

Morongo

Whenever scientific experts express

conflicting views, "an agency must have discretion to rely on the
reasonable opinions of its own qualified experts even if, as an
original matter, a court might find contrary views more
persuasive."

Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378

(1989) .

A court must be "at its most deferential" when an agency is
"making predictions within its area of expertise."

Baltimore Gas &

Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 103 (1983).

The

court must not act as a scientist "that instructs the [agency]
., chooses among scientific studies . . . , and orders the agency
the explain every scientific uncertainty."

Lands Council v.

McNair, 537 F.3d 981, 988 (9 th Cir 2008) (en bane).
2.

Clean Water Act allegations:

The Clean Water Act (CWA) , seeks to "restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters" and prohibits the discharge of pollutants into navigable
waters unless otherwise authorized under the CWA.
§§125l(a) and 1344.

33 U.S.C.

Congress has charged the Corps with regulation

of the discharge of dredged or fill material into navigable waters.

ORDER - p.6

Resource Investm'ts Inc. v. U.S. Army Corps of Engineers, 151 F.3d
1162, 1166 (9th Cir. 1998).
Navigable waters are defined by the CWA as "the waters of the
United States" and by regulation, encompass wetlands.
§323.2(d); 33 C.F.R. §328.3(a), (b).

33 C.F.R.

The Corps' regulations define

"fill material" as "material placed in waters of the United States
where the material has the effect of: (I) Replacing any portion of
a water of the United States with dry land; or (ii) Changing the
bottom elevation of any portion of a water of the United States."
33 C.F.R. §323.2 (e).
Section 404 of the CWA prohibits the discharge of "dredged or
fill material" into navigable ~aters without a permit issued by the
Corps.

33 C.F.R. §1344.

general permits.

The Corps may issue both individual and

33 C.F.R. §1344(a), (e).

An individual permit

will not be issued "if there is a practicable alternative to the
proposed discharge which would have less adverse impact."

40

C.F.R. §230.10(a)
Plaintiff's argue that "the Corps erred in carrying out the
alternatives analysis

[#86-p.13].

Plaintiffs contend

that as a result, the Corps eliminated otherwise practicable
alternatives from its analysis and improperly issued the permit
based on intervenor-defendant's financing constraints which require

ORDER - p.7

ORC to pay back their investment debt by June 30, 2013.

[#86-

pp.14-15] .
Defendant NMFS and intervenor-defendant ORC disagree noting.
that the administrative record of the Corps' decision contains no
mention of ORC's need for profit within a certain time.
pp.3-4; #101-p.2].

[#100-

Rather, defendants assert the Corps properly

considered whether the alternative mine sites could generate the
necessary return to fulfill ORC's overall economic objectives.
[Id. (citing CEO 179-188)].

As correctly noted by all parties, this court's review is
limited to the reasoning upon which the agency relied in making its
decision.

Oregon Natural Desert Assoc v. B.L.M., 531 F.3d 1114,

1141 (9th Cir. 2008).

It is not this court's role to attempt to

deduce the agency's intent by conjecture based on reading between
the lines.

Further, it is well established that the Corps may

legitimately consider such facts as cost to the applicant.
Sylvester v. U.S. Army Corps of Engin'rs, 882 F.2d 407, 409 (9th

Cir. 1989) (c::'ting Friends of the Earth v. Hintz, 800 F.2d 822, 83334 (9th Cir, 1986).
The Corp's analysis and permitting procedure was previously
detailed in this court's order [#59], and will not be repeated
here.

In summary, the Corps issued a permit which authorized the

ORDER - p.8

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;" to temporarily install road crossings in three streams to
access one of the mining sites [AR-CE00008]; 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 impacted by the mining within three years of
its first discharge of dredged or fill materials.

[AR-CEOOOIO-12] .

Further the Corps' Environmental Assessment (EA) notes that based
on "a review of soils, geography and topography" of the alternate
sites, mining in those sites would have "greater aquatic impacts"
and would "not provide the required amount of chromium necessary to
achieve the [project's] overall purpose."

[AR-CE00186-87].

Because the Corps (and NMFS), considered the relevant factors
and articulated a rational connection between the facts found and
the choices made, they have complied with their statutory
obligations under the CWA.

Northwest Ecosystem Alliance v. U.S.

Fish and Wildlife 475 F.3d 1136, 1140 (9 th Cir. 2007).
3. National Environmental Policy Act allegations:

Plaintiffs assert that the Corps failed to take the requisite
"hard look" through an Environmental Impact Study (EIS), at the

ORDER - p.9

"new type of activity with completely unknown effects on the
environment" that this mining enterprise entails.

