County of Josephine v. Andrus

No. 81-34 (D. Or. January 15, 1981)

The court grants a temporary restraining order preventing the Department of the Interior from including five rivers in northern California within the National Wild and Scenic Rivers System until plaintiffs are included in the evaluation process required by the National Environmental Policy Act (NEPA). The court orders that pursuant to NEPA defendant must hold hearings in Oregon, prepare a draft environmental impact statement (DEIS) which properly identifies and evaluates the impact of proposed action within the state, and circulate the DEIS to interested parties for comment.

Counsel for Plaintiffs
William F. Martson Jr., Bruce C. Berning
Tonkon, Torp, Galen, Marmaduke & Booth
1001 SW Fifth Ave., Portland OR 97204
(503) 221-1440

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
620 SW Main St., P.O. Box 71, Portland OR 97207
(503) 221-2101

[11 ELR 20178]

Burns, J.:

Temporary Restraining Order

This matter came on for hearing on January 14 and 15, 1981 upon the application of plaintiffs for a temporary restraining order. Plaintiffs appeared by and through their attorneys William F. Martson, Jr. and Bruce G. Berning of Tonkon, Torp, Galen, Marmaduke & Booth. Defendants appeared by and through their attorney Thomas C. Lee, Assistant United States Attorney for the District of Oregon.

[11 ELR 20179]

IT APEARING to the Court that a complaint has been filed herein by the plaintiffs against defendants which seeks a declaration of the rights of the parties and injunctive relief which would, among other things, prohibit the defendants from including, pursuant to California Governor Brown's request, five rivers in Northern California within the National wild and scenic rivers system.

IT FURTHER APPEARING that there is an excellent chance that plaintiffs will prevail on their claim that defendants have flagrantly and deliberately ignored the procedures mandated by the National Environmental Policy Act "NEPA" (42 U.S.C. § 4321 et seq.), and the implementing regulations (40 C.F.R. § 1500 et seq.) in that plaintiffs and other affected and interested residents of the State of Oregon have been virtually excluded by defendants from the NEPA process and that the Environmental Impact Statement is materially defective in that it failed to identify and evaluate the impact of the proposed action in the State of Oregon.

IT FURTHER APPEARING that plaintiffs have demonstrated, in light of their excellent chance of success, sufficient danger of irreparable harm to justify the issuance of this Order.

IT FURTHER APPEARING that defendants have failed to make any showing of any harm other than political harm, should this Order issue.

IT FURTHER APPEARING that the NEPA process was truncated by defendants for political reasons and that they failed to address the public interest.

IT IS HEREBY ORDERED, that as of 10:55 a.m. Pacific Standard Time on January 15, 1981, defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise, and each of them, are temporarily restrained from exercising their authority under 16 U.S.C. § 1271 et seq. so as to include, pursuant to California Governor Brown's request, the Klamath, Trinity, Smith, Eel or Lower American Rivers, or any of them or any part of any of them within the National wild and scenic rivers system pursuant to 16 U.S.C. § 1271 et seq. until such time as the State of Oregon, plaintiffs Josephine, Douglas, Klamath and Curry Counties, plaintiffs SORA, NWTA and Rough & Ready Lumber Co. and other interested citizens of the State of Oregon are included in the evaluation process required by the National Environmental Policy Act 42 U.S.C. § 4321 et seq. and the regulations promulgated by the Council of Environmental Quality found at 40 C.F.R. § 1500.1 et seq. This process shall include, but not be limited to, the inclusion of the State of Oregon, plaintiffs Josephine, Douglas, Klamath and Curry Counties and plaintiffs SORA, NWTA and Rough & Ready Lumber Co., at least, in the scoping process; the holding of hearings within the State of Oregon; the preparation of a draft Environmental Impact Statement (DEIS) which properly identifies and evaluates the impact of the proposed action on Oregon; and the circulation of that DEIS to the State of Oregon, plaintiff Counties, the other plaintiffs and other interested citizens in the State of Oregon for comment.

IT IS FURTHER ORDERED, that the defendants appear before this Court on January 26, 1981 at 9:15 a.m. and then and there show cause, if any there be, why a preliminary injunction should not be issued during the pendency of this action.