Oregon Natural Resources Council v. Marsh

• Decision Date: 31 August 1987
• Docket Number: Civ. No. 85-6433-BU.
• Citation: 677 F. Supp. 1072
• Parties: OREGON NATURAL RESOURCES COUNCIL, et al., Plaintiffs, v. John O. MARSH, Jr., in his official capacity as Secretary of the United States Department of the Army, et al., Defendants.
• Court: U.S. District Court — District of Oregon

677 F. Supp. 1072

OREGON NATURAL RESOURCES COUNCIL, et al., Plaintiffs, v. John O. MARSH, Jr., in his official capacity as Secretary of the United States Department of the Army, et al., Defendants.

Civ. No. 85-6433-BU.

United States District Court, D. Oregon.

August 31, 1987.

Gary K. Kahn, Reeves & Kahn, Neil S. Kagan, Portland, Or., for plaintiffs.

Thomas C. Lee, Asst. U.S. Atty., Portland, Or., Dorothy R. Burakreis, Land and Natural Resources Div., General Litigation Section, U.S. Dept. of Justice, Washington, D.C., John R. Seeronen, Asst. Dist. Counsel, Portland, Or., of counsel, for defendants.

OPINION AND ORDER

JAMES M. BURNS, District Judge.

I. INTRODUCTION

This dam case is back. When the case was here before, there was only a dam plan. Now there is half a dam.¹ The chore assigned on remand by the Court of Appeals requires me to determine what sort of half dam is a good (i.e., safe) half dam and which is a bad (i.e., unsafe) half dam. This assignment might seem strange, since my efforts earlier to determine whether the dam plan was good were not even half as good as those of the Court of Appeals.²

The history of this litigation may be found in my opinion of March 3, 1986, 628 F.Supp. 1557 and the June 23, 1987 opinion of the Court of Appeals, 832 F.2d 1489. In essence, the June 23 ruling orders the Corps of Engineers back to the NEPA drawing board. In the meantime, my assignment is to determine what sort of injunctive relief is appropriate when a large scale construction project — with many highly technical aspects — is sought to shut down, or placed on full, or partial hold while NEPA requirements are met. Thus, from the outset, after remand, I had called upon the parties to present various alternatives for me to evaluate in determining "appropriate" relief.

The Elk Creek project involves four³ main contracts:

a) Construction of the structure itself, including a large quarry and rock crushing operation;

b) Construction and operation of a fish collection facility, about 600 feet downstream of the dam;

c) The reservoir clearing contract, intended so as to prepare the upstream area so as to accommodate the pool of 1,347 acres which will exist when the dam is completed;

d) The archeological contract.

Of these, only the first needs lengthy explanation. Interruption of the schedule of completion of the structure involves evaluation of safety risks if a full shut down order as to structure were ordered. These risks, in turn, depend upon technical complexities of a severe order, and upon estimates of probabilities as to flooding during the fall and winter of 1987-88. The other three, by comparison, need only brief discussion. I turn to the first.

II. WHERE AND HOW SHOULD THE STRUCTURE BE HALTED?

A. Dam Structure Itself

When the panel issued its opinion, the structure had risen to the 1,533 elevation level on the left side of the diversion outlet structure in the center. On the right side, the elevation had reached only 1,500 feet. Resumption of the structure could not begin — for reasons explained below — until sometime in the fall, most probably in late October, 1987. Thus, if no further work were allowed, and if fall and winter rain and snow were great enough, the gap on the right side would likely present flood danger downstream since only a small coffer dam on the right side would stand to restrain the water accumulating upstream.

At this point, "RCC" (roller compacted concrete) must be explained, since this is an RCC structure. Use of this method is cheaper and speedier. When employed correctly, it is equally safe as conventional concrete. RCC operations involve a continuous flow of concrete by which a fleet of trucks deliver and deposit it at a rate of up to 900 cubic yards per hour. As RCC is deposited, giant bulldozers spread it out so that the surface is built up in roughly 3 foot increments. Roller machines smooth and compact it so that, in effect, a succession of layers are deposited, somewhat like a chef preparing a multi-layer cake. RCC application (and pouring) is not a summertime thing. Hot weather effects allow stresses to develop which cause unacceptable cracking within the dam structure. Also, it is more difficult during hot weather to maintain desirable workability preventing proper consolidation of RCC. As a consequence, RCC operations ended in late May. They would not have resumed until about late October even in the absence of the June 23 ruling.

