Oregon Natural Resources Council v. Marsh

• Decision Date: 03 March 1986
• Docket Number: Civ. No. 85-6433-E.
• Citation: 628 F. Supp. 1557
• 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

628 F. Supp. 1557

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-E.

United States District Court, D. Oregon.

March 3, 1986.

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Neil S. Kagan, Roseburg, Or., for plaintiffs.

Charles H. Turner, U.S. Atty., Thomas C. Lee, Asst. U.S. Atty., John R. Seeronen, Asst. District Counsel, Army Corps of Engineers, Portland, Or., Dorothy R. Burakreis, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

OPINION AND ORDER

JAMES M. BURNS, District Judge.

I. INTRODUCTION

Oregon Natural Resources Council (ONRC) brought this action to enjoin the Corps of Engineer's (Corps) construction of a dam at Elk Creek in the Rogue River Basin in Southern Oregon. ONRC sought a preliminary injunction; the Corps opposed this motion, and also responded with a motion for summary judgment.

ONRC initially charged the Corps with violating both the National Environmental Policy Act (NEPA) and the Wild and Scenic Rivers Act (WASRA).¹ Prior to the hearing on the motion for preliminary injunction, ONRC withdrew its WASRA claim.² At issue here, therefore, is only whether the Corps violated the requirements of NEPA in the preparation of its Final Environmental Impact Statement Supplement (FEISS) on the Elk Creek project.

A hearing was held on January 16, 1986 at which, after testimony was taken and oral argument had, I gave a brief oral opinion denying ONRC's motion for preliminary injunction. I advised the parties I would issue a written opinion addressing both ONRC's motion for preliminary injunction and the Corps' motion for summary judgment.

FACTS

The parties have thoroughly canvassed the facts (largely undisputed) of this case. The voluminous administrative record also contains a detailed accounting of the facts.³ It is, therefore, unnecessary to review the facts in detail for either party's benefit. Any reader desiring more detail may consult the entire record filed with the court.

Briefly, the construction of the Elk Creek Dam was authorized in 1962 as part of a three dam Rogue River Basin project. The project's primary purpose was to control flooding in the Rogue River Basin in Southern Oregon. The other two dams, Lost Creek Dam and Applegate Dam, have already been completed.

The Corps completed an Environmental Impact Statement (EIS) on the Elk Creek dam in 1971. After conducting further studies on the turbidity potential of the proposed construction the Corps drafted a supplemental (EISS) in 1975. However, because of controversy over the environmental effects of the project the Governor of Oregon withdrew the state's support and requested that work be suspended until the Corps could evaluate the effects of the Lost Creek dam on the water quality in the Rogue River. The 1975 draft EISS was never finalized.

After studying the water quality effects of the Lost Creek Dam, the Corps prepared another draft EISS in 1980. After public comment and response, that EISS was finalized (FEISS) in December, 1980.

In February, 1982 the Corp issued a Record of Decision for the Dam's construction, subject to Congressional authorization. A § 404 Water Quality study was conducted and completed in October, 1983.⁴ Also during that year the dam's structure was redesigned to lower the anticipated water temperatures. An Environmental Assessment (EA), Finding of No Significant Impact (FONSI), and a Supplemental Information Report (SIR) were completed on those changes.

Despite the Division Engineer's Decision of Record recommending construction of the dam, the Corps did not seek funding for it. Nevertheless, in August, 1985, after five years of extensive testimony (before the relevant committees) and study regarding Elk Creek, Congress appropriated moneys and directed the Corps to build the dam.⁵ ONRC then filed this suit to enjoin the dam's construction.

II. DISCUSSION—PRELIMINARY INJUNCTION STANDARDS

This circuit has adopted two alternative tests to determine whether a preliminary injunction should be issued:

The first test requires that a court find 1) the moving party will suffer irreparable injury if the injunctive relief is not granted; 2) there is a substantial likelihood that the moving party will succeed on the merits; 3) in balancing the equities the nonmoving party will not be harmed more than the moving party is helped; and 4) granting injunctive relief is in the public interest.... The second test requires the moving party to demonstrate either 1) a combination of probable success on the merits and the possibility of irreparable harm; or 2) that serious questions are raised and the balance of hardships tips sharply in his favor.

