Petition — Winnebago Tribe of Nebraska v. Ray

In The

Supreme Court of the United States

October Term, 1979

we__79-1948

fy

4

WINNEBAGO TRIBE OF NEBRASKA,

Petitioner,

vs.

COL. JAMES W. RAY, DISTRICT ENGINEER,

OMAHA DISTRICT, UNITED STATES ARMY,

CORPS OF ENGINEERS, IOWA PUBLIC SERV-

ICE COMPANY, AND NEBRASKA PUBLIC

POWER DISTRICT,

Respondents.

fy

a

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

ra’

w

MicHae. D. Goocr

LAWRENCE HAMMERLING

InterTribal Legal Services

Rt. 1, Box 66A

Winnebago, Nebraska 68071

Counsel for Petitioner

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

TABLE OF CONTENTS

Pages

Opinions . 2

Jurisdiction 2

Questions Presented ....... 2

Statutory Provisions and Regulations Involved ............. 3

Statement of the Case 8

Reasons for Granting the Writ 10

Appendix A App. 1

Appendix B App. 13

CASES CITED

Andrus v. Sierra Club, 99 S. Ct. 2335, 2341 (1979) .... 10

Calvert Cliffs Coord. Com. v. A. E.C., 449 F.2d

1109 (D.C. Cir. 1971)

City of Davis v. Coleman, 521 F.2d 661 (9th Cir.

1975)

Davis v. Morton, 469 F.2d 593 (10th Cir. 1972)

Greene County Planning Board v. F.P.C., 455

F.2d 412 (2nd Cir. 1972)

Henly v. Mitchell, 460 F.2d 640 (2nd Cir. 1972)

Hiatt Grain & Feed, Inc. v. Bergland, 446 F. Supp.

457 (N.D. Ill. 1978)

Hiram Clarke Civie Club, Ine. v. Lynn, 476 F. 2d

421 (5th Cir. 1973)

16

ii

CASES CITED—Continued

Pages

Indian Lookout Alliance v. Volpe, 484 F.2d 11,

19 (8th Cir. 1973) 13

Jette v. Berglund, 579 F.2d 59 (10th Cir. 1978) ........... 17

Minnesota Public Interest Research Group v.

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

(MPIRG I) 10, 11, 12, 13

N. A. A.C. P. v. Medical Ctr., Inec., 585 F.2d 619

(3rd Cir. 1978) 11

Natural Resources Defense Council, Ine. v. Morton,

488 F.2d 827 (D.C. Cir. 1972) 14

Patterson v. Exon, 415 F.Supp. 1276, 1282 (D.

Neb. 1976) 13

Pokorny v. Costle, 464 F. Supp. 1273 (D. Neb. 1979)... 16

Save The Bay, Inc. v. Corps of Eng., — F.2d —

(Sth Cir. 1980) 11

Scherr v. Volpe, 466 F. 2d 1027 (7th Cir. 1972) ou... 11

Sierra Club v. Morton, 400 F. Supp. 610, 644-645

(N. D. Calif. 1975) 12,13

State of Maryland v. Train, 415 F. Supp. 116 (D.

Md. 1976) 17

Swain v. Brinegar, 542 F. 2d 364 (7th Cir. 1976)

(en banc) Si aa

United States v. Sexton Cove Estates, Inc., 526

F.2d 1293 (5th Cir. 1976) 12

Wyoming Outdoor Coord. Council v. Butz, 484 F.

2d 1244 (10th Cir. 1973) 11

iii

STATUTES CITED

Pages

33 C.F. R. § 209.410 (d) (2) (ii) (1978) 6, 11

33 C.F. R. § 325.4 (b) (1) (1978) 7,11

40 C.F. R. § 1500.5 (a) (2) (1978) 5, 10

40 C.F. R. § 1500.6 (a) (1978) 5, 11

40 C.F. R. § 1508.18 (1979) 6,11

50 C.F. R. § 17.11 (1978) 15

16 U.S.C. §§ 1531-43 (1979) 15

28 ' U.S.C. §§1331 (a), 1361 and 1362 (1976) ................. 9

33 U.S.C. § 403 (1976) 4, 5, 8, 12,16

42 U.S.C. § 4321, et seq. 2,8

42 U.S.C. § 4332 (1976) 3, 10

42 U.S.C. § 4332 (2) (e) 11

Section 28, U.S.C. § 1254 (1) 2

REGULATIONS CITED

43 Fed. Reg. 55989 (November 29, 1978) 11

In The

Supreme Court of the United States

October Term, 1979

ray

Vv

No.

fay

Vv

WINNEBAGO TRIBE OF NEBRASKA,

Petitioner,

vs.

COL. JAMES W. RAY, DISTRICT ENGINEER,

OMAHA DISTRICT, UNITED STATES ARMY,

CORPS OF ENGINEERS, IOWA PUBLIC SERV-

ICE COMPANY, AND NEBRASKA PUBLIC

POWER DISTRICT,

Respondents.

4y

Vv

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

r, —

is.

To the Honorable, The Chief Justice and the Associate

Justices of the Supreme Court of the United States:

The Winnebago Tribe of Nebraska, the Petitioner

herein, prays that a Writ of Certiorari issue to review

the judgment of the Court of Appeals of the Eighth Cir-

cuit entered in the above entitled case on March 13, 1980.

ft.

Vv

2

OPINIONS

The opinion of the Court of Appeals for the Eighth

Circuit is unreported, but is attached to this petition as

Appendix A, infra, page App. 1. The Court of Appeals

affirmed the United States District Court for the District

of Nebraska, whose opinion was entered on June 29, 1979,

and is unreported, but is attached to this petition as Ap-

pendix B, infra, page App. 13.

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_

JURISDICTION

The judgment of the Circuit Court of Appeals for the

Eighth Cireuit (Appendix A, infra, page App. 1), was

entered on March 13, 1980. Jurisdiction of the Supreme

Court is invoked under Section 28, U.S.C. § 1254 (1).

QUESTIONS PRESENTED

1. Did the United States Army Corps of Engineers

violate the National Environmental Policy Act of

1969 (NEPA), 42 U.S.C. § 4321 et seq., the Council

on Environmental Quality (CEQ) guidelines, and its

own regulations when it issued a river crossing per-

mit making possible the construction of a 66-mile,

high-voltage, electric transmission line without re-

viewing the environmental effects of 98% of that line.

2. Did the Winnebago Tribe of Nebraska meet its burden

of demonstrating a substantial environmental issue

as to the endangered Northern American Bald Eagle

at trial?

~

3

STATUTORY PROVISIONS AND REGULATIONS

INVOLVED

This case involves the National Environmental Policy

Act of 1969, 42 U.S.C. § 4332 (1976) :

§ 4332. Cooperation of agencies; reports; availability

of information; recommendations; international

and national coordination of efforts.

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 de-

sign arts in planning and in decisionmaking which

may have an impact on man’s environment;

(B) identify and develop methods and proced-

ures, in consultation with the Council on Environ-

mental Quality established by sub-chapter II of this

chapter, which will insure that presently unquanti-

fied environmental amenities and values may be given

appropriate consideration in decisionmaking along

with economic and technical considerations ;

(C) inelude in every recommendation or report

on proposals for legislation and other major Federal

actions significantly affecting the quality of the hu-

man environment, a detailed statement by the respon-

sible official on—

(i) the environmental impact of the proposed

action.

(ii) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented.

+

(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 commit-

ments of resources which would be involved in the

proposed action should it be implemented.

Prior to making any detailed statement, the respon-

sible Federal official shall consult with and obtain

the comments of any Federal agency which has juris-

diction by law or special expertise with respect to

any environmental impact involved. Copies of such

statement and the comments and views of the ap-

propriate 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 55? of title 5, and shall

accompany the proposal through the existing agency

review processes;

the Rivers and Harbors Appropriation Act of March 8,

1899, ch. 425, $10, 30 Stat. 1151, Title 33, U.S.C. § 403

(1976) :

§403. Obstruction of navigable waters generally;

wharves; piers, ete.; excavations and filling in.

The creation of any obstruction and affirma-

tively authorized by Congress, to the navigable ca-

pacity of any of the waters of the United States is

prohibited; and it shall not be lawful to build or

commence the building of any wharf, pier, dolphin,

boom, weir, breakwater, bulkhead, jetty, or other

structures in any port, roadstead, haven, harbor,

canal, navigable river, or other water of the United

States, outside established harbor lines, or where no

harbor lines have been established, except on plans

recommended by the Chief of Engineers and author-

ized by the Secretary of the Army; and it shall not

5

be lawful to excavate or fill, or in any manner to

alter or modify the course, location, condition or ca-

pacity of, any port, roadstead, haven, harbor, canal,

lake, harbor or refuge, or inclosure within the limits

of any breakwater, or of the channel of any navigable

water of the United States, unless the work has been

recommended by the Chief of Engineers and author-

ized by the Secretary of the Army prior to beginning

the same.

(Mar. 3, 1899, ch. 425, § 10, 30 Stat. 1151.) ;

the Council on Environmental Quality (CEQ) regulations,

40 C.F. R. § 1500.5(a) (2) (1978):

§ 1500.5 Types of actions covered by the Act.

(a) “Actions” inelude but are not limited to:

(2) New and continuing projects and program

activities: Directly undertaken by Federal agencies;

or supported in whole or in part through Federal

contacts, grants, subsidies, loans, or other forms of

funding assistance (except where such assistance is

solely in the form of general revenue sharing funds,

distributed under the State and Local Fiscal Assist-

ance Act of 1972, 31 U.S.C. 1221 et seq. with no

Federal agency control over the subsequent use of

such funds); or involving a Federal lease, permit,

license certificate or other entitlement for use;

the CEQ regulations, 40 C. F. R. § 1500.6 (a) (1978):

§ 1500.6 Identifying major actions significantly af-

fecting the environment.

(a) The statutory clause “major Federal actions

significantly affecting the quality of the human en-

vironment” is to be construed by agencies with a view

to the overall, cumulative impact of the action pro-

posed, related Federal actions and projects in the

area, and further actions contemplated. Such actions

6

may be localized in their impact, but if there is po-

tential that the environment may be significantly af-

fected, the statement is to be prepared. Proposed

major actions, the environmental impact of which is

likely to be highly controversial, should be covered

in all cases. In considering what constitutes major

action significantly affecting the environment, agen-

cies should bear in mind that the effect of many

Federal decisions about a project or complex of proj-

ects can be individually limited but cumulatively con-

siderable. This can occur when one or more agencies

over a period of years puts into a project individuaily

minor but collectively major resources, when one de-

cision involving a limited amount of money is a prece-

dent for action in much larger cases or represents a

decision in principle about a future major course of

action, or when several Government agencies individ-

ually make decisions about partial aspects of a major

action. In all such cases, an environmental statement

should be prepared if it is reasonable to anticipate

a cumulatively significant impact on the environment

from Federal action. The Council, on the basis of

a written assessment of the impacts involved, is avail-.

able to assist agencies in determining whether spe-

cific actions require impact statements;

CEQ regulations, 40 C.F. R. § 1508.18 (1979):

§ 1508.18 Major Federal action.

“Major Federal action” includes actions with ef-

fects that may be major and which are potentially

subject to Federal control and responsibility. Major

reinforces but does not have a meaning independent

of significantly (§ 1508.27). Actions include the cir-

cumstance where the responsible officials fail to act

and that failure to act is reviewable by courts or ad-

ministrative tribunals under the Administrative Pro-

cedure Act or other applicable law as agency action;

the United States Army Corps of Engineers regulation,

33 C.F. R. § 209.410 (d) (2) (ii) (1978):

7

(ii) Should the District Engineer determine in

assessing the impact of a minor action that an en-

vironmental statement is not required, the determi-

nation to that effect will be placed in the project file.

This determination shall be made available to the

public upon request and shall include a statement of

the facts and the signer’s basis and reasons for his

decision. It will be signed by the District Engineer

or higher commander and brought to the atention of

the publie by publication in the 3-year schedule (para-

graph (f) of this section). Where more timely notifi-

cation is essential, public notices may also be used.

A minor action is defined as one which, following

the completion of an environmental assessment, is

determined not to have a significant impact on the

quality of the human environment. If the District

or Division Engineer is in doubt as to whether or

not a statement should be prepared, further guidance

must be requested in accordance with paragraph

(d) (4) of this section. These determinations are

reversible should controversy or other later events

require an environmental statement to be written;

and the United States Army Corps of Engineers regula-

tions, 33 C.F. R. § 325.4 (b) (1) (1978):

(1) The District Engineer, at the earliest prac-

ticable time prior to the issuance of the public notice,

shall make a preliminary assessment of impacts of

the project should it be approved and make a pre-

liminary determination as to whether the quality of

the human environment would be significantly af-

fected. This preliminary assessment will normally

be based on experience with similar type activities

performed in the past. A statement of the District

Engineer’s preliminary determination shall be in-

cluded in the public notice. This preliminary deter-

mination will be reconsidered as additional informa-

tion is developed.

—)

8

STATEMENT OF THE CASE

The Nebraska Public Power District (NPPD) and

the Iowa Public Service Company (IPS) entered into a

joint venture for the construction of a 345 kilovolt electric

transmission line. The line was to run from the IPS sub-

station in Raun, Towa, a few hundred yards to the Mis-

souri River, across that river and then more than 65 miles

to the NPPD substation in Hoskins, Nebraska. Some 27

miles of that line were to run across the Winnebago Indian

Reservation. The line crossed 29 parcels of land owned

in whole or in part by the Winnebago Tribe and by in-

dividual members of the Tribe.

On July 13, 1978, IPS applied to the United States

Army Corps of Engineers (Corps) for a permit to cross

the Missouri River, as required by 33 U.S. C. § 403 (1976)

(originally enacted as Rivers and Harbors Appropriation

Act of March 3, 1899, ch. 425, § 10, 30 Stat. 1151) (herein-

after section 10). The Corps prepared an environmental

assessment on the impact of the river-crossing portion

of the line (approximately 1.25 miles of 66 miles). The

Corps’ assessment totally ignored the remaining 98% of

the project. The assessment did not mention any possible

adverse effect on Northern American Bald Eagles, an

endangered species found in the project area. The Corps

did not consider a number of viable alternatives.

The Corps granted the section 10 permit on January

10, 1979. On April 30, 1979, the Winnebago Tribe of

Nebraska (Tribe) filed suit alleging noncompliance by the

power companies and the Corps with the National En-

vironinental Policy Act of 1969, 42 U.S.C. § 4321, et seq.

(NEPA). The Tribe sought to enjoin construction and

condemnation pending compliance. The suit was brought

under 28 U.S.C. §§ 1331 (a), 1361, and 1362 (1976).

