Oregon Natural Resources Council v. Marsh

No. 85-6433-E (D. Or. April 4, 1986)

The court holds that plaintiff is not entitled to an injunction under Federal Rule of Civil Procedure 62(c) to prohibit further construction by the Corps of Engineers of a dam on the Rogue River pending appeal of the court's earlier decision holding that the Corps satisfied the requirements of the National Environmental Policy Act (NEPA). The court initially rejects plaintiff's contention that the relative hardship to the parties should be the primary consideration in deciding whether to stay its judgment pending appeal. The court observes that it must instead consider the applicant's likelihood of success on the merits, whether the applicant will suffer irreparable harm absent the stay, whether the stay will substantially harm other interested parties, and whether the stay will harm the public interest. To satisfy the first factor, plaintiff must at least show that the case presented difficult legal questions. The court holds that plaintiff's argument that the Corps violated NEPA's disclosure requirements by placing opposing views in small print at the end of the environmental impact statement fails to satisfy this test. The placement of the discussion of opposing views did not affect Congress' ability to make an informed decision on the project, nor does it present a difficult legal question. The court also holds that the damage caused by the excavation and blasting during construction does not constitute irreparable harm.

[The court's earlier opinion appears at 16 ELR 20475.]

Counsel for Plaintiff
Neil S. Kagan
Suite 224, 1012 S.W. Oak, P.O. Box 2447, Roseburg OR 97470
(503) 673-6682

Counsel for Defendants
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, Portland OR 97205
(503) 221-2101

[16 ELR 20826]

Burns, J.:

Opinion and Order

On January 16, 1986 in an oral opinion, I refused to grant the motion by plaintiff Oregon Natural Resources Council (ONRC) for a preliminary injunction enjoining construction of the Elk Creek [16 ELR 20827] Dam. At the time, I indicated that I would issue a written opinion as soon thereafter as circumstances would permit. In my written opinion filed March 3, 1986, and upon plaintiff's motion, I held that ruling to also be a judgment on the merits, under Fed. R. Civ. P. 65.

ONRC has now filed a motion under Fed. R. Civ. P. 62(c) for an injunction pending appeal. I heard oral arguments during phone hearings on March 27 and 28, 1986. On March 31, 1986 during a phone hearing, I denied ONRC's motion, stating I would issue a short written opinion setting out the reasons for my decision.

ONRC's motion was based primarily on the environmental harm and irreparable damage which it argues will be caused by the continuation of the dam's construction, and on ONRC's contention that the dam's construction violates NEPA. At the oral argument ONRC added another basis for its motion. It argued that the case deals with a difficult legal question and particularly that my earlier opinion did not adequately address a substantial legal question, namely the Corps' compliance with disclosure requirements.

Rule 62(c) of the Federal Rules of Civil Procedure gives me the discretion to stay my judgment on the merits pending appeal. The traditional test to determine the appropriateness of such a stay is known as the "Petroleum Jobbers"¹ test and includes four factors: (1) whether the applicant has made a strong showing of success on the merits; (2) whether the applicant will suffer irreparable harm absent the stay; (3) whether the stay will substantially harm other interested parties; and (4) whether the stay will harm the public interest.

ONRC argues, and I agree, that the success on the merits factor cannot be rigidly applied. As the District Court for the Central District of California pointed out in Himebaugh v. Smith, 476 F. Supp. 502 (C.D. Cal. 1978), "If it were so applied, a stay wouldseldom, if ever, be granted because the district court would have to conclude that it was probably incorrect in its determination on the merits." Id. at 510. That court went on to suggest a more reasonable approach to this factor, as adopted by the Court of Appeals for the District of Columbia:

Prior recourse to the initial decision maker would hardly be required as a general matter if it could properly grant interim relief only on the prediction that it has rendered an erroneous decision. What is fairly contemplated is that tribunals may properly stay their own orders when they have ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained. Washington Metropolitan Area v. Holiday Tours, 559 F.2d 841, 844 (D.C. Cir. 1977).

Id.

I agree with that approach. It appears, however, that ONRC would like me to go a step further and essentially abandon the "Petroleum Jobbers" test in favor of an approach that does not consider the likelihood of success on the merits but considers primarily the relative hardships to the parties.

ONRC cites to several cases to support its approach. For example, it first cites to Himebaugh v. Smith which, as I have already noted, does not abandon the test but rather suggests a liberal interpretation of the merits factor.

