Oregon Natural Resources Council v. Marsh

Decision Date24 November 1987
Docket NumberNo. 86-3670,86-3670
Citation832 F.2d 1489
Parties18 Envtl. L. Rep. 20,321 OREGON NATURAL RESOURCES COUNCIL, Oregon Guides and Packers Assn., Inc., Rogue Flyfishers, Inc., and Rogue River Guides Assn., Plaintiffs-Appellants, v. John O. MARSH, Jr., in his Official Capacity as Secretary of the United States Department of the Army, and Elvin R. Heiberg, III, in his Official Capacity as Chief of Engineers of the United States Department of the Army, Defendants- Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Neil S. Kagan, Portland, Or., for plaintiffs-appellants.

Dorothy R. Burakreis, Washington, D.C., and Laura Frossard, Washington, D.C., for defendants-appellees.

James H. Boldt, Grants Pass, Or., for amicus curiae Josephine County.

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

Before WALLACE, FERGUSON and NORRIS, Circuit Judges.


FERGUSON, Circuit Judge:

Plaintiffs, the Oregon Natural Resources Council, Oregon Guides and Packers Association, Rogue Flyfishers, Inc., and Rogue River Guides Association ("Resources Council"), appeal the denial of an injunction to stop construction by the United States Army Corps of Engineers ("Corps") of a dam on Elk Creek in Southern Oregon. The Resources Council contends that the Corps' final supplemental environmental impact statement ("EIS") for the dam project fails to comply with the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 853 (1970) (codified at 42 U.S.C. Sec. 4332) ("NEPA"). We affirm in part and reverse in part.


Elk Creek is a tributary of Oregon's Rogue River. The Rogue was one of eight rivers in the nation designated as "wild and scenic" in the Wild and Scenic Rivers Act of 1968, Pub.L. No. 90-542, 82 Stat. 906 (1968) (codified at 16 U.S.C. Sec. 1271 et seq.). The Rogue is known nationally for its white-water rafting and fly-fishing.

In 1962, Congress authorized construction of three dams to control flooding of the Rogue River Basin: Elk Creek Dam, Applegate River Dam, and Lost Creek Dam. The latter two dams are completed. The Elk Creek project consists of a proposed concrete dam 249 feet high and 2,580 feet long. The reservoir behind the proposed dam would collect runoff from most of Elk Creek's watershed and cover 1,290 acres of land.

In 1971, the Corps filed a final EIS for the Elk Creek Project. In 1975, after studying the projected effects of the dam on turbidity 1 in the Rogue River, the Corps filed a draft supplemental EIS. Construction of the project was suspended until completion of further water quality studies.

In 1980, the Corps filed a revised draft supplemental EIS, which included turbidity and temperature projections based on the Corps' observations of turbidity caused by the Lost Creek Dam during the year 1977 and the Corps' computer simulation models. Several state and federal agencies criticized the Corps' turbidity analysis on the ground that rain runoff levels during 1977 were the lowest on record in the area. The Corps placed these critical comments, and its responses to them, in a separate section, and released the aggregate as its final supplemental EIS.

The Resources Council 2 then brought this action in federal district court for a temporary restraining order, a preliminary injunction, and a permanent injunction to stop construction of Elk Creek Dam. The Resources Council argued that the final supplemental EIS failed in several ways to comport with the requirements of the NEPA and regulatory guidelines of the Council on Environmental Quality. The Resources Council also contended that the Corps was required to prepare a new supplemental EIS because of new information. The district court found the final supplemental EIS adequate and denied the requested relief. The Corps has since awarded contracts for relocation of roads and utilities and for construction of the dam.


The Resources Council contends that the final supplemental EIS violates the NEPA procedural standards and the Council on Environmental Quality guidelines in six respects. The district court held that the environmental impact statement comported with these standards. We review de novo the district court's determination of whether the EIS is reasonably thorough in discussing the significant aspects of the probable environmental impact of the proposed agency action. Enos v. Marsh, 769 F.2d 1363, 1372 (9th Cir.1985) (applying a "rule of reason"). Purely factual findings are, of course, reviewed for clear error. Id.

