Petition — Como-Falcon Community Coalition, Inc. v. United States Department of Labor

r W9-1295

IN THE <

Supreme Court of the Gnited States

COMO-FALCON COMMUNITY COALITION, INC.,

Petitioner,

vs.

U. S. DEPARTMENT OF LABOR; RAYMOND MAR-

SHALL, U. S. Secretary of Labor; RICHARD GILLI-

LAND, Regional Administrator, U. S. Department of

Labor; and RUDY PERPICH, Governor of the State of

Minnesota,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

t

JEROME E. FRANKE and

RONALD J. RIACH

211 Roseville Professional Center

2233 Hamline Avenue North

Roseville, Minnesota 55113

Attorneys for Petitioner

1980—Northwest Brief Printing Co., 316 Chicoge Avenue, Minneapolis 55415—338-5078

Page

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Appendix A—Opinion for United States District Court

for the District of Minnesota .......--.......5. A-1

Appendix B—Opinion for United States Court of

Appeals for the Eighth Circuit ................ A-41

Appendix C—National Environmental Policy Act of

1969, 42 U.S.C. § 4321-§ 4335 (1979) ......... A-50

Appendix D—Comprehensive Employment and Train-

ing Act, 29 U.S.C. § 923, 925, 927 and 937(c)

Oi RE OAS eee ee A-57

Appendix E—Proposal approved by Governor on

a A-60

TABLE OF AUTHORITIES

Cases:

Continental Ill. Nat’] Bank & Trust Co. v. Kleindienst,

382 F.Supp. 107 (N.D. Ill.), Aff’d, 484 F.2d 1369

ESE a 10

First National Bank of Chicago v. Richardson, et al,

484 F.2d 1369 (7th Cir., 1973) ..........0200.. 10

Hanly v. Kleindienst, 471 F.2d 823 (2nd Cir.), cert.

denied, 412 U.S. 908 (1972) ............ 44%. 10

Hanly v. Mitchell, 460 F.2d 640 (2nd Circuit) cert.

denied, 409 U.S. 990 (1972) ............ 7, 8, 9, 10

Minnesota Public Interest Research Group v. Butz,

ee ee EE Ce i, ISTE) we cece cece 10

Simmons v. Grant, 370 F.Supp. 5 (S.D. Tex. 1974)... 10

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978).. 10

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IN THE

Supreme Court of the Gnited States

COMO-FALCON COMMUNITY COALITION, INC.,

Petitioner,

VS.

U. S. DEPARTMENT OF LABOR; RAYMOND MAR-

SHALL, U. S. Secretary of Labor; RICHARD GILLI-

LAND, Regional Administrator, U. S. Department of

Labor; and RUDY PERPICH, Governor of the State of

Minnesota,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

Petitioner prays that a Writ of Certiorari be issued to

review the judgment of the United States Court of Appeals

for the Eighth Circuit entered in the above entitled case

on November 19, 1979.

OPINIONS BELOW

The opinion of the United States District Court for the

District of Minnesota, the Honorable Harry H. Mac-

Laughlin, Judge, dated December 11, 1978, is reported

at 465 Federal Supplement 850 (D. Minn. 1978), a copy

of the Opinion is attached hereto as Appendix A. The

opinion of the United States Court of Appeals for the

Eighth Circuit, filed November 19, 1979 has not yet been

reported and is attached hereto as Appendix B.

2

JURISDICTION

The judgment of the United States Court of Appeals

for the Eighth Circuit was filed November 19, 1979.

Jurisdiction of this Court is invoked under 28 U.S.C.A.,

Section 1254.

QUESTIONS PRESENTED

1. Do the objections of Petitioner to the placement of

a federal Jobs Corps center at the old Bethel College

Campus by the Department of Labor come within the

purview of the National Environmental Policy Act of 1969?

2. Must the Department of Labor receive and consider

Petitioner’s evidence of potential adverse impacts of a pro-

posal to establish a Job Corps center in a residential neigh-

borhood prior to making a threshold determination under

the National Environmental Policy Act of 1969?

3. Does the passage of legislation prohibiting dis-

crimination against a criminal offender when considering

admission to a Job Corps center render the Governor’s

conditional approval a nullity?

FEDERAL STATUTES INVOLVED

The National Environmental Policy Act of 1969, 42

U.S.C. §4321-§4369 (1979). Appendix C sets forth 42

USS.C. §4321-4335.

The Comprehensive Employment and Training Act, 29

U.S.C. §923-945. Appendix D sets forth 29 U.S.C. §923,

925, 927 and 937(c).

STATEMENT OF CASE

In the Spring of 1977, the Department of Labor (DOL)

initiated action to investigate the location of a federal

3

Job Corps Center (JCC) in the State of Minnesota. The

search eventually centered on the old Bethel College

Campus which is situated on 8.3 acres in the City of

St. Paul, Minnesota, and is surrounded on three sides by

a middle-class residential area. The site was purchased by

the Federal Government at the cost of 1.86 million dollars,

with planned renovation of existing buildings to cost an

estimated one million dollars. When representatives of the

DOL could not adequately explain the impact that their

proposal would have upon the surrounding community,

Petitioner, a non-profit corporation comprised of residents

and owners of residential property living near the site,

was formed.

In October of 1977, the Governor of the State of

Minnesota was given thirty (30) days pursuant to §415(c)

of the Comprehensive Employment and Training Act, 29

U.S.C. §937(c), to veto the proposal. He eventually ap-

proved the proposal on December 29, 1977, subject to

conditions the relevant portion being set forth in Appendix

E. Thereafter the Petitioner’s initiated litigation seeking

injunctive relief, and alleging that the proposal fell within

the purview of the National Environmental Policy Act of

1969 (NEPA), that it was a major federal action which

would significantly affect the quality of the human environ-

ment, and that the DOL had failed to address any of the

concerns expressed by the local residents. Jurisdiction was

presented under 28 U.S.C. §1331, 28 U.S.C. §1346 and

28 U.S.C. § 1361.

In February of 1978, at a hearing before the Federal

District Court for the District of Minnesota, the Honorable

Harry H. MacLaughlin issued an injunction prohibiting

4

the DOL from taking further action to establish the JCC

without first examining the potential impacts in more detail

than theretofore had been done.

The DOL had no administrative record to submit to

the Court to support its threshold determination that no

| Environmental Impact Statement (EIS) was necessary.

_ Thereafter, the DOL prepared a Supplemental Assess-

ment supported by an Administrative Record consisting

of fifty-two (52) exhibits, which was filed with the Court

on July 20, 1978. Based upon that Administrative Rec-

ord, a negative impact assessment was reissued, again

holding that no EIS was necessary.

A trial was ultimately held and on December 11, 1978

the Court issued its Memorandum and Order (Appendix

A), finding the proposal to be a major federal action to

which NEPA applied, but not one which would signifi-

cantly affect the quality of the human environment. The

negative environmental assessment was therefore held

reasonable under the circumstances and the preliminary

injunction dissolved.

The United States Court of Appeals for the Eighth

Circuit held that the reassessment was not necessary be-

cause the concerns of Petitioner related solely to socio-

economic conditions, which were outside the scope of

NEPA; that DOL was not obligated to receive and review

the evidence gathered by Petitioner; and that the decision

of the District Court regarding the reasonableness of the

DOL decision was not erroneous.

The members of Petitioner have consistently argued

that their investigation of similar Job Corps centers around

the nation established potential for the following negative

impacts:

5

General increase in crime;

2. Increased pedestrian and traffic congestion;

3. Increased demand on municipal services such as

police protection, fire protection, legal services

and medical services;

4. Visitors and others drawn to the vicinity of a Job

Corps center cause problems of increased crime,

traffic congestion, etc.;

5. Potential for physical alteration of the site to accom-

modate DOL needs, which would have a negative

impact on the surrounding community:

Property values would be adversely affected;

The community being residential in nature, the use

of the Bethel Campus as a JCC is incompatible with

surrounding uses and applicable zoning law.

—

.

=

At no time has the Petitioner been afforded an oppor-

tunity to submit the results of its investigation to the DOL

for inclusion in its Administrative Record. Following the

compilation of the Administrative Record, no party was

afforded the opportunity to comment upon or rebut any

of its contents before the making of the negative impact

determination, although Petitioner specifically requested an

opportunity to do so.

The Job Corps program is intended to provide a voca-

tional education alternative to those who meet the criteria

set forth in 29 U.S.C. §925. The typical enrollee is eighteen

(18) years old, has left high school prior to graduation or

is Otherwise educationally noncompetitive, reads at an ele-

mentary level, comes from a poor family, belongs to a

minority group, and has been unemployed for a substantial

length of time or has never held meaningful employment.

6

Testimony at trial included witnesses acquainted with

problems presented by Job Corps centers in various parts

of the nation. Their testimony categorized into problems

they experienced which had an impact upon their com-

munities and included a substantial increase in crimes, such

as sex related offenses, fights and assaults, sale and use

of drugs, harassment of local residents, alcohol abuse,

theft, arson, vandalism and other property damage, pedes-

strian and traffic congestion contributed to substantially

by visitozs of the Job Corps enrollees over which the super-

visory staff hag no control.

The 95th Congress, in the 1978 Amendments to the

Comprehensive Employment and Training Act of 1973

provided in Section 454(b), “Screening and Selection:

Special Limitations”:

An individual on probation or parole may be selected

only if release from the supervision of the probation

or parole officials is satisfactory to those officials and

the Secretary and does not violate applicable laws

or regulations. No individual shall be denied a posi-

tion in the Job Corps solely on the basis of that indi-

vidual’s contact with the criminal justice system. 29

U.S.C. 927(b).

This Amendment was passed after the Governor had

reached the agreement with DOL prohibiting felons from

admission to the proposed center.

ARGUMENT

The opinion of the Eighth Circuit Court of Appeals set

aside the requirement imposed by the District Court that

the Department of Labor prepare an Administrative Rec-

7

ord and an environmental assessment capable of judicial

review. It held “the social and economic factors” raised

by the Coalition’s Complaint are not encompassed within

the provisions of NEPA, and under the circumstances of

this case, need not have been considered by the Department

in its determination of whether to prepare an EIS. This

pronouncement followed the sustaining of the District

Court action upholding the negative environmental assess-

ment prepared by the Department of Labor. The “social

and economic factors” which are referred to by the Court

of Appeals are those matters set forth in Petitioner’s Com-

plaint as potential adverse environmental impacts:

Vehicular and pedestrian congestion;

An increase in the use of utilities and local services;

An increase in the need for local social services;

A substaftial increase in criminal activity;

A demand for increased police and fire protection;

An alteration of the character of the residential

nature of the neighborhood.

i le cal sal lt 2

It was these same types of concerns which led to Hanly

v. Mitchell, 460 F. 2d 640 (2nd Cir.), cert. denied, 409

U.S. 990 (1972) and Hanly v. Kleindienst, 471 F.2d 823

(2nd Cir.), cert. denied, 412 U.S. 908 (1972). The facts

there present and those of the instant case are strikingly

similar and raise an irreconcilable conflict between the

Second and Eighth Circuit Courts of Appeal in the inter-

pretation of NEPA.

The Hanly cases involved a challenge to the General

Services Administration (GSA) by a community non-profit

Organization over construction of what is referred to in

ON I ey ee Mee Seem 4 on

the opinions as the Foley Square Courthouse Annex and

principally the Metropolitan Correction Center, designed

to provide detention facilities for some 450 prisoners and

to make available related services. The GSA made a

negative environmental impact assessment determining no

EIS was necessary. The Plaintiffs there claimed that the

“living environment” of the neighborhood would be altered

and the local residents feared “riots and disturbances”. In

response to the claim by GSA that the Plaintiffs’ concerns

were irrelevant, the Second Circuit Court of Appeals

Stated “this assertion, characterized most charitably, is

simply incorrect”. The Court went on to Say:

“The act must be construed to include protection of

the quality of the life for city residents. Noise, traffic,

overburdened mass transportation systems, crime, con-

gestion, and even availability of drugs all affect the

urban “environment” and are surely results of the

“profound influences of .. . high density urbaniza-

tion and industrial expansion.” Hanly vy. Mitchell,

supra at p. 647.

The Court went on to require the development of a review-

able environmental record for purposes of making the

threshold determination as to the necessity of a full EIS.

The case was remanded for further consideration.

