Jones v. Nat'l Marine Fisheries

The Army Corps of Engineers’ Environmental Assessment and finding of no significant impact was neither deficient nor arbitrary or capricious, and therefore the Oregon Resources Corporation did not need to submit an additional environmental impact statement in order to receive a permit to mine mineral sands.

In 2008, the Oregon Resources Corporation (“ORC”) applied for permits to mine mineral sands near Coos Bay, Oregon. Additionally, ORC submitted an application to the Army Corps of Engineers (“Corps”) under Section 404 of the Clean Water Act (“CWA”). After two years of collecting information about the mining project and its potential impacts, the Corps completed an Environmental Assessment (“EA”) and issued a finding of no significant impact (“FONSI”) in lieu of preparing a full Environmental Impact Statement (“EIS”). The Bandon Woodlands Community Association (“Woodlands”) challenged the EA and FONSI regarding the generation of hexavalent chromium and potential water contamination. Woodlands claimed the EA was deficient and that both the FONSI and grant of the ORC Section 404 Permit were arbitrary and capricious. The district court granted summary judgment in favor of the Corps; Woodlands appealed. First, the Ninth Circuit held that the Corps properly considered the risks of hexavalent chromium generation in the EA because it cited to publically-available data and relied on academic literature and an independent study including data from test wells drilled at the mining sites. Second, the Crops properly concluded that the risk of hexavalent chromium generation did not warrant a full EIS because other state agencies and the independent study concluded that the risk of hexavalent chromium generation was minimal. Thus, no further information was necessary for the Corps to make a decision. Third, the Corps properly declined to consider cumulative impacts of future chromium mining because the majority of ORC’s future plans are speculative and have not been reduced to specific proposals. Finally, the Corps’ alternative analysis did not violate the CWA because alternative sites would not provide a sufficient quantity of minerals to meet the project's purpose. AFFIRMED.