Northwest Environmental Defense Center v. Bratton

No. 81-180 (D. Or. April 14, 1981)

The court upholds the adequacy of an environmental impact statement (EIS) for a jetty rehabilitation project in Nehalem Bay, Oregon. Plaintiff sought a preliminary injunction halting the project, contending that the final EIS was iandequate under the National Environmental Policy Act (NEPA). The court finds that the EIS is in compliance with NEPA because it provides decision-makers and the public with adequate information on the environmental impacts of the project. Thus plaintiff did to establish a strong likelihood of success on the merits. The court also rules that defendants will suffer greater harm than plaintiff if the project is halted, that the public interest does not favor the issuance of a preliminary injunction, and that the motion is denied.

Counsel for Plaintiff
Nina Robert
408 SE Baseline, Hillsboro OR 97123
(503) 648-4126

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

Counsel for Defendant-Intervenors
Gregory H. Baum
Hermann & Smith
Suite 310, 610 SW Broadway, Portland OR 97205
(503) 224-4540

David W. Hantke
Johnson, Hantke & Tuthill
P.O. Box 272, 309 Laurel Ave., Tillamook OR 97141
(503) 842-2553

[11 ELR 20486]

Frye, J.:

Opinion and Order

Northwest Environmental Defense Center (NEDC) filed this action for injunctive and declaratory relief to prohibit defendants from rehabilitating the north and south jetties at Nehalem Bay, Oregon. NEDC contends the construction project will fill tidal lands, destroy both aquatic and bird habitats, and alter the navigational character of Nehalem Bay, resulting in increased commercialization of the Oregon coast.

In this motion for a preliminary injunction NEDC contends that the Final Environmental Impact Statement (FEIS) is iandequate under § 102(2)(C) of the National Environmental Policy Act (NEPA) because:

A. The Corps of Engineers' conclusion thatt jetty rehabilitation will result in reduced erosion at Nedonna Beach is not supported by references to relevant literature of field studies;

B. The FEIS does not adequately develop appropriate alternatives since it does not fully address the question of whether, given the development of other recreational areas on the coast, Nehalem Bay should be similarly developed or left as it is;

C. The FEIS fails to discuss the environmental impact of plans for future projects in the Nehalem Bay area;

D. The FEIS does not set forth in detail the basis for cost-benefit figures; and

E. The FEIS does not address the imapct of jetty rehabilitation on the incidence of boating accidents at the Bar.

In determining whether or not to grant plaintiff's request for a preliminary injunction, the court must consider these three factors:

1. Has the movant established a strong likelihood of success on the merits?

2. Does the balance of irreparable harm favor the movant?

3. Does the public interest favor granting the injunction?

Sierra Club v. Hathaway, 579 F.2d 1162, 1167 [8 ELR 20736] (9th Cir. 1978).

With regard to (1) above, an environmental impact statement is in compliance with NEPA when

. . . its form, content, and preparation substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information.

Trout Unlimited v. Morton, 509 F.2d 1276, 1283 [5 ELR 20151] (9th Cir. 1974)

The role of the court is to determine whether or not the defendants followed the procedures required by law in preparing the FEIS and whether or not the form and contends of the FEIS meet the above requirements. Without making a final decision and for [11 ELR 20487] the purposes of ruling on the motion for a preliminary injunction, this court finds that the FEIS comports with the law stated in Trout Unlimited v. Morton, Id. Therefore, plaintiff has nto established a strong likelihood of success on the merits.

With regard to (2) and (3) above, this court finds that the defendants will suffer a greater harm than plaintiff if the project does not go forward. Furthermore, in weighing the environmental concerns of the plaintiff against the interests of defendants which will be adversely affected by the issuance of a preliminary injunction, this court concludes that the public interest does not favor granting a preliminary injunction.

IT IS SO ORDERED that plaintiff's motion for a preliminary injunction is denied.