Bering Strait Citiz v. Usace , 524 F.3d 938 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERING STRAIT CITIZENS FOR 
RESPONSIBLE RESOURCE
DEVELOPMENT; SUSAN STEINACHER;
JANA VARRATI,
Plaintiffs-Appellants, No. 07-35506
v.
 D.C. No.
CV-07-00057-RRB
UNITED STATES ARMY CORPS OF
ENGINEERS; KEVIN J. WILSON, OPINION
District Engineer, U.S. Army
Corps of Engineers; ALASKA GOLD
COMPANY,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
September 26, 2007—Seattle, Washington
Filed January 3, 2008
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
59
64 BERING STRAIT CITIZENS v. USACE
COUNSEL
Victoria Clark, Brian Litmans, Trustees for Alaska, Anchor-
age, Alaska; Roger Flynn, Jeffrey C. Parsons, Western Min-
ing Action Project, Lyons, Colorado, for plaintiffs-appellants
Bering Strait Citizens for Responsible Resource Develop-
ment, Susan Steinacher and Jana Varrati.
Ronald J. Tenpas, Acting Assistant Attorney General, Ryan
D. Nelson, Deputy Assistant Attorney General, Dean K.
Dunsmore, Luther L. Hajek, Daniel Pinkston, Jennifer L.
Scheller, Lisa E. Jones, Attorneys, United States Department
BERING STRAIT CITIZENS v. USACE 65
of Justice, Environment & Natural Resources Division, Wash-
ington, D.C., for defendant-appellees United States Army
Corps of Engineers and Colonel Kevin J. Wilson.
Michael A. Grisham, Dorsey & Whitney LLP, Anchorage,
Alaska, for defendant-intervenor Alaska Gold Company.
OPINION
GOULD, Circuit Judge:
This appeal concerns a permit issued to Defendant-
Appellee Alaska Gold Company (“AGC”), by Defendant-
Appellee Army Corps of Engineers (“the Corps”) for a major
gold-mining project near Nome, Alaska. The permit was
issued pursuant to Section 404 of the Clean Water Act
(“CWA”), 33 U.S.C. § 1344, which authorizes the Corps to
issue permits for the discharge of dredged or fill material into
the navigable waters of the United States.
The project, known as the “Rock Creek Mine Project,”
would consist of two open-pit gold mines at separate locations
outside of Nome, plus facilities built for recovering and pro-
cessing gold ore. Once the project is commenced, about
15,592,411 cubic yards of fill from the mine will be placed in
wetlands totaling 346.5 acres.
Plaintiffs-Appellants Bering Strait Citizens for Responsible
Resource Development, Susan Steinacher, and Jana Varrati
(collectively, “BSC”), allege that the Corps violated the CWA
and the National Environmental Policy Act (“NEPA”) by
granting a permit for the Rock Creek Mine Project. BSC
appeals the district court’s denial of its motion for a tempo-
rary restraining order and a preliminary injunction, and the
district court’s dismissal of the suit on summary judgment.
We conclude that the Corps complied with the requirements
66 BERING STRAIT CITIZENS v. USACE
of the CWA and NEPA, and affirm the judgment of the dis-
trict court.
I
A
The Rock Creek Mine Project is a project of Defendant-
Appellee AGC. It has a projected life of four to five years and
is expected to process 7,000 tons of gold ore per day when
operable. The complete project consists of two sites. The first,
the “Rock Creek Mine/Mill,” lies six miles north of Nome,
Alaska in the Snake River watershed. When completed, the
Rock Creek Mine/Mill site would consist of a fifty-acre open
pit gold mine, a gold recovery plant, a paste tailings storage
facility, two non-acid generating development rock stockpiles,
a facility for crushing and processing the gold ore, and build-
ings used for storage and maintenance purposes.
The second facility, the “Big Hurrah Mine,” lies 42 miles
east of Nome, Alaska. When completed, the Big Hurrah Mine
would consist of a 22-acre open pit gold mine, ore stockpiles,
and additional buildings for storage and maintenance pur-
poses. Ore from the Big Hurrah Mine would be trucked to the
Rock Creek Mine/Mill site for processing, so the Big Hurrah
Mine would not include processing or tailings storage facili-
ties. Both sites are controlled by AGC, through outright own-
ership or through leases from local Native corporations.
The sites of both the Rock Creek Mine/Mill and the Big
Hurrah Mine were historically mined and contain debris and
tailing piles from earlier mining activities. At the Rock Creek
Mine/Mill site, rock stockpiles from previous mining opera-
tions now occupy 62 acres of wetlands. At the Big Hurrah
Mine, the area that would become the open pit mine at this
time contains tailings from previous gold mining activities,
and Big Hurrah Creek (adjacent to the Big Hurrah Mine) con-
BERING STRAIT CITIZENS v. USACE 67
tains tailings that have diverted the creek from its natural
path.
Both sites figured prominently in Alaska’s early “gold
rush” history, commencing late in the nineteenth century.
Technological advances and current gold prices have rendered
the mining claims economic once more, and impelled the
evaluation of prospective development combined with reha-
bilitation of the sites. The Corps and AGC hope for an eco-
nomic advantage and environmental improvement as a result.
AGC observes that Nome has unemployment rates over twice
the state average and that the region currently offers limited
opportunities for economic development, and the Corps con-
sidered the region’s economic conditions when assessing the
permit.
The construction and operation of the Rock Creek Mine
Project will result in the permanent destruction of 346.5 acres
of existing wetlands. Most of these wetlands are located at the
Rock Creek Mine/Mill site, where two rock stockpiles, the
tailings storage facility, and other facilities would be con-
structed in existing wetlands. Development of the Big Hurrah
Mine would destroy five acres of existing wetlands to widen
and improve the existing road to the Big Hurrah Mine.
