John Jones, III v. National Marine Fisheries Serv , 741 F.3d 989 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN B. JONES, III; JULIE JONES; No. 11-35954
LARRY WHITE; BANDON
WOODLANDS COMMUNITY D.C. No.
ASSOCIATION; OREGON COAST 6:10-cv-06427-
ALLIANCE, HO
Plaintiffs-Appellants,
v. OPINION
NATIONAL MARINE FISHERIES
SERVICE; WILLIAM W. STELLE, JR.,
in his official capacity as Acting
Regional Administrator; UNITED
STATES ARMY CORPS OF ENGINEERS;
ROBERT L. VAN ANTWERP, JR.,
Chief of Engineers and Commanding
General,
Defendants-Appellees,
OREGON RESOURCES CORPORATION,
Intervenor-Defendant–Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted
November 6, 2013—Portland, Oregon
2 JONES V. NAT’L MARINE FISHERIES
Filed December 20, 2013
Before: Arthur L. Alarcón, Milan D Smith, Jr.,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY*
Environmental Law
The panel affirmed the district court’s summary judgment
in favor of the United States Army Corps of Engineers in an
action under the Clean Water Act and the National
Environmental Policy Act challenging the Corps’ issuance of
a permit as part of a project to mine valuable mineral sands
near Coos Bay, Oregon.
The panel held that the Corps complied with the National
Environmental Policy Act because: the Corps properly
considered the risks of hexavalent chromium generation; the
Corps properly considered that the risk of hexavalent
chromium generation did not warrant a full environmental
impact statement; and the Corps properly declined to consider
cumulative impacts of future chromium mining. The panel
also held that the Corps’ analysis of alternative sites and
project designs did not violate the Clean Water Act.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JONES V. NAT’L MARINE FISHERIES 3
COUNSEL
Courtney Johnson (argued), and Christopher Winter, Crag
Law Center, Portland, Oregon, for Plaintiffs-Appellants.
Maggie B. Smith (argued), Amanda Shafer Berman, Barbara
M.R. Marvin, and Lane N. McFadden, Attorneys,
Environmental & Natural Resources Division, United States
Department of Justice, Washington, D.C., for Federal
Defendants-Appellees.
Per Arnold Ramfjord (argued), Stoel Rives LLP, Portland,
Oregon; Leonard J. Feldman and Jason T. Morgan, Stoel
Rives LLP, Seattle, Washington; and Peter Davis Sax, Office
of the United States Attorney, Tucson, Arizona, for
Intervenor-Defendant–Appellee Oregon Resources
Corporation.
OPINION
M. SMITH, Circuit Judge:
In 2008, Oregon Resources Corporation (ORC) applied
for various state permits to mine valuable mineral sands from
an area near Coos Bay, Oregon. ORC also applied for a
permit from the Army Corps of Engineers (Corps) under
Section 404 of the Clean Water Act (CWA), 33 U.S.C.
§ 1344, because the project required filling in several acres of
wetland. The Corps was required to comply with the
requirements of the National Environmental Policy Act
(NEPA), 42 U.S.C. § 4321 et seq., as part of the permitting
process. The Corps therefore prepared an Environmental
Assessment (EA), and issued a “Finding of No Significant
4 JONES V. NAT’L MARINE FISHERIES
Impact” (FONSI) in lieu of preparing a full Environmental
Impact Statement (EIS), before ultimately issuing the
requested Section 404 permit (ORC Section 404 Permit).
The Bandon Woodlands Community Association and
other plaintiffs (collectively Woodlands) challenge several
aspects of the EA and FONSI. Specifically, Woodlands claim
that (1) the EA was deficient because it did not adequately
examine the risks associated with the potential generation of
toxic hexavalent chromium (Cr+6) as a result of the proposed
mining; (2) the FONSI was arbitrary and capricious because
of “significant uncertainty” surrounding the likelihood and
impact of Cr+6 generation; and (3) the grant of the ORC
Section 404 Permit was arbitrary and capricious because the
Corps did not conduct an adequate “alternatives analysis.”
We find Woodlands’ arguments without merit and affirm the
district court’s grant of summary judgement to the Corps.
FACTUAL BACKGROUND AND PRIOR
PROCEEDINGS
A. ORC’s Mining Project
ORC’s project involves mining naturally-occurring
chromite, garnet, and zircon sands from four sites near Coos
Bay, Oregon. The chromite and zircon sands are marketed to
foundries for use in casting metal parts, while the garnet
sands are sold for use in the water-jet cutting industry. The
ORC Section 404 Permit covers four sites, called the South
Seven Devils, North Seven Devils, West Bohemia, and West
JONES V. NAT’L MARINE FISHERIES 5
Section 101 sites. These sites cover approximately 160 acres
and are located on privately-owned timberlands.1
ORC uses standard excavation equipment to remove
topsoil covering the mineral sands. Topsoil is then stockpiled
along the margins of the mining area, while mineral sands are
loaded into trucks and transported to ORC’s refining plant in
Coos Bay. The refining plant uses a gravimetric process to
separate out the marketable sand, which makes up roughly
twenty-five percent of the sand transported from the mining
sites. The remaining seventy-five percent of the sand is
returned to the mine site.
As part of ORC’s reclamation plan, each area is backfilled
with the non-mineral sands returned from the processing
plant, in addition to other material removed in the mining
process. Each excavated area is then graded and replanted
with trees. The reclamation process also involves the creation
of new wetland areas pursuant to a mitigation plan. Mining
has already been in process for several years, and the project
will be completed in roughly three to six years.
B. The Permitting Process
ORC submitted a Section 404 permit application to the
Corps on May 8, 2008. The Corps’ decision to grant a
Section 404 permit is subject to the requirements of both the
NEPA and the Endangered Species Act (ESA), 16 U.S.C.
§ 1531 et seq., the latter of which requires the Corps to
consult with the National Marine Fisheries Service (NMFS).
Additionally, ORC was required to obtain approvals from a
1
Two other sites, Section 33 and Shepard, were withdrawn from the
application by ORC.
6 JONES V. NAT’L MARINE FISHERIES
number of state agencies, including the Oregon Department
of Geology and Minerals Industry (DOGAMI), the Oregon
Department of State Lands, and the Oregon Department of
Environmental Quality (DEQ). DEQ has jurisdiction over
state water quality standards pursuant to Section 401 of the
CWA. The state and federal agencies coordinated the
permitting process in this case and provided technical support
to one another.
Shortly after ORC filed its permit application, the Corps
contacted NMFS to begin informal consultation under the
CWA. Over the next two years, the Corps and NMFS
gathered information about the project and its potential
impacts. The Corps and NMFS conducted site visits, held
public and private meetings, evaluated information provided
by stakeholders, including Woodlands, and coordinated with
state agencies.
Eventually, the Corps issued an EA discussing the
potential environmental impacts of ORC’s mining project.
The EA concluded that the project would not have a
significant effect on the human environment, and,
accordingly, the Corps issued a FONSI. Because it issued a
FONSI, the Corps did not prepare an EIS. The NMFS issued
a letter of concurrence with the EA, and ORC received all
necessary state permits, including a Section 401 water quality
certification from the DEQ.
1. Hexavalent Chromium Generation
In its NEPA analysis, the Corps considered the potential
for increased Cr+6 generation from the proposed mining.
Woodlands’ public comments on the permit application noted
that the chromite sands ORC planned to mine contained
JONES V. NAT’L MARINE FISHERIES 7
benign trivalent chromium (Cr+3), which can oxidize into
toxic Cr+6 in the presence of manganese oxide, which is also
present at the sites. Woodlands was concerned that ORC’s
mining project could lead to increased Cr+6 generation, which
could, in turn, contaminate ground and surface water.
Woodlands submitted expert reports that recommended,
among other things, ongoing monitoring during the mining
process to ensure that the amount of Cr+6 did not increase.
ORC responded to Woodlands’ comments and expert
reports in a Biological Assessment (BA). The BA suggested
that the risk of Cr+6 generation was minimal, because
• The geology of the mining area did not indicate
that chromite sands would react with manganese
oxide to form Cr+6. Groundwater sampling
demonstrated that the existing levels of Cr+6 in
groundwater at the mining sites was significantly
below safe drinking limits.
• Eh and pH levels at the sites were not conducive
to the oxidization of either chromium or
manganese, which is necessary for the formation
of Cr+6.