It is difficult to perceive of any agency action involving

an urban setting, which would present impacts which could

not be characterized as “socio-economic”. It is impossible

‘to draw a meaningful distinction between the Hanly cases

and the instant case. To make the applicability of NEPA

stand or fall on the construction of a new building as is

suggested by the Eighth Circuit Court of Appeals, is to

9

i te the

blish an artificial guideline, which a frustra

pave congressional purpose of the te ne

"a II involved the same project, yn ae tie

ards to establishing administrative neem

pi acer of information - a pte" See

defining Whe aching its threshold, determination hed

pe to make specific findings as . pene <rnenaceagrel

i ld substantially increase the tr ges anchee

- wer rea and whether there was to be vos

pines ra at the facility. The range ee st oi

sar at ed certain findings of fact of cae - |

a gare given an opportunity to gre ayy <r

ene peat Circuit Court of eS pan

bee “relevant factors” which shoul hoodoo

aa r the agency in reaching this thres anne

rem i aioe of §102(2) (bd) of NEPA fa 0

be oe tion and development of methods nana

ego ‘oe unquantified environmental am ora

ePonna iven appropriate consideration had See

aa " a public by the responsible agency ogrtala

aes along with an rsigunaceny St es pare

facts and input which may bear _ ae ge .

ination. The Court reaffirmed th abet

eure that NEPA applied to urban reeset cabot

ill apply the admin —

ATE eo NEPA actions, specifically hoking a

proc $102(2)(b) Tee are tae onl informed

procedures

10

NEPA by a threshold determination that an impact

statement is unnecessary. Hanly v. Kleindienst, supra,

p. 835.

and

We now go further and hold that before a preliminary

or threshold determination of significance is made the

responsible agency must give notice to the public of

the proposed major federal action and an opportunity

to submit relevant facts which might bear upon the

agency’s threshold decision. Hanly v. Kleindienst,

supra, p. 836.

The Eighth Circuit previously recognized NEPA to be

“an environmental full-disclosure law . . . Minnesota

Public Interest Research Group v. Butz, 498 F.2d 1314,

1328 (8th Cir. 1974) (en banc.) See also First National

Bank of Chicago v. Richardson, et al., 484 F.2d 1369 (7th

Cir., 1973) where the Plaintiffs were allowed the oppor-

tunity to submit evidence; Simmons v. Grant, 370 F. Supp.

5 (S.D. Tex., 1974); and Continental Ill. Nat’l Bank &

Trust Co. v. Kleindienst, 382 F. Supp. 107 (N.D. Iil.),

Affd, 484 F.2d 1369 (7th Cir., 1973). Also Vermont

Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519

98 S. Ct. 1197, 55 L.Ed.2d 460 at 488, where the Court

Stated that the function of NEPA was to “insure a fully

informed and considered decision . . .” The similarities be-

tween the two Hanly cases and the present case are amaz-

ingly close:

1. Both involve application of NEPA to an urban

setting;

2. The “relevant factors” to be considered by the agency

in making its threshold determination on the neces-

sity of an EIS are practically identical:

11

3. Plaintiffs had not been given an opportunity to sub-

mit their evidence to the agency for use in making

the threshold determination.

In the instant case it is undisputed that Petitioner had

no opportunity to submit to DOL the results of its nation-

wide investigation into the effect other Job Corps centers

had on surrounding communities. A formal request to that

effect by Petitioner to DOL was refused. Although the

Circuit Court of Appeals refers to an opportunity by the

Petitioner to submit their views, the requirements of the

law go farther than the receipt of opinions by concerned

community residents. The agency should have the oppor-

tunity to include in its assessment that evidence gathered

by Petitioner which relates directly to the questions posed

under NEPA—what will the impact be on the local

community of this specific proposal? NEPA intended to

provide a complete consideration of environmental concerns

prior to an agency determination that no detailed impact

statement is required. Although it may be true that a formal

public hearing is not required in all instances, an oppor-

tunity for input through reports, affidavits, depositions,

statistical computations and summaries, or other similar

evidentiary vehicles must be made available. This was not

done, ner is there any indication the substantial deposi-

tions and affidavits obtained by Petitioner were ever con-

sidered by DOL prior to the threshold decisions. Certiorari

should be granted to resolve these conflicts between circuits.

Both the Trial Court and the Circuit Court refused to

entertain the question concerning the effect which the

1978 Amendments to the Comprehensive Employment and

Training Act of 1973 had upon the conditional approval

ee eee

12

of the governor to the Job Corps proposal. The Compre-

hensive Employment and Training Act provides that the

governor of the state in which a Job Corps is proposed to

be located may veto the proposal. 29 U.S.C. §937(c). The

Governor of Minnesota approved the proposal, condition-

ing that approval, however, on several factors. Recognizing

the potential for increased crime in the area, one of the

conditions of the Governor’s approval is as follows:

“No individual shall be selected who has a history of

violent behavior against persons or property, repeti-

tive delinquent acts, narcotics addiction, or other major

behavioral aberrations, including conviction for the

commission of a felony. This prohibition shall apply

irrespective of whether an individual is on probation,

parole, under a suspended sentence, or under the

supervision of any agency as a result of court action.”

This was a formalization of the Governor’s promise to the

community that no felons would be admitted to the center.

The 95th Congress, in the 1978 Amendments to the

Comprehensive Employment and Training Act of 1973

provided in §454(b), “Screening and Selection: Special

Limitations”:

An individual on probation or parole may be selected

only if release from the supervision of the probation

or parole officer is satisfactory to those individuals

and the Secretary and does not violate applicable laws

and regulations. No individual shall be denied a posi-

tion in the Job Corps solely on the basis of that indi-

vidual’s contact with the criminal justice system.

The agreement reached by the Governor is in direct con-

travention of the public policy as stated by Congress in its

13

1978 Amendments. This cornerstone of the Governor’s

agreement with the DOL is void and unenforceable, result-

ing in the invalidation of the Governor’s approval. This

agreement between the Governor and the DOL was relied

upon extensively by the Secretary of Labor in his issuance

of the negative impact assessment. Because of the legisla-

tion passed after the agreement was reached, that reliance

is improper and goes to the integrity of the Secretary’s deci-

sion in the initial instance.

For the reasons stated, it is respectfully submitted that the

Writ of Certiorari should issue.

Respectfully submitted,

JEROME E. FRANKE and

RONALD J. RIACH

211 Roseville Professional Center

2233 Hamline Avenue North

Roseville, Minnesota 55113

Attorneys for Petitioner

A-l

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Como-Falcon Coalition, Inc.,

Plaintiff,

v.

United States Department of Labor; Raymond Marshall,

United States Secretary of Labor, Richard C. Gilliland,

Regional Administrator, United States Department of

Labor; Rudy Perpich, Governor of the State of

Minnesota,

Defendants.

MEMORANDUM AND ORDER

Civil 3-79-64

Ronald J. Raich, Suite 211, 2233 Hamline Avenue North,

St. Paul, Minnesota 55113, for plaintiff.

Francix X. Hermann, Assistant United States Attorney,

Howard L. Robinson, United States Department of

Labor, 596 U.S. Courthouse, Minneapolis, Minnesota

55401, for the federal defendants.

William P. Marshall, Special Assistant Attorney General,

515 Transportation Building, St. Paul, Minnesota 55155,

for Governor Perpich.

A-2

This case presents the issue whether establishment of a

Job Corps center on the former campus of Bethel College

and Seminary in St. Paul constitutes a “major Federal

action[] significantly affecting the quality of the human

environment.” National Environmental Policy Act of 1969

(NEPA) §102(2)(C), 42 U.S.C. §4332(2)(C). If so,

NEPA mandates preparation of an environmental impact

statement by the responsible federal official. The Depart-

ment of Labor determined on November 3, 1977, that an

environmental impact statement was unnecessary. (Defs.

Ex. 6) This Court on February 22, 1978, preliminarily en-

joined establishment of the center. Plaintiff had at that time

demonstrated probable success on its claim that the Depart-

ment of Labor’s negative assessment of environmental im-

pact was unreasonable. Based on the administrative record

then before it, the Court found that the Department had

either failed to consider the environmental impact of the

proposed center on the surrounding neighborhood or failed

to develop a reviewable record of such external environ-

mental effects. (Memorandum and Order, Feb. 22, 1978)

Since the date of the preliminary injunction, the Depart-

ment of Labor has complied the administrative record on

which its initial negative assessment of environmental im-

pact was based. In addition, it has conducted a supple-

mental study and reassessment of the environmental im-

pact of the proposed center, and affirmed the original deter-

mination that an environmental impact statement was not

required in the circumstances. On November 6 and 7, 1978,

this Court heid a hearing on the propriety of granting

plaintiff permanent injunctive relief pending completion of

an environmental impact statement. Based on the admin-

A-3

istrative record, the evidence adduced at the hearing, the

memoranda of counsel, and all files, records and proceed-

ings herein, the Court concludes that the Department of

Labor’s negative assessment of environmental impact was

not unreasonable. Because the proposed Job Corps center

is thus not a major federal action significantly affecting the

quality of the human environment, no environmental im-

pact statement need be prepared, and judgment will be

entered for defendants. The preliminary injunction issued

by this Court on February 22, 1978, is dissolved and of

no further force and effect. This Memorandum constitutes

the Court’s Findings of Facts and Conclusions of Law.

Factual Background

Defendant United States Department of Labor through

its Secretary, Raymond Marshall, and its Regional Admin-

istrator, Richard C. Gilliland, proposes to establish a Job

Corps center on the former campus of Bethel College and

Seminary, 1480 North Snelling Avenue, St. Paul. Enrollees

at such centers are disadvantaged youths aged 16 to 21 who

receive basic education, vocational skills training, work

experience, and counselling and health services. (See, 29

U.S.C. §§ 911, 918, as amended, Comprehensive Employ-

ment and Training Act Amendments of 1978 §§ 450, 457;

Defs. Ex. 52, at 8, 27-28) Job Corps centers are designed

to provide a structured environment with round-the-clock

supervision in which corpsmembers can develop marketable

skills and a sense of responsibility. The proposed center is

to be residential and coeducational with a maximum of

411 corpsmembers and a staff of approximately 140. The

Department of Labor expended $1.86 million to purchase

the site. Substantial additional federal funds will be required

. ae eee

A-4

to refurbish the existing eight buildings ($1.01 million) and

to operate the center ($2 million per year). (Fed. Defs.

Answer, p. 3, § 7).

The site chosen for the Job Corps center had been used

since 1914 as the campus of Bethel College and Seminary.

Bethel College is owned and operated by the Baptist Gen-

eral Conference, and is affiliated with Bethel Theological

Seminary, a graduate professional school which has been

located on the same campus. In September, 1972, the col-

lege and seminary completed a move to a new campus in

suburban Arden Hills. Student enrollment at the Bethel

campus during the 1971-72 school year numbered 1139, of

whom 397 resided on campus. Since the fall of 1972, the

college has continued to use the Snelling site as dormitory

housing for 400 and 430 students, who must commute

daily to classes on the new campus in Arden Hills. Besides

the three dormitories, an administration building, library,

seminary building, heating plant, and field house occupy

the 8.3-acre campus in northwest St. Paul. (Defs. Exs. 4; 52,

at 29, 31-32, 35-69) The Job Corps proposal contem-

plates no additional building construction. (Defs, Ex. 41,

pt. 1,9 1)

Plaintiff is a nonprofit corporation composed of resi-

dents and owners of residential property in proximity to

the site of the proposed center. ( Complaint, § 1) Adjacent

to the former Bethel campus on the north, east, and south

are single-family dwellings comprising a middle-class resi-

dential neighborhood. Across Snelling Avenue to the west,

in the City of Falcon Heights, lies the Minnesota State Fair-

grounds. Como Park, a recreational complex featuring a

Zoo, golf course, conservatory, park, and lake, stands a

A-5

half mile to the east. A small shopping plaza, Har Mar

Mall, lies one-half mile to the north in the City of Roseville.

Rosedale, a major regional shopping center located in Rose-

ville, stands approximately one mile distant. The Bethel

site and the adjacent St. Paul neighborhood are zoned R-4,

a single-family residential district. (See generally, Defs. Ex.

52, at 75-96; Pitf. Ex. 42; testimony of the Hon. June

Demos)

The thought of establishing a Job Corps center in Min-

nesota originated with the Governor’s Council on Employ-

ment and Training. (Defs. Ex. 52, at 7) On March 30,

1977, the staff of the Governor’s Manpower Office met with

state CETA prime sponsors and selected seven potential

sites for a Job Corps facility. In May, the regional office

of the Job Corps conducted an initial site survey of two of

the potential locations—the Bethel campus (Defs. Ex. 1)

and a junior high school in a western Minneapolis suburb.

The junior high school was found unsuitable because it

lacked residential facilities. (See Defs. Ex. 52, at 25, 399,

A-59 to -68) The Bethel site, however, seemed suitable

and a more extensive Site Utilization Study was conducted

in early September. (Defs. Ex. 4) On May 25, 1977, repre-

sentatives from the St. Paul Mayor’s office explained at a

meeting of community residents the proposal to establish

Job Corps center on the Bethel site, but it was not until

October, 1977, that the proposal resurfaced and became

the subject of public controversy.

On October 17, 1977, the Secretary of Labor informed

Governor Perpich of his intent to establish a Job Corps

center on the Bethel campus. Pursuant to 29 U.S.C.

§ 925(c), the Governor was given 30 days in which to

A-6

disapprove the project. On October 20, a representative

of the regional office of the Department of Labor attended

a meeting of community residents in an effort to ex-

plain the operation of the proposed Job Corps Center.

The residents in attendance indicated resistance to the

placement of the center within their neighborhood. On

October 28, 1977, the Mayor of St. Paul pledged his sup-

port for the Bethel proposal, but the municipalities of

Roseville and Falcon Heights adopted resolutions against

the proposed center. (See, Defs. Ex. 26; Pltf. Exs. 36,

37; testimony of the Hon. June Demos; testimony of the

Hon. Willis Warkentien. ) Neighboring residents contin-

ued to voice their opposition in a variety of public for-

ums throughout the rest of 1977.