The permit issued by the Corps requires measures to miti-
gate environmental damage from this project and earlier min-
ing activities at the sites. At the Rock Creek Mine/Mill, these
measures include the removal of the rock stockpiles from
existing wetlands for placement in newly-constructed storage
facilities, the reclamation of wetlands disturbed by previously
constructed water-management systems, and the conversion
of the mining pit to a pit lake (i.e. the mining pit will be filled
with water). At the Big Hurrah Mine, these measures include
the use of historic waste rock for improvements to the Big
Hurrah access road, the removal of tailings from the Big Hur-
rah Creek flood plain to restore the natural flow of the creek,
and the conversion of the mining pit to a pit lake. The Corps
68 BERING STRAIT CITIZENS v. USACE
calculates that these mitigation measures will result in the rec-
lamation of 106 acres of previously-disturbed wetlands and
the creation of 70 acres of new wetlands. Taking these mitiga-
tion measures into account, the Rock Creek Mining Project
will result in a net loss of 170.5 acres of wetlands.
B
AGC applied for a permit from the Corps for the Rock
Creek Mine Project in May, 2006. The Corps posted a public
notice describing the project on its website on June 1, 2006.
The notice included information about a public meeting to be
held in Nome on June 26, 2006, and the notice was delivered
in electronic or hard-copy format to federal, state, and local
agencies, the community of Native Alaskans residing in or
near Nome, the City of Nome, the neighboring community of
Solomon, adjacent property owners, the Nome Postmaster,
and any member of the community who requested a copy.
In response to the Corps’ request for comment, the Envi-
ronmental Protection Agency (“EPA”) requested a thirty-day
extension of the comment period. The Corps responded by
granting a twenty-day extension. EPA said that it did not have
sufficient information to conclude that the project met the
requirements of the CWA. Specifically, EPA argued that the
project did not appear to be the least damaging practicable
alternative, that information regarding mitigation measures
and the closure of the site provided by AGC was incomplete,
that the Corps had not adequately considered the cumulative
effects of all potential mining activities in the area, and that
the project did not adequately consider naturally-occurring
damage to wetlands in the area. EPA’s response also included
a list of seven conditions that it wanted included in any permit
for the project.
The U.S. Fish and Wildlife Service (“USFWS”) joined
EPA’s request for an extension of the comment period and
gave proposed conditions to be added to the permit. Along
BERING STRAIT CITIZENS v. USACE 69
with a series of highly specific site-design conditions,1
USFWS proposed a permit condition that requires AGC to
“work with the Corps, the [USFWS], the EPA, and the
[Alaska Department of Natural Resources] to identify addi-
tional mitigation opportunities in the project area that will
benefit birds.”
Local agencies, organizations, and individuals also
responded to the request for comment. The City of Nome2
asked for additional study of the project. Business organiza-
tions, including the Nome Chamber of Commerce, supported
the project, while many scientific and environmental organi-
zations opposed the project or requested additional study.3 In
addition to these agencies and organizations, thirty-four com-
panies and forty-five individuals wrote in support of the proj-
ect, while seven individuals opposed it.
In August, 2006, the Corps issued a permit for the Rock
Creek Mine Project. Thereafter, Plaintiff-Appellants BSC
filed suit in the United States District Court for the District of
Alaska challenging the permit. In December 2006, the Corps
withdrew the permit, informing AGC that the Corps needed
additional time to confirm that the Permit Evaluation and
Decision Document (“PEDD”)—the document on which per-
1
For example, condition three concerns the culvert size used in the con-
struction of the mine access road, and condition 6 concerns the use of
“bird diverter devices” on power lines in the project area.
2
The City of Nome, Alaska has a population of about 3,500 people.
3
The Resource Development Counsel and the Alaska Miners Associa-
tion, Inc. both supported the project on account of its expected economic
benefits. The Center for Science and Public Participation expressed con-
cerns about the reclamation plan for the project and made specific recom-
mendations about the reclamation plan. Trustees for Alaska, on behalf of
the Northern Alaska Environmental Center, the Alaska Center for the
Environment, and others, argued that the Corps’ public notice procedures
were inadequate and that the environmental impacts of the project were
both understated and more significant than the economic benefits of the
project.
70 BERING STRAIT CITIZENS v. USACE
mitting decisions are based—was factually complete, accu-
rate, and consistent with applicable law. The Corps then
moved for a voluntary remand, which the district court
granted.
C
In February 2007, the Corps issued a revised PEDD for the
Rock Creek Mine Project. The revised PEDD reviewed the
comments received on the project, the environmental conse-
quences of the project, and the alternative project designs con-
sidered. The Corps adopted the seven conditions proposed by
the EPA, but dismissed the EPA’s concerns about the analysis
of alternatives, cumulative impacts, and natural events. The
Corps also adopted USFWS’s recommendations, including
the requirement that AGC discuss additional mitigation
opportunities with the Corps and USFWS after the project is
underway. An Environmental Assessment (“EA”) and a
“Finding of No Significant Impact (“FONSI”) are also
included in the PEDD pursuant to 40 C.F.R. § 1508.9.
Because of the FONSI, the Corps determined that it was not
required to prepare an Environmental Impact Statement
(“EIS”) for the project.
On March 13, 2007, the Corps issued a new permit for the
project. On April 18, 2007, BSC filed a second complaint in
the district court challenging the Rock Creek Project and
seeking a preliminary injunction and a temporary restraining
order to prevent the project from moving forward. The district
court denied the motions for a preliminary injunction and for
a temporary restraining order, and dismissed the suit with
prejudice in a June 8, 2007, opinion. The district court con-
cluded that the Corps properly considered the relevant factors
required under the CWA and NEPA, and that it was unlikely
that additional study would have changed the Corps’ view on
the project. Also, the district court concluded that no injunc-
tive relief was justified because most of the relevant wetlands
were filled during the weeks that passed between the Corps’
BERING STRAIT CITIZENS v. USACE 71
issuance of the second permit and the filing of BSC’s second
complaint.