• The mining sites contained naturally occurring
substances that would facilitate conversion of
Cr+6 back into Cr+3 (Cr+6 attenuation).
• Mining would remove the chromite sands
necessary to form Cr+6 and would facilitate
reactions with other substances likely to result in
Cr+6 attenuation.
8 JONES V. NAT’L MARINE FISHERIES
• ORC’s planned monitoring regime could detect
any increased concentration of Cr+6, allowing
ORC and the DEQ to respond.
In addition, the Corps and NMFS requested independent
technical support from William Mason, a Registered
Geologist with the DEQ. Mason examined the information
provided by ORC and Woodlands, along with academic
literature regarding Cr+6 generation, and summarized his
findings in a memorandum (Mason Memorandum). The
Mason Memorandum noted that the conditions at the mining
sites favored Cr+6 attenuation rather than generation. The
Mason Memorandum also noted that conditions at ORC’s
proposed mining sites were similar to those present in some
academic studies that found significant Cr+6 attenuation, but
that the findings of such studies are not necessarily applicable
to sites not considered by those studies due to the complex
nature of subsurface geochemical reactions. The Mason
Memorandum concluded that “it is possible that [Cr+6] could
be generated in a post-mining environment, but it appears
unlikely given the aquifer’s apparent potential for [Cr+6
attenuation].” Finally, the Mason Memorandum offered a
number of “recommendations” related to ongoing monitoring
after mining commenced.
As a result of these recommendations, DOGAMI notified
the Corps that it would require ongoing Cr+6 monitoring as
part of ORC’s permit from that agency, and explained that it
would require suspension of mining and/or other measures if
the monitoring showed an increase in Cr+6 levels. The ORC
Section 404 Permit issued by the Corps required ORC to
comply with all conditions of the DEQ and DOGAMI
permits. Based on this information from the DEQ and
DOGAMI, the Corps concluded that the risks associated with
JONES V. NAT’L MARINE FISHERIES 9
the generation of Cr+6 would not “have a significant impact
on the quality of the human environment.”
2. Cumulative Impact Analysis
In addition to examining the potential for Cr+6 generation,
the Corps considered the possibility that ORC would engage
in future mining beyond the sites included in the Section 404
permit application, noting that ORC had suggested that it
intended to mine for mineral sands along the Oregon coast
“from Cape Arago to Port Orford.” The EA also noted that
ORC had removed from the Section 404 permit application
two sites that had already been surveyed, one of which,
Section 33, had already been granted a mining permit by
DOGAMI.
The record also reflects, however, significant challenges
to developing any of the mining sites that had been identified
by ORC. Specifically:
• The Section 33 site would require the construction
of a costly one-mile-long access road across
private property that itself would have involved
potentially insurmountable permitting and leasing
challenges.
• The Shepard site also would have required
construction of an additional haul road or the
reversal of a prior Coos County land use decision
barring the use of an existing road.
• The Westbrook site was not owned by ORC and
was encumbered by a mineral reservation in favor
of another company.
10 JONES V. NAT’L MARINE FISHERIES
Accordingly, the Corps declined to examine the
cumulative impact of mineral sands mining along the Oregon
Coast, noting that it would consider the impacts of future
projects if permits were sought for them.
3. Analysis of Practicable Alternatives
The Corps also considered whether there were practical
alternatives to the ORC’s proposed sites that would have less
impact on the aquatic environment. ORC initially provided
an alternatives analysis as part of its permit application. The
Corps requested additional information regarding the
alternative sites or project designs that ORC provided. ORC
also provided information on its overall project purpose and
the absence of alternative sites outside Oregon. After a
meeting with the Corps, ORC submitted an additional
detailed analysis regarding the unique nature of the chromite
sands at the proposed mining sites, as well as the reasons
ORC had included those sites in its proposal. The Corps
pressed ORC regarding its decision not to use the Shepard,
Section 33, or Westbrook sites, and ORC responded with a
number of reasons for the decision, including the existence of
significant logistical hurdles at each of those sites.