Because of the opposition in the local community,

Governor Perpich desired to investigate the proposal be-

fore determining whether to exercise his right of disap-

proval. In an apparently unprecedented request, the Gov-

ernor sought and received extensions of the 30-day period

prescribed in 29 U.S.C. § 925(c). After meeting with

neighborhood residents and investigating the impact of

other Job Corps centers and the possibility of alternative

Sites (see, Defs. Ex. 52, at A-272 to -282), the Gov-

ernor on December 29, 1977, conditionally approved es-

tablishment of the Job Corps center:

After a systematic and thorough investigation, I

am satisfied that Bethel is the proper site and that

the program will be beneficial to our state. As you

know, this decision was not made hastily; and I think

the process we followed in examining the Job Corps

A-7

program and alternative sites was a useful one. The

conditions of approval agreed upon by the regional

office staff will, in my opinion, help us to make this

center a model Job Corps facility... .

Let me specify these conditions, as they were dis-

cussed, to avoid misunderstandings in the future.

First, a community advisory council will be estab-

lished to participate in the determination of center

policies. Second, the community will have representa-

tion in the selection of the contractor and the screen-

ing of potential enrollees. Third, the center will serve

Minnesota youth exclusively. Fourth, no felons will

be admittted to the program. In conjunction with

the establishment of the center, I have asked the

Minnesota Crime Control Planning Board to moni-

tor the impact of the center on neighborhood crime.

If, over a period of time, there is a severe negative

impact on the neighborhood, I will ask the Depart-

ment of Labor to phase out the program. Fifth, the

recreational facilities will be upgraded and made

available to the community on a scheduled time basis.

In addition, adequate off-street parking will be pro-

vided for center staff and visitors. And finally, Job

Corps students will participate in neighborhood im-

provement programs.

(Defs. Ex. 7, at 1-2) The conditions of approval, also

apparently unprecedented, were to be the subject of fur-

ther negotiation by the Governor’s office and the Depart-

ment of Labor.

On February 1, 1978, plaintiff commenced this action

to enjoin establishment of the Job Corps center. At the

A-8

hearing on February 22, 1978, plaintiff demonstrated

probable success on the merits and threatened irreparable

injury, and accordingly the Court granted preliminary in-

Junctive relief. Negotiations between the Governor’s office

and the Department of Labor were not enjoined because

of the possibility that an agreement might minimize ad-

verse environmental effects. The negotiations culminated

in a Memorandum of Agreement between the Department

of Labor and the Governor of Minnesota (Dfs. Ex. 41)

on April 18, 1978.

Plaintiff argues principally that the Department of La-

bor failed to comply with NEPA in determining that an

environmental impact statement was not required. In ad-

dition to other contentions, it alleges that the proposed

Job Corps center is not a permitted land use under St.

Paul zoning ordinances. Further, it contends that provi-

sions of the Memorandum of Agreement between the

Governor and the Department of Labor which might min-

imize adverse environmental effects are invalid and un-

enforceable. Plaintiff also alleges that the Department of

Labor failed to submit an adequate “plan” to the Gov-

ernor as required by 29 U.S.C. § 925(c). The Governor’s

approval of the center in reliance on the allegedly inade-

quate plan submitted to him is the sole basis for his status

as a defendant.

NEPA

The National Environmental Policy Act (NEPA), 42

U.S.C. $§ 4321-61, reflects congressional respect for the

interrelationship of an environment and its inhabitants.

ee

A-9

Congress declared the nation’s environmental policy in

lofty terms:

The Congress, recognizing the profound impact

of man’s activity on the interrelations of all compo-

nents of the natural environment, particularly the pro-

found influences of population growth, |

urbanization, industrial expansion, resource exploita-

tion, and new and expanding technological advances

and recognizing further the critical importance of re-

storing and maintaining environmental quality to the

overall welfare and development of man, declares

that it is the continuing policy of the Federal Gov-

ernment, in cooperation with State and local gov-

ernments, and other concerned public and private

organizations, to use all practicable means and mea-

sures, including financial and technical assistance, in

a manner calculated to foster and promote the gen-

eral welfare, to create and maintain conditions under

which man and nature can exist in productive har-

mony, and fulfill the social, economic, and other re-

quirements of present and future generations of

Americans.

NEPA § 101(a), 42 U.S.C. § 4331 (a). Implementation of

this policy is to be achieved more by procedural than

substantive means. In essence, federal agencies must con-

sider environmental amenities and values alongside tra-

ditional economic and technological concerns. Only then

are administrative decisions fully informed. Vermont

Yankee Nuclear Power Corp. v. Natural Resources De-

A-10

fense Council, Inc., 98 S.Ct. 1197, 1219 (1978). Sec-

tion 102 of NEPA mandates:

The Congress authorizes and directs that, to the

fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be inter-

preted and administered in accordance .with the pol-

icies set forth in this chapter, and (2) all agencies

of the Federal Government shall—

(A) utilize a systematic, interdisciplinary ap-

proach which will insure the integrated use of the

natural and social sciences and the environmental

design arts in planning and in decision-making

which may have an impact on man’s environment;

(B) identify and develop methods and proce-

dures, in consultation with the Council on En-

vironmental Quality established by subchapter II

of this chapter, which will insure that presently

unquantified environmental amenities and values

may be given appropriate consideration in deci-

sionmaking along with economic and technical

considerations;

(C) include in every recommendation or re-

port on proposals for legislation and other major

Federal actions significantly affecting the quality

of the human environment, a detailed statement

by the responsible official on—

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be im-

plemented,

A-11

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved

in the proposed action should it be implemented.

Prior to making any detailed statement, the re-

sponsible Federal official shall consult with and

obtain the comments of any Federal agency which

has jurisdiction by law or special expertise with

respect to any environmental impact involved.

Copies of such statement and the comments and

views of the appropriate Federal, State, and local

agencies, which are authorized to develop and en-

force environmental standards, shall be made avail-

able to the President, the Council on Environmental

Quality and to the public as provided by section

552 of Title 5, and shall accompany the proposal

through the existing agency review processes;

* * *

(E) study, develop, and describe appropriate

alternatives to recommended courses of action in

any proposal which involves unresolved conflicts

concerning alternative uses of available resources;

* * *

42 U.S.C. § 4332.

The instant controversy focuses on the action-forcing

language of section 102(2)(C). The environmental ef-

A-12

fect of “major Federal actions significantly affecting the

quality of the human environment”. must be assessed in

an environmental impact statement. Whether a given proj-

ect meets these threshold requirements is a question to be

determined initially by the agency. Such a determination

is subject to fairly strict judicial review because an er-

roneous negative assessment of environmental impact by

the agency precludes a detailed study of the project’s

environmental effects.

Section 102(1) of the Act contains a Congres-

sional direction that environmental factors be con-

sidered “to the fullest extent possible.” An initial

decision not to prepare an EIS [environmental impact

statement] precludes the full consideration directed

by Congress. In view of the concern for environmental

disclosure present in NEPA, the agency’s discretion

as to whether an impact statement is required is

properly exercised only within narrow bounds. Ac-

tion which could have a significant effect on the

environment should be covered by an impact state-

ment. We think that the threshold decision as to

whether or not to prepare an EIS should be reviewed

not on the arbitrary and capricious standard used

to test a substantive decision which entails a balanc-

ing and weighing of alternatives already studied, but

on the grounds of its reasonableness.

aint fe To upset an agency determination not to pre-

pare an impact statement, it . . . must be shown

that the agency’s determination was not reasonable

under the circumstances. This will require a show-

A-13

ing that the project could significantly affect the qual-

ity of the human envirqnment.

Minnesota Public Interest Research Group v. Butz, 498

F.2d 1314, 1320 (8th Cir. 1974) (en banc). Thus, the

determination of the Department of Labor that the pro-

posed Job Corps center was not a major federal action

significantly affecting the quality of the human environ-

ment may be overturned if and only if it is unreasonable.’

1Besides contending erroneously that judicial review of their negative

assessment of environmental impact is constricted, the federal defend-

ants maintain that the scope of this Court’s review is limited to con-

sideration of the administrative record. While in a sense it is true that

the question before the Court is the sufficiency of the administrative

record, it by no means follows that the question may be resolved on the

basis of the administrative record alone.

As stated in County of Suffolk v. Secretary of the Interior, 562 F.2d

1368, 1384 (2d Cir. 1977), cert denied, 434 U.S. 1064 (1978):

Although the focus of judicial inquiry in the ordinary suit challeng-

ing nonadjudicatory, nonrulemaking agency action is whether,

given the information available to the decision-maker at the time,

his decision was arbitrary or capricious, and for this purpose “the

focal point for judicial review should be the administrative record

already in existence, not some new record made initially in the

reviewing court”, . . ., in NEPA cases, by contrast, a primary

function of the court is to insure that the information available to

the decision-maker includes an adequate discussion of environ-

mental effects and alternatives, . . ., which can sometimes be

determined only by looking outside the administrative record to see

what the agency may have ignored.

. . . Generally, . . . allegations that an EIS has neglected to

mention a serious environmental consequence, failed adequately

to discuss some reasonable alternative, or otherwise swept “stub-

born problems or serious criticism . . . under the rug,” . . ., raise

issues sufficiently important to permit the introduction of new

evidence in the district court, including expert testimony with

respect to technical matters, both in challenges to the sufficiency

of an environmental impact statement and in suits attacking an

agency determination that no such statement is necessary. [empha-

sis in original].

: A-14

The federal defendants argue first that the proposed

Job Corps center is not a “major Federal action.” Some

courts have separated the scope of the federal action and

its environmental effect into independent criteria. E.g.,

Hanly v. Mitchell, 460 F.2d 640, 644 (2d Cir.), cert.

denied, 409 U.S. 990 (1972) (a major federal action

does not necessarily have significant environmental effects ) ;

Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972). Wheth-

er a particular federal action is “major” depends on the

amount of federal funds expended, the number of peo-

ple affected, the length of time consumed, and the extent

of government planning involved. S. W. Negbrhd. Assem-

bly v. Eckard, 445 F.Supp. 1195, 1199 (D.D.C. 1978).

The Court of Appeals for the Eighth Circuit has refused,

however, to bifurcate the action-forcing provision of sec-

tion 102(2)(C):

To separate the consideration of the magnitude

of federal action from its impact on the environ-

See also, Maryland-National Capital Park & Planning Comm'n vy.

United States Postal Serv., 487 F.2d 1029, 1041 and n. 13 (D.C. Cir.

1973). If the federal agency has overlooked or inadequate assessed a

possible adverse environmental impact, it is unlikely that the deficiency

will be apparent from examination of the record itself. Given the

scheme of NEPA and the scrutiny with which the judiciary must eye

negative assessments of environmental impact, a reviewing court cannot

be restricted to the administrative record.

It has been suggested that a court should receive evidence beyond

that considered by the agency only if the plaintiff raises substantial

environmental issues or shows an inadequate evidentiary development

by the agency. E.g., Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d

421, 425 (Sth Cir. 1973); Image of Greater San Antonio v. Brown,

570 F.2d 517, 522 (Sth Cir. 1978). Here, the plaintiff has raised

substantial environmental issues, and, indeed, had shown at the pre-

liminary injunction hearing a strong probability of prevailing on the

merits.

A-15

ment does little to foster the purposes of the Act,

i.e., to “attain the widest range of beneficial uses

of the environment without degradation, risk to health

and safety, or other undesirable and unintended con-

sequences.” By bifurcating the statutory language, it

would be possible to speak of a “minor federal ac-

tion significantly affecting the quality of the human

environment,” and to hold NEPA inapplicable to

such an action. Yet if the action has a significant

effect, it is the intent of NEPA that it should be

the subject of the detailed consideration mandated

by NEPA; the activities of federal agencies cannot

be isolated from their impact upon the environment.

Minnesota Public Interest Research Group v. Butz, 498

F.2d 1314, 1321-22 (8th Cir. 1974) (en banc). Accord,

City of Davis v. Coleman, 521 F.2d 661, 673 n. 15 (9th

Cir. 1975). See also, W. Rodgers, Jr., Environmental

Law § 7.6 (1977). In neither assessment did the Depart-

ment of Labor determine whether this project constitutes

a “major federal action.” The Court finds, given the fed-

eral sums involved, that establishment of the Job Corps

center is a major federal action, even were the criteria

independent. The question thus becomes whether the pro-

posed Job Corps center could significantly affect the hu-

man environment.

In support of its negative assessment of environmental

impact, the Department of Labor urges that “people pollu-

A-16

tion”® is not cognizable as an environmental impact under

NEPA. The Court agrees that the mere influx of low-

income persons into a wealthier community should not be

regarded as an adverse environmental impact. See, Town

of Groton v. Laird, 353 F.Supp. 344, 350-51 (D. Conn.

1972). It seems clear that the intent of Congress was that

certain sociological or economic effects alone do not ne-

Cessitate preparation of an environmental impact statement.

Maryland-National Capital Park & Planning Comm'n vy.