At trial the Tribe demonstrated the entire Raun-

Hoskins line would not and could not have been built

absent the issuance of the section 10 permit allowing the

power companies to cross the Missouri. It also demon-

strated that the Corps completely ignored the 98% of the

proposed project west of the Missouri’s banks and did not

consider several viable alternatives. The Tribe demon-

strated that bald eagles were not considered in the Corps’

negative declaration that was the result of its environ-

mental assessment. The Tribe established that there is

a substantial bald eagle, population in the vicinity of the

proposed power line. The Tribe established that there

have been dead bald eagles found along the Missouri River

and in both Towa and Nebraska. The Tribe established

that the third largest cause of death of bald eagles is

electrocution. Impact injuries are the second largest cause

of eagle mortality. Some bald eagles which receive these

diagnoses are found under power lines. The Tribe estab-

lished that bald eagles are in danger of extinction. The

Tribe proved that power lines kill eagles and that the

Corps did not consider this. The Tribe also showed that

the clearing of brush adversely effects the habitat of part

of the food chain of eagles, that noise during construction

would disturb roosting eagles, and that the United States

Fish and Wildlife Service has not determined that high

voltage power lines are safe for migratory birds.

The District Court ruled against the Tribe by holding

that the Tribe failed to meet its burden of proof. The

Kighth Cireuit affirmed the ruling of the District Court.

10

Both courts held the Corps action in assessing only a small

part of the project was reasonable.

ry

Vv

REASONS FOR GRANTING THE WRIT

1, The decision of the Eighth Circuit Court

of Appeals in this case conflicts with the en banc

holding of the Eighth Circuit in Minnesota Public

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

(8th Cir. 1974) (en banc) (MPIRG I), with deci-

sions of other circuits, with the guidelines of

the Council on Environmental Quality (CEQ),

and with the Corps’ own regulations.

The decision of the Eighth Circuit Court of Appeals

in this case conflicts with MPIRG I, supra, decisions

from other circuits, Council on Environmental Quality

guidelines, and with the Corps’ own regulations.

The National Environmental Policy Act requires that:

to the fullest extent possible . . . (2) all agencies of

the Federal government shall ... (c) include in...

major Federal actions significantly affecting the qvel-

ity of the human environment, a detailed statement by

the responsible official on... (i) the environmental

impact of the proposed action ... (iii) alternatives

to the proposed action. 42 U.S.C. § 4332.

The CEQ guidelines define ‘‘actions” to include:

(2) New and continuing projects .. . involving a Fed-

eral lease, permit, license, certificate or other entitle-

ment for use. 40 C.F. R. § 1500.5(a)(2) (1978).

These guidelines are entitled to substantial defer-

ence. Andrus v. Sierra Club, 99 S. Ct. 2335, 2341 (1979).

11

In MPIRG I, supra, the Bighth Circuit, sitting en

banc, adopted a unitary test for whether a particular

project or federal activity was “major federal action sig-

nificantly affecting the quality of the human environment.”’

42 U.S.C. §4332(2)(c). Other courts of appeal agree

with this test. Calvert Cliffs Coord. Com. v. A. E. C., 449

F, 2d 1109 (D.C. Cir. 1971); City of Davis v. Coleman,

521 F. 2d 661 (9th Cir. 1975); Wyoming Outdoor Coord.

Council v. Butz, 484 F. 2d 1244 (10th Cir. 1973).

The CEQ has adopted the unitary test for determin-

ing the applicability of NEPA to federal actions. 40 C.

F. R. § 1500.6(a) (1978). And see, 40 C.F. R. § 1508.18

(1979), 43 Fed. Reg. 55989 (November 29, 1978). Addi-

tionally, the Corps’ regulations, in force at the time this

permit was issued recognized the unitary test. 33 C.F. R.

§ 325.4(b)(1) (1978). See also the Corps’ definition of

minor action at 33 C. F. R. § 209.410(d) (2) (ii) (1978).

Some courts of appeal have bifurcated the statutory

phrase and look to see if an action is ‘‘federal” and if it is

“major” before looking to see if it will “significantly” af-

fect the environment. Henly v. Mitchell, 460 F. 2d 640

(2nd Cir. 1972); N..A. A.C. P. v. Medical Ctr., Inc., 585 F.

2d 619 (3rd Cir. 1978); Save The Bay, Inc., v. Corps of

Eng., — F. 2d — (5th Cir. 1980) ; Scherr v. Volpe, 466 F.

2d 1027 (7th Cir. 1972).

In this case, the Corps defined “proposed action’’ to

refer only to its issuance of a section 10 permit allowing

the power line to cross the river. The Tribe seeks to have

this Court delimit “proposed action’? by the underlying

activity being regulated.

12

The Corps first narrowed its review of this project

to 2% of the 66-mile powerline. The panel which decided

this case looked at federal involvement in th> unconsidered

98% of the line, concluded there was none and therefore

concluded that there was no ‘‘major Federal action” and

consequently no obligation to review the environmental

impacts of the entire line. The Tribe contends that this

single project has been federalized in its entirety by the

issuance of the section 10 permit and therefore the Corps

was obligated to look at the entire line from substation

to substation.

The Court’s holding is directly contrary to the en banc

Eighth Cireuit holding in MPIRG I, supra, the holding of

other circuit courts of appeal, the CEQ guidelines, and the

Corps’ own regulations. The focus should have been on

whether the Tribe raised a substantial environmental is-

sue significantly affecting the quality of the human envi-

ronment concerning the entire line. When the Tribe did

so, the issuance of the permit became per se major federal

action. MPIRG I, supra; Sierra Club v. Morton, 400 F.

Supp. 610, 644-645 (N. D. Calif. 1975). It is on this precise

point that the conflict amongst the circuits turns.

In effect, the Corps has limited its environmental ob-

ligations under NEPA to the physical boundaries of its

substantive jurisdiction, essentially the 2% of the power-

line extending between the Missouri’s banks. The Highth

Cireuit panel agreed with this and defined the Corps

environmental review responsibility co-terminally with that

agency’s jurisdictional grant in 33 U.S.C. § 403 (section

10). Also see United States v. Sexton Cove Estates, Inc.,

526 F. 2d 1293 (5th Cir. 1976).

13

In essence then, NEPA’s scope is limited by this rul-

ing to the effects of the licensor regardless of the effect

of the activities of the licensee permitted by the agency

action.

It is the Tribe’s position that “major Federal action”

must be judged by the activity permitted by the granting

of a license or permit. The focus of the Corps in this

ease should have been upon whether the entire 66 mile

powerline substantially affects the quality of the human

environment. If it does, then the issuance of the permit

making ‘at construction possible is per se major federal

action. MPIRG I, supra; Davis v. Morton, 469 F. 2d 593

(10th Cir. 1972); Sierra Club v. Morton, 400 F. Supp. 610,

644-645 (N.D. Cal. 1975).

The inadequacy of the Corps’ assessment is clear. It

artificially segmented a 66-mile powerline in order to ex-

amine 2% of it. It is instructive to examine the three-

part test several courts have articulated for defining the

scope of an environmental assessment for a highway seg-

ment. The segment considered should ‘“‘at least be inde-

pendently supportable by meaningful terminal points.”’

Indian Lookout Alliance v. Volpe, 484 F. 2d 11, 19 (8th

Cir. 1973). The segment should have independent utility.