Ultimately, the Corps considered a “no build alternative
(do not mine), a subsurface alternative that would conduct
mining beneath the wetlands . . . , only mine areas that do not
contain wetlands (mine uplands) and to mine all proposed
areas and provide compensatory mitigation for wetland
impacts.” Additionally, the Corps considered “Smaller
Project Designs,” consisting of some combination of sites
other than the North Seven Devils location. The Corps
rejected these “smaller designs” because “[a] project of a
smaller scale than the four proposed mine sites, although it
JONES V. NAT’L MARINE FISHERIES 11
may be practicable, will not provide the required quantity of
chromite necessary to achieve the overall purpose.” The
Corps also considered and rejected “Larger Project Designs,”
“Different Project Designs,” “Other Sites Available to the
Applicant,” and “Other Sites Not Available to the Applicant.”
C. Prior Proceedings
Woodlands filed this action in the Western District of
Washington on October 12, 2010. The case was transferred
to the District of Oregon on December 12, 2010. Woodlands
sought a temporary restraining order and a preliminary
injunction, both of which the district court denied.
Woodlands then unsuccessfully sought an emergency
injunction pending its appeal of the district court’s denial of
the preliminary injunction. After our rejection of the
emergency injunction, Woodlands withdrew its appeal of the
preliminary injunction and the parties filed joint motions for
summary judgment. The district court granted summary
judgment to the Corps, finding that it had complied with all
of its statutory obligations. Woodlands timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 and review
the district court’s grant of summary judgment de novo.
N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th
Cir. 2006).
We review the Corps’ decisions under the APA’s
arbitrary and capricious standard. 5 U.S.C. § 706(2)(A).
This standard is deferential, and we cannot vacate those
decisions unless the agency “has relied on factors which
Congress had not intended it to consider, entirely failed to
12 JONES V. NAT’L MARINE FISHERIES
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it would not be
ascribed to a difference in view or the product of agency
expertise.” Nat’l Ass’n of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 658 (2007) (internal quotations
omitted).
DISCUSSION
I. Regulatory Framework
Woodlands challenges the Corps’ decision to issue the
ORC Section 404 Permit under two environmental statutes,
the CWA and NEPA.
A. Clean Water Act
The CWA prohibits unauthorized discharge of any
pollutant into waters of the United States. Section 404 of the
CWA authorizes the Corps to issue permits for discharge of
dredged or fill material into “navigable waters.” 33 U.S.C.
§ 1344(a). The “Section 404(b)(1) Guidelines,” developed by
the EPA, govern the Section 404 permit process in
conjunction with regulations issued by the Corps. 40 C.F.R.
§ 230 et seq. (the Guidelines); 33 C.F.R. § 323 et seq. (Corps’
regulations).
Generally, the Corps is prohibited from permitting
discharges under Section 404 where there “is a practicable
alternative to the proposed discharge which would have less
adverse impact on the aquatic ecosystem, so long as the
alternative does not have other significant adverse
environmental consequences.” 40 C.F.R. § 230.10(a).
JONES V. NAT’L MARINE FISHERIES 13
Practicable alternatives must be “available and capable of
being done after taking into consideration cost, existing
technology, and logistics in light of overall project purpose.”
40 C.F.R. § 230.10(a)(2).
The CWA provides for a shared enforcement regime
between federal and state agencies. PUD No. 1 of Jefferson
Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704 (1994)
(“[T]he Clean Water Act establishes distinct roles for the
Federal and State Governments.”). States with approved
programs take over responsibility for enforcing water quality
standards within their borders. 33 U.S.C. § 1319(a). “In
addition to these primary enforcement responsibilities, § 401
of the Act requires States to provide a water quality
certification before a federal license or permit can be issued
for activities that may result in any discharge into intrastate
navigable waters.” PUD No. 1, 511 U.S. at 707 (citing
33 U.S.C. § 1341). A state’s certification of compliance
under Section 401 is “ conclusive with respect to water
quality considerations,” unless the EPA advises otherwise.
33 C.F.R. § 320.4; Bering Strait Citizens for Responsible Res.
Develop. v. U.S. Army Corps of Eng’rs, 524 F.3d 938, 949–50
(9th Cir. 2008). Oregon has had an approved state program
since 1973. 39 Fed. Reg. 26,061 (July 16, 1974); Boise
Cascade Corp. v. EPA, 942 F.2d 1427, 1430 (9th Cir. 1991).