United States Postal Serv., 487 F.2d 1029, 1037 (D.C.

Cir. 1973) (Leventhal, J.); Nucleus of Chicago Home-

owners Ass'n v. Lynn, 524 F.2d 225, 231 (7th Cir. 1975),

cert. denied, 424 U.S. 967 (1976) (dictum); see, First

Nat'l Bank v. Richardson, 484 F.2d 1369, 1380 n. 13 (7th

Cir. 1973). But cf. Hanly v. Kleindienst, 471 F.2d 823, 832

& n. 10 (2d Cir. 1972), cert. denied, 412 U.S. 908

(1973).° However, the proposed Job Corps center does

The term “people pollution” was apparently coined by Judge Leventhal

in Maryland-National Capital Park & Planning 5, Ato v. United

States Postal Serv., 487 F.2d 1029, 1037 (D.C. Cir. 1973), to denote

the impact of the presence of persons of low income on a more affluent

community. The Department argues: “It is obvious that the ‘funda-

mental changes alleged by plaintiffs [sic] in the nature of the [Bethel

College] facility, in reality pertain to the racial, cultural and financial

backgrounds of the prospective enrollees—factors which are not proper

considerations under NEPA and are an anathema to the findings and

purpose of the Comprehensive Employment and Training Act which

mandates the Job Corps program.” (Mem. in Support of Motion To

Vacate Preliminary Injunction, pp. 4-5 (footnotes omitted) ). In other

words, ple pollution” refers to the impact of persons who by

reason of their background and experience are or may be different than

the persons already present in the community.

3It has been held that, absent a primary impact on the physical environ-

ment, social and economic effects alone do not mandate preparation of

an environmental impact statement. Image of Greater San Antonio v.

Brown, 570 F.2d 517 (Sth Cir. 1978) (reduction in force at air force

base); Breckinredge v. Rumsfeld, 537 F.2d 864 (6th Cir. 1976), cert.

denied, 429 U.S. 1061 (1977) (reduction in employment at army

A-17

not threaten merely “people pollution.” Plaintiff has pointed

out other values which it seeks to protect such as freedom

from traffic congestion and criminal activity, and preserva-

tion of the character of the neighborhood. These factors

have been found to be legitimate elements of the “human

environment” which federal decision makers must consider

in determining the necessity of preparing an environ-

mental impact statement.

The leading cases are Hanly v. Mitchell, 460 F.2d 640

(2d Cir.), cert. denied, 409 U.S. 990 (1972) [Hanly I];

and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972),

cert. denied, 412 U.S. 908 (1973) [Hanly II]. See also,

Hanly v. Kleindienst, 484 F.2d 448 (2d Cir. 1973), cert.

denied, 416 U.S. 936 (1974). In the Hanly cases, the Gen-

eral Services Administration (GSA) attempted construc-

tion of a nine-story jail and a nine-story conventional

office building behind the United States Courthouse in

Manhattan without preparation of an environmental impact

depot); National Ass’n of Gov’t Employees v. Rumsfeld, 418 F.Supp.

1302 (E.D. Pa. 1976) (closing of arsenal); Township of Dover v.

United States Postal Serv., 429 F.Supp. 295 (D.N.J. 1977) (consolida-

tion of small postal processing facilities); Metlakatla Indian Community

v. Adams, 427 F.Supp. 871 (D.D.C. 1977) (relocation of Coast Guard

air station); National Ass'n of Gov't Employees v. Rumsfeld, 413

F.Supp. 1224 (D.D.C. 1976), aff'd mem. sub nom., National Ass’n of

Gov’t Employees v. Brown, 556 *.2d 76 (D.C. Cir. 1977) (reduction

in work force at army depot); Marin City Council v. Marin County

Redev. Agency, 416 F.Supp. 700 (N.D. Calif. 1974) (housing develop-

ment). But cf. McDowell v. Schlesinger, 404 F.Supp. 221 (W.D. Mo.

1975), approved in Jackson County v. Jones, 571 F.2d 1004, 1007

(8th Cir. 1978) (relocation of Air Force personnel); City of Rochester

v. United States Postal Serv., 541 F.2d 967 (2d Cir. 1976) (construc-

tion of mail facility in suburban Rochester and abandonment of

downtown post office). See also, National Citizens Comm. for Brdcstg.

v. FCC, 567 F.2d 1095, 1098 n. 3 (D.C. Cir. 1977), cert. denied,

98 S.Ct. 2820 (1978); City of Santa Clara v. Kleppe, 418 F.Supp. 1243,

1263-65 (N.D. Calif. 1976), aff'd in this part sub nom. City of Santa

Clara v. Andrus, 572 F.2d 660 ,679-80 (9th Cir. 1978).

i

:

}

j

‘

7

}

j

A-18

statement. Plaintiffs lived near the proposed construction

site, most notably in two large apartment buildings across

the street. In Hanly I, the Second Circuit upheld denial

of preliminary injunctive relief with respect to the office

building, but reversed as to the jail. The GSA had ade-

quately considered the jail’s impact on water, heat, sewer,

and garbage resources, but the environmental assessment

was insufficient because it did not include consideration of

the effect of the jail on the neighborhood.

The . . . memorandum does adequately discuss

problems of water, heat, sewage, and garbage. But

those considerations apply to virtually any building.

The memorandum contains no hard look at the

peculiar environmental impact of squeezing a jail into

a narrow area directly across the street from two

large apartment houses. Indeed, there is not even

a word about those apartment houses or the others

located nearby.

. . . The National Environmental Policy Act con-

tains no exhaustive list of so-called “environmental

considerations,” but without question its aims extend

beyond sewage and garbage and even beyond water

and air pollution. .. . The Act must be construed

to include protection of the quality of life for city

residents. Noise, traffic, over-burdened mass transpor-

tation systems, crime, congestion and even availability

of drugs all affect the urban “environment” and are

surely results of the “profound influences of .. .

high-density urbanization [and] industrial expansion.”

. . . Thus, plaintiffs do raise many “environmental

A-19

considerations” that should not be ignored. We believe

the record in this case indicates that, as to the pro-

posed jail, they were.

460 F.2d at 646-47. Construction of the jail was stayed

pending an environmental reassessment by the GSA in light

of these legitimate environmental factors. The agency in

a 25-page document determined that no significant environ-

mental impact would result and the district court again

denied preliminary injunctive relief. In Hanly II, the

Second Circuit again reversed and remanded for agency

reconsideration because the GSA had not considered the

increased risk of crime the jail and an outpatient drug-

maintenance program might threaten.

In other cases courts have similarly found that impacts

on an urban environment must be considered under NEPA.*

4See, Maryland-National Capital Park & Planning Comm’n vy. United

States Postal Serv., 487 F.2d 1029 (D.C. Cir. 1973) (bulk mail facility

in industrial development); City of Rochester v. United States Postal

Serv., 541 F.2d 967 (2d Cir. 1976) (construction of mail facility in

suburban Rochester and abandonment of downtown post office); Trinity

Episcopal School Corp. v. Romney, 523 F.2d 88 (2d Cir. 1975), rev’g

387 F.Supp. 1044 (S.D.N.Y. 1974), on remand sub nom. Trinity

Episcopal School Corp. v. Harris, 445 F.Supp. 204 (S.D.N.Y. 1978)

(low-income housing project); Hiram Clarke Civic Club, Inc. v. Lynn,

476 F.2d 421 (Sth Cir. 1973) (low- and moderate-income apartment

project in Houston); Save Our Ten Acres v. Kreger, 472 F.2d 463 (Sth

Cir. 1973) (office building in downtown Mobile, Alabama); Nucleus

of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225 (7th Cir. 1975),

cert. denied, 424 U.S. 967 (1976) (low-income housing project); First

Nat'l Bank v. Richardson, 484 F.2d 1369 (7th Cir. 1973) (parking

garage and detention center in Chicago); San Francisco Tomorrow v.

Romney, 472 F.2d 1021 (9th Cir. 1973) (commercial redevelopment) ;

S. W. Ngbrhd. Assembly v. Eckard, 445 F.Supp. 1195 (D.D.C. 1978)

(office building on Buzzard’s Point in southwest Washington, D.C.);

Town of Groton v. Laird, 353 F.Supp. 344 (D. Conn. 1972) (housing

for submarine base); Goose Hollow Foothills League v. Romney, 334

F.Supp. 877 (D. Ore. 1971) (high-rise student apartment building);

Morgan v. United States Postal Serv., 405 F.Supp. 413 (W.D. Mo.

A-20

The environmental concerns courts have expressed in these

cases may be classified into four somewhat overlapping

categories. The first regards what might be termed health

and public safety. Courts have examined a project’s poten-

tial effect on the quality of air and water, the noise level

of the community, and the capacity of existing or proposed

sewage and solid-waste disposal facilities. Relevant as well

is whether the project will affect the local crime rate,

present fire dangers, or otherwise unduly tap police and

fire forces in the community. The second category involves

consideration of the project’s impact on social services,

such as the availability of schools, hospitals, businesses,

commuter facilities, and parking. Apart from its impact

on a community’s services, a project may alter the char-

acter of the area in which it locates—the third category.

Conformance to local zoning ordinances, harmonization

with proximate land uses, and a blending with the aesthetics

of the area are concerns relevant to this category. The

1975) (expansion of parking lot for postal facili ; Businessmen

A ffected Severely v. D.C. City Council, 339 F.Supp. 793; D.D.C. 1972)

( high-rise office buildings in downtown Washington, D.C.); Maryland-

National Capital Park & Planning Comm'n v. Martin, 447 F.Supp. 350

(D.D.C. 1978) (consolidation of Defense Department mapping facili-

ties); City of New Haven v. Chandler, 446 F.Supp. 925 (D. Conn.

1978) (construction of electrical transmission towers in harbor) ;

Higgins v. United States Postal Serv., 449 F.Supp. 1001 (D. Mass.

1978) (construction of general mail facility); Marin City Council v.

Marin County Redev. Agency, 416 F.Supp. 700 (N.D. Calif. 1975)

(housing development in urban renewal project); City & County of

San Francisco v. United States, 443 F.Supp. 1116 (N.D. Calif. 1977)

(leasing of naval shipyard); Town of Bechichem v. United States Dep't

of Labor, Civ. 76-439 (N.D.N.Y. Dec. 22, 1976) (Job Corps center);

cf. Ely v. Verde, 45 1 F.2d 1130 (4th Cir. 1971) (medical and recep-

tion center for prisoners in rural historic Virginia); Chelsa Ngbrhd.

Ass ns v. United States Postal Serv., 516 F.2d 378 (2d Cir. 1975)

(vehicle maintenance facility and public housing; adequacy of environ-

mental impact statement).

—- =

A-21

final category involves consideration of the project’s impact

on the community’s development policy. Relocation of a

federal facility from a downtown to a suburban location,

for example, might contribute to urban blight and decay.

Neighborhood stability and growth are values which have

been found to be cognizable under NEPA.

While this categorization of environmental concerns

may not be particularly helpful in analyzing the environ-

mental impact of a particular project, the categories do

serve to illuminate the breadth of the “human environment”

NEPA contemplates. To an increasing degree, the cate-

gories reflect a departure from traditional notions of the

environment, and they substantiate plaintiff's allegations

of harm as legitimate environmental concerns.

Paragraph 9 of the complaint enumerates the specific

environmental harms plaintiff foresees as resulting from

establishment of the Job Corps center: vehicular and pe-

destrian congestion; demand for increased fire and police

protection; increased strain on other services such as

public transportation, legal services, emergency health

care, and utilities; increased criminal activity; a loss in

residential property values; and substantial alteration of

the residential character of the neighborhood. The original

assessment of environmental impact prepared by the

Department of Labor on November 3, 1977, dealt explicitly

with only one of the harms plaintiff alleges. It, as well as the

administrative record submitted to the Court for the pre-

liminary injunctive hearing, dealt all but exclusively with

the proposal’s impact on utility demands and local energy

resources, detailing as well the renovation necessary to

A-22

render the existing buildings suitable for a Job Corps

center. After the Court granted preliminary injunctive

relief, the Department compiled the complete record on

which it based its original negative assessment (Defs. Exs.

1-29, 37, 45, 48-50. See also, Defs. Exs. 42, 43) and,

without conceding that that record was deficient, under-

took a supplemental study of the external environmental

effects of the Job Corps center. (Defs. Ex. 52. See also,

Defs. Exs. 30-36, 38-41, 44, 46, 47, 51) The Court will

evaluate the reasonableness of the agency’s reassessment of

insignificant environmental impact (Defs. Ex. 53) which

was based on the entire administrative record.

The administrative record before the Court is a docu-

ment of impressive proportions. Because plaintiff has raised

substantial claims of environmental harm and because the

policies underlying NEPA favor preparation of an environ-

mental impact statement, the Court will judge the reassess-

ment and supporting record under the rather stringent

four-pronged test first advanced by Judge Leventhal in

Maryland-National Capital Park & Planning Comm’n y.

United States Postal Serv., 487 F.2d 1029, 1040 (D.C.

