Case 16




Warm Springs Dam Task Force v. Gribble, 378 F. Supp. 240 (N.D. Cal. 1974).

In this case, plaintiffs sought to enjoin construction of the Warm Springs Dam, alleging that the Army Corps of Engineers had failed to discuss adequately in its environmental impact statement (EIS) prepared under the National Environmental Policy Act (NEPA) the effects of the dam on archeological resources in the area and had violated Executive Order No. 11593 by failing to conduct a thorough archeological survey of the project area. Soon after the project was authorized in 1962, the Corps had commissioned an archeological survey that was later determined to be inadequate. Although the Corps had expressed its intent to conduct further surveys and the EIS, completed in 1973, discussed the need for further surveys, the Corps had not begun these surveys at the time of the lawsuit. After the EIS was done and the Corps had called for and received bids for construction, the Secretary of the Interior determined that there was an archeological district that was eligible for the National Register of Historic Places within the area of the dam's impact.

The court rejected plaintiffs' challenge to the EIS, finding that although the EIS's discussion of archeological resources had its shortcomings, the Corps had demonstrated that it could proceed with the project and yet avoid harm to the archeological sites. The EIS had stimulated a full examination of the archeological sites sufficient to apprise the decisionmakers of the effects of the project on the sites. 378 F. Supp. at 250-51. Nevertheless, the court continued by finding that compliance with NEPA does not constitute compliance with Executive Order No. 11593. Because the Secretary of the Interior had found the archeological district to be eligible for the Register, the Corps must comply with the requirements of Section 2(b) of the Executive Order. That section required the Corps to reconsider the project and, if it proposed to alter the eligible property substantially, to afford the Advisory Council on Historic Preservation an opportunity to comment first. Id. at 251.

The court denied plaintiffs' motion for a preliminary injunction but ordered that the archeological sites not be disturbed until the completion of any appropriate mitigative measures specified by the Council and the State Historic Preservation Officer. Id. at 251-52. [Ed. note: The court did not explain why it crafted the remedy in this way.]

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