ELR Citation: ELR 21202
No(s). 88-2606 (9th Cir. May 27, 1988)

The court holds that the Corps of Engineers' decision to dump dredged material from the Port of Oakland into Half Moon Bay does not violate the National Environmental Policy Act (NEPA). The court holds that the district court did not abuse its discretion in considering the probability of success on the merits, the possibility of irreparable harm, and the balance of hardship between plaintiff and defendant in denying plaintiff's motion for a preliminary injunction. The Corps' draft supplement to the environmental impact statement (EIS), which stated that another site had been selected for disposal, met NEPA's public involvement requirements, since the site ultimately selected was listed as a possible site in the draft. The "selected" site was listed as such only in a draft document and was consequently only a preferred site. The court holds that the final supplement to the EIS contains a sufficiently thorough discussion of the probable environmental consequences on local fisheries, but fails to provide necessary data on the oceanography of the area, and does not set forth baseline conditions or a monitoring program for disposal of dredged material. The court holds, however, that the Corps' Record of Decision (ROD) adequately addresses these issues Pursuant to the Marine Protection, Research, and Sanctuaries Act, the Environmental Protection Agency (EPA) had reviewed the Corps' dredging plans and pointed out these deficiencies, and the ROD incorporated EPA's suggestions. The court next holds that defendant Port of Oakland's hardship outweighs plaintiff fishermen's hardship. The shipping business that would be lost from failure to dredge the Port of Oakland is substantial. The plaintiffs, on the other hand, have not shown that they would be unable to fish elsewhere or that the fish would not be able to relocate or repopulate.

Counsel for Plaintiffs-Appellants
Roger Beers, Cynthia Koehler
380 Hayes St., Suite 1, San Francisco CA 94102
(415) 972-1401

Counsel for Federal Defendants-Appellees
Francis B. Boone, Ass't U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Counsel for Port of Oakland Defendants-Appellees
Charles S. Barquist
Morrison & Foerster
345 California St., San Francisco CA 94104
(415) 777-6000

Before Hug and Noonan, JJ