# Louisiana Wildlife Federation, Inc. v. Dennis J. York, Colonel

> Court of Appeals for the Fifth Circuit · May 31, 1985 · 761 F.2d 1044

URL: https://www.frixlaw.com/law-library/cases/9473442

## Case

- **Full name:** LOUISIANA WILDLIFE FEDERATION, INC., Et Al., Plaintiffs-Appellants, v. Dennis J. YORK, Colonel, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 31, 1985
- **Citations:** 761 F.2d 1044; 15 Envtl. L. Rep. (Envtl. Law Inst.) 20614; 22 ERC (BNA) 2009; 22 ERC 2009; 1985 U.S. App. LEXIS 30148
- **Precedential status:** Published
- **Opinion:** Concurring in part by Rubin
- **Judges:** Rubin, Goldberg, Hill
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473442

## How later opinions describe it (automated extraction)

- holding that ACOE has a “duty” to consider permit applicant’s purpose
- noting that the Corps has a duty to take the applicant’s objectives into account in defining the project purpose

## Opinion text

ALVIN B. RUBIN, Circuit Judge,
concurring in part and dissenting in part.
With respect for the views of my colleagues, I dissent from their decision to require the Corps “to perform an adequate analysis of whether a supplemental EIS is required,” Part IIIB of the opinion. Like an EIS, a court’s decision must be based on more than a tissue of assumptions. A court can neither avoid the basic principles of burden of proof nor become a factfinder by the alchemy of converting allegations into evidence. The record is devoid of evidence that would provide any support for the proposition that the Corps failed to take Avoyelles III into account when it prepared the EIS. More important, even if the Corps did not take Avoyelles III into account, the plaintiffs failed to adduce any evidence tending to show that, had the Corps done so, it should or likely would have reached a different result.
In all civil litigation, the burden of persuasion on each essential issue rests on the plaintiff. 1 The plaintiff must prove by a preponderance of the evidence that those facts essential to a decision in its favor are more likely to be true than not true. If the plaintiff fails to persuade the trier of fact, or if the plaintiff simply fails to adduce any evidence on an essential issue, the plaintiff has not carried its burden and must lose.
The same burden of proof rests on the plaintiff in environmental litigation. Recently, in State of Louisiana v. Lee, 2 we restated the principle that a plaintiff who challenges an agency’s failure to prepare an initial EIS bears the burden of persuasion and clarified the standard that the plaintiff must meet. 3 Prior to our decision in Lee, the language of our decisions was neither consistent nor pellucid. 4 Now, however, it is clear that the plaintiffs must prove “that the Corps was unreasonable in concluding there was no reasonable possibility that the proposed action would significantly degrade any environmental factor.” 5
In an action challenging the adequacy of an EIS, therefore, the plaintiffs are required to establish that the EIS is inadequate. More than an allegation of deficiencies is necessary; the plaintiffs must prove the essential allegations of their complaint by a preponderance of the evidence. 6 The case law from other circuits employs, for the most part, the same analysis used in the Fifth Circuit. 7
*1055 Similarly, a plaintiff who contends that a federal agency improperly failed to prepare a supplemental EIS bears the burden of proving that the changes that occurred after the EIS was prepared “will have a ‘significant’ impact upon the environment” that was not covered by the EIS. 8 In Environmental Defense Fund v. Marsh, 9 after stating this precept, we found that the plaintiffs had satisfied their burden of proof because they cited “specific expert testimony and other evidence, unanswered by the defendants, to prove that all of the changes ... will have new environmental impacts that are quite significant, in either qualitative or quantitative terms.” 10
The environmental organizations in this case did not adduce a single expert opinion or the testimony of a single witness that the impact of Avoyelles III would have been significant. The district court made no finding on the subject. All we know is that the Project involves 21,100 acres of bottomland hardwood forests, and that the Corps’ survey of property owners, made before Avoyelles III was decided, found that 82%, or 17,300 acres, would be cleared even if the project were not undertaken. In fact, the plaintiffs conceded in oral argument that 8,000 to 9,000 acres have already been cleared. Based on these few facts, my brethren find that “the plaintiffs raised substantial environmental issues concerning approximately 40% of the forested areas within the project area.” This “finding” is presumably based solely on the plaintiffs’ mere allegations and mathematical computations made by deducting from the Corps’ original figures the acreage admittedly already cleared. I doubt that, as an appellate court, we should make such findings of fact, and am certain that an allegation alone is not sufficient basis for us to do so.
