United States of America
Permits, Wetlands, Wildlife, Biodiversity, Injunctive Relief, Damages, Forests, Land Use

The Alaska Gold Company proposed to operate two open-pit gold mines outside of Nome, Alaska. The Rock Creek Mine Project would result in approximately 15,592,411 cubic yards of fill being placed in wetlands totaling 346.5 acres. The United States Army Corps of Engineers placed various mitigation measures on theProject to mitigate environmental damage from this project as well as damage caused by the earlier mining activities, and granted the permit. Plaintiffs, Bering Strait Citizens for Responsible Resource Development (“BSC”), brought suit claiming that the permit was invalid because it was issued in violation of the Clean Water Act and National Environment Policy Act. The District Court of Alaska held that USACE had acted according to the law and the permit was valid. BSC appealed. The Ninth Circuit Court of Appeals agreed with the district court’s analysis and affirmed the judgment. Under the regulations promulgated by USACE and the Environmental Protection Agency (“EPA”), a permit cannot be issued “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic system.” 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.” The court found that USACE “extensively and properly considered alternatives” and reasonably concluded that the current design offered the best design alternative. The court limited its review to whether USACE reviewed and evaluated all of the alternatives and whether its conclusion was reasonable. The court also found that USACE had adequately considered the impacts and its decision was not arbitrary and capricious, and that the mitigation measures satisfied the requirements under the CWA. Plaintiffs argued that by failing to circulate the EA, USACE had violated the notice and comment requirements of NEPA. In following the general consensus of other courts of appeals, the Ninth Circuit held that “the circulation of a draft EA is not required in every case.” In order to determine what level of notification is required, the court stated the following rule: An agency, when preparing an EA, must provide the public with sufficient environmental information, considered in the totality of the circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process. The court went on to find that under this rule, USACE satisfied NEPA’s requirements by notifying the public and involving them in the process. The court noted that many community members as well as the City of Nome participated in the process, and the majority of the members of the public were in favor of the project because it would provide much-needed employment.