Cir. 1973). Accordingly, the reasonableness of the Depart-

ment of Labor’s negative assessment of environmental

impact will be gauged by the following standards:

(1) Did the agency take a “hard look” at the environ-

mental problems?

(2) Did the agency identify the relevant areas of en-

vironmental concern?

(3) As to problems studied and identified, does the

agency make a convincing case that the impact

is insignificant?

A-23

(4) If there is impact of true “significance” has the

agency convincingly established that changes in

the project have sufficiently minimized it?

It is apparent, from the administrative record that the

Department of Labor has taken a “hard look” at the

environmental effects establishment of.the Job Corps center

might create. While the reassess nent itself (Defs. Ex. 53)

might seem conclusory and in some respects superficial,

the supporting supplemental study contains a detailed

analysis of all relevant environmental concerns. The con-

troversy is whether the Department has made a convincing

case that each environmental impact is insignificant, or has

convincingly established that impacts of significance have

been sufficiently minimized.

1. Vehicular and pedestrian congestion

The Department of Labor has demonstrated that the

proposed Job Corps center will not increase congestion

in the area of the Bethel campus. The 411 potential resi-

dential enrollees of the center will be served by 140 staff

of whom no more than 80 members will be on the premises

at a given time. (Defs. Exs. 42, § 5; 54, ¢ 4) The total

number of occupants of the center thus compares favor-

ably with the use to which Bethel had recently put the

site: as a campus during the 1971-72 school year for

1,139 students of whom 397 lived in dormitories, and as

dormitory housing since September, 1972, for 400 to

430 students. At present, the site provides 92 off-street

parking spaces. (Defs. Ex. 52, at 39) Since enrollees are

not permitted vehicles (Defs. Ex. 43, 4 5), parking for

A»24

staff and visitors should be adequate. (See also, Defs. Ex.

42, ¥ 4) In any event, the Department has assured the

Governor that sufficient off-street parking will be available.

(Defs. Ex. 41, pt. 1, § 7) The amount of traffic should

be reduced as well because at present the Bethel students

residing on the campus must commute daily to Arden

Hills for classes. It should be noted also that the site is

served by one of the city’s major thoroughfares, Snelling

Avenue. (See, Defs. Exs. 52, at 97-99; 47)

Because the number of occupants of the center corre-

sponds favorably to the numbers present when Bethel

occupied the site, pedestrian congestion should not appre-

ciably increase. It might well decrease because Job Corps-

members may leave the premises with authorization only

if they obtain a pass. (Defs. Ex. 52, at 156-58) Plaintiff

introduced evidence of absenteeism at a Job Corps center

in Tulsa, Oklahoma. (Testimony of Michael Phillips; Pltf.

Exs. 1A-I) This evidence is not necessarily probative of

Jobs Corpsmembers roaming unsupervised through the

surrounding community, nor is it very probative of the

effect that should be expected from the proposed Job

Corps center. Congress has explicitly directed that stand-

ards of conduct are to be stringently enforced at Job Corps

centers. 29 U.S.C. § 920, as amended, Comprehensive

Employment and Training Act Amendments of 1978 § 459.

Apparent laxity of disciplinary enforcement at one center

should not be attributed as a matter of course to other

centers. The Court is convinced that neither vehicular nor

pedestrian traffic resulting from the center’s presence will

Cause any significant increase in congestion in the area.

A-25

2. Impact on local utilities

The Department of Labor plans no new construction for

the Bethel site and will spend over $1 million to renovate

the eight existing buildings. Because the number of occu-

pants of the center will approximate the previous popula-

tion of the campus, no appreciable impact on municipal

water or sewer systems or significantly increased demand

on natural gas or electrical resources is reasonably fore-

seen. (Defs. Exs. 4; 52, at 39-69, 159)

3. Impact on community social services

A Job Corps center is in most respects a self-contained

facility. The Job Corps provides primary health care

(Defs. Exs. 42, 9 7; 52, at 12-13, 159; see, 29 C.F.R.

§§ 97a.61-.72),° legal services (Defs. Ex. 52, at 159; see,

29 C.F.R. § 97a.92), transportation for special events

(Defs. Exs. 42, 9 5; 52, at 159), and recreational facilities

(see, e.g., Defs. Ex. 4, at 1; 29 C.F.R. § 97a.74). Loca-

tion of the center in a metropolis further minimizes its

impact on the social services of the community. It is

reasonable to conclude, as the Department of Labor did,

that the center’s impact on the provision of local services

would be insignificant.

4. Contribution to criminal activity

The impact a Job Corps center might have on the

security of an urban environment is an emotionally

*Arrangements for emergency back-up care (Defs. Ex. 42, § 7) and

hospitalization (Defs. Ex. 52, at 159) will be made with local health-

care facilities.

A-26

charged issue. Members of plaintiff understandably fear

an influx of disadvantaged youth in their neighborhood

when reports from other Job Corps centers portend in-

creased criminal activity. The Department of Labor, just

as understandably, emphasizes that a Job Corps center is

not a punitive or correctional facility and that the youths

enrolled in the program are entitled to an opportunity to

better themselves. The incidence of crime as an environ-

mental impact cannot be determined by a comparison of

emotional fervor.® Because plaintiff's fears, while under-

standable, are not based on a significant likelihood of

danger to the community, the Court concludes that the

Department of Labor acted reasonably in determining that

the proposed Job Corps center would not appreciably

affect public safety in the neighborhood.

Pursuant to legislation and regulation, Job Corps appli-

cants are carefully screened and enrollees are subject to

disciplinary procedures. 29 U.S.C. §§ 913(4), 914, 915,

920, as amended, Comprehensive Employment and Train-

ing Act Amendments of 1978 §§ 452(4), 453, 454, 459;

®Mere opposition to a federal project does not make the project contro-

vensial so as to require an environmental impact statment. See, 40

C.F.R. § 1500.6(a); Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir.

1972), cert. denied, 412 U.S. 908 (1973); Fund for Animals v. Frizzell,

530 F.2d 982, 989 n. 15 (D.C. Cir. 1975); Rucker v. Willis, 484 F.2d

158, 162 (4th Cir. 1973); Hiram Clarke Civic Club, Inc. v. Lynn, 476

F.2d 421, 426 (Sth Cir. 1973); Nucleus of Chicago Homeowners

Ass'n v. Lynn, 524 F.2d 225, 231-32 (7th Cir. 1975), cert. denied,

424 U.S. 967 (1976); Simmans v. Grant, 370 F.Supp. 5, 16 (S.D.

Tex. 1974); Maryland-National Capital Park & Planning Comm'n v.

Martin, 447 F.Supp. 350, 353 (D.D.C. 1978); City of New Haven v.

Chandler, 446 F.Supp. 925, 932-33 (D. Conn. 1978); cf. Morgan v.

United States Postal Serv., 405 F.Supp. 413, 423-24 n. 13 (W.D. Mo.

1975); National Ass'n of Gov't fet ite v. Rumsfeld, 418 F.Supp.

1302, 1307 (E.D. Pa. 1976). But see, Hanly v. Kleindienst, 471 F.2d

823, 838-39 (2d Cir. 1972) (Friendly, C.J., dissenting), cert denied,

412 U.S. 908 (1973)...

A-27

29 C.F.R. §§ 97a.30-.32, .36, .51, .73(d) (2), ory Lat,

As operator of a federal facility, the Job Corps is primarily

responsible for providing adequate security personnel to

police the center, although it is customary to make arrange-

ments with the local police force for back-up support in

the event of an emergency. (29 C.F.R. § 97a.117; Defs.

Exs. 37; 42, 9 8; 43, 4 7; 52, at 159-60) Usually one

security-related employee is hired for every 50 enrollees.

(Defs. Ex. 52, at 159) All of these measures are designed

in part to ensure the safety of the community in which

the Job Corps center locates.’

Plaintiff has introduced evidence of disturbances at and

near other Job Corps centers. The Department of Labor

has considered in the administrative record plaintiff's

charges of threats to public safety elsewhere. (Defs. Ex.

52, at 165-66. See also id. at A-251 to -253, A-298 to

-437.) It is proper to characterize the more serious of

these occurrences as isolated incidents, the stuff of which

headlines are made, in the history of the Job Corps,

which has had 620,000 enrollees and an enrollment in

1977 of 22,000. (Defs. Ex. 52, at 8, 9) The more minor

of these offenses may be characterized as a normal inci-

dent of gathering a significant number of teen-aged youths

in one location and can be significantly reduced by the

exercise of stringent discipline and supervision. (See gener-

ally, Deposition of Andrew Pecile) The Department of

Labor advances arrest statistics in proof that Job Corps-

members have substantially fewer arrests than do compar-

TCongress intended that some Job Corps training centers be placed in an

urban setting. See, 29 U.S.C. § 917(a), as amended, Comprehensive

Employment and Training Act Amendments of 1978 § 456(a).

A-28

ably aged youth. (Defs. Exs. 36; 52, at 166-70) Plaintiff

cogently challenges the meaningfulness of this statistical

comparison (Mem. Oppos. Motion to Vacate Preliminary

Injunction, at 5-12), but setting the statistics aside does

not impel a finding of significant environmental impact.

Even if one regards a rise in crime in communities near

other centers to be significant, that is not necessarily pro-

bative of increased criminal activity at the proposed Job

Corps center. The Job Corps has learned some lessons

from perhaps unfortunate placements of centers in the

past, and from lack of proper discipline and supervision.

(See, Defs. Ex. 52, at A-253; Deposition of Andrew Pecile.

See also, Defs. Ex. 52, at 187, A-152) The proposed center

is medium-sized and will be coeducational. Recruitment

will be predominantly local. (See, Defs. Ex. 52, at 28 )

The center will not be located in an isolated small town,

where its impact may be significant, but in the midst of a

large metropolitan area. All of these factors tends to dissi-

pate the impact enrollees and visitors to the center may

present, making it not unreasonable for the Department

of Labor to characterize the impact as insignificant.

In addition, the Memorandum of Agreement between

the Governor and the Department of Labor contains assur-

ances which would further minimize the dangers plaintiff

envisions. The agreement provides that all enrollees will

be Minnesota youth,® that thé community will have input

8Paragraph 4 of part one of the Memorandum of Agreement provides:

All enrollees will be Minnesota youth. If after a period of time,

not less than one year, the State of Minnesota is unable to provide

sufficient enrollees to fill the Center, the Department of Labor

will ask the Governor for his recommendations. After a reason-

able period of time, if the recommendations do not result in the

A-29

as to selection of certain enrollees,® that the center will

establish a 24-hour telephone service for reporting emer-

gency or suspicious conditions,’® and that persons with a

serious criminal history not be selected for enrollment."

filling of the Center with Minnesota youth, the Department of

Labor may take whatever actions it believes are necessary to

operate the Center in a cost effective manner, Priority of admission

will under all circumstances be given to Minnesota youth.

(Defs. Ex. 41, pt. 1, 4 4)

*Paragraph 12 of part one of the Memorandum of Agreement provides:

Three individuals selected from the ad hoc committee (and the

Community Advisory Council after the Center opens) will review

applications of those individuals identified by the State Job Corps

Coordinator about whom there is some question of their ability

to make a successful adjustment to the Center. In the case of a

disagreement between the committee and the coordinator as to the

recommended action, both recommendations will be submitted to

the Department of Labor for their action. The names and addresses

of individuals will be withheld to protect their privacy during the

community review process. Such procedures will be in com liance

with the Federal Privacy Act. Reviews of applications will be in

compliance with the screenings and selection criterion in the Job

Corps Statutes and Regulations.

(Defs. Ex. 41, pt. 1, € 12. See also id. 94 8, 11, 13, 14; id. pt. 2, 4 (e))

‘Paragraph g of part two of the memorandum of Agreement provides:

The Center shall publicize a twenty-four hour telephone number

for reporting emergency or suspicious conditions in the neighbor-

hood which may be associated with the Center or its enrollees. The

Center’s staff will be made evailable on a twenty-four hour basis

to respond to such calls.

(Defs. Ex. 41, pt. 2, 9 (g))

Paragraph 3 of part one of the Memorandum of Agreement provides:

(a) No individual shall be selected as an enrollee unless it is

determined that there is reasonabe expectation that he can Ppartici-

pate successfully in group situations and activities with other

enrollees, that he is not likely to engage in actions or behavior

that would prevent other enrollees from receiving the benefit of

the program or be incompatible with the maintenance of sound

discipline and_ satisfactory relationships between any center to

which he might be assigned and surrounding communities, and

that he manifests a basic understanding of both the rules to which

he will be subject and of the consequences of failure to observe

those rules.

A-30

The agreement further provides that the Governor is to

assess periodically the effect of the center on the neighbor-

hood and after its first year of operation deliver written

recommendations to the Secretary of Labor as to con-

tinued operation of the center.??

Plaintiff argues that provisions of the agreement limit-

ing enrollment to Minnesota youth and excluding individ-

uals with a serious criminal history are illegal and

unenforcible.** The Department of Labor contends that

the agreement is valid. Determination of the enforcibility

(b) No individual shall be selected who has a history of violent

behavior against persons or property, repetitive delinquent acts,

narcotics addiction, or other major behavioral aberrations includ-

ing conviction for the commission of a felony. This prohibition

shall apply irrespective of whether an individual is on probation,

parole, under a suspended sentence or under the supervision of

any agency as a result of court action.