On June 14, 2007, the district court issued an amended
opinion clarifying its intention to convert the plaintiffs’
motion for a temporary injunction and for a temporary
restraining order into a motion for summary judgment, and
correcting a factual error in the June 8, 2006 opinion.4
On July 5, 2007, BSC filed an emergency motion for an
injunction pending appeal. That motion was denied on July
27, 2007. This appeal followed.
II
We review de novo a district court’s decision to grant sum-
mary judgment. Blue Mtns. Biodiversity Proj. v. Blackwood,
161 F.3d 1208, 1211 (9th Cir. 1998). The Corps’ factual
determinations are reviewed under the arbitrary and capri-
cious standard. See Friends of the Earth v. Hintz, 800 F.2d
822, 831 (9th Cir. 1986) (addressing Clean Water Act
claims); Nw. Env’tl Def. Ctr. v. Bonneville Power Admin., 117
F.3d 1520, 1536 (9th Cir. 1997) (addressing NEPA claims).
III
[1] The permit at the center of this dispute was issued by
the Corps pursuant to Section 404 of the CWA, 33 U.S.C.
§ 1344, which authorizes the Corps to issue permits for the
discharge of dredged or fill material into the navigable waters
of the United States if certain conditions are met. 33 U.S.C.
§ 1344(d). “The Section 404 permit process is governed
simultaneously by Corps Regulations, 33 C.F.R. Parts 320-29,
4
The June 8, 2007 opinion stated that “the draft EA was distributed to
the agencies involved and distributed on the web.” In fact, none of the par-
ties claim that a draft EA was circulated before the second PEDD and the
EA were complete. This was corrected in the amended opinion.
72 BERING STRAIT CITIZENS v. USACE
and by EPA guidelines, 40 C.F.R. Part 230. Both sets of rules
must be observed.” Hintz, 800 F.2d at 829.
[2] The Section 404 permitting process is also governed by
NEPA. NEPA was enacted in pursuit of two objectives:
“First, it places upon an agency the obligation to consider
every significant aspect of the environmental impact of a pro-
posed action. Second, it ensures that the agency will inform
the public that it has indeed considered environmental con-
cerns in its decisionmaking process.” Baltimore Gas & Elec.
Co. v. Nat’l Res. Def. Coun., Inc., 462 U.S. 87, 97 (1983)
(internal citations and quotation marks omitted). Unlike the
CWA, NEPA does not contain substantive environmental
standards, nor does the Act mandate that agencies achieve
particular substantive environmental results. Ctr. for Biologi-
cal Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th
Cir. 2003). Judicial review of agency decision-making under
NEPA is limited to the question of whether the agency took
a “hard look” at the proposed action as required by a strict
reading of NEPA’s procedural requirements. Churchill
County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001).
IV
We first address BSC’s claims under the CWA.
A
1
[3] A key issue under the CWA presented by BSC is
whether the Corps adequately considered practicable alterna-
tives to the Rock Creek Mining Project design that was ulti-
mately approved. 40 C.F.R. § 230.10(a) provides that “no
discharge of dredged or fill material shall be permitted if 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
BERING STRAIT CITIZENS v. USACE 73
environmental consequences.” A practicable alternative is one
that is “available and capable of being done after taking into
consideration cost, existing technology, and logistics in light
of overall project purposes.” Id. “In evaluating whether a
given alternative site is practicable, the Corps may legiti-
mately consider such facts as cost to the applicant and logis-
tics. In addition, the Corps has a duty to consider the
applicant’s purpose.” Sylvester v. U.S. Army Corps of Engi-
neers, 882 F.2d 407, 409 (9th Cir. 1989) (citation omitted).
[4] Where a proposed project does not require access to
water, i.e., it is not “water dependent,” the availability of
practicable alternatives is presumed. 40 C.F.R. § 230.10(a)(3).
The parties agree that the Rock Creek Mining Project is not
water dependent.
[5] The record shows that the Corps extensively and prop-
erly considered alternatives to the design of the Rock Creek
Mining Project that was ultimately approved. The PEDD
reflects the Corps consideration of 24 different alternatives,
including different placements of the mine pits and related
facilities, alternative designs for the pits and tailings storage
facilities, “co-disposal” of tailings and development rock
together, and relocation of access roads. After extensive con-
sultation with AGC, the Corps determined that all alternatives
were impracticable because the nearby uplands were too steep
to stabilize the facilities, because the alternative designs
would require the destruction of higher value wetlands, or
would expand the project’s footprint, or because alternatives
were cost prohibitive or undesirable for other reasons. This
rationale is acceptable under the CWA.
BSC challenges this result on several bases. First, BSC
argues that the Corps failed to apply the correct presumption
of practicable alternatives for projects that are not water
dependant. However, the PEDD reflects that the Corps explic-
itly concluded that the project “is not a water dependant activ-
ity” and that therefore “pursuant to 40 C.F.R. 230.10(a)(3),
74 BERING STRAIT CITIZENS v. USACE
practicable alternatives not involving special aquatic sites are
presumed to be available.” The Corps applied the proper pre-
sumption.
Second, BSC argues that the Corps improperly rejected all
possible upland relocation options for the individual mine
facilities by evaluating only an “all uplands” alternative, i.e.,
the placement of the entire project in uplands, without consid-
ering the relocation of individual facilities. Specifically, BSC
argues that the Corps failed to consider the option of relocat-
ing only the North waste dump at the Rock Creek Mine/Mill
site to an upland site. In support of this claim, BSC cites to
the PEDD’s rejection of an alternative design that would
place all facilities in uplands and claims that the Corps failed
to consider the relocation of some, but not all, of the facilities.
[6] This is incorrect. The Corps considered and rejected the
“all uplands” alternative but, contrary to BSC’s assertion, that
was not the only alternative design considered. Although the
PEDD does not discuss the relocation of the north dump
alone, it reflects the Corps consideration of 24 different
design alternatives. “While an argument can be made that one
of these sites was suitable, it would not be appropriate for [the
Court] to overturn the Corps’ contrary finding.”5 Hintz, 800
F.2d at 834. The PEDD also reflects the Corps’ careful review
of the data collected by AGC’s consultants before the Corps
issued the permit, and the PEDD notes that representatives
from AGC discussed alternative sites with the Corps and/or
state officials on at least 59 occasions. The Corps reasonably
5
Similar analysis applies to BSC’s claim that the Corps improperly
rejected a “dry stack” tailings facility as cost prohibitive. The record
shows that the Corps considered the four alternatives presented by AGC’s
consultants in a “Tailings Alternative Report,” which were incorporated
by reference in the PEDD. See Hintz, 800 F.2d at 834 (“The Corps’ regu-
lations do not require the Corps to undertake an independent investigation
or to gather its own information upon which to base an EA.”). The Corps
concluded, in agreement with the Tailings Alternative Report, that the dry
stack method was prohibited by costs.
BERING STRAIT CITIZENS v. USACE 75
reviewed the feasible options and reasonably concluded that
the proposed design was the best design alternative.
2
[7] BSC next argues that the Corps did not properly weigh
the public interest as required by 33 C.F.R. § 320.4(b)(4).
That section provides that “[n]o permit will be granted . . .
unless the district engineer concludes, on the basis of the anal-
ysis required in paragraph (a) of this section, that the benefits
of the proposed alteration outweigh the damage to the wet-
lands resource.” Id. Paragraph (a) of § 320.4 includes factors
to be considered, including, without limitation:
conservation, economics, aesthetics, general envi-
ronmental concerns, wetlands, historic properties,
fish and wildlife values, flood hazards, floodplain
values, land use, navigation, shore erosion and accre-
tion, recreation, water supply and conservation,
water quality, energy needs, safety, food and fiber
production, mineral needs, considerations of prop-
erty ownership and, in general, the needs and welfare
of the people.
Id.
[8] BSC’s argument is unavailing. The PEDD reviews
many relevant factors under 33 C.F.R. § 320.4(a) in a discus-
sion spanning more than twenty pages. In addition to the sig-
nificant environmental considerations included in the PEDD,
the Corps also properly considered the significant economic
benefits that are expected to result from the project. Given the
relatively poor condition of the local economy in relation to
the state overall, we agree that these benefits are weighty in
this case. BSC may disagree with the Corps’ determination,
but in making that determination the Corps did not arbitrarily
or capriciously evaluate the public’s interest.
76 BERING STRAIT CITIZENS v. USACE
B
[9] In a related claim under the CWA, BSC argues that the
Corps did not properly consider whether the Rock Creek Min-
ing Project would “cause or contribute to significant degrada-
tion of the waters of the United States” as required by 40
C.F.R. § 230.10. Under this section, the Corps is directed to
consider the effects of the project while placing “special
emphasis on the persistence and permanence of the effects” of
the project.6 Much briefing on this issue relates to the substan-
tive merits of the Corps’ scientific and factual conclusions on
the ecological effects of the project. However, the issues
properly considered here are whether the Corps’ “decision [to
issue the permit] was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.”
Marsh v. Oregon Nat’l Res. Council, 490 U.S. 360 (1989).
[10] We conclude that the Corps acted properly. The PEDD
demonstrates that the Corps correctly considered a variety of
impacts from the project, and determined that the impacts
would be localized or limited in time. Moreover, the Corps
6
“Under these Guidelines, effects contributing to significant degradation
considered individually or collectively, include:
(1) Significantly adverse effects of the discharge of pollutants on human
health or welfare, including but not limited to effects on municipal water
supplies, plankton, fish, shellfish, wildlife, and special aquatic sites;
(2) Significantly adverse effects of the discharge of pollutants on life
stages of aquatic life and other wildlife dependent on aquatic ecosystems,
including the transfer, concentration, and spread of pollutants or their
byproducts outside of the disposal site through biological, physical, and
chemical processes;
(3) Significantly adverse effects of the discharge of pollutants on aquatic
ecosystem diversity, productivity, and stability. Such effects may include,
but are not limited to, loss of fish and wildlife habitat or loss of the capac-
ity of a wetland to assimilate nutrients, purify water, or reduce wave
energy; or
(4) Significantly adverse effects of discharge of pollutants on recreational,
aesthetic, and economic values.” 40 C.F.R. § 230.10(c).
BERING STRAIT CITIZENS v. USACE 77
stressed that the wetlands that would be filled during the proj-
ect are not unique to the site, and that the USFWS has deter-
mined that wetlands of the type filled in this project are the
“common habitat in the Alaska and the Nome region,”
exceeding forty percent of the land in the State of Alaska.
Accordingly, the Corps concluded that the Project will likely
have no impact on the greater ecosystem beyond the project
site. Because the Corps thoroughly and rationally considered
the relevant factors under 40 C.F.R. § 230.10, it cannot be
said that its determination was arbitrary and capricious, or that
its conclusion was contrary to law.
BSC contends that the Corps has not adequately evaluated
the hydrological impacts of the project, which it claims may
violate § 401 of the Clean Water Act, 33 U.S.C. § 1341. How-
ever, under 33 C.F.R. § 320.4(d) the Corps may accept a certi-
fication of compliance with § 401 from the relevant state
authority in lieu of conducting its own independent analysis.
This certification was issued by Alaska’s Department of Envi-
ronmental Conservation on August 9, 2006. Although BSC
argues that the Alaska Department of Environmental Conser-
vation’s certification does not include consideration of the
underground injection system to be used at the site, the certifi-
cation mentions that system, and the Alaska Department of
Environmental Conservation was aware of it when issuing the
certification. Under the Corps’ regulations, the certification is
conclusive with respect to water quality considerations. Hintz,
800 F.2d at 834. The Corps was not required to undertake the
additional analysis that BSC raises, and in any case the Corps
included a sufficient discussion of water quality effects in the
PEDD. The Corps’ determination that the Rock Creek Mining
Project would not “cause or contribute to significant degrada-
tion of the waters of the United States” was neither arbitrary
and capricious, nor contrary to law.
C
[11] BSC next argues that the Corps did not require the
appropriate mitigation measures required by the CWA. 40
78 BERING STRAIT CITIZENS v. USACE
C.F.R. § 230.10 requires that the Corps include “appropriate
and practicable” mitigation measures in permits issued under
§ 404 of the CWA. 40 C.F.R. § 230.10(d); see also 33 C.F.R.
§ 320.4(r) (explaining the general mitigation policy).
[12] BSC contends that the Corps did not implement all of
the mitigation measures suggested by the EPA. However, the
record demonstrates that “the Corps considered [EPA’s] ini-
tial concerns, addressed them, and explained why it found
them unpersuasive.” Cal. Trout v. Schaefer, 58 F.3d 469, 475
(9th Cir. 1995) (internal quotation marks and citation omit-
ted). The Corps implemented all of the EPA’s concrete condi-
tions in the permit and rejected only the more general
statements from EPA, the substance of which were addressed
elsewhere in the PEDD. The permit includes an array of
required mitigation measures, and the Corps has explained its
rejection of the other measures considered.
BSC also contends that the mitigation measures provided in
the permit are insufficient because some mitigation measures
have not been fully developed. Specifically, BSC urges that
the permit condition requiring that AGC meet with the Corps
and USFWS within three months of permit issuance to iden-
tify additional mitigation opportunities shows that the Corps
has not fully developed the required mitigation plan for the
project.
We have not squarely addressed the question of whether
plans to develop additional mitigation measures in the future
can satisfy the CWA’s mitigation requirements. However, in
a related context, we have held that prospective mitigation
plans satisfied NEPA’s mitigation requirements where the
plans were “developed to a reasonable degree.” Wetlands
Action Network v. U.S. Army Corps of Eng’r, 222 F.3d 1105,
1121 (9th Cir. 2000); see also Tillamook County v. U.S. Army
Corps of Eng’rs, 288 F.3d 1140, 1144 (9th Cir. 2002) (hold-
ing that the Corps “was not required [under NEPA] to develop
a complete mitigation plan detailing the precise nature of the
BERING STRAIT CITIZENS v. USACE 79
mitigation measures nor were the measures required to com-
pletely compensate for adverse environmental impacts.”)
(internal quotation marks omitted).
[13] The mitigation measures contained in the permit here
satisfy the CWA’s mitigation requirements. The mitigation
measures that are to be developed after permit issuance are
only one part of the overall mitigation requirements included
in the permit. Where the Corps has undertaken a genuine
effort to develop a detailed mitigation plan, the mere fact that
one aspect of the plan is not yet finalized will not necessarily
lead to the conclusion that the Corps’ decision was arbitrary
and capricious. Also, the USFWS, not the Corps, suggested
that the mitigation measures be developed after the permit
was issued. This belies any suggestion that the Corps was
attempting to skirt its responsibilities under the CWA by
delaying the development of a mitigation plan. See also Rob-
ertson v. Methow Valley Citizens Council, 490 U.S. 332, 352-
53 (1989) (“it would be incongruous to conclude that the For-
est Service has no power to act until the local agencies have
reached a final conclusion on what mitigating measures they
consider necessary.”). Finally, the Corps may be perfectly
reasonable in its belief that additional on-site mitigation
opportunities will present themselves once the project is
underway. That the Corps intends to pursue additional mitiga-
tion opportunities at a later time does not conflict with the
requirements of the CWA unless the mitigation measures that
have been fully developed are inadequate. We conclude that
the Corps’ decisions regarding mitigation measures were not
arbitrary and capricious, and complied fully with law.7
7
BSC makes much of a February 6, 1990 Memorandum of Agreement
between EPA and the Corps that discusses the mitigation requirements of
the CWA at length. BSC emphasizes language in the memorandum stating
that mitigation measures should provide, “at a minimum, one for one func-
tional replacement (i.e. no net loss of values)” to satisfy the requirements
of the CWA. See generally Memorandum of Agreement Between The
Department of the Army and The Environmental Protection Agency, The
80 BERING STRAIT CITIZENS v. USACE
V
We next address BSC’s claims under NEPA.
A
[14] BSC argues that the Corps did not provide adequate
public notice and comment under NEPA because it did not
circulate a draft EA before the final EA was completed. BSC
claims that a draft EA must be circulated in order for the
Corps to comply with 40 C.F.R. § 1501, which requires the
Corps to “involve environmental agencies, applicants, and the
public, to the extent practicable” in the preparation of the EA.
The Corps and AGC argue in response that NEPA does not
require the circulation of a draft EA.
Our law currently does not make clear whether NEPA
requires the circulation of a draft EA. The regulations do not
answer the question. 40 C.F.R. § 1503.1 requires the circula-
Determination of Mitigation Under the Clean Water Act Section 404(b)(1)
Guidelines, Sept. 6, 1990, available at http://www.epa.gov/owow/
wetlands/regs/mitigate.html (last accessed Dec. 20, 2007). However, as
the Corps and AGC point out, the 1990 memorandum is modified by a
May 13, 1994 memorandum that recognizes that one for one replacement
of wetlands may be impracticable in Alaska, where “there is a high pro-
portion of land in a watershed or region which is wetlands.” Accordingly,
“emphasis is placed on minimizing project impacts to wetlands by reduc-
ing the footprint of the project, using co-location of facilities whenever
possible, and seeking to locate the project in lower value wetlands.” The
memorandum notes, “In Alaska, minimization of impacts has been in
many circumstances the only mitigation required.” See Alaska Wetlands
Initiative Summary Report, May 13, 1994, available at http://
www.epa.gov/owow/wetlands/pdf/alask.pdf (last accessed Dec. 20, 2007).
The record demonstrates that the Corps minimized the project footprint by
considering a range of alternative placements, and considered (and imple-
mented) additional mitigation options. Given the high percentage of land
proximate to the development that is wetlands, we cannot say that the
Corps’ approach to minimize impact by selecting low value wetlands for
project use is unreasonable.
