Oregon Natural Resources Council v. Marsh, Civ. No. 85-6433-BU

• Decision Date: 10 February 1994
• Docket Number: Civ. No. 85-6433-BU,92-1550-BU.
• Citation: 845 F. Supp. 758
• 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. OREGON NATURAL RESOURCES COUNCIL, et al., Plaintiffs, 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, et al., Defendants.
• Court: U.S. District Court — District of Oregon

845 F. Supp. 758

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.

OREGON NATURAL RESOURCES COUNCIL, et al., Plaintiffs, 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, et al., Defendants.

Civ. Nos. 85-6433-BU, 92-1550-BU.

United States District Court, D. Oregon.

February 1, 1994.

As Amended February 10, 1994.

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Neil S. Kagan, Portland, OR, for plaintiffs.

Brian L. Ferrell, U.S. Dept. of Justice, Environmental and Natural Resources Div., General Litigation Section, Washington, DC, Thomas C. Lee, U.S. Atty., Portland, OR, for defendants.

Opinion and Order

JAMES M. BURNS, Senior District Judge.

This dam case is back again. Its progress through the judicial system has resulted in less than half a dam, and, as the caption reflects, a second lawsuit. Plaintiffs seek mandatory injunctive relief ordering the removal of the partially completed dam from Elk Creek. Defendants seek dissolution of the present injunction so that further planning, design, and, ultimately, construction can go forward. Their motions are pending in the older case, Oregon Natural Resources Council v. Marsh, (Marsh). Both sides move for summary judgment under Rule 56(c) and the same injunctive relief in the newer case, Oregon Natural Resources Council v. Harrell (Harrell).

I. FACTUAL BACKGROUND

For a more complete history, readers may consult one or more of the opinions offered earlier in this case, some of which are cited below. Initially, I found and held that the Corps of Engineers had taken the required "hard look" for NEPA purposes. That was almost eight years ago, in the spring of 1986, when I denied plaintiffs' request for a preliminary injunction. Oregon Natural Resources Council v. Marsh, 628 F.Supp. 1557 (D.Or. 1986).

I knew plaintiffs intended to appeal. Therefore, I granted them a short stay to apply to the Ninth Circuit for a stay pending appeal. A panel of the Court of Appeals denied plaintiffs' motion for a stay, and construction of the dam began.

A little over a year later, a different panel of the Court of Appeals found that the Corps had not properly done its NEPA job. The appellate reversal carried with it directions for me to issue an injunction appropriate to the mid-construction circumstances. Oregon Natural Resources Council v. Marsh, 832 F.2d 1489 (9th Cir.1987). Accordingly, I issued an injunction requiring the Corps to halt construction before the dam was completed. Oregon Natural Resources Council v. Marsh, 677 F.Supp. 1072 (D.Or.1987). In accordance with my ruling, the Corps closed down the project when the dam structure reached a height of 1,563 feet. This is approximately one third of the planned height of the dam.

Neither side appealed my injunction. However, defendants sought review in the Supreme Court of the ruling by the Court of Appeals on all but one of the NEPA issues. For reasons that still continue to baffle me, the Justice Department lawyers saw fit not to ask for review of the so-called "cumulative impacts" issue. Almost exactly one year after the ruling of the Court of Appeals, the Supreme Court granted certiorari. Robertson v. Methow Valley Citizens Council, 487 U.S. 1217, 108 S.Ct. 2869, 101 L.Ed.2d 905 (1988). Just about a year later, the Supreme Court reversed the Court of Appeals on all the issues presented in the appeal. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), companion case Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).¹

On February 22, 1990, pursuant to the order from the Court of Appeals, I modified the injunction, prohibiting further construction until the Corps had supplemented its Environmental Impact Statement consistent with the opinions of this court, the Court of Appeals, and the Supreme Court. The net result of those opinions was the Ninth Circuit ruling requiring the Corps to supplement the discussion of cumulative impacts, the issue which had not been appealed to the Supreme Court.