My brethren assert that “[t]he Corps has never even claimed to have considered whether, under Avoyelles III, the land qualifies for clearance.” Although literally accurate, this does not appear to me to fully state the Corps’ position: in its brief, the Corps states that “[t]he District Engineer found, impliedly, that the Avoyelles decision did not result in new, previously unan-alyzed, significant impacts on the environment from the project.”
To debate whether or not the Corps has proved that a significant part of the Project area will be cleared even if the Project does not proceed, however, is beside the point. It is not the burden of the Corps to prove how much land will be cleared, nor does it bear the burden of establishing that the Project will not have significant environmental impact. It is the burden of the plaintiffs to adduce evidence, not merely to make allegations or to rest on assumptions, establishing that the Corps was unreasonable in reaching the conclusion it did and that there was in fact a reasonable possibility that the application of Avoyelles III would significantly change the conclusions reached in the EIS.
The Sicily Island Area Levee Project has been planned since 1975. The Corps submitted a draft EIS in 1978, which it revised and released in 1979. The EIS was completed and submitted in 1981. This suit began in 1983. It was tried in 1984. Now, in 1985, we in effect remand the question of the Project’s environmental impact to the Corps. The Corps may conclude that a supplemental EIS should be prepared, or it may conclude that none is necessary, or it may decide to abandon or to modify the project. Any conclusion it reaches will be subject to further attack. This is not a *1056 course that should be taken unless the record demonstrates an evidentiary basis for such action. It is not warranted if it rests, as I submit it does, on the factual assumptions of an appellate court.
The effect of the course my brethren follow is likely, if pursued in other cases, to be disastrous. The Project has now been planned for ten years. The final EIS was submitted four years ago. New events are bound to occur in a four-year span. If every time an arguably “new”, arguably “significant” event occurs, or an allegedly new and allegedly significant “fact” is discovered, those who oppose a project may, by filing suit, put the Corps to the burden of proving either that the datum has already been considered or that it is insignificant, no project could ever be completed if the opposition is determined.
Dedication to preservation of a wholesome environment neither requires nor permits us to depart from sound judicial precepts. The plaintiffs in this case have failed to show by evidence that the Corps has failed in its duty. They have not shown affirmatively that the Corps did not consider Avoyelles III. Moreover, the environmental organizations have not adduced any evidence that that decision would have a significant environmental impact on the Project. In short, the Corps’ decision has not been shown to rest on a tissue of assumptions. I respectfully submit that it is the plaintiffs’ case that mistakes words for facts and charges for evidence.
For these reasons, I respectfully dissent.
. F. James and G. Hazard, Civil Procedure § 7.6 (3d ed. 1985). See 9 Wigmore on Evidence § 2485 (Chadbourn rev. 1981).
. 758 F.2d 1081 (5th Cir.1985).
. Id. at 1084.
. See, e.g., Vieux Carre Property Owners, Residents & Associates, Inc. v. Pierce, 719 F.2d 1272, 1279 (5th Cir.1983); Image of Greater San Antonio, Texas v. Brown, 570 F.2d 517, 522 (5th Cir. 1978); Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir.1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir. 1973).
. Lee, supra, 758 F.2d at 1085 (emphasis added), citing Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir.1973).
. Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975); Sierra Club v. Lynn, 502 F.2d 43, 52 (5th Cir.1974), cert. denied, 421 U.S. 994 , 95 S.Ct. 2001 , 44 L.Ed.2d 484 (1975); Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir.1974); Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 492 F.2d 1123 , 1130-31 (5th Cir.1974).
. Examples of cases discussing the process of proof in actions challenging an agency’s decision not to prepare an initial EIS are Lower Alloways Creek Township v. Public Service Elec. *1055 & Gas Co., 687 F.2d 732, 743, 747 (3d Cir.1982) and Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836 , 101 S.Ct. 110 , 66 L.Ed.2d 43 (1980). Examples of opinions discussing the allocation of the burden of proof in suits opposing the adequacy of an initial EIS include Monroe County Conservation Council, Inc. v. Adams, 566 F.2d 419, 422 (2d Cir.1977), cert. denied, 435 U.S. 1006 , 98 S.Ct. 1876 , 56 L.Ed.2d 388 (1978); Sierra Club v. Froehlke, 534 F.2d 1289, 1300 (8th Cir.1976).
. Environmental Defense Fund v. Marsh, 651 F.2d 983, 992 (5th Cir.1981).
. 651 F.2d 983 (5th Cir.1981).
. Id. at 996 (emphasis supplied).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473442. Public record. Not legal advice.