BERING STRAIT CITIZENS v. USACE 81
tion of a draft EIS, but does not speak to the necessity of a
draft EA. 40 C.F.R. § 1506.6 requires that agencies “[m]ake
diligent efforts to involve the public in preparing and imple-
menting their NEPA procedures[,]” but does not expressly
require the circulation of a draft EA.
Nor does current Ninth Circuit case law decide the ques-
tion. In Anderson v. Evans, we stated that “[t]he public must
be given an opportunity to comment on draft EAs and EISs,
and public hearings are encouraged to facilitate input on the
evaluation of proposed actions.” 371 F.3d 475, 487 (9th Cir.
2004). However, the dispute in Anderson concerned whether
the government was required to prepare an EIS, not whether
there was adequate public notice and comment on the EA—in
fact, a draft EA was circulated in Anderson. The statement in
Anderson about the circulation of a draft EA is a dictum.
In other Ninth Circuit cases we have held that the Ninth
Circuit has “not established a minimum level of public com-
ment and participation required by the regulations governing
the EA and FONSI process.” Citizens for Better Forestry v.
U.S. Dept. of Agric., 341 F.3d 961, 970 (9th Cir. 2003). The
Citizens for Better Forestry opinion quotes Anderson for the
proposition that a draft EA must be circulated, but the deci-
sion itself relies not on Anderson’s dictum, but rather on the
fact that the public was given no notice of the preparation of
the EA at all. See id. at 970 (“It is evident, therefore, that a
complete failure to involve or even inform the public about an
agency’s preparation of an EA and a FONSI, as was the case
here, violates these regulations.”) This case presents the first
opportunity for us to squarely address the question in a case
where the issue is presented.
[15] We hold today that the circulation of a draft EA is not
required in every case. We do not say that it is always
required or that it is never required. Instead, we stress that the
regulations governing public involvement in the preparation
of EAs are general in approach, see 40 C.F.R. § 1506.6,
82 BERING STRAIT CITIZENS v. USACE
requiring the circulation of a draft EA in every case would
apply a level of particularity to the EA process that is foreign
to the regulations. Also, requiring the circulation of a draft EA
in every case could require the reversal of permitting deci-
sions where a draft EA was not circulated even though the
permitting agency actively sought and achieved public partici-
pation through other means. The regulations do not compel
such formality. See 40 C.F.R. § 1508.9.
Our conclusion is consistent with the views of other cir-
cuits, which uniformly have not insisted on the circulation of
a draft EA. See Alliance To Protect Nantucket Sound, Inc. v.
U.S. Dept. of Army, 398 F.3d 105, 114-115 (1st Cir. 2005)
(concluding that “[n]othing in the CEQ regulations requires
circulation of a draft EA for public comment, except under
certain ‘limited circumstances,’ ” and rejecting Anderson’s
contrary language as dicta); Pogliani v. U.S. Army Corps of
Eng’rs, 306 F.3d 1235, 1240 (2d Cir. 2002) (holding that a
draft EA must be circulated only in certain limited circum-
stances); Greater Yellowstone Coalition v. Flowers, 359 F.3d
1257, 1279 (10th Cir. 2004) (“NEPA’s public involvement
requirements are not as well defined when an agency prepares
only an EA and not an EIS.”); Fund for Animals, Inc. v. Rice,
85 F.3d 535, 548 (11th Cir. 1996) (“[T]here is no legal
requirement that an Environmental Assessment be circulated
publicly and, in fact, they rarely are.”).8
However, a significant question remains. Given our conclu-
sion that NEPA does not always require the circulation of a
draft EA, what level of public disclosure is required under
NEPA before issuance of a final EA? Each EA will be pre-
pared under different circumstances, and the regulations have
not specified a formal practice for affected agencies. For this
8
One district court in our circuit has commented that an “agency can
never go wrong by releasing a draft EA, and supporting documents,”
Sierra Nev. Forest Prot. Campaign v. Weingardt, 376 F. Supp. 2d 984,
991 (E.D. Cal. 2005).
BERING STRAIT CITIZENS v. USACE 83
reason, practices have not been uniform, and so we will elabo-
rate the factors that should guide the agency. In Sierra
Nevada Forest Protection Campaign v. Weingardt, 376 F.
Supp. 2d at 991-92, the United States District Court for the
Eastern District of California considered precisely this issue.
After concluding that the agency (there the United States For-
est Service) need not circulate a draft EA, the court explained:
[the regulations] require that the public be given as
much environmental information as is practicable,
prior to completion of the EA, so that the public has
a sufficient basis to address those subject areas that
the agency must consider in preparing the EA.
Depending on the circumstances, the agency could
provide adequate information through public meet-
ings or by a reasonably thorough scoping notice.
Id. at 991.
[16] The district court in Sierra Nevada Forest Protection
Campaign evaluated this issue soundly, and we commend its
approach. As that court observed, “The way in which the
information is provided is less important than that a sufficient
amount of environmental information—as much as
practicable—be provided so that a member of the public can
weigh in on the significant decisions that the agency will
make in preparing the EA.” Id. Stated another way, we now
adopt this rule: An agency, when preparing an EA, must pro-
vide the public with sufficient environmental information,
considered in the totality of circumstances, to permit members
of the public to weigh in with their views and thus inform the
agency decision-making process.
[17] The Corps satisfied this rule here. Information about
the project was widely disseminated throughout the commu-
nity and environmental information was reasonably and thor-
oughly tendered to the public. Indeed, in response, the Corps
received a high level of public comment from the Nome com-
84 BERING STRAIT CITIZENS v. USACE
munity, most of it favoring the project. In addition to these
significant efforts by the Corps, AGC made substantial efforts
to provide additional information to the public, including a
weekly newspaper column on the project’s status that ran for
about eighteen months, local presentations, radio interviews,
and joint efforts with state agencies to explain the permitting
process. The quality of the Corps’ dissemination of environ-
mental information to the public and its consideration of pub-
lic comment, before issuing its EA, was reasonable and
adequate.