[#97-pp.12-29].

Where the record reveals that an agency based a Finding Of No
Significant Impact (FONSI) upon 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, 1120-21 (9 th Cir 2000).

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).
In determining whether a project "significantly" impacts the
environment, NEPA regulations require the agency to consider
context and

~ntensity2.

40 C.F.R. §150B.27.

NEPA regulations

include, the following factors when evaluating intensity: the
degree to

wh~ch

the effects on the quality of the human environment

are likely to be highly controversial; the degree to which the

Context refers to the area of "the affected region, the
affected interests and the locality."
40 C.F.R. § 150B.27(a).
Intensity "refers to the severity of the impact." 40 C.F.R. §
1508.27 (b) .
2

ORDER - p.10

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).

Federal agencies are required to prepare an Ers for all "major
Federal actions significantly affecting the quality of the human
environment."

42 U.S.C. §4332(2) (C).

Ers is required any time

~a

This does not mean that an

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 Serv., 428 F.3d 1233, 1240
(9th Cir. 2005).

"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
or highly uncertain."

highly controversial

Na ti ve Ecosystems Council v. U.S. Forest

Serv., 428 F.3d 1233, 1240 (9 th Cir. 2005).
Plaintiffs argue that because of the uncertainty of the
groundwater flow and the possibility of Cr6 formation increasing as
a result of the mining, the Corps erred in relying on monitoring
rather than preparing an ErS, to address these uncertainties:
well-documented uncertainty in this case or equate with a
reasoned application of the uncertainty criterion. The
approach of implementing a project without preparing an EIS
~the

ORDER - p.ll

and then studying the effects through monitoring has the
process exactly backwards."
[#97-p.20].
Defendants counter that the record shows that the
environmental concerns of which plaintiff complains occurs only if
Cr6 is formed and if it is not attenuated by site conditions and if
there is fracturing in the basal clay so that the Cr6 is
transported to the groundwater and if transported, is in quantities
that reach 110 parts per billion.

[#101-pp.11-12].

This scenario

defendants assert, is very unlikely given the record which
contains: (1) detailed studies of the hydrogeology of all four mine
sites' underlying bedrock foundation based on more than 600 borings
including a detailed analysis of the surface topography of the
basal clay layer; (2) information that the formation of Cr6 (while
possible)to unsafe levels, is unlikely because both manganese and
chromite are being removed; (3) only inert tailings are returned to
the site for fill where conditions (organic carbon, certain iron
and manganese species) will naturally attenuate any chromite to the
trivalent form;

(4) evidence that any Cr6 that might be formed and

transported to groundwater would be well below the 110 parts per
billion level drinking water regulation allows given that the
highest amount of Cr6 confirmed in tests was only 7.8 parts per

ORDER - p.12

billion; and (5) Cr6 formation will be monitored through the DEQ
and DOGAMI compliant plan the Corps set up.

[#100; #101].

I find the administrative record reveals that:

(1) the Corps

considered the light and noise impact on human habitation

[~

AR-CE00194]; (2) any decreased access to the wetlands

.§......9:.....,

proposed to be filled is addressed by the agency limiting the
mining to 10 acres at a time, requiring ORC to restore the site
including creation of wetlands in mitigation of any lost and the
public currently being excluded from the wetlands by perimeter
fencing and signage surrounding the private commercial timber land
[Id.];

(3) Dr. Bain's report on the possibility of Cr6 formation

was thorough:y considered along with other evidence that the
existing levels of Cr6 are unlikely to increase [AR-CE00188-198];
(4) the potential effects of ground disturbing activities, truck
traffic and dewatering activities that would discharge sediment and
possibly affect plaintiffs' well water quality were recognized and
addressed by the agencies [Id.]; 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.1].
Where the record reveals that an agency based a FONSI upon
relevant and sUbstantial data, the fact that there is evidence
supporting a different scientific opinion in the record does not

ORDER - p.13

render the agency decision arbitrary and capricious.
Action Network v.

u.s.

1120-21 (9 th Cir 2000).

Wetlands

Army Corps of Engineers, 222 F.3d 1105,

Additionally, 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.

Fish and Wildlife, 475 F.3d 1136, 1140(9th Cir. 2007).

may not substitute its judgment for that of the agency.

u.s.

The court
rd.

Based on the administrative record in this matter, I find the
Corps' decision not to analyze the cumulative effects of potential
future sites as detailed in its EA, is reasonable.

The Corps'

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.

