Bering Strait Citizens for Responsible Resource Development, and two private citizens (collectively Plaintiffs) petitioned the Ninth Circuit Court of Appeals for relief after the District Court for the District of Alaska dismissed Plaintiffs' motion for a temporary restraining order and preliminary injunction and dismissed Plaintiffs' suit on summary judgment.[1]Plaintiffs alleged that the United States Army Corps of Engineers (Corps) violated the Clean Water Act (CWA)[2]and the National Environmental Policy Act (NEPA)[3]by granting a permit under section 404 of the CWA to Alaska Gold Company (AGC) for the Rock Creek Mine Project (Project). The Ninth Circuit concluded the Corps complied with the CWA and NEPA in issuing the permit, and affirmed the judgment of the District Court.

The Project is an open pit gold mining operation consisting of two sites near Nome, Alaska: the "Rock Creek Mine/Mill" and the "Big Hurrah Mine." Both sites were previously mined in the late nineteenth century during the Alaska gold rush, and had significant pre-existing environmental damage, including rock stockpiles on sixty-two acres of wetlands and tailings deposits in the Big Hurrah Creek that have diverted its natural course. The Project would destroy an additional 351.5 acres of wetlands; however, the permit for the Project called for mitigation measures, including repair of previous environmental damage, that would reclaim or create 176 acres of wetlands. Thus, the Project would cause a net loss of 170.5 acres of wetland. Further, AGC asserted that the project would help stimulate the struggling Nome economy.

Shortly after AGC applied for the section 404 permit, the Corps complied with notice procedures and received comments from a variety of interested parties. The United States Environmental Protection Agency (EPA) concluded it lacked sufficient information to determine whether the Project complied with the CWA. EPA noted the Project did not appear to be the least damaging alternative, information on mitigation measures and closure was incomplete, and the Corps failed to consider the cumulative effects of mining activities in the area and naturally-occurring wetlands damage. EPA sought to include seven conditions in the permit. United States Fish and Wildlife Service (FWS) also proposed certain permit conditions, including that AGC work with the Corps, EPA, FWS, and Alaska to identify additional mitigation measures for migratory birds. The Corps eventually permitted the Project, and Plaintiffs brought suit. The Corps then withdrew the permit to further review the Permit Evaluation and Decision Document (PEDD) (the document on which permitting decisions are based) and moved for voluntary remand.

The Corps then issued a revised PEDD which incorporated, among other things, the seven conditions that EPA proposed, FWS's recommendations, and NEPA documents (including an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI)). However, the Corps dismissed EPA's concerns about the alternatives, cumulative impacts, and natural events analyses. The Corps issued a new permit for the Project, and Plaintiffs filed suit challenging the project and seeking a temporary restraining order (TRO) and preliminary injunction (PI). After denying the TRO and PI, the district court concluded the Corps conducted a proper analysis under the CWA and NEPA, and that injunctive relief was improper because most of the wetlands were filled between the issuance of the new permit and Plaintiffs' suit. Later, the district court issued an amended opinion indicating that it was converting the motion for a TRO and PI into a motion for summary judgment and ruling against Plaintiffs.

On appeal, the Ninth Circuit reviewed the district court's grant of summary judgment de novo and reviewed the Corps's factual determinations under the arbitrary and capricious standard. The contested permit, issued under section 404 of the CWA, is governed simultaneously by Corps regulations, EPA regulations, and NEPA.

The Ninth Circuit first considered whether the Corps adequately considered practicable alternatives to the Project, because the CWA regulations prohibit discharges where there is a practicable alternative with less adverse impacts,[4]and presume that practicable alternatives exist where the project is not "water dependent."[5]The Ninth Circuit noted the Corps considered twenty-four different alternatives and determined all were impracticable for reasons acceptable under the CWA, including steep terrain, destruction of higher value wetlands, an increased Project footprint, and prohibitively high costs. The court determined that, although "an argument can be made that one of the [alternative] sites was suitable,"[6]the Corps properly considered alternatives and made a reasonable selection.