And the segment should be long enough to assure ‘an

adequate opportunity for consideration of the alternatives

to the proposed action (both whether and where to build).”

Patterson v. Exon, 415 F. Supp. 1276, 1282 (D. Neb. 1976).

All these criteria are equally appropriate in the transmis-

sion line context.

Powerlines have utility for carrying electricity. The

electricity can only be used once it reaches a substation.

14

The only meaningful terminal points for a transmission

line are substations. The river bank to river bank environ-

mental assessment provides for no functional review of

the line. The line neither begins nor ends at the river’s

banks. The river crossing segment of the line has no

independent utility. See, Swain v. Brinegar, 542 F. 2d 364

(7th Cir. 1976) (en banc). Alternatives to the river cross-

ing cannot be meaningfully considered unless recognition

is given to the underlying activity, which is the construc-

tion of a 66-mile powerline. The review conducted by the

Corps in this case fails to satisfy any part of this seg-

mentation test. It is very hard to imagine how the Corps

could meaningfully consider alternatives without examin-

ing the line beyond its river bank to river bank limitation.

Presumably, options would be severely limited by the ap-

pearance of the ends of the east and west segments of

the line, in mid-air, at the points these segments encroached

the Corps’ jurisdiction. Alternatives cannot be consid-

ered, especially the ‘‘no action” alternative, when no at-

tention is given to the source of the power, its destination

or the effect and method of its transmission.

NEPA requires federal agencies to review the en-

vironmental impacts and alternatives to major federal

actions significantly affecting the quality of the human

environment. This review is to be completed prior to the

irretrievable commitment of resources to allow for a

meaningful consideration of cost/benefits, alternatives, and

mitigation. Natural Resources Defense Council, Inc. v.

Morton, 488 F. 2d 827 (D. C. Cir. 1972). Under NEPA the

scope of review should be “to the fullest extent possible.”

To make its examination meaningful, the Corps was

obligated to look at the entire Raun-Hoskins line. If the

15

entire line is looked at, unquestionably the Corps action

in permitting the essential step in its construction becomes

major Federal action significantly affecting the quality of

the human environment. See Greene County Planning

Board v. F.P.C., 455 F.2d 412 (2nd Cir, 1972).

2. The burden of proof imposed upon the

Tribe in this case defeats the purpose of NEPA.

As discussed, supra, the Corps did not consider 98%

of the line. In addition to this failing the Corps totally

ignored the effect of the large transmission towers and

line upon the Northern American Bald Eagle. There is

a substantial population of Bald Eagles in the project area

on a seasonal basis. The Bald Eagle is adversely af-

fected by powerlines and power towers.

The Court of Appeals upheld the District Court’s

holding that the Tribe failed to show that eagles are

differently impacted than the robins, ducks, and hawks

which were mentioned in the Corps’ environmental assess-

ment. But the environmental asssessment did not men-

tion the electrocution hazard which the line poses to Bald

Eagles. Further, the loss of one or two robins may be

insignificant but the loss of even one Bald Eagle has a

significant effect on the quality of the human environment.

Bald Eagles are included within the protection of the

Endangered Species Act of 1973, 16 U.S.C. §§ 1531-43

(1979), 50 C. F. R. $17.11 (1978).

The lower courts apparently believe that the Tribe

has the burden of establishing that actual injuries will

occur to eagles because of this powerline. Although the

Tribe believes that it has met this standard, the correct

16

standard was for the Tribe to demonstrate a deficiency in

the administrative record. Pokorny v. Costle, 464 F.Supp.

1273 (D. Neb. 1979); Hiram Clarke Civic Club, Inc., v.

Lynn, 476 F.2d 421 (5th Cir. 1973); Hiatt Grain & Feed,

Inc. v. Bergland, 446 F.Supp. 457 (N.D.Ill. 1978). The

Tribe has shown three: 98% of the line was completely

unconsidered; the Corps gave no consideration to the en-

dangered Bald Eagle; and unconsidered were a number

of viable alternatives to the construction of the line.

Once a deficiency in the administrative record has

been shown, the burden shifts to the federal agency “which

possesses the labor, public resources, and expertise to

make the proper environmental assessment and to support

it by a preponderance of the evidence.” Pokorny, at 1276.

To require more of the Tribe would be to insulate

the Corps behind an insurmountable barrier. Environ-

mentalists, in bringing NEPA suits, are acting as private

attorney generals to preserve our nation’s great resources.

The cost of experts and research should be borne by the

agencies. The Tribe has proven that the Corps did not

consider 98% of the proposed action. The Tribe has

proven that an endangered species was threatened by the

line. The Tribe has proven that viable alternatives were

unconsidered. The burden shifted to the Corps to demon-

strate the reasonableness of its negative declaration. The

Corps did not meet its burden.

3. The scope of the environmental assessment

to be made before the United States Army Corps

of Engineers issues a permit is a matter of great

national importance.

The Corps issues section 10 permits, such as the one

at issue in this suit under the authority of section 10 of

17

the Rivers and Harbors Appropriation Act of March 8,

1899, 33 U.S.C. § 403 ( 1976). It also issues section 404

permits, combination section 10 and 404 permits, and

section 103 permits. The Corps did 16,214 environmental

assessments in conjunction with the issuance of permits

and letters of permission in fiscal year 1978, ending Sep-

tember 30, 1978. The Corps, in fiscal year 1979, did

15,793 environmental assessments.

Numerous other federal agencies issue permits as

well. See Greene County Planning Board v. Federal

Power Commission, 455 F.2d 412 (2nd Cir. 1972) (FPC

license on high voltage transmission line); Davis v. Mor-

ton, 469 F.2d 593 (10th Cir. 1972) (Bureau of Indian

Affairs approval of 99 year lease on trust land) ; Jette v.

Berglund, 579 F.2d 59 (10th Cir. 1978) (Department of

Agriculture license for drilling); and State of Maryland

v. Train, 415 F. Supp. 116 (D. Md. 1976) (Environmental

Protection Agency ocean dumping permit).

For the above reasons, the Tribe prays that a writ

of certiorari issue to review the opinion and judgment of

the United States Court of Appeals for the Eighth Circuit

in this case.

Respectfully submitted,

WINNEBAGO TRIBE OF NEBRASKA,

Petitioner

By MicnHar.t D. Goocr

LAWRENCE HAMMERLING

InterTribal Legal Services

Rt. 1, Box 66A

Winnebago, Nebraska 68071

Counsel for Petitioner

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 79-1632

WINNEBAGO TRIBE OF NEBRASKA,

Appellant,

Vs.

COL. JAMES W. RAY, DISTRICT ENGINEER,

OMAHA DISTRICT, UNITED STATES ARMY,

CORPS OF ENGINEERS, IOWA PUBLIC SERV-

ICE COMPANY, AND NEBRASKA PUBLIC

POWER DISTRICT,

Appellees.

Appeal from the United States District Court

for the District of Nebraska.

Submitted: November 7, 1979

Filed: March 13, 1980

Before LAY, Chief Judge;* BRIGHT and MeMILLIAN,

Cireuit Judges.

BRIGHT, Circuit Judge.

Winnebago Tribe of Nebraska (the Tribe) appeals

an order of the district court! denying its request for a

permanent injunction to bar construction of a proposed

power line running from Ruan, Iowa, to Hoskins, Ne-

*The Honorable Donald P. Lay became Chief Judge of the

Eighth Circuit on January 1, 1980.

