ELR Citation: ELR 20826
No(s). 85-6433-E (D. Or. Apr 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