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Oregon Natural Resources Council v. Marsh

filed: April 21, 1995.

OREGON NATURAL RESOURCES COUNCIL; ROGUE FLYFISHERS; ROGUE RIVER GUIDES ASSOCIATION; AND OREGON GUIDES AND PACKERS ASSOCIATION, INC., PLAINTIFFS-APPELLANTS,
v.
JOHN O. MARSH, JR., IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF THE ARMY, AND ELVIN R. HEIBERG, III, IN HIS OFFICIAL CAPACITY AS CHIEF OF ENGINEERS OF THE UNITED STATES DEPARTMENT OF THE ARMY, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Oregon. D.C. No. CV-85-06433-JMB. James M. Burns, Senior District Judge, Presiding.

Before: Betty B. Fletcher, Dorothy W. Nelson, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Fletcher; Partial Concurrence and Partial Dissent by Judge Rymer.

Author: Fletcher

FLETCHER, Circuit Judge:

The plaintiffs appeal the district court's dismissal of their suit under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4231 et seq. The district court determined that a Second Environmental Impact Statement Supplement (EISS-2), prepared by the Army Corps of Engineers ("Corps") in response to our decision in ONRC v. Marsh, 832 F.2d 1489 (9th Cir. 1987) (" Marsh II "), rev'd and remanded in part, 490 U.S. 360 (1989), had taken a "hard look" at the cumulative environmental effects of the proposed Elk Creek Dam. The plaintiffs also appeal the district court's denial of their request for attorneys fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. We have jurisdiction, and we reverse in part and affirm in part.

I

In 1962, Congress authorized the Corps to construct three dams in southern Oregon's Rogue River Basin. Flood Control Act of 1962, Pub. L. No. 87-874, § 101, 76 Stat. 1173 (1962). Two of the projects, the Lost Creek and Applegate River Dams, have been completed. The subject of this litigation is the third dam, the Elk Creek Project, which has been standing uncompleted since 1987 at one-third of its designed height.

Elk Creek is a tributary of the Rogue River and is located upstream of the segment of the Rogue River that Congress has designated as Wild and Scenic under the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. 1271, et seq. Elk Creek supports the wild coho salmon and steelhead trout runs which pass through the Wild and Scenic portion of the Rogue River. The river's wild coho and summer steelhead populations have declined since 1968, and the species are now in danger of extinction due to actual or threatened destruction of their spawning and rearing habitat.

In 1982, the Corps approved construction of the Elk Creek Dam based on a 1980 Environmental Impact Statement Supplement (EISS-1). The Oregon Natural Resources Council ("ONRC")*fn1 brought this action under NEPA in October 1985 to prevent the Corps from building the dam, alleging in part that the Corps had violated NEPA by failing to prepare adequate documentation of the environmental effects of the proposed Elk Creek Dam. In its first look at the case, the district court held that the Corps had complied with NEPA in all respects and denied ONRC's request for an injunction to stop construction of Elk Creek Dam. ONRC v. Marsh, 628 F. Supp. 1557, 1563-69 (D. Or. 1986) (" Marsh I ").

We reversed in Marsh II, in part because EISS-1 had failed to discuss the cumulative impact of the Lost Creek, Applegate, and Elk Creek dams taken together. 832 F.2d at 1498. Accordingly, we remanded to the district court for entry of appropriate injunctive relief. The district court enjoined further construction of the dam while the Corps prepared a new EISS. ONRC v. Marsh, 677 F. Supp. 1072, 1078 (D. Or. 1987) (" Marsh III "). Although the Corps sought and obtained certiorari to the United States Supreme Court, it did not petition for review of our holding that it had failed to discuss the cumulative impacts of the three Rogue River dams. Thus, although the Supreme Court reversed Marsh II on the issues for which certiorari was granted, ONRC v. Marsh, 490 U.S. 360, 369-85 (1989) (" Marsh IV "), our decision that EISS-1 had failed to discuss cumulative impacts was left intact. See ONRC v. Marsh, 880 F.2d 242, 242 (9th Cir. 1989) (remand to the district court after Marsh IV) (" Marsh V ").

The Corps issued EISS-2 in May 1991. EISS-2 considers the environmental effects of a No Action Alternative, under which the Corps would not complete construction of the Elk Creek Dam, and of constructing and operating the dam under three different operating alternatives. Two of the operating alternatives, the Full Pool Alternative and the Minimum Pool Alternative, would involve using the dam for water conservation purposes as well as for flood control. Under the third, No Conservation Pool Alternative, the dam would be used only for flood control, with the possibility of conservation use at some time in the future pursuant to new environmental impact studies. EISS-2 recommends completion of construction under the No Conservation Pool Alternative.

During the public comment period, ONRC criticized the Corps' draft of EISS-2 in part for failing to discuss adequately the cumulative impacts of the dams. Nevertheless, on January 24, 1992, Ernest Harrell, the Corps' Division Engineer, issued the Corps' Record of Decision approving construction of the dam under the No Conservation Pool Alternative. Subsequently, on July 22, 1992, the Corps moved to dissolve the outstanding injunction against further construction, arguing that EISS-2 discussed cumulative environmental impacts in accordance with this court's mandate in Marsh II.