1 The Honorable Albert G. Schatz, United States District Judge

for the District of Nebraska.

App. 2

braska. The Tribe claims the district court erred in hold-

ing that the issuance of a permit to cross the Missouri

River by the Army Corps of Engineers (Corps) was not

a “major federal action” within the meaning of the Na-

tional Environmental Policy Act of 1969 (NEPA), 42

U.S. C. $§ 4321-61 (1976). The Tribe also maintains that,

contrary to the district court’s holding, it sustained its

burden of proof by raising substantial environmental

issues. Finally, the Tribe argues that the Corps’ deter-

mination not to prepare an environmental impact state-

ment (KIS) was unreasonable. For reasons set forth

below, we reject these contentions and affirm the holding

of the district court.

I. Background.

Appellee Nebraska Public Power District (NPPD)

began planning construction of a 345 KV transmission

line from Raun, Iowa, to Hoskins, Nebraska, in 1975. The

proposed line would cross the Missouri River 150 feet

south of an Omaha Public Power District (OPPD) line

and run through the Winnebago Indian Reservation. In

the fall of 1977, NPPD informed the Tribe and the Bureau

of Indian Affairs of its intent.

On July 13, 1978, appellee Iowa Public Service Com-

pany (IPS), a joint venturer with NPPD in this project,

applied to the Corps for a permit to cross the Missouri

River, as required by 33 U.S.C. § 403 (1976) (originally

enacted as Rivers and Harbors Appropriation Act of

March 3, 1899, ch. 425, $10, 30 Stat. 1151) (hereinofter

section 10). Before granting the permit, the Corps pre-

pared an environmental effect assessment on the impact

App. 8

of the river-crossing portion of the line (approximately

1.25 miles out of 67 miles). The assessment concluded

that an environmental impact statement was not required

because “[t]here are no significant environmental impacts

associated with this project.” The assessment did not

mention any possible adverse effect on bald eagles, a

protected species.? The Corps granted the section 10 per-

mit on January 10, 1979.

On April 30, 1979, the Tribe filed the present suit

alleging noncompliance with NEPA and seeking to en-

join construction pending compliance. On May 1, 1979,

the district court granted a temporary restraining order.

In the course of a three-day trial in May, the court heard

testimony on the potential harm to the American bald

eagle, a portected species, as well as arguments on the

sufficiency and scope of the Corps’ assessment, The

trial court ruled that the assessment properly considered

only the river-crossing portion of the line, because the

scope of the federal permit was limited to this area and

the federal government was not funding the project.

After weighing the evidence on danger to the American

bald eagle, the district court concluded that the Tribe

had failed to raise a substantial environmental issue. Ac-

cordingly, the trial court denied the requested injunctive

relief.

2 See Bald Eagle Protection Act, 16 U.S.C.A. §§ 668-668d

(1974 & West Supp. 1979); Migratory Bird Treaty Act, 16

U.S. C. A. §§ 703-712 (1974 & West Supp. 1979), 50 C.F. R.

10.13 (1978); Endangered Species Act of 1973, 16 U.S.

-A. §§ 1531-43 (1974 & West Supp. 1979), 50 C.F.R.

§ 17.11 (1978).

App. 4

II. Analysis,

Section 102(2)(C) of NEPA, 42 U.S.C. § 4822(2)(C)

(1976), requires that the relevant federal agency prepare

an EIS for “major federal actions significantly affecting

the quality of the human environment.” Initially, the

agency determines whether the proposed action triggers

the EIS requirement. See Minnesota Public Interest Re-

search Group v. Bute, 498 F, 2d 1814, 1319-20 (8th Cir.

1974) (en banc) (MPIRG 1). In MPIRG J, supra, this

court set forth the standard for judicial review of an

agency’s threshold determination not to prepare an EIS:

To upset an agency determination not to prepare an

impact statement, it still must be shown that the

agency’s determination was not reasonable under the

circumstances. This will require a showing that the

project could significantly affect the quality of the

human environment. Save Our Ten Acres v. Kreger,

[472 F. 2d 463, 466 (5th Cir. 1973)]. We therefore

hold that review of an agency’s determination not

to prepare an impact statement should be measured

by its reasonableness in the circumstances, not as to

whether it was arbitrary, capricious, an abuse of

diseretion, or otherwise not in accordance with law.

[MPIRG I, supra, 498 F. 2d at 13820 (footnote omit-

ted) ; accord, Monarch Chemical Works, Inc. v. Thone,

604 I, 2d 1083, 1087-88 (8th Cir. 1979).]

MPIRG I, in requiring that the plaintiff must show

“that the project could significantly affect the quality

of the human environment,” relied upon Save Our T'en

Acres v. Kreger, 472 F. 2d 463, 466 (5th Cir. 1973)

(SOTA). In SO7'A and subsequent cases, the Fifth Cir-

cuit elaborated upon the required showing by allocating

burdens of proof: the plaintiff must raise a substantial

environmental issue concerning the proposed project, and

App. 5

then the burden shifts to the defendant to support the

reasonableness of the negative determination. See SOT'A,

supra, 472 F. 2d at 467; Hiram Clarke Civic Club, Inc.

v. Lynn, 476 F. 2d 421, 425 (5th Cir. 1973); Image of

Greater San Antonio, Texas v. Brown, 570 F. 2d 517, 522

(5th Cir, 1978),

In the present suit, the district court assigned appel-

lant the burden of raising a substantial environmental

issue. The parties to the present appeal do not take

issue with the district court’s use of this approach, nor

do we find the method inappropriate. A number of dis-

trict courts throughout the country have employed this

analysis. See Pokorny v. Costle, 464 F. Supp. 1273 (D.

Neb. 1979); Hiatt Grain & Feed, Inc. v. Bergland, 446 F.

Supp. 457 (D. Kan. 1978), aff’d 602 F. 2d 929 (10th Cir.

1979); Mid-Shiawassee County Concerned Citizens v.

Train, 408 F. Supp. 650 (KE. D. Mich. 1976), aff’d mem.,

559 F. 2d 1220 (6th Cir, 1977); Jones v. HUD, 390 F.

Supp. 579 (KE. D. La. 1974). Indeed, without comment-

ing on the district court’s characterization of the burden

of proof, this court has affirmed an opinion that con-

cluded that many of the plaintiff’s claims failed to raise

a substantial environmental issue. Monarch Chemical

Works, Inc, v. Exon, 466 F, Supp. 639 (D. Neb.), aff'd

sub nom. Monarch Chemical Works, Inc. v. Thone, 604

F, 2d 1083 (8th Cir, 1979). Accordingly, we must de-

termine whether the district court erred in holding that

the Tribe failed to meet its burden.

To establish a substantial environmental issue, the

“[p]laintiff must allege facts [omitted from consideration

in the administrative record] which, if true, would con-

stitute a ‘substantial’ impact upon the environment.” /iatt

App. 6

Grain & Feed, Inc. v. Bergland, supra, 446 F. Supp. at

490 (citations omitted). The alleged deficiene: must be

of sufficient significance to warrant shifting the burden

of proof. See Monarch Chemical Works, Inc. v. Exon,

supra, 466 I’, Supp. at 647-48; Pokorny v. Costle, supra,

464 I, Supp. at 1275-77.

The Tribe claims that the administrative record is

deficient in three respects: (1) it ignores sixty-five miles

of the sixty-seven mile transmission line; (2) it does not

consider certain viable alternatives; and (3) it does not

contemplate potential harm to bald eagles. We deal with

these claims in the order presented.