(c) In determining whether an individual may be selected for

participation, the Secretary may, in consultation with the Gover-

nor, after obtaining the opinion of a professionally qualified

individual, conclude that an individual who would not otherwise

be selected, should be permitted to participate in the program due

to positive changes in the individual’s personal behavior.

(Defs. Ex. 41, pt. 1, 43)

12Paragraph 2 of part one of the Memorandum of Agreement provides:

Periodically, the Governor of Minnesota will assess the effect of

the center on the neighborhood and the communities. At the end

of the first year of operation, the Governor will notify the

Secretary of Labor in writing with recommendations on continua-

tion of the center. The Secretary of Labor will review the

Governor’s recommendations and fully consult with the Governor

in determining the future status of center operations.

(Defs. Ex. 41, pt. 1, 4 2)

18Plaintiff relies on 29 U.S.C. § 916(d), as amended, Comprehensive

Employment and Training Act Amendments of 1978 § 455(c), to

ielienen the validity of paragraph 4 of part one of the Memorandum

of Agreement (quoted in note 8 supra). It relies on section 454(b) of

the Comprehensive Employment and Training Act Amendments of

1978 and Minn. St. ch. 364 to attack the validity of paragraph 3(b)

of ” one of the Memorandum of Agreement (quoted in note 11

supra.

A-31

of the provisions, if need be, is for another forum another

day. The Court notes that the agreement provides for

“[nJothing in this agreement is intended to supercede ap-

plicable Federal, State or local laws as they apply to the

issues discussed here.” (Defs. Ex. 41, at 1) Congress

intends that only such disadvantaged youth as can be rea-

sonably expected to successfully complete the training

program be accepted as enrollees and that enrollees be

subject to a disciplinary code that is stringently enforced.

(See statutory authorities cited on page 21 supra). The

Department of Labor has pledged its good faith in han-

dling problems if they arise (see, e.g., Defs. Exs. 53, at 4;

54, at 154), and has informed the Governor that:

The Center will work closely with the Community

Advisory Council in identifying, should they occur,

disciplinary problems with corpsmembers affecting the

community. Center staff shall take appropriate ac-

tions to eliminate problems should they occur.

(Defs. Ex. 41, pt, 2, § (e)) Whether or not the provisions

of the Memorandum of Agreement plaintiff challenges

are enforcible, the Court is convinced that sufficient steps

have been taken to ensure that the impact of the center

on the security of the neighborhood will not be significant.

5. Police and fire protection

The discussion above regarding possible increased crim-

inal activity provides justification for the Department of

Labor’s determination that the center will not significantly

affect the operation of the St. Paul police force. (See also,

A-32

Defs. Ex. 52, at 103-06, 160-62) The Department’s plan

to refurbish the existing buildings to conform them to

local codes lessens the risk of fire the buildings now pre-

sent. (See, id, at 159) Plaintiff did introduce evidence of

arson at other Job Corps centers,‘* but again, though such

evidence might suffice to fuel neighborhood fears, it is

only speculation to assert that arson will present a signifi-

cant environmental threat at the proposed center.

6. Alteration of character of the neighborhood

Plaintiff argues that establishment of a Job Corps center

on the Bethel site will substantially alter the residential

character of the neighborhood and reduce residential

property values. In support of its position, plaintiff con-

tends that use of the Bethel site for a Job Corps center

would not be permissible under the St. Paul zoning ordi-

nance. Plaintiff does not ask the Court to enjoin the project

pending a rezoning, but suggests quite correctly that a

variance from local land-use regulation demands greater

scrutiny under NEPA.

center constitutes major federal action significantly affec-

the Bethel campus. Pursuant to 29 U.S.C. § 925 (c)

The administrative record does not mention the local

zoning ordinance. (See, e.g., Defs. Ex. 52, at A-174) In

a memorandum opposing plaintiff's motion for a prelim-

inary injunction, the Department of Labor argued that

the Job Corps center would be a valid nonconforming use

or, alternatively, under the Supremacy Clause, U.S. Const.

art. VI, cl. 2, the Department could establish a Job Corps

44Deposition of Michael Robertson, at 13-14; Deposition of Andrew

Pecile, at 14; testimony of John D. Erskine.

ee

A-33

center on the site, local zoning ordinances notwithstanding.

(Mem. at 8-9) Thus, for purposes of this case, the Court

will assume that operation of a Job Corps center on the

Bethel site is not a use conforming to the zoning classifi-

cation of the property.

In a number of cases involving NEPA, courts have

recognized the relevance of a variance between the pro-

posed project and neighboring actual or permissible land

uses. In Maryland-National Capital Park & Planning

Comm’n v. United States Postal Serv., 487 F.2d 1029,

1036-38 (D.C. Cir. 1973), Judge Leventhal observéd:

The question of significance takes on a distinctive

cast in the context of land use planning. We think

that much may turn on whether the Federal Govern-

ment conforms to or deviates from local or regional

regulations of land use. . . . The policy goals of

NEPA are to be achieved “in cooperation with State

and local governments.” Section 101(a), 42 U.S.C.

§4331(a).

When local zoning regulations and procedures are

followed in site location decisions by the Federal

Government, there is an assurance that such “environ-

mental” effects as fiow from the special uses of land—

the safety of the structures, cohesiveness of neighbor-

hoods, population density, crime controls, and esthet-

ics—will be no greater than demanded by the resi-

dents acting through their elected representatives.

There is room for the contention, and there may even

be a presumption, that such incremental impact on

the environment as is attributable to the particular

A-34

land use proposed by the Federal agency is not

“significant,” that the basic environmental impact

from the project derives from the land use pattern,

approved by local authorities, that prevails gener-

ally for the same kind of land use by private persons.

When, on the other hand, the Federal Government

exercises its sovereignty so as to override local. zon-

ing protections, NEPA requires more careful scrutiny.

NEPA has full vitality, and its policies cannot be

taken as effectuated by local land use control, where

the proposal of the Federal Government reflects a

distinctive difference in kind from the types of land

use, proposed by private and local government

sponsors, that can fairly be taken as within the scope

of local controls. The same considerations may apply

where there are differences in degree so great as to

make a difference in kind, or where potential environ-

mental effects extend geographically beyond the con-

trol on [sic] one independent local and regional

government. For example, whereas the Federal Gov-

ernment might legitimately defer to New York City

zoning in matters of, say, population density, a dif-

ferent issue would be posed by the location within —

the city of an atomic reactor. Its peculiar hazards

would not be limited to the citizens of New York nor

could they be controlled by them. |

. . - Not all deviations from local zoning will neces-

sarily rise to the level of affecting the “quality of

human environment” within the fair meaning of that

term....

A-35

Accord, Hanly vy. Kleindienst, 471 F.2d 823, 830-31 (2d

Cir. 1972), cert. denied, 412 U.S. 908 (1973); Nucleus

of Chicago Homeowners Ass’n vy. Lynn, 524 F.2d 225, 231

& n. 4 (7th Cir. 1975), cert. denied, 424 U.S. 967 (1976);

Goose Hollow Foothills League vy. Romney, 334 F.Supp.

877 (D. Ore. 1971); Businessmen Affected Severely v.

D.C. City Council, 339 F.Supp. 793 €D.D.C. 1972);

Morgan v. United States Postal Serv., 405 F.Supp. 413,

421 (W.D. Mo. 1975); Maryland-National Capital Park

& Planning Comm'n y. Martin, 447 F.Supp. 350, 352

(D.D.C. 1978); Benton County Savings & Loan Ass’n y.

Federal Home Loan Bank Bd., 450 F.Supp. 884, 890-91

(W.D. Ark. 1978); Hiram Clarke Civic Club, Inc. v. Lynn,

476 F.2d 421, 423 (Sth Cir. 1973); cf. Town of Groton v.

Laird, 353 F.Supp. 344, 350-51 (D. Conn. 1972). See

also, Sierra Club. v. Cavanaugh, 447 F.Supp. 427, 432-33

(D.S.D. 1978).

This Court has already scrutinized the proposed center’s

impact on vehicular and pedestrian congestion, local utili-

ties, community social services, neighborhood security,

and police and fire protection. Nevertheless, if a proposed

project would radically differ from neighboring land uses

so as to create a disharmony of aesthetics or frustrate a

municipality’s development plan, further study by the

agency in an environmental impact statement might be

necessary.

The Department of Labor in the administrative record

argues that “the area has not been and is not now primar-

ily residential, but rather is educational and recreational

in nature.” (Defs. Ex. 52, at 154) If the area referred to

by the Department of Labor is the St. Paul neighborhood

A-36

immediately adjacent to the campus, this statement is

erroneous. Indeed, the Department concedes as much in

its Memorandum of Agreement with the Governor: “The

Center will work closely with the Community Advisory

Council to ensure its operations are not disruptive to the

predominantly residential nature of the immediate neigh-

borhood.” (Defs. Ex. 41, pt. 2, § d (emphasis added).

See also, Defs. Ex. 1, at 1; 52, at 35) From a bird’s eye

view, however, the Department’s assertion is more accurate

because aerial photos show that much of the larger area

surrounding the Bethel College site is commercial and

recreational. As previously stated, the State Fairgrounds

are immediately across the street from the site, and Como

Park is a short distance away. (See, Pltf. Exs. 4-8; Defs.

Ex. 52, at 86-92)

In any event, location of the Job Corps center on the

Bethel site will not substantially alter the character of

the neighborhood. Bethel College and Seminary occupied

the site in 1914, thus predating many of the neighboring

residences. (Defs. Ex. 52, at 29, 75-79) No new con-

struction has occurred on the campus since 1957. (Jd.

at 31) The Department of Labor does not propose con-

struction of additional buildings or major alteration of

the face of the campus. (Defs. Ex. 42, q 3) It does

intend to refurbish the existing buildings and to budget

more funds for grounds maintenance than did Bethel

College. (See, Defs. Ex. 30, at 2) The Court, therefore,

cannot overturn the Department’s judgment that use of

the site as a Job Corps will substantially alter the character

of the neighborhood.

A-37

No case has been cited to or discovered by the Court

indicating that a diminution in neighboring property

values as a result of construction of a federal project is

an environmental impact cognizable under NEPA. In any

event, the Department of Labor examined the allegation

of economic loss in property value and has concluded

that such effect is unlikely. (Defs. Ex. 52, at 171-72.

See also, Defs. Ex. 32) #5

7. Opportunity for public input

Relying on Hanly v. Kleindienst, 471 F.2d 823, 835-36

(2d Cir. 1972), cert. denied, 412 U.S. 908 (1973), plain-

tiff argues that both the Department of Labor’s original

assessment of environmey)ial impact and reassessment are

fatally defective for failure to provide plaintiff a formal

opportunity to present evidence as to environmental effects.

Although public meetings regarding the Job Corps center

were conducted, it appears that the Department did not

provide members of plaintiff a formal opportunity to offer

evidence.

In Hanly v. Kleindienst, while acknowledging an absence

of statutory or administrative authority, a panel of the

Second Circuit held “that before a preliminary or threshold

determination of significance is made the responsible

agency must give notice to the public of the proposed

major federal action and an opportunity to submit rele-

vant facts which might bear upon the agency’s threshold

decision.” Jd. at 836. The court left for agency determina-

15Mere diminution in market value alone does not constitute an unconsti-

tutional taking. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 43 S.Ct. 158 (1922).

A-38

tion the mechanisms suited to gather public response to

a particular action:

The precise procedural steps to be adopted are better

left to the agency, which should be in a better position

than the court to determine whether solution of the

problems faced with respect to a specific major federal

action can better be achieved through a hearing or

by informal acceptance of relevant data.

Id. See also, Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., 98 S.Ct. 1197

(1978); Harlem Valley Transp. Ass'n v. Stafford, 500 F.2d

328, 336-37 (2nd Cir. 1974); Cross-Sound Ferry Servs.

Inc. v. United States, 573 F.2d 725, 731-32 (2d Cir.

1978).*°

The public meetings participated in by the Depart-

ment of Labor in May and October, 1977, and the De-

partment’s contacts with local government officials suffice

to comply with the procedural requirements of NEPA as

16Chief Judge Friendly, dissenting in Hanly v. Kleindienst, felt that the

majority’s holding required preparation of a “mini-impact statement”

which would be “unduly burdensome when the action is truly minor

or insignificant,” 471 F.2d at 837, and would have held that the

agency’s efforts in the case would be better directed to preparation of

a full-fledged environmental impact statement.

The Hanley II requirement has received mix reviews outside the

Second Circuit. Compare, Simmans v. Grant, 370 F.Supp. 5, 18 (S.D.

Tex. 1974); Continental Ill. Nat'l Bank & Trust Co. v. Kleindienst,

382 ier 107, 113-14 (N.D. Ill), aff'd, 484 F.2d 1369 (7th Cir.

1973) (favorable), with National Ass'n of Gov’t Employees v.