B. National Environmental Policy Act
NEPA “provides the necessary process to ensure that
federal agencies take a hard look at the environmental
consequences of their actions.” Neighbors of Cuddy
Mountain v. Alexander, 303 F.3d 1059, 1070 (9th Cir. 2002)
(citations omitted). NEPA requires that agencies prepare an
EIS for any proposed agency action “significantly affecting
14 JONES V. NAT’L MARINE FISHERIES
the quality of the human environment.” 42 U.S.C. § 4332(C).
The Council on Environmental Quality (CEQ) has
promulgated regulations to guide federal agencies in
determining what actions are subject to that statutory
requirement. See 40 C.F.R. § 1500.3. The CEQ regulations
allow an agency to prepare a more limited document, an
environmental assessment, or EA. The EA is a “concise
public document” that “[b]riefly provide[s] sufficient
evidence and analysis for determining whether to prepare an
[EIS].” 40 C.F.R. § 1508.9(a). If an EA determines that
agency actions will not have a significant effect on the human
environment, the agency must issue a FONSI. See 40 C.F.R.
§§ 1501.4(e), 1508.13. Where the effects on the human
environment are “highly uncertain or involve unique or
unknown risks,” however, the agency must prepare an EIS.
40 C.F.R. § 1508.27(b)(5).
If the Corps failed to comply with NEPA, Woodlands
may be entitled to an injunction blocking any future mining
pending satisfactory NEPA review, even though the project
is underway. See West v. Sec’y of Dep’t of Transp., 206 F.3d
920, 925 (9th Cir. 2000) (“[A]lthough Stage 1 of the
interchange project is complete, and the new interchange is
carrying traffic . . . , upon finding that defendants failed to
comply with NEPA, our remedial powers would include
remanding for additional environmental review and,
conceivably, ordering the interchange closed or taken
down.”); Blue Mountains Biodiversity Project v. Blackwood,
161 F.3d 1208, 1216 (9th Cir. 1998) (“The injunction issued
by this Court on November 5, 1998 [enjoining future logging,
road building, or other ground disturbing activities in the
permit area] . . . shall remain in full force and effect until the
Forest Service satisfies its NEPA obligations.”).
JONES V. NAT’L MARINE FISHERIES 15
II. The Corps Complied With NEPA
Woodlands argues that the Corps failed to comply with
NEPA because (1) contrary to NEPA regulations, the EA
“contains only narratives of expert opinions,” Klamath-
Siskiyou Wildlands v. BLM, 387 F.3d 989, 996 (9th Cir. 2004)
(citations omitted)); (2) the uncertainty surrounding Cr+6
generation rendered the FONSI arbitrary and capricious; and
(3) the Corps’ failure to consider the environmental impacts
of widespread mineral sands mining was arbitrary and
capricious. We reject Woodlands’ arguments.
A. The Corps Properly Considered the Risks of
Hexavalent Chromium Generation
“NEPA documents are inadequate if they contain only
narratives of expert opinions.” Klamath-Siskiyou, 387 F.3d
at 996. “[A]llowing the [Agencies] to rely on expert opinion
without hard data either vitiates a plaintiff’s ability to
challenge an agency action or results in the courts second
guessing an agency’s scientific conclusions. As both of these
results are unacceptable, we conclude that NEPA requires
that the public receive the underlying environmental data
from which [an Agency] expert derived her opinion.” Idaho
Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th Cir.
1998). In both Klamath and Sporting Congress, the EAs
“fail[ed] to provide the public with a basis for evaluating the
impact of the [agency action]” because they did not include
data that would permit the public to evaluate the agency
decisions. Idaho Sporting Cong., 137 F.3d at 1150.
Woodlands contends that the EA is deficient for the same
reasons.
16 JONES V. NAT’L MARINE FISHERIES
Woodlands’ argument, however, ignores that an agency
may incorporate data underlying an EA by reference. See
City of Sausalito v. O’Neill, 386 F.3d 1186, 1214 (9th Cir.
2004) (quoting 40 C.F.R. § 1502.21). Here, the Corps did
just that. The EA cited to publically-available data provided
by ORC and discussed in the Mason Memorandum. The
Mason Memorandum, a thorough study of the issues
surrounding Cr+6 generation, includes data from numerous
test wells drilled at the mining sites, as well as a review of
academic literature related to Cr+6 generation and attenuation.