A. Failure to consider the Entire Project.

The Tribe alleges that the administrative record

should have considered environmental impacts posed by

the entire transmission line, rather than just the river-

crossing portion. Appellant’s claim presents two related

issues: (a) whether the Corps wields such control and

responsibility over the entire project that nonfederal seg-

ments must be included in the assessment; and (b) assum-

ing limited federal involvement, whether the Corps never-

theless must consider the impacts of nonfederal segments

as secondary effects of the proposed action.

The Tribe notes initially that the powerline will not

be constructed without the section 10 permit. In light

of “hut tor” veto power, the Tribe argues, the Corps

wields sufficient control over the entire project to re-

quire project-wide environmental analysis. Factual or

veto control, however, must be distinguished from legal

control or “enablement.” See NAACP v. Medical Center,

Inc., 584 F. 2d 619 (3d Cir. 1978) (Medical Center);

App. 7

Atlanta Coalition on the Transportation Crisis, Inc. v.

Atlanta Regional Commission, 599 F. 2d 1333 (5th Cir.

1979) (Atlanta Coalition).

In “enablement” cases federal action is a legal con-

dition precedent to accomplishment of an entire non-

federal project. Medical Center, supra, 584 F. 2d at 682-

33; Atlanta Coalition, supra, 599 F. 2d at 1345-47. Thus,

for example, the federal statute at issue in Greene County

Planning Board v. FPC, 455 F. 2d 412 (2d Cir.), cert.

denied, 409 U.S. 849 (1972), required the Federal Power

Commission to assure that the entire project was “best

adapted’’ to a comprehensive environmental plan before

licensing construction of a powerline. See also Cady v.

Morton, 527 F, 2d 786 (9th Cir. 1975) (the federal grant

of Indian coal leases was the legal condition precedent

for the strip mining project); Davis v. Morton, 469 F. 2d

593 (10th Cir. 1972) (ninety-nine year lease of Indian

lands was legal condition precedent to entire develop-

ment project). The statute at issue in this case is far

narrower and cannot be construed as a grant of legal

control over the entire project.’

The court in Medical Center, supra, identified three

factors helpful in determining whether “but for” or fac-

3 Section 10 does not contain the type of broad mandate

present in the Federal Power Commission Act. Compare

Greene County Planning Board v. FPC, supra, 455 F. 2d at

423. The Corps’ jurisdiction under section 10 governs non-

federal actions only to the extent they “affect the course,

condition, capacity or location of [navigable waters] * * *,”

United States v. Sexton Cove Estates, Inc., 526 F.2d 1293,

1299 (5th Cir. 1976). See Weiszmann v. District Engineer,

United States Army Corps of Engineers, 526 t. 2d 1302, 1304

(5th Cir. 1976); United States v. Josep!i G. Moretti, Inc., 525

F, 2d 1306 (5th Cir. 1976).

App. 8

tual control requires project-wide analysis: (1) the de-

gree of discretion exercised by the agency over the fed-

eral portion of the project; (2) whether the federal gov-

ernment has given any direct financial aid to the project;

and (3) whether “the overall federal involvement with

the project [is] sufficient to turn essentially private ac-

tion into federal action.” Jd. at 629 (citation omitted).

In Medical Center, the agency had little or no discretion,

there was no direct federal aid, and the court found the

federal involvement insufficient.

In the present suit, while the Corps has broad dis-

cretion to consider environmental impacts (see Zable v.

Tabb, 430 F. 2d 199 (5th Cir. 1970), cert. denied, 401 U.S.

910 (1971)), that discretion must be exercised within the

scope of the agency’s authority. As noted above, the

Corps’ jurisdiction under section 10 extends only to areas

in and affecting navigable waters. See United States v.

Sexton Cove Estates, Inc., 526 F. 2d 1293, 1299 (5th Cir.

1976); Weisemann v. District Engineer, United States

Army Corps of Engineers, 526 F. 2d 1302, 1304 (5th Cir.

1976); United States v. Joseph G. Moretti, Inc., 526 F.

2d 1306 (5th Cir. 1976). As the Third Circuit observed

in United States v. Stoeco Homes, Inc., 498 F. 2d 597,

607 (3d Cir. 1974):

The federal environmental protection statutes did

not * * * by their terms enlarge the jurisdiction of

the Army Corps of Engineers under the Rivers and

Harbors Appropriation Act of 1899. If there is no

such jurisdiction environmental protection is still a

matter primarily of state concern.

App. 9

Thus, the Corps’ discretion under section 10 does not

dictate project-wide review.‘

The factors remaining for consideration under Med-

ical Center are the presence of direct federal funding and

the degree of federal involvement. There has been no

diret or even indirect federal funding for this project.

Cf. Bly v. Velde, 451 F. 2d 1180 (4th Cir. 1971) (Law

Enforcement Assistance Administration involvement in

and funding for a state prison amounts to major federal

action). As for federal involvement, the fact that part

of the line will cross the Winnebago Reservation does not

suffice to turn this essentially private action into federal

action.’ Federal law allows the state to condemn tiis

land for any public purpose in the same manner as land

owned in fee. 25 U.S.C. $357 (1976). Thus, we con-

clude that the Corps did not have sufficient control and

responsibility to require it to study the entire project.

The Tribe also notes that an agency must consider

secondary or indirect impacts in determining whether

4 Contrary to the Tribe’s claim, the Corps’ amended regula-

tions do not appear to make the grant of a section 10 per-

mit a per se major federal action. See 44 Fed. Reg. 38,292,

38,294, 38,307-12 (1979) (to be codified in 33 C. F. R. § 230.6

(e) and Appendix B to 33 C.F.R. § 230). Moreover, new

Council on Environmental Quality regulations, 43 Fed. Reg.

55,978 (1978) (to be codified in 40 C.F. R. §§ 1500-08), as

well as amended Corps of Engineers regutations, 44 Fed.

Reg. 38,292 (1979) (to be codified in 33 C. F. R. § 230), post-

date the assessment here and do not re" ee 43 Fed.

Reg. 56,002 (1978) (to be codified in 40 C. F. R. 4 1506.12).

5 Cf. Citizens Committee for the Hudson Valley v. Volpe, 425

F.2d 97, 106 (2d Cir.), cert. denied, 400 U.S. 949 (1970)

(Corps required to tg project-wide EIS now because

both Congress and the Secretary of Transportation later will

have to approve other portions of the state expressway

project).

App. 10

there are any significant impacts upon the environment.

See 40 C.F. R. § 1500.6(b) (1978). Appellant argues that

the administrative record does not reflect consideration

of a secondary effect of granting the permit—namely,

building the remainder of the line. If, however, appel-

lant’s position were correct, then an EIS for a properly

segmented portion of highway would have to consider im-

pacts of subsequent segments as well. A careful read-

ing of the Council on Environmental Quality Guidelines,

40 C.F.R. §1500.8(a)(3)(ii) (1978),° leads us to reject

appellant’s contention as erroneous. Completion of the

nonfederal aspects of this single project does not con-

stitute a secondary or indirect effect of the federal action.