Rumsfeld, 418 F.Supp. 1302, 1307-08 n. 2 (E.D. Pa. 1976); Friends

of the Earth, Inc. v. Butz, 406 F.Su p. 742, 744-45 (D. Mont. 1975),

dismissed as moot, sub nom. Friends of The Earth, Inc. v. Bergland,

576 F.2d 1379 (9th Cir. 1978) (unfavorable). See also, Minnesota

Public Interest Research Group v. Butz, 498 F.2d 1314, 1320-21

n. 20 (8th Cir. 1974) (en banc).

A-39

interpreted by the Court of Appeals for the Second Circuit.

Town of Groton v. Laird, 353 F.Supp. 344, 347 n. 3 (D.

Conn. 1972). While the Court believes that more and

earlier public participation would have been prudent, sens-

ible and advisable, perhaps quelling neighborhood fears,

it cannot hold that the Department of Labor abused its

discretion in failing to seek more extensive or more formal

public input. (See, Defs. Ex. 52, at 127-31, 142-75, 191-

259)

CONCLUSION

The role of the Court in adjudicating this controversy

is a limited one. Plaintiff acknowledges the social desirability

of the Job Corps program, but questions the decisions of

the Department of Labor to locate a Job Corps center on

the former campus of Bethel College and Seminary in

St. Paul. The issue before the Court is whether the De-

partment acted reasonably in determining that establishment

of the proposed center would not significantly affect the

human environment. Based on the entire administrative

record, the Court is convinced that the Department ex-

amined all relevant environmental factors and reasonably

determined in a reviewable record that the impact of the

center on the human environment would not be significant.

No environmental impact statement need therefore be pre-

pared. While the Court fully understands the concern of

the nearby residential community, and the earnestness with

which those concerns have been pursued, it must conclude,

based upon the entire record, that the Department of Labor

has complied with the procedural demands of NEPA, and

A-40

the plaintiff's complaint must be dismissed.'7

The Court expects the Department of Labor to keep the

pledge made in its Memorandum of Agreement with the

Govenor to involve the community in the operation of the

center and to conduct the center with care, with prudence,

and with concern for the community in which it is located.

With such care on the part of the Department, and with

sympathetic and thoughtful community participation, the

center may become, as the Department and the Governor

envisioned, a model for Job Corps centers elsewhere.

For the reasons set forth above, IT IS ORDERED:

1. That plaintiff's request for permanent injunctive

relief halting establishment of a Job Corps center at the

former campus of Bethel College and Seminary unless and

until an environmental impact statement is prepared by

the Department of Labor be and hereby is denied;

2. That the preliminary injunction issued in this case

1TA claim contained in plaintiff's complaint but not pressed at trial should

be briefly examined. Plaintiff contends that the letter sent from the

Secretary of Labor to Governor Perpich notifying the Governor of the

Department’s intent to establish a Job Corps center on the Bethel site

(Defs. Ex. 5) failed to conform to the requirements of 29 U.S.C.

§ 925(c). That section provides:

No Job Corps center or other similar facility designed to carry

out the purpose of this chapter shall be established within a State

unless a plan setting forth such proposed establishment has been

submitted to the Governor, and such plan has not been disapproved

by him within 30 days of such submission.

Plaintiff contends that the letter as a “plan” was deficient in several

respects. (Complaint, { 15) Plaintiff's objections are at best academic.

Governor Perpich did not rely solely on the letter to evaluate the

desirability og the proposed center. The Governor took an active

investigatory role, requested and received at least one extension of the

30-day disapproval an and set rather stringent conditions on the

center’s operation when he gave his approval. See also, Comprehensive

Employment and Training Act Amendments of 1978 § 464(c).

A-41

by this Court on February 22, 1978, enjoining establishment

of the Job Corps center be and hereby is dissolved and with-

out further force and effect.

LET JUDGMENT FOR DEFENDANTS BE EN-

TERED ACCORDINGLY.

[s] HARRY H. MacLAUGHLIN

Judge, United States District Court

DATED: December 11, 1978.

APPENDIX B

United States Court of Appeals

For The Eighth Circuit

No. 79-1165

Como-Falcon Community Coalition, Inc.

Appellant,

v.

United States Department of Labor, Raymond Marshall,

United States Secretary of Labor; Richard C. Gilliland,

Regional Adiministrator, United States Department of

Labor; Rudy Perpich, Govenor of the State of Minnesota,

Appellees.

A-42

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MINNESOTA.

Submitted: June 14, 1979

Filed: November 19, 1979

Before LAY, ROSS and HENLEY, Circuit Judges.

LAY, Circuit Judge.

The fundamental issue presented is whether the district

court, The Hon. Harry H. MacLaughlin, presiding, erred

in holding that the establishment of a Job Corps center by

the United States Department of Labor on the former

campus of Bethel College in St. Paul, Minnesota did not

require the filing of an environmental impact statement

(EIS) under the National Environmental Policy Act of

1969, 42 U.S.C.A. § 4321-4369 (1979) (NEPA).

Como-Falcon Coalition, Incorporated, is a nonprofit

corporation comprised of residents and owners of residential

property living near the site where the Job Corps center is

proposed. It urges that the establishment of the Job Corps

center constitutes major federal action significantly affect-

ing the quality of human environment and that the Depart-

ment of Labor is required to file an appropriate impact

statement. 42 U.S.C. § 4332. The Coalition presents sev-

eral subsidiary questions on appeal: (1) Does NEPA

require a public hearing prior to making the decision on the

A-43

requirement of an EIS? (2) Did the district court err in

denying pretrial discovery?! (3) Whether the district

court’s findings that the establishment of the Job Corps

center did not significantly affect the quality of human en-

vironment are clearly erroneous.

On October 17, 1977, the Secretary of Labor informed

then Govenor Rudy Perpich of Minnesota of the Depart-

ment of Labor’s intent to establish a Job Corps center on

the Bethel campus. Pursuant to 29 U.S.C. § 925(c)

(1976),’ the Govenor was given thirty days in which to

disapprove the project. A public meeting was held on Oc-

tober 20, 1977, before a representative of the regional office

of the Department of Labor. At that time some neighbor-

hood residents opposed locating the Job Corps center on

the Bethel campus. Shortly thereafter the Mayor of St. Paul

pledged his support for the project but two nearby munici-

palities, Roseville and Falcon Heights, adopted resolutions

against the proposed center. The Governor sought and

obtained an extension of time to study the proposal. Finally,

on December 29, 1977, Governor Perpich conditionally

approved establishment of the Job Corps center,

On February 1, 1978, plaintiff commenced this suit seek-

ing injunctive relief on the ground that an EIS should have

been issued. Originally Judge MacLaughlin granted a pre-

‘In view of our finding that a plenary trial was not necessary, we need not

pass on this question; nor do we need to pass on the Coalition’s

challenge that the agreement between the Governor and the Department

of Labor is illegal and unenforcible. As the district court indicated

this is not relevant to the present proceeding and even assuming

plaintiffs have standing to raise the claim, which we question, no

breach has yet occurred and the allegation, if true, remains for another

forum another day.

*The Act was amended in 1978 and this proviso is now 29 U.S.C.A.

§ 937(c) (1979).

A-44

liminary injunction. The court thereafter held a plenary

trial and on December 11, 1978, dissolved the injunction.

holding that although the Department of Labor’s action

constituted a major federal action, the determination that

an EIS was not needed was reasonable because the evidence

demonstrated there was no adverse environmental impact af-

fecting the human environment. Como-Falcon Coalition,

Inc. v. United States Department of Labor, 465 F.Supp.

850 (D. Minn. 1978).

Upon granting a preliminary injunction, the district

court required the Department of Labor to compile an

administrative record on which it based its assessment that

an EIS was not necessary. The Department also conducted

a supplemental study and reassessment of the environmental

impact of the proposed center. The court evaluated the ad-

ministrative record and the plaintiff’s counter evidence in

terms of whether the reassessment was reasonable under the

circumstances. Minnesota Public Interest Research Group

v. Butz, 498 F.2d 1314, (8th Cir. 1974) (en banc). Plain-

tiff argues that the Department’s failure to file an EIS was

a violation of NEPA because the environment will be

affected in numerous ways: (1) vehicular and pedestrian

congestion, (2) impact on local utilities, (3) impact on

commerce, social services, (4) contribution to criminal

activity, (5) police and fire protection and (6) alteration

of the character of the neighborhood. As indicated, the

district court analyzed the evidence and concluded in a

detailed opinion that the agency determination not to file

an environmental impact statement was not unreasonable.

Before passing on the court’s analysis, we turn to the

ee a —ae

A-45

Coalition’s challenge that they were denied a public hear-

ing and had not reasonable opportunity to present evi-

dence to the Department of Labor before it concluded

that an EIS was not necessary. The district court relying

on Hanly v. Kleindienst, 471 F.2d 823, 835-36 (2d Cir.

1972), cert. denied, 412 U.S. 908 (1973), impliedly held

that some public hearing was necessary, but that the public

meetings held by the Department of Labor in May and

October 1977 were sufficient to comply with the procedural

requirements established by the Second Circuit. This court

has never passed on the precise question of whether some

procedural hearing opportunities are mandated before an

agency determines whether to file an EIS. Plaintiff cites no

statutory or administrative authority requiring one. There

is no question that an agency must make a good faith de-

termination of whether an EIS is required. As we have

indicated, that determination is subject to the court’s re-

view to see if it was reasonable under the circumstances.

Whether the agency has exercised good faith discretion

depends in part on the depth of study of the particular

problem and whether the agency has considered all signifi-

cant environmental effects as required by NEPA.

3In Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied,

412 U.S. 908 (1973), the court observed:

[T]hat before a preliminary or threshold determination of significance

is made the responsible agency must give notice to the public of the

proposed major federal action and an opportunity to submit relevant

facts which might bear upon the agency’s threshold decision. . . .

The precise procedural steps to be adopted are better left to the

agency, which should be in a better position than the court to

determine whether solution of the problems faced with respect to a

specific major federal action can better be achieved through a

hearing or by informal acceptance of relevant data.

Id. at 836.

A-46

Sometimes it may be advisable for the agency to pro-

vide for public input and opinion through a public hearing

and in weighing the reasonableness of the agency action

the court may consider the opportunity of the public,

through hearings or otherwise, to make their views known

and to make input into the decision. But there is no statutory

requirement that the agency provide such an opportunity,

or an Opportunity of a particular kind, and we are unwill-

ing by judicial decision to legislate such a requirement into

the Act.

In this case the Department of Labor gave to repre-

sentatives of the property owners in the affected area an

opportunity to express their views, and they did so. As

stated by the court in Jicarilla Apache Tribe of Indians v.

Morton, 471 F.2d 1275 (9th Cir. 1973):

To hold in the abstract that meaningful public

participation in the NEPA process cannot exist unless

public hearings are held subsequent to the issuance

of a draft environmental impact statement and prior

to the preparation of the final document would be to

substitute our judgment for that of Congress. It is

true that the legislative history of NEPA indicates that

the desire for a greater degree of responsiveness by

administrative decision makers was one factor in the

passage of NEPA. Despite this concern, however, there

is no express provision in NEPA requiring administra-

tive hearings as a procedural step in the preparation

of § 102(2)(C) environmental impact statements.

Id. at 1286.

ltt

cate.

A-47

We find this language controlling here. See also Scenic

Rivers Ass’n v. Lynn, 520 F.2d 240 (10th Cir. 1975),

rev'd on other grounds, sub nom. Flint Ridge Dev. Co.

v. Scenic Rivers Ass’n, 426 U.S. 776 (1976); Nucleus of

Chicago Homeowners Ass’n v. Lynn, 524 F.2d 225 (7th

Cir. 1975), cert. denied, 424 U.S. 967 (1976).

We move then to the more fundamental issue of whether

under the facts presented, NEPA requires the preparation

of an EIS. We have analyzed the entire record. We hold

that the district court’s finding, that the Department of

Labor’s reassessment of the environmental impact in

establishing the center was reasonable, was not erroneous.

Nonetheless, we vacate that portion of the district court’s

opinion concerning the evaluation of the Department of

Labor’s analysis. We hold the district court erred in re-

quiring the reassessment. The social and economic factors

raised by the Coalition’s complaint are not encompassed

within the provisions of NEPA, and under the circum-

stances of this case, need not have been considered by the

Department in its determination of whether to file an

EIS. We think the rule is well settled that:

When an action will have a primary impact on the

natural environment, secondary socio-economic effects

may also be considered. See, e.g., Hanly v. Mitchell,

460 F.2d 640 (2d Cir.), cert. denied 409 U.S. 990,

93 S.Ct. 313, 34 L.Ed.2d 256 (1972); Council on

Environmental Quality Guidelines, 40 C.F.R. §

1500.8(a)(3) (ii) (1975). But when the threshold

requirement of a primary impact on the physical en-

vironment is missing, socio-economic effects are in-

A-48

sufficient to trigger an agency’s obligation to prepare

an EIS.

Image of Greater San Antonio, Texas v. Brown, 570 F.2d

517, 522 (Sth Cir. 1978) (emphasis added) (citations

omitted ).