City of Tenakee Springs v. Block, 778 F.2d 1402, 1407 (9th Cir.1985).

Under either test ONRC must establish a likelihood, or at least serious questions, that the Corps violated NEPA requirements in preparing its final EIS.

"The purpose of NEPA is to assure that federal agencies are fully aware of the impact of their decision on the environment." Friends of the Endangered Species v. Jantzen, 760 F.2d 976, 985 (9th Cir.1985). To satisfy this purpose, NEPA requires that federal agencies undertaking projects with significant environmental consequences must identify and discuss all those foreseeable environmental consequences in an EIS. 42 U.S.C. § 4332.⁶

An EIS serves two basic purposes. It a) "should provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences" and b) "the impact statement should provide the public with information on the environmental impact of a proposed project as well as encourage public participation in the development of that information." Trout Unlimited, Inc. v. Morton, 509 F.2d 1276 (9th Cir.1974).

In reviewing an agency's compliance with NEPA I am required to

employ a "rule of reason" that inquires whether an EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences." Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). This standard is not susceptible to refined calibration. It instead requires a reviewing court to make a pragmatic judgment whether the EIS's form, content and preparation foster both informed decision-making and informed public participation. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir.1977) (per curiam); Trout Unlimited, Inc., 509 F.2d at 1283. This standard of review, however, does not authorize a reviewing court to substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action. Once satisfied that a proposing agency has taken a "hard look" at the decisions environmental consequences, the review is at an end. 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).

In this case, to state it in over-simplified fashion, I should enjoin construction of Elk Creek Dam only if the Corps has not taken a "hard look" at it.

ONRC claims that the Corps has violated NEPA by 1) failing to consider the cumulative effects of the Rogue River Basin Project in a single EIS; 2) failing to adequately describe the area affected by the project; 3) failing to adequately describe the environmental consequences of the project; 4) failing to provide a clear basis for choice among reasonable alternatives; 5) failing to comply with their disclosure and research duties under the worst case analysis; and 6) failing to prepare a new supplemental EIS. ONRC's claims are all rejected.

A. Cumulative Impact

ONRC first claims that the Corps has not adequately considered the cumulative impact of the Elk Creek Dam in conjunction with the rest of the Rogue River Basin Project.

The cumulative impact is "the impact on the environment which results from the incremental impact of an action when added to the other past, present and foreseeable future actions regardless of what agency or person undertakes such actions." 40 C.F.R. § 1508.7. ONRC argues that the cumulative impacts of the three dam Rogue River Basin Project must now be considered in a single EIS. I disagree.

In a prospective project consisting of connected, dependent actions, a single EIS is necessary to adequately assess the cumulative impact of the entire project. See Northwest Indian Cemetery Protective Association v. Peterson, 764 F.2d 581 (9th Cir.1985). (EIS which did not address the cumulative effects of a proposed road construction project and related timber harvesting project on water quality was inadequate); and Thomas v. Peterson, 753 F.2d 754, (9th Cir.1985). (Where "timber sales cannot proceed without the road, and the road would not be built without the contemplated timber sales", EIS which did not address the cumulative impact of the two proposed projects was inadequate. Id. at 758.)

However, the Rogue River Basin Project is nearly complete. To retrospectively compile a single EIS on the entire project would be illogical.⁷ Rather, the more valuable tool in assessing the environmental consequences of the proposed Elk Creek Dam is an analysis of the cumulative impact of this dam when added to the existing components of the project. The Corps has done this.

The FEISS describes and analyzes the Elk Creek Dam as the third and final step in the Rogue River Basin Project. Integral to the description of the construction and operation of the Elk Creek portion of the project is its interrelationship with the other dams in the project. Likewise, the environmental impacts to the water quality, aquatic biology, wildlife and land use of the dam are analyzed in terms of the effects of the entire project. I am convinced that the Corps took a...