B. Alternatives.

Appellant’s second alleged deficiency in the adminis-

trative record is the absence of certain alternatives;’

6 40 C.F.R. § 1500.8 (a) (3) (ii) provides in part:

(ii) Secondary or indirect, as well as primary or

direct, consequences for the environment should be

included in the analysis. Many major Federal actions,

in particular those that involve the construction or

licensing of infrastructure investments (e. g., highways,

airports, sewer systems, water resource i, mi etc.),

stimulate or induce secondary effects in the form of as-

sociated investments and changed patterns of social

and economic activities. Such secondary effects,

through their impacts on existing community facilities

and activties, through inducing new facilities and ac-

tivities, or through changes in natural conditions, may

often be even more substantial than the primary effects

of the original action itself. For example, the effects

of the proposed action on population and growth may

be among the more significant secondary effects.

7 The environmental assessment did consider three alterna-

tives, including the no action option.

App. 11

however, the Tribe did not allege this failure in its com-

plaint, nor did the district court consider the claim in its

memorandum opinion.’ Because appellant failed to raise

this issue to the trial court, we will not consider it as a

basis for reversal. See Morrow v. Greyhound Lines, Inc.,

041 F. 2d 713, 724 (8th Cir. 1976), and cases cited therein.

Furthermore, we conclude that our refusal to consider the

issue would not result in “a plain miscarriage of justice,”

nor is it “inconsistent with substantial justice.” Id.

C. Potential Harm to Eagles.

Finally, the Tribe claims it raised a substantial en-

vironmental issue concerning possible harm to bald eagles.

The trial court summarized the evidence regarding eagles

as follows:

[FJirst, the Corps considered several different var-

ities of birds in evaluating the area and concluded

that there would be only short-term impacts resulting

from the actual construction of the project, though

some terrestrial habitats would be disturbed. Second,

the Corps did not specifically consider the American

bald eagle in its evaluation. Third, some eagles have

been sighted in the area but there is no evidence that

they nest in the area. Fourth, a small number? of

eagles are electrocuted each year throughout the

United States.

8 At trial, the only discussion of other alternatives arose in

response to the following question, posed by the Tribe’s

counsel: ins the District, since this litigation began, con-

sidered any alternatives to solving this shortage if this line

cant’ be built?”

9 Dr. Louis Locke, a wildlife pathologist for the U.S. Fish and

Wildlife Service, testified that approximately six percent of

eagles necropsied between 1975 and 1977 had died of

electrocution.

App. 12

The trial court noted that there was no evidence estab-

lishing either that high powerlines affect eagles differently

than the species of birds considered in the assessment, or

that the existing OPPD powerline has detrimentally af-

fected the bald eagles in the area. We hold that on the

basis of this eviednce the trial court did not err in con-

cluding that the Tribe failed to establish a significant

environmental impact on eagles.

III. Conclusion.

The Tribe has failed to meet its burden of raising a

substantial environmental issue omitted from considera-

tion in the administrative record. Accordingly, we affirm

the order of the trial court denying a permanent injunc-

tion.

A true copy.

Attest:

CLERK, U. 8S. COURT OF APPEALS

EIGHTH CIRCUIT.

App. 13

APPENDIX B

MEMORANDUM OPINION

(Filed June 28, 1979.)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

Civ. 79-0-158

WINNEBAGO TRIBE OF NEBRASKA,

Plaintiff,

Vs.

COL. JAMES W. RAY, District Engineer, et al.,

Defendants.

This matter is before the Court in regard to the

plaintiff’s request for a permanent injunction, A tempo-

rary restraining order was issued on May 1, 1979. This

Court, by agreement of the parties, proceeded on May 21,

1979, with a trial on the merits of the permanent injunc-

tion, at which time evidence and arguments were pre-

sented. The following memorandum constitutes the

Court’s findings of fact and conclusions of law in accord-

ance with Rule 52 (a), Federal Rules of Civil Procedure.

The plaintiff, Winnebago Indian Tribe, seeks to halt

the construction of a sixty-seven mile 345 KV transmission

line which is proposed to run from the Iowa Public Serv-

ice Company Raun substation in Iowa to Hoskins, Ne-

braska. The plaintiff has brought this action for alleged

breach of the National Environmental Policy Act, 42

U.S.C. § 4321, et seg. (hereinafter NEPA). This Cou.t

has jurisdiction pursuant to 28 U.S.C. §§ 1331 (a), 1361,

App. 14

1362, 2201 and 2202. Nebraska Public Power District

(hereinafter NPPD), Iowa Public Service Company (here-

inafter IPS), and the United States Army Corps of En-

gineers (hereinafter the Corps) have been named as de-

fendants. The plaintiff has alleged that the environmental

assessment performed by the Corps was insufficient in

that the Corps failed to assess the environmental impact

of this project upon American bald eagles and wrongfully

limited its review to the river crossing segment rather

than evaluating the impact upon the entire sixty-seven

miles of the proposed line.

The two power companies agreed to share the cost of

construction in the following manner: IPS financed and

constructed the segment from the Raun substation cross-

ing the Missouri River and ending on the west bank.

NPPD is responsible for the financing and construction

from the west bank to Hoskins, Nebraska, the major por-

tion of the project. This proposed power line crosses the

Missouri one hundred fifty feet south of another 345 KV

transmission line owned by the Omaha Public Power Dis-

trict. The two lines run parallel for approximately three

and one half miles. Since the span across the river was

the obligation of IPS, it was incumbent upon them to

acquire the necessary permits from the Corps.

In order to cross the Missouri, IPS sought a permit

pursuant to Section 10 of the Rivers and Harbors Ap-

propriation Act of 1899, 33 U.S.C. §403. As mandated

by NEPA, the Corps conducted an environmental review

to ascertain the impact of the proposed construction on

all aspects of the quality of the environment. IPS sub-

mitted environmental data to the Corps and upon this data

App. 15

and an independent review, the Corps concluded that there

were no significant environmental effects requiring an

environmental impact statement (hereinafter EIS). A

negative declaration to that effect was issued supported

by an environmental effects assessment which briefly

described the proposed construction, the probable environ-

mental consequences, feasible alternatives and an explana-

tion of the Corps’ conclusion. The Corps did not specifi-

cally mention the presence of endangered species of birds

such as the American bald eagle. In addition, the Corps’

assessment was limited to a discussion of the environ-

mental effects of the river crossing, but did not consider

the remaining portion of the proposed line.

As stated above, the plaintiff has made two challenges

to the “negative declaration” issued by the Corps. The

plaintiff alleges that the Corps failed to evaluate the

entire construction project and instead wrongfully nar-

rowed their focus to the river crossing segment; secondly,

the plaintiff alleges that the Corps failed to consider the

environmental impact upon the American bald eagle, an

endangered species.

A threshold issue is whether this privately financed

and engineered project constitutes a major federal action.

Scientists’ Institute for Public Information, Inc. v. Atomic

Energy Commission, 156 U.S. App. D.C. 395, 481 F.2d

1079, 1088 (1973) expanded upon the phrase “major fed-

eral action” based upon a review of the legislative history

and concluded as follows:

Thus, there is “Federal action” within the meaning

of the statute not only when an agency proposes to

build a facility itself, but also whenever an agency

makes a decision which permits action by other

App. 16

parties which will effect the quality of the environ-

ment. NEPA’s impact statement procedure has been

held to apply where a federal agency approves a lease

of land to private parties, grants licenses and permits

to private parties, or approves and funds state high-

way projects. (Footnotes omitted.)

Where Courts have construed the granting of a license

for a permit to be “federal action,” such permits have con-

cerned an entire project and/or the foundational facets of

a project. See, e.g., Greenc County Planning Board v.