See also Nucleus of Chicago Homeowner Ass’n v. Lynn,

524 F.2d at 231; Maryland-National Capital Park &

Planning Comm'n v. United States Postal Serv., 487 F.2d

1029, 1037 (D.C. Cir. 1973); First Nat'l Bank v. Richard-

son, 484 F.2d 1369, 1380 n.13 (7th Cir. 1973); National

Ass'n of Gov't Employees v. Rumsfeld, 418 F.Supp.

1302, 1305-06 (E.D. Pa. 1976).

The court in Nucleus of Chicago Homeowners Ass’n v.

Lynn dealt with a similar problem, and indicated that

socio-economic complaints alone were not cognizable under

NEPA. The court stated:

The gravamen of plaintiffs’ complaint is that low-

income public housing tenants as a group statistic-

ally exhibit a high incidence of violence, law viola-

tion, and destruction of property and that HUD failed

to consider the adverse impact of these social char-

acteristics on the neighborhoods CHA has chosen

for the construction of scattered-site housing. To the

extent that this claim can be construed to mean that

HUD must consider the fears of the neighbors of

prospective public housing tenants, we seriously

question whether such an impact is cognizable under

NEPA. . . . We agree with the Court of Appeals for

the District of Columbia that: “Concerned persons

pla

A-49

might fashion a claim supported by linguistics and

etymology, that there is an impact from people pollu-

tion of ‘environment,’ if the term be stretched to its

maximum. We think that type of effect cannot fairly

be projected as having been within the contempla-

tion of Congress.” Maryland-National Cap. PK &

PL. Com’n v. U. S. Postal Serv., 159 U.S. App.

D.C. 158, 487 F.2d 1029, 1037 (1973).

Id. at 231 (citation omitted).

There can be no dispute in the present case that there

will be no significant impact on the “human environment”

as that term is defined under the Act resulting from the

establishment of the Job Corps center on the Bethel campus.

The plans are simply to renovate an existing educational

facility and it will continue to be used to provide educa-

tion. College students will be replaced with disadvantaged

youths who will undergo vocational training. As Judge

MacLaughlin found:

[L]ocation of the Job Corps center on the Bethel

site will not substantially alter the character of the

neighborhood. Bethel College and Seminary occupied

the site in 1914, thus predating many of the neighbor-

ing residences. (Defs. Ex. 52, at 29, 75-79) No new

construction has occurred on the campus since 1957.

(Id. at 31) The Department of Labor does not

propose construction of additional buildings or major

alteration of the face of the campus. (Defs. Ex. 42,

{|3) It does intend to refurbish the existing buildings

A-50

and to budget more funds for eS ee “gee

than did Bethel College. me bem Beton

anno

peat 1g soe , of the site as a Job Corps

"sj ent that us ial

eae ae alter the character of the neig

will s

hood.

Como-Falcon Coalition, Inc. V- Unit

465 F.Supp. at 866. |

ae laintiff’s challenge relates solely to Socio

pcre a and that the Department

s maintenance

ed States Dept. of

igi that an a

yg nasenet of the district court 1s affirmed, as mo

A true copy.

ei CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

APPENDIX C

CHAPTER 55— ee

NATIONAL ENVIRONMENTAL

* * *

aration of purpose

i 1

wae Seaeee oe ter are: TO declare a nati

urpo is chap

e ses of this c

a pire will encourage | produc dag

eo between man and his environment,

efforts which will prevent or

jonal

tive and enjoyable

omote

eliminate damage to the en-

A-51

vironment and biosphere and stimulate the health and

welfare of man; to enrich the understanding of the ecological

systems and natural resources important to the Nation; and

to establish a Council on Environmental Quality.

SUBCHAPTER 1 POLICIES AND GOALS

§4331. Congressional declaration of national environ-

mental policy—Creation and maintenance of conditions

under which man and nature can exist in productive

harmony

(a) The Congress, recognizing the profound impact

of man’s activity on the interrelations of all components

of the natural environment, particularly the profound in-

fluences of population growth, high-density urbanization,

industrial expansion, resource exploitation, and new and

expanding technological advances and recognizing further

the critical importance of restoring and maintaining en-

vironmental quality to the overall welfare and develop-

ment of man, declares that it is the continuing policy of

the Federal Government, in cooperation with State and

local governments, and other concerned public and private

organizations, to use all practicable means and measures,

including financial and technical assistance, in a manner

calculated to foster and promote the general welfare, to

create and maintain conditions under which man and

nature can exist in productive harmony, and fulfill the

social, economic, and other requirements of present and

future generations of Americans.

(b) In order to carry out the policy set forth in this

chapter, it is the continuing responsibility of the Federal

* A-52

Government to use all practicable means, consistent with

other essential considerations of national policy, to improve

and coordinate Federal plans, functions, programs. and

resources to the end that the Nation may—

(1) fulfill the responsibilities of each generation

as trustee of the environment for succeeding gener-

ations;

(2) assure for all Americans safe, healthful,

productive and esthetically and culturally pleasing

surroundings;

(3) attain the widest range of beneficial uses of

the environment without degradation, risk to health

or safety, or other undesirable and unintended

consequences;

(4) preserve important historic, cultural, and

natural aspects of our national heritage, and main-

tain, wherever possible, an environment which sup-

ports diversity and variety of individual choice;

(5) achieve a balance between population and

resource use which will permit high standards of living

and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources

and approach the maximum attainable recycling of

depletable resources.

* * *

§4332. Cooperation of agencies; reports; availability of

information; recommendations; international and na-

tional coordination of efforts

The Congress authorizes and directs that, to the fullest

extent possible: (1) the policies, regulations, and public

A-53

laws of the United States shall be interpreted and ad-

ministered in accordance with the policies set forth in this

chapter, and (2) all agencies of the Federal Government

shall—

(A) utilize a systematic, interdisciplinary ap-

proach which will insure the integrated use of the

natural and social sciences and the environmental

design arts in planning and in decisionmaking which

may have an impact on man’s environment;

(B) identify and develop methods and procedures,

in consultation with the Council on Environmental

Quality established by subchapter II of this chapter,

which will insure that presently unquantified environ-

mental amenities and values may be given appropri-

ate consideration in decisionmaking along with eco-

nomic and technical considerations;

(C) include in every recommendation or report

on proposals for legislation and other major Federal

actions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

(i) the environmental impact of the pro-

posed action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(ili) alternatives to the proposed action,

(iv) the relationship between local short-

term uses of man’s environment and the mainte-

A-54

nance and enhancement of long-term productiv-

ity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved

in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the comments

of any Federal agency which has jurisdiction by law or

special expertise with respect to any environmental impact

involved. Copies of such statement and the comments and

views of the appropriate Federal, State, and local agencies,

which are authorized to develop and enforce environmental

standards, shall be made available to the President, the

Council on Environmental Quality and to the public as

provided by section 552 of Title 5, and shall accompany

the proposal through the existing agency review processes;

(D) Any detailed statement required under sub-

paragraph (C) after January 1, 1970, for any major

Federal action funded under a program of grants to

States shall not be deemed to be legally insufficient solely

by reason of having been prepared by a State agency or

official, if:

(i) the State agency or official has statewide juris-

diction and has the responsibility for such action,

(ii) the responsible Federal official furnishes

guidance and participates in such preparation,

(iti) the responsible Federal official independent-

ly evaluates such statement prior to its approval and

adoption, and

A-55

(iv) after January 1, 1976, the responsible

Federal official provides early notification to, and

solicits the views of, any other State or any Federal

land mangement entity of any action or any alterna-

tive thereto which may have significant impacts

upon such State or affected Federal land management

entity and, if there is any disagreement on such im-

pacts, prepares a written assessment of such impacts

and views for incorporation into such detailed state-

ment.

The procedures in this subparagraph shall not relieve the

Federal official of his responsibilities for the scope, objec-

tivity, and content of the entire statement or of any other

responsibility under this chapter; and further, this subpara-

graph does not affect the legal sufficiency of statements

prepared by State agencies with less than statewide juris-

diction. *

(E) study, develop, and describe appropriate alterna-

tives to recommended courses of action in any proposal

which involves unresolved conflicts concerning alternative

uses of available resources;

(F) recognize the worldwide and long-range character

of environmental problems and, where consistent with the

foreign policy of the United States, lend appropriate sup-

port to initiatives, resolutions, and programs designed to

maximize international cooperation in anticipating and

preventing a decline in the quality of mankind’s world

environment;

(G) make available to States, counties, municipalities,

institution, and individuals, advice and information useful

A-56

in restoring, maintaining, and enhancing the quality of

the environment; :

(H) initiate and utilize ecological information in the

planning and development of resource-oriented projects;

and

(I) assist the Council on Environmental Quality estab-

lished by subchapter II of this chapter.

* * *

§4333. Conformity of administrative procedures to na-

tional environmental policy

All agencies of the Federal Government shall review

their present statutory authority, administrative regula-

tions, and current policies and procedures for the purpose

of determining whether there are any deficiencies or in-

consistencies therein which prohibit full compliance with

the purposes and provisions of this chapter and shall pro-

pose to the President not later than July 1, 1971, such

measures as may be necessary to bring their authority

and policies into conformity with the intent, purposes, and

procedures set forth in this chapter.

* * *

§4334. Other statutory obligations of agencies

Nothing in section 4332 or 4333 of this title shall in

any way affect the specific statutory obligations of any

Federal agency (1) to comply with criteria or standards

of environmental quality, (2) to coordinate or consult with

any other Federal or State agency, or (3) to act, or re-

frain from acting contingent upon the recommendations

or certification of any other Federal or State agency.

* * *

A-57

§4335. Efforts supplemental to existing authorizations

The policies and goals set forth in this chapter are sup-

plementary to those set forth in existing authorizations of

Federal agencies.

* * *

APPENDIX D

29 U.S.C. §923. Congressional statement of purpose

This part establishes a Job Corps for economically

disadvantaged young men and women, sets forth standards

and procedures for selecting individuals as enrollees in the

Job Corps, authorizes the establishment of residential and

nonresidential centers in which enrollees will participate

in intensive programs of education, vocational training,

work experience, counseling and other activities, and

prescribes various other powers, duties, and responsibilities

incident to the operation and continuing development of

the Job Corps. The purpose of this part is to assist young

persons who need and can benefit from an unusally in-

tensive program, operated in a group setting, to become

more responsible, employable, and productive citizens; and

to do so in a way that contributes, where feasible, to the

development of national, State, and community resources,

and to the development and dissemination of techniques

for working with the disadvantaged that can be widely

utilized by public and private institutions and agencies.

* * *

A-58

§925. Individuals eligible for enrollment in Job Corps

To become an enrollee in the Job Corps, a young man

or woman must be an eligible youth who—

(1) has attained age 14 but not attained age 22

at the time of enrollment, except that such maximum

age limitation may be waived, in accordance with

regulations of the Secretary, in the case of any handi-

capped individual;

(2) is economically disadvantaged or is a mem-

ber of a family which is economically disadvantaged,

and who requires additional education, training, or

intensive counseling and related assistance in order

to secure and hold meaningful employment, partici-

pate successfully in regular school work, qualify for

other suitable training programs, or satisfy Armed

Forces requirements;

(3) is currently living in an environment so char-

acterized by cultural deprivation, a disruptive home-

life, or other disorienting conditions as to substantially

impair prospects for successful participation in other

programs providing needed training, education, or

assistance;

(4) is determined, after careful screening as pro-

vided for in sections 926 and 927 of this title to have

the present capabilities and aspirations needed to

complete and secure the full benefit of the Job Corps

and to be free of medical and behavioral problems so

serious that the individual could not adjust to the

standards of conduct, discipline, work, and training

which the Job Corps involves; and

A-59

(5) meets such other standards for enrollment as

the Secretary may prescribe and agrees to comply with

all applicable Job Corps rules and regulations.

* * *

§927. Special limitations

(a) No individual shall be selected as an enrollee unless

there is reasonable expectation that the individual can

participate successfully in group situations and activities,

is not likely to engage in behavior that would prevent

other enrollees from receiving the benefit of the program

or be incompatible with the maintenance of sound disci-

pline and satisfactory relationsuips between the center to

which the individual might be assigned and surrounding

communities, and unless the individual manifests a basic

understanding of both the rules to which the individual will

be subject and of the consequences of failure to observe

those rules.

(b) An individual on probation or parole may be se-

lected only if release from the supervision of the proba-

tion or parole officials is satisfactory to those officials and

the Secretary and does not violate applicable laws or regu-

lations. No individual shall be denied a position in the

Job Corps solely on the basis of that individual’s contact

with the criminal justice system.

§937. Participation of States—Notice to Governor of

proposed establishment of Job Corps facility

(c) No Job Corps center or other similar facility de-

signed to carry out the purpose of this part shall be estab-

A-60

lished within a State unless a notice setting forth such

proposed establishment has been submitted to the Governor,

and the establishment has not been disapproved by the

Governor within 30 days of such submission.

APPENDIX E

ASSURANCES

(b) No individual shall be selected who has a history

of violent behavior against persons or property, repetitive

delinquent acts, narcotics addiction, or other major be-

havioral aberrations including conviction for the commis-

sion of a felony. This prohibition shall apply irrespective

of whether an individual is on probation, parole, under a

suspended sentence or under the supervision of any agency

as a result of court action.

* * *