dissenting:

I dissent from the order denying the petition of the plaintiff-appellant for a rehearing. The petition and the response of the government reveals startling facts which require a rehearing.

In Marsh v. Oregon Natural Resources Council, 490 U.S. 360 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989), the Supreme Court told us that the provisions of the National Environmental Protection Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., are designed to prevent agency action based on incomplete or outdated information, thereby ensuring that the agency will not realize the adverse impact of its actions too late. The regulations of the Council on Environmental Quality “impose a duty on all federal agencies to prepare supplements to ... final EIS’s [environmental impact statements] if there ‘are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.’ ” Marsh, 490 U.S. at 372 , 109 S.Ct. at 1858 (quoting 40 C.F.R. § 1502.9 (c) (1987)). Marsh tells us that when the dispute involves an analysis of documents and facts which are conflicting, the courts “must defer to the ‘informed discretion of the responsible federal agencies.’ ” Id. at 377 , 109 S.Ct. at 1861 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 , 96 S.Ct. 2718, 2731 , 49 L.Ed.2d 576 (1976)). However, despite this deference, the courts are directed to “carefully review[] the record and satisfy[] themselves that the agency has made a reasoned decision based on its evaluation of the significance — or lack of significance — of the new information.” Id. 490 U.S. at 378 , 109 S.Ct. at 1861 .

The record in this case demonstrates without argument that (1) the initial Environmental Impact Statement was prepared in 1979; (2) the last time the agency considered new information concerning the northern spotted owl was 1986; (3) on April 29, 1989, the U.S. Fish and Wildlife Service publicly announced that it was proposing to list the northern spotted owl as “threatened” under the Endangered Species Act; (4) the district court was made aware of this new information by the pretrial conference order; (5) the district court failed to address the changing status of the owl in its opinion on the validity of the EIS; (6) this court, in its opinion affirming the district court, has ignored this new fact entirety-

It is submitted that Marsh mandates a rehearing.

Id. at 371 , 109 S.Ct. at 1858 . There is no factual dispute here over the northern spotted owl’s current status which demands this court’s deference. A review of the record makes clear that the current EIS does not take into consideration the new status of the owl, and neither do the opinions of the district court and this court.

An environmental impact statement addressing possible effects on the owl may have been sufficient in 1979, or even as late as 1986. However, when during the course of trial proceedings the agency and the court learn of the new status of the owl, there must be action by the agency, and certainly by the courts, so that they will not “regret [their] decision after it is too late to correct.” Id. at 371 , 109 S.Ct. at 1858 .

The court has a duty to decide the issues in each case before it, including those *437 which have been presented during the course of litigation and before judgment. To do less is to acknowledge that we are not governed by the rule of law.

I submit that this court must grant the petition for rehearing and dispose of the facts that are in this litigation.