Harrell

This is a companion case to Oregon Natural Resources Council v. Marsh (Marsh VII), 52 F.3d 1485 (9th Cir.1994). 1 ONRC 2 brought this action against Ernest J. Harrell, the Commander and Division Engineer of the Army Corps of Engineers (Corps), John E. Lowe, the Regional Forester of the United States Forest Service, and D. Dean Bibles, the Oregon/Washington Director of the Bureau of Land Management (BLM), 3 after Corps had completed the environmental review process on the proposed Elk Creek Dam by issuing a Record of Decision (ROD). This case raises issues under both the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. § 1271 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C.'§ 4321 et seq. As the factual background is fully set out in the Marsh opinions, we do not repeat it here.

The principal issue we must decide is whether Corps should have secured the consent under § 7(a) of the WSRA, 16 U.S.C. § 1278 , of the Secretaries of Interior and Agriculture (through the BLM and the Forest Service), who administer the Wild and Scenic area of the Rogue River potentially impacted by the dam, before issuing the ROD or proceeding to request congressional appropriations for…