B
BSC next argues that the EA prepared by the Corps for the
Rock Creek Mining Project is inadequate by four different
measures. First, BSC argues that the EA did not adequately
discuss cumulative impacts. Second, BSC argues that the
alternatives analysis in the EA is inadequate. Third, BSC
argues that the Corps reliance on mitigation plans that are not
yet fully developed is inadequate. Finally, BSC argues that
the Corps failed to adequately analyze environmental impacts
in the EA.
“NEPA requires that an EIS be prepared for all ‘major Fed-
eral actions significantly affecting the quality of the human
environment.’ 42 U.S.C.A. § 4332(2)(C) (1994). However, if,
as here, an agency’s regulations do not categorically require
the preparation of an EIS, then the agency must first prepare
an EA to determine whether the action will have a significant
effect on the environment.” Metcalf v. Daley, 214 F.3d 1135,
1142 (9th Cir. 2000). The EA is designed to provide sufficient
evidence and analysis for the agency to determine whether to
prepare an EIS or to issue a FONSI. Id. at 1145; see also 40
C.F.R. § 1508.9 (describing the purposes of the EA). Here,
the Corps determined on the basis of the EA that an EIS was
unnecessary, and BSC challenges the sufficiency of the EA.
BERING STRAIT CITIZENS v. USACE 85
1
[18] BSC contends that the EA did not adequately discuss
the cumulative impact of the project. “Cumulative impact” is
defined in the regulations 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 regardless of what agency (federal or non-federal) or
person undertakes such other actions.” 40 C.F.R. § 1508.7.
We have held that:
[a] proper consideration of the cumulative impacts of
a project requires some quantified or detailed infor-
mation . . . [g]eneral statements about possible
effects and some risk do not constitute a hard look
absent a justification regarding why more definitive
information could not be provided. The analysis
must be more than perfunctory; it must provide a
useful analysis of the cumulative impacts of past,
present, and future projects.
Klamath-Siskiyou Wildlands Center v. Bureau of Land Mng’t,
387 F.3d 989, 993-94 (9th Cir. 2004) (internal quotation
marks and citation omitted).
BSC relies on Klamath-Siskiyou to support its argument. In
Klamath-Siskiyou, the plaintiffs challenged the adequacy of
EAs prepared by the Bureau of Land Management for timber
sales in the Oregon Cascades. Id. at 992. Although that
agency had received applications for four timber sales in the
same area, it decided to review the four sales with separate
EAs. Id. We reversed the district court’s judgment for the
agency, concluding that two of the EAs failed to adequately
consider the cumulative impacts of the four different projects.
Id. at 994-6. Although the EAs contained lengthy sections
labeled “cumulated impacts,” the discussion was primarily
limited to the impacts of the individual project covered by
each EA, with little discussion of the effects of the four sales
86 BERING STRAIT CITIZENS v. USACE
combined. Id. We held that “the only mention of cumulative
effects in the two EAs comes in the form of generalized con-
clusory statements that the effects are not significant or will
be effectively mitigated.” Id. at 996. These were the type of
“[g]eneral statements about possible effects and some risk
[that] do not constitute a hard look absent a justification
regarding why more definitive information could not be pro-
vided.” Id. at 995 (citing Neighbors of Cuddy Mtn. v. U.S.
Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998)).
[19] The EA here succinctly but adequately discusses the
cumulative impacts of the project and points out the Corps’
determination that the project will leave portions of the drain-
age in “more natural conditions than currently exist” due to
mitigation measures included in the permit. To be sure, the
EA does not discuss at length other projects taking place in
the Nome region. However, the record indicates—and we
were assured at oral argument—that this is because there are
no projects of similar magnitude at this time. Also, BSC has
pointed to no past, present, or reasonably foreseeable future
projects comparable in environmental impact to the Rock
Creek Mine Project. This fairly distinguishes Klamath-
Siskiyou, because there the agency failed to consider four
known and comparable projects that were proceeding in the
permitting process. Compare Kootenai Tribe of Idaho v.
Veneman, 313 F.3d 1094, 1123 (9th Cir. 2002) (noting that
the Corps need not include projects in its cumulative impacts
analysis that are highly speculative). The impact of isolated
placer mining, which often involves only small-scale opera-
tions, in our view is not germane to the cumulative impacts
assessment of the Rock Creek Mining Project. BSC has not
identified any comparable project— past, present, or future—
that could call into question the cumulative impacts analysis.
Under the total circumstances, we conclude that the Corps’
cumulative impacts analysis was adequate.
BERING STRAIT CITIZENS v. USACE 87
2
[20] BSC next argues that the EA does not adequately dis-
cuss alternatives to the approved project as required by NEPA
regulations found at 40 C.F.R. § 1508.9. It is important to rec-
ognize that NEPA’s requirement to assess alternatives, unlike
that in the CWA, is a procedural and not a substantive
requirement. Our law has made clear the nature of NEPA’s
scope: “Under NEPA, an agency’s consideration of alterna-
tives is sufficient if it considers an appropriate range of alter-
natives, even if it does not consider every available
alternative. An agency need not, therefore, discuss alterna-
tives similar to alternatives actually considered, or alternatives
which are infeasible, ineffective, or inconsistent with the basic
policy objectives for the management of the area[.]” Northern
Alaska Env’l Center v. Kempthorne, 457 F.3d 969, 978 (9th
Cir. 2006) (quotation marks and internal citations omitted).9
[21] We have already concluded above, in assessing the
CWA claim, that the Corps considered many alternatives and
satisfied its obligation to select the least environmentally
damaging practicable alternative. The CWA analysis is pri-
marily (but not exclusively) concerned with the aquatic
ecosystem, 40 C.F.R. § 230.10(a)(2), while the NEPA analy-
sis is more broad and procedurally oriented. However, the
Corps has satisfied both standards with its comprehensive,
searching, and rational assessment of alternatives. We con-
clude that the Corps took the “hard look” required by NEPA.
