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Oregon Natural Resources Council v. Harrell

 

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In 1962 Congress authorized the U.S. Army Corps of Engineers (Corps) to construct a series of three dams in the Rogue River Basin of Oregon. The last in the series of dams, the Elk Creek Dam, was about one-third completed when litigation halted construction. Elk Creek is a tributary of the Rogue River, located about fifty-five miles upstream from a part of the river Congress designated as a “Wild and Scenic River” under the Wild and Scenic Rivers Act (WSRA).[1] Elk Creek supports wild salmon and steelhead trout that migrate through this designated portion of the Rogue.

The Oregon Natural Resources Council (ONRC), an environmental group, initially brought suit in 1985 challenging the Corps’s compliance with the National Environmental Policy Act (NEPA). Continued litigation resulted in a series of cases from “Marsh I” through “Marsh VII,” the last of which is the companion case to this one.[2]

The principle issue raised by ONRC’s appeal was whether the Corps, under section 7(a) of the WSRA, should have secured the consent of the Secretaries of Interior and Agriculture, who administer the Wild and Scenic portion of the Rogue River potentially affected by the dam, before issuing the Record of Decision (ROD) or requesting congressional appropriations for continuing construction. ONRC argued that the Corps violated section 7(a) of the WSRA by “authorizing” the construction of the Elk Creek dam–by issuing a ROD–prior to determining the impact of the construction on the values of the Wild and Scenic River, and without the consent of the secretaries.

The Ninth Circuit held that section 7(a) only required prior consent from the secretaries when a federal agency was “giving assistance to others” to enable them to take action affecting a Wild and Scenic River. However, agencies carrying out actions already directed by Congress need only inform the appropriate secretary sixty days before requesting appropriations and submit a written report to Congress reporting the conflicts between the project and the purposes of the WSRA, and the impact on the values of the Wild and ScenicRiver. The court cited the language and the legislative history of the statute as the basis for holding that Congress only intended to require the appropriate secretary’s consensus when a federal agency is the authorizing agency, not when Congress itself is the decision maker. Since the Corps’s ROD was not an “authorization” of the construction project–Congress had authorized it–nor was it “giving assistance” to others within the meaning of the WSRA, only the third sentence of section 7(a) applied. Therefore, the Corps was not required to gain the consent of the secretaries prior to issuing the ROD.

ONRC also appealed the district court’s denial of two requests for injunctive relief: 1) that the court mandate the destruction of the partially completed dam and spillway as necessary for the survival of salmon and steelhead; and 2) that the court order preparation of a supplemental environmental impact statement (SEIS) since the court found the second SEIS failed to consider new information regarding the mitigation value of hatchery stocks to replace wild stocks.

The Ninth Circuit upheld the decision of the district court not to order the destruction of the dam. In the absence of a showing of a lack of any other remedy to prevent the destruction of the fish, the requirements for issuing a writ of mandamus had not been fulfilled and could not be granted. The Corps had implemented a trap-and-haul program to help sustain the wild coho salmon, and in the absence of any showing that this action would be unsuccessful in the short term, it was reasonable to defer the removal of the dam until the completion of the decision-making process. Also, the Ninth Circuit cited the likely environmental consequences of the destruction of the dam and its possible rebuilding as a factor in its decision to uphold the lower court.

The Ninth Circuit also upheld the decision of the district court not to require the Corps to produce another SEIS. The fact that the court had found that the Corps had not considered significant new information did not in itself compel the production of a new SEIS. Rather, the Ninth Circuit held that this finding only required the Corps to “take a hard look” at the proffered new information. If the Corps in its review determined that the information was neither new nor significant, a new SEIS would not be required.

Although ONRC had raised a number of other issues on appeal, they were either made moot by the holdings of the Ninth Circuit, or were not reached due to other considerations.


[1]16 U.S.C. § 1274(a)(5) (1994).

[2]Oregon Natural Resources Council v. Marsh, 52 F.3d 1485 (9th Cir. 1994).

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