In addition, the court found that the National Marine Fisheries Service (NMFS), the federal agency charged with the protection of the critically imperiled coho salmon, failed to correctly evaluate the risks to the species associated with the proposed mining.
The National Environmental Defense Council (NEDC) filed the suit in response to the Corps closed-door meetings that led to a permit for in-stream gravel mining, saying that the Corps and NMFS met with mining industry representatives behind closed doors to approve the permit, in violation of the Federal Advisory Committee Act.
What is important to the NEDC is that the Corps intended to use the Chetco River permitting process as a model for larger gravel-bearing streams throughout the state.
The three companies granted the permit include Tidewater, Freeman Rock and South Coast Lumber Co.; they will be allowed to continue gravel mining until a remedy is worked out between the agencies and NEDC.
“Our concern is the continued mining of the river and the significant impacts on it,” said NEDC staff attorney Andrew Hawley. “Everyone can agree on that. The question is what does science say about what the river can support and how much mining can (continue to) go on with the historic mining of over 100 years.”
Two technical teams were formed with the intention of considering developing regional permits for gravel mining where the “activities are substantially similar in nature and cause only minimal individual and cumulative impacts on the aquatic environment,” the court decision reads.
One team was tasked to “ensure progress continues,” while the other, comprised of agency scientists, was to collect, review and analyze data and present recommendations to the first team.
The court repeatedly asked the government attorney why they didn’t comply with the Federal Advisory Committee Act and they never provided any answers — not in their briefs, or in the oral arguments, Hawley said.
“The end result is they just didn’t do it,” he said. “They need to fix that fundamental failure. We saw a process where they were result-oriented and worked to get there. We have a bad permit as a result of it — one that isn’t protective of the river, the community or the fish.”
The Corps disbanded the teams in October 2010 and made their results available for public review for the first time.
“That was too little, too late,” Hawley said. “They’d already poisoned the well. The experts weren’t allowed to discuss what was necessary. That’s what we want out of this process. We want the river to return to a healthy functioning river that can support all the uses the community would like it to support.”
The court also found that NMFS failed to properly analyze the impacts of mining on the coho population.
By failing to take into account the cumulative effect, NMFS failed to examine the effects of the mining and its impacts on the coho’s continued existence.
NMFS estimates that fewer than 100 coho remain in a river that once numbered more than 60,000 fish.
Some impacts could include altering and destabilizing the stream channel, eliminating the pool or riffle structure, increasing turbidity and sediment levels, causing bank erosion and degrading or destroying fish habitat. These impacts have significant adverse impacts on the salmon by disturbing and eliminating spawning sites, increasing sedimentation and turbidity, blocking sunlight and reducing available oxygen levels for fish eggs, disturbing behavior, migration, and spawning; and limiting food sources, Hawley said.
“They failed to do their job — that’s their one job: to protect this species,” Hawley said. “They painted a picture of an increasing population of coho without any information to back it up. That’s a sad state of affairs that they don’t understand what’s going on with that population.
“It’s disheartening they would spend this much time and resources and still come out with this flawed permit and analysis,” he added. “Now the opportunity presents itself to do it again — and do it right.”
He also wonders what is happening with the draft coho recovery plan that was presented in January 2012 after four years of study.
Winning the case was bittersweet, Hawley admitted.
“I don’t like to win cases like this because all it does is show they’re wrong,” he said. “They knew they were wrong, they knew the community wanted a voice in the conversation. There were several meeting notes where members of the committee — the DEQ — asked if the public should be allowed in the process. Those aren’t the types of voices we want in this conversation. That’s the wrong approach in a river like this, with a species on the verge of extinction. It feels good that we were able to bring this to light: This isn’t how we want our agencies to operate,” Hawley said.
“This is a great day for the Chetco River and for government transparency,” said Mark Riskedahl, NEDC executive director. “The Corps invited industry to the table to negotiate a long-term extraction plan for the Chetco River, and the public was intentionally shut out of the process. Not only is such an approach unconscionable, but the judge ruled it is illegal.”
“When this came across my desk in 2008, I thought ‘This is a no-brainer,” Hawley said of the case. “It’s important. One of the reasons people come to Brookings is the river; it’s beautiful and spectacular. It needs someone speaking for it.”