The Corps issued its second supplement to the Environmental Impact Statement (Second EISS) on May 1, 1991. The Division Engineer ("Harrell") issued the final Record of Decision ("ROD") on January 24, 1992, selecting the NCP or "no conservation pool" alternative operating mode. Based on completion of the Second EISS, the Corps moved for dissolution of the injunction on July 22, 1992.²

Meanwhile, the Secretary of the United States Department of Agriculture, acting through Regional Forester Lowe ("Forest Service" or "Lowe") of the United States Forest Service, and the Secretary of the United States Department of the Interior, acting through Director Bibles of the United States Bureau of Land Management ("BLM" or "Bibles"), jointly prepared a "Section 7(a) determination" under the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. § 1278. The Forest Service and BLM issued the Section 7(a) determination on November 5, 1992. In it, they concluded that the partially completed Elk Creek Dam project unreasonably diminishes fishery resources in the Rogue River, a designated Wild and Scenic River under WSRA. They found that the project would continue to unreasonably diminish the WSRA values of the Rogue River if it is completed and operated in the NCP operating mode as presently designed.

II. STANDARDS

A. SUMMARY JUDGMENT

The court should grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party must show that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party meets its burden, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. 477 U.S. at 322-23, 106 S.Ct. at 2552.

B. INJUNCTIVE RELIEF

To obtain injunctive relief, the moving party must show irreparable injury and inadequacy of legal remedies. Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987); Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.1988). For a preliminary injunction, the moving party must show either probable success on the merits and the possibility of irreparable injury or serious questions on the merits and the balance of hardships tipping sharply in its favor. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1975); United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987); Half Moon Bay Fishermans' Marketing Asso. v. Carlucci, 857 F.2d 505, 507 (9th Cir.1988); Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir.1986). These two formulations are points on a continuous scale in which the moving party must show a greater likelihood of irreparable harm as its probability of success decreases. Odessa Union Warehouse Co-op, 833 F.2d at 174; Benda v. Grand Lodge of International Asso. of Machinists & Aerospace Workers, 584 F.2d 308, 314-15 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). The test for a permanent injunction is essentially the same except actual success on the merits must be shown. Sierra Club v. Penfold, 857 F.2d at 1318.

III. DISCUSSION

A. NEPA

NEPA was enacted as a national policy to accomplish significant substantive environmental goals set forth in 42 U.S.C. § 4321. It imposes upon agencies essentially procedural duties to insure fully informed and well considered decisions on proposed actions with environmental consequences. See 42 U.S.C. § 4332; Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433 (1980). These procedural duties are implemented by regulations promulgated by the Council on Environmental Quality ("CEQ"), 40 C.F.R. § 1500-08. They include and govern the preparation of an EIS when a proposed action may significantly affect the environment. 42 U.S.C. § 4332(2)(c); 40 C.F.R. § 1502.3; LaFlamme v. FERC, 945 F.2d 1124, 1128 (9th Cir.1991).

The role of the court in this scenario is to determine whether the EIS was prepared in accordance with these procedural requirements. 5 U.S.C. § 706(2)(D); Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir.1974) (en banc). The court must make a pragmatic judgment whether the form, content, and preparation of the EIS indicates that the agency has taken a "hard look" at the environmental consequences of its proposal. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976); California v. Block, 690 F.2d 753, 761 (9th Cir.1982). Reexamination of questions of policy, appropriately left to Congress, is beyond the role of the court. Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219. Likewise, it is not the court's role to substitute its judgment of the probable environmental consequences of a proposed action for that of the agency. Kleppe v. Sierra Club, 427 U.S. at 410 n. 21, 96 S.Ct. at 2730 n. 21.

Accordingly, my role is simply to employ a "rule of reason" that inquires whether the EIS, including both supplements, contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. Marsh v. Oregon Natural Resources Council, 490 U.S. at 373, 109 S.Ct. at 1859; California v. Block, 690 F.2d at 761; Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974).

1. THE CUMULATIVE IMPACTS ANALYSIS ON REMAND IN MARSH

The "cumulative...