It was in this setting that I had asked the Corps to present and to evaluate several alternatives for me to consider. The Corps responded in the form of a submission filed July 28, 1987, along with relevant photographs which had been shown during the July 18 visit to the site.

The alternatives presented were as follows:

a) An immediate shutdown of all project-related activities and the termination of all contracts;

b) Partial completion of the dam to the 1,545 foot level and appurtenant works, but full completion of the fish facility;

c) Full completion of the dam, appurtenant works, and fish collection facility without reservoir clearing and filling;

d) Full completion and operation of the project and fish collection facility as currently scheduled.

P. 8, July 27 Alternatives.

Partial completion alternatives were the subject of discussion among Messrs. Steinkamp (project engineer); Schroeder (plaintiffs' expert) and Beeman (court's expert) during their site inspection on August 11. At that time, those gentlemen discussed three separate possibilities: a) raising the elevation to 1,533 on the right side; b) raising the elevation to 1,545 for the full structure, or c) raising the elevation to 1,563 for the full structure. Under (b) a spillway could be installed which would be located in the same position as that planned for full completion, i.e., aligned with the spillway basin immediately downstream. At this level, however, its depth would be only 12 feet, reducing sharply its capacity to allow a safe method of carrying water downstream in the event of unusually heavy runoff. Under (c) a spillway 30 feet high would be created; this would allow for the same discharge capability as would exist upon full completion to the 1,729 foot elevation.

It was out of this discussion that Beeman's recommendation emerged. (Beeman offered his tentative views at the August 14 hearing, and furnished a written recommendation to the parties and to me dated August 24.) I commend these three gentlemen for a helpful discussion which was professional, and purged of partisanship to the maximum extent possible, even though Steinkamp and Schroeder necessarily were partisans in a sense. I am deeply grateful to all of them for their help.

As shown elsewhere, I find and hold that injunctive relief which is "appropriate" is to allow the Corps to continue construction of the structure so as to bring it to the 1,563 foot elevation as soon as the contractor can resume RCC operations this fall. Further elevation of the structure will not be permitted until NEPA requirements are met. I believe this furnishes a margin of safety so as to avoid disaster downstream if the runoff is unusually heavy. It balances, as best I can, the interests of the plaintiffs under NEPA; it reduces serious dislocation, at least until probably late November or mid-December, for the contractor and its employees.

B. Soils Issues

There are three soils issues: erosion of soils in the reservoir, backfilling the key trench, and excavation of the rock "nose." In reviewing these issue I distinguish between those matters that will be influenced by my injunction and those that would exist regardless of action taken by the Court of Appeals or me.

Under the Corps' plan for dam construction, and absent injunctions from the courts, there would be weathering of exposed soils and a potential for erosion in the area upstream this winter. Allowing the dam to be constructed to a level of 1,563 feet will not produce substantially different conditions this winter than would otherwise have been the case because the reservoir would not have been controlled until the fall of 1988. The adverse results of draw-down that were brought to my attention will occur over the long-term rather than the short-term. If this case is in an uncertain setting one year from now, the condition of soils in the reservoir should be revisited. Any decision regarding the exposed slopes upstream of the dam can be made then.

Excavation of the key trench resulted in detectable movement of soil in the right abutment. Allowing the dam to be constructed to a level of 1,563 feet will fill much of the key trench thus reducing this downstream movement. If the Corps deems it necessary to backfill the remainder of the key trench, it is permitted to do so. However, I specifically reject the Corps proposal to cover the entire foundation with a twenty-foot blanket of concrete.

According to Mr. Beeman, court expert, the question of continued movement of soils in the right abutment and in the area above in the direction of the valley, thus threatening the diversion and regulating outlets, is one that remains irrespective of dam completion alternatives. If the Corps concludes this is a problem, the Corps is permitted to take whatever mitigation measures it deems appropriate. Similarly, the condition of the rock "nose" is to be evaluated by the Corps and the Corps is permitted to take whatever mitigation measures it deems appropriate in light of my dcision to allow dam construction to a level of 1,563 feet.

Although the Corps is in a better position than I to evaluate the necessary mitigation work, I anticipate it could include some excavation of the slope in the direction of the valley to reduce slide potential. I share the opinion of Mr. Beeman that this work, if shown to be required to prevent a slide, is in the best interest of all parties regardless of the completion or noncompletion of the dam.

C. Quarrying Issues

On July 22 I...