Oregon Natural Resources Council v. Harrell

• Citation: 52 F.3d 1499
• Decision Date: 21 April 1995
• Docket Number: Nos. 94-35302,94-35380,s. 94-35302
• Parties: , 25 Envtl. L. Rep. 20,893 OREGON NATURAL RESOURCES COUNCIL; Oregon Guides & Packers Association, Inc.; Rogue Flyfishers, Inc.; Waterwatch of Oregon, Inc.; and American Rivers, Inc., Plaintiffs-Appellants, v. Ernest J. HARRELL, in his official capacity as Commander and Division Engineer, North Pacific Division, Corps of Engineers, United States Department of the Army; John E. Lowe, in his official capacity as Regional Forester, Pacific Northwest Region, Forest Service, United States Department of Agriculture; and D. Dean Bibles, in his official capacity as State Director, Oregon/Washington, Bureau of Land Management, United States Department of Interior; Defendants-Appellees. OREGON NATURAL RESOURCES COUNCIL; Oregon Guides & Packers Association, Inc.; Rogue Flyfishers, Inc.; Waterwatch of Oregon, Inc.; and American Rivers, Inc., Plaintiffs-Appellees, v. Ernest J. HARRELL, in his official capacity as Commander and Division Engineer, North Pacific Division, Corps of Engineers, United States Department of the Army; John E. Lowe, in his official capacity as Regional Forester, Pacific Northwest Region, Forest Service, United States Department of Agriculture; and D. Dean Bibles, in his official capacity as State Director, Oregon/Washington, Bureau of Land Management, United States Department of Interior; Defendants, and United States of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1499

52 F.3d 1499

40 ERC 1970, 25 Envtl. L. Rep. 20,893

OREGON NATURAL RESOURCES COUNCIL; Oregon Guides & Packers

Association, Inc.; Rogue Flyfishers, Inc.;

Waterwatch of Oregon, Inc.; and American Rivers, Inc., Plaintiffs-Appellants, v. Ernest J. HARRELL, in his official capacity as Commander and Division Engineer, North Pacific Division, Corps of

Engineers, United States Department of the Army; John E.

Lowe, in his official capacity as Regional Forester, Pacific

Northwest Region, Forest Service, United States Department

of Agriculture; and D. Dean Bibles, in his official

capacity as State Director, Oregon/Washington, Bureau of

Land Management, United States Department of Interior;

Defendants-Appellees.

OREGON NATURAL RESOURCES COUNCIL; Oregon Guides & Packers

Association, Inc.; Rogue Flyfishers, Inc.;

Waterwatch of Oregon, Inc.; and American Rivers, Inc., Plaintiffs-Appellees, v. Ernest J. HARRELL, in his official capacity as Commander and Division Engineer, North Pacific Division, Corps of

Engineers, United States Department of the Army; John E.

Lowe, in his official capacity as Regional Forester, Pacific

Northwest Region, Forest Service, United States Department

of Agriculture; and D. Dean Bibles, in his official

capacity as State Director, Oregon/Washington, Bureau of

Land Management, United States Department of Interior; Defendants,

and

United States of America, Defendant-Appellant.

Nos. 94-35302, 94-35380.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 31, 1994.

Decided April 21, 1995.

Neil S. Kagan, Portland, OR, for plaintiffs-appellants-cross-appellees.

Vicki L. Plaut, Environment & Natural Resources Div., U.S. Department of Justice, Washington, DC, for defendants-appellees-cross-appellant.

Peter M.K. Frost, National Wildlife Federation, Portland, OR, for amicus curiae.

Appeal from the United States District Court for the District of Oregon.

Before: FLETCHER, NELSON, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

This is a companion case to Oregon Natural Resources Council v. Marsh (Marsh VII), 52 F.3d 1485 (9th Cir.1994). ¹ ONRC ² brought this action against Ernest J. Harrell, the Commander and Division Engineer of the Army Corps of Engineers (Corps), John E. Lowe, the Regional Forester of the United States Forest Service, and D. Dean Bibles, the Oregon/Washington Director of the Bureau of Land Management (BLM), ³ after Corps had completed the environmental review process on the proposed Elk Creek Dam by issuing a Record of Decision (ROD). This case raises issues under both the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. Sec. 1271 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321 et seq. As the factual background is fully set out in the Marsh opinions, we do not repeat it here.

The principal issue we must decide is whether Corps should have secured the consent under Sec. 7(a) of the WSRA, 16 U.S.C. Sec. 1278, of the Secretaries of Interior and Agriculture (through the BLM and the Forest Service), who administer the Wild and Scenic area of the Rogue River potentially impacted by the dam, before issuing the ROD or proceeding to request congressional appropriations for completing construction. The district court held that Corps had no duty to obtain a Sec. 7(a) determination before issuing the ROD, but that it was obliged to withdraw the ROD once the Secretaries determined that the dam unreasonably diminishes the fish values of the Wild and Scenic portion of the Rogue River and to refrain from further action prior to obtaining their consent. We hold that consent of the administering departments is not required for this project because it is congressionally authorized. Corps is not an authorizing agency in this case; as such, Corps' only obligations under Sec. 7(a) are to submit a report to Congress discussing adverse impacts and to give the Secretaries notice sixty days in advance of its intention to request appropriations, if and when it decides to make such a request. Therefore, we disagree with the district court's order requiring Corps to withdraw its ROD on account of the Sec. 7(a) determination and enjoining Corps from proceeding with the Elk Creek project until the consent of the Secretaries is secured.