We thus endeavor to determine whether the final supplemental EIS satisfies the two purposes of an EIS: (1) to provide decisionmakers with enough information to aid in the substantive decision whether to proceed with the project in light of its environmental consequence; and (2) to provide the public with information and an opportunity to participate in gathering information. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1056 (9th Cir.1985); California v. Block, 690 F.2d 753, 761 (9th Cir.1982) (the "form, content and preparation [of the EIS] foster both informed decision-making and informed public participation"); 40 C.F.R. Sec. 1502.1 (purpose of EIS is to "provide full and fair discussion of significant environmental impacts and ... [to] inform the decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts ...").

First, the Resources Council contends that the final supplemental EIS is deficient because it fails to discuss adequately ways to mitigate adverse environmental impacts of the project. Specifically, the Resources Council claims that the mitigation plan for wildlife contains neither a detailed analysis of mitigation measures nor an explanation of how effective those measures would be. We agree, and reverse for further proceedings on this issue.

An EIS must include a discussion of measures to mitigate adverse environmental impacts of the proposed action. 40 C.F.R. Sec. 1502.16(h). As long as significant measures are undertaken to mitigate the project's effects, the measures need not compensate completely for adverse environmental impacts. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985). The mere listing of mitigation measures, however, is insufficient to satisfy the NEPA requirements. Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 697 (9th Cir.1986). Moreover, the EIS must analyze the mitigation measures in detail and explain the effectiveness of the measures. See id.

Here, the mitigation plan for wildlife is not yet fully developed. The mitigation plan, published in 1980, states: "Measures to compensate project-caused loss of wildlife habitat associated with reservoir construction will be developed, based upon the results of the wildlife compensation plan currently underway at Applegate Project and recommendations of Oregon Department of Fish and Wildlife and the U.S. Fish and Wildlife Service." No mitigation plan had been finalized as of January 1986. We fail to see how mitigation measures can be properly analyzed and their effectiveness explained when they have yet to be developed.

Moreover, the mitigation measures set forth in the final supplemental EIS are inadequate to satisfy the Council on Environmental Quality guidelines. The mitigation plan for wildlife, in its entirety, states:

The compensation [for project-caused loss of wildlife habitat] would be accomplished by managing selected lands to increase the quality of habitat and therefore its carrying capacity for wildlife. The management would consist of a number of habitat manipulative techniques in conjunction with other land uses, landscaping at the project, and development of recreation sites. Specific habitat development measures would be oriented toward development of palatable browse plants, creation of "edge," maximizing foliage height diversity in certain areas, and creation of snags in the reservoir. This compensation plan will be developed in coordination with Federal and state resource agencies.

This plan lists general measures to mitigate the impact of the project on wildlife. The plan refers to "habitat manipulative techniques," but fails to specify which techniques will be used. It also fails to identify any of the "specific habitat development measures" that would be utilized to develop palatable browse plants, create "edge," maximize foliage height diversity, or create snags in the reservoir. More important, there is no analysis of the mitigation measures listed, or any estimation of how effective the measures will be.

The importance of the mitigation plan cannot be overestimated. It is a determinative factor in evaluating the adequacy of an environmental impact statement. Without a complete mitigation plan, the decisionmaker is unable to make an informed judgment as to the environmental impact of the project--one of the main purposes of an environmental impact statement. See Citizens for a Better Henderson, 768 F.2d at 1056.

Because the wildlife mitigation plan here merely lists measures to be used and includes neither an analysis nor an explanation of effectiveness, it is inadequate to satisfy the NEPA or Counsel on Environmental Quality mitigation guidelines. See Northwest Indian Cemetery Protective Ass'n, 795 F.2d at 697.


The Resources Council also contends that the Corps violated the NEPA by failing to prepare a new supplemental EIS taking into account new information acquired since the 1980 EIS. We agree, and remand for further proceedings on this issue as well.

A federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions after release of an EIS. Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1463 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). The agency must supplement the EIS if "...

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