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Oregon Natural Resources Council v. Marsh

ELR Citation: 25 ELR 20885
Nos. Nos. 93-36122, 94-35370, 52 F.3d 1485/(9th Cir., 04/21/1995) EIS held inadequate, attorney fees denial rev'd in part

The court holds that the U.S. Army Corps of Engineers (the Corps) failed to comply with a prior court order directing it to prepare a second environmental impact statement supplement (EISS-2) addressing the cumulative environmental impacts of Elk Creek Dam and two other dams in the Rouge River Basin, Oregon. The court first holds that the Corps read the court's order too narrowly by limiting its environmental analysis to the dams' cumulative impacts on water temperature and turbidity. The court mentioned those factors in its order as examples, demonstrating the Corps' failure to discuss cumulative impacts at all. The Corps should have discussed in EISS-2, at a minimum, all those areas that it discussed in the original environmental impact statement (EIS) and its first supplement (EISS-1), and analyzed how Elk Creek Dam in combination with the other two dams would affect those factors. The court next holds that the Corps' erroneously narrow interpretation detrimentally affected the scope and quality of EISS-2's cumulative impact analysis. The Corps analyzed only the issue of water quality, measured only in terms of temperature and turbidity; discussed additional factors only if they were raised as concerns during the scoping process; and refused to broaden the scope of its analysis when concerns were raised during the public comment period. The court holds that the Corps cannot forever omit a factor from an EIS solely because the factor was not raised as a concern during the scoping process. An agency preparing an EIS has a duty to assess, consider, and respond to all comments, and the mere fact that the comment raises concerns not mentioned during the scoping process does not establish that it warrants no further discussion. To hold otherwise would undermine the National Environmental Policy Act's (NEPA's) purpose of ensuring well-informed government decisions and stimulating public comment on agency actions. The court next holds that EISS-2 omits issues of critical importance, in particular, Elk Creek Dam's effects on the Rogue River's wild coho and summer steelhead populations. Elk Creek provides valuable spawning and rearing habitat for these species; however, EISS-2 does not discuss the effect of losing this habitat on these populations and on fisheries beyond the Rogue River Basin. Although EISS-2 includes the fact that few wild coho still spawn in the part of the Basin where Elk Creek Dam is located, discussing the decline of the wild coho in Elk Creek is not a substitute for disclosing that the state of Oregon has classified the species as "sensitive" for the Rogue River Basin as a whole. The court holds that the scarcity of wild coho in Elk Creek renders a discussion of the dams' effects on fish more imperative, not less. The court holds that because EISS-2 does not comply with the court's mandate, the Corps must prepare an additional EIS supplement discussing the impact of Elk Creek Dam in conjunction with the other Rogue River Basin projects, with regard not just to those factors the court specifically identifies, but to all environmental factors essential to an informed agency decision.

The court next turns to the citizen group plaintiff-appellants' appeal of the district court's denial of their request for attorney fees. The court holds that the district court correctly held that the groups were not prevailing parties on their claims that the Corps should have discussed the effectiveness of the proposed mitigation measures and that scientific uncertainty existed with regard to the impact of Elk Creek Dam on turbidity. On appeal of the court's order to prepare EISS-2, which included its decisions on these issues, the U.S. Supreme Court reversed the court's holding on the mitigation issue as erroneous. And the court reached the issue of scientific uncertainty only because it applied an inappropriate legal standard. The court next holds that the district court abused its discretion in holding that the Corps' position on the issue of cumulative impacts was substantially justified. The court's holding that the Corps completely omitted an area of analysis that NEPA's implementing regulations clearly require establishes that the Corps' position was not substantially justified. Further, the district court erred to the extent it based its decision on its belief that the Corps was required to prove substantial justification only with regard to the two deficiencies the court specifically identified. The court holds that the district court also erred in holding that the Corps could reasonably have concluded that EISS-1's reference to 1974 and 1979 water quality studies, which discussed the effects of one of the other dams on water quality, adequately addressed the cumulative impact of the Rouge River Basin projects on water quality. The language in the Supreme Court opinion on which the Corps relies is taken from the Court's summary of the background of the appeal and carries no indication that it intended to undermine this court's holding. The court thus affirms the district court's denial of attorney fees on the issues of mitigation of impacts and scientific uncertainty, and reverses the denial of fees on the issue of cumulative impacts.

[Other decisions in this litigation are published at 16 ELR 20465 and 20826, 18 ELR 20321 and 20033, 19 ELR 20749, and 22 ELR 20897.]

Counsel for Plaintiffs
Neil S. Kagan
534 SW Third Ave., Portland OR 97204
(503) 223-4272

Counsel for Defendants
Vicki L. Plaut
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Fletcher, Nelson, and Rymer, JJ.: