Salmon Defenders Take Mining Protest to the 9th

     (CN) – Attorneys fought in the 9th Circuit panel as to whether an Oregon chromite mine should continue its operations despite potential risks to the environment.
     At the heart of the dispute is a 2010 decision by the National Marine Fisheries Service that a 160-acre chromite mining project near Coos Bay, Ore., will not affect coho salmon population.
     Three locals and the Oregon Coast Alliance filed suit, claiming that the fisheries service and U.S. Army Corps of Engineers “acted arbitrarily and capriciously.”
     Hexavalent chromium presence in the ground water around the mine site could harm the local fish and wildlife and pollute the watershed, the plaintiffs claimed.
     The groups seek a declaration that the federal agencies violated the Endangered Species, Clean Water, and National Environmental Policy Acts, and an injunction ordering the fisheries service to prepare an environmental impact statement
     Oregon Resources Corp. intervened in the case on behalf of the agencies, which obtained summary judgment in 2011.
     “The fact that there is evidence supporting a different scientific opinion in the record does not render the agency decision arbitrary and capricious,” U.S. District Judge Michael Hogan wrote, finding the defendant agencies complied with their obligations under the National Environmental Policy Act when it found the project would have no significant impact.
     The plaintiffs appealed to the 9th Circuit, which held a hearing before a three-judge panel on Wednesday.
     Representing the plaintiffs, Crag Law Center attorney Courtney Johnson argued that the Army Corps “lacked the particular expertise” to evaluate the environmental impact of the mining, and that more testing was needed.
     “The case law is clear that uncertainty must be grounded in evidence and not pure speculation,” Johnson said. “If it’s likely to have a significant effect, such as toxic hexavalent chromium in drinking water, even if the probability may be low, there’s still a duty to look at that uncertainty.”
     Judge Milan Smith questioned Johnson about the meaning of an expert report by the Department of Environmental Quality that recommended site-specific monitoring of the mining areas twice a year.
     “It seems like everything that the experts asked for were pretty much done,” Smith said, adding that the DEQ report did not recommend more specific tests.
     Judge Andrew Hurwitz questioned why the plaintiffs did not appeal the finding by the fisheries service that determined the mining would not harm coho salmon.
     “If there’s not likely to be an adverse effect on the fish, and the fish require a lower level of hexavalent chromium to affect them, and you don’t dispute that, why is this a case in which there’s not going to be an effect on humans?” Hurwitz asked.
     Johnson replied that the fisheries service’s findings were related to endangered species, and that the issues were different.
     Throughout the arguments, Judges Hurwitz and Smith questioned the status of the case in light of the fact that mining operations have been occurring for three years.
     “It’s the procedural posture that we’re struggling with,” Smith said.
     Representing the federal defendants, attorney Maggie Smith did little to help the panel’s concern with what type of testing should be or should have been done.
     Smith explained: “This is a new type of mining. It’s not clear how well things are going to go or whether or not ORC is going to be a successful business venture.”
     A cumulative impact analysis of the sites would not give meaningful information, he added.
     Per Ramfjord, an attorney for the Oregon Resources Corp., gave more insight into the DEQ report, saying it gave site-specific data about groundwater and that it had “safe levels of hexavalent chromium.”
     Ramfjord said the monitoring recommended by the DEQ was reasonable in light of the conclusion that the presence of hexavalent chromium would not be a problem.
     Judge Smith questioned whether the decision complied with the National Environmental Protection Act.
     “You can’t just say ‘we’re not sure what’s going to happen, we’re not going to comply with NEPA now, but we’re going to do some tests,'” Smith said. “Our case law is clear about that.”
     Ramfjord reiterated the defendants’ position that the submitted documents complied with federal law.
     Senior Judge Arthur Alarcon joined Hurwitz and Smith on the panel.

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