Marsh

Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge RYMER.

The plaintiffs appeal the district court’s dismissal of their suit under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. The district court determined that a Second Environmental Impact Statement Supplement (EISS-2), prepared by the Army Corps of Engineers (“Corps”) in response to our decision in ONRC v. Marsh, 832 F.2d 1489 (9th Cir.1987) (“Marsh II”), rev’d and remanded in part, 490 U.S. 360 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989), had taken a “hard look” at the cumulative environmental effects of the proposed Elk Creek Dam. The plaintiffs also appeal the district court’s denial of their request for attorneys fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 . We have jurisdiction, and we reverse in part and affirm in part.

I

In 1962, Congress authorized the Corps to construct three dams in southern Oregon’s Rogue River Basin. Flood Control Act of 1962, Pub.L. No. 87-874, § 101 , 76 Stat. 1173 (1962). Two of the projects, the Lost Creek and Applegate River Dams, have been completed. The subject of this litigation is the third dam, the Elk Creek…

concurring in part and dissenting in part:

I concur in the majority opinion to the extent that it affirms the denial of attorneys’ fees in part and denies relief in the form of removing or modifying the dam. Because I disagree with the majority that Corps’ discussion of cumulative impacts failed to take a sufficiently hard look and that the govern *1494 ment’s position on cumulative impacts in Marsh I and II was not substantially justified, I dissent.

I

Even assuming, as the majority concludes, that Corps attempts to read our mandate in Marsh II to.o narrowly, I would hold that the extensive environmental analysis provided in EISS-2 was sufficient to satisfy NEPA’s requirement that an agency take a hard look at the environmental consequences of its actions.

ONRC identifies a number of specific respects in which EISS-2 is allegedly inadequate. Broadly stated, they are the failure to disclose and discuss adequately the existing animate and inanimate environment, as NEPA and the regulations require, 40 C.F.R. ■§ 1502.15, which ONRC maintains is indispensable to an adequate discussion of cumulative impacts. ONRC also points to Corps’ failure to disclose and discuss all of the…