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Oregon Natural Resources Council v. Marsh

ELR Citation: 18 ELR 20033
Nos. No. 85-6433-BU, 677 F. Supp. 1072/26 ERC 1478/(D. Or., 08/31/1987) On remand

The court determines the appropriate extent of an injunction against further construction of the Elk Creek Dam in Oregon pending the Corps of Engineers' compliance with the National Environmental Policy Act (NEPA). The 9th Circuit had held that the Corps' wildlife mitigation plan was incomplete, new information had been acquired since the original environmental impact statement (EIS) was prepared, and the Corps had failed to include a worst case analysis. The court remanded the case to this court for determination of appropriate injunctive relief. The district court first allows the Corps to continue construction of the dam up to 1,563 feet, but no higher, to avoid the possibility of flooding downstream. Currently, the structure is 1,533 feet on one side of the diversion outlet and 1,500 on the other. The court permits some slope excavation, should the Corps deem it necessary, to decrease the potential for slides, but rejects the Corps' proposal to cover the entire foundation with 20 feet of concrete. The court lifts its earlier injunction on quarrying activities. Once quarrying activities are completed, the quarry will be restored. Moreover, if the injunction remains in place, the walls of the quarry must be treated to prevent fracturing and instability of the rock formation and significant economic costs will be incurred.

The court holds that a fish collection facility downstream from the dam may be constructed, concluding that the facility is necessary to allow salmon and trout to reach their spawning grounds. The court orders the Corps to require the Oregon Department of Fish and Game to transport the collected fish upstream to their spawning grounds. The court enjoins any work on clearing of the reservoir area. Although the injunction will delay the availability of flood control benefits and increase the cost of the project, clearing the reservoir area would directly contradict the Ninth Circuit's ruling concerning significant new information regarding fish survivability and turbidity. Finally, the court holds that the probability of significant economic costs and administrative difficulties arising from the injunction are insufficient to balance the equities in favor of full completion of the project.

[The court of appeals' decision is published at 17 ELR 21024, and the federal government's petition for rehearing of that decision is digested at ELR PEND. LIT. 65963. Previous decisions from the district court appear at 16 ELR 20475 and 20826.]

Counsel for Plaintiffs
Gary K. Kahn
Reeves & Kahn
910 Oregon Nat'l Bldg., 610 SW Alder St., Portland OR 97205-3610
(503) 227-5144

Neil S. Kagan
300 Willamette Bldg., 534 SW Third Ave., Portland OR 97204

Counsel for Defendant
Thomas C. Lee, Ass't U.S. Attorney
U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101

Dorothy R. Burakreis
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5390