Plaintiffs next argued that the Corps failed to properly weigh the public interest as required by the CWA regulations.[7]Noting the extensive discussion of these factors in the PEDD and the Corps's consideration of the significant economic benefit to Nome, the Ninth Circuit concluded that, although Plaintiffs disagreed with the Corps's determination, it was not arbitrary or capricious. In a related claim, Plaintiffs argued the Corps did not properly consider whether the Project would contribute to significant degradation of the affected wetlands. Although Plaintiffs briefed the merits of the Corps's scientific and factual conclusions on the ecological effects of the project, the court limited its analysis to whether the decision was based on consideration of relevant factors and whether there was a clear error in judgment. Because the PEDD considered a variety of impacts and the Corps concluded the wetlands were not unique nor would the Project affect the greater ecosystem, the Ninth Circuit also found this decision to have been rationally considered, and not arbitrary and capricious. Plaintiffs further alleged the Corps failed to adequately evaluate the hydrological impacts of the project; however, Alaska's Department of Environmental Conservation conducted this analysis and found compliance with the CWA. Because the Corps's regulations accept such a certification as conclusive on the issue, the court rejected this argument as well.

Plaintiffs next argued the Corps did not require "appropriate and practicable" mitigation measures, as required by the CWA.[8]Plaintiffs first pointed to the Corps's refusal to implement all the measures recommended by EPA, but the court noted that the Corps implemented all of EPA's concrete measures and rejected with explanation only the more general standards. Plaintiffs also argued the mitigation measures were insufficient because they were not fully developed; specifically, because the Corps, FWS, and AGC would later meet to identify additional mitigation measures. The Ninth Circuit previously held prospective mitigation measures were acceptable under NEPA where the plans were "developed to a reasonable degree."[9]The court, pointing out these indefinite mitigation measures comprised only part of the overall mitigation plan, held that intent to pursue additional mitigation measures after issuing the permit did not conflict with the CWA requirements unless the fully developed mitigation measures are inadequate.

Turning to Plaintiffs' NEPA claims, the court first considered whether notice and comment was deficient because the Corps did not circulate the draft EA prior to completion of the final EA. Noting there is no explicit requirement in NEPA, NEPA regulations, or prior circuit case law that a draft EA be circulated, the Ninth Circuit held that circulation of a draft EA is not required in every case. This conclusion was consistent with holdings by several other circuits, which have uniformly not insisted on circulation of a draft EA. The court then considered what level of public disclosure is required under NEPA prior to issuance of a final EA. Citing favorably to Sierra Nevada Forest Protection Campaign v. Weingardt,[10]the Ninth Circuit adopted the rule that "[a]n agency, when preparing an EA, must provide the public with sufficient environmental information, considered in the totality of the circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process."[11]Noting the extensive dissemination of information concerning the Project to the public and the Corps's consideration of many public comments, the Ninth Circuit determined the notice and comment in this case was reasonable and adequate.

Plaintiffs also attacked the content of the EA, asserting inadequacies in its discussion of cumulative impacts, analysis of alternatives, reliance on mitigation measures not yet fully developed, and analysis of environmental impacts. First, the court noted the EA "must provide a useful analysis of the cumulative impacts of past, present and future projects[,]"[12]and general statements about possible effects are insufficient. The court held the EA here did succinctly discuss cumulative impacts and, because Plaintiffs did not identify any past, present, or future project that should have been considered in the EA, the court determined the cumulative impacts analysis was sufficient.

Next, the court considered the EA's discussion of alternatives. Noting that an appropriate range of alternatives-not all alternatives-must be considered, the court pointed to its prior analysis of alternatives under the CWA and found the alternatives satisfied NEPA as well. Likewise, the court dismissed Plaintiffs' arguments concerning incomplete mitigation measures under NEPA on the same grounds discussed under the CWA analysis. Finally, the court addressed Plaintiffs' contention that the Corps failed to adequately consider environmental impacts to air, water, and biological resources. Noting that the EA discusses air quality impacts and impacts on biological resources, and that the Corps can rely on the CWA certification from state agencies, the Ninth Circuit rejected Plaintiffs' contentions.

The Ninth Circuit then addressed Plaintiffs' final argument that the Corps should have prepared an EIS for the Project. The court summarily dismissed the contention that "substantial questions" exist as to the impacts on air quality, water quality, and biological resources. Plaintiff's second contention, that EPA's disagreement with the Corps on mitigation requirements necessitates an EIS, also failed because interagency disagreement does not mandate an EIS. Rather, the court held, the Corps has discretion to rely on its own reasonable opinion. Ultimately, the Ninth Circuit accepted the Corps's analysis that the Rock Creek Mine Project would have no significant detrimental effect on the environment, so no EIS was required.

In sum, the Ninth Circuit determined that the Corps complied with both the CWA and NEPA requirements, and the Corps's decisions regarding the Project were not arbitrary and capricious.