ELR Citation: ELR 20893
No(s). s. 94-35302, -35380 (9th Cir. Apr 21, 1995)

The court holds that the U.S. Army Corps of Engineers (the Corps) was not required to obtain the prior consent of the Secretaries of Agriculture and the Interior under Wild and Scenic Rivers Act (WSRA) §7(a) before issuing a record of decision (ROD) on, or requesting congressional appropriations for, Elk Creek Dam in the Rogue River Basin, Oregon. The first two sentences of §7(a) state that a federal agency may not assist in the construction of water resources projects that will directly and adversely affect the values of a Wild and Scenic River. The third sentence states that federal agencies may not recommend authorization of any such project without advising the relevant Secretary and reporting to Congress on how the project would conflict with the values of the WSRA. After the Corps issued the ROD for the project, the Secretaries of Agriculture and the Interior made a determination under §7(a) that Elk Creek Dam would unreasonably diminish the values of the Wild and Scenic Rouge River. The court first holds that the issuance of the ROD was final agency action over which the district court had jurisdiction, because it is more pragmatic to review the action at the end of the agency's decisionmaking process than after Congress has appropriated funds, and judicial review will not interfere with any ongoing agency decisionmaking process.

The court next holds that although WSRA implementing regulations require the Corps to issue a ROD before construction of a dam can begin, the ROD does not "authorize construction" of Elk Creek Dam. Only Congress can authorize construction of a dam of this magnitude. The court thus does not see how the Corps' decision to adopt the ROD can be an "authorization" that, in turn, amounts to federal "assistance" under the first two sentences of §7(a). The court holds that the normal sense of "assist by loan, grant, or otherwise" in the first sentence of §7(a) is action by one entity to make it possible for another entity to engage in construction affecting a Wild and Scenic River, and that it strains logic as well as language to conclude that the Corps can "assist" itself in constructing the dam by issuing a ROD. The most coherent reading of §7(a) and its implementing regulations requires that a federal agency giving assistance to others to enable them to take action affecting a Wild and Scenic River must comply with the procedure set out in the first two sentences, whereas an agency taking action directed at Congress, which may authorize or appropriate funds for such projects, must comply with the procedures set out in the third sentence. This construction comports with such legislative history as there is and squares with the evident intent underlying §7(a). The court thus holds that the district court correctly held that the Secretaries' prior consent was not required, but incorrectly concluded that the Corps could not proceed with the Elk Creek project, presumably including issuing a new ROD, report, or request for appropriations to Congress, without the Secretaries' consent. Section 7(a) and the Secretaries' determination only constrains the Corps from requesting appropriations without both advising the Secretaries 60 days in advance of its intention to seek funding, and reporting to Congress in what respects construction would conflict with the purposes of the WSRA and would affect the values to be protected.

The court next holds that whether or not the Secretaries concluded correctly that the dam will not unreasonably diminish the fisheries if the Corps implements an effective fish passage system is immaterial to any remaining issues in the case, and thus declines to reach the district court's decision that the determination is unreviewable. Regarding the claim that the Corps' second environmental impact statement supplement (EISS-2) fails to disclose and discuss adequately possible mitigation measures, the court holds that the district court's order already requires the Corps to consider the new information provided in the Secretaries' §7(a) determination regarding mitigation. This consideration will address fish passage options and spawning and rearing habitat. Regarding the claim that EISS-2 fails to disclose adequately the current need for the dam, the court orders the Corps to make a reasoned decision based on its evaluation of the significance of new information, including a 1982 report of the Comptroller General recommending that the Corps recalculate the expected benefits from the dam. The court next declines to give an advisory opinion on the sufficiency of the ROD, because the district court's order withdrawing the ROD moots the question. The court next holds that the district court did not abuse its discretion in declining to mandate the destruction of the partially constructed dam based on the Secretaries' finding that it unreasonably diminishes the values of the Rogue River, because there is no showing of the lack of other adequate remedy. The district court remanded for the Corps to consider new information on fish passage, habitat, and mitigation, among other things. Moreover, it is obvious that destruction of the dam is likely to have environmental consequences that neither party discusses. Further, there is no showing that the Corps' interim trap-and-haul program to sustain wild coho is likely to be so unsuccessful that the dam should be torn down immediately. Finally, the court holds that the district court did not err in declining to order the Corps to prepare a third supplemental environmental impact statement. The Corps will have to take a hard look at the proffered new information in the §7(a) determination; however, the Corps may find that the information in the documents is not significant or is not new or accurate.

[Decisions in related litigation are published at 16 ELR 20465, 20826, 18 ELR 20321, 20033, 19 ELR 20749, 22 ELR 20897, and 25 ELR 20885.]

Counsel for Plaintiffs
Neil S. Kagan
534 SW Third Ave., Portland OR 97204
(503) 223-4272

Counsel for Defendants
Vicki L. Plaut
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Fletcher, Nelson, and Rymer, JJ.: