Bering Strait Citizens v. US Army Corps of Engineers

Jan 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35506. The 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) 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 processing 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, et al (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 temporary restraining order and a preliminary injunction, and the district court’s dismissal of the suit on summary judgment. The Appeals Court concluded that the Corps complied with the requirements of the CWA and NEPA, and affirmed the judgment of the district court.

In its decision, the Ninth Circuit said regarding the CWA issues, "The record shows that the Corps extensively and properly considered alternatives to the design of the Rock Creek Mining Project that was ultimately approved. The PEDD [Permit Evaluation and Decision Document] 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 consultation 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."

On the NEPA issues the Appeals Court concluded, "The Corps adequately considered the environmental impacts raised by BSC, its conclusions were not arbitrary and capricious, nor were they contrary to law... 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."

Access the complete opinion (click here).