However, the district court also found that the Second Environmental Impact Statement Supplement (EISS-2) did not adequately consider new information contained in the Sec. 7(a) determination, as well as in a 1991 report by the Endangered Species Committee of the American Fisheries Society (AFS). As Corps has not appealed this ruling, it will have to prepare an additional supplement or an explanation of why supplementation is not required. In either case the 1992 ROD is rendered inoperative, and we therefore leave in place the order that it be withdrawn.

Since the ROD is no longer effective, for prudential reasons we decline to reach ONRC's challenge to its adequacy. We likewise do not reach ONRC's contention that the district court erred in concluding that the Sec. 7(a) determination is not reviewable, or alternatively, was not arbitrary and capricious. As Corps has no obligation to seek the Secretaries' consent for this project, the Sec. 7(a) determination has no direct effect and acts only as new information which the district court has already held the Corps must consider.

Finally, ONRC appeals the denial by the district court of two forms of injunctive relief. The district court declined to mandate destruction of the dam or its spillway, which ONRC argues is necessary for salmon and steelhead trout survival. We affirm, as the court was within its discretion to deny such extraordinary relief on the record adduced. The court also refused to order preparation of a supplemental environmental impact statement (EIS), which we also affirm because the fact that new information is significant enough to require consideration does not necessarily mean that it is significant enough to require a supplemental EIS.

I

In 1962, Congress authorized the Corps to construct a system of three dams in Oregon, known as the Rogue River Basin Project. Two of the dams have been completed and are operational. The proposed Elk Creek dam was about one-third completed when further construction was enjoined as a result of our remand in Marsh II. Marsh III, 677 F.Supp. 1072 (D.Or.1987).

Elk Creek is a tributary to the Rogue River, about 55 miles upstream from a part of the river Congress designated as a "Wild and Scenic River" under Sec. 3 of the WSRA, 16 U.S.C. Sec. 1274(a)(5). Elk Creek supports wild salmon and steelhead trout runs, which migrate through the Wild and Scenic segment of the Rogue. Congress included the Rogue River in the Wild and Scenic Rivers System in 1968 to protect and enhance its "outstandingly remarkable" values, including the wild salmon and steelhead.

In 1971, Corps filed the final EIS with the Council on Environmental Quality (CEQ) for the Elk Creek portion of the project. The first supplemental EIS (EISS-1) was prepared in 1980, and Corps approved construction of the Elk Creek Dam in 1982. Following appropriation of construction funds by Congress in 1985, ONRC and others brought the Marsh action for alleged violations of NEPA. The district court ordered a second supplement in 1990, and in 1991 the Corps issued a final supplemental EIS (EISS-2). In December of 1991, ONRC asked the Corps to secure a Sec. 7(a) determination from the Secretaries of Interior and Agriculture, and on January 16, 1992 ONRC asked the Secretaries to determine whether the dam would unreasonably diminish the values of the Rogue River pursuant to Sec. 7(a). Harrell issued the ROD on January 24, 1992, reflecting the Corps' decision to go forward with construction of the dam, and adopting the "No Conservation Pool" operating alternative, where the dam would be used only for flood control, with the possibility of water conservation use at some time in the future pursuant to new environmental impact studies.

In November, 1992 the BLM and Forest Service jointly issued a Sec. 7(a) determination finding that

[t]he unfinished Elk Creek Lake dam results in unreasonable diminishment to the anadromous fisheries resource because of impediments to migration and some loss of spawning and rearing habitat. The condition of diminishment will continue until such time as successful fish passage is assured. In the NCP [No Conservation Pool] Alternative passage is assured only in concept. When the Corps of Engineers is able to complete and implement a system which effectively provides fish passage, the condition would not be considered unreasonable diminishment.

It concluded that

[t]he problem of fish passage at the dam causes the existing situation and the NCP Alternative, until fully mitigated, to unreasonably diminish the fisheries resource of the Rogue W & SR. In addition, elimination of high quality habitat immediately above the dam decreased potential for recovery of wild coho stocks in the Rogue River.

In light of this determination, ONRC demanded that Corps withdraw the ROD, but Harrell refused. This action ensued.

On cross-motions for summary judgment, the district court held that the Sec. 7(a) determination contains significant information that has not been considered adequately by Corps in the NEPA process, and remanded for Corps to consider information on extirpation of the coho and steelhead runs in the No Conservation Pool operating mode, the relationship between the potential extirpation of the Elk Creek fisheries and the viability of the Rogue River fisheries, fish passage and how it will affect the summer fisheries, feasibility of passage, spawning and rearing habitat in the area above the dam, and negative interactions of hatchery fish with native stocks. No appeal was taken from this part of the court's decision. ONRC appeals the district court's conclusion that the Corps did not have to obtain the Secretaries' consent before issuing the...