That is all NEPA requires, and the EA was thus not deficient
as were those at issue in Klamath or Sporting Congress. See
Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army
Corps of Eng’rs, 524 F.3d 938, 956 (9th Cir. 2008) (“BSC
argues that the Corps did not adequately consider the
environmental impacts of the Rock Creek Mine Project in the
EA . . . . This is incorrect . . . . The Environmental
Information Document, incorporated by reference in the EA,
also includes specific data on the air quality issues at the site,
and concludes that there are none that are significant.”).
B. The Corps Properly Concluded that the Risk of
Hexavalent Chromium Generation did not Warrant a
Full Environmental Impact Statement.
Woodlands next argues that significant uncertainty as to
the likelihood and effect of Cr+6 generation renders the
Corps’ FONSI and subsequent failure to prepare an EIS
arbitrary and capricious. Although uncertainty is inherent in
any environmental decision, an EIS is not required “anytime
there is some uncertainty, but only [where] the effects of the
project are highly uncertain.” Ctr. For Biological Diversity
v. Kempthorne, 588 F.3d 701, 712 (9th Cir. 2009) (internal
quotations omitted).
JONES V. NAT’L MARINE FISHERIES 17
Here, three separate agencies examined ORC’s project
and concluded that the risk of Cr+6 generation was minimal
for two primary reasons: (1) There was no causal mechanism
that would lead to increased Cr+6; and (2) the chemical
makeup of the site favored Cr+6 attenuation rather than Cr+6
generation. Woodlands, however, argues that the Mason
Memorandum established that a lack of site specific data
rendered any conclusions regarding Cr+6 generation highly
uncertain and that this uncertainty required the Corps to
conduct a full EIS before granting the Section 404 Permit.
See Nat’l Parks and Conservation Ass’n v. Babbitt, 241 F.3d
722, 732 (9th Cir. 2001). We disagree.
The Mason Memorandum, incorporated into the EA,
concluded that:
After carefully reviewing the BWCA and
ORC submittals and a number of journal
articles describing the fate and transport of
chromium species, I feel that it is possible that
hexavalent chromium could be generated in a
post-mining environment, but it appears
unlikely to be significant given the aquifer’s
apparent potential to reduce Cr+6 to Cr+3 (i.e.,
presence of natural reductants such as iron,
manganese, and organic matter). This
conclusion, however, should be confirmed
with easy and cost-effective field studies that
can help quantify the attenuation capacity at a
particular site.
Citing the final sentence of this conclusion, Woodlands
argues that the Mason Memorandum recognized “substantial
uncertainty” surrounding issues of Cr+6 generation and
18 JONES V. NAT’L MARINE FISHERIES
attenuation and called for further studies to reduce that
uncertainty. In context, however, it is clear that the Mason
Memorandum does not support such a reading.
The Mason Memorandum noted that, although data from
the ORC drilling surveys is similar to sites with high
attenuation capacities, “due to the complex geochemical
nature of chromium in the subsurface, experimental field
studies are too site-specific and not transferrable between
sites.” The Memorandum further notes that “although it is
possible to identify and quantify specific Cr+6 attenuation
processes or factors in pure or simple systems (as in lab
studies), [academics] recommend instituting a long-term site-
specific monitoring of aqueous geochemical parameters to
detect sudden changes in the system that could lead to
mobilization of Cr+6.”
The Mason Memorandum also contains a
“Recommendations” section, immediately following the
“Conclusions” section upon which Woodlands relies. There,
Mason listed a number of recommendations, including: (1)
continuing the groundwater monitoring program (including
baseline monitoring) until mining has ceased and reclamation
has been successfully complete; (2) analyzing groundwater
samples for Cr+6 using a more current method; (3) adding
geochemical sampling parameters to the monitoring regime;
(4) adding a contingency to the ORC monitoring plan under
the DOGAMI permit to expand the groundwater monitoring
network and/or add surface water sampling stations if
changes in the system appear to begin favoring the generation
of Cr+6; and (5) add remedial action contingencies to the
permit in the event that the mining appears to be causing
metals to migrate toward surface water in concentrations that
could pose a threat to ecological receptors. These
JONES V. NAT’L MARINE FISHERIES 19
recommendations were incorporated into the DOGAMI
permit.