3
BSC next contends that the mitigation plans contained in
the EA are inadequate because the EA relies on plans that are
to be fully developed after the project begins. “An agency’s
9
“[A]n agency’s obligation to consider alternatives under an EA is a
lesser one than under an EIS.” Env’l Prot. Info. Ctr. v. U.S. Forest Ser-
vice,451 F.3d 1005, 1016 (9th Cir. 2006).
88 BERING STRAIT CITIZENS v. USACE
decision to forego issuing an EIS may be justified by the pres-
ence of mitigating measures.” Wetlands Action Network, 222
F.3d at 1121. However, we have held that an “agency is not
required to develop a complete mitigation plan detailing the
precise nature . . . of the mitigation measures[,]” so long as
the measures are “developed to a reasonable degree.” Nat’l
Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 734
(9th Cir. 2001). As discussed more thoroughly in Section C,
above, the mitigation plans that have not yet been fully devel-
oped are only a small part of the overall mitigation plan for
the Rock Creek Mine Project site, on which we conclude that
mitigation measures were developed to a reasonable degree.
Because the measures overall are developed to a reasonable
degree, the Corps could reasonably conclude that additional
mitigation measures would be developed after work com-
menced at the site.
4
[22] Finally, BSC argues that the Corps did not adequately
consider the environmental impacts of the Rock Creek Mine
Project in the EA. BSC first contends that the 2007 EA does
not discuss air quality issues. This is incorrect. The EA
requires that AGC develop a plan with the Alaska Department
of Transportation to minimize dust, the primary air contami-
nant to be released from the site. The Environmental Informa-
tion 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.
[23] BSC then asserts that the Corps failed to adequately
address water quality issues. However, as discussed in our
analysis of the CWA issues above, the Corps was entitled to
rely upon the certification from the Alaska Department of
Environmental Conservation that the project meets the rele-
vant water quality conditions. Moreover, the Corps consid-
ered water quality issues at length, partly in response to
comments from EPA, and the Environmental Information
BERING STRAIT CITIZENS v. USACE 89
Document, incorporated by reference in the EA, discussed
water quality issues, including an in-depth analysis of ground-
water issues.
[24] BSC further contends that the EA did not adequately
consider the impact of the project on biological resources.
This is also incorrect. The EA and accompanying Environ-
mental Information Document include detailed habitat map-
ping to determine the wildlife use patterns within the project
area. The Corps determined that the mine would likely cause
short-term disruption of wildlife in the area, but that “wildlife
typically adjusts to this type of disturbance by moving to
nearby undisturbed areas where similar habitat types exist.”
Because the Corps found that more than 54,000 acres of simi-
lar habitat surround the Rock Creek Mine/Mill and Big Hur-
rah Mine, the Corps concluded that the impacts on wildlife
would be minimal.
[25] The Corps adequately considered the environmental
impacts raised by BSC, its conclusions were not arbitrary and
capricious, nor were they contrary to law.
C
[26] BSC argues that the Corps should have prepared an
EIS for the Rock Creek Mine Project. “NEPA requires that an
[EIS] be prepared for all ‘major Federal actions significantly
affecting the quality of the human environment.’ 42 U.S.C.A.
§ 4332(2)(C).” Nat’l Parks & Conservation Ass’n v. Babbitt,
241 F.3d at 730. To determine whether an EIS is necessary,
an EA is prepared.10 Based on the EA, the agency determines
whether an EIS should be prepared or a FONSI should be
issued. “An EIS must be prepared if ‘substantial questions are
raised as to whether a project . . . may cause significant degra-
dation of some human environmental factor.’ ” Blue Mtns., 61
F.3d at 1212 (citation omitted). “Whether there may be a sig-
10
“Significantly” is defined in 40 C.F.R. § 1508.27.
90 BERING STRAIT CITIZENS v. USACE
nificant effect on the environment requires consideration of
two broad factors: context and intensity.” Ctr. for Bio. Diver-
sity v. NHTSA, Nos. 06-71891, 06-72317, 06-72641, 06-
72694, 06-73807, 06-73826, 2007 WL 3378240, at * 5 (9th
Cir. Nov. 15, 2007) (citing Nat’l Parks & Conservation Ass’n,
241 F.3d 720, 731 (9th Cir. 2001)); see also Ctr. for Bio.
Diversity, at *5 (listing additional relevant factors).
BSC raises issues that it believes demonstrate “substantial
questions” about the effects of the Rock Creek Mine Project.
First, BSC raises concerns about air quality, biological
resources, and water quality. The EA and accompanying
Environmental Information Document show that the Corps
undertook a reasonable approach to these issues. “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 is highly controversial or highly uncer-
tain.” Native Ecosystems Council v. U.S. Forest Serv., 428
F.3d 1233, 1240 (9th Cir. 2005).
Second, BSC argues that EPA’s disagreement with the
Corps regarding mitigation requirements raises a substantial
question that requires the preparation of an EIS. However, the
EPA’s objections were limited to the propriety of issuing the
permit while some details of the mitigation plan were not
finalized. The Corps reasonably developed a mitigation plan,
including many measures that are set, and has provided a rea-
soned explanation for these post-issuance conditions, which
were suggested by the USFWS. That EPA disagreed with the
Corps’ assessment does not create a substantial issue requir-
ing an EIS under these circumstances. “When specialists
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, 490 U.S. at 368.
[27] We cannot avoid perceiving that the project in its
required mitigation favorably affects parts of the Nome area
BERING STRAIT CITIZENS v. USACE 91
that suffered environmental damage from previously uncon-
strained resource development. On balance, we conclude that
the Rock Creek Mine Project has no significant detrimental
effect on the environment in and near Nome. Accordingly, the
Corps was not required to prepare an EIS based on the issues
raised by BSC or by the EPA.
VI
The decisions of the Corps relating to the Rock Creek Min-
ing Project were not arbitrary and capricious. Nor were these
decisions contrary to law.
AFFIRMED.