It also cites to Regents of University of California v. ABC, Inc., 747 F.2d 511 (9th Cir. 1984). I do not pause long to consider that case. Unlike the Rule 62 motion to stay at issue here, Regents involved the Court of Appeals' review of a District Court's grant of a preliminary injunction under Rule 65. It involved no ruling or discussion relative to the standard for issuing a stay under Rule 62 and hence I find that case inapposite. ONRC's reliance on Regents does not persuade me to abandon the merits factor.

ONRC also cites to Lopez v. Heckler, 713 F.2d 1432 (9th Cir. 1983), rev'd 104 S. Ct. 10 (1983). There the Ninth Circuit refused to grant the Secretary of Health and Human Services a stay pending appeal of the district court's preliminary injunction against her. Justice Rehnquist reversed the Appeals Court decision and granted the stay.² The case was subsequently remanded to the Appeals Court and the District Court, then appealed again to the Appeals Court. Considering the extended life and travels of this case, it is a wonder that any dispositive test can be derived from it.

Lopez was a case involving most unusual facts and circumstances. The essence of the case was the defendant Secretary of Health and Human Services' flagrant flouting of the court's authority.

The Lopez decisions involved Rule 62 standards, though, in the context of the cases, the analysis appears more akin to a review of a ruling on a preliminary injunction. Nevertheless, to the extent that Lopez appears to retreat somewhat from the "Petroleum Jobbers" standard, until recently I must and do recognize it as the latest word on the standard for reviewing Rule 62 motions.

The circuit has, however, more recently evaluated a Rule 62 motion in Artukovic v. Rison, __ F.2d __, No. 86-5615 (9th Cir. Feb. 11, 1986). The court evaluated the motion under the Lopez standard, yet in the end decided the case essentially on the "Petroleum Jobbers" factors as they were applied in Himebaugh. Specifically, the circuit concluded that "although Artukovic has shown a possibility of irreparable injury, he has shown no probability of success on appeal. Additionally, his argument raises no serious legal question and the balance of hardships, especially when the substantial public interest is considered, does not tip sharply in his favor." Id., Slip Op. at 5.

Regardless of how the test is labelled, the Artukovic decision was based on the four "Petroleum Jobbers" factors. Artukovic is the latest word from the circuit on the standard for Rule 62 review and hence I am fairly certain that the "Petroleum Jobbers" factors remain the appropriate standard for evaluating Rule 62 motions.

In an apparent effort to satisfy that inevitable standard, at the March 27th hearing ONRC advanced its argument that the case presented "admittedly difficult legal questions" and particularly that the status quo should be maintained until the Ninth Circuit addressed NEPA's disclosure requirements which, ONRC argues, my opinion failed to adequately do.

ONRC initially advances its disclosure argument in its "Plaintiff's Brief in Reply to Defendant's Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction." The issue concerns 40 C.F.R. § 1502.9(b) which requires that the "agency shall discuss at appropriate points in the final statement any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency's response to the issues raised."

ONRC does not contend that the Corps has not discussed or responded to responsible opposing views. Rather, ONRC objects to the placement of them within the EIS. Specifically ONRC argues that

these principles are not satisfied where the discussion of and response to responsible opposing views is presented in small print at the end of the final EIS. Rather, the appropriate point for the discussion of responsible opposing views is in the body of the EIS, in the section that contained the agency's discussion of the issue in controversy. Only in that way will the public, and especially the decisionmaker, have a real opportunity for the enlightened consideration of the probable environmental consequences of a proposed project that NEPA contemplates.

"Plaintiff's Brief in Reply to Defendant's Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction," p.6.

At the hearing on this motion the Corps' attorney suggested that this argument is "nit-picking." Those who choose words with care might even employ the term "fly-specking."

I find this argument untenable for at least two reasons. First, neither NEPA nor the regulations specify the "appropriate" point for the discussion of responsible opposing views. The purpose of NEPA's EIS disclosure requirements is to provide the ultimate decision-makers with a full, fair and reasonable assessment of the environmental consequences of the proposed action to enable them/it to make an informed and knowledgeable decision on the project.

ONRC has acknowledged within its brief and at oral argument that the Corps did discuss and respond to responsible opposing views in the Comment and Response Section of the final EIS. I am not willing to accept an argument that the placement of the discussion within a single bound volume will somehow deny members of Congress the opportunity to make an informed, responsible decision. [16 ELR 20828] My respect for a coordinate branch of government surely compels me to give Congress more credit than that.