In context, it is clear that the Mason Memorandum
established that Cr+6 generation is unlikely to occur at the
site. Rather than recommending additional studies in order to
address remaining uncertainty, the Mason Memorandum
made clear that the site specific nature of Cr+6 attenuation
means that the only way to ensure that Cr+6 does not reach
harmful levels is to monitor how Cr+6 behaves once mining
begins. The DEQ conclusion thus does not, as Woodlands
claims, suggest that additional studies prior to mining was
needed to resolve any remaining uncertainty with respect to
Cr+6 generation. Rather, the Mason Memorandum concluded
that the risk of Cr+6 generation is minimal, and
recommended monitoring to account for any site specific
variation that might become apparent once mining began.
Woodlands also argues that it was inappropriate for the
Corps to “rely on monitoring [in] dismiss[ing] potential
impacts.” The Corps cannot rely on monitoring and
mitigation alone in reaching a FONSI. See N. Plains Res.
Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1084–85
(9th Cir. 2011). This argument, however, misrepresents the
role of monitoring in the Corps’ decision here.
In Northern Plains, the Bureau of Land Management
(BLM) informed the Surface Transportation Board (Board)
that there was insufficient data regarding the effects of the
proposed project on sage grouse. Id. at 1084. In response, the
Board proposed to conduct sage grouse surveys during the
project’s operation, as well as proposing “pre-construction
surveys” to determine the extent of sage grouse habitat in the
project area. Id. We concluded that the Board’s actions were
20 JONES V. NAT’L MARINE FISHERIES
arbitrary and capricious because (1) without data on sage
grouse populations the agency could not carefully consider
whether the project would have a significant environmental
impact and (2) the lack of data available to the public during
the EIS process deprived citizens of the opportunity to
participate in the decision-making process. Id. at 1085.
Here, by contrast, the Corps, relying in part on the Mason
Memorandum, concluded that Cr+6 generation due to ORC’s
mining project was unlikely given the site conditions. The
Mason Memorandum also noted that, because of the site
specific nature of Cr+6 attenuation, academic literature
recommends long term monitoring of a site in order to ensure
that conditions do not change. Monitoring thus does not
serve to dismiss the risk of Cr+6 generation, or to obtain data
necessary to make a well informed environmental impact
analysis, but merely to confirm that Cr+6 generation is
behaving as the site conditions suggest that it will. This data
is thus not required for the Corps to make an informed
decision regarding significant environmental impacts as was
the case in Northern Plains, nor is it relevant to public
participation in the decision-making process. Id.Further, the Section 401 Certification issued by DEQ
contains mitigation measures, including the suspension of
mining activities. These measures will serve to identify any
unexpected increased Cr+6 generation and to halt mining (the
potential cause of such increased Cr+6) until the problem is
addressed. The Corps is, to this extent, entitled to rely on
mitigation measures pursuant to state permits. See Friends of
the Payette v. Horseshoe Bend Hydroelec. Co., 988 F.2d 989,
993 (9th Cir. 1993).
JONES V. NAT’L MARINE FISHERIES 21
C. The Corps Properly Declined to Consider Cumulative
Impacts of Future Chromium Mining
NEPA requires an agency to consider the cumulative
impacts of a project. 40 C.F.R. § 1508.27(b)(7). NEPA’s
implementing regulations define “cumulative impacts” as
“the impact on the environment which results from the
incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions.” 40
C.F.R. § 1508.7. An agency need only consider “[t]he
cumulative effects of projects that [the applicant] is already
proposing.” Lands Council v. Powell, 395 F.3d 1019, 1023
(9th Cir. 2005). “For any project that is not yet proposed, and
is more remote in time,” by contrast, “a cumulative effects
analysis would be both speculative and premature.” Id.Woodlands argues that the Corps failed to analyze the
cumulative impacts of ORC’s mining project, pointing to
ORC’s plans to widen the scope of mining in the future. But,
the majority of these plans are speculative and have not been
reduced to specific proposals. Woodlands also claims that the
three alternative sites considered in the EA as possible future
projects require the Corps to perform a cumulative impact
analysis.
In Northern Plains, we determined that the Board’s
decision to consider only five years of cumulative impacts
was arbitrary and capricious. N. Plains, 668 F.3d at 1079.
Our decision was based on the fact that the BLM had
previously prepared an EIS that projected the growth of
mining activity over the next 20 years. Id. at 1078–79. In
light of this study, we found that projects outside of the five
year time frame were “reasonably foreseeable,” and that the
22 JONES V. NAT’L MARINE FISHERIES
Board’s failure to analyze the cumulative effects of these
projects was arbitrary and capricious. Id. at 1079.
Here, by contrast, there is no reliable study or projection
of future mining in this case. ORC’s general statements
regarding a desire for increased mining give no information
as to the scope or location of any future projects or even how
many such projects ORC contemplates pursuing. The general
plans for expanded mining recited by Woodlands thus do not
require a cumulative impacts analysis. See id.; Envtl. Protect.
Info. Ctr. v. Forest Serv. (EPIC), 452 F.3d 1005, 1014 (9th
Cir. 2006).
The three sites excluded from the application, Section 33,
Shepard, and Westbrook, all face significant logistical hurdles
to development. The Section 33 site would have required the
construction of a costly access road across private property
that would have involved potentially insurmountable
permitting and leasing challenges. The Shepard site also
would have required construction of an additional haul road,
or the reversal of a prior Coos County land use decision
barring the use of an existing road. The Westbrook site was
not owned by ORC, and was encumbered by a mineral
reservation in favor of another company that would have
made it economically infeasible to mine. It was thus unclear
whether ORC will pursue mining these sites at all, much less
whether ORC had developed an actual plan or proposal that
was sufficiently well-defined to “permit meaningful
consideration.” EPIC, 451 F.3d at 1014. Under these
circumstances, the Corps was not required to consider the
cumulative impact of speculative widespread mining for
mineral sands on the Oregon coast. Id.
JONES V. NAT’L MARINE FISHERIES 23
III. The Corps’ Alternative Analysis did not Violate
the CWA
The CWA requires the Corps to conduct an analysis of
alternative sites and project designs. Bering Strait, 524 F.3d
at 947. Woodlands alleges several deficiencies with the
alternatives analysis conducted in this case: (1) that the
“Smaller Project Design” considered by the Corps was
actually larger than the proposed project; and (2) that the
Corps improperly considered ORC’s financing requirements
as part of its alternatives analysis.
Woodlands’ contention that the Corps failed to consider
smaller designs is simply incorrect. The EA notes that
mining any of the parcels in isolation would not be
practicable because they each contain insufficient chromium
to meet the project’s needs. Woodlands’ two arguments thus
collapse into the question of whether the Corps erred by
considering the quantity of chromium that ORC needed to
mine in order to meet its financing obligations.
An alternative is practicable if it is “available and capable
of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes.”
40 C.F.R. § 230.10(a)(2). An agency may consider a
project’s economic requirements in order to determine
whether alternative sites are practicable. Sylvester v. U.S.
Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir. 1989);
Nw. Envtl. Defense Ctr. v. Wood, 947 F. Supp. 1371, 1377
(D. Or. 1996), aff’d, 97 F.3d 1460 (9th Cir. 1996); see also
City of Shoreacres v. Waterworth, 420 F.3d 440, 448 (5th Cir.
2005) (noting that a site was not logistically possible because
funds from the bond issued to fund the project could not be
expended in the proposed alternative site).
24 JONES V. NAT’L MARINE FISHERIES
In order to conduct a practicable alternatives test, the
Corps must first determine the “overall project purposes.” 40
C.F.R. § 230.10(a)(2). Although the Corps may not
manipulate the project purpose so as to exclude alternative
sites, “the Corps has a duty to take into account the objectives
of the applicant’s project.” Sylvester, 882 F.2d at 409.
The project purpose here is to “obtain specific minerals
. . . to support foundry and water-jet cutting industry needs in
national and world markets.” In order to obtain the minerals,
ORC must not only mine the mineral-rich sands, but also
extract the chromite. Accordingly, in order for the project to
meet its purpose, ORC must extract sufficient resources to
support that type of mining activity. Logically, no one would
seek financing to build a refining facility if it were not
possible to extract a sufficient quantity of minerals to make
the project profitable. See Waterworth, 420 F.3d at 448.
Accordingly, the Corps did not err in rejecting the individual
sites because such sites would not provide a sufficient
quantity of chromite to meet the project’s purpose.
AFFIRMED.