F.P.C., 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S.

849 (1972) (wherein an FPC permit concerned all aspects

of the construction of hydroelectric transmitters and the

generation of power therefrom.); Calvert Cliffs’ Coordi-

nating Committee v. U.S.A. E.C., 146 U.S. App. D. C. 33,

449 F.2d 1109 (1971) (wherein atomic energy licensing

and operating permits were in question). In cases where

an agency has a lesser involvement, federal funding is

necessary to bolster the federal nature of an action. As

an example, in Dalsis v. Hills, 424 F.Supp. 784 (W.D.

N. Y. 1976), a court considered whether the construction

of an enclosed shopping mall constituted “major federal

action.” The court stated:

A major federal action includes a decision of a federal

agency which permits action to be undertaken by pri-

vate parties which will effect the quality of the en-

vironment. (Citations omitted.) In the case at hand,

HUD gave its approval with knowledge that a private

developer would build the mall. This decision, to-

gether with the funding of the initial demolition of the

substandard buildings, was sufficient to satisfy

NEPA’s “major federal action” prerequisite. (Em-

phasis supplied.) 424 F. Supp. at 787.

This analysis is in accord with the guidelines promulgated

by the Counsel on Environmental Quality to aid federal

App. 17

agencies with respect to their responsibilities under

NEPA. At 40 C.F. R. 1500.6 (¢), the guidelines provide:

The action causing the impact must also be one where

there is sufficient Federal control and responsibility

to constitute “Federal action” in contrast to cases

where such Federal control and responsibility are not

present, as for example, where Federal funds are

distributed in the form of general revenue sharing to

be used by State and local governments (see Section

1500.5 (ii)).

In the instant case there is no federal funding for any

aspect of the project and the permit issued by the Corps

of Engineers concerns a technically minor aspect of the

project when viewed in toto. It is true that the denial of

a Section 10 permit would foreclose the project entirely

because the two state power companies seek to link their

operations and must, by necessity cross the Missouri River

at some point. However, the Section 10 permit does not

concern the nature of the project as a whole or the tech-

nical essence of the project. The plaintiff’s assertion that

this project is a “major federal action” in unfounded.

The fact that the project is not a “federal action”

does not denegrate the responsibility of the Corps to

determine whether an EIS must be performed in regard

to the Section 10 permit. As stated above, the Corps

issued a negative declaration stating that an EIS was

unnecessary in regard to this particular Section 10 permit.

The principles of judicial review in cases concerning a

“negative declaration” by an administrative agency have

been clearly and concisely set forth in Pokorny v. Costle,

464 F. Supp. 1273 (D. Neb. 1979), but bear repeating here.

First, administrative agencies are responsible for the

initial determination of whether an EIS is required under

App. 18

NEPA, Minnesota Public Interest Research Group v.

Butz, 498 F.2d 1814, 1819 (8th Cir. 1974). Within the

Nighth Cireuit, the standard of judicial review for this

determination is “one of reasonableness.” Minnesota

Public Interest Research Group, supra; Monarch Chemical

Works, Ine. v. Exon, 452 F. Supp. 493, 500 (D. Neb. 1978) ;

Patterson v. Exon, 415 F. Supp. 1276, 1281 (D. Neb. 1976),

The burden of proof in cases challenging an agency’s

declaration is initially placed upon the plaintiff to demon-

strate the deficiency in the administrative record exists,

Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425

(Sth Cir, 1973); Hiatt Grain and Feed, Inc. v. Bergland,

446 IF’. Supp. 457, 490 (N. D. Ill. 1978),

The Court’s inquiry’is not limited to the allegedly

deficient administrative record. After the plaintiff has

demonstrated that an incomplete administrative record

exists, the Court may consider extrinsic evidence in its

evaluation of the reasonableness of a “negative declara-

tion.” In Hiram, the court stated:

Rather, as we said in SOTA (Save Our Ten Acres

v. Kreger, 472 F. 2d 463 (5th Cir. 1978)) only if

a plaintiff raises substantial environmental issues

should a court proceed to examine and weigh the

evidence of both the plaintiff and the agency to de-

termine whether the agency reasonably concluded

that the particular project would have no effects that

would significantly affect our environmental quality.

Only if the plaintiff can show an inadequate eviden-

tiary development before the agency should the Dis-

trict Court supplement the deficient administrative

record by taking evidence on the environmental im-

pact of the project. 476 F. 2d at 425.

The evidence presented at trial established that Amer-

ican bald eagles do frequent and roost in the area sur-

App. 19

rounding the banks of the Missouri River, where the

proposed Raun-Hoskins transmission line will cross, dur-

ing the water fowl migratory periods of late fall and

early spring. These birds nest in more northern areas

of Minnesota and fly south during the harshest months

of the winter. They feed on a variety of small animals

and fish. Persons living in the area testified that they

had sighted between fifty and eighty eagles during one

season, Mark Haindfield, a park ranger for the past

seven years at the Snyder Bend County Park near the

area where the transmission lines cross the Missouri,

stated that he had never observed any evidence of dead

bald eagles in the area of the existing OPPD power lines

and concluded that the additional construction would not

propose any additional threats,

Doctor Louis Locke, a wildlife pathologist for the

U. S. Fish and Wildlife Service, testified that he had

performed or supervised the necropsy' of over three hun-

dred bald eagles between 1963 and the present. Speci-

mens of dead bald eagles are submitted to Doctor Locke’s

laboratories by special agents of the Fish and Wildlife

Service whenever such specimens are found. In large

part, the pathologists seek to define the cause of death

for possible prosecution under the Bald Eagle Act. Of

the birds necropsied between 1975 and 1977, Doctor Locke

testified that approximately six per cent (ten eagles) were

electrocuted, though he did not recall where in the coun-

try or how these accidents had occurred.

A threshold requirement in this Court’s review of

the issues presented here is whether the plaintiff has

1 A necropsy is a post-mortem examination.

App. 20

raised a “substantial environmental issue,” Hiram Clarke

Civie Club, supra, at 425. The plaintiff established four

matters: first, the Corps considered several different

varieties of birds in evaluating the area and concluded

that there would be only short-term impacts resulting

from the actual construction of the project, though some

terrestrial habits would be disturbed. Second, the Corps

did not specifically consider the American bald eagle in

its evaluation. Third, some eagles have been sighted in

the area but there is no evidence that they nest in the

area. Fourth, a small number of eagles are electrocuted

each year throughout the United States.

There has been no evidence concerning several issues

crucial to this complaint. There has been no evidence

that the area has been or will be designated as a critical

habitat for the American bald eagle. There is no evi-

dence that the American bald eagle is affected by the

presence of high power lines in a manner different from

other species of birds which were considered by the Corps.

There has been no evidence concerning the manner in

which birds are electrocuted by high power lines and

whether such electrocutions normally occur in nesting

areas or in roosting areas. In contrast, there has been

credible evidence that the existing Omaha Public Power

District line has not detrimentally affected the eagles

roosting in the area to date.

In light of these critical omissions, this Court finds

that the plaintiff has failed to present a substantial en-

vironmental issue requiring a reevaluation of a Section

10 permit by the Corps of Engineers. Accordingly, a

separate order denying plaintiff’s request for a perma-

App. 21

nent injunction has previously been entered in conform-

ity with this memorandum opinion.

By the Court:

/s/ Albert G. Schatz

Judge, United States District Court