Secondly, to the extent that ONRC argues that a serious and difficult legal question has not yet been addressed, I disagree. I do not think placement within the impact statement of the discussion of and response to opposing viewpoints is a serious and difficult legal question. I do not find that it has a fair chance of success on the merits. Also, my earlier opinion does address NEPA's disclosure requirements and the Corps' compliance with them. While I did not specifically discuss 40 C.F.R. § 1502.9(b) per se, I did discuss the Corps' compliance with its obligation to evaluate and respond to opposing viewpoints in order to provide the ultimate decision-maker(s) with a realistic assessment of the environmental consequences of the proposed project. As I stated repeatedly in my original opinion, Congress was well aware of the environmental problems surrounding this project and, with that knowledge, it emphatically authorized and directed the Corps to commence construction of the dam. Altering the placement of the discussion within the EIS obviously did not affect Congress' knowledge of the project. I therefore find that ONRC's argument regarding NEPA's disclosure requirements does not justify my staying my decision on the merits.

Notwithstanding the disclosure question, it appears that to justify a stay pending appeal under any test ONRC must show, at a minimum, that the case involves an "admittedly difficult legal question." I am not convinced that it does.

I am fully aware of the "harm" that will continue to occur if I deny the stay; this harm is, in plaintiff's view, irreparable. Plaintiff's thesis, however, comes down to this. Because the excavation and blasting is irreversible, it is also irreparable for purposes of evaluating a request for a stay. Plaintiff's counsel employed the "Humpty-Dumpty" analogy in arguing for a stay. I would prefer the "omelet" figure of speech. Congress ordered the Corps to make an omelet; Congress knew full well that one must break the eggs to cook an omelet. However, the broken eggs are not the equivalent of "irreparable harm" that plaintiff must establish in order to win a stay.

The legal question in this case was whether the Corps satisfied the requirements of NEPA in order to enable Congress, the ultimate decision-maker, to make an informed and knowledgeable decision whether the dam should be constructed. I continue to be convinced that the Corps' compliance with NEPA was more than adequate to enable Congress to make an informed and knowledgeable decision.

ONRC's ultimate objection is, obviously, Congress' substantive decision to approve the dam construction. As I emphatically stated in my opinion on the merits, that decision is not subject to judicial review. That decision does not and cannot justify staying the judgment pending appeal. Plaintiff's motion for stay is denied.³

IT IS SO ORDERED.

1. The "Petroleum Jobbers" test was first enunciated and derived its name from Virginia Petroleum Jobbers Assn. v. Federal Power Comm., 259 F.2d 921, 925 (D.C. Cir. 1958).

2. Justice Rehnquist's reversal was not based on the criteria the Ninth Circuit used in refusing the stay, but on his finding that the District Court abused its authority in the scope of its mandatory injunction.

3. For the most part the current status of the contract does not appear to be in dispute. Some aspects of the status may be found in the Kagan affidavit which accompanied ONRC's motion for injunction pending appeal. During the March 28th hearing Mr. Turner from the Corps informally described certain additional aspects. Pursuant to my request at the hearing on March 31, Mr. Seeronen from the Corps has filed the affidavit of H. Vincent Steinkamp, the Resident Engineer in charge of the Elk Creek Lake Project Office. (This was furnished to my office yesterday, and was sent by express mail to Mr. Kagan.) I don't expect there to be any serious disagreement between the parties as to the current status of contract performance.

I recognize, however, that ONRC may wish perhaps to challenge, in some way, the figures mentioned in the Engineer's affidavit relative to the actual costs that will accrue if the stay is issued. ONRC is, therefore, entitled, if it wishes, to file some kind of challenge or counter affidavit to specific amounts that Mr. Steinkamp asserted as additional governmental expense if a stay were issued.

My suggestion to ONRC is that if it wants to file a challenge or counter affidavit that it do so as promptly as circumstances will allow. As soon as it comes in I will look at it and it will be treated as part of the record furnished to the Court of Appeals as part of ONRC's expected Rule 8 motion to stay my judgment. Barring further amendment to this order, all parties can assume that, having looked at it, as to the ultimate decision on ONRC's motion, I have adopted the Engineer's version.