NMFS and the Corps have therefore complied with their

statutory obligations under NEPA.
3. Endangered Species Act (ESA) allegations:

Federal agencies must insure that agency actions are not
likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or

ORDER - p.14

adverse modification of critical habitat of such species.

Defenders of Wildlife v. EPA, 420 F.3d 950, 950-51 (quoting 16
U.S.C. §1536(a)(2)).

The parties agree that the OC Coho is listed

as a threatened species.
Plaintiffs argue that NMFS's decision violated the ESA because
the decision: (1) failed to consider the impact of mining and
dewatering on stream flow and ran counter to the evidence about the
formation and attenuation of Cr6; (2) failed to establish an
environmental baseline against which to consider future impacts of
the mining and (3) relied on best management practices that were
not tailored to the specific conditions at the project site. [#86p. 35] .
Defendant NMFS counters that there is no evidence that the
amount of water involved is sufficient to affect flows in the
Three-mile and Five-mile creeks and the record shows the amount of
dewatering is insignificant when compared to the total amount of
water supplying those creeks.

[#10l-p.20].

Intervenor-defendant

adds that plaintiffs' contention is unsupported by the record in
which nthe Biological Assessment expressly addresses groundwater
and makes clear that the amount of groundwater that is collected

ORDER - p.lS

and reinfiltrated will be small, due in large measure to the small
size of the mine pit. H

[#lOO-pp.15-l6 and CE016l2].

The administrative record supports defendants' assertions that
the Biological Assessment (BA) considered these issues and
determined that

~the

amount of groundwater pumped from one location

and infiltrated to another will be a very small fraction of the
overall water budget for the watersheds. H

[BA, pp. 2-11, CE016l2].

Further, plaintiffs' concerns that water removed from the North
Seven Devils site and reapplied at the West Bohemia site will
transfer water from Three-mile to Five-mile creek are not supported
by the administrative record showing that just as -the North Seven
Devils site drains into Three-mile Creek so does a large, closer
portion of the West Bohemia site. [NMFS AR AOOI - p.8].
Plaintiffs assert that the NMFS decision conflicts with the
best available science because

~defendants

are wholly unable to

reconcile this best (and only) available scientific evidence [on
the rate of Cr6 formation] with their supposed conclusion that
hexavalent chromium is unlikely to form at the site. H

[#86-p.4l].

However, I find the NMFS determination that the mining projects
will not result in Cr6 formation that will adversely affect OC
Coho, is amply supported by the administrative record of site

ORDER - p.16

specific information which documents that existing levels of Cr6
are low and site conditions support natural attenuation of Cr6
formation.
Similarly plaintiffs' allegations that NMFS did not use site
specific best management practices in its review of ORC's
construction of three temporary stream crossings, are unsupported
by the record.

The NMFS finding that installing'the culverts

during periods of no active

~low

(not completely dry conditions),

would adequately protect fish habitat is based on site specific
information in the record.

See~,

AR Docs ell7, e134, e146,

C148, C152, C157, CI60-62, CI67-70, C173-78 and CISO.
Finally, despite noting that this is an informal consultation
case, plaintiffs assert that NMFS was required to establish an
environmental baseline to use in assessing any changes expected
from future activities.

This assertion is contrary to the plain

language of the regulatory requirements regarding informal
consultation.

50 C.F.R. §402.13.

It is also contrary to the

record demonstrating NMFS' consideration of the baseline
concentrations of Cr6, the impact of past mining and timber
harvesting activities in the watershed, and the current site
habitat conditions observed by site visits by NMFS staff.

ORDER - p.17

This court cannot substitute its judgment for that of the
agency.

Citizens to Preserve Overton Park Inc., v. Volpe, 401 u.s.

402, 416 (1971).

The court's task is simply to ensure the agency

considered the relevant factors and articulated a rational
connection between the facts found and the choices made.
Gas, 462

u.s

Baltimore

at 105.

Based on the foregoing analysis, I find the defendant agencies
actions were not arbitrary, capricious, an abuse of discretion,
contrary to the law or unsupported by substantial evidence in the
record as a whole.

Plaintiff's Motion for Summary Judgment is

denied and Intervenor-defendant and federal defendants' Cross
Motions for Summary Judgment are granted.
Conclusion
For the foregoing reasons, plaintiff's Motion for Summary
Judgment [#85] is DENIED.

Intervenor-defendant and federal

defendants' Motions for Summary Judgment [#91; #94] are GRANTED.
IT IS SO ORDERED.
DATED this

ORDER - p.1S

day of September, 2011.