Meanwhile, ONRC asked the Secretaries of the Forest Service and Bureau of Land Management to issue a determination under section 7(a) of the Wild and Scenic Rivers Act. See 16 U.S.C. § 1278(a). On November 5, 1992, the Secretaries issued a joint determination that, due to reduction of the coho and steelhead's spawning and rearing habitat and the impediment to the fishes' migration, the uncompleted Elk Creek Dam unreasonably diminishes the values for which the Wild and Scenic portion of the Rogue River was so designated. The Secretaries determined, however, that the diminishment of the Wild and Scenic values of the Rogue River would not be unreasonable were fish passage assured.

In response to the Secretaries' determination, ONRC sought modification of the injunction issued in Marsh III, asking the district court to order Corps either to demolish the dam or to remove the dam's spillway on the grounds that the dam, although incomplete, unreasonably diminishes the anadromous fish populations of the Rogue River. ONRC also alleged that Corps had violated NEPA in several regards, including failing to comply with this court's mandate that EISS-2 analyze cumulative environmental impacts. ONRC's claims under WSRA and claims of additional NEPA violations were filed as part of a new action, and we discuss them separately in an opinion filed today. ONRC v. Harrell, ___ F.3d ___ (9th Cir. 1995).

Discussing the remaining issue in Marsh, EISS-2's analysis of cumulative environmental impacts, the district court held that EISS-2 had taken a "hard look" at the cumulative effects of the Rogue River Basin Projects on streamflows, water temperature and turbidity, fisheries, wildlife, local recreation, and the local economy by employing an incremental approach under which the Corps described the base, pre-dam conditions; the effects of adding the Lost Creek and Applegate River Dams; and, finally, the predicted effects of Elk Creek Dam under each of the four proposed alternatives. ONRC v. Marsh, 845 F. Supp. 758 (D. Or. 1994) (" Marsh VI "). Accordingly, the district court dismissed the Marsh action and refused either to order the destruction of the dam or the removal of its spillway, or to require the Corps to prepare a new EISS. The district court also denied ONRC's request for attorneys fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, on the ground that the Corps' position in Marsh I and Marsh II, that EISS-1 included an adequate cumulative impact analysis, although erroneous, was substantially justified.

II

We review de novo the district court's determination that EISS-2 complied with NEPA. Marsh II, 832 F.2d at 1492. Our role is to assure that the Corps took a "hard look" at the environmental consequences of its decision to complete the Elk Creek Dam under the No Conservation Pool Alternative. Marble Mountain Audubon Soc'y v. Rice, 914 F.2d 179, 182 (9th Cir. 1990). Although "we must defer to 'the informed discretion of the responsible federal agencies,'" Marsh IV, 490 U.S. at 377 (quoting Kleppe v. Sierra Club, 427 U.S. 390 (1976)), and are not to "'fly speck' environmental impact statements," Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974), we will reverse an agency's decision where it is contrary to procedures required by law, 5 U.S.C. § 706(2)(D); Marble Mountain Audubon Soc'y, 914 F.2d at 182, or where it is arbitrary or capricious, 5 U.S.C. § 706(2)(A); Greenpeace Action v. Franklin, 14 F.3d 1324, 1330-32 (9th Cir. 1992).

A

ONRC argues that, although the Corps has discussed the cumulative environmental effects of the three Rogue River Basin projects to some extent, the scope of EISS-2's cumulative impacts analysis is too narrow. The Corps argues that our decision in Marsh II required it only to discuss the cumulative impacts on two specific water quality factors - temperature and turbidity - and their effects on fish and fisheries production. The Corps maintains that "the scope of [EISS-2] was properly limited to an evaluation of these specifically identified issues of water quality" because they were the only factors explicitly mentioned by this court in Marsh II.

We wrote in Marsh II :

[ONRC] contends that the Corps unreasonably limited the scope of [EISS-1] by failing to consider the cumulative effects of all three dam projects, Lost Creek Dam, Applegate Dam, and Elk Creek Dam, the first two of which already have been completed. . . .

We disagree with the district court that the Corps took a hard look at the cumulative environmental impacts. Plaintiffs point out two examples of the Corps' failure to consider the cumulative impacts. First, although [EISS-1] conceded that the overall basin project would increase the turbidity of the Rogue River, it concluded that there would be no major adverse effect on fish production from increased turbidity. In reaching this Conclusion, however, it considered only the turbidity created by the individual project. Similarly, in response to a comment made by the United States Environmental Protection Agency suggesting that the EIS should discuss the effects of Lost Creek Dam on downstream water quality, the Corps responded that the Elk Creek EIS was not the proper place to discuss the effects of Lost Creek Lake. Insofar as the effects of the Lost Creek Dam were necessary to a complete presentation of the cumulative impact of construction of Elk Creek Dam, we disagree.

The synergistic impact of the project should be taken into account at some stage, and certainly before the last dam is completed.

832 F.2d at 1497-98.

We agree with ONRC that the Corps has read our mandate too narrowly. We mentioned the factors of turbidity and downstream water quality as "examples" demonstrating the Corps' failure to discuss cumulative impacts at all. Having noted two instances where the Corps demonstrated its unwillingness in EISS-1 to discuss anything other than the effects of the Elk Creek Dam, considered in isolation, we held:

While a separate EIS is not required, the Corps should consider the impact of the Elk Creek Dam in conjunction with Lost Creek Dam and, if appropriate, Applegate River Dam. The Corps is building Elk Creek Dam in an area that already has two dams. It must consider the area as it finds it and take into consideration the cumulative impact of the basin project.

Id. On remand, the Corps should have discussed, at a minimum, those areas of environmental impact that were discussed in EIS and EISS-1 and analyzed how those factors would be affected by the Elk Creek Dam, in ...


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