Marsh v. Oregon Natural Resources Council

U.S. Supreme Court

Marsh v. Ore. Natural Res. Counc., 490 U.S. 360 (1989)Marsh v. Oregon Natural Resources CouncilNo. 87-1704.Argued January 9, 1989Decided May 1, 1989490 U.S. 360CERTIORARI TO THE UNITED STATES COURT OF APPEALS FORTHE NINTH CIRCUITSyllabusThe Elk Creek Dam is part of a three-dam project designed to control the water supply in Oregon’s Rogue River Basin. The Army Corps of Engineers (Corps) completed an Environmental Impact Statement (EIS) for the Elk Creek project in 1971, and, in 1980, released its final Environmental Impact Statement, Supplement No. 1 (FEISS). Since the Rogue River is a premier fishing ground, the FEISS paid special heed to water quality, fish production, and angling, and predicted that the Elk Creek Dam would have no major effect on fish production, but that the effect of the Lost Creek and Elk Creek Dams on turbidity might, on occasion, impair fishing. After reviewing the FEISS, the Corps’ Division Engineer decided to proceed with the project and, in 1985, Congress appropriated funds for construction of the dam, now one-third completed. Respondents, four Oregon nonprofit corporations, filed an action in the District Court to enjoin construction of the Elk Creek Dam, claiming that the Corps had violated the National Environmental Policy Act of 1969 (NEPA) by failing, among other things, to describe adequately the environmental consequences of the project; to include a “worst case analysis”; and to prepare a second supplemental EIS to review information in two documents developed after 1980. The first — the Cramer Memorandum — is an internal memorandum, prepared by two Oregon Department of Fish and Wildlife (ODFW) biologists based on a draft ODFW study on the effects of the Lost Creek Dam, suggesting that the Elk Creek Dam will adversely affect downstream fishing; and the second is a United States Soil Conservation Service (SCS) soil survey containing information that might be taken to indicate greater downstream turbidity than did the FEISS. The District Court denied relief on all claims and held, inter alia, that the Corps’ decision not to prepare a second supplemental EIS to address the new information was reasonable. The Court of Appeals reversed, holding, among other things, that the FEISS was defective because it did not include a complete mitigation plan and “worst case analysis,” and, with regard to the failure to prepare a supplemental EIS, that the ODFW and SCS documents brought to light significant new information.